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Munda Chapla Banjari Vs. the Commissioner, Nagpur Division - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application Nos. 251, 252 and 253 of 1961
Judge
Reported in(1962)64BOMLR667
AppellantMunda Chapla Banjari
RespondentThe Commissioner, Nagpur Division
DispositionPetition dismissed
Excerpt:
.....but is an officer and representative of the court which appoints him. effectively manage the property only through its officer, who is the receiver. 7. now, the position of a receiver in insolvency is too well-settled to admit of any argument......year unless such lease is for a period in excess of eight years from such commencement.(2) every lease by a landholder entitling the lessee to hold land at any time after the agricultural year 1951-52 shall, subject to the provisions of section 4, be deemed to be for a period of eight years unless such lease is for a period in excess of eight years.(3) every person who holds land from a landholder on a lease for a term of eight years or more or whose term of lease is deemed to be eight years under the provisions of sub-section (1) or sub-section (2) shall be deemed to be a protected lessee.sub-sections (4) and (5) do not come into the picture so far as the point before us is concerned. it will thus be seen that the very pre-requisite of the right of a protected lessee is that he must.....
Judgment:

Kotval, J.

1. These three petitions raise a question of some importance as to whether a lease granted by a receiver in insolvency would make the lessee a protected lessee under the Berar Regulation of Agricultural Leases Act, 1951, and for that reason whether he would continue to have the protection of tenancy laws.

2. One Laxman Balwant Deshmukh was on his own petition declared insolvent on August 13, 1953, in Insolvency Case No. 11 of 1952 in the Court of the Civil Judge, Class I, Yeotmal. Prior to the adjudication order, on January 23, 3953, there was appointed a receiver in insolvency. He was Mr. Joglekar, a pleader. In the normal course of management of the property, Mr. Joglekar granted yearly leases to various individuals of certain fields belonging to the insolvent which were admittedly 'alienated' lands. Three such persons to whom or to whose ancestors the fields of the insolvent were leased are the three petitioners in these petitions. In Special Civil Applications Nos. 251 and 253 of .1961 the petitioners or their predecessors in interest had taken leases in the agricultural year 1950-51 from the insolvent prior to insolvency and later on the receiver continued those leases as yearly leases from 1953-54. The first leases which the receiver granted to the two petitioners in those two cases were granted on April 6, 1953. In Special Civil Application No. 252 of 1961 the initial lease granted by the receiver was for the year 1954-55.

3. Now, it appears that subsequently in the course of insolvency proceedings (hose fields were ordered by the insolvency Court to be sold and the receiver .sold them by public auction in each case to respondent No. 3, Godawaribai. He executed a sale deed in each case in favour of the respondent Godawaribai on Applications Nos. 252 of 1961 and 253 of December 19, 1955. Godawaribai then filed suits for possession against the lessees and in those suits the lessees took the stand that they had become 'protected lessees' within the meaning of the Berar Regulation of Agricultural Leases Act and Godawaribai could not get possession. When that plea was raised, the Civil Court made a reference-as it was bound to do-under Section 16-A of the Act to the revenue authorities and it is upon a decision of that reference by the revenue authorities that these petitions arise. The contest in the present proceedings was thus between the petitioners on the one hand who claim to be protected lessees under the Berar Regulation of Agricultural Leases Act and, therefore, entitled to the protection of the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, 1958 No XCIX of 1958) and respondent No. 3 Godawaribai who claims to be the landholder, on the other.

4. Though the arguments have covered a wide field, in our opinion, the principal question that falls to be decided in these petitions is whether the petitioners under the Berar Regulation of Agricultural Leases Act consequent upon the grant of leases by the receiver in insolvency became protected lessees. The learned Commissioner as also the Deputy Collector, contrary to the view of the Sub-Divisional Officer, have held that the receiver in insolvency was an officer of the State and since he was authorised to grant annual leases, the leases granted by him would fall within the provisions of Section 20 of the Berar Regulation of Agricultural Leases Act as leases from Government and, therefore, they would be exempt. The argument was thus put by the learned Commissioner :

Section 20 of the B.R.A.L. Act has exempted leases from Government. The lease from the receiver in all its practical sense is, therefore, a lease from Government.

In the result, therefore, those authorities have held that the petitioners cannot claim protected status, and the stand was reiterated before us.

5. So far as that part of the argument is concerned, we are unable to accept the reasoning of the authorities below. Section 20 of the Berar Regulation of Agricultural Leases Act states 'nothing contained in this Act shall apply to lands held on lease from the State Government,...'. It seems to us that it can by no stretch of the language of the section be held that a lease granted by a receiver appointed by an insolvency Court is a lease granted by the State Government. We cannot also accept the reasoning that the receiver was an officer of Government. The receiver is an officer of the insolvency Court and as such completely independent of Government. In fact, he has no responsibility to Government qua, receiver, nor are his actions in any manner controlled by Government in that capacity. The position of a receiver was thus put by Mookerjee and Carnduff JJ. in Harikar Mukerji v. Harendra Nath Mulcerji (1910) I.L.R. 37 Cal. 754 :.It is well settled that a Receiver by his appointment does not become the representative of the parties, but is an officer and representative of the Court which appoints him. The effect of the appointment of a Receiver is to bring the subject-matter of the litigation in custodia legis, and the Court can. effectively manage the property only through its officer, who is the Receiver. In other words the Receiver ordinarily is not the representative or agent of either party in the administration of the trust, but his appointment is for the benefit of all the parties, and he holds the property for the benefit of those ultimately found to be the rightful owners....

6. The question, therefore, remains whether the leases granted by the receiver to the petitioners or their predecessors-in-interest clothe the petitioners with the rights of a protected lessee under the Berar Regulation of Agricultural Leases Act. Now, in this respect, Sub-sections (1), (2) and (5) of Section 3 of the Berar Regulation of Agricultural Leases Act provide as follows -.

3. (1) Every lease of land by a landholder entitling the lessee to hold land in the agricultural year 1951-52 shall, subject to the provisions of section 4, be deemed to be for a period of eight years from the commencement of that year unless such lease is for a period in excess of eight years from such commencement.

(2) Every lease by a landholder entitling the lessee to hold land at any time after the agricultural year 1951-52 shall, subject to the provisions of section 4, be deemed to be for a period of eight years unless such lease is for a period in excess of eight years.

(3) Every person who holds land from a landholder on a lease for a term of eight years or more or whose term of lease is deemed to be eight years under the provisions of Sub-section (1) or Sub-section (2) shall be deemed to be a protected lessee.

Sub-sections (4) and (5) do not come into the picture so far as the point before us is concerned. It will thus be seen that the very pre-requisite of the right of a protected lessee is that he must have got a lease of land from a landholder and it is only in the case of a lease of land by a landholder that the protective provisions of the Act become applicable. The word 'landholder' in its turn is defined in Section 2(d) of the Act as follows:

'landholder' means an occupant including a person becoming an occupant under section 68 of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950;

The latter part of the definition is admittedly not attracted here and thus that part of the definition which governs the case is 'landholder means an occupant.' The word 'occupant' is not defined in the Act, but Section 2 (k) prescribes that expressions used in this Act but not defined herein, shall have the meanings assigned to them in the Berar Land Revenue Code, 1928. The word 'occupant' is thus defined in Section 54(1) of the Berar Land Revenue Code, and that definition would be applicable by virtue of Section 2(k) of the Berar Regulation of Agricultural Leases Act.

The person who acquires the right to occupy land under section 53 is called an occupant of such land, and shall hold it in accordance with the provisions of this law.

Section 53 of the Code provides:

Subject to the provisions of section 55 and to rules made under this law, the right to occupy unoccupied unalienated land shall be disposed of by the Deputy Commissioner, who may require payment of a premium for such right or sell the same by auction:' The rest of the section is not necessary for our purposes. The Form IV appended to Section 53 of the Code prescribes the form of the certificate of grant of occupant's rights in land for agricultural purposes and it shows that a certificate has to be granted to create occupancy rights for agricultural purposes. These provisions thus make clear the meaning of 'occupant' and in what manner the right of an occupant comes into being under law. Unless a person is an occupant, he cannot be a landholder, and it is only a landholder who can create a 'protected lessee'. We have shown that there is a special mode prescribed for giving rise to the rights of a landholder and the question before us is whether in these cases by the simple expedient of appointing a receiver by the insolvency Court that receiver could be clothed with all the rights of a landholder as delineated above.

7. Now, the position of a receiver in insolvency is too well-settled to admit of any argument. Under Indian law, a receiver appointed by an insolvency Court is in the same position as a trustee in bankruptcy under English law. Under English law, such a trustee is bound by all the equities which affect the bankrupt and by all the liens, contingencies, liabilities and contracts which the bankrupt is liable for. The same principles are applicable in India. The trustee is bound also to do equity wherever it will appear that the bankrupt was liable to act equitably. That being so, it is clear that the receiver whose possession is that of a trustee in bankruptcy has not the same rights as the owner. In the case of a transfer by him of leasehold rights he does not transfer as an occupant, much less as a landholder. Moreover, we have already indicated that an 'occupant' cannot be created by mere operation of law and that Sections 53 and 54 of the Berar Land Revenue Code indicate that occupancy rights can be granted only in a particular manner. The receiver who is appointed in charge of the insolvent's property ad interim cannot step into the shoes of the landholder to the extent that he would himself become the occupant or landholder of the field of which he is put in charge as a receiver. He cannot, therefore, invest the lessee with the protected status given to lessees under Section 3 of the Berar Regulation of Agricultural Leases Act.

8. In that view, it seems to us unnecessary to consider the further arguments advanced in these petitions by Mr. Sonak on behalf of the petitioners that the petitioners can claim the protection of the new tenancy law, namely, Bombay Act No. XCIX of 1958. We do not think that the receiver was the landholder of the fields of which he granted leases to the petitioners and, therefore, the petitioners could not and never did acquire the rights of a protected lessee. They were merely governed by the contracts of lease which the receiver created in their favour and those contracts have been determined by efflux of time. The petitioners have no other right to the fields in dispute, nor was any claim on any other ground than the above advanced before -us. In our opinion, the decisions reached by the Commissioner and the Deputy Collector were correct, though we say so for wholly different reasons.

9. The petitions are dismissed. In the circumstances, there shall be no order as to costs.


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