SHANTILAL RATANJI DESAI Vs. MANGUBHAI CHHOTUBHAI DESAI

JUDGEMENT

(1.) The petitioners landlords challenge in this petition the order of the Revenue Tribunal dated 19th November 1953 holding that sec. 43A(1)(b) of the Tenancy Act exempting the lands from secs. 32 to 32 was not attracted in the case of lands in question as the lands were not fruit growing lands. The Tribunal therefore reversed the finding of the two lover authorities which was based on an agreement dated 15 April 1956 at Annexure A as to the purpose of letting and held that the opponent No. 1 was entitled to purchase these lands under sec. 32 The Tribune therefore remanded the matter to the Agricultural Lands Tribunal for determining the purchase price under sec. 32G. It is this order which is challenged in this petition

(2.) Sec 43A(1)(b) in terms provides that the provisions of 32 to 32R were not applicable to leases of lands granted to any bodies or persons other than those mentioned in clause (a)..........for growing of fruits. Therefore this exemption section would be attracted if the lease of land granted to any such person is shown to be for the growing of fruits. Thus the purpose of grant of lease is the material factor for determining whether this exemption is attracted or not. The Revenue Tribunal was therefore wrong in construing this sec. 43A(1) and in holding that for deciding this question there must be evidence to show that only fruit trees were standing on the land and that no other cultivation is possible. Further proceeding the Revenue tribunal has observed that they must consider the question whether the lands in suit were only growing fruit trees and if not whether there is any cultivation done and to what extent. thus the Revenue Tribunal has concentrated ifs attention on the use of the land made and not to the purpose for which the lease was granted This is a perverse construction of sec. 43A(1) which cannot be accepted. If we keep in mind the object of the Legislature in enacting sec. 43A. it is clear that the Legislature contemplates a fixed factor being taken into account viz. the purpose for which the lease of the land was granted. The subsequent use if any for any other purposes would be wholly immaterial. The revenue authorities were therefore right in holding that they must consider the evidence only as to the purpose of the grant of this land in deciding the question as to whether it was for growing of fruits or not. The Revenue Tribunal has wrongly been influenced by the fact as to the use which was shown in one particular near 1961-62 by considering the crop shown to have been grown in this field. The Revenue Tribunal considered that in S. No. 239/2 of net cultivable area of 4 Acres and 33 Gunthas there were fruit trees in 2 Acres end 25 Gunthas of Mangoes and Chiku while there were rice and fodder In 2 Acres and 4 Gunthas. Similarly in the other S. No. 240 of the net cultivable area 1 Acre and 6 Gunthas the land under the fruit trees was 0 Acre and 6 Gunthas while the area under rice was only O Acre 37 Gunthas. The remaining area was used for farm houses. Thus the Revenue Tribunal has been wrongly influenced by considering the use of the land made in any one particular year. The Legislature could never have intended that such an important exemption would have to be determined by such uncertain factors as to the use made in any particular year by the tenant. The Legislature had therefore permitted this exemption only if the grant of the land was shown to be for the purposes of growing fruits which can be found by construing the original grant. The lower authorities based their conclusion on the agreement in question at Annexure H which was produced by the landlords. Under the said agreement dated 15th April 1956 Wadi of these two lands was given to opponent No. 1 tenant with the right to all the fruit trees for 10 years. Clause (2) was specific to the effect that the tenant was entitled to make all improvements to get more output of the fruits of the trees of the Wadi. This right was obtained by the tenant on consideration of an annual rental of Rs. 1401.00. In view of the specific clause (2) and the other details the lower authorities would have been right in coming to the conclusion that the land was given for fruit orchard as the whole intention of the parties was to have greater output of the fruit trees. Mr. Shelat in this connection pointed out the decision of the Supreme Court in Mst. Subhadra v. Narsaji A.I.R. 1966 S.C. 806. The Supreme Court interpreted the expression premises in sec. 5(8)(a) of the Rent Act defining it as land not being used for agricultural purposes. At page 808 the Supreme Court pointed out that the material date for ascertaining whether the plot was premises within the meaning of sec. 5(8)(a) was the date of letting and not the date on which the application for fixation of the standard rent was made. If on the date of letting the plot in dispute was used for agricultural purposes it could not be regarded as premises. In the present case also what is material is the purpose at the time of granting the lease and so the date of letting would be material to find out what was the purpose when the grant was made. Therefore the Revenue Tribunal was entirely wrong in being influenced by the record of rights for 1961-62. Even if the tenant changed the original user by cultivating some part toe purpose of letting would not change and therefore the exemption would still be attracted If the land was found to have been let for the purpose of fruit growing.

(3.) Mr. Bhatt however argued that the Tribunal had in terms observed that if they were not satisfied of the fact that the land was not fruit growing land they would have reminded the matter to give an opportunity to the opponent No. 1 to explain the aforesaid agreement at Annexure H. The Tribunal had come to the finding that this document was produced at a late stage in the evidence of the landlord Shantilal on 4th April 1962 when opponent No. 1 tenant was already examined on 10 January 1962 and no question was suggested to him as regards this document. Mr. Bhatt is justified in his grievance which was rightly accepted by the Revenue Tribune for the opponent No. 1 would have no opportunity to meet this document when it was produced at late stage after his evidence was over. The Revenue Tribunal has also observed that the said document was admitted practically without any proof. In the circumstances it is necessary that the matter ought to be remanded to the Agricultural Lands Tribunal for a fresh disposal in accordance with law. The entire proceeding under sec. 32C shall go back to him to go into the question whether the exemption under sec. 43A(1)(B) was attracted to this land and if not to determine the price thereof.