HASANBHAI ADAMBHAI MALVAT Vs. ADAMBHAI MALKA TALAT

JUDGEMENT

(1.) THIS is an application under Article 227 of the Constitution of India and it raises a question of construction of Section 31A(b), Section 31B(1) and Section 34(1) and (5) of the Tenancy Act. The petitioner Hasanbhai Adambhai Malvat has prayed for the setting aside of an order made by the Bombay Revenue Tribunal on March 25, 1958, by which order the Tribunal confirmed an order made by the Assistant Collector on December 9, 1957. By the aforesaid order dated December 9, 1957, the Assistant Collector dismissed the appeal of the present petitioner from an order made by the Tenancy Mahalkari on August 5, 1957. The circumstances which have given rise to this application may now be briefly stated.

(2.) THE petitioner is the landlord. He is the owner of S. No. 2038 of Dhanduka, District Ahmedabad. The land comprising S. No. 2038 admeasures 40 acres. Out of this land, the petitioner himself is personally cultivating 20 acres and the remaining 20 acres of land has been leased out by the petitioner to opponent No. 1. The petitioner contends that is not holding any other land except the above land. Now, under the provisions of Section 5(1)(a) of the Bombay Tenancy and Agricultural Lands Act, 1948, the ceiling area of jirayat land is 48 acres. The petitioner says that as he is personally cultivating only 20' acres of land, he is in possession of land which is less than the ceiling area. The petitioner also says that opponent No. 1 is in possession of not only 20 acres of land leased out to him by the petitioner, but he is also in possession of other lands which have been leased out to him by other landlords. It is the petitioner's ease that opponent No. 1 is cultivating 64 acres and 27 gunthas of land and, therefore, be is in possession of land in excess of the ceiling area. I have already mentioned above that the ceiling area of Jirayat land is 48 acres. The petitioner -landlord, in the above -mentioned circumstances, filed Tenancy Suit No. 3 of 1957 in the Court of the Tenancy Mahalkari, Dhanduka, to recover possession of 20 acres of his land from opponent No. 1 upon the ground that he required it bona fide for personal cultivation and also upon the ground that the tenant was in, possession of 64 acres and 27 gunthas of land which was in excess of the ceiling area. So far as the petitioner's case that he required to acres of his land from opponent No. 1 bona fide for personal cultivation is concerned, his contention is that his income from the 20 acres of land of which he is in possession and which he is personally cultivating is about Rs. 1,400 to Bs. 1,600 per year. His case is that the probable income of the other 20 acres of his land which is in possession of opponent No. 1 is about Rs. 2,000 to Rs. 2,500 per year. So far as the petitioner's requirement of the 20 acres of his land which is in possession of opponent No. 1 upon the ground of bona fide need for personal cultivation is concerned, he contends that he is entitled to recover possession of all the 20 acres of his land which is being cultivated by opponent No. 1. He next says that the income of the said 20 acres of land, which is being cultivated by opponent No. 3, being the principal source of income for his maintenance, he is entitled to recover possession of all the 20 acres of land from opponent No. 1.

(3.) FROM the aforesaid order of the Mahalkari made by him on August 5, 1957, the petitioner -landlord went in appeal to the Assistant Collector, Dholka Prant. By an order dated December 9, 1957, the Assistant Collector dismissed the appeal. He accepted the finding of the Mahalkari that so far as the petitioner's case of bona fide requirement of this land for personal cultivation was concerned, he was entitled only to recover possession of 10 out of the 20 acres, provided the income from the said 10 acres was the landlord's principal source ~ of income for his maintenance. The Assistant Collector further accepted the finding of the Mahalkari that the income from the 10 out of the 20 acres of land which was in possession of the tenant would not be the landlord's principal source of income for his maintenance. So far as the landlord's case under Section 34 of the Act was concerned, namely, the case that he was entitled to recover possession of 20 acres of his land from the tenant upon the ground that the tenant had got in his possession in all 64 acres and 27 gunthas, i.e., more than the ceiling area, the Assistant Collector took the view that it was irrelevant to go into that aspect of the case. According to the Assistant Collector, it did not matter whether the tenant was in possession of land less than the ceiling area or more than the ceiling area. The Assistant Collector took the view that even if the tenant had got in his possession land much more than the ceiling area, even so the landlord would be entitled to recover possession of only half the lands leased out by him to the tenant. In other words, the view which the Assistant Collector took was that Section 31B(1) and Section 34(1) of the Act. Consistently with this view of the matter which the Assistant Cllector took, he dismissed the landlord's appeal and confirmed the Mahalkari's order. Upon the landlord going in revision before the Revenue Tribunal, the Tribunal, on March 25, 1958, rejected the revisional application. The Tribunal accepted the view of the Assistant Collector that Section 31B(1) controlled Section 31A (b). In other words, the Tribunal also took the view that even if the land cultivated by the landlord personally was less than the ceiling area, the landlord would, in no case, where he claimed to recover possession of the land from the tenant upon the ground of bona fide requirement of the land for personal cultivation, be entitled to recover possession of more than half the area of the land leased out to the tenant. Although the Tribunal concurred with the view of the Assistant Collector that Section 31B(1) controlled Section 31B (b) it disagreed with the view of the Assistant Collector that Section 31B (1) also controlled Section 34Sub -sections (1) and (5). The view which the Tribunal took was that the right to recover possession of the land leased out to the tenant which the landlord has under Section 34 of the Act is quite independent of the right which he has in a case in which the claim to recover, possession is made upon the ground of bona fide requirement of the land for personal cultivation. As the matter had not been investigated by the Mahalkari in the light of the remedy available to the landlord under Section 34, Sub -sections (1) and (5), the Tribunal ordered the case to be remanded back to the Mahalkari. The pertinent observations of the Tribunal in this context are: We have, therefore, to say that unless the first question of fact is settled (the Tribunal was referring to the question whether in point of fact the tenant was in possession of land in excess of the ceiling area) it would not be proper to settle the question which arises about the interpretation and effect of Sub -section (5) of Section 34. We are, therefore, constrained to remand the case back to the Tenancy Court to consider the question whether the applicant proved that the tenant held lands in excess of the ceiling area and then to consider the question whether the applicant landlord got an absolute right by virtue of Section 34. In other words, the case was remanded to the Tenancy Court for deciding the question of fact whether the tenant was in possession of lands in excess of 1 the ceiling area and then to dispose of the case in accordance with law. It is from this order of the Tribunal dated March 25, 1958, that the landlord has (come to this Court under Article 227 of the Constitution.