1. The petitioner applied under Section 29 (2) of the Bombay Tenancy and Agricultural Lands Act, 1948, for recovering possession of R. S. No. 767, situated at K-Bavada in Karvir Tahasil, Kolhapur, area 1 H-85 R. assessed at Rs. 24-25. The land undisputedly was governed by Section 43A of the Act, as it was a land leased for sugar-cane cultivation within the meaning of that Section, on the ground that he required the land for bona fide personal cultivation, and he was a small holder earning his living principally by agriculture or agricultural labour, who satisfied all the conditions mentioned in the Notification issued by the Government under Section 43A (3), of February 14, 1958, as modified by a further notification under that Section dated October 8, 1969.
2. After careful consideration of the evidence led by the parties, the Tenancy Aval Karkun, Karvir, by his order dated May 2, 1973, allowed that application, terminated the tenancy of the Respondents and ordered possession of the suit land to be restored to the Petitioner, as he found that the Petitioner satisfied the conditions specified in Section 33B (5), Clauses (b) and (c), as stated in the Notification of the Government dated Oct. 8, 1969.
3. That order was challenged in an appeal filed before the Assistant Collector, Karvir Division, Kolhapur, by the 12 Respondents/tenants, other than Respondent No. 13, who appears to be an old lady, not interested at all in the land. The Assistant Collector, by hisorder dated Sept. 27, 1975 confirmed the order, observing as follows:--
'After going through the lower court's case-papers and considering the arguments put forth by the parties, one comes to the conclusion that the whole issue turns round the interpretation of the Government Notification No. F. D. TNC/ 5157/173483/M dated the 14th Feb., 1958 and amended by the Government Notification No. TNC/6769/9667/M (Spl.) D/-8-10-1969. The earlier notification of (14-2-58) said that the land would be taken from the tenant if required for bona fide personal cultivation. The amendment of 69 adds that the lessor has to be an agricultural labourer or one earning his livelihood principally from agriculture. The points to be considered are '(i) whether the landlord bona fide requires the land for personal cultivation (ii) whether he is agricultural labourer (iii) whether the landlord is earning his livelihood principally by agriculture. The lower court has held that the landlord is not an agricultural labourer which seems to be correct in the light of the definition of agricultural labourer given in Section 2 (i-A) of the B.T. and A.L. Act, 1948. As regards the second point whether the landlord bona fide requires the land for personal cultivation, I am of the view that the landlord does require the suit land for personal cultivation. He makes it clear in notice even to the tenants. It is also clear from his deposition that he wants to cultivate the land personally. The respondents' contention that he is an Electrician and hence cannot cultivate the land personally is wrong. There is nothing to show that he is employed somewhere as an Electrician. The third point is also clear. He earns his livelihood principally by agriculture, here I would emphasise the word principally. The notification does not say that the lessor should be an agriculturist but simply says that he should be one earning his livelihood principally by agriculture. The idea behind the notification seems that the lessor may be having some other avocation but his income from that should not exceed his income from agriculture. Had the intention been different, the word 'agriculturist' would have been used and not one earning his livelihood principally by agriculture. The present respondent lessor's main source of income is the rent which the gets from the tenants. I, therefore, hold that the respondent landlordearns his livelihood principally by agriculture. Thus, the landlord's requirements is bona fide and he wants to cultivate personally.'
4. The said order was challenged in a revision application before the Maharashtra Revenue Tribunal, by the 12 tenants, respondents 1 to 12; and ignoring the limitations on its powers under Section 76 of the Bombay Tenancy and Agricultural Lands Act, 1948, having regard to the findings of facts recorded by the two lower authorities, the Learned Revenue Tribunal remanded the matter observing as follows:--
'In this case, it is clear that, the landlord would be a small holder, but he cannot be said to earn his livelihood principally by agriculture or agricultural labour. An attempt was made to show that, he was an agricultural labourer, but that was not successful and the courts below have held that, it was not proved. There is no source of income other than the rent of the land available to the landlord. The agreed rent of the land is Rs. 750/- per year. Receiving of rent would not be agriculture within the meaning of the term, as defined under Section 2 (1) of the Act. Therefore, the exemption allowed by amending notification would not be available in the case of the present landlord. His case will be governed by conditions in Sections 31-A, 31-B, 31-C and 31-D of the Act. In the case of this landlord, there is no other source of income. Therefore, it could be said that, the income by cultivation of the land, he would be taking possession of, would be the principal source of income. The land in his possession would not be more than the ceiling. The conditions in Sections 31-C & 31-D would come in operation, subsequently. But before passing an order for possession it shall have to be seen, whether the condition in Section 31-B is complied with or otherwise. The courts below have ignored the circumstances of this case, and incorrectly held that, the amended notification governs the case of the present landlord, and therefore, the courts below have seen that Clauses (b) & (c) of Sub-section (5) of Section 33B of the Act, have been complied with. But, we have seen that, even though the present landlord is a small holder, and he lives on rent, he cannot be said to be a person earning his livelihood principally by agriculture. The case of the landlord is covered by Section 31B of the Act. Therefore, more than1/2 area of the suit land cannot be given in possession of the landlord. But another factor to be considered in this connection is, whether the order of particular area of the suit land in favour of the landlord, would conflict with the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947. This is not done by the courts below.'
5. The entire reasoning of the learned Tribunal suffers from the misconception of the Notifications issued by the Government under Section 43A. The amending Notification is by way of an amendment to the original Notification, and the material words are inserted in Condition No. 2; and when it is said that the lessor earns principally by agriculture or agricultural labour, what the authorities have to consider is whether he has got any source of income other than agriculture or agricultural labour.
6. In the present case, there is no evidence led by the tenants to show that the landlord had any source of income other than the rent from the agricultural land which they were claiming. In the circumstances, it must be held that it was principally agriculture, though the actual agriculture was done by the tenants. The rent was paid by the tenants from agriculture and the source of the income of the petitioner was, therefore, agricultural and nothing else.
7. The assumption made by the Revenue Tribunal that the amended notification did not apply to the case is therefore based on a total misconception of the word 'agriculture' or by 'agricultural labour'. It may be that the rent from other properties may not be said to be rent by agriculture; but when the rent is received by the owner of the agricultural land from his tenants, it must be held to be livelihood principally by agricultural income.
8. Again, the assumption made by the Revenue Tribunal that there would be conflict with the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947, is inconsistent with the provisions of Section 33B (5) (b), under which possession is to be given notwithstanding anything contained in Section 31 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947, and notwithstanding any fragment being made with the tenant. The order passed by the Revenue Tribunal, therefore, is clearly illegal.
9. Mr. Pendse, the learned counsel appearing for the tenants strenuously urged not only that the above illegal reasons given by the Tribunal are right, but also an additional reason, that the Tenancy Aval Karkun was wrong in interpreting Section 33B (5) (b) in ordering restoration of the entire suit land in dispute to the petitioner. As this was a case of one landlord against many tenants, the requirement of Section 33B (5) (b) was considered, with respect to all of them as well as each of them, and the Tenancy Aval Karkun has made best efforts to put a proper interpretation on the difficult Section 33B (5) (b). It cannot be said to be an erroneous interpretation. I therefore find no reason to interfere with the order passed by the Tenancy Aval Karkun, merely because, according to Mr. Pendse, nothing was left with the tenant; and the scheme of Section 33B (5) (b) required a share equal to that of the landlord to remain with the tenant.
10. Lastly, Mr. Pendse submitted that there has been a delay of more than an year in filing the above Special Civil Application, and there is no reason given for excusing the delay except the poverty of the petitioner. It is high time that poverty should be taken notice of by Judges in courts and that itself is enough ground for setting aside the illegal order of the Revenue Tribunal.
11. In the result, the Special Civil Application is allowed. The order passed by the Maharashtra Revenue Tribunal on April 9, 1975, is set aside and quashed for the reasons stated above, and the order passed by the Tenancy Aval Karkun on May 3, 1973 and the Assistant Collector, Karvir, Division, Kolhapur, on Sept. 27, 1974, are restored.
12. Rule absolute with costs.
13. Order accordingly.