Skip to content


Nimbibai Rajibai Onkar Mali Vs. Ragho Parashram Mali - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 1718 of 1961
Judge
Reported in(1962)64BOMLR798; 1963MhLJ125
AppellantNimbibai Rajibai Onkar Mali
RespondentRagho Parashram Mali
DispositionApplication rejected
Excerpt:
.....because he would like to use the land for a non-agricultural purpose.;the question whether the landlord requires the land bona fide is a question of fact, which must be decided in each case on the facts and circumstances of that case. ;madev hari marathe v. chaitram sakharam patil (1952) special civil application no. 1752, of 1952, decided by chagla c.j. dixit j., on november 25, 1952 (unrep.), agreed with.;rekhabchand doogar v. j.r. d'cruz (1922) 86 c. w.n. 499, basant lal v. p.c. chakravarty (1949) 54 c.w.n. 20, naresh v. kanai lal [1952] a.i.r. cal. 852, at p. 853, and re newhill comp. purchase order [1938] 2 all e.r. 163, referred to. - - he cannot get possession of the land merely because he would like to use the land for a non-agricultural purpose. made the following..........for satisfying the needs of his family. that is only one compelling necessity which might make the landlord require the land. there are several other conceivable compelling necessities which may equally make the landlord require the land for personal cultivation.6. the position, therefore, is that before a landlord can be awarded possession of the land on the ground that he requires it bona fide for a non-agricultural purpose, he must prove some need or necessity, on account of which it is necessary for him to have the land restored to him. the need of the landlord to have more or larger income is not the only ground, on account of which he can be said; to require the land. there may also be other cases, in which a landlord may find it necessary to obtain possession of the land. the.....
Judgment:

H.K. Chainani, C.J.

1. The petitioner landlady had made an application to the Mamlatdar under Section 29 read with Section 43D of the Bombay Tenancy and Agricultural Lands Act for obtaining possession of the land held by opponent No. 1 as a tenant, on the ground that she bona fide required the land for a non-agricultural purpose. Section 43D gives a right to the landlord to terminate the tenancy of a tenant on the ground that he requires the land bona fide for any non-agricultural purpose. The petitioner's application has been dismissed on the ground that she had not proved any necessity or that it was necessary for her to augment her income by using the land for a non-agricultural purpose.

2. The principal question, which has been argued before us, is whether it is essential for a landlord to prove necessity before he can obtain possession of the land from his tenant on the ground that he wants to use it for a non-agricultural purpose. There appears to be some confusion on this point and it is, therefore, necessary to clarify and state what the correct position in law is. The word used in the section is 'requires' and not 'desires'. The word 'requires' imports an element of necessity. A mere desire or wish of the landlord to put the land to a non-agricultural use is, therefore, not sufficient. He cannot get possession of the land merely because he would like to use the land for a non-agricultural purpose. He must prove some need or necessity for taking back possession of the land. At the same time it must not be an absolute need or absolute requirement in the sense that without it he will starve or will otherwise be put to considerable hardship.

3. This view has been taken by the Calcutta High Court in cases arising under the Bengal Bent Control Acts. In Rekhabchand Doogar v. J.R. D'Cruz (1922) 26 C.W.N. 499, Buckland J. observed:-.The word in the Act is not 'desire' but 'require'. This in my opinion involves something more than a mere wish and it involves an element of need, to some extent at least.

These observations were relied upon by Mukharji J. in Basant Lal v. P.C. Chakravarty (1949) 54 C.W.N. 20 he observed:--.Mere wish or convenience or whim or fancy of the landlord will not in my view be enough to show that the landlord 'requires' the premises. The landlord must show certain circumstances or facts proving some need or some necessity for the landlord.

In Naresh v. Kanai Lal : AIR1952Cal852 , Chunder J. referred to the above observations of Buckland J. in Rekhabchand Doogar v. J.R. D'Cruz and observed that even in the case of a desire there is some element of need, that the real distinction between 'desire' and 'require' lies in the insistence of that need and that there is an element of 'must have' in the case of 'require' which is not present in the case of mere 'desire'. In Re Newhill Comp. Purchase Order [1938] 2 All E.R. 163 Du Parcq J. made the following observations in regard to the word 'required' contained in the expression 'required for the amenity or convenience of the house' used in Section 75 of the Housing Act, 1936:. 'Required', I think, in this section does not mean merely that the occupiers of the house would like to have it, or that they would miss it if they lost it, or that anyone proposing to buy the house would think less of the house without it than he would if it was preserved to it. 'Required' means, I suppose, that without it there will be such a substantial deprivation of amenities or convenience that a real injury will be done to the property owner, and a question like that is obviously a question of fact.

4. In order to obtain possession of the land, it is, therefore, necessary for the landlord to prove some need or necessity. The necessity or requirement would arise when the landlord is in need of additional income for maintaining himself or his family or for educating his children or for some other family purpose. The necessity need not, however, always be a financial one. There may also be other reasons on account of which a landlord may require the land. For instance, if the landlord has no house and he desires to build a house, for his residence on the land, he can be said to require the land. Another illustration is when the landlord wants to open a factory and the only land, which is suitable and available, is the land held by his tenant. In such a case also it may be said that he requires the land. Other cases can also be conceived, in which a landlord may need the land for reasons other than the necessity of increasing his income.

5. The view, which we are taking, is in accordance with that taken in Madev Hari Marathe v. Chaitram Sakharam Patil (1952) S C A 1752, decided by Chagla C.J. and Dixit J., on November 25, 1952 (Unrep.). In that case, after making an observation in the first part of the judgment that the law requires that the landlord should not merely want the land for cultivating personally, but the want must be of such a nature that it should constitute a requirement or that, in other words, there must be an element of necessity in the desire of the landlord to want the land to cultivate personally, Chagla C.J. in the latter part of the judgment observed as follows:

When we come to the Deputy Collector, he seems to have taken into consideration the fact that the landlord had 40 to 42 acres of land, that his family consisted of five adults and two children, and that the soil of the land cultivated by him was rich and sufficient to meet his requirement. He further took into consideration the fact that the land that the tenant had, which the landlord wanted to dispossess him of was only 3 acres and 28 gunthas. Taking these circumstances into consideration he held that the requirement of the landlord was not genuine. Here again, the approach of the Deputy Collector does not seem to be correct. Even though the landlord may have 40 or 42 acres of land, even though his family may be small, even though the land may yield produce which may be sufficient for the needs of the family, still within the meaning of Section 34 the landlord may require additional land bona fide for his personal cultivation. For example, he may want more money to be spent on the education or maintenance of his children or his family or his dependants and he may want to cultivate the land himself and produce more out of it than by taking rent from the tenant. The law does not require that the landlord is only entitled to get possession from his tenant for personal cultivation provided he satisfies the Court that he needs more produce from the land for satisfying the needs of his family. That is only one compelling necessity which might make the landlord require the land. There are several other conceivable compelling necessities which may equally make the landlord require the land for personal cultivation.

6. The position, therefore, is that before a landlord can be awarded possession of the land on the ground that he requires it bona fide for a non-agricultural purpose, he must prove some need or necessity, on account of which it is necessary for him to have the land restored to him. The need of the landlord to have more or larger income is not the only ground, on account of which he can be said; to require the land. There may also be other cases, in which a landlord may find it necessary to obtain possession of the land. The question whether the landlord requires the land bona fide is a question of fact, which must be decided in each case on the facts and circumstances of that case.

7. So far as the present case is concerned, the landlady has stated that she wants to form plots out of the land and then sell them at a handsome price. She has not made out any case of necessity. She has not shown that she is in need of any additional income or that it is otherwise necessary for her to obtain possession of the land for using it for a non-agricultural purpose. Her application was, therefore, rightly rejected.

8. Rule discharged. No order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //