MOHANLAL CHANDULAL AGARWAL Vs. JANU DASRAJI

JUDGEMENT

(1.) THE petitioner is a landholder of two agricultural lands. In the year 1951 -52, during which the Berar Regulation of Agricultural Leases Act, 1951 (XXIV of 1951) came into force, the two lands were in the possession of respondent No. 1 as a tenant. The rent agreed for the year was Rs. 150. By virtue of Section 3 of that Act, respondent No. 1 became a protected lessee. Another result of that section was that his lease was deemed to be for a period of five years from the year 1951 -52 and by a subsequent amendment that period was extended to seven years. In the year 1954 the petitioner applied under Section 10(2) of the Act to the Sub -Divisional Officer for the determination of reasonable lease -money for the lands, alleging that the agreed rent was very low and that there was an understanding between him and the tenant that the rent was to be increased as the lands improved during the course of tillage. The Sub -Divisional Officer heard the parties and fixed the reasonable lease -money at Rs. 262 -8 -0 per year. On an appeal taken by respondent No. 1, the Additional Deputy Commissioner confirmed the decision of the Sub -Divisional Officer. Respondent No. 1 went in second appeal to the Bombay Revenue Tribunal, and the Bombay Revenue Tribunal allowed the appeal and set aside the orders of the Courts below. The decision of the Bombay Revenue Tribunal is challenged before us. The Tribunal held that Section 10(2) of the Act did not entitle the petitioner to apply for enhancement of lease -money and that the petitioner's application was not tenable in law. In coming to that conclusion, the Tribunal relied on their earlier Full Bench decision in Imamkhan v. Sheikh Gulam [1958] N.L.J. 227.

(2.) SUB -section (1) of Section 10 of the Act, in so far as it is relevant, provides that the lease -money payable by a protected lessee shall be the lease -money agreed upon between such lessee and his landholder, or where there is no agreement or either party to the agreement considers the agreed lease -money as unreasonable, such reasonable lease -money as may be fixed by the Revenue Officer. This is followed by Sub -section (2) which is in the following terms: For the determination of reasonable lease -money under Sub -section (1), either the lessee or the landholder may apply in the prescribed form to a Revenue Officer within whose jurisdiction the land is situated. Thus, by the express terms of Sub -sections (1) and (2) of Section 10, both the lessee and the landholder have been given the right of getting the reasonable lease -money determined by a Revenue Officer if either of them considers that the agreed lease -money is unreasonable. Despite this, the aforesaid Full Bench of the Bombay Revenue Tribunal held that a landholder cannot apply for enhancement of the lease -money which was agreed upon at the time of the lease; and in coming to this conclusion the Full Bench relied upon the terms of Section 23 of the Act. Section 23 says: Save as otherwise provided in Sub -section (1) of Section 7, no other provision contained in this Act shall be construed to limit or abridge the rights or. privileges of any lessee under any usage or law for the time being in force or arising out of any contract; grant, decree or order of a Court or otherwise howsoever. The Full Bench of the Tribunal held that under Section 3 of the Act the contractual lease between the parties is deemed to be for a period of seven years; that the lease must be deemed to have continued with all the terms and conditions thereof including the term with regard to the lease -money; and that the right so given to the tenant by Section 3 cannot be limited or abridged by anything contained in Section 10, because Section 23 expressly bars any such construction being placed on Section 10.

(3.) IN our view, the purpose of Section 23 of the Act is altogether different. Its purpose is to provide that if a lessee possesses any rights independently of the Act, those rights are not limited or abridged by any of the provisions of the Act except the provision contained in Sub -section (1) of Section 7. Section 7(1) prohibits a protected lessee from transferring his right in the land; so that the effect of this provision read with Section 23 is that even where a protected lessee had the right, independently of the Act, of transferring his leasehold interest, that right is no longer available to him. Subject to this exception, the rights of a lessee are safeguarded by Section 23. But the rights so safeguarded are the rights which the lessee has acquired independently of the Act and not the rights which are granted to the lessee by the Act itself. In the present case, the right of respondent No. 1, the lessee, to remain in possession of the lands on payment of the annual lease -money of Rs. 150 in and after 1952 -53 was wholly the creation of Section 3 of the Act; and Section 23 cannot be so construed as to safeguard that right against the other provisions of the Act.