Holding

The Tribunal’s view was incorrect; the landlord may challenge the tenant status in a s.32PP proceeding and the Tribunal must first determine the jurisdictional facts before fixing the purchase price.

Summary

The case concerned a dispute under the Bombay Tenancy and Agricultural Lands Act, 1948 concerning land deemed purchased by a tenant on the tillers' day (1 April 1957). The respondent, who had failed to appear before the Agricultural Lands Tribunal under s.320 and whose sale was declared ineffective, later applied under s.32PP for price determination. The landlord challenged the respondent's status as a tenant, arguing that the Tribunal could not deem him a tenant without further inquiry and that res judicata barred the challenge. The Supreme Court held that the Tribunal erred; the landlord is a necessary party and may contest the tenant status in a s.32PP proceeding, and the Tribunal must first determine whether the applicant was a tenant on the relevant date and whether the sale was declared ineffective. Consequently, the appeal by the landlord was dismissed.

Issues considered

Whether a landlord can contest the tenant status of a person who failed to appear before the Tribunal under s.320 in a proceeding under s.32PP.
Whether the principle of res judicata or constructive res judicata bars such a challenge.
Whether the Tribunal was correct in holding that the applicant was not a tenant and therefore price determination was unnecessary.

Legislation cited

Bombay Tenancy and Agricultural Lands Act, 1948s. 15, s. 32, s. 320, s. 32G, s. 32P, s. 32PP
Bombay Tenancy and Agricultural Lands (Gujarat Amendment) Act, 1965
Constitution of Indias. Article 227

Subjects

tenancydeemed purchaseprice determinationres judicataagricultural land reformlandlord-tenant disputesection 32PP

Judgment

992
.PATEL SURESHBHAI JASHBHAI
A
v.
PATEL SATABHAI MATHURBHAI

April 28, 1983
B
[D. A, DESAI AND 0. CHINNAPPA REDDY, JJ.)

Bombay Tenancy and Agricultural Lands Act, 1948-ss. 32, 32 G, 32 PP-
Scope of-Tenant-Deemed Purchaser of land-Failed to be present-Sale declared
ineffective-Application under section 32 PP for determiniJtion of price-Landlord
entitled to contend applicant not a tenant-Not precluded by .res-judicata.
c
lly the operation of s. 32 of the Bombay Tenancy and Agricultural
Lands Act 1948 the respondent who was recorded as a tenant on the tillers'
day i.e. !st April, 1957 was deemed to have purchased the land from the
appe"Uant-landlord subject to other provisions of the Act. The respondent
having refused to accept notice u/s 32G for determining the price of the land
D and failing to appear, the Tribunal declared the sale ineffective. Subsequently
the respondent made an application under s. 32 PP that afforded a fresh
opportunity to a tenant who had failed to aµpear before the Tribunal as a
result of which the sale was held ine~ectivc, requesting tli.e Tribunal t~ deter~
mine purchase price of the land. The Tribunal held that the responc:ent was y
not a. tenant of the land and was not entitled to be declared a deemed pur..
chaser and accordingly it is not necessary to determine the price. The Deputy
E Collector dismissed the appeal preferred by the respondent. The Revenue
Tribunal in a revision petition held that once the notice was issued to a person
who is shown to have purchased the land ufs 32 and if the sale is held ineffec..
tive because of his absence in the proceeding• under s. 32G, in a subsequent
proceeding u/s 32 PP it is not open to the lannlord to challenge that such a
person was not tenant. A petition under Article 227 of the Con-stitution
moved by the appellant-landlord was dismissed in li"dne by the High Court,
F
Dismissing the appeal,

HELD : The yiew of the Revenue Tribunal is not correct. Section
32 PP confers a right upon a person claiming to be a tenant to make an appli·
cation for determining the price and the pre-condition is that he failed to
G appear before the Tribunal in a prcceeding u/s 320. In such a situation,. the
landlord is a necessary party. The landlord cs.n and would be entitled to
contend that the person claiming to be a tenant and making an appli~ation
u/s 32 pp was not a tenant on April I, 1957. Undoubtedly only that person
is entitled to make an application u/s 32 PP who having failed to appear
before the Tribunal in a proceeding ufs 320, the statutory sale was declared
H ineffective but on that account such person making an application under s. 32
PP must be accepted as tenant without further enquiry and without permitting
\he landlord to challenge the status of the applicant is not warranted b¥ the
l'.S. JASHBHAI '· P.s. MATHUJl.BHA!.(Desai, J.) . 993

language of s: 32 Pf., The Revenue: Trjbuna)'s view. that·. UI)less the. landlord,
. 1-... challenged the order u/s 320 declaring lhe sale having, become inetrectjve Oil A
_ .the footing that a persoil to whom notiCe was sent was'. a tenant on Aprjl t.
- 1957 and bis failure lo appear without anything more would clothe him with
the status of a tenant overlooks the possibility or a pCrson tO whom noticq is
served not appearing because be bad nothing to do with 1he Ian<!. · ·
, . . (996 H, 997 A-HJ
' ,

The failure of t4e landlo~d 'to question the sale bein$ <le~lared ineffective: B
·on acc:Ount of the absence of thet person to· ·whom notice was sent and who
defaulted would not either on the general Principle of resjudicata or principle.
I analogous to constructive res judicata. preclude the landlord from chaUengiqg
._,>---. ·the. sta~ ifl the subsequrnt enquiry. The1e is only ope situatipn whicfl may .
preclude the enquiry in that if on receipt of notice; the tenant di4 µot appear
. ' and the landlord appeared and unequivocally admitted that. the defaulting
· p.erson was a tenant on ·the relevant date 'and on· his failure to appeiir the c
··sale should be declared ineffective; the landlord ill. sUbsequent ,prOceedlng ·
. under s, 32 PP would be estopped from challenging the status of the applicant
: tenant, (998 A-q . •

·· CML APPELLATE Ju&1so1cnoN : Civil Appeal .No. 1583 of
1970. , ' .. , ' D
' '
-..,;' Appeal by special leave from the Judgment and Ordet dated
the 22-12-1969 of the Gujarat High Court in S.C.A. No. 1630 of
1969. .-
E
V. A. Bobde and A. G. Ratnaparkhi for the Appellant.

~- B. Datar and Ms. Madhq Moolchandani for the Respondent,

The Judgment of the Court was delivered by.
-
DESAI J, ·Appellant Sureshbhai is the !)wner of Ian<! bearing
· Survey No. 21. situated at Village Ode, Taluka Anand, District Kaira
in Gujarat State. One· Nathabhai Zaveribhai and the present re~
pondent were recorded as tenants on the. tillers'· d11y i.e. 1st April,
1957. Section 32 of the Bombay· Tenancy an<! Agricultural Lands
Act, 1948 ('Tenancy Act for short) provided that. on .the 1st day of
April, 1957 (hereinafter referre<! to as the tillers' day) every tenant
shall subject to the other provisions of the section an4 the provisions
of the next succeeding sections, be deemed. to have purchased frc;im
H
his lan<llord, fr~ from all encumbrances subsisting thereon on the
same~date the land held by him as tenant •. ·Section 320 provided fo~
the follol"' up action of the compulsory purchase that ensues hr tho
994 SUP!Ull4B CO\ll\T Rl!l'ORTS .[1983] 2 s.c.R.

operation of sec. 32. Section 320 thus envisages the determinatiou
A of the price in accordance with the various provisions of the Act, of
the land deemed to have been purchased by the tenant on the tillers'
day and the methodology of its payment. In order to determine the
price the Agricultural Lands Tribunal ('Tribunal' for short) has to
serve a notice in the pr~scribed manner to (a) all tenants who u/s 32
B are deemed to have purchased the lands (b) all landlords of such
Ia~ds; and (c) all other persons interested therein to appear before it
on the date specified in the notice. Sub-sec. 2 provides that the
Tribunal shall record in the prescribed manner, the statement of the
tenant whether he is or is not willing to purchase the land held by
him as a tenant. Sub-sec. 3 provides that where tenant fails to
c appear or makes a statement that he is not willing to purchase the
land, the Tribunal Bhall by an order in writing declare that such a
person is not willing to purchase the land and that the purchase is
ineffective. The remaining sub-secs. provide the manner and method
of determining the price. The Tribunal having jurisdiction in the
area in which the land involved in the dispute is situated issued
D
notice to Nathabhai Zaveribhai and the present appellant as well
as the landlord of the land u/s 320. It appears both the tenants
i.e. Nathahhai Zaveribhai anb the present respondent refused y
to accept notice to remain present and when summons was served
by snbstituted service both of them did not remain present. The
E Tribunal accordingly declared the sale ineffective as provided by sec.
320(3). The Tribunal accordingly made its order annexure B dated
July 20, 1962 declaring that the safo is ineffective. Subsequently the
present respondent made an application u/s. 32 PP requesting the
Tribunal to determine the price of the· land deemed to have been
F purchased by him being Survey No. 21 of Village Ode on April I,
1957. It may be clarified that sec. 32-PP was designed to give a
further opportunity to the tenant who had failed to appear before
the Tribunal which led to the sale being held ineffective, to purchase
the land. This application was resisted by the appellant-landlord.
The Tribunal held that the present respondent was not a tenant of
G the suit land and Nathabhai Zaveribhai was the only tenant who bas
not made an application u/s 32 PP and therefore the present respon-
dent is not entitled to be declared a deemed purchaser and accor-
dingly it is not necessary to determine the purchase price. The res-
pondent preferred an appeal to the Deputy Collector. This appeal
H was dismissed by the Deputy Collector concurring with the findings
9f the Tribunal. The respondent 11\0Ve<! a revision petition u/s 76

•
P.S. JASHBHAI P. P.S. MATIIURBHAI (lfesai, J.) 995

of the Tenanoy Act in the Gujarat Revenue Tribunal. A learned
member of the Gujarat Revenue Tribunal held that once the notice A
was issued to person who is shown to have purchased the land u/s,
32 and if the sale is held ineffective because of his absence under
sec. 32-G, in a subsequent proceeding u/s 32 PP it is not open to the
landlord to challenge that such a person was not tenant. Alternatively,
on the merits it was held that the present respondent was tenant of
the land on April I, 1957 and he has become a deemed purchaser
B
and the Tribunal was bound to determine the price. The matter
( was accordingly remitted to the Tribunal. Present appellant-land-
'-
lord moved a petition under Art. 227 in the High Court of Gujarat
which was dismissed in Jimine. Hence this appeal by special leave.
c
It is not in dispute that the notice u/s 32G was issued to the
present respondent and Nathabhai Zaveribhai -with a view to deter-
mining the price of land bearing Survey No. 21. The notice was
also served upon the appellant-landlord. In a proceeding for deter-
mining the price, the necessary parties are the landlord and the D
tenant as the tenant becomes the owner of the .land by operation of
law. A ;tatutory duty is cast on the Tribunal to proceed to deter-
. mine the purchase price. But as held by a Constitution Bench of
this Court in Sri Ram Ram Narain Medhi v. The State of Bombay(').
·that "the title of the landlord to the land passes immediately to the
tenant on the tillers' day and there is a completed purchase or sale E
thereof as between the landlord and the tenant. The title of the
land which was vested originally in the landlord passes to the tenant
. on the tillers' day and this title is defeasible only in the event of the
tenant failing to appear or making a statement that he is not willing
to purchase the land or commit default in payment of the price F
thereto as determined by the Tribunal."

Thus, it is clear that the title passes by the operation of law.
The Tribunal has to· determine the price as envisaged by s. 32G.
In order to effectively dispose of the proceedings in the presence of G
the necessary parties, the Tribunal is under an obligation to issue
notice to the landlord and the tenant. Order of the Tribunal dated
July 20, 1962 shows that both the tenants and tl!e landlord were
served. The order further shows that the tenants refused to accept
the notice and after substituted service ·did not remain present. It H

(I) [1959] Supp. 1 $.C.R. 489 at 518.
(1983) 2 s.c.~.
appears tjiat the laQd!ord remained present, The 'tribunal decl11re4
A the fiale ineffective on ac~o11nt of the a\lseqce of thv tenanis. $Q fllf
t)lere i~ 110 dispute,
--r
It appears that the Legislature became aware of the fact that
for want of legai literacy a sizeable number of tenants -did not appre.
ciate the implication of such a revolutionary measure and presumably
under some influence of the landlord and the local atmosphere, the
tenants did not appear before the Tribunal with the result that the
statutory sales were declared ineffective. The Legislature took notice
of this phenomenon defeating an agrarian reform legislation and
introduced sec. 32 PP by the Amending Act of 1965.
c
Sec. 32 PP was designed to give a further opportunity to the
tenant to purchase the land. The relevant? portion of sec. 32 PP·
reads as under;

"s. 32 PP. Notwithstanding anything contained in
sections 32G and 32P, where before the date of the
coming into force of the Bombay Tenancy and Agricul· y
tural Lands (Gujarat Amendment) Act, 1965 (hereinafter
referred to in tllis section as "the said date")-
E
(i) any land has been at the dispose! of the Collector
under section 32P on account of the purchase
of the land by the tenant thereof .having become
ineffective under sub-section (3) of section 32G
by reason of the tenant failing to <1ppear before
F the Tribunal or making a statement expressing
his unwillingness to purchase the land, and"

* * *
Pursuant to this fresh opportunity afforded by sec. 32PP
respondent made an application requesting the Tribunal to determine
the purchase price. The Gujarat Revenue Tribunal (Revenue
Tribunal for shorf) held that the sale had become ineffective under
sub-sec. (3) of sec. 32G by reason of the tenant failing to apJl<;ar
before the Revenue Tribunal and therefore in an application 1111der
sec. 32PP the status of the applicant being a tenant is no more open
to debate or dispute and must be deemed to be concluded betwene
the parties. II is difficult to . subscribe ~o Uij$ view.. ~. :32I1f
i>.s. JASJtllltAI v. 1>.s. l.rA'tirullnHAl (besal, i.) 9!tt
confers a tight upon a person claiming to be a tenant and the
precondition is that he having failed to appear before the Tribunal A
in a proceeding u/s 320, can make an application for detennining
the price. In such a situation, the la:lldlord is a necessary party,
The landlord can and would be entitled to contend that the person
claililing. to be a tenant and making an application u/s 32PP was not
a tenant on April I, 1957. It is difficult to subscribe to the inter-
B
pretation of sec. 32PP adopted by the Tribunal. Undoubtedly only
that person is entitled to make an application u/s 32PP who having
failed to appear before the Tribunal in a proceeding ·u;s 320, the
statutory saie was declared ineffective but on that account such
peuon making an application under sec.32PP must be !lccepted as
tenlmt without further enquiry and without permitting the landlord
to challange the status of the applicant is not warranted by the
language of sec. 32PP. It is undoubtedly true tha't an application
u/s 32PP can be made where the purchase of the land by the tenant
has been declared ineffective u/s 320(3) by reason of the tenant
failing to appear before the Tribunal or making a statement expres-
sing his unwillingness to purchase the land. But it should not be
D
overlooked that where a notice was sent by the Tribunal u/s 32G to
the person to whom the Tribunal primafacie believed to be a tenant
and if such a tenant did not appear and the Tribunal without any-
thing more proceeded to declare the sale becoming ineffective, the
application u/s 32 PP would not preclude the landlord frotn con· E
testing the petition by showing that the applicant was not a tenant
on 1.4.51. In any proceeding u/s 320 and 32PP the most important
issue to be determined is whether the person claiming to be a tenant
was a tenant on April I, 1957 and an additional issue will have to be
determined in an application u/s 32PP whether to such a person
notice had been issued u/s 320 and on his failure to appear the sale F
became ineffective. the Revenue Tribunal appears to be of .the
view that unless the landlord challenged the order u/s 320 declaring
the sale having become ineffective on the footing that a person to
whom notice was sent was a tenant on April I, 1957 and is failure
to appear without anything more would clothe him with the status G
of a tenant. This approach overlooks the possibility of a person to
whom notice-is served, not appearing because he had nothing to do
with the land.

In such a situation an unadjudicated inferential determination
· ofstatus-cannot. preclude. an inquiry into the status which is-a
'
&ine .
/. '

'998 SUPREME COURT REPORTS . [1983} 2 s.c.R.

qua non for claiming the right in a subsequent proceeding between
.A the parties. Therefore the failure of the landlord to question the
sale being declared ineffective on account of the absence of the
person to whom notice was sent and who defaulted would not either
on the general principle of res judicatil or principle analogous to
constructive res judicata preclude the landlord from challenging the
status in the subsequent enquiry. There is only one situation which
may preclude the enquiry in that if on receipt of notice the tenant
did not appear and the landlord appeared and unequivo_cally ad-
mitted that the defaulting person was a tenant on the relevant date
and on his failure to appear the sale should be declared ineffective,
the landlord in subsequent proceeding under sec. 32 pp would be
c estopped from challenging the status of the applicant tenant. Such
is not the case. Otherwise on a challenge by the landlord in a pro-
_ceeding under sec. 32 PP the Tribunal have to determine the juris-
dictional facts that (i) the applicant. was a tenant on April 1, 1957
and (ii) that the sale was declared ineffective under sec. 35G. There-
fore, the view of the Tribunal that in a proceeding u/s 32PP, the
D status of the applicant as a tenant is incontrovertible does not com-
mend to us and is not correct.

Mr. Bo bde contended that once the view of the Tribunal is not y
in consonance with law the only course open to us is to remit the
matter to the Tribunal. We are not inclined to accept the submission
'E for the obvious reason that there is material on record that the res-
pondent was a tenant on the relevant date. Apart from a piece of
circumstantial evidence that a notice was sent to the respondent
both by a registered post and service was sought to be effected by
substituted service on the basis of tenancy record, his name appears
F in the record of tenancy for certain years. Further the landlord has
not put on record his statement in the proceeding u/s 32G whether
he disputed the status. The landlord did not take any step under
sec. 15 after the sale was declared ineffective. Nathabhai Zaverbhai
who according to the landlord was the only tenant ofland was not
examined by the landlord. The cumulative effect of these circums-
G tances would affirmatively show that the respondent was a tenant
and if he was a tenant on the relevant date, the Tribunal was right
in directing that the purchase price be determined. ·
This is the only point involved in this appeal. As we find no
H merit in it, the appeal fails '.Ind is_ dis_missed with costs. •

H.S.K. Appeal <fismissed.