1. This is an application under Article 227 of the Constitution of India for setting aside the order passed by the Revenue Tribunal directing the restoration of possession of survey No. 26 to the tenant.
2. The material facts can be briefly stated as follows :-
Survey No. 26, measuring 23 acres and 37 gunthas, and situated at mouza Pimpri, originally belonged to one Keshao Shamrao Bhende. This land was given on lease to Baliraan Panduji Jadhao as a tenant. Keshao served a notice on November 23, 1952, terminating the tenancy of Baliram on the ground that he required the land for his personal cultivation. Baliram did not make any application under Section 9(3) of the Berar Regulation of Agricultural Leases Act, challenging that the notice was not bona fide or even making a prayer under Clause (b) of Sub-section (3) that some other land may be given to him in lieu of the land mentioned in the notice. It appears that Baliram handed over possession of the land to Keshao by the middle of April 1953. It further appears that prior to the surrender of possession Keshao had made an application to the Sub-Divisional Officer on February 13, 1953, under Section 8(1)(g) of the said Act for an order for the termination of Baliram's tenancy. The Sub-Divisional Officer passed an order on June 16, 1954, terminating the tenancy to the extent of 22 acres and 26 gunthas out of the total area of 23 acres and 37 gunthas. Keshao cultivated the land personally for the years 1953-54 and 1954-55. On January 16, 1955, he passed two sale deeds, one in favour of Bhaurao (petitioner No. 2) in regard to 8 acres, and another in favour of petitioners Nos. 3 to 7 in regard to 13 acres and 7 gunthas. Thereafter on May 3, 1956, Baliram made an application under Section 9(6) of the Act requesting for the restoration of the land to him on the ground that the landholder failed to cultivate the land personally for two years as required under the rules framed under the said Act.
3. The Sub-Divisional Officer came to the conclusion that the landholder had not cultivated the land for the requisite period of two years and, therefore, was liable to be vacated from the land. Consequently he passed an order restoring the possession to the tenant Baliram. Keshao, the landholder, then went up in appeal to the Deputy Commissioner. The Additional Deputy Commissioner held that the landholder had cultivated the land for two years i.e. for the years 1953-54 and 1954-55 before he entered into the transaction of sale. Consequently he passed an order dismissing the original application made by Baliram. Bali-ram then went to the Revenue Tribunal. The Revenue Tribunal took the view that in view of the provisions of Section 8(1)(g) there could not be a valid termination of the tenancy and, therefore, although the landholder might have secured possession prior to the valid termination of the lease and although he may have cultivated the land for that year, still that would not be a cultivation after the termination of the lease and, therefore, that cultivation would not be available to the landholder, Consequently, it held that there was a contravention of the provisions of Section 9(6) of the Act read with Rule No. 9. He, therefore, directed that the land should be restored to the possession of the tenant.
4. At this stage it will be convenient to mention that in the original application the tenant had not only asked for the restoration of the possession of the land but had also claimed compensation for the loss sustained by him by reason of the fact that he could not cultivate the land for two years. He claimed a sum of Rs. 2,000 on the above account. He also claimed another sum of Rs. 400 for bringing the land under proper cultivation by removing the weeds etc.
5. So far as the prayer for compensation is concerned, the Revenue Tribunal sent the case back to the Sub-Divisional Officer for settling the amount of compensation. The order of the Revenue Tribunal was passed on March 13, 1958. Keshao, the original landholder died on May 29, 1958. Dhananjaya, the son of the deceased Keshao, filed the present application on August 25, 1958. He stated that he was not aware of the decision of the Revenue Tribunal and that he came to know about the same in June 1958. He has, therefore, prayed for the condonation of the delay in filing the said application.
6. Mr. Kathalay, the learned Counsel for the petitioners, contended that the Revenue Tribunal was wrong in holding that for a valid termination of the lease it is necessary to have the order of the Sub-Divisional Officer. He argued that this question had been concluded by the decision of the Bombay High Court, Nagpur Bench, in Tarabai v. B'bay Rev. Tribunal (1958) 61 Bom. L.R. 41. He also pointed out that the finding of the Additional Deputy Commissioner which was upheld by the Revenue Tribunal was to the effect that as a matter of fact the landholder started cultivating the land with effect from April 1953. That being the case, he argued that the landholder must be deemed to have cultivated the land for two years 1953-54 and 1954-55. He further contended that although the land was sold in the middle of January 1955 no agricultural operations remained to be done and that, therefore, the period of two years must be deemed to have been completed before the date of sales.
7. It is clear that the view taken by the Revenue Tribunal viz. that even for the termination of the lease under Section 9(1) it is necessary that there should be an order of the Revenue Officer under Section 8(2)(g) is wrong. This question was considered by this High Court and it was held that the right of the landholder to terminate the lease under Section 9(1) was in no way fettered by the provisions of Section 8(1)(g). Emphasis was laid on the opening words of Section 9 to the effect 'Notwithstanding anything contained in Section 8. In view of the above decision we must hold that the tenancy was rightly determined as soon as the landholder gave a notice under Section 9(1), particularly so because the tenant did not make any application under Sub-section (3) of Section 9.
8. We are also bound by the finding of fact recorded in the Revenue proceedings, namely, that the landholder secured the possession of the land sometime in April 1953. Reliance was placed on the crop statements for the years 1953-54 and 1954-55 which shows that Keshao raised crops for both the years 1953-54 and 1954-55. The Additional Deputy Commissioner based his finding that Keshao cultivated the land for both the years mainly on the entries made in the crop statements referred to above. The Additional Deputy Commissioner seems to have assumed that Keshao reaped the harvest for the year 1954-55, It must, however, be pointed out that no evidence was led to show that as a matter of fact the crops were really harvested by Keshao. The crop statement does not give any indication as to whether Keshao actually harvested the crops. At best it shows that he raised the crops for that year. Admittedly he sold the land in the middle of January 1955, and Mr. Kathalay argued that crops like juar, bajra etc. are harvested before the middle of January. It is significant that copies of the sale-deeds have not been produced. We do not know what provisions were made in the sale-deed and whether possession was delivered to the vendee with or without standing crops. Even assuming that the crops were harvested by Keshao for the year 1954-55 before he entered into the sale transaction, still the question to be considered is whether that fulfils the conditions laid down in Sub-section (6). of Section 9 of the Act. The relevant part of Sub-section (6) runs thus:-
If on re-entering upon any land after termination of the lease of a protected lessee in accordance with this section, a landholder fails at any time during such period as may be prescribed to utilise the land for the purpose for which the lease was terminated, the dispossessed lessee may apply to the Revenue Officer to put him in possession of the land from the commencement of the agricultural year next following;....
The purpose for which the lease is terminated is mentioned in Sub-section (1) and it is that the landlord required the land for cultivating the same personally. The period has been prescribed in Rule 9 as follows:-
The period for the purpose of Sub-section (6) of Section 9 shall be two years from the date of re-entry by the landholder.
Mr. Kathalay contended that the expression 'two years' should be construed to mean two cultivating seasons. We are not prepared to accept this argument in view of the following considerations.
9. The first point to be noted is that the date of the commencement of the period of two years has been clearly stated in the rule itself and that is the date of the re-entry by the landholder. Two years are to be computed from this specific and definite date. The re-entry may take place at any time of the season. It may be at the beginning of the season, it may be at the middle, or even it may be at the end of the season. If the rule of two seasons is applied, then in some cases the period of two years would be shortened to less than two years, whereas in others it may be lengthened for more than two years. If the period of commencement is indefinite, then the date of termination also must be equally indefinite. Secondly, if Mr. Kathalay's argument were accepted, then there would be different periods for different kinds of lands, depending on the nature of the crops raised and the period required for the harvesting of the crops. In respect of some lands the crops will be harvested in December, whereas, particularly in respect of lands in which the second crops are grown the period of harvesting would be as late as February or March of the next year. It is impossible to believe that different periods would be contemplated by the Legislature for the same purpose. Thirdly, the words in Sub-section (6) 'a landholder fails at any time during such period as may be prescribed' indicate that the landholder is expected to cultivate the land during the entire period so prescribed. The words 'at any time during such period' are significant and suggest that the failure of the landholder to cultivate the land even for a short period will entail the consequence of forfeiture. Fourthly, the period of two years that has been fixed in Rule 9 is the minimum period during which the landholder is expected to cultivate the land personally after taking over the land from the tenant on the pretext of personal cultivation. In other words, that period seems to have been prescribed to test the bona fides of the landholder. It is true that the rule does not in terms prohibit the transfer or sale of the land before the lapse of two years from the date of re-entry, but the fact that lands have been sold is conclusive that at any rate after the sale the landholder would be incapable of cultivating the land personally for himself unless there is a stipulation in the sale-deed that the landlord was to relinquish the possession at some later date mentioned in the deed itself. Prima facie, therefore, the fact of sale shows that the landholder would be putting himself beyond the possibility of fulfilling the requirement of personal cultivation. In that view of the case it is clear that the conditions laid down in Sub-section (6) of Section 9 have not been fulfilled by the landholder. We must, therefore, hold that he has not utilized the land for the purpose for which he obtained possession thereof, i.e. personal cultivation, for the prescribed period.
10. Mr. Kathalay suggested that the case should be sent back to the Sub-Divisional Officer for an enquiry as to when the crops were harvested in the year 1954-55 and as to what has been the practice or custom prevailing in that locality regarding the harvesting of the type of crops mentioned in the crop statement. In the view that we have taken any enquiry into the above question would be wholly unnecessary and futile.
11. Mr. Kathalay pointed out that according to the Revenue Tribunal the period of two years was not completed because the landholder could not be deemed to be in lawful cultivation for the year 1953-54 and his cultivation would be lawful only from June 1954 when there was an order for the termination of the lease. He complained that this Court would be upholding the decision of the Tribunal on the ground that the period of 1954-55 was not completed which is an entirely new and different ground. There is no substance in that grievance. It is open to us to uphold the final conclusion of the Tribunal altogether on new and different grounds which emerge from the record, and we do not require any fresh material.
12. The last question to be considered is what should be the basis on which the compensation is to be awarded to the tenant after he is restored to possession under Sub-section (6). Under that sub-section the dispossessed tenant is entitled to claim compensation, but the sub-section does not specify as to what kind of compensation the tenant is entitled to and for what purpose. Apparently the tenant had claimed compensation for the value of the crops which he would have raised had he continued to be in possession for the years in question. In other words, according to the tenant he would be entitled to be restituted, that is to say, not only he is entitled to be put in possession of the land but also to be compensated for the loss of the profits that he has sustained due to his remaining out of possession. It is however clear from the wording of Sub-section (6) that the tenant would be entitled to be restored to possession after the date of the order passed in that behalf and from the commencement of the next agricultural year. That means that the right of the tenant to claim compensation flows from the order passed in that respect and begins from the next agricultural year. The claim for restitution is founded on the basis that a lawful claimant who is entitled to immediate possession has been kept out of the same. That position does not obtain when an order under Sub-section (6) has been passed in favour of the tenant for restoration of the possession. Therefore, the word 'compensation' will have to be construed in a restricted sense, namely, that the tenant would be entitled to compensation for the damage caused by injury to the field. That means that the tenant's claim for compensation for taking out the weeds would be justifiable and can be allowed to the extent of its proof. There will, however, be no legal basis for the claim either for the income of the land or for the value of the crops for two years.
13. The result is that the application substantially fails. Subject to what we have said regarding compensation the rule is discharged. No order as to costs.