GODAVARIBAI Vs. KASHIRAM KAUTIK FALAK

JUDGEMENT

(1.) THIS is an application for the issue of a writ under Article 227 of the Constitution of India and it raises an interesting question as to the effect of the provisions contained in Section 37, Bombay Tenancy and Agricultural Lands Act, 1948. The land in question is survey No. 332/1. It originally belonged to Shankar Bhavsar. Shankar Bhavsar gave notice to his tenant under Section 34 of the Act. Subsequent to the notice he obtained possession of the land from the tenant on the ground that he required the said land bona fide for his personal cultivation. The order in favour of the landlord was passed on 30-7-1951. Thereafter the landlord exchanged this land for another land. Godavaribai w/o Jayaram Zope gave a land of her own to the landlord and obtained the present land in lien of it for herself The tenant then moved the Mamlatdar under Section 37 of the Act. He alleged that since the landlord had ceased to cultivate the land personally an order should be passed against the landlord directing him to restore possession of the land to the tenant. This application was made under Section 39 of the Act. The Mamlatdar did not accept the contention of the tenant and dismissed his application. On appeal the tenant's plea prevailed. The District Deputy Collector held that the landlord had failed to comply with his undertaking that he wanted to cultivate the land personally and that Section 37 could, therefore, be invoked by the tenant. On this view an order was passed for the restoration of the land to the tenant. This order was challenged by Godavaribai by preferring a revisional application to the Revenue Tribunal. The Revenue Tribunal, however, concurred with the view taken by the appellate authority and dismissed the revisional application. It is against this order that the present application has been filed by Mr. Kotwal.

(2.) THE material facts are not in dispute. It is common ground that the land originally belonged to Shankar Bhavsar and that he obtained possession of the land under Section 34 of the Act on the ground that he bona fide wanted to cultivate the land personally. It is also common ground that within about a year after the landlord obtained possession of the land he exchanged this land with Godavaribai. It is not disputed that Godavaribai is personally cultivating the land herself. On these facts the question which has been raised by Mr. Kotwal for our decision in the present application is, whether the Revenue Tribunal was justified in allowing the tenant to invoke the provisions of Section 37 Sub-section (1) of the Act in his favour. Mr. Kotwal contends that his client, being a transferee from the original landlord, has no doubt stepped into his shoe and he concedes that if it was shown that his client herself was not cultivating the land personally it would be open to the tenant to invoke the provisions of Section 37 of the Act. So long as the original landlord or his successor-in-interest is cultivating the land personally, the provisions of Section 37 Sub-section (1) cannot be availed of by the tenant. In support of his argument Mr. Kotwal has relied upon the provisions of Section 63 of the Act and , he contends that there is nothing in the provisions of Section 63 which imposes upon the" landlord any disability in the matter of soiling, gifting, exchanging or leasing the land in question.

(3.) IN assessing the value of these contentions it would be material to examine the scheme of the material provisions of the Act. The rights of protected tenants in respect of agricultural lands have been safeguarded by the Act in several particulars. Section 34, however, provides for the determination of a protected tenancy. Under this section it is open to the landlord to determine the protected tenancy of his tenant by giving him one year's notice in writing stating therein the reasons for such determination. Section 34, Sub-section (1) authorises the landlord to determine the tenancy of the protected tenant for two reasons. He may determine the tenancy if he bona fide requires the land for cultivating personally. He may likewise determine the said tenancy if he bona fide requires the land for any non-agricultural use for his own purpose. There Is a further provision contained in this section which must be considered. The right given to the landlord to determine the protected tenancy cannot be exercised by him if at the date on which the notice is given or at the date on which the notice expires the landlord has been cultivating personally other land's, admeasuring _ 50 acres or more in area. In other words, if the landlord is cultivating personally agricultural lands admeasuring 50 acres or more, he cannot avail himself of the right given to landlords in general for determining the protected tenancy under Section 34, Sub-section (1 ). It would be noticed that the landlord has to satisfy the Revenue Court that he does not cultivate personally other lands admeasuring 50 acres or more, and that he wants the land for either of the two purposes mentioned in Section 34, Sub-section (1 ). It is only when the Revenue Court is satisfied that he is otherwise not in possession of lands admeasuring 50 acres or more for personal cultivation that the protected tenant's rights are allowed to be determined. It is true that this section refers to the determination of protected tenancy. But| the determination of the permanent tenant's rights, for which provision has been made in Section 34, Sub-section (1) can in one sense be described as a suspension of the tenant's rights. Section 37 provides virtually for the revival of the said rights. If it appears that after obtaining possession of the land from the protected tenant the landlord fails to use the land for any of the purposes specified in the notice given by the landlord under Sub-section (1) of Section 34 within one year from the date on which he took possession of the land or that the landlord has ceased to use it at any time for any of the aforesaid purposes within 12 years from the said date, then the landlord is required forthwith to restore possession of the land to the tenant whose tenancy had been determined by him. This provision indicates that when the landlord re-presents to the Revenue Court that he wants pos-session of his agricultural land from his protected tenant on the ground that he bona fide needs the said land for personal cultivation, it is required of him that he must begin to use the land for personal cultivation within one year from the date of dispossession of the tenant and he must continue to use the said land for personal cultivation, for 12 years thereafter. Failure to comply with either of these two conditions entitles the tenant to claim back possession of the land. It is true that S- 37 provides that it is open to the tenant to give up this right. If for instance the tenant refuses in writing to accept the tenancy on the same terms and conditions it would be open to the landlord to continue in possession of the said land, despite the fact that he may have ceased to use the land for any of the purposes mentioned by him in his notice given under Section 34 Sub-section (1 ). Sub-section (2) of Section 37 provides that when possession of the land is restored to the tenant under Sub-section (1) of Section 37, he shall subject to the provisions of this Act, hold such land on the same terms and conditions on which he held it at the time his tenancy was terminated. It is because of the provisions contained in Sub-section (2) of Section 37 that it would be possible to describe the determination of the protected tenancy under Section 34 as amounting to suspension. Sub-section (3) of Section 37 lays down, that if the landlord fails to restore possession of the land as provided in Sub-section (1) he shall be liable to pay such compensation to the tenant as may be determined by the Mamlatdar for the loss suffered by the tenant on account of eviction. Section 39 provides for an application which can be made by the tenant for restoration of possession of the land under the provisions of Section 37 of the Act. Now, if one reads Sections 34 and 37 together, there appears to be no doubt as to what the object of the Legislature was in enacting these provisions. Though the effect of the general provisions of the Act is to protect the rights of protected tenants. Legislature conceded to the landlord the right to determine protected tenancy in two specified cases, subject to the proviso which I have already indicated. Legislature appears to have taken the view that if the landlord bona fide requires his own agricultural land for cultivating it personally or for any non-agricultural use for his own purpose, his superior right as landlord should be allowed to be effective, and the protected tenant's rights must submit to the said superior right of the landlord. But the determination of the protected tenant's rights is allowed to be brought about on the assumption, that the requirement set out by the landlord in his notice is bona fide, and that postulates that the landlord honestly and in truth wants to cultivate the land, personally. Legislature has therefore provided an additional safeguard in the interests of the protected tenant by requiring the landlord to begin using the land for the purpose mentioned by him in his notice within one year from the date when he obtained possession and to continue to use the land for the said purpose for as many as 12 years. So long as the 12 years mentioned in Section 37, Sub-section (1) have not expired, the tenant is entitled to require the landlord to carry out the representation made by him in his notice, and if it appears that the landlord is not carrying out the object mentioned by him in his notice the tenant is given the right to claim back possession of the land. It is thus the representation made by the landlord that he wants the land bona fide for his own personal purpose, which is the sole basis for determining the protected tenancy.