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Vishnu Ganesh Joshi Vs. Dang Seva Mandal and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 3070 of 1978
Judge
Reported inAIR1984Bom394; (1983)86BOMLR143; 1984MhLJ279
ActsBombay Tenancy and Agricultural Lands Act, 1948 - Sections 15, 15(2), 31, 31A, 32P and 32 p (2); Constitution of India - Article 227
AppellantVishnu Ganesh Joshi
RespondentDang Seva Mandal and anr.
Appellant AdvocateG.B.Karandikar, Adv.
Respondent AdvocateC.R. Dalvi, Adv.
Excerpt:
.....15 (2) of the act and made a reference to the fact that the landlord is entitled to retain the land as 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 of the act. , no other condition is required to the satisfied while dealing with the case of ineffective purchase under section 32p of the act. ' 12. now, when section 15 (2d) provides that the extent of the land as well as the is entitled to return the land are provided, inter alia, in section 31a, we must find out which are the conditions in section 31a that are applicable in the case of a statutory purchase becoming ineffective under section 32p of the act. this condition with regard to the ceiling area..........or the land in his possession may exceed the ceiling area if he is allowed to retain the entire landsurrendered. that is so far as clauses (a) and (b) of sec. 31a are concerned.14. when sub-section 92) of section 15 of the act refers to the rich of land being controlled by the conditions provided in secs. 31 and 31a 'in so far as the conditions are applicable'. it is necessary to find out as to which of the conditions is section 31a are or are not applicable. we have already referred to the conditions in clauses (a) and (b) of section 31a as being applicable and conditions in clauses (d) and (e) as being not applicable. so for as clause (c) is not applicable. so far as clause (c) is concerned, unless there is good justification for saying that the condition in c1. (c) is not.....
Judgment:

Chandurkar, C.J.

1. This petition has been referred to the Division Bench by the learned single Judge (Sawant, J.) because according to the learned Judge the decision in Sakinabibi v. Tukaram 1979 Mah LJ 302, which was also a decision of the learned single Judge of this Court, required reconsideration. In Sakinabibi's case the learnedJudge (Pendse, J.) has taken the view that in an inquiry under Section 32P (2) of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as 'the Act') there are only two restrictions on the right of the landlord contemplated by the provisions of Section 15 (2) of the Act. These restrictions, according to the learned Judge are : (1) that the land should be resumed for the purpose of either cultivating personally or for non agricultural purpose and (2) that the land should be resumed only to the extent of the ceiling area. The learned Judge held that the other restrictions in Sections 31 and 31 A of the Act could not be read into Section 15 (2) of the Act.

2. The facts in this petition are not in dispute. The field in question is survey No. 41/1 having an area of 8 acres 19 gunthas excluding the Pot Kharaba area of 1 acre 21 gunthas which originally belonged to two persons Vithal and Vishnu. The said filed was cultivated by a trust called Dang Seva Mandal, Nasik ..... tenant was declared ineffective under Section 32 G (3) of the Act on 13th February 1963. Almost after about ten years, one at the landlords applied to the Tahsildar for starting a proceeding under Section 32 P of the Act. In that proceeding the Tahsildar held that one-half of the land should be restored to the landlords according to their respective shares. This order was however set aside. Later on, on remand the Tahsildar once again went into the question as to whether the survivinglandlord, the other landlord having been dead by that time, was entitled to, get the land surrendered under Section 32 p of the Act. The Tahsildar took the view that it was essential for the land lord to prove that the income from the land in question of which he was entitled to take possession was the principal source of his maintenance. On facts he found that the income from the cultivation of the land in question would be the principal source of the landlord's maintenance. He, therefore, ordered under Section 32 P (2) (c) of the Act that possession of the land should be restored to the landlord.

3.The tenant challenged this order by an appeal which was decided by the Assistant Collector, Nasik Division, Nasik. The Assistant Collector took the view that the total income of the landlord from the sugarcane cultivation was about Rs.20,000/- annually in addition to his salary income of Rs. 3, 744/- per annum. The income from the said land was found to be Rs. 1,500/- and the Assistant Collector, therefore held that the income from the suit land would not be the principal source of maintenance of the landlord. Taking the view that the condition in Section 31 A (c) of the Act is not satisfied, he reversed the order of the additional Tahsildar. The landlord's application before the Maharashtra Revenue Tribunal also came to be rejected and the Tribunal Confirmed the view of the Assistant Collector that the condition in Section 31 A (c) of the Act was required to be satisfied by the landlord. The order of the Tribunal does not disclose the figures of the comparative income from different sources of the landlord. The landlord has now filed this petition against the said order of the Tribunal.

4.The contention raised on behalf of the petitioner - landlord is that in an enquiry under Section 32 P of the Act the required to be satisfied and, therefore, both the Tribunal and the Assistant Collector were in error in holding that the landlord was not entitled to possession of the land in question. Undoubtedly, the learned counsel for the petitioner is supported in this contention by the view in Sakinabibi's case referred to above. As already pointed out, the learned Judge on a construction of the provision of Section 32P (2) (b) and Section 15 of the Act took the view that no other condition except the requirement for personal consumedis required to be satisfied. Though there is no express reference in the judgement of the learned Judge to the requirement of clause (c) of Section 31A of the Act, it is obvious that the effect of the decision of the learned Judge was that by implication the requirement of Section 31A (c) was not requirement to be satisfied. The learned Judge referred to the provisions of Section 15 (2) of the Act and made a reference to the fact that the landlord is entitled to retain the land as 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 of the Act. The learned Judge referred to the purpose which is mentioned in Section 31 of the Act, viz., either to cultivate personally or to use for non-agricultural purpose. The learned Judge pointed out that the extent of land which the landlord can resume is mentioned in Section 31A of the Act which provides that the landlord can resume only that much area of the land which would not exceed the ceiling area as provided in the Act. The learned Judge then observed as follows (page 306):

'.................. 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 and, in my judgment, the other requirement of Sec. 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 ancestries 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 that 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 judgement the other restrictions in Section 31A would not be applicable to the cases of former landlord covered by Section 15 (2) of the Act.'

5. A doubt as to the correctness of this view persuaded Sawant, J. to refer this petition to the Division Bench.

6. Mr. Karandikar, appearing on behalf of the petitioner-landlord, has contended that the view taken by Pendse, j. is the correct view and that except for the two conditions referred to by Pendse, j., no other condition is required to the satisfied while dealing with the case of ineffective purchase under Section 32P of the Act. Section 32P provides that where the purchase of any land by tenantunder Section 32 becomes ineffective under Section 32G or 32M or where a tenant fails to exercise the right to purchase the land held by him within the specified period under Section 32F, 32O, 33C or 43-ID, the Tribunal may suo motu or on an application made in this behalf and in cases other than those in which the purchase has become ineffective by reason of Section 32G or 32M, after holding a formal inquiry direct that the land should be disposed of in the manner provided in sub-section (2) of Section 32P, Sub-section (2) of S. 32P, in so far as is relevant, provides as follows:

'(2) Such direction shall provide:--

that the former tenant be summarily evicted;

that the land shall, subject to the provisions of Section 15, be surrendered accordance with the provisions of Sec, 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') : .........................'

7. The priority list need not be reproduced as it is not relevant for our purpose. The other provisions of sub-section (2) of Section 32P are also not relevant for the purpose of this petition.

8. Clause (b) of sub-sec. (2) of S. 32P of the Act is unambiguous. The effect of that provision is that the land, purchase of which by the tenant has become ineffective, shall be surrendered to the former landlord subject to the provisions of Section 15 of the Act. Section 15 deals with termination of tenancy by surrender thereof. Under sub-section (1) of Section 15 of the Act, it is provided that a tenant may terminate the tenancy in respect of any land at any time by surrendering his interest therein in favour of the landlord, while the proviso to that sub-section provides that such surrender shall be in writing and has to be verified by the Mamlatdar in the prescribed manner. Sub-sections (2A) and (3) of section 15 being material may now be reproduced;

'(2A) The Mamlatdar shall in respectof the surrender verified under sub-section (1), 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.

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) sub-section (2) of S 32P.'

9. The effect of sub-section (2) of S. 15 is that even in a case where a tenant surrenders his tenancy, there are restrictions on the right of the landlord to retain the land so surrendered and those restrictions are with reference to the purposes, the extent and the conditions which are provided in Sections 31 and 31A for the termination of tenancies. Such other conditions as are provided in Sections 31 and 31A and as are applicable, therefore, fasten themselves on the right of the decide whether the landlord is entitled to retain the whole or any portion of the land so surrendered having regard to the provisions of sub-section (2). The Tahsildar has, therefore, under sub-section (2A) to make an enquiry and decide with reference to the requirements of Secs. 31 and 31A of the Act whether the landlord is entitled to retain the entire area or a portion thereof. If it is found by the Tahsildar that having regard to the conditions specified in Sections 31 and 31A the landlord is not entitled to retain the entire area, then such other land which the landlord is entitled to retain has to be disposed of in the manner provided in clause (c) of sub-section (2) of Section 32P of the Act. As already pointed out, clause (c) of sub-section (2) of Section 32P gives a priority list for the purpose of disposal of land by sale in case the landlord is not entitled to retain the surrendered land.

10. Now, the main question in this petition is, what are the conditions which the landlord is required to satisfy before he can be allowed to retain the land which is treated as surrendered under Section 32P of the Act. When clause (b) of sub-section (2) of Section 32P refers to the land being surrendered to the former landlord subject to the provisions of Section 15, it is obvious that the right of regulated by the provisions of Section 15 (2) of the Act. Section 15 (2) refers to Sections 31 and 31A of the Act. In the instant case, reference to Section 31 is not very material. Section 31 which deals with the landlord's right to terminate tenancy either for personal cultivation or for non-agricultural purpose further lays down the manner of such termination. The two purposes specified in Section 31 for which the tenancy can be terminated are:--

11. for cultivating personally, or (b) for any non-agricultural purpose. It is not the case of the landlord in the instant case that he needs the land for non-agricultural purpose. We need not, therefore, deal any more with Section 31 of the Act. When we come to Sec. 31A it is marginally headed 'Conditions of termination of tenancy' and it reads as follows:

'31. The right of a landlord to terminated.

If the landlord at the date on which the notice is given and on the date on which it expires has no other land of his own or has not been cultivating personally any other land, he shall be entitled to take possession of the land leased to the extent of a ceiling area.

If the landcultivated by him personally is less than the ceiling area of the land leased as will be sufficient to make up the area in his possession to the extent of a ceiling area.

(c) The income by the cultivation of the land of which he is entitled to take possession is the principle source of income for his maintenance.

The land leased stands in the record of rights or in any public record of similar revenue record on the 1st day of January 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(but not of any person from whom title is derived, whether by assignment or Court Sale or otherwise), or if the landlord is a member of a point family, in the name of a member of such family.

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 the shortest in point of duration.'

12. Now, when Section 15 (2d) provides that the extent of the land as well as the is entitled to return the land are provided, inter alia, in Section 31A, we must find out which are the conditions in Section 31A that are applicable in the case of a statutory purchase becoming ineffective under Section 32P of the Act. Clauses (a) and (b) of Section 31A deal with the extent of the land which the landlord is entitled to resume. Under Clause (a) if the landlord has no other land or has not been cultivating personally any other land on the date on which the notice is given and on the date on which it expireshe is entitled to take possession of the land leased to the tenant to the extent of the ceiling area. Under Clause (b) if the land cultivated by the landlord is less than the ceiling area, the landlord is entitled to take possession of so much area of the land leased as will be sufficient to make up person, whether as an owner or tenant or partly as owner and partly as tenant, the area of the land fixed as ceiling area under Section 5 or 7. In so far as the proceedings under Section 32p are concerned, the land in personal cultivation of the landlord referred to in clauses 9a) and (b) of Section 31A will be determined as on the date of which a direction under sub-section (1) and (2) of Section 32p is to be given. Even according to Pendse, J. this condition with regard to the ceiling area will have to be satisfied before an order under Se. 32P (2) is made in favour of the landlord. Now, it is obvious that so far as the conditions in Clauses 9d) and (e) of Section 31A are concerned they are not relevant in a proceeding under Section 32p and the right of the landlord to retain the land surrendered will not be controlled or regulated by conditions in clauses (d) and (e) of Section 31A. clause (d) refers to the land leased standing in the record of rights on the specified date in the revenue record either in the name of the landlord or any of his ancestries, the Clause 9e) refers to the order in which a tenancy can be terminated if there are more than one tenancy. These questions do not arise in the case of a surrender.

13. The crucial question is whether the condition in Clause (c) that the income by the cultivation of the land of which the landlord is entitled to take possession is the principal source of income for his maintenance is required to be satisfied in the case of the land which is surrenderedand is required to be dealt with as provided in Section 15 (2) and (2A) of the Act. The provisions of Sections 15 and 32P of the Act themselves contemplate that in a given case the landlord will not be entitled to retain the entire landand that in a given case a part of the surrendered land may be available for distribution by way of sale in the manner provided in Section 32p (3). The first circumstance under which the landlord may not be held entitled to retain the entire land surrendered is that he may already have land more than the ceiling area or the land in his possession may exceed the ceiling area if he is allowed to retain the entire landsurrendered. That is so far as Clauses (a) and (b) of Sec. 31A are concerned.

14. When sub-section 92) of Section 15 of the Act refers to the rich of land being controlled by the conditions provided in Secs. 31 and 31A 'in so far as the conditions are applicable'. It is necessary to find out as to which of the conditions is Section 31A are or are not applicable. We have already referred to the conditions in Clauses (a) and (b) of Section 31A as being applicable and conditions in Clauses (d) and (e) as being not applicable. So for as Clause (c) is not applicable. So far as clause (c) is concerned, unless there is good justification for saying that the condition in c1. (c) is not applicable, we must proceed on the footing that the condition in Clause (c) will also be applicable to a case which is governed by Section 15 (2) of the Act. It is obvious that by enacting restrictions in section 15 the legislature did not want an uncontrolled right to be given to the landlord to take possession of the land even thought the land was voluntarily surrendered by the tenant. The scheme of the Act is clearly that there is to be a restriction of the total holding of the land and only such land as can be the principle source of maintenance of the landlord is allowed to be resumed under the law. We are not able to find any ground on which we can exclude the condition in Clause (c) for the purpose of Section 15 (2) of the Act especially when Section 15 (2) has always been understood as implying that even in the case of the land surrendered by a tenant only such of the land as can become the principal source of the landlord's maintenance will be allowed to be retained by him.

15. A Division Bench of the this Court has an occasion to consider the scheme of Section 15 (2) of the Act in the context of the question as to whether the provisions of Section 37 of the Act are attracted to a case where the land is surrendered by the tenant under Section 15 of the Act. The decision is reported in Vithal v. Murlidhar, : AIR1975Bom358 . The argument there was that even in the case of land which was surrendered by the tenant under Section 15, the tenant will be entitled to restoration of possession under Section 37 if he landlord does not use the land in the manner and within the time referred to in Section 37 of the Act. After pointing out the distinction between the resumption of land under Section 31virtue of the unilateral surrender by the tenant under Section 15, the Division Bench observed as follows (Page 365):

'............... There is yet one more difference. In proceedings instituted under Sec. 31, if the landlord were to fail to prove his bona fieldrequirement for personal cultivation, his application for possession would fail, and the tenant would become the owner of the entire land on the tiller's day. But in proceedings instituted under Section 15 of the Act upon the surrender being found voluntary, even if the landlord were to fail to establish is requirement for personal cultivation or any requirement for non-agricultural use and for that matter, even if the landlord were to say that he did not want the land for himself, such land would not revert back to the tenant but it would form part of the pool distributable under Section. 32P of the Act.'

16. The Division Bench, therefore, took the view that even in proceedings under Section 15 of the Act, the landlord has to establish his requirement for personal cultivation or for non-agricultural use, as the case may be, and if the landlord fails to establish this, then land forms part of a pool to be dealt with under Section 32P (3) of the Act. It appears to us that this decision was not cited before Pendse, J., because this decision positively proceeds under the footing that even in an enquiry under Section 15 of the Act requirement of Clause 9c) of Section 31A has to be satisfied. We have gone through the judgement in jSakinabibi's case and we have not been able to find any reason why the learned Judge was persuaded to hold that the requirement of C1. 9c) of S. 31A of the Act must be excluded for the purpose of s. 32P (2) read with s. 15 of the Lact. We are, therefore, unable to agree with the view expressed by Pendse, J. in sakinabibi's case that there are only two conditions which are required to be satisfied while dealing with a case under Section 32P of the Act, and we must hold that even the condition in Cl. (c) of S. 31A is required to be satisfied before the Tahsildar can give a direction that the landlord is entitled to retain either the whole or a part of the land which is statutorilytreated as surrendered under Section 32P of the Act.

17. The learned counsel for the petitioner then contended that once a pruderyis entitled to give a direction that the former tenant shall be summarily evicted and the tenant has no locus standi to file and appeal against the order holding that the landlord is entitled to retain possession of the entire land. The contention. Therefore, is that the appeal before the Assistant collector is without jurisdiction and untenable and, therefore, the finding recorded by the Assistant Collector is without jurisdiction and untenable and, therefore, the finding recorded by the Assistant collector that the requirement of Clause (c) of S. 31A was not satisfied was liable to be set aside and both the orders of the Assistant Collector and the tribunal should also be set aside.

18. Reference was made before us to a decision of Joshi, J. in Mohamed Abdul Naik v. Anand Hari Nadgonda (Special Civil Appln. No. 48 of 1971) decided on 22nd August 1974. In that case Joshi, J., has taken the view that a tenant who was absent at an enquiry under Sec. 32G and ex part order was passed by the Agricultural Land Tribunal declaring the purchase ineffective and he did not file a review application within sixty days though an intimation of such order was served on him, the tenant not only loses his right of purchase but that he has no locus standi in the subsequent proceedings under Section 32P and, therefore, the Agricultural Land Tribunal is not bound to give him any notice of those proceedings. It appears to us that the right of the tenant to file an appeal before the Assistant Collector was not challenged either before the lower appellate Court or in the proceedings before the Revenue Tribunal. Apart from the question as to whether the tenant has a right of appeal against an order under S. 32 p, it is difficult for us to see how we can now interfere with the finding recorded by the Assistant Collector and the Revenue Tribunal with a view to work out the beneficial provisions of Section 32P of the Act. The Assistant Collector had clearly revisional jurisdiction against the order of the Tahsildar under Section 76A of the Lact. He could have suo motu exercised his revisions power sunder Section 76A of the Act. Therefore, even assuming that the appeal was not competent on facts the Collector has reached a conclusion that the landlord's income from other sources was so large that he did not satisfy the condition in clause (c) of Section 312A of the Act. Interference with the finding is not war Court under Article 227 of the Constitution of India, more so, when the effect of the findings, of the Assistant Collector and the Revenue Tribunal is to correctly apply and give effect to the provisions of Secs. 32P and 15 of the Act.

19. In the view which we have taken the petition must fail. The rule is, therefore, discharged. However, in the circumstance of the case we make no order as to costs.

20. Petition dismissed.


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