Full Judgment Text
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CASE NO.:
Appeal (civil) 3024 of 1997
PETITIONER:
KISAN YASHWANT DHIRADE
RESPONDENT:
SONABAI BAPPU LOHAR AND ORS
DATE OF JUDGMENT: 10/04/2001
BENCH:
SYED SHAH MOHAMMED QUADRI & S N. VARlAVA
JUDGMENT:
JUDGMENT
2001 (3) SCR 95
The following Order of the Court wad delivered ;
The appellant is the dissatisfied tenant who parted with the possession of
agricultural land bearing Survey No. 250, measuring acres 13 guntas 5
situated at Belpimpaltaon Taluq; Newasa, Distt. Ahmednagar. He is in appeal
before us, by special leave, against the judgment and order dated June 23,
1994 of the High Court of Judicature at Bombay in Writ Petition No. 3099 of
1989 which was initially filed before the Bombay Bench as Writ Petition No.
3742 of 1981 but was later transferred to the Auragabad Bench and
renumbered.
The facts relevant for disposal of this appeal may be noted in brief The
respondent is the widow of late Bapu Lohar who was the landlord of the said
land. The case of the appellant before the Tenancy Awal Karkun was that the
possession of the said land was handed over to the husband of the
respondent by him in proceedings initiated under Section 31 of the Bombay
Tenancy & Agricultural Lands Act, 1948 (hereinafter referred: to as ’the
Act’) and that before the expiry of the statutory period of twelve years
she had leased it out to one Damu Kalu Suryavanshi on March 21, 1969:
therefore, he was entitled to restoration of possession. The respondent
defended the application on two grounds; first, that she, being a widow, is
entitled to cultivate the land personally which includes through a tenant
as provided in Section 2(6) of the Act and there is no scope to invoke
Section 37 so as to give the appellant right to claim restoration of
possession; secondly, it was pleaded that he had surrendered the land under
Section 15 of the Act in which case the provisions of Section 37 of the Act
would not be attracted and the question of restoration of possession did
not arise.
The Tenancy Awal Karkun found that the possession of the land was handed
over to the husband of the respondent in proceedings initiated by him under
Section 31 of the Act as per the order of the Mamlatdar dated May 6, 1957.
He also found that in view of subsequent leasing out of the land by the
respondent before twelve years from the date of taking possession of the
land, the appellant became entitled to resume the land. Appeal against the
said order of the Tenancy Awal Karkun before the Sub-Divisional Officer
having been unsuccessful, the respondent filed a revision before the
Maharashtra Revenue Tribunal. It was held by the Tribunal; (i) the
surrender pleaded under Section 15 was a valid surrender, therefore, the
appellant was not entitled to get back the possession; ..(ii) as the
respondent was a widow she was entitled to the benefit of cultivating the
land through a tenant as provided in Section 2(6) of the Act and her right
to be in possession of the land was not lost. The Tribunal thus allowed the
appeal of the respondent on January 31,1981. That order of the Tribunal was
assailed by the appellant in the writ proceedings, referred to above, in
the High Court. By the order, impugned in this appeal, the High Court
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dismissed the writ petition of the appellant which led to filing of this
appeal.
Ms. Promila, learned counsel for the appellant, contends that in view of
the finding of the Tribunals below that there was termination of tenancy
under Section 31 and recovery of possession of the land in question by the
respondent for personal cultivation which is supported by the order of the
Mamlatdar passed on May 6, 1957 and leasing out the land by her to another
tenant within twelve years, Section 37 is attracted and the appellant
cannot be denied restoration of possession, therefore, the orders of the
Tribunal and the High Court are liable to be set aside.
It will be helpful to read Section 37(1) of the Act Which is relevant for
our purpose:
"37, Landlord to restore possession if he fails to cultivate within one
year-(1) If after the landlord takes possession of the land after the
termination of the tenancy [under Section 31], [33 B or Section 34 of this
Act as it stood immediately before the commencement of the Amending Act,
1956] he fails to use it for any of the purposes specified in the notice
given under [Section 31], [33B or Section 34 of this Act as it stood
immediately before the commencement of the Amending Act, 1956] within one
year from the date on which he took possession or ceases to use it at any
time for any of the aforesaid purposes within twelve years from the date on
which he took such possession, the landlord shall forthwith restore
possession of the land to the tenant whose tenancy was terminated by him,
unless he has obtained from the tenant his refusal in writing to accept the
tenancy on the same terms and conditions or has offered in writing to give
possession of the land to the tenant on the same terms and conditions and
the tenant has failed to accept the offer within three months of the
receipt thereof."
A plain reading of the provision above-quoted, shows that when a landlord
takes possession of land after termination of tenancy under Section 31, 33B
or 34 of the Act and fails to make use of it for the purpose specified in
the aforesaid sections within one year of taking possession of the land or
eases to use for the aforesaid purpose within twelve years from the date on
which he took such possession, he is under an obligation to restore
possession of the land to the tenant whose tenancy was terminated by him.
There are, however, two exceptions to this mandate : (i) refusal of the
tenant in writing to accept the tenancy on the same terms and conditions
and (ii) failure of the tenant to accept the offer within three months of
the receipt of a written offer of the landlord to give possession of the
land to the tenant on the same terms and conditions. Here section 37(1) is
invoked on the allegation of ceasing to use the land for personal
cultivation for twelve years from the date on which the landlord took
possession of the land. The phrase"to cultivate personally" is defined in
Section 2(6) of the Act as follows :
"2(6). "to cultivate personally" means to cultivate land on one’s 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 labourer by servants on wages payable in cash or kind but
not in crop share.
being land, the entire area of which-
(a) is situate within the limits of a single village, or
(b) is so situated that no piece of land is separated from another by a
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distance of more than five miles, or
(c) forms one compact block:
Provided that the restrictions contained in clauses (a), (b) and (c) shall
not apply to any land,
(i) which does not exceed twice the ceiling area,
(u) upto twice the ceiling area, if such land exceeds twice the ceiling
area.
Explanation I.-A widow or a minor, or a person who is subject to physical
or mental disability, or a serving member of the armed forces shall be
deemed to cultivate the land personally if such land is cultivated by
servants, or by hired labour, or through tenants,
Explanation II-In the case of a joint family the land shall be deemed to
have been cultivated personally if it is cultivated by any member of such
family."
A perusal of the definition as elcucidated in Explanation I, extracted
above,, makes it clear that in case of a widow or a minor, or a person who
is subject to physical or mental disability, or a serving member of the
armed forces, cultivation of land on one’s own account includes through
servants of labourer or through tenants The respondent is a widow and had
lost her son also. Even though she gave the land on lease to Damu Kalu
Suryavanshi, She will be deemed to be cultivating the land personally
within the meaning of the said phrase.
However, Ms. Promila contends that in view of Explanation 11 to Section 4
the appellant will have to be treated as a tenant entitled to restoration
of possession of the land in question. The said Explanation is in the
following terms:
Explanation II-Where any land is cultivated by a widow or a minor or a
person who is subject to physical or mental disability or a serving member
of the armed forces through a tenant then notwithstanding anything
contained in Explanation 1 to clause (6) of Section 2, such tenant shall be
deemed to be tenant within the meaning of this Section,"
From the Explanation it is evident that when any land is cultivated by a
widow or a minor or a person who is subject to physical or mental
disability or a serving member of the armed forces through a tenant then
notwithstanding anything contained in Explanation I to Section 2(6) such
tenant shall be deemed to be a tenant within the meaning of Section 4 which
particularises ’deemed tenants’ Obviously, the tenant referred to therein
is not the tenant who had surrendered the possession of the land under
Section 31 of the Act. Therefore, this Explanation will be of no help to
the appellant.
In any event as the respondent remained and utilised the land for eleven
years and about months, in our view, there is justification in treating
that she has committed no violation of twelve years embargo contained in
Section 37 of the Act. In this view of the matter, we do not consider it
necessary to go into the question of the truth or validity of surrender of
the said land by the appellant in favour of the husband of the respondent:
In the result, we find no illegality in the order of the High Court to
warrant our interference therewith. The appeal is accordingly dismissed,
but in the circumstances of the case, without costs.