KHANQAH KADIRA TRUST Vs. SHEVANTABAI

JUDGEMENT

(1.) THE following question needs to bs answered in this reference. "whether a statutory tenancy of a land owned by a public trust is heritable under the Bombay Tenancy and Agricultural Lands (Vidarbha region) Act, 1958 (the Vidarbha Act) ?"

(2.) IN a large part of the State, land tenancies were governed by the bombay Tenancy and Agricultural Lands Act, 1948 (the Bombay Act), in Vidarbha, they were governed by different enactments. The Vidarbha act was enacted in the year 1958, as the preamble itself indicates, "with a view to bringing the status and rights of tenants as far as possible in line with those prevailing in certain other parts of the State. " In the instant matter we are chiefly concerned with Sections 54 and 129 of the Vidarbha act, which we reproduce for ready reference : "54. (1) Where a tenant dies, the landlords shall be deemed to have continued the tenancy - (a) if such tenant was member of an undivided Hindu family to the surviving member of the said family, and (b) if such tenant was not a member of an undivided Hindu family to his heirs, on the same terms and conditions on which such tenant was holding at the time of his death. (2) Where the tenancy is inherited by heirs other than the widow of the deceased tenant, such widow shall have a charge for maintenance on the profit of such land. (3) The interest of an occupancy tenant in his holding shall on his death pass by inheritance or survivorship in accordance with his personal law. " "129. Nothing in the foregoing provisions except Section 2, the provision of Chapter II excluding sections 21, 22, 23, 24 and 37) and section 91 and the provisions of Chapters X and XII in so far as the provisions of the said Chapters are applicable to any of the matters referred to in sections mentioned above shall apply - (a) to lands held or leased by a local authority, or university established by law in the State. (b) to lands which are the property of a trust for an educational purpose, hospital, Panjarapole, Gaushala, or an institution for public religious worship, provided the entire income of such lands is appropriated for the purposes of such trust ; and (c) to lands assigned or donated by any person before the commencement of this Act for the purpose of rendering any of the following services useful to the community, namely : -maintenance of water works, lighting or filling of water troughs for cattle ; (d) to any land taken under management by a civil, revenue or criminal Court : provided that, from the date on which the land referred to in clause (d) is released from such management, all the provisions of this Act shall apply thereto, but subject to the following modifications, that is to say, - (i) in the application of Section 38 to such land, for the time mentioned in sub-section (1) thereof for giving notice to the tenant and making an application for possession, there shall be substituted a period of one year from the date of release of the land from such management, and the said section shall not apply to as to entitle a landlord to terminate a tenancy of a tenant (or his suecessor-in-title) in respect of whom he had an opportunity to terminate under Section 38 ; (ii) if on the date on which the land was taken under management, the landlord was personally cultivating the land then on the release of the land from management the tenancy of any person subsisting at the date of release shall be deemed to be terminated, and the land shall be restored to the possession of the landlord; (iii) the right of the tenant to purchase the land under the relevant provisions relating thereto shall be exercised within one year from the expiry of the period during which the landlord is entitled to terminate the tenancy as provided in clause (i ). Explanation.- For the purpose of clause (b), a certificate granted by the Collector after holding an inquiry, that the conditions mentioned in the said clause are satisfied by the trust shall be the conclusive evidence in that behalf. " the provisions in the Bombay Act corresponding to Sections 54 and 129 are Sections 40 and 88-B. They read thus : i "40. (1) Where a tenant (other than a permanent tenant) dies, the landlord shall be deemed to have continued the tenancy on the same terms and conditions on which such tenant was holding it at the time of his death, to such heir or heirs of the deceased tenant as may be willing to continue the tenancy. (2) Where the tenancy is inherited by heirs other than the widow of the deceased tenant, such widow shall have a charge for maintenance oh the profits of such land. " "88-B. (1) Nothing in the foregoing provisions except Sections 3, 4-B, 8, 9, 9-A, 9-B, 9-C, 10, 10-A, 11, 13 and 27 and the provisions of chapters VI and VIII in so far as the provisions of the said Chapters ate applicable to any of the matters referred to in the sections mentioned above, shall apply - (a) to lands held or leased by a local authority, or University established by law in the Bombay area of the State of Maharashtra, and (b) to lands which are the property of a trust for an educational purpose, a hospital, Panjarapole, Gaushala or an institution for public religious worship : provided that - (i) such trust is or is deemed to be registered under the Bombay public Trusts Act, 1950, and (ii) the entire income of such lands is appropriated for the purpose such trust; (c) to lands assigned or donated by any person before the 1st day of August, 1956 for the purpose of rendering any of the following services useful to the community, namely : -maintenance of water wosks, lighting or filling of water troughs for cattle; (d) to lands taken under management temporarily by the Civil, revenue or Criminal Courts by themselves, or through receivers appointed by them, till the decision of the title of the rightful holders : provided that, from the date on which the land referred to in clause (d) is released from management, all the foregoing provisions of this act shall apply thereto; but subject to the notification that in the case of a tenancy, not being a permanent tenancy, which on that date subsists the land - (i) the landlord shall be entitled to terminate the tenancy under section 31 or under Section 33-B in the case of a certified landlord within one year from such date ; and (ii) within one year from the expiry of the period during which the landlord or certificated landlord is entitled to terminate the tenancy as aforesaid, the tenant shall have the right to purchase the land under Section 32 (or under Section 33-C in the case of an excluded tenant) and (iii) the provisions of Sections 31 to 31-D (both inclusive) (or sections 33-A and 33-B in the case of a certificated landlord) and sections 32 to 32-R (both inclusive) (or Sections 33-A and 33-C in the case of an excluded tenant) shall, so far as may be applicable, apply to the termination of a tenancy or the right to purchase the land, as aforesaid : provided further that, - (a) in the case of a permanent tenancy the permanent tenant shall be enittled to purchase the land held by him on permanent tenancy - (i) within one year from the date on which the estate or land is released from management, or (ii) where such estate or land was released from management after the tillers' day but before the commencement of the bombay Tenancy and Agricultural Lands (Amendment) Act, 1960, within one year from such commencement, and (b) where such permanent tenant is desirous of exercising the right conferred on him under this proviso, he shall accordingly inform the landlord and Tribunal in the prescribed manner with n the said period of one year and the provisions of Section 32 to 32-R shall, so far as may be applicable, apply to the right of the permanent tenant to purchase the land. (2) For the purposes of this section, a certificate granted by the collector, after holding an inquiry, that the conditions in the proviso to sub-section (1) are satisfied by any trust shall be conclusive evidence in that behalf. " it would be seen that by virtue of Section 129 (b), Section 54 of the vidarbha Act is made inapplicable to lands owned by public trusts and provisions in pari materia exist in Bombay Act. In the case of Nakabai alias Anusayabai Maruti Naikwadi v, Mahadu Sakharam Adsule and others, 1980 Mah LJ 105 - a case under the Bombay Act - it was held that tenancy rights in respect of lands owned by public trust are heritable. In the case of Ramchandra Nagoji Bondre and others v. Shri Mangleshwar Maharaj sansthan and others, 1986 Mah LJ 125 - a case under the Vidarbha Act - a contrary view was taken. A reference to the Full Bench was made since it was felt that there was a conflict of opinion between two Division benches of this Court on the point.

(3.) WE may at this stage notice some of the provisions of the Vidarbha act which are not made applicable to the lands belonging to the public trusts; under Section 129 and which have some relevance to the point. Section 2 (32) defines the term "tenant" as under : "2. (32) "tenant" means a person who holds land on lease and includes - (a) a person who is deemed to be a tenant under Sections 6, 7 or 8. (b) a person who is protected lessee or occupancy tenant and the word "landlord" shall be construed accordingly. " section 5 makes the provision of Chapter V of the Transfer of Property act applicable to the tenancies and leases governed by the Vidarbha Act in so far as they are not inconsistent with the provisions of the said Act. Section 6 creates deemed tenancies, Section 7 (1) (b) and Section 10 (1)read thus : "7 (1) : Every person who by himself or through his predecessor-in-interest - (b) held as a tenant belonging to any public trust of a religious or charitable nature for a continuous period of there years immediately before the 1st day of April 1957, shall be deemed to be a tenant of the said land for the purpose, of this Act. " "10 (1) : A person who or whose predecessor-in-title held land as tenant or protected lessee on the first day of January, 1953 or there-after and who has subsequently been dispossessed by a surrender of tenancy before the date of the commencement of this Act may within a period of one year from the date of the commencement of the Bombay tenancy and Agriculural Lands (Vidarbha Region and Kutch area) (Amendment) Act, 1960, apply to the Tahsildar for the restoration of his tenancy on the same terms and conditions on which he held the land before such surrender unless the land has been put to a non-agricultural use on or before the appointed day. " they refer respectively to the expression "predecessor-in-interest" and "predecessor-in-title" of a tenant. Section 33 (1) (i) and (ii) reads thus :