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2005 DIGILAW 1439 (BOM)

Hiralal Motilal Baldota v. Manohar Tukaram Vairal

2005-10-17

A.P.DESHPANDE, VASANTI A.NAIK

body2005
Judgment VASANTI A. NAIK, J. ( 1 ) THAT the appellants tenants were leased out agricultural land by the respondent landlord for cultivation of sugarcane on an annual rent of Rs. l80/-p. a. That in pursuance of an earlier litigation between the parties, which related to the year 1956, about 8 acres 30 gts. of land was restored to the landlord in the year 1960. That the respondent landlord had filed an application under sections 14, 25, 29 and 43-A of the Bombay Tenancy and agricultural Lands Act, 1948 for recovery of possession of the lands which were in possession of the appellants tenants. An enquiry was conducted by the Tenancy awal Karkun, Kopargaon and by order dated 21-9-1996, the Tenancy AK directed the appellant to restore possession of the lands to the landlord under section 43-A of the Bombay tenancy and Agricultural Lands Act, 1948 r/ w the Notification issued thereunder. That against the order passed by the Tenancy A. K. , the appellants tenants preferred an appeal before the Sub-Divisional Officer, Kopargaon which was also dismissed on 19-7-1997. The revision application came to be filed by the appellants tenants against the order of the sub-Divisional Officer, Kopargaon and the maharashtra Revenue Tribunal, by its order dated 29-12-1998, dismissed the revision application and confirmed the order passed by the Tenancy A. K. and the sub-Divisional Officer, Kopargaon. That being aggrieved by the orders passed by the Tenancy A. K. , Sub-Divisional Officer, kopargaon and the Maharashtra Revenue tribunal, the appellants tenants preferred a writ petition before this Court, which came to be numbered as Writ Petition no. 3524 of 1998. The learned Single judge, by order dated 8-9-1998 was pleased to reject the writ petition as the learned Single judge found that there was no substance in the same. ( 2 ) THE appellants tenants had contended before the Tenancy A. K. as well as the Sub-Divisional Officer and the maharashtra Revenue Tribunal that the landlord had earlier applied in the year 1956 for possession of the land for personal cultivation and hence the present proceedings before the Tenancy A. K. were not maintainable under section 31-C of the bombay Tenancy and Agricultural Lands act 1948. It was further pleaded on behalf of the appellants that in these proceedings, the landlord had applied for possession of the suit land for personal cultivation but he had failed to prove the bonafide requirement for seeking the possession. It was further pleaded by the appellants tenants that the area of the land in possession of the respondent was more than the land involved in the present proceedings and hence the application, as filed, was not maintainable. The appellants tenants had further pleaded that the landlord had not proved compelling necessity for the resumption of possession of the lands in dispute. The learned Tenancy A. K. , after hearing the parties and perusing the evidence, came to the conclusion that the tenant had failed to prove that the respondent landlord had earlier initiated proceedings against the tenants under section 31 of the Tenancy Act for personal cultivation. The Tenancy A. K. further held that the tenants had not produced the certified copies or any record in respect of the earlier proceedings to show that in the year 1960, the landlord had secured possession of 8 acres of land for personal cultivation. In fact, it was the case of the respondent landlord that in or about the year 1958, the tenants had surrendered about 8 acres of land and a mutation entry in favour of the landlord resulted in view of the surrender of 8 acres of land by the tenants to the landlord. The tenancy A. K. further observed that though sufficient time was granted to the appellants tenants, no documents were placed by the tenants on record to show that the landlord had terminated the tenancy of the appellants in respect of 8 acres of land for personal cultivation. It was, therefore, held that section 31-C of the Tenancy Act, on which the tenants relied to show that when the tenancy of a tenant was terminated partially in respect of the land leased to the tenants on the ground of personal cultivation, the landlord could not at any time afterwards be liable to terminate the tenancy in respect of the lands left with the tenant for personal cultivation, had no application. The tenancy A. K. further considered the evidence regarding the acreage of the land in possession of the landlord as well as the income accruing therefrom to hold that agriculture was the only source of income for the landlord and termination of tenancy on the ground of bonafide requirement of the land for personal cultivation was necessary. That both the Tenancy A. K. as well as the-Sub-Divisional Officer, kopargaon observed that the respondent landlord was holding only 4 acres 3 gts. of land at the time of initiation of these proceedings in the year 1996. It was observed that this 4 acres of land was Jirayat land and the livelihood of the respondent landlord was dependent on agriculture. That having held so, the authorities were of the view that the provisions which were applicable in the instant case, were sections 33-B (5) (b) and (c) and not sections 31-A and 31-B of the Act, as pleaded by the appellants tenants. It was further observed by the Tenancy A. K. as well as by the Sub-Divisional Officer that the appellants tenants were in possession of more than 30 acres of lands and hence the landlord was entitled to possession of the land in question, by terminating the lease of the appellants tenants. The Maharashtra Revenue tribunal, after considering the order passed by the Tenancy A. K. as well as the Sub-Divisional Officer, held that the orders passed by both the authorities below did not suffer form any illegality or perversity and there was no reason whatsoever to set aside the concurrent findings of facts recorded by the tenancy A. K. and the Sub-Divisional Officer. The Maharashtra Revenue Tribunal, in its order dated 29-12-1998, reiterated that the applicants tenants were holding land to the extent of 30 acres 15 gts. whereas the respondent landlord was holding the land to the extent of only 4 acres 3 gts. The Maharashtra Revenue tribunal, therefore, by applying the rule of equalisation of holdings, found that there was no illegality in the orders passed by both the authorities below and the right of the landlord to terminate the tenancy of the appellants was not circumvented by the provisions of Section 33-B, Sub-section 5 (b) and (c) of the Tenancy act. The Maharashtra Revenue tribunal, therefore, by applying the rule of equalisation of holdings, found that there was no illegality in the orders passed by both the authorities below and the right of the landlord to terminate the tenancy of the appellants was not circumvented by the provisions of Section 33-B, Sub-section 5 (b) and (c) of the Tenancy act. The Maharashtra Revenue Tribunal recorded a finding that a partition was already effected in the family of the respondent landlord and the landlord was ultimately holding only 4 acrs 3 gts. of land, as was held by the Tenancy A. K. and the Sub-Divisional officer. It was further held by the Maharashtra revenue Tribunal that the respective mutation entries in respect of the partition were already certified and the entries were never challenged by the tenants before any competent authority at any point of time. ( 3 ) IT was canvassed on behalf of the appellants in Writ Petition No. 3524 of 1998 that the orders passed by the Tenancy A. K. , sub-Divisional Officer and the Maharashtra revenue Tribunal were in contravention of the provisions of section 31-B (1) of the Tenancy act. Before the learned Single Judge in the writ petition, it was canvassed on behalf of the respondent landlord that the petitioners tenants were already having other agricultural land as tenanted land in their possession and the question of contravention of section 31-B did not arise. It was further pointed out that in view of the Notification No. TNC-5157/ 173483-M issued in exercise of the powers conferred under sub-section (3) of section 43-A of the Tenancy Act, certain conditions were laid down in respect of termination of leases. As per Condition No. 2 in the notification, if a lessor bonafide requires any land leased by him for personal cultivation, such lease could be terminated subject to the conditions mentioned in sections 31-A, 31-B, 31-C and 31-D of the act by giving the lessee a months notice in writing and stating therein the reason for the termination of the lease. The Proviso to condition No. 2 further provided that the conditions mentioned in section 31-A and 31- b would not apply in case the holding of a lessor landlord does not exceed one economic holding and such lessor earns his livelihood principally by agriculture and in that case, the landlord would have a right to resume land subject to the conditions mentioned in clauses (b) and (c) of sub-section (5) of section 33-B of the Tenancy Act. It was thus pointed out that section 31-A and 31-B did not apply to the facts of the case and the provisions of sections 33-B (5) (b) and (c) were applicable in this case. The learned Single Judge observed that the revenue authorities had already recorded a finding that the holding of the respondent landlord did not exceed the ceiling area taking into consideration the partition effected in the years 1976 and 1986. Having observed thus, the learned Single Judge rejected the writ petition in limine. ( 4 ) SHRI. S. D. Kulkarni, learned counsel appearing on behalf of the appellants tenants principally canvassed, by relying on a decision of the Full Bench of this Court in the case of Dattatraya vishnu Pendse Vs. Ganpat Ragho Ambre (1956 B. L. R. Vol. LIX page 164) that when a landlord applies for possession of the land, as required by him for personal cultivation, it is necessary for the Tenancy courts to record a finding that the landlord is not able to maintain himself from the income from all other sources and that he requires the income from the land required by him for personal cultivation for his maintenance. It was then contended on behalf of Shri. Kulkarni, learned counsel appearing for the appellants that in the instant case, there was no finding by the revenue authorities that the land of which the landlord was seeking possession was the principal source of his income. The learned counsel appearing on behalf of the appellants further contended that as the respondent landlord had earlier filed the proceedings in the year 1956-1958 for termination of the tenancy on the ground of personal cultivation under section 31 of the Tenancy Act, these proceedings for termination of the tenancy in respect of the remaining land on the ground that the lands are required for personal cultivation, were not maintainable. It was, therefore, canvassed that in view of the provisions of section 31-C of the Tenancy Act, the tenancy of any land left with the tenant after termination of tenancy under section 31 of the act could not be terminated again on the same ground as section 31-C of the Act barred a second application for termination of tenancy on the ground of personal requirement. ( 5 ) SHRI. Dhorde, learned counsel appearing on behalf of the respondent landlord rightly pointed out that the three revenue authorities as well as the learned single Judge have consistently held in favour of the landlord and against the tenants by considering the case of the landlord in the light of the condition relating to termination of lease stipulated in the notification issued by the State government in exercise of the powers conferred by sub-section (3) of section 43-A of the Act. It was then submitted on behalf of the respondent that the Tenancy a. K. and the Sub Divisional Officer had recorded a clear finding of fact that the landlord required the land in question for his bona fide requirement and for personal cultivation for the purposes of earning his livelihood, which was principally dependent on agriculture and had further held that section 31-C of the Act had no application to the case in hand as the tenants had utterly failed to prove that the landlord had resumed possession of the land in the year 1958-60 by terminating the tenancy of the tenants on the ground of bona fide requirement for personal cultivation. ( 6 ) THERE is no dispute about the law laid down by the Full Bench decision referred to hereinabove. However, it is necessary to note that in the instant case, the Tenancy A. K. and the Sub Division officer had adverted their mind to this aspect of the matter and had categorically held that the land in possession of the respondent landlord was less than an economic holding and since the principal source of income of the landlord was agriculture, he was bona fide in need of the property in possession of the tenants for the purpose of securing the income therefrom for his livelihood. In fact, the revenue authorities had consistently recorded that the landlord was in possession of only 4 acres of land whereas the appellants tenants held more than 30 acres of land when the application for termination of tenancy for bona fide cultivation was filed by the landlord in the year 1996. The Sub divisional Officer as well as the Maharashtra revenue Tribunal dealt with the aspect of equalisation of holding of the landlord as well as the tenants and came to the conclusion that the landlord was not disentitled to terminate the tenancy of the appellants tenants by applying the conditions laid down in section 33-B (5) (b) and (c) of the Tenancy Act. Thus,it could be seen that sections 31-A and 31-B of the Act could not be made applicable to the instant case as all the revenue authorities had consistently recorded a finding of fact that the holding of the lessor/landlord did not exceed one economic holding and that he earned his livelihood principally on agriculture. Thus, in the instant case, in view of the notification issued by the State government in exercise of the powers conferred under section 43-A (3) of the Act and specially Proviso to Condition No. 2 thereto, the provisions of sections 31-A and 31-B were inapplicable and the resumption of land was only subjected to conditions mentioned in clauses (b) and (c) of sub section (5) of section 33-B of the Act. As already discussed hereinabove, the landlord was not disentitled to claim the resumption of the land in question in view of section 33-B (5) (b) and (c) of the Act. Regarding the challenge of the tenants about maintainability of the application in the year 1996 on the ground that the landlord had earlier terminated the tenancy in respect of part of the land for personal cultivation under section 31 of the Act, all the Courts/tribunals had concurrently; held that the appellants/tenants had utterly failed to prove that the earlier proceedings by which the landlord secured possession of 8 acres of land, were initiated under section 31 of the Act for personal cultivation or bona fide requirement. In fact, it is the case of the respondent landlord that the tenants had earlier, in the year 1958 - 1960, surrendered part of the land to the respondent and it was for the first time that the proceedings were initiated against the tenants for resumption of the lal. J for personal cultivation. That though sufficient opportunity was given by the Tenancy A. K. to the appellants tenants to produce documentary evidence to point out that the earlier proceedings were in fact initiated under section 31 of the Act for termination of tenancy on the ground of personal cultivation, the tenants failed to produce any evidence in that regard. That the tenancy authorities further held that mere filing of a notice or the mutation entry of the year 1960 showing the transfer of 8 acres of land in favour of the respondent landlord was not sufficient to show that the landlord had earlier initiated proceedings against the tenant for termination of the tenancy on the ground of personal cultivation or bona fide requirement. The counsel for the appellant then relied on the following judgments to substantiate the case of the tenants :1. Jacob David Sopher Vs. Baldev phatak (1974) B. L. R. Vol. LXXVII page 254 ). 2. Krishna Santu Wakarekar Vs. Sadashiv Ganesh Harolikar (1978 b. L. R. Vol. LXXX page 423 ). 3. Harshvardhan Shrinivas Potnis Vs. Mahadu Pundalik Gangurde (1979 b. L. R. Vollxxxiii page 59 ). However, we find that the decisions referred to hereinabove have no applicability to the facts of the case or the controversy involved in this Letter Patent appeal. ( 7 ) AFTER giving anxious consideration to the facts of the case and to the provisions of the Bombay Tenancy and agricultural Lands Act, 1948, we are convinced that the revenue authorities have rightly exercised their jurisdiction to hold that the landlord was entitled to terminate the tenancy of the appellants on the ground of bona fide requirement for personal cultivation. The impugned order passed by the learned Single judge dated 8-9-1998 is just and proper. ( 8 ) HENCE, no interference is called for in the instant Letters Patent Appeal and the appeal is dismissed with no order as to costs. Appeal dismissed.