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Kamlaben Kesharichand Nathchand, (Guardian of Her Lunatic Husband) Vs. the Gujarat Revenue Tribunal and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Judge
Reported in(1965)6GLR396
AppellantKamlaben Kesharichand Nathchand, (Guardian of Her Lunatic Husband)
RespondentThe Gujarat Revenue Tribunal and ors.
Excerpt:
- - the mamlatdar held that though the petitioner required the lands bona fide for personal cultivation the petitioner had failed to establish in each case that the income from the lands in question would constitute the main source of income for her maintenance and upon that finding dismissed her applications. he therefore rejected the appeals holding that the requirement of section 34(2)(c) of the act was not satisfied and the petitioner was not entitled to terminate the tenancy of the respondents and to recover possession from them of the lands in question. it is well-known that very many times the legislature resorts to an amendment for the purpose of clarifying its intention and to make the meaning of the words used earlier by it clear......failed to establish in each case that the income from the lands in question would constitute the main source of income for her maintenance and upon that finding dismissed her applications. the district deputy collector in appeals filed by her against the orders of the mamlatdar also came to the same conclusion and dismissed the appeals. the district deputy collector found that the petitioner was in possession of lands in excess of an agricultural holding in area and therefore would be entitled to terminate the tenancy of not more than a moiety of the said lands. upon that finding he took into consideration the estimated income of one half of the lands in respect of which she would be entitled to terminate the tenancy and on that footing held that the estimated income from a moiety of.....
Judgment:

J.M. Shelat, C.J.

1. This is a petition under Article 227 of the Constitution relating to the lands described in para 2 thereof and prays for an appropriate direction or order setting aside and cancelling the order dated November 28 1957 passed by the Mamlatdar Chikhli the order of the District Deputy Collector dated August 26 1959 and the order passed by the Revenue Tribunal dated October 26 1960 The petition came on for hearing before Mr. Justice Divan who finding that it involved the question of construction of Section 34(1)(a) proviso Section 34(2)(c) and Section 34(2A)(3) of the Bombay Tenancy and Agricultural Lands Act 1948 as it stood prior to the Amending Act XIII of 1956 referred it to a Division Bench. That is how this matter has come up before us for final disposal.

2. The facts leading to the petition may be stated as follows The petitioners husband Kesharichand Nathchand is the owner of certain agricultural lands situate in village Khergam District Surat and respondents 2 to 6 have been at all material times the tenants of the various survey numbers comprised of these lands. The petitioners husband is a lunatic and therefore in her capacity as his guardian and next friend she filed five tenancy applications in the Court of the Mamlatdar Taluka Chikhli against respondents 2 to 6 for recovery of possession of the said lands in their respective possession on the ground that the lands were required bona fide and for personal cultivation under Section 34 read with Section 29 of the Act. The Mamlatdar held that though the petitioner required the lands bona fide for personal cultivation the petitioner had failed to establish in each case that the income from the lands in question would constitute the main source of income for her maintenance and upon that finding dismissed her applications. The District Deputy Collector in appeals filed by her against the orders of the Mamlatdar also came to the same conclusion and dismissed the appeals. The District Deputy Collector found that the petitioner was in possession of lands in excess of an agricultural holding in area and therefore would be entitled to terminate the tenancy of not more than a moiety of the said lands. Upon that finding he took into consideration the estimated income of one half of the lands in respect of which she would be entitled to terminate the tenancy and on that footing held that the estimated income from a moiety of the said lands would not be in comparison larger than her income from other sources. He therefore rejected the appeals holding that the requirement of Section 34(2)(c) of the Act was not satisfied and the petitioner was not entitled to terminate the tenancy of the respondents and to recover possession from them of the lands in question.

3. Against these orders rejecting her applications the petitioner filed a common revision application before the Tribunal. The Tribunal agreed with the interpretation placed by the District Deputy Collector on Section 34(2)(c) of the Act and rejected the revision application.

4. Mr. Shah for the petitioner contended (1) that the construction placed by the Tribunal on Section 34(2)(c) was erroneous; (2) that though by reason of the fact that the petitioner was holding land in excess of an agricultural holding in area and she would therefore be entitled to terminate tenancy in each of the cases to the extent of not more than a moiety of the land held by each of the tenants still while considering the question of the main source of income for her maintenance it was the estimated income of the entire land in suit which had to be first arrived at and then compared with her income from other sources and if it were found that such estimated income was larger than the other the next question would arise namely in respect of how much land she should be entitled to terminate the tenancy and recover possession. On that question Mr. Shah agreed that as the petitioner was at the material time holding land more than an agricultural holding in area she would be entitled to terminate the tenancy of only half the land in question and also recover possession only of one half of such land. But the argument of Mr. Shall was that Section 34 contained various restrictions on the right of a landlord to terminate the tenancy of a protected tenant. The first restriction was that the landlord must establish that he requires the land which is under the tenancy of a protected tenant bonafide and for personal cultivation. Having established that he has next to establish that the income from such land would be the main source of income for his maintenance. Even if he proves both these conditions if at the material time he is holding land more than an agricultural holding in area he would be entitled to terminate the tenancy in respect of half the land only. The contention urged was that even though a landlord holding land which was more than an agricultural holding in area would be entitled to terminate the tenancy only to the extent of half of the land which was the subject matter of tenancy that restriction was a further restriction imposed on such a landlord but that restriction has to be considered at the time when the Mamlatdar passes his order on his application. It has however nothing to do with the consideration whether the estimated income from the land. which is the subject matter of the tenancy is the main source of income for his maintenance and therefore the income which is to be compared with his income from other sources would be the income from the entire land and not half the land though it is only the half of it in respect of which he can terminate the tenancy and recover possession from the tenant.

5. To appreciate this contention and to consider whether the suggested construction of Section 34(2)(c) is a correct one it is necessary to examine the provisions of and the scheme of Section 34.

6. Before we proceed to consider the section we may note two facts. The first is that it is an admitted fact that at the material time the petitioner held land which was in excess of an agricultural holding in area and the second is that it is Section 34 as it existed prior to the Amendment Act of 1956 which is applicable in the present case.

7. Coming now to Section 34 it is clear from the non-stat clause in Sub-section (1) that it is an exception to the general ban placed by the Legislature against termination of tenancy by a landlord contained in Section 14 of the Act. Sub-section (1) however provides that a landlord can terminate the tenancy provided he proves that he requires the land for either of the two purposes named therein. The words the land in Sub-section (1) mean the land which he requires bona fide and for personal cultivation and which is the subject matter of the tenancy. Though Sub-section (1) thus entitles a landlord to terminate the tenancy Sub-section (2) proceeds to lay down another restriction and provides that even though a landlord requires the land bona fide and for personal cultivation he cannot terminate the tenancy if he has at the material time been personally cultivating other land which is fifty or more acres in area. The proviso to Sub-section (2) however provides that if he is cultivating land which is less than fifty acres he will be entitled to terminate the tenancy and recover possession of the land to such extent as would make up the fifty acres. The proviso thus contemplates a partial termination of tenancy even though the tenancy may be one integrated one and also the continuation of the tenancy in respect of the rest of the land. Clause (b) of Sub-section (2) then lays down a still further restriction providing that even if the first two restrictions are got over a landlord would not be entitled to terminate the tenancy if the tenant has become a member of a cooperative farming society so long as such tenant remains such member. Subsection (3) as it then stood provided that if under Sub-section (2) the tenancy is terminated of a part of the land leased to a protected tenant the rent in respect thereof shall be apportioned in the prescribed manner in proportion to the area of the land left with such tenant. Therefore the section even as it stood prior to its amendment in 1952 contemplated (a) partial termination and (b) adjustment of rent payable in respect of the land left with the tenant after such partial termination.

8. By Bombay Act XXXIII of 1952 the legislature once again amended the Act and inserted by Section 8 thereof Clause (c) in Sub-section (2) and a new sub-section Sub-section (2A). It is necessary to note that the fact that the Legislature inserted both these amendments at the same time shows that it did so as a result of a policy which it had in mind at that time. Clause (c) in Sub-section (2) laid down a further restriction on the landlords right of termination of tenancy given by Sub-section (1) namely that even if the landlord requires the land bona fide and for personal cultivation and even if he is cultivating other land which is less than fifty acres he has yet to show that the income by the cultivation of such land will be the main source of income of the landlord for his maintenance. As to the meaning of the expression the main source of income a Full Bench of the High Court of Bombay in Pendses case : AIR1957Bom193 laid down that not only the landlord must show that the income from the land of which he is seeking to terminate the tenancy and to recover possession will be for his maintenance but he must also show that such income would be his principal source of income. Not content with this new restriction the Legislature laid down a still further restriction and Clause (3) of the new Sub-section (2A) provided that if the land held by the landlord is more than an agricultural holding in area his right to terminate the tenancy shall be limited to an area which shall after such termination leave to the tenant half the area of the land leased. It is thus clear that the termination of tenancy which a landlord holding land more in area than an agricultural holding can seek would be not more than one half of the land in the tenants occupation.

9. The question then is what is the meaning of the words such land occurring in Clause (c) of Sub-section (2) the estimated income from which has to be the main source of income of the landlord who seeks the termination of tenancy? Do the words such land in the context in which they are used mean the land which he requires for personal cultivation and in respect of which he gives a notice of termination or do those words mean only that part of the land which is the subject matter of the tenancy and in respect of which he can under the section terminate the tenancy? Mr. Shah canvassed for the former construction relying on the words on the ground that the landlord requires the land for cultivating it personally while Mr. Pandit for the tenants canvassed for the latter construction. We are assured by both the learned Advocates that there is no decision on this question and therefore we have to go to the clause unaided by any precedent for its interpretation.

10. Though at first blush it would seem that the construction suggested by Mr. Shah may be right namely that the estimated income that is relevant is the income of the land which the landlord requires for cultivating personally that is to say the entire land in respect of which he gives notice of termination and seeks possession of a closer scrutiny of the clause and the scheme of the section as amended in 1952 would show that such a construction is not sustainable. Clause (c) of Sub-section (2) lays down that though a landlord may require the land which is the subject matter of the tenancy bona fide and for cultivating it personally he cannot terminate its tenancy unless such personal cultivation by him would be the main source of his income for his maintenance. The words such land in Clause (c) refer undoubtedly to the land which a landlord requires for personal cultivation. But such land is that land which if personally cultivated by him will be the main source of income of the landlord for his maintenance. In that context the point to consider is which is the land which the landlord requires for personal cultivation the income of which when so personally cultivated by him will be the main source of his income? Viewed in that light such land must mean the land which when given possession of he would personally cultivate and from which he would derive income which would be the main source of income for his maintenance. The crucial words in Clause (c) are the words of the condition or the restriction laid down therein namely unless the income by the cultivation of such land will be the main source of the income of the landlord for his maintenance. These words must mean that the income that is to be calculated and which must be the main source of the income would be that income which he is likely to derive from the land which he would personally cultivate. That would be such land in respect of which he can terminate the tenancy under the section and not the entire land in respect of which he may have given a notice of termination. This construction which we are inclined to accept and which the Tribunal has adopted has the merit of being consistent with Sub-section (2A)(3) which the Legislature introduced in the section at the same time and by the same section when it amended Section 34 by Act XXXIII of 1952. Under Clause (3) of Subsection (2A) a landlord can terminate the tenancy only of half of the land leased by him if he is cultivating land which is more than an agricultural holding in area. He can terminate the tenancy in such a case only to the extent of not more than half of such land. Can such a landlord possibly say that the income of the entire land for which he has given a notice of termination on the ground of personal cultivation is such estimated income which will he the main source of his income for his maintenance when the Legislature has laid down that he can terminate the tenancy of only one half of the land leased by him and further that it would be the income derived from personal cultivation by him of such one half land only which would be the income for his maintenance when he gets its possession. The words will be the main source of the income of the landlord for his maintenance must refer to the income from such land in respect of which he can terminate the tenancy under this section and which if he cultivates personally can give him income which would be the main source of his income for his maintenance. The words requires the land in Clause (c) therefore must be read with and in the context of the words of the condition that follow them namely the income from such land will in future when he cultivates it be his main source of income. Those words therefore must mean that land which he requires in order that the income therefrom will be the main source of income when he cultivates it personally. In this view it must be held that the construction placed both by the Tribunal and the District Deputy Collector on Clause (c) of Sub-section (2) of Section 34 was a correct construction.

11. Mr. Shah however argued that such an interpretation is not warranted and urged that if that was what was meant by the Legislature when it introduced Clause (c) in Sub-section (2) in 1952 there was no necessity for the Legislature to use a different phraseology when in 1956 it again amended the Act. In 1956 the Legislature practically overhauled the entire Act and Section 31 was substituted for Section 34. It is true that in Section 31-A the Legislature has introduced Clause (c) which provides a condition to the landlords right of termination of tenancy and has used the following words namely the income by the cultivation of the land of which he is entitled to take possession is the principal source of income for his maintenance. The contention was that the amendment shows that the Legislature in clear terms this time decided to provide that the income that would be relevant would be that income which the landlord would derive from the land which he would be entitled to take possession of and not the land as provided earlier which he requires for personal cultivation. Mr. Shah argued that the change in the phraseology in the Act of 1956 showed that the Legislature wanted to still more restrict the landlords right to terminate the tenancy and the new restriction which did not exist before was that the income which has to be the principal source of income would be the income from such land of which he would be entitled to take possession. In our view this is not the necussary inference from the amendment. It is well-known that very many times the Legislature resorts to an amendment for the purpose of clarifying its intention and to make the meaning of the words used earlier by it clear. The change in language in Clause (c) of Section 31-A was made it appears for such clarification. The Legislature surely could not have intended when it inserted Clause (c) in Section 34(2) in 1952 that though a landlord holding land more than an agricultural holding in area would be entitled to terminate the tenancy of a moiety of the land which is subject to the tenancy and therefore can recover possession of that much land only for personal cultivation and for supplementing his other income which is insufficient for his maintenance when it conies to deciding the question whether the supplemental income would be the principal source of his income the income from the entire land should be taken into account.

12. What was intended and meant by the legislature was that since a landlord requires land to supplement by personal cultivation his existing income which is insufficient for his maintenance it is the income arising from such land which he would cultivate if he is permitted to terminate the tenancy which should be the main source of his income. If Mr. Shahs construction were to be accepted it would mean that though a landlord can terminate tenancy only of half of the land and can recover possession of only half of such land arid he can therefore cultivate only that much of it still the income of the entire land is to be taken into account for the purpose of finding out whether such income would be the main source of his income for his maintenance although the Legislature had provided in the same breath that he cannot derive the entire income as he can only terminate the tenancy in respect of only half of the land under the tenancy. Such an anomalous result in our view could not have been contemplated by the Legislature and it was because the language used in the 1952 Act was capable of raising such a contention that the Legislature in 1956 clarified its intention in Clause (c) of Section 31-A of the 1956 Act.

13. In the view that we take of Clause (c) of Sub-section (2) of Section 34 read in the light of the other provisions of that section we think that the Tribunal was right in the construction which it placed upon that clause and the argument urged on behalf of the petitioner therefore must be rejected. The petition fails and has to be rejected. Rule discharged. The petitioner will pay to the respondents the costs of this petition.


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