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Bhaskarrao Chimaji Garud Vs. Bhika Bhau Hon - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 1468 of 1961
Judge
Reported in(1962)64BOMLR702
AppellantBhaskarrao Chimaji Garud
RespondentBhika Bhau Hon
Excerpt:
.....conditions terminating such, leaves which have not come to an end.;section 43a (3) of the bombay tenancy and agricultural lands act, 1948, empowers government to prescribe by notification conditions, on which contractual leases held for growing sugarcane, which have not yet come to an end, may be terminated. - section 3: [s.b. mhase, d.s. bhosale & a.s. oka, jj] offences of atrocities - complaint under held, merely because the caste of the accused is not mentioned in the fir stating whether he belongs to scheduled caste or scheduled tribe, it cannot be a ground for quashing the complaint. after ascertaining the facts during he course of investigation it is always open to the investigating officer to record tht the accused either belongs to or does not belongs to schedule caste or..........to all such leases. sub-section (3) authorises government to provide for the duration of such leases. government is, therefore, specifically vested with the power to alter or modify the duration of a lease, which was agreed upon between the parties. it can, therefore, prescribe the conditions on which such leases may be terminated. this conclusion is also supported by the fact that power is given to government to lay down conditions in respect of any matter referred to in the sections mentioned in sub-section (1) of section 43a. one of the sections mentioned in sub-section (1) of section 43a is section 31 and one of the matters referred to in section 31 is the right of a landlord to terminate the tenancy for personal cultivation, even though the period of the lease has not expired......
Judgment:

H.K. Chainani, C.J.

1. The petitioners are the tenants of two lands, survey Nos. 9/2 and 10/3, which 'originally belonged to the joint family consisting of opponent No. 1 and his four sons opponents Nos. 2 to 5. In 1953 there was a partition in the opponents' family and the above two lands were allotted to the shares of opponents Nos. 2 to 5. Opponents Nos. 4 and 5 are minors and opponent No. 1 is their guardian. Opponent No. 1 had leased the above two lands to the father of the petitioners for a period of thirty years on March 27, 1942, for the purpose of growing sugarcane. The agreed rent was Rs. 440 per year. After the Bombay Tenancy and Agricultural Lands Act came into force, the petitioners became protected tenants under the provisions of this Act, Section 4B of this Act, as amended with effect from August 1, 1956, states that no tenancy of any land shall be terminated merely on the ground that the period fixed by agreement or usage for its duration has expired. Sub-section (1) of Section 14 provides that notwithstanding any law, agreement or usage or a decree or order of the Court, the tenancy of a land shall not be terminated except on the grounds specified in this sub-section. Section 30, which is the principal section on which the petitioners have relied in this petition, is in the following terms:

Save as provided in this Act, the rights or privileges of any tenant under usage or law for the time being in force or arising out of any contract, grant, decree or order of a court or otherwise howsoever shall not be limited or abridged.

This section protects the rights acquired by a tenant under the contract with his landlord. Sub-section (1) 'of Section 31 states that notwithstanding anything contained in Sections 14 and 30, but subject to Sections 31A to 31D, a landlord may, after giving notice and making an application for possession as provided in Sub-section (2), terminate the tenancy of any land, except a permanent tenancy, if the landlord bona fide requires the land for 'cultivating it personally. Sub-section (2) states that the notice required to be given under Sub-section (1) shall be served on the tenant on or before December 31, 1956, and that an application for possession under Section 29 shall be made to the Mamlatdar on or before March 31, 1957. Sub-section (3) extends the period for terminating the tenancy and for making an application to the Mamlatdar in certain cases specified in this section. This section gives a last chance to the landlords to obtain possession of their lands on the ground that they require them for personal cultivation. As this right could not be exercised after December 31, 1957, this section overrides Section 30 and enables a landlord to terminate the tenancy of his tenant, even though the period of the lease has not expired. Sub-section (1) of Section 43A states that the provisions of Sections 4B, 14...31 to 31D...shall not apply to ... (6) leases of land granted for -the cultivation of sugarcane. This sub-section removes the restrictions imposed by Sections 4B, 14 and 31 on the right of a landlord to terminate the tenancy of his tenant, in the case of leases granted for growing sugarcane. It, however, protects the rights acquired by a tenant under his contract, for it does not make the provisions of Section 30 inapplicable .to leases granted for growing sugarcane. Sub-section (5) of Section 43A provides that notwithstanding anything contained in Sub-sections (1) and (2), it shall be lawful for the State Government to direct, by notification in the Official Gazette, that the leases, to which the provisions of Sub-sections (1) and (2) apply, shall be subject to such conditions as may be specified in the notification, in respect of -(a) the duration of the lease: ... (d) any other matter referred to in sections mentioned in Sub-section (1). In exercise of the powers conferred by this sub-section, the State Government issued a notification on February 14, 1958, the relevant part of which is as follows:

In exercise of the powers conferred by Sub-section (3) of section 43A of the Bombay Tenancy and Agricultural Lands Act, 1948, the Government of Bombay hereby directs that the leases of land referred to in clause (b) of Sub-section (1) of the said section 43A and to which the provisions of Sub-section (1) of the said section 43A apply shall be subject to the following conditions, namely:-

Conditions as to the duration and termination of lease.

1. No such lease of land shall be liable to be terminated on the ground that the period fixed by agreement or usage for its duration has expired.

2. If a lessor bona fide requires any land so leased by him for cultivating it personally or for any non-agricultural use, such lease may, subject to the conditions mentioned in sections 31A, 31B, 31C and 31D, be terminated by the lessor by giving the lessee one year's notice in writing stating therein the reasons for the termination of the lease.' This notification restricts the right 'of a landlord to terminate the lease granted for cultivation of sugarcane. He can do so only if he requires the land bona fide for personal cultivation, by giving one year's notice.

2. On March 27, 1958, the opponents gave notices to the petitioners terminating their tenancy. The notices asked the petitioners to hand over possession of the lands on March 26, 1959. After the expiry of the period of these notices, opponents Nos. 2 to 5 made an application to the Mamlatdar for obtaining possession of the lands, on the ground that they wanted them for personal cultivation. The application on behalf of opponents Nos. 3 and 4, who are minors, was made by opponent No. 1. The Tenancy Aval Karkun, who heard the matter, found on all the points in favour of the opponents. He, therefore, directed that possession of half of the lands should be given to the opponents. The petitioners appealed against this order to the Deputy Collector, but their appeal was dismissed. They then applied in revision to the Revenue Tribunal, but their revision application was rejected. Thereafter the petitioners filed the present special civil application, in which they challenge the order for possession made against them.

3. The first point, which Mr. Gupte, who appears on behalf of the petitioners, has urged is that the opponents are not entitled to obtain possession of the lands, as the period of the lease granted to the petitioners has not yet expired. This lease was granted on March 27, 1942, for a period of 30 years. Section 30 saves the rights or privileges of a tenant arising out of any contract. The operation of this section is not excluded by Sub-section (1) of Section 43A. Sub-section (5) of Section 43A does not say that the powers conferred by this sub-section may be exercised notwithstanding anything contained in Section 30. It does not also contain the words 'notwithstanding any law, agreement or usage, or the decree or order of a Court', such as are used in Section 1.4 or 43B. Sub-section (2) of Section 89 states that nothing in this Act shall, save as expressly provided in this Act, affect or be deemed to affect any right, title or interest acquired or accrued before the commencement of the Act. Mr. Gupte has strongly relied on these provisions and has contended that in the absence of any express provision in the Act, the rights acquired by a tenant under his contract of lease cannot be curtailed or taken away by any notification issued by Government. He has argued that the notification issued by the Government under Sub-section (3) of Section 43A does not apply to leases, which have not yet terminated by efflux of time,

4. It is plain on a reading of Section 30 that the rights and privileges of any tenant arising out of contract can be abridged and limited in the manner provided in the Act. Provisions in the Act for abridging and limiting a tenant's rights and privileges need not necessarily commence with the words, such as 'notwithstanding anything contained in section 30'. The contention of Mr. Gupte that since the above phrase is not found in Sub-section (3) of Section 43A, the sub-section does not authorise abridgement of rights of a tenant under a lease, the duration of which has not expired, is, therefore, not tenable.

5. Sub-section (5) of Section 43A expressly empowers Government to specify the conditions, on which leases, to which the provisions of Sub-sections (1) and (2) of Section 43A apply, may be held in respect of their duration and also in respect of any matter referred to in sections mentioned in Sub-section (1). It is conceded that Sub-section (1) of Section 43A applies to all leases granted for the cultivation of sugarcane, including contractual leases, which continue to remain in force. The powers conferred by Sub-section (3) can, therefore, be exercised in respect of all such leases, including those, the periods of which have not expired. The notification issued by Government also applies to all such leases. Sub-section (3) authorises Government to provide for the duration of such leases. Government is, therefore, specifically vested with the power to alter or modify the duration of a lease, which was agreed upon between the parties. It can, therefore, prescribe the conditions on which such leases may be terminated. This conclusion is also supported by the fact that power is given to Government to lay down conditions in respect of any matter referred to in the sections mentioned in Sub-section (1) of Section 43A. One of the sections mentioned in Sub-section (1) of Section 43A is Section 31 and one of the matters referred to in Section 31 is the right of a landlord to terminate the tenancy for personal cultivation, even though the period of the lease has not expired. Sub-section (3) of Section 43A must, therefore, be held to empower Government to prescribe conditions, on which contractual leases held for growing sugarcane, which have not yet come to an end, may be terminated. We are consequently of the opinion that the notification issued by the State Government applies to a lease, the period of which, as fixed by the terms of the contract between the parties, has not yet expired. We, therefore, do not accept Mr. Gupte 's argument that the application made by the opponents to the Matnlatdar for possession of the lands was not maintainable.

6. [The rest of the judgment is not material to this report.]


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