Bombay High Court
Annappa Sidappa Nargude (Since ... vs Laxmibai Sadashiv (Since Deceased By ... on 17 September, 2002
Equivalent citations: 2003(2)MHLJ497, 2003 A I H C 2416, (2003) 2 ALLMR 1057 (BOM) (2003) 2 MAH LJ 497, (2003) 2 MAH LJ 497
Author: A.M. Khanwilkar
Bench: A.M. Khanwilkar
JUDGMENT A.M. Khanwilkar, J.
1. This writ petition, under Article 227 of the Constitution of India, takes exception to the judgment and order passed by the Maharashtra Revenue Tribunal, Pune dated 16th October 1967 in Revision No. MRT KP IX 17/65 (TEN AP 439/65). The land in question being Survey No. 34, admeasuring 17 Acres 29 gunthas situated at village Yadav in Taluka Shirol, District Kolhapur. The subject land was given on lease to the predecessor of the Petitioners by written lease deed dated 19-12-1863 by the predecessor of Respondents i.e. landlords thereof. The relevant clause which would govern the contention raised before this Court in the said lease deed reads thus:-
^^lnjgw tfeuhr vkEVh foghj 10 lkYps vku dk<wu ckxk;r d: ml ;g lkph yxok.k d: R;k lkUuiklwu xkao fljLrs izekrs lnj lkB :i;s f'kok; nsu tk] tehu vfEgk v{k; djkjkus vfEgk isufx R;ku foghj dknwu cxk;u d: o >kM >qMqi oxSj mRiUu d: R;klqUnk ekudh vkeph vkrs R;kuj rqepk ukljk ukghA** The English translation of this clause which has been done with the assistance of Counsel appearing for both the parties and which is acceptable to them read thus:
"In the said land we shall dig a well within 10 days and make the land Bagayat (horticulture). We shall cultivate the sugar cane crop and from that year we shall pay amount as per prevailing practice of village in addition to the said amount of Rs. 60/-. We have taken land on lease on permanent basis. We shall dig a well in the said land and make it Bagayat (horticulture) and grow trees and bushes and we shall be the owners thereof and you have no inheritance (rights) thereon."
2. It is not in dispute that although the lease was for cultivation of the sugar cane crop but the land was cultivated for Jiryat crops till 1957. In fact, the well was dug in the suit land only some time in 1960-61. Even this position is not in dispute. It is not necessary to advert to the litigation between the parties prior to 1957 for deciding issue that arises for consideration of this case. Suffice it to mention that the landlord had filed suit for enhancement of the lease rent, which plea was however, rejected and it has been so confirmed right upto this court. It is also not in dispute that the Petitioner started cultivating the sugar cane only in a portion of the suit land from the year 1960-61 to the extent of only 1 Acre 30 gunthas out of the suit land. The Respondents, however, some time in the year 1963 filed an application under Section 43B of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to Tenancy Act) contending that now the land was being actually cultivated for sugar cane crop from the year 1960-61, they were entitled for enhancement of lease rent at a reasonable rate. That application was resisted by the Petitioners on diverse counts. One of the contention raised on behalf of the Petitioners was that although the lease was for the cultivation of sugar cane crop but the lands were not put to cultivation of sugar cane as such, till the tiller's day and on account of that fact the Petitioners have become deemed purchasers of the suit land and the Special provisions of Chapter IIIA of the Act will have no application to the present case. On that premise the Petitioners prayed that the application be rejected. The tenancy authority by order dated 15-7-1963 accepted the said plea of the Petitioners-tenants and held that the land was not leased for cultivation of sugar cane crop and therefore the Petitioners have become deemed purchasers on the tiller's day on 1-4-1957 and on account of that fact the relationship between the Petitioners and the Respondents as tenants and landlord was snapped and the application cold not proceed further.
3. Against this decision the Respondents carried the matter in appeal being Tenancy Appeal No. 129 of 1984. The appellate authority by order dated 31-5-1965 held that on perusal of the lease deed it would appear that lease was for cultivation of sugar cane crop and in that view of the matter the provisions of Chapter IIIA would clearly apply to the suit land and it would be imperative to consider the prayer for fixation of reasonable rent. Accordingly, the appeal preferred by the Respondents was allowed. Against that decision the Petitioners carried the matter in revision before the Maharashtra Revenue Tribunal. The Tribunal by the impugned judgment and order was pleased to dismiss the revision application and confirmed the view taken by the appellate authority that on plain language of the lease deed it would appear that the lease was for cultivation of sugar cane crop and in such a situation provision of Chapter IIIA of the Act would clearly apply to the said land. The Tribunal has further observed that the fact that the land was not actually used for cultivation of sugar cane crop till tiller's day was of no consequence as what was required to be seen was only the purpose of lease and it was found that the lease was for cultivation of the sugar cane crop then the special provision under Chapter IIIA would apply to such a land. In support of the above view, the Tribunal has placed reliance on an unreported decision of this Court in the case of Special Civil Application No. 1334 of 1960 decided on 17th July 1961, in the case of Ebrahim Abdulla v. Babu Fakir Harphale and Anr. In that decision the Division Bench of this Court has held that when the lands were leased to the tenant under a registered document, and the best evidence of the purpose for which the lands were leased was the document itself. Further, what Section 43A requires is not what the Prant Officer seems to have assumed that the lands were actually used for growing sugar cane, but that the lease of the lands must have been granted for the cultivation of sugar cane or for growing fruits or flowers. Accordingly, the Tribunal was pleased to dismiss the revision preferred by the Petitioner, challenging the remand order passed by the appellate authority to enquire into the question of reasonable rent in respect of the suit land as prayed by the Respondent.
4. Against this decision the Petitioners had filed application before this Court being Special Civil Application No. 1804 of 1968. This Court however proceeded to decide only one contention that provision of Section 30 of the Act would prevail over the provisions of Section 43A of the Act and accordingly allowed the application preferred by the Petitioners.
5. Against the said decision of this Court dated 27-6-1972, the Respondent carried the matter in appeal before the apex Court, which was registered as Civil Appeal No. 848 of 1973. The Apex Court by order dated 12-10-1993 was pleased to over turn the view taken by this Court and instead held that provisions of Section 30 would not control the provisions of Section 43A of the Act, having regard to the non obstante clause in the later provision in Section 43B of the Act. The Apex Court, therefore, remitted the matter to this Court to examine the other contentions which were raised in the writ petition preferred by the Petitioner. The writ petition was accordingly restored to the file to its original number.
6. Mr. Sali, learned Counsel appearing for the Petitioners would contend that since the subject lands were cultivated for Jiyraat crop and not admittedly for sugar cane cultivation till the tiller's day, in such a case special provisions of Chapter IIIA of the Act will have no application to the suit lands. He submits that it has come on record that, in terms of the lease deed, the Petitioners have dug a well in the sit lands only in the year 1960-61 and, only from that year, portion of us it land ad measuring 1 Acres 30 gunthas was used for cultivation of sugar cane crop. According to him, at best, that portion of the land in which sugar cane crop was cultivated, the special provisions of Chapter IIIA would apply and not to the remainder of the land which would be governed by the ordinary provisions under Chapter III of the Act; in respect of which the Petitioners will have to be declared as deemed purchasers. In support of this contention reliance has been placed on the decision of the Apex Court in the case of Sakharam Shripati Jadhav (deceased by LRs and Ors. v. Chandrakant Laxman Angihotri and Ors. case .
7. On the other hand, the learned Counsel for the Respondents contends that going by the plain language of the lease deed, especially the portion extracted above, it is not open to the Petitioners to contend that lease was not for cultivation of the sugar cane crop as such. He submits that the fact that the land was not actually used for sugar cane crop would be of no consequence. Inasmuch as, Section 43A(1)(b) would govern the lease of land for cultivation of sugar cane and the fact that the said land is not used for cultivation of the sugar cane in terms of lease cannot extricate from the application of the said provision, which is the mandate of special provisions of Chapter IIIA. The learned Counsel for Respondent has supported the reasons given by the Tribunal and has adopted the same in the argument to uphold the view taken by the Tribunal. According to him there is no substance in this petition and the same be dismissed.
8. Having considered the rival submission, to my mind, there is no occasion for taking a different view that the one taken by the Tribunal. Going by the plain language of the relevant clause contained in the lease deed, which is reproduced as above, it is more than evident that lease was for cultivation of the sugar cane crop. If that be so, the lease would be covered by the provisions of Section 43A(i)(b) of the Act. The consequence is that the land would be governed as per the special provisions of Chapter IIIA of the Act. The tribunal was right in taking the view that once the lease qualifies the test specified by Section 43A of the the Act, the lands under that lease would be governed by special provisions of Chapter IIIA of the Act. The tribunal was also right in taking the view that, the fact that the tenant did not use the land for cultivation of crops specified under lease viz. cultivation of the sugar cane crop or growing of fruits or flowers etc., that would be of no consequence because that is required by that provision is that lease of land shall be for the purpose specified under Clause (b). The fact that lands have not been utilized for the purpose for which it was so leased cannot negate the rigours of the special provisions of Chapter IIIA of the Act.
9. No doubt, Mr. Sali for the Petitioners has placed reliance on the decision of the apex Court in Sakharam Shripati Jadhav's case, but that is an authority on the proposition where the lease was for multiple purpose and one of the purpose of cultivation was sugar cane and growing of fruits etc. In such a situation, it will be open to the tenant to establish on the basis of materials which are brought on record that only portion of the land which was leased out to him was required to be used for cultivation of sugar cane crop. The apex Court in that case has observed in para 23 that it would be necessary to remand the matter back to High Court for remanding it back to the appropriate officer to determine whether there was any area which was leased exclusively for sugar cane crop. However, in the present case, the lease deed plainly mentioned that the lands were leased for cultivation of the sugar cane crop and not leased for multiple purposes. In the circumstances, this decision of the apex Court would be of no avail.
10. It was next contended by Mr. Sali that although under the lease the suit land was given to the Petitioners for cultivation of the sugar cane crop, however, for almost over 100 years the lands were used for cultivation of jirayat crop only and in any case till the tiller's day i.e. 1-4-1957. He, therefore, submits that the Respondents landlords had waived the stipulation in the lease deed that the lands should be utilized for cultivation of sugar cane crop only. It is not possible to accept this submission, for, there is no pleading relating to the plea of waiver at all, in the written statement filed before the authority. Besides, no suggestion has been put to the Respondents witness that the landlords had waived that condition in the lease deed. So much, so, even the Petitioners witness has not deposed to the fact that the landlords had waived above mentioned condition in the lease. If that be so, for want of pleadings as well as proof the factum of waiver of the contention that the lands should be used for cultivation of the sugar cane crop has been waived cannot be accepted.
11. On the other hand, as rightly contended by Mr. More, the Division Bench of this Court in (1963) 65 B.L.R. 831 in Usaf Mujawar v. Shrimant Yeshwantrao Appasaheb Ghatge has held that, what is to be seen is whether there was a lease and whether the lease was for cultivation of sugar cane or growing of fruits or flowers. In case where the lease is explicit about such condition, there would be no cause to dwell upon the question whether the land was actually used for the purpose for which they were leased out. This decision of the Division Bench has been considered by the apex Court in the Sakharam Shripati Jadhav's case (supra).
12. Mr. More, learned Counsel for the Respondent has rightly relied on the view taken by the tribunal, following the observations made by the Division Bench of this Court in the case of Ebrahim Abdulla (supra), that once it would appear from the lease that the land was given for cultivation of the sugar cane crop just as in the present case, then the special provision of Chapter IIIA of the Act would govern the case and to such land the ordinary provision of Chapter III of the Act will have no application.
13. In the circumstances, this petition would fail and the view taken by the Tribunal as well as the appellate authority will have to be affirmed. Accordingly, this writ petition is dismissed. No order as to costs.
14. Needless to mention that since the application under Section 43B has been filed by the Respondents landlords as back as in the year 1963, the authorities would be well advised to dispose of that application as expeditiously as possible, preferably not later than six months from the receipt of writ of this Court.
Certified copy expedited.