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Dhondu Shamrao Polakhare Vs. Maharashtra Revenue Tribunal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 428 of 1962
Judge
Reported in(1964)66BOMLR540; 1964MhLJ638
AppellantDhondu Shamrao Polakhare
RespondentMaharashtra Revenue Tribunal
Excerpt:
.....38(3)(c) - whether condition about land being principal source of maintenance must be satisfied by landlord holding less than one family holding and who earns livelihood principally by agriculture.;the condition in section 38(3)(c) of the bombay tenancy and agricultural lands (vidarbha region and kutch area) act, 1958, about the land being the principal source of maintenance need not be satisfied by the landlord if (1) his total holding is less than one family holding and (2) if he earns his livelihood principally by agriculture or by agricultural labour. if he satisfies both these conditions, he will be entitled to resume the land, without showing that the income from it will be the principal source of his maintenance. - - if such had been the intention, the condition would in all..........or by agricultural labour.' it has been urged by mr. manohar that these words go with the words 'such landlord' and not with the words 'not being a landlord'. this construction is, however, not warranted by the language of the clause. if mr. manohar's argument is accepted, the clause in so far as the landlords, whose holding exceeds one family holding, would read as follows:the income by the cultivation of the land of which he is entitled to take possession is the principal source of income for the maintenance of such landlord...and who earns his livelihood principally by agriculture or by agricultural labour.this would be an inappropriate and a clumsy way of laying down a condition that every landlord, other than the one whose holding is less than a family holding, should earn.....
Judgment:

H.K. Chainani, C.J.

1. The petitioner is a tenant of the land, which belongs to opponent No. 4, hereinafter referred to as the opponent. The opponent made an application under Section 38 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, 1958, for obtaining possession of the land from the petitioner, on the ground that he required the same bona-fide for personal cultivation. The Naib Tehsildar granted his application. That order was set aside in appeal by the Sub-divisional Officer, who held that the income from the land would not be the principal source of maintenance of the opponent. In revision, the Revenue Tribunal set aside the order passed by the Sub-divisional Officer and restored the order made by the Naib Tehsildar. The order passed by the Revenue Tribunal is being challenged before us.

2. Sub-section (3) of Section 38 of the Tenancy Act provides that the right of a landlord to terminate a tenancy under Sub-section (1) shall be subject to the following conditions, namely-

(c) The income by the cultivation of the land of which he is entitled to take possession is the principal source of income for the maintenance of such landlord not being a landlord whose total holding whether as tenure holder or tenant or partly as tenure holder and partly as tenant does not exceed one family holding and who earns his livelihood principally by agriculture or by agricultural labour.

The words beginning with 'not being a landlord' were inserted in Clause (c) by Section 8(b) of the Bombay Tenancy and Agricultural Lands (Vidarbha and Kutch Area) Amendment Act, 1960 (Maharashtra Act No. V of 1961). If these words are left out of consideration, the position would be that before a landlord can obtain possession of any land, he must prove that the income from that land will be the principal source of income for his maintenance.

3. The question to be considered is what is the effect of the amendment, which was made in 1961. The words 'not being a landlord' mean 'who is not a landlord', that is to say, that a landlord will have to satisfy the condition about the land being the principal source of his maintenance, unless he is a landlord of the type referred to in the latter part of the clause. The controversy before us has been in regard to the last words in the clause 'and who earns his livelihood principally by agriculture or by agricultural labour.' It has been urged by Mr. Manohar that these words go with the words 'such landlord' and not with the words 'not being a landlord'. This construction is, however, not warranted by the language of the clause. If Mr. Manohar's argument is accepted, the clause in so far as the landlords, whose holding exceeds one family holding, would read as follows:

The income by the cultivation of the land of which he is entitled to take possession is the principal source of income for the maintenance of such landlord...and who earns his livelihood principally by agriculture or by agricultural labour.

This would be an inappropriate and a clumsy way of laying down a condition that every landlord, other than the one whose holding is less than a family holding, should earn his livelihood principally by agriculture or by agricultural labour. If such had been the intention, the condition would in all probability have been specified like other conditions as a separate condition in a separate clause or at least this clause would have been worded differently and the words 'and who earns his livelihood principally by agriculture or by agricultural labour' would have come immediately after the words 'such landlord'. It is also not likely that this could have been intended by the Legislature, because in that case many landlords, whose holding is more than a family holding, but all of whose lands are in the possession of tenants, would not be able to obtain possession, of any of their lands for personal cultivation, as they would find it difficult to prove that they were dependent principally on agriculture. The amendment was obviously made in order to help small landlords, who are mainly dependent on agriculture, by exempting them from the requirement that they could get possession of the leased lands only if their income was going to be the principal source of income for their maintenance. It does not appear to have been made to impose a further restriction on the restricted rights given to landlords who possess more than one family holding to obtain possession of their lands on the ground that they require them bona fide for personal cultivation.

4. The Revenue Tribunal has in its order observed:

If the argument of Shri Jakatdar were to prevail, it would render the amendment nugatory and the object of the legislature would be frustrated since no petty landlord would ever be able to show that he lives principally by agriculture.

This observation does not appear to be correct, because there are many petty landlords, who live principally on agriculture, but whose income is not sufficient for their maintenance. It is evidently to help such small landlords that the amendment has been made. The amendment provides for an exception to the first part of the clause, and specifies when the condition about the land being the principal source of maintenance need not be satisfied.

5. A plain reading of the clause shows that the words 'whose total holding' and 'and who earns his livelihood' both go with the words 'not being a landlord'. In other words, the first part of the clause will not apply and the condition about the land being the principal source of maintenance need not be satisfied by a landlord, if (1) his total holding is less than one family holding and (2) if he earns his livelihood principally by agriculture or by agricultural labour. If he satisfies both these conditions, he will be entitled to resume the land, without showing that the income from it will be the principal source of his maintenance.

6. In the present case, the opponent's total holding is less than a family holding. He does not, however, earn his livelihood principally by agriculture or by agricultural labour. He will consequently not be entitled to take advantage of the exception made in the latter part of Clause (c). He will, therefore, have to prove that the income from the land, of which he is entitled to take possession, will be the principal source of his maintenance. It will be necessary to make a proper inquiry on this point and the matter will consequently have to be remanded.

7. We, therefore, set aside the orders made by the Revenue Tribunal, the Sub-Divisional Officer and the Naib Tehsildar, and remand the matter to the Naib Tehsildar. He should allow both the parties to lead further evidence, if they so desire and then determine whether the income from the land, of which the opponent is entitled to take possession, will be the principal source of his maintenance. In the light of his finding on this issue, the Naib Tehsildar should pass further orders in accordance with law. No order as to costs.


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