BAI JAMNA Vs. BAI DHANI

JUDGEMENT

(1.) THIS application which is made under Article 227 of the Constitution of India by the petitioners raises questions under Section 5 of the Bombay Tenancy and Agricultural Lands Act, 1948, as it stood before the amending Act XIII of 1956 came into force on August 1, 1956. What are the rights conferred on a tenant under Section 5 ? Is he a statutory tenant or a contractual tenant ? Are these rights (tenancy rights under Section 5) heritable? These are the questions which fall to be determined in this application and they arise in the following circumstances.

(2.) THE petitioners are the landlords of 8. Nos. 108/3 and 193/3 situated at village Katargam, district Surat. Respondent No. 1, Bai Dhani, is the daughter of one Hari Lala. Hari Lala came on these lands as a tenant in the year 1954 -55. It was a one vear's lease under which he came Into occupation of the lands. Hari Lala died on September 14, 1955. Thereafter, the present petitioners made an application, being Tenancy Application No. 439 of 1955, under Section 29 of the Act for obtaining possession of the lands from Bai Dhani. The Mamlatdar who heard the application came to the conclusion that Bai Dhani was a trespasser and he awarded possession of these lands to the present petitioners. On an appeal being made by Bai Dhani to the Prant Officer, the Prant Officer by an order made by him on April 15, 1956, held that the Mamlatdar had no jurisdietion to hear and decide the application No. 439 of 1955 which was made by the present petitioners, as' the proper remedy which the petitioners ought to have pursued was a remedy not under Section 29 of the Act, but under Section 84 of the Act. Consistently with this view of the matter which the Prant Officer took, he reversed the order of the Mamlatdar. Thereafter, on May 5, 1956, these petitioners made an application under Section 84 of the Act before the Assistant Collector, Surat. By an order made by her on June 8, 1956, the Assistant Collector held that Bai Dhani was a trespasser and she also awarded possession of these lands to the petitioners. From the order of the Assistant Collector, Bai Dhani went in revision before the Bombay Kevenue Tribunal. The Revenue Tribunal by an order dated September 5, 1956, remanded the ease to the Assistant Collector with a direction that the terms of tenancy of Hari Lala should be determined and further that it should be decided what rights did Hari Lala possess as a tenant and whether Bai Dhani, as the daughter of Hari Lala, was entitled to inherit the rights which Hari Lala had as a tenant. On remand the Assistant Collector by an order made by her on August 30, 1957, held that Hari Lala was a statutory tenant of these lands and that Bai Dhani, the daughter oft Hari Lala, could not inherit the tenancy rights of her father. From this decision of the Assistant Collector, Bai Dhani went in revision before the Bombay Revenue Tribunal and the Revenue Tribunal, by an order made by it on January 20, 1958, allowed the revisional application of Bai Dhani, The Tribunal held that under Section 5 of the Act of 1948, as it stood before the amending Act XIII of 1956 came into force, the tenancy which Hari Lala enjoyed was a statutory tenancy, but the Tribunal held further that the rights of a statutory tenant were heritable rights and therefore Bai Dhani was entitled to continue to remain in possession of these lands. It is this view of the Bombay Revenue Tribunal which is challenged by the petitioners landlords in this application under Article 227 of the Constitution, their contention substantially being that the rights which a statutory tenant has in respect of the lands enjoyed by him are not heritable rights.

(3.) NOW , upon a question whether the tenancy rights of a statutory tenant are heritable or not, it was held in Eruch Bapasola v. Mirohandani : AIR1954Bom56 , that a statutory tenancy does not create a right in property. The learned Chief Justice delivering the judgment of the Bench in that case observed that a statutory tenancy was merely a personal right given by the statute. There is no doubt that althought a statutory tenant remains in possession of the land and enjoys the land so long as he complies with the provisions of the statute, he has no estate or interest in the land as an ordinary tenant has. It is undeniable that his right is purely a personal one, and, that being so, unless the statute expressly authorises him to pas on that right to another person, the right must cease the moment he (the statutory tenant) parts with possession, of the land or dies. Also in The State of Bombay v. Virendra Motabhoy : AIR1951Bom175 , it was held by this Court that a tenant, protected by a statute in the possession of demised premises, is a statutory tenant. It was observed that the right of such a tenant to remain inpossession of the premises was a personal right, and not a right which the tenant could assign or deal with, The learned advocate Mr. Oza, appearing] for respondent No. 1 Bai Dhani, contends that Hari Lala, the father of Bai Dhani, had a dual capacity: firstly, the capacity of a statutory tenant, the period of the statutory tenancy being not less than ten years, and, secondly, the capacity of a contractual tenant, the period of which tenancy, though the lease was initially a one year's lease, was deemed to have been extended to ten years by virtue of a legal fiction. Mr. Oza says that the contractual tenancy rights being heritable rights, Bai Dhani was entitled to continue to remain in possession of the lands. We are unable to accept the contention of Mr. Oza In our view, the extension of the period of contractual tenancy which would have been available under Section 23(1)(b) of the Act of 1939 is not available under Section 5(1) of the Act of 1948. The legal fiction of extension of the period of contractual tenancy was done away with when the Legislature enacted the Tenancy Act of 1948. Mr. Oza has invited our attention to a decision of this Court in Dattu Narayan Patil v. Kitkul Popat Chaudhari (1958) Special Civil Application No. 358 of 1956, decided by Shah and Vyas JJ., on June 20, 1956 (Unrep.) in support of his contention that the period of the contractual tenancy, which initially was a one year's period in this case, must be deemed to have been extended to ten years. Now, it is to be remembered that the case which came up for consideration in Dattu Narayan Patil v. Kitkul Popat Chaudhuri was a case under the Tenancy Act of 1939. In that case, the original period of the contractual tenancy was five years, and this Court held that by virtue of the legal fiction created by Clause (b) of Section 23(1) the period of the contractual tenancy was deemed to have been extended to ten years. Section 5(1) of the Act of 1948 does not create fiction extending the contractual character of the tenancy from a period of less than ten years to a period of ten years. Section 5(1) prohibits tenancies of period less than years and creates a statutory tenancy whose period shall not be less than years. Mr. Oza contends that Section 5(1), by providing that no tenancy of any land shall be for a period less than ten years, extends the contractual character of a tenancy from a period less than ten years to a period of ten years. We have considered Section 23(1), Clauses (b) and (b), of the Act of 1939 and have also given an anxious thought to the provisions of Section 5(1) of the Act of 1948. In our view, the provisions of Section 23(1), Clause (a), of the Act of 1939 conferred upon every tenancy a statutory character of ten years' tenancy and, be it noted, this provision was kept intact by Section 5(1) of the Act of 1948. The provisions of Clause (b) of Section 23(1) of the of 1939 which, by a legal fiction, extended the period of contractual tenancy to ten years were dropped -and doubtless purposely dropped -when the Act of 1948 was enacted. In other words, the Act of 1948 did away with the artificial fiction that was created by Clause (b) of Sub -section (1) of Section 23 of the Act of 1939. Had the intention of the Legislature, while enacting the Tenancy Act of 1948, been to preserve the legal fiction incorporated in Clause (b) of Sub -section (1) of Section 23 of the Act of 1939 and had the Legislature intended, to provide that a contractual tenancy, though in fact not for ten years, would be deemed to be one for ten years, they would have enacted, in Section 5 of the Act of 1948, a provision similar to the provision of Clause (b) of Sub -section (1) of Section 23 of the Act of 1939. But they did not do so. We must, therefore, reject Mr. Oza's contention that Section 5(1) of the Act of 1948 extends the contractual character of a tenancy from a period less than ten years to a period of ten years.