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Sakinabibi Rajabali Bohri Vs. Gopal Hiru Gharat - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case Number Special Civil Application No. 1565 of 1974
Judge
Reported in(1979)81BOMLR519; 1979MhLJ302
AppellantSakinabibi Rajabali Bohri
RespondentGopal Hiru Gharat
DispositionPetition dismissed
Excerpt:
.....8, 1974, passed by the full bench of the maharashtra revenue tribunal, bombay. the agricultural lands tribunal found that the conditions of section 31 and section 31a of the act with reference to the purpose and to the extent of area are satisfied by the landlady and accordingly the order for restoration of the land was passed in favour of the petitioner on april 26, 1972. 3. the former tenants-respondents nos. it was urged by the learned counsel that if the land is to be surrendered to the former landlord subject to the provisions of section 15 then section 15 (2) of the act clearly provides that a landlord shall be entitled to retain the land for the like purpose and to the like extent and in so far as the conditions are applicable subject to the like conditions as provided under..........under the provisions of section 32g(3) of the act. in pursuance of this order, the agricultural land tribunal directed that proceedings should be commenced under the provisions of section 32p of the act for disposal of land not purchased by the respondents-tenants.2. the additional tahsildar and agricultural lands tribunal panvel, commenced proceedings under section 32p of the act and directed that the land be restored to the petitioner under the provisions of section 32p(2)(6) read with section 15(2) of the act. the agricultural lands tribunal found that the conditions of section 31 and section 31a of the act with reference to the purpose and to the extent of area are satisfied by the landlady and accordingly the order for restoration of the land was passed in favour of the.....
Judgment:

Pendse, J.

1. A short but interesting question falls for determination in this petition, under Article 227 of the Constitution of India, filed to challenge the correctness of order dated January 8, 1974, passed by the Full Bench of the Maharashtra Revenue Tribunal, Bombay. It is necessary to set out a few facts to appreciate the rival contentions of the parties to these proceedings. The petitioner is owner of an agricultural piece of land bearing Gat No. 114/1 admeasuring 4 acres 24 gunthas and situated at village Usrali Khurd in Panvel taluka of Kolaba district. The land was leased to respondent Nos. 1 and 2 and was under their cultivation on April 1, 1957. Respondents Nos. 1 and 2 were entitled to purchase the land on the tillers' day and accordingly the Agricultural Lands Tribunal, Panvel, commenced proceedings under the provisions of Section 32G of the Bombay Tenancy and Agricultural Lands Act 1948 (hereinafter referred to as the Act) . Respondents Nos. 1 and 2 declined to purchase the suit land and thereupon the Agricultural Lands Tribunal passed an order on August 17, 1966, declaring the purchase ineffective. The order was passed toy the Agricultural Tribunal under the provisions of Section 32G(3) of the Act. In pursuance of this order, the Agricultural Land Tribunal directed that proceedings should be commenced under the provisions of Section 32P of the Act for disposal of land not purchased by the respondents-tenants.

2. The Additional Tahsildar and Agricultural Lands Tribunal Panvel, commenced proceedings under Section 32P of the Act and directed that the land be restored to the petitioner under the provisions of Section 32P(2)(6) read with Section 15(2) of the Act. The Agricultural Lands Tribunal found that the conditions of Section 31 and Section 31A of the Act with reference to the purpose and to the extent of area are satisfied by the landlady and accordingly the order for restoration of the land was passed in favour of the petitioner on April 26, 1972.

3. The former tenants-respondents Nos. 1 and 2 carried an appeal before the Assistant Collector Panvel and the Assistant Collector Panvel set aside the order passed by the Agricultural Lands Tribunal and remanded the proceedings for fresh disposal. The Assistant Collector held that as the order of restoration is passed under Section 32P(2)(6) of the Act, it is necessary for the petitioner to establish each and every condition mentioned in Sections 31 and 31A of the Act inclusive of the condition that the income by the cultivation of the land is the principal source of income for the maintenance. The order passed by the Assistant Collector on November 13, 1972, was challenged by the petitioner before the Revenue Tribunal in a revisional application. The Tribunal felt that the view taken by the Tribunal on an earlier occasion requires reconsideration and therefore a larger Bench was constituted. The Full Bench of the Tribunal passed an order on January 8, 1974, and upheld the view taken by the Assistant Collector and the order of the Tribunal is under challenge in this petition under Article 227 of the Constitution of India.

4. Mr. Limaye, the learned counsel appearing in support of the petition contended that the view taken by the Assistant Collector and the Revenue Tribunal is entirely erroneous and the provisions of the Tenancy Act were not properly appreciated. The learned counsel contended that the provision of Section 32P(2)(6) does provide that the land should be surrendered to the former landlord subject to the provisions of Section 15, but it only means that the conditions regarding the purpose as provided under Section 31 and the extent as provided under Section 31A would be applicable.

5. Mr. Lovekar the learned counsel appearing on behalf 6f the State and Mr. Pandit appearing on behalf of respondent Nos. 1 and 2 supported the view taken by the Revenue Tribunal. It was urged by the learned counsel that if the land is to be surrendered to the former landlord subject to the provisions of Section 15 then Section 15 (2) of the Act clearly provides that a landlord shall be entitled to retain the land for the like purpose and to the like extent and in so far as the conditions are applicable subject to the like conditions as provided under Section 31 and 31A of the Act. Mr. Lovekar contended that Sub-section (2) of Section 15 clearly implies that every part of Section 31 and 31A would be attracted and the former landlord must satisfy the conditions embodied in those provisions.

6. In view of these rival contentions it is necessary to consider the scheme of the Act which enables the former landlord to recover possession after the purchase is declared ineffective. Before making reference to the provisions of the Act, it is necessary to remember that the Act was enacted to amend the law governing relations of landlord and tenants of agricultural lands. Section 2 Sub-section (18) defines 'tenant' as a person who holds land on lease and further provides that the word 'landlord' shall be construed accordingly. The preamble to the Act clearly states that the provisions are made for determining the rights of landlord and tenants 6f agricultural lands. Section 4B of the Act provides that no tenancy of land shall be terminated merely on the ground that the period fixed by agreement or usage for its duration has expired. Section 29 of the Act provides for the procedure of taking possession of the agricultural lands, either by the landlord or by the tenant when he has been wrongly dispossessed. Sub-section (2) of Section 29 provides that no landlord shall obtain possession of any land except under the order of Mamlatdar. Chapter III of the Act provides for termination of tenancy for personal cultivation or non-agricultural use. Section 31 of the Act enables the landlord to terminate the tenancy if the landlord bona fide requires the land for personal cultivation or for any non-agricultural purpose. Section 31A of the Act requires landlord to satisfy the conditions mentioned in that section before resumption of land under Section 31 of the Act. The first two conditions restrict the right of landlord to resume the land only to the extent of ceiling area. Section 31A(c) of the Act provides that the income by the cultivation of the land of which landlord is seeking possession is the principal source of income for his maintenance. The next condition is that the land leased stands in the record of rights or in any public record or similar revenue record on January 1, 1952 and thereafter during the period between the said date and the appointed day in the name of the landlord himself, or of any of his ancestors, or if the landlord is a member of a joint family, in the name of a member of such family. The last condition under Section 31A of the Act is that if more tenancies than one are held under the same landlord, then the landlord shall be competent to terminate only the tenancy or tenancies which are shortest in point of duration.

7. Section 32 of the Act provides that on April 1, 1957 every tenant shall be deemed to have purchased land from his landlord free of any encumberances. Certain exceptions are provided in the section with which I am not concerned in these proceedings. Turning to Section 32G of the Act the duty is cast upon the Agricultural Lands Tribunal to hold the proceedings to determine the purchase price as soon as possible after the tillers' day. The purchase price is to be determined after notice to the landlord, tenant and any other person interested therein. Sub-section (3) of Section 32G of the Act provides that where any tenant fails to appear or makes a statement that he is not willing to purchase the land, the Tribunal shall by an order in writing declare that such tenant is not willing to purchase the land and that the purchase is ineffective. The consequence of such an order is extinguishment of relationship of landlord and tenant in respect of the leased land, but mere extinguishment of relationship of landlord and tenant is not sufficient to enable the former landlord to get back the possession of the land. The Agricultural Lands Tribunal is required to hold an inquiry, where the purchase of any land by tenant under Section 32 becomes ineffective, under Section 32P of the Act and direct that the land should be resumed and disposed of in a manner provided in Sub-section (2) of Section 32P of the Act. Sub-section (2) of Section 32P is as follows : - '(2) Such direction shall provide-

(a) that the (former tenant) be summarily evicted;

(b) that the land shall, subject to the provisions of section 15, be surrendered to the (former landlord);

(c) that if the entire land or any portion thereof cannot be surrendered in accordance with the provisions of section 15, the entire land or such portion thereof, as the case may be, notwithstanding that it is a fragment, shall be, disposed of by sale to any person in the following order of priority (hereinafter called 'the priority list'): -

(i) a co-operative farming society, the members of which are agricultural labourers, landless persons or small holder or a combination of such persons;

(ii) agricultural labourers;

(iii) landless persons;

(iv) small holders;

(v) a co-operative farming society of agriculturists who hold either as owner or tenant, or partly as owner and partly as tenant, land less in area than an economic holding and who are artisans;

(vi) an agriculturist who holds either as owner or tenant or partly as owner and partly as tenant, land less in area than an economic holding and who is an artisan;

(vii) any other co-operative farming society;

(viii) any agriculturist who holds either as owner or tenant or partly as owner and partly as tenant land larger in area than an economic holding but less in area than the ceiling area;

(ix) any person, not being an agriculturist, who intends to take to the profession of agriculture:

Sub-section (4) of Section 32P provides that in case where any land or portion thereof cannot be surrendered in favour of the landlord and where such land or portion is offered for sale under Sub-section (2) but no person comes forward to purchase such land or portion as the case may be, then the same shall vest in the State Government. Sub-section (5) of Section 32P of the Act requires the State Government to pay the purchase price to the owner of the land.

8. The provisions of Section 32P of the Act clearly indicate that after the purchase is declared as ineffective, the relationship between the former tenant and the former landlord comes to an end and the former tenant is liable to be summarily evicted. It is necessary to note that even after the former tenant is summarily evicted, the landlord is not entitled to the possession of his land as a matter of right. Provisions of Section 32P also makes the position clear that the title or ownership of the leased land continues in favour of the landlord and the title is divested only in cases where the former landlord is not able to resume the land nor the land is being sold to person mentioned in the priority list.

9. With this backdrop it is necessary to consider the restrictions imposed by the provisions of Section 15 on the right of the former landlord to resume the land under Section 32P(2)(b) of the Act. Section 15 of the Act runs as follows :

15.(1) A tenant may terminate the tenancy in respect of any land at any time by surrendering his interest therein in favour of the landlord:

Provided that such surrender shall be in writing, and verified before the Mamlatdar in the prescribed manner.(2) Where a tenant surrenders his tenancy, the landlord shall be entitled to retain the land so surrendered for the like purposes, and to the like extent, and in so far as the conditions are applicable subject to the like conditions, as are provided in sections 31 and 31A for the termination of tenancies.

(2A) The Mamlatdar shall in respect of the surrender verified under Sub-section (7), hold an inquiry and decide whether the landlord is entitled under Sub-section (2) to retain the whole or any portion of the land so surrendered, and specify the extent and particulars in that behalf.

(3) The land or any portion thereof which the landlord is not entitled to retain under Sub-section (2), shall be liable to be disposed of in the manner provided under clause (c) of Sub-section (2) of section 32P.

Turning to Section 15, Sub-section (2) the provisions clearly indicate that the landlord is entitled to retain the land so surrendered for the like purpose and to the like extent and in so far as the conditions are applicable, subject to the like condition as provided in Section 31 and Section 31A of the Act. Now the purpose is mentioned in the provisions of Section 31 of the Act. The purpose for which the land can be resumed by the landlord is either to cultivate personally or to use for the non-agricultural purpose. The extent of land which the landlord can resume is not mentioned in Section 31 but Section 31A of the Act. Section 31A(a) of the Act provides that landlord can resume only that much area of the land leased which would not exceed the ceiling area as provided by the Act. Section 15(2) of the Act enables the landlord to resume the land for the purpose of either cultivating personally or for the non-agricultural purpose and to the extent of a ceiling area. These are the only two restrictions on the right of the landlord to resume the land under Section 15 (2) of the Act. It is not possible to read any more restriction in Section 15(2) of the Act and, in my judgment, the other requirement of Section 31 or Section 31A which imposes several restrictions on the right of the landlord to resume the leased land are not applicable while considering the provisions of Section 15(2) of the Act. As stated earlier the other restrictions mentioned under Section 31A of the Act are that the cultivation of the land which landlord desires to resume should be a principal source of income for his maintenance and the leased land stands in the record of rights in the name of landlord or his ancestors on January 1, 1952 and thereafter till the appointed day and right of resumption can be exercised only in respect of tenancies which are shortest in duration in cases where more tenancies than one are held under the same landlord. The right of the former landlord to resume the land under Section 32P read with Section 15(2) of the Act is subject to the satisfaction of only one condition under Section 31A and that is the extent of area to be resumed. In my judgment the other restrictions in Section 31A would not be applicable to the cases of former landlord covered by Section 15(2) of the Act.

10. The Revenue Tribunal felt that the words 'in so far as the conditions are applicable', accuring in Section 15(2) are almost equivalent in meaning to the words 'mutatis mutandis', and therefore each and every condition mentioned in Section 31A of the Act must be complied with before a former landlord can resume the land under Section 32P read with Section 15(2) of the Act. It is not possible to accept this view. The words, 'in so far as the conditions are applicable', clearly imply that the conditions are applicable with the necessary changes. The right of resumption is conferred upon the former landlord and that right is subject to provisions of Section 15 of the Act, but it is not in dispute that only Sub-section (2) of Section 15 is applicable. The right of the former landlord to resume the land is consequent upon refusal of the former tenant to purchase and cannot be circumscribed by each and every condition under Section 31A of the Act.

11. The observations of the Revenue Tribunal that the construction suggested by the counsel for the petitioner would give advantage to a landlord who claims possession under Section 32P over one who seeks possession under Section 31 of the Act, are not correct. The Tribunal overlooked that the position of a landlord filing an application under Section 31 and one claiming possession under Section 32P(2)(b) of the Act stands on completely different footing. The landlord who files an application for restoration of possession under Section 31 seeks resumption of land from a tenant and where the relationship of landlord and tenant is still subsisting. Cases where such a tenant is to be dispossessed stand on a far different footing than cases where a tenant refuses to purchase the land and consequently is dispossessed and the land is to be resumed to the former landlord. In the latter case the relationship of landlord and tenant has come to an end and restoration of possession is not sought against the tenant. The strict compliance of all conditions under Section 31A of the Act by the former landlord is not expected by the Legislature. The Legislature was fully conscious that the tenancy legislation was enacted to protect the interest of tenants who are willing to cultivate the land. If the tenant is unwilling to purchase and is required to be evicted, then the legislature never thought that the land should not be resumed to the landlord. In fact the provisions of Section 32P clearly indicate that the claim of the landlord was given precedence over the claim of any other person. The tenancy legislation itself creates an inroad upon the general rights of a person to hold the property. The tenancy legislation is undoubtedly for the benefit of tenants, but where tenants are unwilling to purchase and are consequently required to be summarily evicted, then it would not be proper to put such construction on the section and create more impediments in the way of former landlord to resume the land. In cases where the tenant is not willing to purchase the leased land and the relationship of landlord and tenant comes to an end, then the only restriction on the landlord to resume the land is that he would use the land either for personal cultivation or for non-agricultural use and would resume only to the extent of the ceiling area. The two conditions are required to advance the avowed object of the tenancy legislation that one who tills should be the owner and holding should be equitably distributed.

12. In this view of the matter, in my judgement, the view taken by the Revenue Tribunal and the Assistant Collector Panvel is clearly erroneous and the order of the Assistant Collector remanding the proceedings to find out whether each and every condition of Section 31A of the Act is satisfied or otherwise, deserves to be set aside.

13. In the result, the petition succeeds and the rule is made absolute and the order passed by the Assistant Collector Panvel on November 13, 1972 and by the Revenue Tribunal on January 8, 1974 are quashed and the order passed by the Additional Tahsildar and the Agricultural Lands Tribunal Panvel on April 26, 1972, is restored. In the circumstances of the case, there will be no order as to costs.


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