S. B. MAJMUDAR, J. ( 1 ) HIS petition under Art. 227 of the Constitution of India raises a short question regarding applicability of the provisions of sec. 43 A (1) (b) of the Bombay Tenancy and Agricultural Lands Act 1948 (he Tenancy Act) to the lands in question. ( 2 ) IN order to appreciate the real nature of controversy between the parties it is necessary to glance through a few relevant facts leading to the present petition. ( 3 ) THE petitioner is an agriculturist and has been cultivating lands survey nos. 823 824 and 825 admeasuring respectively 3 acres-35 gunthas 2 acres-14 gunthas and 1acre-27 gunthas situated on the outskirt of village Kadi in Kadi taluka of Mehsana district. The petitioner has been in possession of these lands since 5-4-1950 as per the agreement entered into between the petitioner-tenant and the respondent-landlord. The Case of the petitioner is that as per the said agreement he was in possession of the three lands as a tenant and was permitted to cultivate these lands and also to raise mango trees therein. He had also to protect the existing mango trees which were on the lands on the date of the lease. The petitioners contention is that as a tenant of these lands he had become a deemed purchaser thereof under the provisions of sec. 32 of the Tenancy Act. It appeals that initially proceeding under sec. 32-G were taken out by the then Mamlatdar and Agricultural Lands Tribunal Kadi in 1961 and that by an order dated 2-1-1961 the then Mamlatdar and A. L. T. held that the aforesaid lands in question were exempt from the operation of the tillers day legislation on account of sec. 43a of the Tenancy Act. The aforesaid decision of the A. L. T. was reached in tenancy case 108-109/61. ( 4 ) IT appears that thereafter the present petitioner invoking the provision of sec. 32-0 read with secs. 70b 23 and 43-A again requested the Mamlatdar and A. L. T. Kadi by the end of year 1972 to fix the pur- chase price of all the three survey numbers which were in his possession. Thus he put forward his case of a new tenancy after the tillers day vis-a-vis the lands in question which belonged to the respondent-landlord. Accordingly the Mamlatdar and A. L. T. Kadi initiated fresh proceedings under sec. Thus he put forward his case of a new tenancy after the tillers day vis-a-vis the lands in question which belonged to the respondent-landlord. Accordingly the Mamlatdar and A. L. T. Kadi initiated fresh proceedings under sec. 32-0 read with secs. 70b and 32-G of the Tenancy Act. Those proceedings were registered as tenancy case No. 9/72/1/73. In the said proceedings the power of attorney of the respondent-landlord contended that all the aforesaid three survey numbers which were given to the petitioner under the agreement dated 5-4-1950 were having mango groves and consequently they were exempt from the operation of the deemed purchase provisions of the Tenancy Act on account of the application of sec. 43-A (1) (b) of the Tenancy Act. The Mamlatdar and A. L. T. examined the petitioner in support of his application for fixation of purchase price for all the three survey numbers. The petitioner also examined his other witnesses. The power of attorney holder of the respondent-landlord examined himself and also examined his other witnesses in support of his rival contentions. The Mamlatdar and A. L. T. got a Panchkyas made of the lands in question and himself visited the site and ultimately came to the conclusion that in all the aforesaid threw survey numbers mango trees were located but there was cultivation also. So far as two survey survey num- bers 824 admeasuring 2 acres-14 gunthas and 825 admeasuring 1 acre-27 gunthas were concerned the Mamlatdar held that these lands could not be said to be having any mango groves thereon and consequently they were not exempt from the operation of the deemed purchase legislation. The Mamlatdar also negatived the contention of the respondent that purchase price proceedings cannot be re-initiated on account of the earlier order dropping the purchase price proceedings as passed by the then Mamlatdar and A. L. T. in case Nos. 108-109/61. The Mamlatdar therefore held that for survey nos. 824 and 825 purchase price could be fixed in favor of the petitioner who was held to be a tenant thereof. 108-109/61. The Mamlatdar therefore held that for survey nos. 824 and 825 purchase price could be fixed in favor of the petitioner who was held to be a tenant thereof. So far as survey No. 823 was concerned the Mamlatdar held that the petitioner was a tenant of the said land but according to the Mamlatdar this survey number was having 11 mango trees situated therein and hence it bad to be treated as a mango grove which according to the Mamlatdar got excluded from the operation of the deemed pouches provisions on account of sec. 43a of the Tenancy Act. As a result of his aforesaid finding the Mamlatdar decided to fix purchase price of two survey numbers 824 and 825 but rejected the tenants prayer for fixation of purchase price so far as S. No. 823 was concerned. ( 5 ) BEING aggrieved by the aforesaid order of the Mamlatdar and A. L. T. dated 28-7-1975 so far as S. No. 828 was concerned the petitioner preferred an appeal being tenancy appeal No. 165 of 1975 before the Assistant Collector Mehsana under the provision of sec. 74 of the Tenancy Act. The Assistant Collector Mehsana on reappreciation of the evidence came to the conclusion that even for S. No. 823 province of the deemed probes legislation applied and purchase price thereof was required to be fixed under the provisions of sec. 32-G of the Tenancy Act. For coming to the above conclusion the Assistant Corrector considered a few well established facts on the record of the case viz. that the agree- ment in question between the petitioner-tenet and the respondent-landlord was a single agreement coveting all the three survey numbers and under that agreement there was a specific mention that all the survey numbers were given for cultivation and also for preservation and protection of the trees standing thereon. The Assistant Collector also noted the further fact that all the three survey numbers were put in cultivation by the petitioner after the agreement of 1950 all throughout thereafter and that the petitioner had never reared any fruit bearing trees in any of though lands thereafter. The Assistant Collector also noted that record of right 7 extracts clearly showed that in all the three survey numbers cultivation was carried on year after year by the tenant. The Assistant Collector also noted that record of right 7 extracts clearly showed that in all the three survey numbers cultivation was carried on year after year by the tenant. Under these circumstances the petitioner was clearly a tenant of all These land are there was no question of application of sec. 43-A of the Tenancy Act to the land in question. Consequently the Assistant Collector allowed the appeal of the petitioner and directed the Mamlatdar and A. L. T. to fix the purchase price of survey number 823 also alongwith other two survey numbers for which the Mamlatdar himself had decided in favor of the petitioner. ( 6 ) THEREAFTER the respondent-landlord being aggrieved by the appe- llate order of the Assistant Collector carried the matter in revision to the Gujarat Revenue Tribunal. His Revision Application No. TEN 13 311 of 1976 was heard by the learned member of the Tribunal on 3-1-1977. The Tribunal noted the fact that the disputed land being S. No. 823 was given for cultivation of crops alongwith other purpose of the lease being maintaining mango plantation which was also existing therein. But the Tribunal tools the view that as originally the A. L. T. had held in 1961 that provisions of sec. 43a were applicable to all the lands in question the price could not be fixed of the land in question. The Tribunal further held that even if crop was grown in between the mango trees in the land in question operation of sec. 43a could not be avoided and consequently the order of the Mamlatdar in respect of S. No. 823 deserved to be upheld. The Tribunal therefore allowed the revision application of the respondent- landlord set aside the order of the Assistant Collector and restored the order of the Mamlatdar qua disputed S. No. 823. ( 7 ) BEING aggrieved by the aforesaid order of the Tribunal which is at Annexure C to this petition the petitioner-tenant has preferred this petition under Article 226 of the Constitution of India but which in substance is a petition under Article 227. I accordingly proceed to dispose of the petition under Article 227. ( 8 ) THAT takes me to the consideration of the last and the most vital submission raised by Mr. Thakkar for the petitioner and which has clinching effect on the decision of the present case. I accordingly proceed to dispose of the petition under Article 227. ( 8 ) THAT takes me to the consideration of the last and the most vital submission raised by Mr. Thakkar for the petitioner and which has clinching effect on the decision of the present case. It was submitted by Mr. Thakkar for the petitioner that under the same document of lease dated 5-4-1950 the petitioner was made the tenant of the three survey numbers and the purpose of the lease was two-fold purpose- (1) to permit the petitioner to cultivate these lands and (2) to enable him to keep watch over the existing 18 mango trees and to take their products and to divide the same between the petitioner and the respondent. Mr. Thakkar further submitted that in addition to the aforesaid two-fold purposes was -the third and an ancillary purpose that the petitioner was permitted to rear up fresh fruit trees on the lands if he so chose. But even in that even- quality the produce of these newly reared up fruit trees was also to be divided between the landlord and the tenant in fixed proportions. Mr. Thakkar therefore submitted that the lease in question was a composite lease and was not purely for growing of fruit trees and hence provisions of sec. 43-A of the Tenancy Act can never apply to the disputed land and that the Tribunal was patently in error in pressing in service the provisions- of sec. 43a. In order to appreciate the aforesaid submissions of Mr. Thakkar it is necessary to have a look at sec. 43x4. Sec. 43-A is found in Chapter III-A of the Tenancy Act which is having a caption Special provisions for lands held on lease by industrial or commercial undertakings and by certain person for the cultivation of sugarcane and other notified agricultural produce. The relevant part of the said section reads as under :"43 (1) The provisions of secs. 43x4. Sec. 43-A is found in Chapter III-A of the Tenancy Act which is having a caption Special provisions for lands held on lease by industrial or commercial undertakings and by certain person for the cultivation of sugarcane and other notified agricultural produce. The relevant part of the said section reads as under :"43 (1) The provisions of secs. 4b 8 9 9 9 9 10 10 14 16 17 17 17 18 27 31 to 31d (both inclusive) 32 to 32r (both inclusive) 43 63 63 64 and 65 shall not apply to- (A) land leased to or held by any industrial or commercial undertaking other than a co-operative society which in the opinion of the State Government bona fide carries on any industrial or commercial operations and which is approved by the State Government; (B) leases of land granted to any bodies or persons other than those men. tioned in clause (a) for the cultivation of sugarcane or the growing of fruits or flowers or for the breeding of livestock". A mere look at the aforesaid provisions shows that before the provisions of the said section can be pressed into service and before they can be made to over-ride the deemed purchase provisions of secs. 32 to 32r of the Act it must be shown that the lease of lands in question was granted to any person for growing of fruits or flowers amongst others. It is therefore obvious that the exemption provisions of sec. 43a (1) (b) would apply if the landlord can show that the lease of the lands 8ranted by him to the tenant was for the specific purpose of growing of fruits and flowers. If the lease is for such a specific purpose the lands covered by such lease would be exempt from the provisions of deemed purchase legislation covered by secs. 30 to 32r. It is also clear from the aforesaid provisions that even though the land covered by sec. 43a (1) (b) is an agricultural land as defined by sec. 2 (8) (a) still it would not be liable to be compulsorily sold to the tenant if the purpose of the lease of such land was of growing of fruits or flowers. It is also clear from the aforesaid provisions that even though the land covered by sec. 43a (1) (b) is an agricultural land as defined by sec. 2 (8) (a) still it would not be liable to be compulsorily sold to the tenant if the purpose of the lease of such land was of growing of fruits or flowers. It is therefore clear that the aforesaid exemption provision would apply to only those leases of agri- cultural lands which were made with the sole purpose or main purpose of growing of fruits thereon or flowers. So far as the facts of the present case are concerned the situation is entirely different. Even the G. R. T. while agreeing with the Assistant Collector has held that from a look at the agreement in question it becomes clear that the land was given for cultivation and also given for maintaining mango plantation. Thus the Tribunal also found that there was a dual purpose of the lease so far as the disputed land is concerned. But in the view of the Tribunal even if crop was grown in between the mango trees exemption under sec. 43-A cannot be taken out. With respect that part of the reasoning of the Tribunal is not correct. Before it can be found whether section 43- A can apply to the given land it must be established that the lease of the land in question was for the sole purpose or even for that matter main purpose of growing of fruits or flowers. Both the learned Advocates have invited my attention to the relevant recitals in the lease dated 54-1950 executed by the respondent-landlord in favor of the petitioner-tenant A copy of the said agreement was on the record of the case at page 183. Mr. Thakkar for the petitioner has shown to me the original agreement. Mr. Patel for the respondent had no objection to my looking into the original agreement. Having seen the original agreement I find that the said agreement covers all the three survey numbers. The respondent landlord in the said agreement has clearly stated that 18 mango trees were existing on the three survey numbers. Mr. Patel for the respondent had no objection to my looking into the original agreement. Having seen the original agreement I find that the said agreement covers all the three survey numbers. The respondent landlord in the said agreement has clearly stated that 18 mango trees were existing on the three survey numbers. There was also a parka well and one room in the lands in question and that by the said agreement he was giving possession of all the three survey numbers to the petitioner for the purpose of protection of the trees and for cultivation as per the conditions mentioned in the agreement. The first condition of the agreement is that existing 18 mango trees in all the three survey numbers were to be watched and preserved by the petitioner-tenant. Whatever income was received from the fruits of these trees was to be divided between the parties in such a way that the respondent-landlord was to be given 3/4th of the share and 1 was to be kept by the petitioner. If any of the existing trees got dried up in future the respondent was to be entitled to receive wood of that tree. The second condition of the agreement is that if the petitioner by his own labor chose to rear any other mango trees or any other fruit trees the respondent will be entitled to share of income of the fruits of such trees in such a way that 50% of the share would be of the respondent and 56% share would remain with the petitioner. The third condition of the agreement was that if cultivation was done by the petitioner in any of the three survey numbers apart from the trees then in that eventuality in all the three cultivations that is-monsoon winter and summer cultivations the share of the respondent would be 1/4th and 3 share of income from the cultivations would be of the petitioner. The fourth condition of the agreement was that the petitioner had to bear the entire tax of lands the fifth condition was that if the petitioner tenant reared any new fruit trees as permitted to him by condition No 2 while selling fruits of such trees the petitioner had to take consent of the respondent landlord meaning thereby that fruits of such trees were to be sold by mutual consent. The sixth condition provided that if any loss occurred to the lands in question or to the trees therein from any natural causes the loss had to be borne half to half by both the parties. Condition No. 7 of the agreement provided that the petitioner can stay in the room in the field provided therein and he had to utilise well water for the purpose of rearing of trees and for cultivation of crops and for that purpose the respondent had not to charge anything from the petiti- oner. The 8th condition provided that the petitioner can rear new mango trees within ten years to the extent of 125 to 200 in all and if he cannot do so whatever new trees may have been reared up by the petitioner would be valued by a panch and the respondent will have to pay such price and obtain possession of the land and the mango trees from the petitioner. The 9th condition provided that if the petitioner reared up new mango trees the respondent had not to take any price of the land and in case of any difference of opinion between the parties valuation of new fruit bearing trees was to be made and the price thereof was to be divied 50:50 between the parties. The 10th condition provided that upper limit for the purpose of rearing new trees was kept at 10 years and till that time on trees were to be evaluated or divided between the parties and if there was difference of opinion between the parties after 10 years then only distribution of the value of newly reared trees was to be made as aforesaid. ( 9 ) THE aforesaid are the relevant conditions of the agreement of lease dated 5-4-1950. They clearly show that the lease in question of all the three lands including the disputed land-S. No. 823 was for composite purpose. It was a lease for cultivation of crops in the lands in question as well as for enabling the petitioner-tenant to watch and preserve exi- sting mango trees in all the aforesaid three survey numbers and also for enabling the petitioner tenant to rear in future fruit trees if he so desired. Thus it was a lease for a mixed purpose. Mr. Thus it was a lease for a mixed purpose. Mr. Patel made an attempt to urge that the main purpose of the lease was for rearing of fruit trees and cultivation was permitted incidentally so that fruit trees may not lose their efficacy and productivity. It is difficult to accept the said submission of Mr. Patel for the respondent. The terms of the lease which I have reproduced in extenso above leave no room for doubt that the lease was for a composite purpose wherein the tenant had to cultivate all the three survey numbers as permitted by the lease and it was his choice to rear up in future any fruit trees if he wanted to do so and the existing 18 mango trees in all the aforesaid three survey numbers were to be preserved and protected by him. Under these circumstances it cannot be said that the main purpose of the lease or even the dominant purpose was of raising fruit trees in the lands in question. The purpose of the lease at the highest can be said to be a mixed or joint purpose or composite purpose of cultivation of lands along with Watering the existing trees and also rearing in future fruit trees if the tenant so desired. It has been found as a fact by the Mamlatdar that the existing 18 trees which were there in 1950 have remained the same all throughout till today and at the time when panchkyas was made by the Mamlatdar and A. L. T. only 18 trees were found. 7 trees were found in two other survey numbers and 11 were found in the dispute land. Thus even after passage of more than 25 years the petitioner-tenant had not reared up a single additional fruit tree but merely preserved the existing trees and has cultivated the disputed land in the meantime. The said cultivation by him cannot be said to be unauthorized. On the con- tray it was in consonance with the purpose of the lease. The Assistant Collector has noted that the record of rights-7-12 extracts clearly show that the petitioner had cultivated the said land as per the terms of the lease all throughout. I was also referred to the relevant extracts of record of rights by both the learned Advocates representing the respective parties before me. The Assistant Collector has noted that the record of rights-7-12 extracts clearly show that the petitioner had cultivated the said land as per the terms of the lease all throughout. I was also referred to the relevant extracts of record of rights by both the learned Advocates representing the respective parties before me. So far as disputed S. No. 823 is concerned the record of rights from 1963-64 onwards to 1973-74 which were pointed out to me by both the learned Advocates showed that out of 3 acres-35 gunthas of S. No. 823 there was cultivation of Bajra in 3 acres 20 gunthas and Gawar in a 16 gunthas in 1963-64 and subsequently for the rest of years subst- antial portion of the disputed land was utilised for the purpose of culti- vating crops. The finding of the assistant Collector on this aspect is therefore well supported by the evidence on record and has not been touched by the Tribunal and rightly so as the evidence on record clearly establishes that the disputed land has been put to cultivation all throughout after the date of the lease. The only difficulty which the Tribunal felt was that cultivation of the land would not take the disputed land out of operation of sec. 43a. But this is with respect begging the question. The real question is whether sec. 43a can apply to the disputed land. As I have noted above sec. 43a (1) (b) could have applied only if it was shown that the lease from its inception was For the sole or dominant purpose of growing of fruits or flowers. The recitals in the lease agreement in the present case indicated to the contrary and showed that the lease in the present case was for the purpose of cultivating this land and incidentally liberty was reserved to the tenant to rear up in future fruit trees if he so desired. Thus the main purpose of the lease was cultivation of crops. Under these circumstances sec. 43-A (1) (b) could never have been pre- ssed in service so far as the disputed land was concerned. ( 10 ) MR. Patel for the respondent invited my attention to a judgment of this court in Shantilal Ratanji Desai and Another v. Mangubhai Chhotubhai Desai and Another 10 G. L. R. 500 wherein J. B. Mehta J. while interpreting sec. ( 10 ) MR. Patel for the respondent invited my attention to a judgment of this court in Shantilal Ratanji Desai and Another v. Mangubhai Chhotubhai Desai and Another 10 G. L. R. 500 wherein J. B. Mehta J. while interpreting sec. 43a of the Tenancy Act observed as under :"sec. 43a (1) (b) of the Bon bay Tenancy and Agricultural Lands Act in terms provides that the provisions of sets. 32 to 32r were not applicable to leases of lands granted to any bodies or persons other than those mentioned in clause (a) for growing of fruits. The exemption provided for in sec. 43a (1) (b) would he attracted if the lease of land granted to any such person is shown to be for the growing of fruits. The purpose of grant of lease is the material factor for deter- mining whether this exemption is attracted or not. It is clear that the Legislature contemplates a fixed factor being taken into account viz. the purpose for which the lease of the land was granted. The subsequent use if any for any other purpose would be wholly immaterial. WHAT is material is the purpose at the time of granting the lease and so the date of letting would be material to find out what was the purpose when the grant was made. Even if the tenant changed the original user by cultivating some part the purpose of letting would not change and therefore the exemption would still be attracted if the land was found to have been let for the purpose of fruit growing". The aforesaid decision cannot help Mr. Patel for the simple reason that in the present case the lease in question has been found to be not for the sole or main purpose of growing fruits or flowers but it has been found to be for a mixed purpose of cultivation of crops and incidentally also for putting up in future fruit bearing trees if the tenant so desired. Under these circumstances at the highest it can be said that the lease was for a mixed purpose and in no case the purpose enabling the petitioner-tenant to rear in future fruit bearing trees can be said to be the dominant purpose of the lease at all. The aforesaid decision of this court would have been effectively pressed in service by Mr. The aforesaid decision of this court would have been effectively pressed in service by Mr. Patel if the lease in the present case would have permitted the tenant only to pus the land in question to the use of rearing up of fruit bearing trees and if cultivation in a portion of the land would have been permitted only with a view to make fruit trees more productive. The aforesaid decision could have been pressed in service by Mr. Patel also in case it was found that the lease in question did not permit cultivation at all but only permitted the tenant to rear up fruit trees in the land in dispute and subsequently the tenant unauthorisedly had changed the user of the land by resorting to cultivation thereon. Such is not the case here. In the present case the lease in terms permitted the tenant to cultivate the land in that that is-the main and dominant purpose of the lease. In that view of the matter the aforesaid decision of this court cannot be of any assistance to the respondent. On the contrary it goes against him inasmuch it has been laid down by J. B. Mehta j. that for the purpose of applicability of sec. 43 (1) (b) the original purpose of the lease at the time of granting the lease of land is material. As in the present case the original purpose is found to be that of cultivation being the main purpose or dominant purpose of the lease the conclusion is inevitable that the provisions of sec. 43a (1) (b) cannot apply to the disputed land. Hence there is no room for doubt that provisions of secs. 32 to 32r cannot be excluded. Consequently it must be held that the Assistant Collector was justified when he directed the Mamlatdar to fix the purchase price of survey number 823 also and the Tribunal was patently in error when it held that sec. 43a (1) (b) was attracted in the present case. That finding of the Tribunal was obviously and ex-facie erroneous in law. Petition allowed. .