MARUTRAO GANPATRAO TAMHANE Vs. GANPATRAO TATYASAHEB DESHMUKH

JUDGEMENT

(1.) The petitioners who were tenants of S. Nos 349/1 and 349/2 desiring to exercise their right to purchase land in accordance with the conditions prescribed by Government Notification No. T. N C. 5157/.75483-M dated 14-2-1958 issued under Section 43A(3) of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as the Tenancy Act ), started proceedings before the Tahsildar, Malsiras, who held that the tenants are entitled to purchase 4 aeres out of the suit land and fixed the price at Rs. 750/-. The landlords appeal against this order came to be rejected and the landlord, therefore, filed a revision application before the Maharashtra Revenue Tribunal. Before the Maharashtra Revenue Tribunal substantially two questions were argued. One related to the validity of ths notice (and the other related to the extent of the holding of the tenant The Maharashtra Revenue Tribunal held on both these grounds in favour of the landlord. The notice was held to be bad on the ground that it made an offer of purchase for the entire land which wis 9 acres and 38 gunthas, while the tenant could purchase the maximum area of only 4 acres under law. With regard to the holding, the Tribunal held that in acreage the holidng of the tenant was 18 acres and 25 gunthas, but this consisted of irrigated lands which by conversion into Jirayat land exceeded the ceiling area of 48 acres. Consequently, the revision application was allowed and the tenants application for purchase was rejected The original tenant who is now represented by his legal representatives has filed this petition under Article 227 of the Coatitution of India.

(2.) In the course of this hearing the controversy was restricted only to the extent of the holding of the tenant and the learned Counsel for the landlord was not in a position to support the finding with regard to the validity of the notice. It is not, therefore, necessary to go into the correctness of the reasoning of the learned Member of the Tribunal with regard to the validity of the notice and in view of the stand taken by the learned Counsel for the landlord, the finding that the notice is invalid is set aside.

(3.) It, however, appears ihat there is not sufficient material on record in support of the conclusion of the Revenue Tribunal that the land in the possession of the tenant was irrigated land within the definition of "irrigated land" in Section 6A of the Bombay Tenancy Act. It is true that an employee from the Irrigation Department was examined before the Tahsildar. It also dose not seem to be in dispute that the tenant was irrigating his crops with the help of water from a Nala which is known as Kahara Nala. The witness, however, orally stated that the Khara Nala was a notified Nala and that statement has been accepted to which objection is raised on behalf of the tenant by the learned Counsel appearing for him. Now irrigated land is defined in Section 6A and the Revenue Tribunal has Placed reliance on the definition of a canal in Section 3(1) of the Bombay Irrigation Act, 1879. Clause (a) of section 6A of the Tenancy Act provides that for the purposes of the Act, irrigated land, whether perennially or seasonally irrigated, shall not include land irrigated by sources other than canals or bandharas within the meaning of the Bombay Irrigation Act, 1879, or any lift irrigation system constructed or maintained by the State Government. The view which the Tribunal has taken is that the Khara Nala was a canal as defiled in clause (d) of the definition in Section 3(1) of the Bombay Irrigation Act. The definition of canal so far as clause (d) in Section 3(1) of the Irrigation Act is concerned includes any pa t of a river, stream, lake, natural collection of water or natural drainage channed, to which the State Government may apply the provisions of section 5, or of which the water has been applied or used before the passing of this Act for the purpose of any existing canal When the witness from the Irrigation Department referred to the Nala, being a notified Nala, if at all there was a notification it could be only the notification contemplated by Section 5 of the irrigation Act. In order to ascertain whether the Nala was notified as contemplated by Section 5 of the Irrigation Act, it is necessary in her for the landlord to produce the said notficatioa or the Tahsildar himself could have asked for a copy of such notification to placed on record from the Irrigation Department. But unless such a notification is produced notifying the Khara Nala as was deposed to by the witness from the Irrigation Department, it will no be permissible to hold that the land in the possession of the tenant was irrigated land for the purposes of the Tenancy Act. Since this issue vitally affects the rights of both the landlord and the tenant, it is advisable that the Tahsildar should have insisted on the requisite notification being produced before him. In this view of the matter, since it is necessary to have the question of irrigated land properly investigated, the finding recorded by the Tribunal that the land in the possession of the tenant is irrigated land as also the findings recorded by the Deputy Collector and the Tahsildar that the tenant is not entitled to purchase any land are set aside. The matter is remanded back to the Tahsildar for the limited purpose of inquiring into the question of the total holding of the tenant in terms of acreage as well as in terms of land by conversion after getting satisfactory evidence about the notification under Section 5 of the Irrigation Act.