Bar On 'Transfer/Assignment' Of Agricultural Land To Non-Agriculturist Applicable To Testamentary Disposition Also: SC [Read Judgment]

The Supreme Court on Monday ruled that Section 63 of the Bombay Tenancy and Agricultural Lands Act, 1948 debars an agriculturist from parting with his agricultural land to a non-agriculturist through a "Will". The three-judge bench headed by Justice U. U. Lalit, in dismissing the appeals against the impugned Gujarat High Court judgment, also held that Section 43(1) of the Tenancy Act restricts transfer of any land or interest purchased by the tenant under Sections 17B, 32, 32F. 321. 320, 32U, 33(1) or 88E or sold to any person under Section 32P or 64 of the Tenancy Act through the execution of a Will by way of testamentary disposition. The Court said that if a testamentary disposition which does not have the element of consideration is to be permitted, and if it is assumed that Sections 43 and 63 of the Act do not get attracted, the land can be bequeathed to a total stranger and a non-agriculturist who may not cultivate the land himself; which in turn may then lead to engagement of somebody as a tenant on the land. In such a situation, the legislative intent to do away with absentee landlordism and to protect the cultivating tenants, and to establish direct relationship between the cultivator and the land would then be rendered otiose. "The construction put on the expression "assignment" appearing in Section 43, therefore, has to be consistent with the legislative scheme. In the context of the entire scheme, the term "assignment" used in Section 43 of the Act must include testamentary disposition as well. By adopting such construction, in keeping with the law laid down by this Court, the statute would succeed in attaining the object sought to be achieved. On the other hand, if it is held that the testamentary disposition would not get covered by the provisions of Section 43, a gullible person can be made to execute a testament in favour of a person who may not fulfil the requirements and be eligible to be a transferee in accordance with law. This may not only render the natural heirs of the tenant without any support or sustenance, but may also have serious impact on agricultural operations", concluded the bench. The Court also declared as incorrectly decided its own 2016 Judgment in Mahadeo (Dead through legal representatives) v. Shakuntalabai in which similar provisions from Bombay Tenancy and Agricultural Lands Act, 1958 (as applicable to Vidarbha Region of State of Maharashtra) came up for consideration. In the said decision, a two-judge bench of former Justices Madan B. Lokur and A. K. Goel had held that "On a plain reading of the aforesaid provision, it is clear that transfer without the previous sanction of the Collector is impermissible by way of sale, gift, exchange, mortgage, lease or assignment" and that "there is no prohibition insofar as the transfer of land by way of a will is concerned". Legislative Scheme of the 1948 Tenancy Act In the judgment rendered on Monday, the bench, also comprising Justices Indu Malhotra and A. S. Bopanna, appreciated the provisions of the 1948 Act to consider the legislative scheme: A) In terms of Section 32, on the tillers' day every tenant satisfying the requirements spelt out in Section 32(1), and upto the ceiling limit as laid down in Section 32A, is deemed to have purchased from his landlord, free from all encumbrances, the land held by him as tenant.B) The purchase price payable by the tenant for such deemed purchase is to be determined in terms of Section 32H, according to which, in case of a permanent tenant the purchase price has to be equal to six times the rent, while in case of other tenants, the purchase price would not be less than 20 times the assessment, and not more than 200 times the assessment.C) In case the proceedings for eviction of the tenant are pending, the deemed date of purchase will stand postponed in terms of the first proviso to Section 32.D) Even if the tenant had lost the possession before the tillers' day, in certain cases the possession can be restored to him and the benefit of statutory purchase can be enjoyed by him as stipulated in sub-sections (1A) and (1B) of Section 32. The benefit of statutory purchase is also made available to tenants in areas within the limits of Municipal Boroughs, or within the limits of Municipal Districts as contemplated by Section 32(4) of the Act.E) If the landlord is under a disability, as stated in Section 32F, the right to purchase the land can be exercised after cessation of disability. In such cases, the period within which the right to purchase could be exercised was initially a fixed period, but facility is given in Section 32F(1A) that even if the period had expired, the tenant is still deemed to have purchased the land.F) Even a sub-tenant of a permanent tenant is entitled to the right of deemed purchase in terms of Section 32I and all the provisions concerning deemed purchase are to apply to such sub tenant. The shares of purchase price are then to be allocated in terms...

Bar On 'Transfer/Assignment' Of Agricultural Land To Non-Agriculturist Applicable To Testamentary Disposition Also: SC [Read Judgment]

Mehal Jain

Tags