HIRALAL MOTILAL BALDOTA Vs. MANOHAR TUKARAM VAIRAL

JUDGEMENT

(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 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 month's 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.