A.M. Ahmadi, J.
1. By a lease deed dated 13th July 1917 land bearing Survey No. 616/2 (A.O.G. 23) and Survey No. 630/3 (A.O.G. 19) of Adajan was given on lease to Edalji Hormasji, the grandfather of the respondent for a period of five years for tapping toddy trees at the rate of Rs. 3/- per tree. It appears that after the efflux of time prescribed in the rent note, the grandfather of the respondent continued in occupation of the aforesaid two Survey Numbers. There is no evidence, to the effect that the land-owners had obtained possession of the land, from the respondent's grandfather till his death. At the relevant point of time when the respondent made an application after the tillers' day, that is, 1st April 1957, for being declared the deemed purchaser and for fixation of the purchase price, the name of the present respondent was mutated in the revenue records as the occupant of the land.
2. The respondent made an application under Section 32-G of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter called 'the Act') for determination of the price of the land to be paid by him as deemed purchaser to the land owners. The Agricultural Lands Tribunal by its order dated 28th December 1967 determined the price but the said order was set aside with a direction to hold the inquiry de novo after notice to the landlords. In the de novo inquiry held by the Agricultural Lands Tribunal, the Tribunal fixed the price of the land at Rs. 1800/- and permitted interest thereon at 4lA per cent per annum with effect from 1st April 1957 by an order dated 17th February 1975. The Tribunal came to the conclusion that the respondent was a deemed purchaser of the land in question within the meaning of Section 32 of the Act and was, therefore, entitled to purchase the land at the price determined by the Agricultural Lands Tribunal. Against this order passed by the Agricultural Lands Tribunal under Section 32-G of the Act, the land-owners preferred an appeal to the Assistant Collector, Choryasi Prant, Surat. The Assistant Collector by his order dated 31st August 1976 confirmed the order passed by the Agricultural Lands Tribunal and dismissed the appeal. Against the said order the land owners preferred a Revision Application to the Gujarat Revenue Tribunal which was heard and disposed of on 9th February 1978. The Revenue Tribunal came to the conclusion that the land in question was agricultural land which was being cultivated by the present respondent by growing grass and vegetables. The Tribunal also came to the conclusion that even if the respondent's statement that he was growing vegetables in the land was disbelieved, the evidence on record clearly indicated that grass was grown in the land and, therefore, it could safely be said that the land was being cultivated for carrying out agricultural operation therein. The Tribunal further observed that even 'Khajura trees require looking after which would result in agricultural operation.' In this view that the Tribunal took, the Tribunal confirmed the order passed by the authorities below and rejected the Revision Application. It is against this order of the Tribunal that the landlords have preferred this petition under Article 227 of the Constitution.
3. At the hearing of this petition, Mrs. Mehta, the learned advocate for the landlords, raised the following questions:
(1) The grandfather of the present respondent had two sons and since the legal representatives of the uncle of the respondent had not been impleaded as parties to the petition under Section 32-G of the Act, no relief could be granted as prayed by the respondent as it would violate the provision of Section 27 of the Act which prohibits sub-division, sub-letting or assignment of any interest in the land;
(2) Having regard to the fact that the lands in question were leased for the specific purpose of tapping the toddy trees situate therein, on the enactment and application of the Bombay Prohibition Act, 1949, to that area, the sole purpose for which the land was leased was rendered unlawful, inasmuch as, tapping of toddy trees without a licence was made an offence under the said Act which in turn rendered the contract void by virtue of Section 56 of the Contract Act; and
(3) Since the land was given on lease under the rent note of 16th July 1917 for the specific purpose of tapping toddy trees, it could not be said that it was given for 'agricultural purposes' within the meaning of Section 2(1) read with Section 2(8) of the Act nor could it be said that the respondent's grandfather or the respondent himself was 'cultivating' the land within the meaning of Section 2(5) of the Act so as to entitle him to purchase the land by paying the price determined under Section 32-G read with Section 32 of the Act.
I will deal with these contentions in the order in which I have set them out.
4. Section 27 of the Act lays down that, save as otherwise provided in Section 32F, no sub-division or sub-letting of the land held by a tenant or assignment of any interest therein shall be valid; provided that if the tenant dies as a member of a joint family, the surviving members of the said family, and if he was not a member of a joint family, his heirs, shall be entitled to partition and sub-divide the land leased subject to the conditions catalogued in clauses (a) to (e) of the second proviso to Sub-section (1) thereof. The contention of Mrs. Mehta was that since the legal-representatives of the respondent's uncle had not joined in the application preferred by the respondent under Section 32-G of the Act, determination of the price of the land to be paid by the deemed purchaser would tantamount to a sub-division of the land within the meaning of Section 27 of the Act. To my mind this contention is far fetched for the simple reason that the second proviso permits partition and consequential sub-division of the land between the heirs of a deceased tenant. From the evidence of the respondent which was read out to me by Mrs. Mehta, there was clear indication that there was a prior partition and the land in question had fallen to the share of the respondent. In the circumstances there is no question of violation of Section 27 of the Act. Even otherwise assuming there was no partition between the legal representatives of the grandfather of the respondent, the mere making of an application under Section 32-G by one of the heirs of the deceased tenant would not amount to a sub-division of the land. In such a situation the only question which would arise for consideration is, whether such an application is maintainable without the other legal representatives of the deceased having been impleaded as parties to the application. I am, therefore, of the opinion that the contention founded on the language of Section 27 of the Act is clearly misconceived.
5. The question whether the respondent became a deemed purchaser on the tiller's day, that is, 1st April 1957, would depend on the question whether he was a tenant of the land in question on that date. Section 32(1) of the Act provides that on the first day of April 1957 every tenant shall, subject to the other provisions of this section and the provisions of the next succeeding sections, be deemed to have purchased from his landlord, free of all encumbrances subsisting thereon, on the said day, the land held by him as tenant, if (a) such tenant is a permanent tenant thereof and cultivates land personally; and (b) such tenant though not a permanent tenant, cultivates the land leased personally and to whom no notice terminating his tenancy has been given under Section 31 by the landlord or no application has been made for his eviction under Section 29 of the Act to the Mamlatdar on or before 31st March 1957 even after notice under Section 31 of the Act or there is no termination of tenancy on any of the grounds specified in Section 14, and even in cases where there is such termination, no application has been filed for eviction under Section 29 of the Act on or before 31st March 1957. Section 32-G enjoins upon the Tribunal to determine the purchase price of the land to be paid by the tenant to his landlord if he is willing to purchase the land after due notice to the landlord. It is clear from a conjoint reading of Section 32 and Section 32-G of the Act that in order to purchase the land after the tiller's day, it must be shown that the person seeking to purchase the land was a tenant in respect thereof on the tiller's day, that is, 1st April 1957. The definition of the expression 'tenant' is to be found in Section 2(18) which reads as under:
'tenant' means a person who holds land on lease and includes-
(a) a person who is deemed to be a tenant; under Section 4;
(b) a person who is a protected tenant; and
(c) a person who is a permanent tenant,
(d) a person who, after the surrender of his tenancy in respect of any land at any time after the appointed day but before the specified date has continued, or is deemed to have continued, to remain in actual possession, with or without the consent of the landlord, of such land till the specified date.
The definition of the word 'land' contained in Section 2(8) is land which is used for agricultural purposes or which is so used but is left fallow, and includes the sites of farm buildings appurtenant to such land 'Agriculture' within the meaning of Section 2(1) includes horticulture, the raising of crops, grass or garden produce, the use by an agriculturist of the land held by him or a part thereof for the grazing of his cattle, the use of any land. Whether or not an appanage to rice or paddy land for the purpose of rab manure but does not included allied pursuits, or the cutting of wood only, provided that in the case of such tracts of land abounding in natural growth of grass as the State Government may, by notification, in the Official Gazette, specify, 'agriculture' shall include the cutting of grass for any purpose. Under Section 2(2), the term 'agriculturist' means a person who cultivates land personally and the expression 'to cultivate' with its grammatical variations and cognate expressions means to till or husband the land for the purposes of raising or improving agricultural produce, whether by manual labour or by means of cattle or machinery, or to carry on any agricultural operation thereon. The Explanation to Section 2(5) which defines the expression 'to cultivate' clarifies that a person who takes up a contract to cut grass or to gether the fruits or ether produce of trees on any land, shall not on that account only be deemed to cultivate such land. Under Section 2(6) 'to cultivate personally' means to cultivate land on ones own account (i) by one's own labour; or (ii) by the labour of any member of one's family; or (iii) under the personal supervision of oneself or any member of one's family by hired labour or by servants on wages payable in cash or kind but not in crop share.
6. Since the land in question was given on lease for the sole purpose of tapping toddy trees, it was urged on behalf of the landlords that the purpose could not be said to be agricultural having regard to the definition of the term 'agriculture' contained in Section 2(1) of the Act such less could it be contended that the land was under cultivation within the meaning of Section 2(5) of the Act. Therefore, argued Mrs. Mehta, the respondent could not be said to be a 'tenant' in respect of the land in question within the meaning of Section 2(18) of the Act to be entitled to purchase the land as a deemed purchaser. There can be no doubt that tapping toddy trees cannot be said to be an agricultural activity under the Act. If the purpose for which the land was let was tapping of toddy trees, there can be no doubt that the user of the land could not be said to be for agricultural purposes within the meaning of Section 2(8) read with Section 2(1) of the Act. In that event it would be difficult to say that the respondent was the bolder of land defined in Section 2(8) so as to be covered within the definition of 'tenant' under Section 2(18) of the Act. Having regard to the meaning of the expression 'to cultivate' in Section 2(5) of the Act read with the Explanation thereto, it is equally difficult to hold that the respondent was a deemed tenant under Section 4 of the Act. Under that provision it must be shown that the person claiming to be a deemed tenant was lawfully cultivating any land belonging to another person. In order to show that the respondent was cultivating the land at the material point of time, the evidence on record must disclose that he was tilling or husbanding the land for the purpose of raising or improving agricultural produce or for carrying on any agricultural operation thereon. There is no evidence on record whatsoever that the respondent tilled or husbanded the land in question although he has stated that grass grows on the land and he was growing vegetables thereon, a statement which is not supported by any cogent evidence.
7. It was next argued by Mr. Desai that the respondent was a protected tenant within the meaning of Section 2(14) read with Clause (b) of Section 2(18) of the Act. Section 2(14) defines the expression 'protected tenant' to mean a person who is recognised to be a protected tenant under Section 4A. Section 4A in turn provides that a person shall be recognised to be a protected tenant for the purposes of the Act if he has been deemed to be a protected tenant under Sections 3, 3A and 4 of the 1939 Act reproduced in the First Schedule. Under Section 3 of the 1939 Act a tenant shall be deemed to be a protected tenant in respect of any land if he has held such land continuously for a period of not less then six years immediately preceding the first day of January 1938 or the first day of January 1945 and has cultivated the land personally during the aforesaid period. Section 3A of the 1939 Act laid down that every tenant shall, from the 8th day of November 1947 be deemed to be a protected tenant and his rights as such protected tenant shall be recorded in the Record of Rights unless his landlord has prior to the aforesaid date made an application to the Mamlatdar for declaration that the tenant is not a protected tenant. Section 4 further provided that every tenant shall be deemed to be a protected tenant if he held any land and cultivated it personally continuously for a period of not less then six years immediately preceding the first day of April 1937 and was evicted from such land on or after such date otherwise then by order of a competent authority on any of the grounds specified in Section 14 or held any land and cultivated it personally continuously for a period of not less then six years immediately preceding the first day of April 1944 and was evicted from such land on or after such date otherwise then by order of a competent authority on any of the grounds specified in Section 14.
8. Under the 1939 Act also 'land' meant land used for agricultural purposes. The term 'agriculture' defined in Section 2(1) of that Act included horticulture, the raising of crops or garden produce, dairy farming, stock breeding and grazing, but not cutting of grass or wood only. The expression 'to cultivate personally' defined in Section 2(11) of that Act meant to cultivate by one's own account by one's own labour or by the labour of any member of ones family or by servants of hired labour under one's personal supervision or the personal supervision of any member of one's family. Bearing in mind these definitions it is difficult to say that the purpose of letting was an agricultural purpose. As pointed out earlier, since the purpose of letting was tapping toddy trees situate in the land in question, it could not be said to be an agricultural purpose nor could it be said that the land was under the personal cultivation of the lessee. In the circumstances it is difficult to agree with Mr. Desai in his submission that the lessee was a protected tenant under the 1939 Act.
9. The next question to be considered is whether the lessee could be said to be a permanent tenant as defined in Section 2(1 OA) of the Act. According to that definition the expression 'permanent tenant' means a person (a) who immediately before the commencement of the Amending Act, 1955 holds land as mulgenidar or mirasdar or by custom, agreement, or the decree or order of a Court holds the land of lease permanently; or (b) the commencement or duration of whose tenancy cannot satisfactorily be proved by reason of antiquity; and includes a tenant whose name or the name of whose predecessor-in-title has been entered in the Record of Rights, or in any public record or in any other revenue record as a permanent tenant immediately before the commencement of the Amending Act. In the instant case, neither of these requirements is satisfied since the land was never held by the lessee as mulgenidar or mirasdar nor was it held on lease permanently since the duration of the lease has been mentioned to be five years in the rent note. The duration of the lease is also not lost in antiquity nor is it shown that the name of the lessee or his predecessor-in-title had been entered in the Record of Rights as a permanent tenant immediately before the commencement of the Amending Act, 1955. It is, therefore, clear that the lessee cannot be deemed to have purchased the land on the tiller's day under Section 32(1) of the Act.
10. The approach of the Revenue Tribunal to the questions at issue can be culled out from the following observations found in paragraph 4 of its judgment:
The first question to be considered is whether the land is an agricultural land or not. Looking to the extract of V.F. 7-12 it is clear that the land has been agricultural land and grass grows on the land. It is also true that there are some Khajura trees also. However looking to the area of the land the number of Khajura trees are not proportionate to the area and therefore it cannot be argued that the entire land contains only Khajura trees. It is therefore clear presumption that the land is agricultural land. Even the words 'cultivate personally' does not debar the type of cultivation where there are some fruit trees or other trees giving some yield and there is cultivation in between. Even if the say of the opponent that he is cultivating vegetables is not believed even then the grass is grown and there are Khajura trees. The combined operation would therefore result in agricultural operation and therefore Sub-section (5) and (8) of Section 2 of the Act do not bar the light of the land to be agricultural land. As discussed earlier the entries in the V.F. 7-12 are clear and therefore it has to be held that the land is agricultural land and the Act does apply. Regarding the question of the land not being cultivated there is no such evidence produced by the applicant. The land has been held on lease since the year 1917 and the possession has been with the opponent's family. There is no doubt that it can be said that they have been cultivating the land lawfully and even if the contractual tenancy is terminated there would not be any bar to the tenant being considered a statutory tenant.... Even Khajura trees required looking after which would result in agricultural operation and the grass which is grown would have to be cut. In that view of the matter there is no doubt that the opponent has a claim by heirship to be the tenant of the suit land.
With respect, the entire approach of the Tribunal is in total ignorance of the fact that the land was leased for the sole purpose of chopping or tapping toddy trees. This purpose for which the land was leased under the rent note of 1917 could never be said to be an agricultural purpose within the meaning of the Act. It is not the case even of the lessee that he was 'raising' grass in the land over which the Khajura trees were situate. It appears from the village form 7-12, xerox copies whereof have been placed before me by Mrs. Mehta, that grass grew on this land. But if grass grows naturally, it is not an agricultural operation because the 'definition of agriculture' under Section 2(1) speaks about 'raising of grass' and not 'grass growing naturally' on the land. In such circumstances the lessee cannot be said to be an 'agriculturist' within the meaning of Section 2(2) of the Act since there is no evidence to suggest that he was cultivating the land as understood by Section 2(5) of the Act; much less could it be said that he was personally cultivating the land as understood by Section 2(6) of the Act. The entry in the village form only shows that he and his predecessors-in-title were the occupants of the land. That means that even after the period of five years expired, the possession of the land continued to be with the predecessors-in-title of the lessee. However, after the Bombay Prohibition Act, 1949, came into effect, the purpose for which the land was let was frustrated as tapping of toddy trees was prohibited by Section 16 of that Act. Section 15 also prohibited the import, export, transport or possession of sweet toddy or nira. Under Section 11 only those holding a licence, permit, pass or authorization could import, export, transport, manufacture, bottle, sell, buy, possess, use or consume any intoxicant or hemp or cultivate or collect hemp or tap any toddy producing tree or permit such tree to be tapped or draw toddy from any such tree or permit toddy to be drawn there form. It, therefore, becomes clear from these provisions of the Prohibition law that tapping of toddy tree or permitting toddy trees to be tapped was an offence punishable under Section 66 of that Act It was, therefore, unlawful for the lessee to tap toddy trees and for the lessor to permit tapping of today trees which was the sole purpose for which the land was leased under the agreement of 1917. Even after the expiry of five years since the predecessor-in-title of the lessee continued to remain in occupation of the land, it could at best be said that they were holding over the land on the same terms and conditions. They could not change the purpose of letting after the expiry of the contractual period and if the purpose remained the same, it became unlawful on the enactment of the Bombay Prohibition Act, 1949. In other words, since the purpose of letting became unlawful, the lease stood frustrated and by virtue of Section 56 of the Contract Act it became void. The relevant part of Section 56 of the Contract Act states that a contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful. On the plain language of Section 56 of the Contract Act, therefore, the lease became void on the enactment of the Bombay Prohibition Act, 1949, since tapping of toddy trees and permitting the tapping of toddy trees was prohibited and contravention thereof was made punishable under Section 66 with imprisonment for a term which may extend to six months and with fine which may extend to one thousand rupees.
In view of the above, the purpose of letting having become unlawful, the lease was rendered void before the tiller's day, that is, 1st April 1957. Even if the lessee continued to remain in occupation of the land since the lease was rendered void, he could never claim to derive the rights conferred on a tenant under Section 32 of the Act. Therefore even apart from the fact that the initial purpose of letting was not agricultural and the lessee could not be said to be an agriculturist within the meaning of the Act, his occupation of the land ceased to be as a tenant holding over in view of the tenancy having become void by virtue of Section 56 of the Contract Act. Such an occupant could never be said to be a tenant within the meaning of the Act. The Tribunal has overlooked this aspect of the question presumably because the point was not raised in so many words before the Tribunal. Be that as it may, the fact remains that even under the provisions of the Act since the letting was for the limited purpose of tapping toddy trees, it could not be said that the land was leased for agricultural purposes or that any agricultural operation was contemplated by the lease. The original lessee was a toddy dealer and he had entered into the contract to tap toddy trees for the purposes of carrying out his trade under the document of 1917. There is no evidence whatsoever to suggest that he ever tilled or husbanded the land. He could not, therefore, be said to have cultivated the land, much less to have cultivated it personally. The Tribunal was, therefore, clearly wrong in observing that since there are only a few Khajura trees, not proportionate to the total area of the land, a presumption arises that the land is agricultural land. The character of the land is one thing; the purpose of letting is altogether different. The Tribunal was further in error in assuming that Khajura trees gave some yield and there was cultivation in between those trees and the combined operation amounted to an agricultural operation within the meaning of Sub-sections (5) and (8) of Section 2 of the Act. In the first place there is not an iota of evidence to suggest that the lessee received yield other then toddy from the trees situate on the land. As stated-earlier, the land was leased for the sole purpose of permitting tapping of toddy trees. There was no question of receiving any other yield from the standing trees. There is also not an iota of evidence to show that the land in between the toddy trees was used for cultivation, much less personal cultivation, within the meaning of the Act. Even the Tribunal found it difficult to hold that the lessee was growing vegetable in the land. The village forms 7-12 for the relevant period show that grass grew naturally on the said land. Beyond that there is no other evidence. The Tribunal goes to the length of observing that Khajura trees required looking after which was an agricultural operation. Even the lessee has not come out with any such statement. To say the least, the Tribunal has made a laborious effort to bring the case within the purview of the Act even though in fact it lay outside its jurisdiction. The Tribunal's order, therefore, cannot be sustained.
11. Lastly Mr. Desai submitted relying on a decision of the Supreme Court in Mohd. Yunus v. Mohd. Mustaqim : 1SCR211 , that this Court in exercise of jurisdiction under Article 227 of the Constitution should not interfere with the Tribunals order even if the same is found to be contrary to law. In that case the Supreme Court observed that in exercise of the supervisory jurisdiction of this Court under Article 227 of the Constitution what has to be seen is whether or not the inferior Court or Tribunal has functioned within the limits of its authority and not to correct an error apparent on the face of the record, much less an error of law. Since I have come to the conclusion that the case did not fall within the purview of the Act, it is obvious that the authorities under the Act including the Tribunal had no authority or jurisdiction to declare the lessee to be the deemed purchaser of the land in question. The Tribunal had, therefore, clearly exceeded its authority and, therefore, this Court in exercise of its supervisory jurisdiction is duty bound to interfere, and correct the error.
12. In the result this petition succeeds. The order passed by the Tribunal as well as the authorities below declaring the lessee to be a deemed purchaser of the land is quashed and set aside. The rule is made absolute but in the circumstances of the case, there will be no order as to costs.