1. This Special Civil Application has been referred to the Full Bench by the learned Single Judge of this Court, as he found that there was conflict of views between two Division Benches of this Court on the real meaning and interpretation of Section 88 (1) (a) of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as 'the Tenancy Act').
2. The facts in this case do not seem to be in dispute. We will refer to some of the Vat Hukums of the erstwhile Kolhapur regime. It is enough to state that in the case of all public trusts, the Kolhapur Darbar was managing the properties, and by orders passed from time to time the mode of management and control by the Darbar over them were indicated. It will be equally clear from the referring judgment that after the merger of Kolhapur State with erstwhile Bombay State and the present Maharashtra State, the properties of the Devasthan in question were being let out on Eksali basis on auction by the Collector of Kolhapur. The petitioner gave a bid at one such auction in 1955-56, and was made a tenant of the properties in view of his highest bid. By the same process he continued to be the highest bidder and, therefore, an Eksali tenant for all the years 1955-56 to 1967-68. It appears that the matter was under consideration of the Government as to how the management of the public trusts should be conducted hereafter. The Collector took no action in the matter, and the petitioner continued in possession of the land. From the year 1969, a Committee, called the Deosthan Mandal, was appointed for the Western region for the management of the Public Trusts. By a Gazette Notification, the public trusts were indicated,
3. When the Committee or the respondent No. 2 Deosthan Mandal were so vested with the management they gave notice to the petitioner to quit the land. The petitioner then took up the position that he was the tenant under the provisions of the Tenancy Act, and filed an application for such declaration under Section 70 (b) of the Tenancy Act before the Tahsildar concerned. The Tenancy Aval Karkun by his order dated 30th September 1969 found that the petitioner was in vahiwat of the disputed land from the year 1857-58, and was entitled to a declaration that he was a tenant of the land. This decision was challenged before the Special Deputy Collector by respondent No. 1, who was being styled as the sub-lessee of the petitioner. By his order dated 8th May 1970, the Special Deputy Collector held that the petitioner was undoubtedly cultivating the land for a long time, but this being a land covered by the provisions of Section 88 (1) (a) of the Tenancy Act, the Tenancy Act did not apply at all. He, therefore, dismissed his original petition, and held that he was not a tenant of the land under the Tenancy Act
4. The present petitioner carried a Revision Application to the Maharashtra Revenue Tribunal, which by its order dated 27th March 1972, confirmed the finding of the Special Deputy Collector and dismissed the Revision Application. Being aggrieved, the petitioner has filed this Special Civil Application,
5. The narration of facts as above makes it clear that the disputed land belongs to a public trust, which was being managed by the Government all along by itself or through its officers, and now through a newly appointed Mandal, which is nothing but a representative of the Government. The petitioner was undoubtedly a tenant on Eksali basis from the Collector of Kolhapur and could be described to be a tenant holding the land on lease from the Government, The question, therefore, that arises for our consideration is, whether under Section 88 (1) (a) of the Tenancy Act, the land must not only belong to the Government, but in addition it must be held by or on behalf of the Government in order to attract the provisions thereof.
6. Section 88 (1) (a), as it originally stood, was amended in 1956 by Maharashtra Act No. 13 of 1956. Section 48 of the Amending Act substituted the original Clause (a) of Sub-section (1) of Section 88, and the present provisions are as a result of that amendment. The relevant provision before its amendment in 1956 was a follows:--
'88. (1), 'Nothing in the foregoing provisions of this Act shall apply:--
(a) to lands held on lease from the Crown, a local authority or a co-operative society;'
The amended Section now appears asfollows:-- ,
'88. (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.' In the view of the learned single Judge, the amendment does not bring about any substantial change in the provisions. Two Division Bench judgments were cited before him, which have interpreted the unamended Section 88 (1) (a). In Spl. Civil Appln. No. 2463 of 1954, a Division Bench consisting of Chagla, C. J. and Dixist, J. by their order dated 14th Dec, 1954 found that the language of Clause (a) before its amendment, though referred to only lands held on lease from the Government, the intention was clear viz. to protect the Government lands alone from the rights being created in favour of the tenants. They, therefore, found that in order that the exemption under Section 88 (1) (a) should be available, the land must belong to the Government in the first instance, and must also be leased out from the Government. When both these conditions ara satisfied, the exemption from the operation of the provisions of the Tenancy Act is available.
7. In respect of the same unamended section another Division Bench in Spl. Civil Appln. No. 1588 of 1956, decided on 20th September 1956, took a different view. The learned Judges constituting this Bench pointed out that the only requirement for exemption of land from the operation of the Tenancy Act was that the land should have been leased out from the Government or a local authority or a co-operative society. Whether the Government, or a local authority or a co-operative society is the owner of that land is irrelevant, Even when lands are entrusted to cooperative society, and Government, for certain purposes of management, during the management thereof if the Government leases out the lands, the exemption under Section 88 (1) (a) will operate. There is no doubt, therefore, that before the legislative amendments, two distinct views were there by the two different judgments of this Court However, as we find, the Legislature has passed the amending Act No. 13 of 1956, and the amended section now makes it clear that there are two types of properties which will be saved from the operation of the Tenancy Act. If the land belongs to the Government, the Tenancy Act will not apply at all. There is a second category. If the land is leased out from the Government, then also the exemption is available. Since the structure of the new sub-clause contains a comma after the clause 'to lands belonging to', and it further contains the word 'or' to describe the second clause 'held on lease from' followed by comma, we have hardly any doubt that two distinct types of properties are under contemplation by the Government. One is the property belonging to the Government and held as such by the Government, and another is the property, apart from the fact that the Government is the owner, leased out by Government or held on lease from Government. To these two types of properties the Tenancy Act will not apply. In other words, according to us, the later judgment of the Division Bench of this Court dated 20th September 1956 was rehabilitated by the State Legislature. The Legislature obviously found that the two different views are possible, according to the provisions of the Act. It is undoubtedly within the competence of the Legislature, the law makers, to choose one and reject the other, and the Legislature or the law makers have chosen in 1956 to extend the exemption to cover both types of cases, i.e. lands owned by Government as well as leased out by the Government to tenants, so that the present section will cover the entire field of this law.
8. When a land is being let out by Government, it is now clear that the Government is the owner of the land. Since letting out can be by principals or through their agents, we do not see why the same principle should not apply where the Government is the owner. It is unnecessary for any other agency to act on its behalf. Government officials manage the properties and through them the lands are leased out to tenants, and they are fully covered by Section 88 (1) (a). Wherever, therefore the lessor is Government either directly itself or through its agents the leasing out would be by Government and the person who holds the land will be holding on lease on behalf of the Government, as contemplated by Section 88 (1) (a). The moment this position is established, nothing in the foregoing provisions of the Act would be applicable save as otherwise provided in Sub-section (2) of Section 88.
9. So far as the present case is concerned, we have already indicated the factual position. The petitioner is a direct tenant from the Collector, who is the Government official acting for and on behalf of the Government. He is undoubtedly a lessee from the Government and is not entitled to exemption under the Tenancy Act. Therefore, the Tahsildar's order giving the declaration under the Tenancy Act was obviously incorrect. The judgment of the Special Deputy Collector as well as that of the Maharashtra Revenue Tribunal denying that status to him on the ground that it is a piece of land held on lease from the Government and exempt from the Tenancy Act is obviously correct.
10. The petition, therefore, fails and is dismissed. In the circumstances of this case there will be no order as to costs.
11. Petition dismissed.