BAI PARVATI NANUBHAI PRAGJI Vs. NANUBHAI LALLUBHAI DESAI

JUDGEMENT

(1.) One Bai Parvati widow of Nanubhai Pragji - whom I will hereafter refer to as "the petitioner "-applied to the Mamlatdar of Olpad for an order for possession of certain lands held by her tenant Nanubhai alleging that the lands were held by the tenant as a protected tenant, that the tenant failed to pay rent for three years, that his tenancy was determined by notice to quit and that the lands were required bona fide by the petitioner for personal cultivation. The application was resisted by the tenant inter alia contending that the petitioner had granted him a tenancy of the land for ten years from June 1, 1947, and the requirement of the petitioner was not bona fide. The Mamlatdar held that the lands were required bona fide for personal cultivation by the petitioner and that the tenancy was determined by notice as required by section 34 of the Bombay Tenancy and Agricultural Lands Act. The Mamlatddar on that view passed an order for possession without recording a decision on the contention raised by the tenant that on June 1, 1947, the petitioner had granted to him a tenancy for ten years. Against the order passed by the Mamlatdar an appeal was preferred to the Deputy Collector, Surat. The Deputy Collector confirmed the order passed by the Mamlatdar. The Deputy Collector observed that the tenant had become a protected tenant because he was a tenant of the petitioner on Nov. 8, 1947, and his rights and obligations were governed by section 34 of the Bombay Tenancy and Agricultural Lands Act. The Deputy Collector also observed that the tenant had failed to pay rent for three years within the time prescribed by law. Against the order passed by the Deputy Collector confirming the order of the Mamlatdar the tenant preferred a revision application to the Bombay Revenue Tribunal. The Revenue Tribunal by its order, dated July 29, 1955, set aside the orders of the Deputy Collector and the Mamlatdar and remanded the case for ascertaining whether the tenant proved the alleged lease for ten years set up by him and for disposal of the application on the finding on that issue. Against that order this application wider Art. 227 of the Constitution has been filed by the petitioner.

(2.) It is evident that the Mamlatdar did not consider the contention which was expressly raised by the tenant that he held the land in dispute under a contractual tenancy from June 1, 1947, and as the contention had a vital bearing on the claim made by the petitioner, the Tribunal was in our view justified in passing the order of remand. But Mr. Patel on behalf of the petitioner submitted that the question whether the tenant was or was not a contractual tenant from June 1, 1947, for ten years, could not in any event assist the tenant in defeating the claim made by the petitioner having regard to the provisions contained in the Bombay Tenancy and Agricultural Lands Act and that no useful purpose will be served by directing an enquiry on a contention which does not assist the tenant. Counsel urged that all tenants who were in possession of land before Nov. 8, 1947, acquired by the operation of section 3-A of the Bombay Tenancy Act of 1939 (which was preserved by the Schedule to the Bombay Tenancy and Agricultural Lands Act, 1948, notwithstanding the repeal of the earlier Act) the status of protected tenants and their rights and obligations were governed by section 34 of the Bombay Tenancy and Agricultural Lands Act, 1948. It was claimed that a landlord was entitled to terminate a tenancy of a protected tenant subject to the restrictions contained in section 34 even if the tenancy originated in a contract the covenants whereof granted to the tenant protection more extensive than the protection conferred by section 34. On the plea that all tenants who were on Nov. 8, 1947, on land to which the Bombay Tenancy Act of 1939 applied, became protected tenants whatever the source of the tenancy and whatever the incidents, rights and obligations under the contract of tenancy were, and as protected tenants they were entitled to claim against their landlords only those rights which were expressly conferred by section 34 of the Act, it was urged that if the landlord required any land for personal cultivation and the requirement of the landlord was bona fide, the landlord was entitled to terminate the tenancy by giving due notice and to get possession subject to the provisions of section 34 of the Act, even though the covenants of the tenancy were inconsistent with any such right in the landlord. In effect, it was urged that all contractual tights and obligations between landlords and tenants, which subsisted before Nov. 8, 1911, were merged in the rights and obligations created by section 34 of the Bombay Tenancy and Agricultural Lands Act, and the contractual rights and obligations did not govern the landlord and the tenant after the specified date. The argument advanced by counsel, however, ignores the important provision contained in section 30 of the Act which provides :

(3.) It may at once be stated that neither sub-section (3) of section 6 nor sub-section (1) of section 27 has any material bearing on the question which we have to decide in the present case. The words of section 30 are plain and unambiguous, and there is no warrant for assuming that the rights of the tenant which arose under any contract, law or usage or a decree of a Court or otherwise were either merged in the rights and obligations created by section 34 or were restricted thereby. It is true that section 34 enacts that the landlord may if he requires land held for purposes specified in the section terminate the tenancy of his tenant, but section 34 must, in view of the express phraseology used by the Legislature, be read subject to section 30 of the Act. The right of the landlord to terminate a protected tenancy for purposes and in the manner prescribed by section 34 cannot be exercised so as to limit the rights or privileges vested in the tenant under any usage or law, or under any contract, grant, decree or order of a Court, or otherwise howsoever. The restrictions placed upon the landlord by section 34 are in addition to and not in substitution of those which are imposed upon him by contract, grant, decree, usage, law or otherwise. There can be no doubt that the tenancy legislation was intended to ameliorate the condition of tenants and to grant them additional rights and privileges and not to restrict the rights which they otherwise had. Rights already conferred upon tenants were therefore protected by section 30 and additional rights were conferred by restricting the landlords' right otherwise as provided by section 34. In this case if the tenant has by contract a right to remain in possession for ten years, the fact that during the period of ten years the landlord requires the land bona fide for personal cultivation will not enable the landlord to ignore the rights of the tenant to security of tenure for ten years and obtain possession during that period. In our view, therefore, the Tribunal was right in remanding the case to the Mamlatdar.