RAMCHANDRA Vs. TUKARAM

JUDGEMENT

(1.) The first respondent Tukaram was a protected lessee with the meaning of that expression in the Berar Regulation of Agricultural Leases Act 24 of 1951 - hereinafter called "the Berar Act" in respect of certain land at Mouza Karwand in the Vidarbha Region (now in the State of Maharashtra). The appellant - who is the owner of the land - served a notice under S. 9(1) of the Berar Act terminating the tenancy on the ground that he required the land for personal cultivation, and submitted an application to the Revenue Officer under S. 8 (1) of the Berar Act terminating the tenancy on the ground he required the land for personal cultivation, and submitted an application to the Revenue Officer under S. 8 (1) (1) (g) of the Berar Act for an order determining the tenancy. The Revenue Officer determined the tenancy by order dated July 2, 1957 and made it effective from April 1, 1958. In the meantime the Governor of the State of Bombay (the Vidarbha region having been incorporated within the State of Bombay by the States Reorganisation Act 1956) issued Ordinance 4 of 1957 which was later replaced by Act 9 of 1958 known as the Bombay Vidarbha Region Agricultural Tenants (Protection from Eviction and Amendment of Tenancy Laws) Act, 1957. By S. 3 of Act 9 of 1958 a ban was imposed against eviction of tenants, and by S. 4 all proceedings pending at the date of the commencement of the Act, or which may be instituted during the period of the Act remained in force, for termination of any tenancy and for eviction of tenants were to be stayed on certain conditions set out in that section. Bombay Act 9 of 1958 and the Berar Act 24 of 1951 were repealed by the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, 99 of 1958, which may hereinafter be referred to as "the Tenancy Act". The appellant applied on May 15, 1958 to the Naib Tahsildar, Chikli for an order for "restoration of possession" of the land. By order dated August 2, 1960 the Naib Tahsildar ordered "restoration of possession of the land" to the appellant. In appeal the Sub-Divisional Officer, buldana set aside the order of the Naib Tahsildar because in his view the application was not maintainable in that the appellant had failed to comply with the requirements of S. 38 of the Tenancy Act. The Revenue Tribunal confirmed the order of the Sub-Divisional officer. The appellant then moved the High Court of Judicature at Bombay praying for a writ of direction quashing the order of the Sub-Divisional Officer, Buldana and for the Revenue Tribnal and for an order for restoration of possession of the land in pursuance of the order of Naib Tahsildar. The High Court set aside the order of the Naib Tahsildar, the Sub-Divisional Officer and the Revenue Tribunal and remanded the case to the Tahsildar for dealing with the application made by the appellant in the light of the directions given in the judgment. The appellant appeals to this Court, with certificate under Art. 133 (1) (c) of the Constitution granted by the High Court.

(2.) The contention urged on behalf of the appellant is that the High Court should have restored the order passed by the Naib Tahsildar and should not have reopened the inquiry as directed in its judgment. It is necessary in the first instance to make a brief survey of the diverse statutory provisions in their relation to the progress of the dispute, which have a bearing on the question which falls to be determined. The land was originally in the Vidarbha region which before the Bombay Reorgination Act, 1956 was a part of the State of Madhya Pradesh, and the tenancy of the land was governed by the Berar Act. The first respondent was a protected lessee in respect of the land under S. 3 of the Berar Act. Section 8 of the Act imposed restrictions on termination of protected leases. It was provided that notwithstanding any agreement, usage, decree or order of a Court of law, the lease of any land held by a protected lessee shall not be terminated except under orders of a Revenue Officer made on any of the grounds contained therein. Even if the landlord desired to obtain possession of the land for bona fide personal cultivation, he had to obtain an order in that behalf under S. 8 (1) (g). Section 9 enabled the landlord to terminate the lease of a protected lessee if he required the land for personal cultivation by giving notice of the prescribed duration and setting out the reasons for determination of the tenancy. A tenant served with the notice under sub-s. (1) could under sub-s. (3) apply to the Revnue Officer for a declaration that the notice shall have no effect or for permission to give up some other land of the same landholder in lieu of the land mentioned in the notice. Sub-sections (4), (5), (6), (7) and (8) dealt with the procedure and powers of the Revenue Officer. The landlord had, after serving a notice under S. 9(1), to obtain an order under S. 8(1) (g) that possession was required by him bona fide for personal cultiration. Section 19 of the Berar Act prescribed the procedure for ejectment of a protected lessee. Sub-section (1) provided:

(3.) The Tenancy Act (Bombay Act 99 of 1958) which was brought into force on December 30, 1958 repealed Bombay Act 9 of 1958 and the Berar Act and made diverse provisions with regard to protection of tenants. By S. 9 of the Tenancy Act it was provided that no tenancy of any land shall be terminated merely on the ground that the period fixed for its duration whether by agreement or otherwise had expired, and by S. 19 it was provided that notwithstanding any agreement, usage, decree or order of a Court of law, the tenancy of any land held by a tenant shall not be terminated unless certain conditions specified therein were fulfilled. Section 36 of the Tenancy Act set up the procedure to be followed, inter alia, for obtaining possession from a tenant after determination of the tenancy, and sub-s. (2) enacted that no landlord shall obtain possession of any land, dwelling house or site used for any allied pursuit held by a tenant except under an order of the Tahsildar. By sub-s. (3) it was provided that on receipt of application under sub-s. (1) the Tahsildar shall, after holding an inquiry, pass such order thereon as he deems fit provided that where an application under sub-s. (2) is made by a landlord in pursuance of the right conferred on him under S. 38, the Tahsildar may first decide as preliminary issue, whether the conditions specified in Cls. (c) and (d) of sub-s. (3), and Cls. (b), (c) and (d) of sub-s. (4) of that section are satisfied. That takes us to S. 38. By the first sub-section as it was originally enacted, it was provided: