M.P. Kanade, J.
1. A principal contention raised in these two Special Civil Application under Article 227 of the Constitution of India is as to whether the notification, dated February 14, 1958 issued by the State Government while exercising powers conferred under sub-section (3) of section 43-A of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as the 'Bombay Tenancy Act') would apply, or whether the amended Notification issued by the State Government under the said section, dated October 8, 1969 would apply to the facts of the present case and if the amended notification is to apply to the facts or this case, then as to whether the holding of the lessor is to be considered by exclusion of the lands sought to be resumed or even the lands sought to be resumed is also to be taken into consideration while determining the economic holding of such landlord.
2. In these two Special Civil Applications the petitioner are true brothers. They separately hold the lands, so far as Survey No. 1264/1 is concerned, petitioner Raghunath is the lower and the other petitioner Kishor is the owner of Survey No. 264/2, both admeasuring identically 4-H. 74 acres situated at village Rahata, in Kopargaon taluka of Ahmadnagar district. It is an admitted fact that both the petitioners do not possess any other land except the suit lands. It is also an admitted fact that these two lands were lead out to the tenant-respondent for sugar-cane cultivation, and the said lands are perennially irrigated by canal water and accordingly attracted the provisions of section 43-A of the Bombay Tenancy Act.
3. Section 43-A of the Bombay Tenancy Act lays down that certain provision of the Bombay Tenancy Act would not apply to the lands which are leased for sugar-cane cultivation. Sections 31 to 31-D (both inclusive). Section 32 to 32-R (both inclusive) and sections 33-A, 33-B and 33-C have not been made applicable to the lands which fall within the ambit of section 43-A of the Act.
4. Landlords petitioners submitted applications on or about October 20, 1972 for resumption of the suit lands for their bona fide personal cultivation. The petitioners terminated the tenancy of the tenant-respondent on or about December 24, 1970 by a notice, dated December 22, 1970. It was contended by both the petitioners landlords that since they had not other land in their possession or holding, their case is governed by the amended Notification, dated October, 8, 1969 under which the petitioners were entitled to resume the entire land notwithstanding the prohibition contained in section 31-A and 31-B of the Act, but subject to the conditions mentioned in Clauses (b) and (c) of sub-section (5) of section 33-B of the Bombay Tenancy Act. The said contention of the landlords was accepted by the Tenancy Awal Karkun and allowed their applications being Tenancy Case Nos. 255 of 1972 by the judgments and orders, dated April 23, 1974 and April 13, 1974 respectively. The tenancy of the respondent-tenant was terminated and he was directed to restore possession of the lands to the petitioners after the appeal period is over.
5. The said judgments were challenged by the tenant in appeals before the Sub-Divisional Officer, Sangamner Division, Sangamner. The learned Sub-Divisional Officer heard both the appeals and by the judgments and orders, dated July 23, 1976 dismissed the said appeals confirming the findings recorded by the Tenancy Awal Karkun.
6. Against said judgments and orders passed by the Appellate Court, the tenant submitted two Revision Applications before the Maharashtra Revenue Tribunal, at Poona. The learned Member of the Maharashtra Revenue Tribunal by the common judgment and order, dated January 24, 1974 allowed the Revision Applications and in modification of the orders passed by the courts below he directed that only half the area leased by each lessor should be restored to him for personal cultivation. Against the said judgment and order passed by the learned member of the Maharashtra Revenue Tribunal these two Special Civil Applications have been filed by the original landholders challenging the legality and correctness of the said order.
7. Mr. R.N. Dhorde, the learned Counsel appearing on behalf of the petitioners, contended that an error has been committed by the learned Member of the Maharashtra Revenue Tribunal in construing the amended Notification, dated October 8, 1969. According to Mr. Dhorde, the petitioners are admittedly not in actual possession in any of the lands and the lands which are sought to be resumed are the only lands held by them. It is, therefore, the said lands which are in actual possession of the tenant cannot be considered to be the holding of the petitioners for the purpose of the said Notification.
8. Before I proceed to consider the aforesaid two Notifications, it is necessary to state that they by virtue of the provisions of section 43-A(1) of the Bombay Tenancy Act, the provisions of sections 31 to 31-D are not made applicable to the lands covered by section 43-A of the Bombay Tenancy Act. Sub-section (3) of section 43-A of the Act lays down that :
'43-A(1) ... ... ... ... ... ...
(a) ... ... ... ...
(b) ... ... ... ...
(2) ... (c) ... ... ... . ... ... ... ...
(3) Notwithstanding anything contained in sub-sections (1) and (2), it shall be lawful for the State Government to direct, by notification in the Official Gazette, that the leases or lands, as the case may be, to which the provisions of sub-sections (1) and (2) apply, shall not subject to such conditions as may be specified in the notification, in respect of---
(a) the duration of the lease;
(b) the improvement to be made on the land..........;
(c) the payment of land revenue, irrigation cess, local fund cess any other charges payable to the State Government or any local authority; or
(d) any other matter referred to in sections mentioned in sub-sections (1)'.
In exercise of the said power, the first Notification was issued on February 14, 1958 under which the landlord was restricted to terminate the lease granted for cultivating the sugar-cane. However, it is mentioned that the landlord terminate the lease if he requires the land bona fide for personal cultivation by giving one year's notice to the tenant. He could only resume the land subject to the provisions of sections 31-A and 31-B of the Tenancy Act. The said Notification was amended by another notification, dated October 8, 1969. Under the amended Notification, in condition No. 2 in the earlier notification 'one year's notice' was substituted by 'month's notice' and the following proviso was added :
'provided that, if the holding of a lessor does not exceed one economic holding and such lessor earns his livelihood principally by agriculture or by agriculture labour, the conditions mentioned in section 31-A and 31-B shall not apply, but the lessor's right to resume land shall be subject to the condition mentioned in Clauses (b) and (c) sub-section (5) of section 33-B ...............'
From the proviso to the amended Notification, it appears that rigour of the content in the earlier condition is relaxed to a person whose holding does not exceed to one economic holding and who earns his livelihood principally by agriculture or by agricultural labour. In the earlier notification, the landlord could get only half of the land having regard to the provisions of section 31-B of the Bombay Tenancy Act; whereas in the amended Notification the lessor who holds less than economic holding is entitled to resume, if the tenant's holding is larger than the holding of the lessor. It provided that there should be equalisation of the holdings between the lessor and lessee. Keeping in view this distinction between two notifications it is to be seen as to whether the amended Notification would apply to a person who owns more than one economic holding but he is not in possession of any of pieces of land and who earns his livelihood principally by agriculture or by agricultural labour. There is concurrent finding of fact that the petitioners in both these Special Civil Applications are not in possession of any of the pieces of lands, but the lands owned by them are in actual possession of the tenant, who holds nearly 50 acres of land under his personal cultivation. It is true that they will be the owner of the lands but they cannot be said to be landlords holding the said lands because the lands are in actual possession of the tenant respondent.
9. Section 2(6-C) of the Bombay Tenancy Act defined the words 'to hold land'. It lays down that :
'to hold that' as an owner or tenant shall, for the purpose of Clause (2-D) of this section and section 32(1-B), 32-A, 32-B and 63 mean to be lawfully in actual possession of land as an owner or tenant as the case may be'.
The said definition under section 2(6-C) of the Tenancy Act is applicable to certain sections of the Bombay Tenancy Act and it may not be applicable to section 43-A or section 31 of the Act.
10. Section 2(21) says that :
'words and expression used in this Act but not defined shall have the meaning assigned to them in the Bombay Land Revenue Code, 1879, and the Transfer of Property Act, 1882 as the case may be'.
11. If section 2(6-C) of the Bombay Tenancy Act is not applicable to the lands involved in these two Special Civil Applications, then we must resort to the definition given in the Maharashtra Land Revenue Code, 1966. Section 2(12) of the Code defines the word 'to hold land'. It lays down that :
'2(12) : 'to hold land' or 'to be a land holder or holder of land' means to be lawfully in possession of land, whether such possession is actual or not'.
From this definition under the Land Revenue Code, it defines only the superior holder. This definition would not be in any way helpful to the petitioners or respondent, because it defines only a superior holder. Having regard to the spirit and the purpose of the amended Notification, it appears to me that the said notification, dated October 8, 1969 has been issued by the State Government only to give relief to such persons, who are economically backward and who are bona fide require to resume the lands and who earn their livelihood principally by agriculture or agricultural labour. The rigour of section 31-B of the Bombay Tenancy Act is lessened or removed, so that the landlord may get entire land if possible and, therefore, the doctrine or equalisation of the holdings between the landlord and tenant has been introduced by the amended Notification, so that both can live and let live happily each other. In this context, if a person does not personally cultivate any land as an owner or tenant, but he earns his livelihood principally by agriculture or agricultural labour, he cannot be said to be the holder of the land for the purpose of the said Notification, and in the said context economic holding of such a person will have to be determined. In the instant case the petitioners do not hold any other land whatsoever, and the lands sought to be resumed are the only lands owned by them but they are actually in possession of the tenant respondent. In this context, while determining economic holding such a person, who makes an application for bona fide resumption of the land, the lands sought to be resumed cannot be taken into account because he cannot be said to have held the land within the meaning and context of the amended Notification upon which a reliance is placed by the petitioners. The concept of the economic holding introduced in the Amended Notification dated October 8, 1969 will not be applicable to a case where a person is not in actual possession of any land or portion thereof. It will have to be seen as to whether on the date of applications, the petitioners were in actual possession of the lands and if they are found not in actual possession of any portion of the land, then the lands sought to be resumed cannot be taken into account for the purpose of determining economic holding of them, and the lands sought to be resumed will have to be excluded from the consideration, because the petitioners are not in actual possession and they are not earning out of the said lands except the rent of the said lands available to them. Merely because the lands stand in the record of rights in their names, that cannot be considered to be the holder of economic holding of that land, because they are not in actual possession thereof. If the said lands do not stand in the names of the petitioners in the record of rights, then they will not be entitled to make an application for resumption of the said lands. The concept of the economic holding is that the person must earn something from out of the said economic holding.
12. Section 6 of the Bombay Tenancy Act lays down that :
'6(1) For the purposes of this Act, an economic holding shall be......
(a) 16 acres of Jirayat land, or
(b) 8 acres of seasonally irrigated, land, or paddy or rice land, or
(c) 4 acres of perennially irrigated land'.
From the definition of economic holding, it is clear that a person who is in actual possession of the lands admeasuring either 16 acres of Jirayat, 8 acres of seasonally irrigated or 4 acres of perennially irrigated respectively, his income from such land is presumed under the Amended Notification and the benefit of the amended Notification is given only to a person whose holding does to exceed one economic holding and he earns his livelihood principally by agriculture of agricultural labour. In this context and having regard to the intention of the legislature, which is disclosed in the amended notification it appears that the amended notification intended only to held such persons who are not in actual possession of any land and if the law gives them right to resume the land, they must be entitled to at least either whole of the land or equal to the holding, of that of the tenant. Keeping in view this distinction characteristic of the amended notification, in my view, the petitioners are entitled to the benefit of the said notification. There is a concurrent finding of fact recorded by the courts below that the respondent's holding is more than 50 acres of land and having regard to the provisions of Clauses (b) and (c) of sub-section (5) of section 33-B of the Bombay Tenancy Act, the petitioners will be entitled to resume the whole land and not half as decided by the learned Member of the Maharashtra Revenue Tribunal. In this view of the matter, both the application will have to be allowed. In my view, the learned Member of the Maharashtra Revenue Tribunal has committed an error apparent on the fact of record in holding that the lands sought to be resumed by the petitioners are more than economic holding, and, therefore, the petitioners were entitled only to the extent of half area of the said lands.
13. In the result, both the Special Civil Application are allowed. The order of the learned Member of the Maharashtra Revenue Tribunal, dated January 24, 1977 is set aside and that of the Sub-Divisional Officer, Sangamner Division, Sangamner and the Tenancy Awal Karkun, Kopargaon is restored. Thus, the rule is made absolute with costs in both the Special Civil Applications.