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Sk. HussaIn Gulab Vs. the Maharashtra Revenue Tribunal - Court Judgment

LegalCrystal Citation
SubjectTenancy;Property
CourtMumbai High Court
Decided On
Case Number Special Civil Application No. 83 of 1966
Judge
Reported in(1968)70BOMLR435
AppellantSk. HussaIn Gulab
RespondentThe Maharashtra Revenue Tribunal
DispositionPetition dismissed
Excerpt:
.....lands (vidarbha region and kutch area) act (xcix of 1958), section 2(32)--madhya pradesh land revenue code, 1954 (11 of 1955), sections 2(2), 166--central provinces and berar general clauses act (1 of 1914), section 7--person to whom land leased for merely cutting grass or grazing cattle whether a tenant under section 2(32) of act xcix of 1958.;a person to whom land is leased for merely cutting grass or grazing cattle thereon cannot be said to be a lessee who is entitled to hold land within the meaning of section 3(2) of the berar regulation of agricultural leases act, 1951; he would, therefore, not be a protected lessee under section 8(3) of the act, and hence cannot be a tenant under section 2(32) of the bombay tenancy and agricultural lands (vidarbha region & kutch area)..........used in this act but not defined herein, shall have the meanings assigned to them in the berar land revenue code, 1928. the berar land revenue code has been subsequently repealed by the m. p. land revenue code. it may now be necessary to read the expression 'm. p. land revenue code' in place of the 'berar land revenue code, 1928.' this would be the effect of section 7 of the c. p. and berar general clauses act. that section says that where any madhya pradesh act repeals and re-enacts, with or without modification, any provisions of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted. as a result of this section, wherever.....
Judgment:

Deshmukh, J.

1. This is a writ petition by the defendant in a civil suit whose plea of tenancy has been negatived by the three Revenue Tribunals.

2. The land in dispute is survey No. 3/1, measuring 5 acres 19 gunthas, of mouza Kamunja, taluq and district Amravati. Respondent No. 4 is admittedly the owner of that land. The petitioner claims to be the tenant of that land. Respondent No. 4 filed a civil suit for recovery of possession, on the ground that the land in question was let out to the petitioner for the mere purpose of cutting grass for a limited period of one year. Such contract was repeated. However, at the end of the period, whatever rights the petitioner had, came to an end and the owner was entitled to recover possession. In such a suit, the petitioner filed a written statement in which he pleaded tenancy rights. An issue about the tenancy of the petitioner was framed by the Civil Court and referred to the Revenue Courts.

3. All the three Revenue Courts concurrently held that the mere contract for cutting grass, though it extends for the whole year, does not make the petitioner a tenant of the land. Being aggrieved by this finding, this petition has been filed.

4. This petition raises an interesting point of law and it appears that there is no prior judgment of this Court concluding this point. Mr. Talukdar, learned counsel for the petitioner, claims that the petitioner becomes a tenant under the new Tenancy Act by reason of his status as a protected lessee under the Berar Regulation of Agricultural Leases Act. The definition of 'tenant' in the present Act is to be found at Clause (32) of Section 2. 'Tenant' has been defined to mean a person who holds land on lease and includes a person who is deemed to be a tenant under the provisions of Sections 6, 7 or 8 and a person who is a protected lessee or occupancy tenant. The reference to the expression 'protected lessee' in the definition of the new Tenancy Act is undoubtedly a reference to the protected lessee conceived of by the Berar Regulation of Agricultural Leases Act of 1951. All the three Revenue Courts have rejected the claim of the petitioner by reference to the explanation to Section 6. By looking to the receipt and the admission of the owner, it is found by the Revenue Courts that the petitioner happens to be in lawful possession of the land. Will the mere lawful cultivation of the land make him a tenant Section 6 of the present Tenancy Act creates a deemed tenancy where a person is lawfully cultivating any land belonging to another person. What is meant by 'land' is defined in Clause (17) of Section 2 and what is meant by 'to cultivate' is also defined in Clause (11) of Section 2 of the present Tenancy Act. 'Land' has been defined to mean 'land which is used or capable of being used for agricultural purposes' and includes the sites of farm buildings appurtenant to such land etc. The entire definition need not be noted because it is obvious that a land, which grows grass naturally, is capable of being brought under cultivation. What' is meant by 'to cultivate' according to Clause (11) is 'to carry on any agricultural operation'. What is meant by 'agricultural operation' can be seen from the definition of 'agriculture' in Clause (1) of Section 2. It is an inclusive definition which includes in it, among others, the use by an agriculturist of the land held by him or a part thereof for grazing of his own cattle. According to this definition, an agricultural operation would mean merely grazing one's own cattle upon the land held by the tenant. If this is so, then the person doing that, would be deemed to be cultivating the land. A person merely feeding his cattle being a person in lawful cultivation of the land, would be a deemed tenant under Section 6.

5. All the three Revenue Courts have proceeded on this footing and then referred to the explanation which excludes certain types of persons from the definition of 'deemed tenancy'. The explanation says that a person to whom only the right to cut grass or to graze cattle or to grow singhara (Trapa bipinosa) or to propagate or collect lac is granted in any land shall not be deemed to be a tenant for the purposes of this Act. In view of this explanation, all the Revenue Courts have held that the petitioner is a person, who had merely in his favour a right to cut grass or to graze cattle. He is. therefore, excluded from the deemed tenancy right as provided by this Act and the right of the petitioner has been negatived. Even Mr. Talukdar does not want to quarrel with that reasoning in view of the case which the petitioner wants to make out. His main argument is that the petitioner does not fall within the deemed tenancy of Section 6. He falls within the substantive definition of a tenant under Clause (32) of Section 2. For that purpose, the persons, who are included in the definition of tenant, are enumerated in Clauses (a) and (a) thereof. Clause (b) refers to a protected lessee among others. If, therefore, the petitioner is a protected lessee under the Leases Act, he automatically becomes a tenant under the substantive definition of the new Tenancy Act. This argument, he says, has not been considered by the Courts below and this is the legal approach which should be examined by this Court.

6. Before I discuss the various provisions that are relevant for deciding this issue, let me refer to exh. A-1 in its original. It is a receipt in Marathi passed by respondent No. 4 to the petitioner. It is a receipt for having received Rs. 61 on August 12, 1956, in payment of lease money for the year 1956-57. The words used in Marathi are ' Swamitwa Baddal.'' This would clearly mean lease money. However, there is a specific recital in this receipt that the land survey No. 3 has been handed over to the petitioner for the year 1956-57 for the specific purpose of grazing cattle. The contract by which a definite relationship has been created between the petitioner and respondent No. 4 in respect of survey No. 3 is incorporated in this important document exh. A-1. For the subsequent years, the parties have proceeded on the same footing, though the amount may vary. This is, therefore, the basic document which must determine the nature of the contract. This would be taken as the basis for inferring the rights that the petitioner is likely to get as an effect of the various statutes. I am inclined to think that this receipt means nothing less and nothing more, than the grant of a mere right to graze cattle on the grass or herbs that may naturally grow on the land. There is no evidence in this case that the petitioner actually undertook any cultivation and reference to the few gunthas of sowing has been explained by the Revenue Courts as being ah unauthorised attempt of making use of the land which was not given to the petitioner for that purpose. It is not an actual use or misuse that can. help the petitioner in creating rights, and it is the contract and the purpose for which he took the land that must be taken as decisive for our purpose. I, therefore, agree with the three Revenue Tribunals that the purpose for which the right in favour of the petitioner was created, was to graze cattle on the naturally growing grass on the land.

7. It would now be appropriate to go to the Leases Act for the purpose of determining who is a protected lessee. 'Protected lessee' has been defined in Clause (h) of Section 2 of the Leases Act, 'Protected lessee' means a protected lessee within the meaning of Section 3. Section 3 has several sub-sections, but the relevant sub-section for the purpose of the petitioner is Sub-section (2), This subsection is as follows:

3. (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.

Sub-section (3) says that 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 for eight years or more under the provisions of Sub-section (1) or Sub-section (2) shall be deemed to be a protected lessee. If it could be said that the petitioner had one year's lease in 1956-57, it would automatically be a lease for eight years under the provisions of Sub-section (2) of Section 3, and the petitioner would become a protected lessee as a result of the provisions of Sub-section (5) of Section 3 of the Leases Act. The only question, therefore, is whether the petitioner whose only right is to graze cattle in the naturally growing grass of the land could be said to be a lessee who is entitled to hold land.

8. Mr. Talukdar then took me to the definition of land which is to be found at Clause (c) of Section 2 of the Leases Act. 'Land' has been defined as follows:

20.(c) 'Land' means land which is let or occupied for agricultural purposes or purposes subservient thereto and includes the site of buildings appurtenant to such land but does not include any land used for horticulture or orchard-groves.

Mr. Talukdar argues that survey No. 3 which is in possession of the petitioner answers the description of land given above. Be says that this land is occupied and is let out to the petitioner for a purpose which may not be agricultural as such, but which is certainly subservient to the agricultural purpose. The word 'agriculture' has not been defined in the Leases Act, as has been defined in the new Tenancy Act. However, Clause (k) of Section 2 of the Leases Act lays down that words and expressions used in this Act but not defined herein, shall have the meanings assigned to them in the Berar Land Revenue Code, 1928. The Berar Land Revenue Code has been subsequently repealed by the M. P. Land Revenue Code. It may now be necessary to read the expression 'M. P. Land Revenue Code' in place of the 'Berar Land Revenue Code, 1928.' This would be the effect of Section 7 of the C. P. and Berar General Clauses Act. That section says that where any Madhya Pradesh Act repeals and re-enacts, with or without modification, any provisions of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted. As a result of this section, wherever expressions not defined by the General Clauses Act are found defined in the M.P. Land Revenue Code, that definition will have to be accepted for the purpose of interpreting the provisions of the Leases Act. 'Agriculture' has been defined by the M. P. Land Revenue Code by Clause (2) of Section 2. It is an inclusive definition which includes the raising of annual or periodical crops and garden produce, horticulture, the planting and upkeep of orchards and the reserving of land for fodder, grazing or thatching grass. Prima facie, therefore, the word 'agriculture' would include reserving land for fodder, grazing or thatching grass.

9. Under Clause (c) of Section 2 of the Leases Act, as 'land' is defined to mean a land which is let or occupied for agricultural purposes, and agricultural purposes under the M. P. Land Revenue Code include the reservation of the land for growing grass or for grazing. Merely grazing the cattle may amount to agriculture and, therefore, the petitioner is entitled to say that there is land in his possession, as denned by the Leases Act. However, the definition under Sub-section (2) of Section 3 is not complete by merely having land in possession for agricultural use. One has to hold that land. What is meant by 'holding the land' has again to be seen from the provisions of Section 166 of the M. P. Land Revenue Code. When that is done, the total concept of holding land by way of a lease for the agricultural purpose would be complete and clear. When I go to Section 166 of the M. P. Land Revenue Code which purports to define what is an 'ordinary tenant', there is an explanation which says that for the purpose of this section, certain types of persons, who may be otherwise tenants, are not to be included in the definition of 'ordinary tenant'. Clause (iii) of the explanation says that any person to whom only the right to cut grass or to graze cattle or to grow singhara (Trapa bipinosa) or to propagate or collect lac is granted in any land '' shall not be deemed to hold such land' for agricultural purposes. It would now appear that the general provisions relating to agriculture include possession of land for merely grazing cattle. However when the other provisions relating to the definition of tenancy are taken into account, it is obvious that a person, who has merely the right to cut grass or to graze cattle, is not deemed to be 'holding land' for agricultural purposes. As a cumulative effect of these provisions, I am inclined to think that a person, who has merely a right to cut grass or to graze cattle, is not a person who would be deemed to hold land for agricultural purpose. If, therefore, the present petitioner, even under the Leases Act is not 'holding the land for agricultural purpose,' he does not fit in with the definition of Sub-section (2) of Section 3 and, as such, he is not a protected lessee. If the present petitioner is not a protected lessee at all under the Leases Act, he cannot be a tenant under the substantive definition in Clause (32) of Section 2 of the present Tenancy Act.

10. In this view of the matter, the petition fails and is dismissed with costs.


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