Decided on November 25,1960



S.T.DESAI - (1.)The petitioners are owners of a parcel of land bearing Survey No. 2401/A. They applied to the Collector under the relevant provisions contained in the Land Revenue Code for a permission to use the land for non-agricultural purposes and obtained such permission. Then they filed a Tenancy Suit to terminate the tenancy of the tenants on the ground that they wanted the land for a non-agricultural purpose of their own and that they bona fide required the land for that purpose. The Mamlatdar who tried the Tenancy Suit held that the petitioners did not bona fide require the land and he dismissed the suit. The Deputy District Collector to whom an appeal was preferred reached a contrary conclusion. He held that the requirement of the petitioners was bona fide. It was contended before the Deputy Collector that possession of the land could not be given to the petitioners because to do so would be in violation of the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act 1947 The tenants also relied on sec. 31-B(2) of the Tenancy Act. The contentions of the tenant were negatived and the Deputy Collector ordered that possession should be given to the petitioners. The tenant carried the matter in revision to the Revenue Tribunal. The Tribunal was of the opinion that the case was covered by Section 31B(2) of the Tenancy Act and held that possession could not be given to the petitioners. The petitioners have now come to this Court on this petition.
(2.)It has been argued before us by Mr. Sheth that section 31B has no application whatever to the present case. In order to appreciate the arguments of Mr. Sheth it will be convenient to set out here section 31(1) and (2). They are as under :
31 (1) :Notwithstanding anything contained in sections 14 and 30 but subject to sections 31A to 31D (both inclusive) a landlord may after giving notice and making an application for possession as provided in sub-section (2) terminate the tenancy of any land (except a permanent tenancy) if the landlord bona fide requires the land for any of the following purposes : (a) for cultivating personally or (b) for any non-agricultural purpose. 31 (2) :The notice required to be given under sub section (1) shall be in writing shall state the purpose for which the landlord requires the land and shall be served on the tenant on or before the 31st day of December 1956. A copy of such notice shall at the same time be sent to the mamlatdar. An application for possession under sec. 29 shall be made to the Mamlatdar on or before the 31st day of March 1957.

(3.)The argument of Mr. Sheth is that the Tribunal fell into an error in not appreciating the meaning and effect of the preamble to the Fragmentation Act and also of certain provisions of that Act. There is little in the preamble in that enactment which can possibly advance the present argument. Mr. Sheth has placed particular reliance on the definition of land in section 2(5) of that Act where land is defined to mean agricultural land whether alienated or unalienated. Then he has referred us to section 8 of that Act which lays down that no land in any local area shall be transferred or partitioned so as to create a fragment. The argument is that the expression land in section 8 can only mean agricultural land. Mr. Sheth has also referred us to the definition of tenancy and land in the Tenancy Act. The argument founded on these provisions of the Tenancy Act is that the definition of land in section 2(8) of the Tenancy Act speaks of land used for agricultural purposes. Relying on all these provisions the argument of Mr. Sheth has proceeded that section 31 B(2) can only apply to those lands which are used for agricultural purpose. The argument ran that the effect of the petitioners obtaining permission from the Collector to use the land for non-agricultural purposes was to convert the nature of the land let out to the tenant from agricultural use to land which could be put to non-agricultural use and therefore the moment permission was given by the Collector to the petitioners to put the land in question to non-agricultural use the lands went outside the scope of the Tenancy Act.

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