BABAN BALAJI MORE (DEAD) BY LRS. & OTHERSversusBABAJI HARI SHELAR (DEAD) BY LRS. & OTHERS

                  [2024] 3 S.C.R. 593 : 2024 INSC 203

            Baban Balaji More (Dead) by LRs. & others
                                 v.
            Babaji Hari Shelar (Dead) by LRs. & others
                       (Civil Appeal No. 8356 of 2017)
                                 14 March 2024
              [C.T. Ravikumar and Sanjay Kumar,* JJ.]

                            Issue for Consideration
       Whether the Maharashtra Tenancy and Agricultural Lands Act, 1948
       had application to the subject Watan lands; whether the appellants
       (legal heirs of the original Watandar) were right in proceeding against
       the tenants u/ss.5, 11 & 11A, Maharashtra Hereditary Offices Act,
       1874 after the death of the original Watandar, in February/March,
       1958; whether the tenancy in question was lawfully subsisting on
       Tillers’ Day and were the tenants entitled to exercise their right
       of statutory purchase of the tenanted agricultural Watan lands.
       Interpretation and harmonious construction of the 1874 Act, 1948
       Act and the Maharashtra Revenue Patels (Abolition of Offices)
       Act, 1962.

                                    Headnotes
       Maharashtra Tenancy and Agricultural Lands Act, 1948 – ss.88,
       88CA, 29-31, 32-32-R – Maharashtra Hereditary Offices Act,
       1874 – ss.5, 11, 11A – Maharashtra Revenue Patels (Abolition
       of Offices) Act, 1962 – s.8 – Applicability of the 1948 Act to
       the subject Watan lands – After the Abolition Act that came
       into effect from 01.01.1963, lawfully leased Patel Watan land
       whose lease was subsisting as on 01.01.1963, if was covered
       by the Tenancy Act and the tenant of such Watan land if had
       the right to purchase such land:
       Held: All Watan lands were not to be treated as Government
       lands – Subject Watan lands were not covered by s.88(1)(a),
       Tenancy Act and could not be treated as Government lands – By
       virtue of the ‘Explanation’ to s.88(1)(a) of the Tenancy Act, all other
       Watan lands, including the subject Watan lands, were covered by
       all the provisions of the Tenancy Act – However, s.88CA thereof,
       introduced in July, 1958, granted such Watan lands exemption
       from ss.32 to 32-R, 33-A, 33-B and 33-C – Therefore, ss.29 and

* Author
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       31, Tenancy Act were very much applicable to such Watan lands
       all through – Thus, the heirs of the original Watandar (appellants)
       could not have aspired to secure possession without reference to
       the procedure u/s.29, 31 – Limited exemption from certain provisions
       of the Tenancy Act, afforded by s.88CA thereof, continued until
       the Abolition Act came into force on 01.01.1963 – Thereafter, as
       the very institution of Patel Watan stood abolished, the limited
       exemption extended to such Watan lands u/s.88CA, Tenancy Act
       also ceased – Therefore, after the advent of the Abolition Act, Patel
       Watan land which was lawfully leased, and the lease of which was
       subsisting as on 01.01.1963, stood covered by the Tenancy Act
       in its entirety and the tenant of such Watan land was entitled to
       all the benefits under the provisions thereof, including the right to
       purchase such land – It was not open to the appellants (legal heirs
       of the original Watandar) to proceed against the tenants under
       the provisions of ss.5, 11 & 11A, 1874 Act after the death of the
       original Watandar, in February/March, 1958 as the provisions of the
       Tenancy Act were very much applicable to the subject lands by then
       and more so, ss.29 and 31 thereof – Thus, the appellants could
       not have taken lawful possession of these lands from the tenants
       pursuant to the order dtd. 18.04.1961 passed u/ss.5, 11 & 11A,
       1874 Act – The same was rightly held to be invalid in the revisionary
       order and that finding was correctly held to be justified by High
       Court– Thus, the tenancy was lawfully subsisting on 01.04.1957,
       i.e., Tillers’ Day, and the tenants were entitled to exercise their
       right of statutory purchase of these tenanted agricultural Watan
       lands u/s.32 of the Tenancy Act in terms of s.8 of the Abolition
       Act, after the exemption afforded by s.88CA ceased to exist – That
       right became operational on 27.11.1964, when these Watan lands
       were regranted to the heirs of the original Watandar – Impugned
       judgment not interfered. [Paras 20-23, 33]
       Maharashtra Tenancy and Agricultural Lands Act, 1948 – s.88(1)
       (a) – Explanation – Merely explained the position and was not
       substantive in nature – Maharashtra Hereditary Offices Act,
       1874 – ss.5, 23:
       Held: Insertion of the ‘Explanation’ was not an amendment of the
       provision which would have prospective effect and not apply to the
       application filed on 14.06.1958 u/s.5 of the Maharashtra Hereditary
       Offices Act, 1874 – The ‘Explanation’ merely explained the position
       and was not substantive in nature – It is, therefore, deemed to
[2024] 3 S.C.R.                                                             595

              Baban Balaji More (Dead) by LRs. & others v.
               Babaji Hari Shelar (Dead) by LRs. & others

     have come into operation from the date on which s.88(1) was
     amended in August, 1956 – Thereby, the limited applicability of
     the provision to certain Watan lands was clearly delineated – The
     ‘Explanation’ to s.88 clarified the position w.r.t Watan lands, other
     than those covered by s.23 of the 1874 Act, as it manifests that only
     Watan land assigned as remuneration to an officiator performing
     service u/s.23 of the 1874 Act etc. shall be deemed to be land
     belonging to the Government – Thus, only Watan lands covered
     by s.23, 1874 Act were to be treated as Government lands as
     per s.88(1)(a) – This is further clarified by s.88CA inserted in the
     year 1958, which stated that ss.32 to 32-R, 33-A, 33-B and 33-C
     would not apply to land held as Inam or Watan for service useful
     to the Government, excepting land assigned as remuneration
     u/s.23 of the 1874 Act etc. – Thus, only Watan lands assigned as
     remuneration for service u/s.23 of the 1874 Act were to be treated
     as Government lands and stood excluded from the provisions of
     the Tenancy Act – Admittedly, predecessor of the appellants was
     not an ‘officiator’ covered by s.23 of the 1874 Act. [Paras 19, 20]
     Maharashtra Revenue Patels (Abolition of Offices) Act, 1962
     – s.8 proviso to – Application of existing tenancy law:
     Held: The proviso to s.8 indicates that for the purpose of fixing
     the purchase price under the provisions of the Tenancy Act so as
     to enable the purchase of such land by the tenant, the lease shall
     be deemed to have commenced from the date of regrant of the
     land u/ss.5, 6 or 9, as the case may be – The argument of the
     appellants that the tenants ought to have challenged the regrant
     order dated 27.11.1964 is without merit – In fact, the tenants were
     benefited by the said regrant order as the exercise of their right to
     purchase the land hinged upon the passing of that regrant order,
     in terms of the proviso to s.8 – The argument to the contrary is
     rejected. [Paras 23, 31]

                              Case Law Cited
           Sadashiv Dada Patil v. Purushottam Onkar Patil (Dead)
           by LRs., [2006] Supp. 6 SCR 843 : (2006) 11 SCC
           161 – relied on.
           Dattatraya Keshav Deshpande v. Tukaram Raghu
           Chorage, AIR 1921 Bom 17; Govind Ramchandra Patil
           v. Bapusaheb Krishnarao Patil and others, Special Civil
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            Application No.1741 of 1961, decided on 13.12.1962;
            Kallawwa Shattu Patil and others v. Yallappa Parashram
            Patil and another, (1992) 1 Mah.LJ 34; Pradeeprao @
            Virgonda Shivgonda Patil v. Sidappa Girappa Hemgire
            since deceased through his heirs and LRs. Ginnappa
            Sidappa Hemgire and others, (2004) 3 Mah. L.J. 75;
            Kondabai Ganu Barkale (since deceased) through her
            Legal Heirs Smt. Housabai P Bhongale and others v.
            Pandit @ Shankar D. Patil (since deceased) through
            his Legal Heirs Waman S.Patil and others, (2016) 2
            Mah. LJ 282 – relied on.

                                List of Acts
       Maharashtra Hereditary Offices Act, 1874; Maharashtra Tenancy
       and Agricultural Lands Act, 1948; Maharashtra Revenue Patels
       (Abolition of Offices) Act, 1962; Bombay Tenancy Act, 1939.

                             List of Keywords
       Watan lands; Watandar; Patel Watan; Tillers’ Day; Statutory
       purchase; Tenanted agricultural Watan lands.

                            Case Arising From
       CIVIL APPELLATE JURISDICTION : Civil Appeal No.8356 of 2017
       From the Judgment and Order dated 01.02.2005 of the High Court
       of Bombay in WP No.1774 of 1982
                         Appearances for Parties
       B.H. Marlapalle, Sr. Adv., Shivaji M. Jadhav, Brij Koshor Sah, Ms.
       Apurva, Adarsh Kumar Pandey, Vignesh Singh, Aditya S. Jadhav,
       Avinish Kumar Saurabh, Ajit Pravin Wagh, Ramnesh Kumar Sahu,
       Alok Kumar, Rahul Kumar, M/s. S.M. Jadhav and Company, Sushil
       Sonkar, Arvind S. Avhad, Advs. for the Appellants.
       V. Giri, Vinay Navare, Sr. Advs., Pramod Gore, Nitin S. Tambwekar,
       Seshatalpa Sai Bandaru, Prashant Pakhiddey, Manav Gill, Byron
       Sequeria, K. Rajeev, Ms. Kavya S. Lokande, Hitesh Kumar
       Sharma, Vidrendra Mohan Sharma, Akhileshwar Jha, Abhijit
       Kamble, Ms. Sandhya S. Pawar, Ms. Madhvi S. Sawant, Naresh
       Kumar, Shashibhushan P. Adgaonkar, Omkar Jayant Deshpande,
       Mrs. Pradnya Shashibhushan Adgaonkar, Rana Sandeep Bussa,
[2024] 3 S.C.R.                                                         597

              Baban Balaji More (Dead) by LRs. & others v.
               Babaji Hari Shelar (Dead) by LRs. & others

     Col. Amit Kumar, M/s. Lawyer S Knit & Co, Ms. Bina Madhavan,
     S. Udaya Kumar Sagar, N.V. Vechalekar, Eeshan D. Khaire, Ms.
     Niharika Tanneru, Sanjay Kharde, Siddharth Dharmadhikari, Aaditya
     Aniruddha Pande, Bharat Bagla, Sourav Singh, Aditya Krishna, C.K.
     Sasi, Advs. for the Respondents.
                Judgment / Order of the Supreme Court

                                Judgment
     Sanjay Kumar, J
1.   This appeal entails correlation of three vintage legislations, requiring
     not only their interpretation but also their harmonious construction.
     The oldest of the three statutes is the Maharashtra Hereditary Offices
     Act, 1874 (for brevity, ‘the 1874 Act’). The next is the Maharashtra
     Tenancy and Agricultural Lands Act, 1948 (for brevity, ‘the Tenancy
     Act’), and the third is the Maharashtra Revenue Patels (Abolition of
     Offices) Act, 1962 (for brevity, ‘the Abolition Act’).
2.   The 1874 Act was enacted to declare and amend the law relating to
     Watans, i.e., hereditary offices. Balaji Chimnaji More, the predecessor
     of the present appellants, held a Patel Watan since prior to August,
     1898. He was assigned Watan property, viz., a 50% share in an
     extent of 20 acres of land in Survey No. 386 and a 50% share in an
     extent of 16 acres in Survey No. 410 of Village Chikhali. Babaji Hari
     Shelar and Ganapati Dhondiba Tapkir (or Tapkire), the predecessors
     of the respondents herein, were cultivating this Watan property as
     tenants since 1955-56 or thereabouts.
3.   While so, Balaji Chimnaji More died sometime in February/March,
     1958. Thereupon, his legal heirs, namely, Baban Balaji More, Rama
     Balaji More and Jagannath Balaji More, filed an application on
     14.06.1958 under Section 5 of the 1874 Act. As per this provision, a
     Watandar was not competent to mortgage, charge, alienate or lease,
     for a period beyond the term of his natural life, any Watan or any
     part thereof or any interest therein to or for the benefit of any person
     who was not a Watandar of the same Watan, without the sanction
     of the State Government or the Commissioner, as the case may
     be. By order dated 18.04.1961, the Assistant Collector, I/C, Haveli
     Taluka, Poona, held that the tenancy created by the father of the
     applicants could not extend beyond his lifetime and the applicants
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       would, therefore, have the right to recover possession of the said
       lands after the death of their father. He, accordingly, allowed their
       application and ordered that possession of the lands falling to their
       share should be handed over to them under Sections 11 and 11A
       of the 1874 Act.
4.     Aggrieved thereby, the tenants, viz., Babaji Hari Shelar and the legal
       heirs of late Ganapati Dhondiba Tapkir, namely, Laxman Ganapati
       Tapkir, Rama Ganapati Tapkir, Damu Ganapati Tapkir and Babu
       Ganapati Tapkir, filed Watan Appeal No. 6 of 1961 before the Additional
       Collector, Poona, under Section 77 of the 1874 Act. However, the
       said appeal was dismissed, vide order dated 27.03.1962.
5.     Thereupon, the tenants carried the matter to the Additional
       Commissioner, Poona Division, Poona, on 14.04.1962. Order dated
       12.06.1962 was passed by the Additional Commissioner, treating
       the proceeding as an appeal instituted against the order dated
       27.03.1962 passed in Watan Appeal No. 6 of 1961. Thereby, the
       Additional Commissioner rejected the appeal. The appellants would
       argue that this proceeding cannot be treated as an appeal, inasmuch
       as the statutory scheme allowed only one appeal under Section 77
       of the 1874 Act, and they would contend that this proceeding should
       be construed to be a revision filed under Section 79 thereof, with
       necessary consequences. This aspect will be dealt with hereinafter.
6.     In any event, during the pendency of this proceeding, the possession
       of the lands in question was handed over on 22.04.1962 to the
       legal heirs of the deceased Watandar, in terms of the order dated
       18.04.1961 passed by the Assistant Collector, I/C, Haveli Taluka,
       Poona.
7.     At this stage, the Abolition Act was promulgated and it came into effect
       from 01.01.1963. As per Section 3 thereof, all Patel Watans stood
       abolished from the appointed date, i.e., 01.01.1963. In consequence,
       all incidents appertaining to the said Watans, including the right to
       hold office and Watan property, stood extinguished. Further, Section
       3(c) provided that, subject to the provisions of Sections 5, 6 and 9,
       all Watan lands stood resumed and were subject to payment of land
       revenue under the provisions of the relevant Code, as if they were
       unalienated land. Section 5 thereof, however, provided for regrant
       of the Watan land to the Watandar. Section 5(1) stated that Watan
       land resumed under Section 3 shall on an application therefor,
[2024] 3 S.C.R.                                                        599

              Baban Balaji More (Dead) by LRs. & others v.
               Babaji Hari Shelar (Dead) by LRs. & others

     being in relation to cases not falling under Sections 6 and 9, be
     regranted to the Watandar of the Watan to which it appertained on
     payment by or on behalf of the Watandar to the State Government
     of the occupancy price equal to twelve times the amount of the
     full assessment of such land within the prescribed period and in
     the manner prescribed and, thereupon, the Watandar shall be an
     occupant within the meaning of the relevant Code in respect of any
     such land and shall be primarily liable to pay land revenue to the
     State Government in accordance with the provisions of that Code.
     The proviso to Section 5(1) stipulated that in respect of Watan land
     which was not assigned under the existing Watan law as remuneration
     of an officiator, the occupancy price equal to six times the amount
     of the full assessment of such land shall be paid by or on behalf of
     the Watandar for the regrant of such land.
8.   The appellants made an application under Section 5 of the Abolition
     Act for regrant of the Watan lands, as their case did not fall within
     the ambit of either Section 6 or Section 9 of the 1874 Act. By order
     dated 27.11.1964, the Mamlatdar, Haveli, noted that they had paid
     an amount equal to six times the assessment on 17.11.1964; that
     a Certificate of the Talhati stating to that effect was also on record;
     and accordingly ordered that the said lands be regranted to them,
     subject to conditions.
9.   In the meanwhile, it appears that the tenants filed a revision before
     the Government assailing the orders passed against them. However,
     the appellants claim that it was only on 11.12.1964 that they suddenly
     received a copy of the letter dated 10.07.1964 addressed to Damu
     Ganapati Tapkir by the Officer on Special Duty, Revenue and Forest
     Department, Government of Maharashtra, stating that, pursuant
     to Government Letter dated 01.11.1963, he was to state that the
     Government was pleased to set aside the order dated 18.04.1961
     passed by the Pranth Officer, Taluka Haveli, District Poona; the
     order dated 27.03.1962 passed by the Collector, Poona, in Watan
     Appeal 6 of 1961; and the order dated 12.06.1962 passed by the
     Commissioner, Poona Division, in Case No. W.T.N.P.6/33. Thereupon,
     the Collector, Poona, directed the Mamlatdar, Haveli, to ensure
     delivery of possession of the lands to the tenants.
10. Aggrieved by this development and complaining that they were not
    given notice or a hearing prior to the Government’s decision, the
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       appellants preferred an appeal before the Commissioner, Poona,
       assailing the direction of the Collector, Poona, to the Mamlatdar,
       Haveli, to hand over possession of the subject lands to the tenants.
       The Commissioner, Poona, rejected their request, vide letter dated
       02.12.1964. They then approached the Chief Minister, State of
       Maharashtra, by way of written representation dated 11.12.1964.
       However, they were informed by the Officer on Special Duty, Revenue
       and Forest Department, Government of Maharashtra, vide letter dated
       30.12.1964, that their representation dated 11.12.1964 could not be
       considered. Aggrieved by the rejection of their representation under
       letter dated 30.12.1964, the appellants filed Special Civil Application
       No. 61 of 1965 before the Bombay High Court under Article 227 of
       the Constitution. Interim stay was granted therein on 15.01.1965 and
       the case was disposed of on 25.03.1969, in these terms:
            ‘By consent, the Court makes absolute the rule granted
            by it on 15.01.1965, sets aside the order of the State
            Government dated 01.11.1963 communicated to the
            petitioners on 10.07.1964 by the Officer on Special Duty
            and remands the matter to Government with a direction to
            rehear the matter after giving opportunity to the petitioners
            and the respondents to be heard in their defence.
                               No order as to costs.’
11. The revision was taken up as Case No. PTIL-3464/102644-L-5 by
    the Officer on Special Duty (Appeals and Revisions), Revenue and
    Forest Department, Government of Maharashtra. This revision was
    allowed by Order dated 03.05.1982 and all the orders passed by
    the authorities against the tenants were set aside. In consequence,
    the lands were directed to be restored to the tenants. In the order
    dated 03.05.1982, it was noted that the Abolition Act had come
    into force on 01.01.1963 but as on that date, the tenants were not
    in possession as it was an admitted fact that the appellants were
    delivered possession on 24.04.1962. However, the revisional authority
    opined that the mere factum of losing possession would not be
    determinative of termination of the tenancy and if the order to that
    effect was based on a wrong presumption or wrong interpretation of
    law, the tenancy could not be said to have been terminated even if
    such an order was executed. The authority opined that the argument
    that the possession of the tenants became unauthorized upon the
[2024] 3 S.C.R.                                                           601

              Baban Balaji More (Dead) by LRs. & others v.
               Babaji Hari Shelar (Dead) by LRs. & others

     death of the original Watandar and that no tenancy rights subsisted
     on the appointed date, viz., 01.01.1963, could not be accepted. The
     authority concluded that the Assistant Collector’s and Additional
     Collector’s orders in deciding the case under Section 11 of the 1874
     Act, ignoring the provisions of the Tenancy Act, were wrong. In effect,
     the authority held that the tenancy must be presumed to be continuing
     and that the orders passed to the contrary were improper and illegal
     and, consequently, execution of such orders had no effect on the
     rights of the tenants. Holding so, the authority allowed the tenants’
     revision, set aside the orders passed against them and directed that
     the lands be restored to them.
12. Assailing this order, the appellants filed Writ Petition No. 1774 of 1982
    before the Bombay High Court. In the judgment dated 01.02.2005
    passed therein, the High Court observed that possession of the lands
    was delivered to the heirs of the Watandar on 24.04.1962 during
    the pendency of revisional proceedings, only because there was no
    stay of the order passed by the lower authority, and held that such
    delivery would be subject to final determination of the rights of the
    parties. Further, taking note of the fact that the Abolition Act came
    into effect on 01.01.1963, the High Court held that the tenancy was
    still subsisting on that day despite the delivery of possession of the
    lands to the heirs of the Watandar, as the proceedings were still
    pending and execution of the order directing delivery of possession
    was subject to the final outcome thereof. The High Court, therefore,
    concluded that the tenancy was not legally and validly determined.
    As regards the appellants’ contention that Section 5 of the 1874 Act
    automatically determined the tenancy, the High Court rejected it on
    the ground that once a legal and valid tenancy was subsisting on
    01.01.1963, the tenants would be entitled to all the benefits under
    Section 8 of the Abolition Act and the provisions of the Tenancy
    Act. The High Court accordingly held that there was no merit in the
    writ petition and dismissed it. It is this judgment that is subjected to
    challenge before us in this appeal.
13. While issuing notice on 04.04.2005, this Court, directed status quo
    existing as on that day to be maintained. This order is still in operation.
14. It would be appropriate at this stage to note the statutory scheme of
    the 1874 Act and the other relevant provisions thereof. Section 4 of
    the 1874 Act defines Watan property and Watandar. The definition
    of Watan property, to the extent relevant, reads thus:
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            ‘Watan property” means the moveable or immovable
            property held, acquired, or assigned for providing
            remuneration for the performance of the duty appertaining
            to an hereditary office. It includes a right to levy customary
            fees or perquisites, in money or in kind, whether at fixed
            times or otherwise……’
       Watandar is defined as under:
            ‘Watandar” means a person having an hereditary interest
            in a watan. It includes a person holding watan property
            acquired by him before the introduction of the British
            Government into the locality of the watan, or legally
            acquired subsequent to such introduction, and a person
            holding such property from him by inheritance. It includes a
            person adopted by an owner of a watan or part of a watan,
            subject to the conditions specified in sections 33 to 35’
       Section 5 of the 1874 Act, to the extent relevant, reads thus:
            ‘5. (1) Without the sanction of the State Government, or
            in the case of a mortgage, charge, alienation, or lease of
            not more than thirty years, of the Commissioner it shall
            not be competent—
            (a) to a watandar to mortgage, charge, alienate or lease,
            for a period beyond the term of his natural life, any watan,
            or any part thereof, or any interest therein, to or for the
            benefit of any person who is not a watandar of the same
            watan; …..’
15. Section 11 of 1874 Act authorized the Collector to declare any
    alienation of the nature described in Section 10 thereof to be null
    and void, if it had taken place, otherwise than by virtue of, or in
    execution of a decree or order of any Court, after recording his
    reasons in writing. Section 11A empowered the Collector to either
    summarily resume possession of the property in relation to which
    an order of the Court had been passed on receipt of his certificate
    under Section 10, or on his own declaration under Section 11, and
    the said property shall thenceforward revert to the Watan.
16. Much controversy was generated in the context of the proceeding
    filed before the Additional Commissioner, Poona Division, Poona,
[2024] 3 S.C.R.                                                          603

              Baban Balaji More (Dead) by LRs. & others v.
               Babaji Hari Shelar (Dead) by LRs. & others

     that resulted in the order dated 12.06.1962. The appellants would
     contend that this ‘proceeding’ must be construed to be a revision filed
     under Section 79 of the 1874 Act and the State Government could
     not have entertained another revision thereafter, as the statutory
     scheme speaks of only one revision being maintainable under that
     provision. However, perusal of the order dated 12.06.1962 passed
     by the Additional Commissioner, Poona Division, Poona, reflects
     that the same was dealt with as an ‘appeal’ and not as a ‘revision’.
     Trite to state, appellate jurisdiction is vastly different from revisional
     jurisdiction, in terms of its scope and extent of review, and when the
     authority dealing with matter proceeded under the impression that it
     was exercising appellate jurisdiction the same cannot be construed
     to be revisional jurisdiction, contrary to what has been stated in the
     order itself. The entertainment of this ‘appeal’ has been explained by
     pointing out that Section 203 of the Bombay Land Revenue Code,
     1879, titled ‘Appeals and Revision’, states to the effect that, in the
     absence of any express provision or any law to the contrary, an
     appeal shall lie from any decision or order passed by a Revenue
     Officer under the Code or any other law for the time being in force
     to that Officer’s immediate superior. However, as pointed out by the
     appellants, the scheme of the 1874 Act did not permit a ‘second’
     appeal being maintained under Section 77 thereof. In effect, the
     proceeding before the Additional Commissioner, Poona Division,
     Poona, was utterly misconceived and was not maintainable. However,
     once such a misconceived ‘appeal’ was entertained and resulted
     in the order dated 12.06.1962, which was bereft of jurisdiction, a
     statutory revision came to be filed before the State Government
     under Section 79 of the 1874 Act. Significantly, this revision called in
     question the appellate order dated 27.03.1962 also and upon being
     heard afresh, pursuant to the ‘consent order’ of the High Court in
     Special Civil Application No. 61 of 1965, it culminated in the order
     dated 03.05.1982. Having consented to the remand of the revision
     for hearing afresh, the appellants cannot, in any event, raise this
     issue now. Therefore, the contention of the appellants in this regard
     is without merit and is rejected accordingly.
17. Before we proceed to take a look at the provisions of the Tenancy
    Act, it may be noted that the precursor thereof was the Bombay
    Tenancy Act, 1939. It was applicable to the whole of the Province of
    Bombay, except Bombay City, and was intended to protect tenants
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       of agricultural lands. This statute stood repealed upon the Tenancy
       Act coming into force in December, 1948. The Tenancy Act was
       enacted to amend the law relating to tenancy of agricultural lands
       and to make certain other provisions in regard to those lands. It was
       placed in the Ninth Schedule to the Constitution and stood protected
       under Article 31(b) thereof. Section 88 of the Tenancy Act exempted
       Government lands and certain other lands from the provisions thereof.
18. Agrarian reforms were undertaken to alleviate the plight of agricultural
    tenants and resulted in beneficial measures being introduced for
    them from 01.04.1957. This day came to be known as ‘Tillers’ Day’.
    Amendments were made to the Tenancy Act in this context and a
    separate Chapter enabling purchase of tenanted lands by the tenants
    was inserted therein. Sections 32 to 32-R were introduced thereby
    in the Tenancy Act. Section 32 is titled ‘Tenants deemed to have
    purchased land on Tillers’ day’ and Section 32(1) stated that, on
    the first day of April, 1957, every tenant shall, subject to the other
    provisions of that section and of the next succeeding sections, be
    deemed to have purchased from his landlord, free of all encumbrances
    subsisting thereon on the said day, the land held by him as a tenant.
    Sections 32-A to 32-R gave effect to the tenant’s right to purchase
    the tenanted agricultural land.
19. The issue presently is whether the Tenancy Act had application to
    the subject Watan lands. The appellants would contend that it had
    no application, be it on Tillers’ Day or in February/March, 1958, when
    Balaji Chimnaji More, the original Watandar, died and an application
    was made by his legal heirs under Sections 5 of the1874 Act. It is their
    case that the exemption under Section 88 of the Tenancy Act was
    applicable to these lands. To the extent relevant, the said provision,
    after its amendment with effect from 01.08.1956, reads as under:
‘88. Exemption to Government lands and certain other lands.-
            (1) [Save as otherwise provided in sub-section (2), nothing
            in the foregoing provisions of this Act] shall apply,-
            [a] to lands belonging to or held on lease from, the
            Government;
            ……………………’
       An ‘Explanation’ was inserted in relation to the above clause (a) in
       July, 1958. It reads as under:
[2024] 3 S.C.R.                                                           605

              Baban Balaji More (Dead) by LRs. & others v.
               Babaji Hari Shelar (Dead) by LRs. & others

           ‘[Explanation.- For the purposes of clause (a) of sub-section
           (1) of this section land held as inam or watan for service
           useful to Government and assigned as remuneration to
           the person actually performing such service for the time
           being, under Section 23 of the Bombay Hereditary Offices
           Act, 1874, or any other law for the time being in force,
           shall be deemed to be land belonging to the Government.]’
     Insertion of this ‘Explanation’ was not an amendment of the provision,
     which would have prospective effect and, thereby, not apply to the
     application filed on 14.06.1958 under Section 5 of the 1874 Act. The
     ‘Explanation’ merely explained the position and was not substantive
     in nature. It is, therefore, deemed to have come into operation from
     the date on which Section 88(1) was amended in August, 1956.
     Thereby, the limited applicability of the provision to certain Watan
     lands was clearly delineated.
     In turn, Section 23 of the 1874 Act reads as follows:
           ‘23. Subject to the provisions of this Act and or any other
           law for the time being in force regarding Service Inams,
           Cash allowances and Pensions, it shall be the duty of
           the Collector to fix the annual emoluments of officiators
           appointed under the provisions of this Act, and to direct
           the payment thereof to the officiators for the time being.
           It shall be lawful for the Collector for this purpose to
           assign watan property, or the profits thereof, towards the
           emoluments of officiators. The existing assignments shall,
           until altered by competent authority, be taken to have
           been made under this section. With the sanction of the
           State Government the Collector may, as occasion arises,
           alter the assignment and may increase or diminish it in
           value, such increase or diminution being made rateably
           among the holders in proportion to the profit derived by
           such holders respectively from the watan.’
     Thereafter, Section 88CA was inserted in the Tenancy Act by
     Amendment Act No.63 of 1958 with effect from 11.07.1958. It reads
     thus:
           ‘88CA. Sections 32 to 32R not to apply to certain service
           lands.- Nothing in sections 32 to 32-R (both inclusive),
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          33-A, 33-B, 33-C shall apply to land held as inam or
          watan for service useful to Government but not assigned
          as remuneration to the person actually performing such
          service for the time being under section 23 of the Bombay
          Hereditary Offices Act, 1874, or any other law for the time
          being in force.’
20. A conjoint reading of the above provisions indicates that all Watan
    lands were not to be treated as Government lands. The ‘Explanation’
    to Section 88 clarified the position with regard to Watan lands, other
    than those covered by Section 23 of the 1874 Act, as it manifests
    that only Watan land assigned as remuneration to an officiator
    performing service under Section 23 of the 1874 Act etc. shall be
    deemed to be land belonging to the Government. Thus, only Watan
    lands covered by Section 23 of the 1874 Act were to be treated as
    Government lands as per Section 88(1)(a). This is further clarified by
    Section 88CA inserted in the year 1958, which stated that Sections
    32 to 32-R, 33-A, 33-B and 33-C would not apply to land held as
    Inam or Watan for service useful to the Government, excepting land
    assigned as remuneration under Section 23 of the 1874 Act etc. It
    is, therefore, clear that only Watan lands assigned as remuneration
    for service under Section 23 of the 1874 Act were to be treated as
    Government lands and stood excluded from the provisions of the
    Tenancy Act. Admittedly, Balaji Chimnaji More was not an ‘officiator’
    covered by Section 23 of the 1874 Act. This is also demonstrated
    by the fact that his legal heirs paid only six times the assessment
    for regrant of the Watan lands under Section 5 of the Abolition Act
    and not twelve times, as would be applicable to an officiator. Ergo,
    the subject Watan lands were not covered by Section 88(1)(a) of
    the Tenancy Act and could not be treated as Government lands.
21. By virtue of the ‘Explanation’ to Section 88(1)(a) of the Tenancy
    Act, all other Watan lands, including the subject Watan lands, were
    covered by all the provisions of the Tenancy Act. However, Section
    88CA thereof, introduced in the statute book in July, 1958, granted
    such Watan lands exemption from Sections 32 to 32-R, 33-A, 33-B
    and 33-C. Therefore, Sections 29 and 31 of the Tenancy Act were
    very much applicable to such Watan lands all through. Section 29,
    titled ‘Procedure of taking possession’, states to the effect that no
    landlord shall obtain possession of any land or dwelling house held
    by a tenant except under an order of the Mamlatdar and for obtaining
[2024] 3 S.C.R.                                                            607

              Baban Balaji More (Dead) by LRs. & others v.
               Babaji Hari Shelar (Dead) by LRs. & others

     such an order, he should make an application in the prescribed
     form within the prescribed time. Section 31 is titled ‘Landlord’s right
     to terminate tenancy for personal cultivation and non-agricultural
     purpose’ and provided the mode and method in which a landlord
     could terminate the tenancy of any land, except a permanent tenancy.
     Thereunder, the landlord had to file an application for possession
     before the Mamlatdar before Tillers’ Day. This being the position,
     the heirs of the original Watandar could not have aspired to secure
     possession without reference to this procedure.
22. The limited exemption from certain provisions of the Tenancy Act,
    afforded by Section 88CA thereof, continued until the Abolition Act
    came into force on 01.01.1963. Thereafter, as the very institution
    of Patel Watan stood abolished, the limited exemption extended
    to such Watan lands under Section 88CA of the Tenancy Act also
    ceased. This is made clear by Section 8 of the Abolition Act, which
    reads as under:
           ‘8. Application of existing tenancy law- if any watan land has
           been lawfully leased and such lease is subsisting on the
           appointed day, the provisions of the relevant tenancy law
           shall apply to the said lease, and the rights and liabilities
           of the holder of such land and his tenant or tenants shall,
           subject to the provisions of this Part, be governed by the
           provisions of that law:
           Provided that, for the purposes of application of the
           provisions of the relevant tenancy law in regard to the
           compulsory purchase of land by a tenant, the lease shall be
           deemed to have commenced from the date of the regrant
           of the land under section 5 or 6 or 9, as the case may be.
           Explanation- For the purposes of this section, the
           expression “land” shall have the same meaning as is
           assigned to it in the relevant tenancy law.’
23. Therefore, after the advent of the Abolition Act, Patel Watan land
    which was lawfully leased, and the lease of which was subsisting
    as on 01.01.1963, stood covered by the Tenancy Act in its entirety
    and the tenant of such Watan land was entitled to all the benefits
    under the provisions thereof, including the right to purchase such
    land. The proviso to Section 8 indicates that, for the purpose of fixing
    the purchase price under the provisions of the Tenancy Act so as to
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       enable the purchase of such land by the tenant, the lease shall be
       deemed to have commenced from the date of regrant of the land
       under Sections 5, 6 or 9, as the case may be.
24. Earlier, this Court had occasion to consider this proviso in Sadashiv
    Dada Patil vs. Purushottam Onkar Patil (Dead) by LRs.1. The
    respondent therein was a tenant of Watan land and the appellant was
    the landlord. The issue was whether Section 32-O of the Tenancy Act
    had application in view of the proviso to Section 8 of the Abolition
    Act. Section 32-O is titled ‘Right of Tenant whose tenancy is created
    after Tillers’ Day to purchase land’. It stated that in respect of any
    tenancy created after Tillers’ Day and if the landlord is not a serving
    member of the Armed Forces, a tenant cultivating such land personally
    shall be entitled, within one year from the commencement of such
    tenancy, to purchase the land held by him from the landlord. The
    issue before this Court was whether a tenant of Watan land was
    required to exercise his right to purchase the land within one year
    of the regrant, in view of the proviso to Section 8 of the Abolition Act
    stating that the lease is deemed to have commenced from the date
    of such regrant of the land. In effect, the question was whether the
    tenancy is to be treated as a fresh lease commencing on the date
    of the regrant. At the outset, this Court opined that, indisputably, the
    rights and obligations of the parties were governed by the Tenancy
    Act. Section 31 thereof was taken note of and as no termination of
    the tenancy had been effected thereunder, this Court held that the
    tenancy continued till the declaration of Tillers’ Day on 01.04.1957.
    Thereafter, by virtue of Section 32 of the Tenancy Act, the tenant
    was deemed to have purchased the tenanted agricultural land from
    his landlord. Noting that the provisions of the Abolition Act and the
    Tenancy Act were required to be construed harmoniously, keeping
    in view the purport and object that they seek to achieve, this Court
    observed that Section 32 of the Tenancy Act conferred an absolute
    right upon the tenant. Therefore, the proviso to Section 8 of the
    Abolition Act could not be read in such a manner as to divest the
    tenant of the vested right of purchase created under Section 32 of
    the Tenancy Act. The proviso was held to have merely fixed the
    date of the lease for reckoning the purchase price to be paid to the
    landlord. Thereby, no new tenancy was created and Section 32-O of


1   [2006] Supp. 6 SCR 843 : (2006) 11 SCC 161
[2024] 3 S.C.R.                                                        609

                 Baban Balaji More (Dead) by LRs. & others v.
                  Babaji Hari Shelar (Dead) by LRs. & others

     the Tenancy Act did not stand attracted. It was held that the proviso
     to Section 8 had a limited role to play and it merely postponed the
     operation of the statute. It was held that it had to be read in the
     light of Section 32G and Section 32O of the Tenancy Act and be
     interpreted accordingly, i.e., it did not create any right in favour of
     the landlord nor did it take away the right of the tenant.
25. It would be apposite at this stage to take note of the decisions
    of the Bombay High Court on various issues arising under these
    three legislations. In its Full Bench decision in Dattatraya Keshav
    Deshpande vs. Tukaram Raghu Chorage2, the Court held that
    Sections 9, 10 and 11 of the 1874 Act were framed to protect
    Watan property from unauthorized alienations and the Collector
    is empowered under Section 11 to declare any such unauthorized
    alienation to be null and void after recording his reasons in writing.
    This judgment, having been rendered long before the other two
    legislations came into existence, has to be understood keeping in
    mind the later developments in the context of the Tenancy Act and
    the Abolition Act. The 1874 Act, therefore, cannot be treated as an
    independent, self-contained and complete code in itself.
26. In Govind Ramchandra Patil vs. Bapusaheb Krishnarao Patil
    and others3, a Division Bench dealt with the question as to whether
    a lease granted by a Watandar would continue to operate to the
    benefit of the tenants by virtue of the provisions of the Tenancy
    Act despite the Abolition Act. The Bench opined that the intention
    of the legislature was clear that the tenants on the land, who were
    lessees before the Tenancy Act came into force, should continue to
    be on the land unless the landlord himself required the land for his
    personal cultivation or the tenant was guilty of any defaults mentioned
    in Section 14 of the Tenancy Act. The Bench, therefore, concluded
    that it was not open to the Watandar to ask for a declaration under
    Section 11 of the 1874 Act that the lease became null and void and
    pray for restoration of possession of the land. Though it was argued
    that the Watandar was only asking for a declaration under Section
    5 of the 1874 Act that the tenancy had become null and void on
    account of the death of the original Watandar, the Bench opined


2   AIR 1921 Bom 17
3   Special Civil Application No.1741 of 1961, decided on 13.12.1962
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       that Section 14(1) of the Tenancy Act provided that the tenancy of
       a land held by a tenant shall not be terminated unless the tenant is
       guilty of the defaults mentioned therein. Further, as Section 29(2)
       of the Tenancy Act provided that a landlord shall not be entitled to
       claim possession of the land leased out to a tenant otherwise than
       by way of an application to the Mamlatdar under the Tenancy Act,
       the Bench concluded that the landlord could recover possession of
       the land from the tenant only on the grounds provided in the Tenancy
       Act and in no other way could the landlord obtain possession from
       the tenant.
27. In Kallawwa Shattu Patil and others vs. Yallappa Parashram Patil
    and another4, a learned Judge noted that suo motu proceedings
    initiated by the Revenue authorities under Section 32G of the Tenancy
    Act had to be dropped in view of the fact that the land was found
    to be Watan land and no purchase price in respect thereof could
    be fixed till the date of regrant of the land in favour of the landlord.
    On facts, the learned Judge found that the Watan land was lawfully
    leased in favour of the tenant long before 01.04.1957 and the said
    lease was subsisting on the appointed day. The provisions of the
    Tenancy Act, therefore, became applicable to the lease forthwith and
    only the compulsory purchase of the land, as per Section 32G of the
    Tenancy Act, could not be availed of by the tenant until the regrant
    of the said land to the landlord under the Abolition Act. The learned
    Judge held that the landlord did not create a fresh tenancy in favour
    of the tenant on 01.04.1957 and Section 32O of the Tenancy Act
    had no application, as it would not be attracted to a case where the
    land was already leased out to the tenant prior to 01.04.1957. The
    proviso to Section 8 of the Abolition Act was stated to create a legal
    fiction for an extremely limited purpose, i.e., for the purpose of fixing
    the price in respect of the statutory purchase of the land. For that
    limited purpose, the land is deemed to have been leased out from
    the date of regrant but it did not follow therefrom that the landlord
    created a fresh lease in respect of the said land on the date of the
    regrant as the old lease had never come to an end.
28. In Pradeeprao @ Virgonda Shivgonda Patil vs. Sidappa Girappa
    Hemgire since deceased through his heirs and LRs. Ginnappa


4   (1992) 1Mah.LJ 34
[2024] 3 S.C.R.                                                        611

                 Baban Balaji More (Dead) by LRs. & others v.
                  Babaji Hari Shelar (Dead) by LRs. & others

     Sidappa Hemgire and others5, a learned Judge again affirmed the
     aforestated legal position and held that merely because there was a
     regrant of the Watan land in favour of the Watandar, it did not mean
     that a new lease was created on that day in favour of the tenant.
     The learned Judge found that after the Watan was abolished, the
     landlord paid the amount towards the occupancy price within the
     prescribed time and the land stood regranted to him. As the land
     stood regranted, the tenant acquired the right to purchase the said
     land by virtue of the provisions of the Tenancy Act.
29. In Kondabai Ganu Barkale (since deceased) through her Legal
    Heirs Smt. Housabai P Bhongale and others vs. Pandit @ Shankar
    D. Patil (since deceased) through his Legal Heirs Waman S.Patil
    and others6, a learned Judge noted that the Tribunal had erred in
    holding that the tenancy in that case was created long after Tillers’
    Day. The learned judge found that there was no dispute as to the
    fact that the tenancy in respect of the said land was created long
    before Tillers’ Day and by virtue of Section 88CA of the Tenancy Act,
    Section 32 to Section 32–R of the Tenancy Act were inapplicable
    thereto at that time. However, after the Abolition Act and regrant
    of the Watan land to the landlord thereunder, the provisions of the
    Tenancy Act became applicable to the subject land with full vigour.
    Such application, by operation of law, was not to be treated as the
    creation of a new tenancy by the landlord after Tillers’ Day. The
    Tribunal was, therefore, held to be in clear error in applying the
    provisions of Section 32O of the Tenancy Act to the case.
30. We find ourselves in respectful and complete agreement with the
    views expressed by the Bombay High Court in the above decisions.
    In the case on hand, it is the contention of the appellants that there
    was no lease subsisting as on 01.01.1963, owing to the order dated
    18.04.1961 passed upon the application made by the legal heirs under
    Section 5 of the 1874 Act after the death of the original Watandar. They
    would further contend that as the possession of the Watan lands was
    actually restored to the legal heirs on 22.04.1962, the tenants were not
    even in possession on the appointed date, viz., 01.01.1963. In effect,
    their argument is that neither a lawful lease was in existence nor were


5   (2004) 3 Mah. L.J. 75
6   (2016) 2 Mah. LJ 282
612                                                          [2024] 3 S.C.R.

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       the tenants in physical possession on the said date. However, this
       argument loses sight of the fact that the order dated 18.04.1961 had
       not attained finality inasmuch as the tenants subjected it to challenge
       before the higher authorities and their challenge was still pending.
       No doubt, the High Court erroneously referred to the ‘misconceived
       appeal’ filed by them as ‘revisional proceedings’ but notwithstanding
       the nomenclature, the inescapable fact remains that the challenge to
       the initial order dated 18.04.1961 was subsisting as on 22.04.1962,
       the date of delivery of possession, and such proceedings of challenge
       concluded in favour of the tenants when their revision was allowed,
       vide the order dated 03.05.1982. Merely because no stay was
       granted in such proceedings and, in consequence, the tenants stood
       divested of actual physical possession, it did not lend any finality to
       the order impugned in those proceedings and, therefore, the purported
       termination of the lease still hung in balance.
31. Further, in the light of the aforestated discussion, the argument of
    the appellants that the tenants ought to have challenged the regrant
    order dated 27.11.1964 is without merit. In fact, the tenants were
    benefited by the said regrant order as the exercise of their right to
    purchase the land hinged upon the passing of that regrant order, in
    terms of the proviso to Section 8 of the Abolition Act. The argument
    to the contrary is, therefore, rejected.
32. It appears that during the pendency of this litigation, the subject
    agricultural Watan lands became part of the extended city limits
    of Pimpari Chinchwad Municipal Corporation and are presently
    reserved for Defence purposes (Red Zone) in the development plans
    sanctioned by the Government of Maharashtra. In consequence,
    these lands cannot be alienated without the prior approval of the
    Government of India and the Government of Maharashtra. While so,
    we find that both sides have been merrily entering into transactions
    with third parties to alienate/transfer the subject lands. However, our
    decision in this case relates back to a time when the subject lands
    were still agricultural in nature and use and it would have no impact
    on the present position and the consequences flowing therefrom.
    Further, inter se disputes, be it betwixt the appellants or betwixt
    the tenants, are not the subject matter of this appeal and have
    not been dealt with. All such disputes would have to be addressed
    independently before the appropriate forum in accordance with law,
    if still permissible.
[2024] 3 S.C.R.                                                        613

              Baban Balaji More (Dead) by LRs. & others v.
               Babaji Hari Shelar (Dead) by LRs. & others

33. On the above analysis, we hold that it was not open to the appellants
    to proceed against the tenants under the provisions of Sections 5,
    11 and 11A of the 1874 Act after the death of Balaji Chimnaji More,
    the original Watandar, in February/March, 1958. This is because
    the provisions of the Tenancy Act were very much applicable to the
    subject lands by then and more so, Sections 29 and 31 thereof.
    Therefore, the legal heirs of the original Watandar could not have
    taken lawful possession of these lands from the tenants pursuant
    to the order dated 18.04.1961 passed under Sections 5, 11 and
    11A of the 1874 Act. The same was rightly held to be invalid in the
    revisionary order dated 03.05.1982 and that finding was correctly
    held to be justified by the Bombay High Court. We also hold that
    the tenancy was lawfully subsisting on 01.04.1957, i.e., Tillers’ Day,
    and the tenants were entitled to exercise their right of statutory
    purchase of these tenanted agricultural Watan lands under Section
    32 of the Tenancy Act in terms of Section 8 of the Abolition Act, after
    the exemption afforded by Section 88CA ceased to exist. That right
    became operational on 27.11.1964, when these Watan lands were
    regranted to the heirs of the original Watandar.
     Viewed thus, we find no grounds made out, either on facts or in law,
     to interfere with the impugned judgment dated 01.02.2005 passed
     by the Bombay High Court.
           The appeal is devoid of merit and is accordingly dismissed.
           Pending I.A.s shall also stand dismissed.
           In the circumstances, parties shall bear their own costs.


     Headnotes prepared by: Divya Pandey                 Result of the case:
                                                          Appeal dismissed.