Appeal No 20 of 1987 From the Judgment and Order dated 9111983 of the Bombay High Court in w
P No 271 of 1979
SS JavaIi and PR Ramashesh for the Appellants
AM Khanwilkar and Mrs VD Khanna for the Respondents
The Judgment of the Court was delivered by SABYASACHI MUKHARJI J
Special leave granted
Heard counsel for the parties on the appeal
This appeal by special leave arises out of the judgment of the High Court of Bombay dated 9th November 1983
It raises a short and an interesting point
Shripati Balla Jadhav father of the appellants had executed a lease deed with regard to the suit land in favour of the landlord and taken the said land on lease
The said lease was for the purpose of cultivation of chillies tobacco sugarcane groundnuts etc
916 That is the version of the petitionersappellants The question is whether the lease was taken for the aforesaid purposes or was only for the cultivation of sugar cane alone
In deciding that question the terms of the lease will have to be borne in mind
Suo moto proceedings for fixing the price under section 32G of the Bombay Tenancy Agricultural Lands Act 1948 being Act No LXVII of 1948 hereinafter called the Act  was taken on the assumption that the tenant had become statutory purchaser by virtue of section 32 of the said Act
The proceedings were dropped as some of the respondents were then minors
An order as made by Deputy Collector in appeal from the order of the trial court in proceedings under section 3G of the said Act remanding the case to the trial Court on 31st March
Thereafter on 17th July 1975 the Maharashtra Revenue Tribunal confirmed the order of remand made by Dy
Collec tor in revision filed by the respondents herein
The High Court thereafter rejected the writ petition of the landlord against the order of the Tribunal
and as such the proceed ings under section 32G according to the appellants here in are still pending
On 15th June 1974 the respondents made an application under the Act for determination of reasonable rent on the basis that the lands were leased for growing sugarcane
The trial court on 11th February 1975 rejected the application in respect of the tenancy of Aval Kankoon on the ground that the lands had been leased not for growing sugarcane alone
but for different types of crops
On or about 31st May 1977
the Spedal Land Acquisition Officer
Kolahpur in Tenancy Appeal No 302 of 1975 allowed the tenancy of Aval Kankoon and directed the determination of the rent on the basis that the lands were leased for growing sugarcane
The said order was confirmed on 30th November 1978 by the Maharashtra Revenue Tribunal Kolahpur in appeal filed by the appellants
There was a writ petition thereafter on 9th November 1983 by the appellants under article 227 of the Constitution and the High Court of Bombay rejected the said writ application
The petitioners have come up in special leave to this Court
It may be mentioned before we deal with the judgment under appeal that the said Act was an Act to amend the law relating to tenancy of the agricultural land and to make certain other provisions with regard to those lands
It may be mentioned that the purpose was to make the tillers owners of the land and in respect of mortgages of certain lands giving the tenant the right of re purchase of the land
It is 917 a social agrarian reform measure to ameliorate the condi tions of the tenants
See in this connection the statement of Objects and Reasons of the said Act
In the Preamble it is stated that it was necessary to amend the law which governed the relations of landlords and tenants of agricultural lands and further whereas on ac count of the neglect of a landholder or disputes between landlord and tenants the cultivation of an estate has seriously suffered or for the purpose of improving the economic and social conditions of peasants or ensuring the full and efficient use of land for agriculture it was expedient to assume management of estates held by landhold ers and to regulate and impose restrictions on the transfer of agricultural lands dwelling houses sites and lands appurtenant thereto or occupied by agriculturists agricul tural labourers and artisans in the Province of Bombay and to make provisions for certain other purposes therein the said Act was being passed
The Act was intended to benefit tenants in respect of the said evils
But Chapter IlIA which was inserted by Bombay Act 13 of 1956 provided special provisions for land held on lease by industrial or commer cial undertakings and by certain persons for the cultivation of sugarcane and other notified agricultural produce
Under the scheme of the Act under sections 4B 8 9 9A 9B 9C 10 10A 14 16 17A 17B 18 27 31 to 31D both inclu sive 32 to 32R both inclusive 33A 33B 33C 43 63 63A 64 and 65 dealt with the various kinds of rights of the tenants in land including the right of repurchase as con templated in sections 32 to 32R Section 321 provided that on first day of April 1957 which was called the tillers  day 7 in the Act every tenant should subject to the other provisions of the Act and the succeeding sections be deemed to have purchased from the landlord free of all encum brances subsisting thereon on the said day the land held by him as tenant if such tenant was a permanent tenant thereof and cultivated land personally or such tenant was not a permanent tenant but cultivated the land leased personally and the landlord had not given notice of termination of his tenancy under section 31 or notice had been given under section 31 but the landlord had not applied to the Mamlat dar on or before 31st day of March 1957 under section 29 for obtaining possession of the land or for certain other contingencies mentioned in clause ii and other clauses of section 32 of the Act
Section 43A which is in Chapter III A provides inter alia by clause b of Section 43A1 that leases of land granted to any bodies or persons other than those mentioned in clause a for the cultivation of sugarcane or the grow ing of fruits or flowers or for the breeding of 918 livestock that the aforesaid provisions for the benefit of tillers or tenants would not apply to those
In this appeal we are concerned with a very short ques tion namely whether the lease of land granted in this case is covered by clause b for the lease for the cultivation of sugarcane or the growing of fruits or flowers or for the breeding of livestock
Clause a of sub section 1 of section 43A deals with land leased to or held by any indus trial or commercial undertaking which in the opinion of the State Government bona fide carries on by any industrial or commercial operations and which is approved by the State Government
By the order of the Maharashtra Revenue Tribunal the tenant had been denied that right as against the landlord
The Revision Petition was filed by the respondents tenants in proceedings under section 43B of the said Act to question the order made by the Member Maharashtra Revenue Tribunal Kolahpur refusing to interfere with the order made by the Special Land Acquisition Officer II Tulsi Project Kolha pur holding that the purpose of the lease as far as suit lands were concerned was one for cultivating sugarcane and as such the lands were governed by the provisions of section 43A of the Act
The question is is that finding correct Both the courts had interpreted the original Kabulayat herein dated 24th February 1947 to come to the conclusion that this land was leased for raising sugarcane
Our atten tion was also drawn to the official translation of the said documents which will be presently noted
It may be mentioned that initially proceedings under section 88C of the Act were filed on the basis that the lands were Jiravat lands but the said proceedings were withdrawn and further that proceed ings under section 32G of the Act were also initiated in 1972 which were still pending
In those proceedings too the character of the lands was stated to be Jiravat lands
According to the learned  counsel this characterisation of the lands as Jiravat lands was contrary to the findings recorded by the revenue authorities and there was an error apparent on the face of the record and so was contended before the High Court
Secondly the learned counsel had submitted before the  High Court that on correct reading of the Kabulayat there was an express mention that apart from sugarcane no other crops could be cultivated and if that was so the revenue Courts were in error in holding otherwise
The High Court noted that the proceedings before it were not proceedings in appeal
The High Court rightly rejected the application under article 227 of the Constitution on the view that if a 919 reasonable view of the evidence was taken by the authorities competent to decide the controversy no interference was called for
Furthermore that was a fact which had to be determined on the basis of the evidence
However it was contended before the High Court with reference to the Kabu layat that it could be seen that this Kabulayat of 1947 conferred a right of cultivation for five years
The Kabu layat specifically mentioned that possession of the lands as well as the well was given under the document
It provided that the executant could take the crop in due consultation with the landholders and there the mention or the crops indicated all sorts of crops like Jawar Tur Bhuimug Mirchi Kapus Oos Tambakhoo etc
It further recited that 12 of the crop would be retained by he owners and the other 12 would be retained by the tillers
After these primary recitals reference was made primarily to the sugarcane crop
With regard to that aspect it was undertaken by the executant that everyday till jaggery was prepared 20 sugar canes and one pot of sugarcane juice would have to be reached to the owners
Similarly it was provided how the fruits of the mango trees would be shared
It was further provided with regard to the manure as well as the seeds for raising sugarcane the parties were to share 12 and 12 expenditure
Similarly with regard to the maintenance of the irrigational facilities and also the expenditure for the preparation of jaggery the parties were to share 12 and 12
It was further provided that the land which Was not available for sugarcane could be subjected to cultivation of jute or chilli and no other till the land was available for sugarcane cultivation
It may be instructive to refer to the material portion of the deed which states as follows These two lands I have taken from you agreeing to pay
half crop share for a period of five years from shake 1869 to 1874 and have taken possession today alongwith well and trees
I will raise crops therein in consultation with you
In these lands I will raise chillies Cotton Sugarcane Tobacco etc
but I will cut and harvest them with your approval
I will give you a half share in all the crops raised as also in the fodder
I will take the remaining share as a tenant
You are to take the green grass growing on the western hedge in RS No 493
I am to take the green grass from other hedges
In the dry fodder you are to get half the number of shieves
 The next clause dealt with the price and it has also an important beating and stated as follows 920 The price of your share of crops and fodder is fixed at Rs 1400
However I will give you the grain  fodder and will not ask you to take its price
Similarly I will pay you half the assessment and local fund in the month of January every year
Every year as long as sugar cane crushing goes on I will give you every day 20 good sugar canes and a pitcher of sugar cane juice
The price of the sugarcane and juice is fixed at Rs 15
These are mango trees in the lands
if they bear fruits I will protect the same and will not pluck any nor will allow anyone also to do so
For protecting the fruits I will take 14th and will give you 34th
The price of your share in the mangoes is fixed at Rs50
 Then in the second clause the executant states as follows In the land where sugar cane is grown I will raise either chillies or jute as an alternate crop
I will not grow any other crop in that plot
 Thereafter the Kabulayat dealt with the obligation of the executant to supply half the manure of the land and half the cost of fertilizer and asserted that he would supply
half the seed for sugarcane and carry the fertilizer and seed of sugarcane of his share at his cost
Free service as per usual practice was also ensured
The last clause on which reliance was placed provides as follows I will cultivate the lands on these terms for five years
I will hand back the land in which sugarcane is raised in the month of Magarshirsha of shake 1873
The remaining land I will deliver to you between Margarshirsha and Falgun of shake 1876 as and when the standing crops are removed
Thus the lands are to remain with me till the amount of Rs3000 deposited by me is paid off
 According to the High Court though initially there was sortie mention of other crops the Kabulayat in terms in tended that the land would be used for cultivation of sugar cane and when the sugarcane was not being cultivated the other crops could be cultivated in those pieces of lands till the land was again available for sugarcane cultiva 921 tion
If that be not the intention according to the High Court the entire document could not be correctly and rea sonably reconciled
It could not be forgotten that this was a document reserving right of the amount of Rs3000 and Rs600 to be adjusted every year by giving the cultivated return and taking a receipt therefor
The receipt so intend ed to be taken only concerns itself with the sugarcane sugarcanejuice and sugarcane waste
Thus the document taken as a whole could reasonably be read as providing for the purpose as it was found by the revenue authorities
Further more the oral evidence according to the High Court of the parties clearly went on to show that the initial purpose must have been the lease for growing sugarcane
The High Court referred to the evidence of PW 1 who attested the document
As against this evidence there was evidence of DW 1 which was an evidence only of denial and even he was unable to say whether in the document sugarcane cotton and tobacco as crops were mentioned or not
He was unable to say in how many years actually the sugarcane had been cultivated and he submitted that by rotation the land could be used for cultivating sugarcane
It was further admitted the High Court noted that in cross examination that jaggerywise taken to shops for sale
The High Court was of the view that
once the Kabulayat was read in this manner it did not appear even from the 712 extract that in some portion
sugarcane crop was culti vated
The High Court found that being the position of the record it was difficult to interfere with the finding of the lower court
In other words the High Court was of the view that the predominate purpose being sugarcane cultivation the tenant was riot entitled to the right asserted by him
The High Court also noted that the fact that the lands to be characterised as Jiravat lands would not be decisive for determining the purpose of the lease when that could be found from a document like the Kabulayat
In the premises the High Court refused to interfere
It is the correctness or otherwise of that decision which is under challenge before us
It was submitted before us that the whole of the land is not for the cultivation of sugarcane
It was urged that in an area of 11 acres only 1 acre was subjected to the culti vation of sugarcane
The Kabulayat or the lease clearly indicated that there were other purposes
The question in this case is whether the lease was for sugarcane or also for other purposes Was it composite purpose lease or single purpose lease The object of the legislation has to be borne in mind
922 The entirety of the lease has to be kept in view
Then and then only can the question be viewed properly
Our attention was drawn to a bench decision of the Bombay High Court in Shri Usaf Usman Majawar vs Shrimant Yeshwantrao Appasaheb Ghatage 1963 Bombay Law Reporter Vol
LXV 831
There the Division Bench observed that indi vidual leases were not excluded from the operation of sec tion 43A1b of the Act
According to the bench decision of the Bombay High Court the determining factor in consid ering whether clause b of section 43A1 of the Act was applicable or not was the purpose of the lease
If the purpose of the lease was for cultivation of sugarcane or growing of fruits or flowers or for the breeding of live stock then it was excluded from the operation of sections 32 to 32R of the Act whether the lessee is a body of person or persons
The High Court further reiterated that what was required to be established on material evidence under sec tion 43A1b of the Act was whether there was a lease and whether the lease was for cultivation of sugarcane or grow ing of fruits or flowers
It is not necessary that the purpose of the lease must be specifically mentioned either in the instrument of the lease or that lease must be for cultivation of sugarcane etc
in the entire field
It would be for the courts to reach a conclusion on the evidence available to it whether the lease was for cultivation of any particular crop or not
Nothing would turn on whether the agreement was to grow that crop in the entire field or not
Our attention was drawn to the observations of the Court at page 835 of the report
It was contended before the Bombay High Court that for attracting the provisions of section 43A of the Act it must be proved by the landlord that the agreement specifically provided that the lease was for cultivation of the sugarcane or for the growing of fruits or flowers or for breeding of livestock and further it must also be established that the agreement was to grow sugarcane in the entire land leased out and not in any part thereof
The High Court was of the view that it was true in the language of clause b that it had to be established that the lease was granted for the cultivation of sugarcane or for growing
fruits and flowers etc but it nowhere specifically mentioned that the purpose of the lease must be specifically mentioned either in the instrument of the lease or that theease must be for cultivation of sugarcane etc in the entire field
Emphasis supplied
On the other hand according to the view of the Bombay High Court what was required was to be established on material evidence whether there was a lease and whether the lease was for cultivation of 923 sugarcane or for growing of fruits or flowers
In each case it would depend on the evidence whether the lease had been for cultivation of sugarcane or growing of fruits or flowers and that would depend on the nature of the cultivation
The Bombay High Court noted that they were informed that the cultivation of sugarcane could never be on the entire field but the cultivation of sugarcane was always carried on by rotation in parts of the field
It would therefore depend on the facts of each case and if that be so it is for the courts of fact to reach a conclusion on the evidence avail able to it whether the lease had been for cultivation of a particular crop or not
On behalf of the petitionersappel lants learned counsel Shri Javali contended that the lease contained in the Kabulayat had to be examined because it was not for cultivation of sugarcane only
Shri JavaIi for the appellants contended that the land could not be exempted because the lease was not for the cultivation of the sugar cane alone
He drew our attention to the findings at page 13 of the Paper Book of the appellate court where apart from the record it appeared that the crop of sugarcane actually raised in the suit lands was to the extent of 1 acre or more
This was continued since 1947 till 1972 and it was clearly stated by the tenants that they had stopped raising sugarcane after 1972 because of scarcity of water
The entries in the record of Rights also substantiated the position that sugarcane was actually raised in the suit lands
The appellate court noted that there was a well in one of the suit lands having sufficient water to raise sugarcane
The statement of the tenants corroborated this fact when they stated that on the day of deposition there was 5 to 6 cubic feet water in the said well
That the court below had actually gone for site inspection and found that Baggayat crops like wheat was cultivated by the tenants on the water course available from the well in the suit land
But it is clear that the entire land was not used for culti vation of sugarcane
The question is if lease for multiple cultivation is permissible in the scheme of section 43A then only leases of the areas for cultivation of sugarcane or growing of fruits or flowers or for breeding of livestock could claim the benefit of protection from the tenants  claim
This has to be borne in mind
With respect we cannot accept the ratio of the decision of the Bombay High Court in its entirety
We are aware that sugarcane could not be cultivated in the entire field for the whole year
It has to be kept follow and crops had to be grown in the meantime to increase the fertility
But what was primary and what was secondary and what was to be done in such a case as we found it as a fact has to be considered
924 As mentioned hereinbefore this petition is concerned with the proceeding under section 43B of the said Act which questioned before the High Court the order made by the Member Maharashtra Revenue Tribunal refusing to interfere with the order made by the Special Land Acquisition Officer II Tulsi Project Kolhapur holding that the purpose of the lease so far as the suit land was concerned was one for cultivating sugarcane and as such the lands were governed by the provisions of section 43A of the Act
Having regard to the facts and circumstances enumerated before we are of the opinion that the area which is in dispute in this case comprised of areas leased for raising sugarcane crop as also for other crops
In view of the provisions of law discussed above in so far as the High Court upheld the finding that the entirety of the area in question was covered by lease for sugarcane it is difficult to sustain the same
The area was covered by lease for multiple purposes
Some areas were leased out for sugarcane where along with sugarcane other flops were grown
These however should be included as areas leased for sugarcane as ancillary flops or for better utilisation of the land in question
But here the leases covered areas other than the areas contemplated by sugarcane which could be demarcated in terms of the Kabulayat which we have discussed before
In our opinion having regard to the preamble to the Act and the primary purpose of the Act it would be necessary to remand the matter back to the High Court for remanding it back to the appropriate officer to determine whether there was any area which was leased exclu sively for sugarcane crop
If it is held on such enquiry that the entirety of the area was for sugarcane crop then the order of the Tribunal made in this case cannot be inter fered with
If on the other hand there are areas which were leased out separately and independently of the leasing out for sugarcane and demarcated separately then in respect of the same no exemption can be given in derogation of the rights of the agricultural tenants in those leased areas and the appellant would be entitled to succeed
In a lease for composite purposes if there was any area where sugarcane was only cultivated that area would be exempt from the ambit of the provisions of the Act and would be exempted
If however along with cultivation of sugarcane other crops were cultivated in the area such an area would not be entitled to exemption
We therefore remand the case with directions that the authorities below should find the posi tion in light of the aforesaid
It may be observed that the Bombay Tenancy Agricultural Lands Act 1948 was enacted with a high purpose of transferring the land tilled to the till ers of the soil with the exception of the lands which were leased out for growing sugarcane because of the need for protection of the industry of sugarcane and development of the economy
925 This appeal is disposed of with the aforesaid direc tions
In that view of the matter parties will pay and bear their own costs
MLA Appeal disposed of


Summary:
The Bombay Tenancy Agricultural Lands Act 1948 by s321 provides that every tenant should subject to the other provisions contained in the Act be deemed to have purchased from the landlord free of all encumbrances the land held by him as tenant if such tenant was a permanent tenant and cultivated the land personally or such tenant was not a permanent tenant but cultivated the land leased personally and the landlord has not given notice of termi nation of his tenancy under section 31 or notice had been given under section 31 but the landlord had not applied to the Mamlatdar on or before 31st day of March 1956 under section 29 for obtaining possession of the land or for certain other contingencies mentioned in section 32 of the Act
Section 43A provides that the aforesaid provisions for the benefit of tillers or tenants would not apply to land granted to any bodies or persons for the cultivation of sugarcane or the growing of fruits or flowers or for the breeding of livestock
The appellant tenant had taken the suit land on lease from the respondent
The lease deed was alleged to have been executed for the purpose of cultivation of chillies tobac co sugarcane and groundnuts etc
Suo moto proceedings for fixing the price under s32g were taken on the assumption that the appellant tenant had become statutory purchaser by virtue of s32 of the Act
While the proceedings were pend ing the respondents made an application under the Act for determination of reasonable rent on the basis that the lands were leased for growing sugarcane
The trial court rejected the application holding that the lands had 914 been leased not for growing sugarcane alone but for differ ent types of crops
However the Special Land Acquisition Officer held that the purpose of the lease was one for cultivating sugarcane and as such the lands were governed by the provisions of s43A of the Act and directed the determination of the rent accordingly
The Maharashtra Revenue Tribunal as well as the High Court confirmed the aforesaid order
The High Court held that though initially there was some mention of other crops the Kabulayat Lease Deed in terms intended that the land would be used for cultivation of sugarcane and when sugarcane was not being cultivated the other crops could be cultivated till the land was again available for sugarcane cultivation and if that be not the intention the entire document could not be correctly and reasonably reconciled and that the predominate purpose being sugarcane cultivation the tenant was not entitled to the right asserted by him
In appeal to the Supreme Court it was contended on behalf of the appellant tenant i that the whole of the land is not for the cultivation of sugarcane ii that in an area of 11 acres only 1 acre was subjected to the culti vation of sugarcane and that the Kabulayat or the lease clearly indicated that there were other purposes and iii that the land could not be exempted because the lease was not for the cultivation of the sugarcane alone
Disposing of the appeal this Court HELD 11 The Bombay Tenancy Agricultural Lands Act 1948 was enacted with a high purpose of transferring the land tilled to the tillers of the soil with the exception of the lands which were leased out for growing sugarcane be cause of the need for protection of the industry of sugar cane and development of the economy
924G H 12 Having regard to the preamble to the Act and the primary purpose of the Act it would be necessary to remand the matter back to the High Court for further remand to the appropriate officer to determine whether there was any area which was leased exclusively for sugarcane crop
If it is held on such enquiry that the entire area was for sugarcane crop then the order of the Tribunal cannot be interfered with
If on the other hand there are areas which were leased out separately and independently of the leasing out for sugarcane and demarcated separately then in respect of the same no exemption can be given in derogation of the  rights of the Agricultural tenants in those leased areas and the appellant would be entitled to succeed
924D F 915 21 In a lease for composite purposes if there was any area where sugarcane was only cultivated that area would be exempt from the ambit of the provisions of the Act and would be exempted
If however along with cultivation of sugar cane other crops were cultivated in the area such an area would not be entitled to exemption
924F G 22 It is not necessary that the purpose of the lease must be specifically mentioned either in the instrument of the lease or that the lease must be for cultivation of sugarcane etc
in the entire field
It would be for the courts to reach a conclusion on the evidence whether the lease was for cultivation of any particular crop or not
Nothing would turn on whether the agreement was to grow that crop in the entire field or not
922G H 923A B In the instant case the area which is in dispute com prised of areas leased for raising sugarcane crop as also for other crops
The area was covered by lease for multiple purposes
Some areas were leased out for sugarcane where along with sugarcane other crops were grown
These however should be included as areas leased for sugarcane as ancil lary crops or for better utilisation of the land in ques tion
The leases covered areas other than the areas contem plated by sugarcane which could be demarcated in terms of the Kabulayat
924B D