SHANKAR MADHOJI NEMADE Vs. CHISUJI JANAJI BHADKE

JUDGEMENT

(1.) The appellant was a protected lessee within the meaning of the expression contained in the Berar Regulation of Agricultural Leases Act, 1951 (Act 24 of 1951) (hereinafter called the Berar Act) in respect of the suit lands bearing survey No. 23 of an extent of 7 acres and 4 gunthas under the 5th respondent herein who was then the original owner of the lands. The 5th respondent served on the appellant (hereinafter called the tenant) a notice dated December 28, 1955 under Section 9 (1) of the Berar Act terminating the tenancy of the appellant on the ground that he required the lands for personal cultivation:and he also submitted an application to the Revenue Officer under Section 8 (1) (g) of the Berar Act for an order determining the tenancy. The 5th respondent obtained an order from the Revenue Officer on May 15, 1956 directing the tenant to surrender possession of the lands. The 5th respondent in pursuance of the order of the Revenue Officer obtained possession of the lands on April 4, 1957 and continued in such possession till June 21, 1961 on which date he transferred the suit lands to the first respondent (hereinafter to be referred as the landlord) and got in exchange 8 acres in survey No. 33 plus an amount of Rs. 13,000/-. In the meanwhile on Dec. 30, 1958 the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act of 1958 (Act No. XCIX of 1958) (hereinafter called the Bombay Act) came into force.

(2.) The tenant filed an application under Sec. 52 of the Bombay Act before the Naib Tahsildar, Achalpur against respondents Nos. 1 and 5 for restoration of the possession of the suit lands on the ground that the original owner, the 5th respondent, had ceased to cultivate the lands personally within the period of 12 years after obtaining possession of the lands on April 4, 1957. The Naib Tahsildar by his order dated November 14, 1962 dismissed the application on the ground that Section 52 does not apply and hence the application was not maintainable. On appeal by the tenant the Special Deputy Collector, Amravati by his order June 30, 1964 reversed the decision of the Naib Tahsildar and directed the landlord to restore possession of the lands as prayed for by the tenant. The first respondent's revision challenging the order of the Special Deputy Collector was dismissed on August 5, 1965 by the Maharashtra Revenue Tribunal. The Revenue Tribunal while dismissing the revision petition, inter alia, held that the tenant was a protected lessee and that in pursuance of the proceedings taken by the 5th respondent in terms of the notice under Section 9 (1) of the Berar Act, the tenant was deprived of the lands and his tenancy rights on the ground of personal cultivation by the then owner of the lands. The Tribunal further held that as the 5th respondent had transferred the suit lands in favour of the first respondent on June 21, 1961, the former must be considered to have failed to use the lands for the purposes specified in his notice within 12 years from the date on which he took possession and in consequence the tenant was entitled to be restored to possession under Section 52 of the Bombay Act. On this reasoning the Revenue Tribunal confirmed the order of restoration passed by the Special Deputy Collector in favour of the tenant.

(3.) The first respondent filed a writ petition under Article 227 of the Constitution, being Special Civil Application No. 831 of 1965, in the High Court of Bombay (Nagpur Bench) challenging the orders for restoration passed against him by the Special Deputy Collector and the Maharashtra Revenue Tribunal. The High Court by its judgment and order dated August 19, 1966 has set the orders of the Special Deputy Collector and the Revenue Tribunal thus restoring the order of the Naib Tahsildar and has dismissed the application for restoration filed by the tenant. The tenant challenges the decision of the High Court in this appeal by special leave.