( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 3137 OF 1990 1. Shri Vishnu Balkrishna Tilekar 2. Shri Raghunath Balkrishna Tilekar 3. Sau. Nimabai Balasaheb Gaikwad, R/o Kolapewadi, Tq. Kopergaon. 4. Sau. Suman Pandurang Borawake 5. Ku. Kamal Balkrishna Tilekar 6. Ku. Kangal Balkrishna Tilekar (Petitioners No. 5 and 6 being minor through guardian petitioner No. 1, namely, Vishnu Balkrishna Tilekar) 7. Shri Damodhar Shivram Tilekar 8. Shri Tukaram Rambhau Tilekar 9. Shri Kushaba Shivaram Tilekar Nos. 1, 2 and 4 to 9 r/of Rahata, Taluka Kopargaon, District Ahmednagar. PETITIONERS VERSUS 1. Smt. Gangubai Radhakisan Lokhande Since deceased by L.Rs. 1(i) Radhakisan Fakirchand Lokhande (Husband), R/o Wakadi, Tahsil Rahata, Dist. Ahmednagar. 1(ii) Somnath Radhakishan Lokhande (Son), R/o Wakadi, Tehsil Rahata, Dist. Ahmednagar. 2. Smt. Draupadabai Madhav Pawar, R/o Jawalekadlag, Tq. Sangamner. 3. Smt. Parawatibai Laxman Bensode Since deceased, by L.Rs. 3-a. Sampat Laxman Besode (Son) ( 2 ) R/o Dadha Budruk, Tahsil Rahata, District Ahmednagar. 3-b. Pralhad Laxman Besode (Son), R/o Dudha Budruk, Tahsil Rahata, District Ahmednagar. 3-c. Sudhakar Laxman Besode (Son), R/o Dudha Budruk, Tahsil Rahata, District Ahmednagar. 3-d. Sunanda Ramanath Shinde (Daughter), R/o Dudha Budruk, Tahsil Rahata, District Ahmednagar. 3-e. Sunita Anil Devre (Daughter), R/o Dudha Budruk, Tahsil Rahata, District Ahmednagar. 4. Sau. Babai Narayan Nagale, R/o Belapur, Taluka Shrirampur. RESPONDENTS ..... Mr. S.D. Kulkarni, advocate for the petitioners. Mr. S.P. Chapalgaonkar, advocate for respondents No. 1 (i), 1 (ii), 3-a to 3-e and 4. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 2rd March, 2010] ORAL JUDGEMENT : 1. By this petition, the petitioners challenge order dated 8th August, 1985, rendered by Maharashtra Revenue Tribunal, Pune, in revision application No. MRT- AH-III-6/84, dismissing the revision application challenging order dated 20th February, 1984, rendered by ( 3 ) Sub-Divisional Officer, in Tenancy Appeal No. 242/1974. 2. Indisputably, land Survey No. 192, admeasuring 4 Hectares 85 Ares, situated at Rahata was owned by a widow by name Bhagarthibai Rakhmaji Lute. It is an admitted fact that she had leased out the said land in favour of Shivram Tilekar. It is further an admitted fact that the said land was leased out for cultivation of sugarcane. 3. The landlady – Bhagirthibai initiated proceedings under section 43A of the Bombay Tenancy and Agricultural Lands Act, 1948 (for short, “the BT&AL Act”) read with notification dated 14th February, 1958 for restoration of her possession on the ground that she bonafidely required the tenanted land for personal cultivation. She asserted that she had no other material source of income. She further asserted that she had no other agricultural land. She submitted that she wanted to personally cultivate the tenanted land in order to earn her livelihood in as much as the rent derived from the land was totally insufficient to meet the bare ( 4 ) necessities of the life. She further alleged that she had terminated the tenancy rights of the tenants. The proceedings in the tenancy case No. 4/1972 were terminated against the landlady (Bhagirthibai). She preferred an appeal against the order of the learned Additional Tahsildar. Her appeal was entertained by the learned Sub Divisional Officer vide tenancy appeal No. 242/1974. The appeal was allowed. In the meanwhile, landlady Bhagirthibai had died and the appeal was continued by her legal representatives who are the respondents and also legal heirs of original respondent No. 1 – Gangubai. The findings of the Tribunal were challenged before the Maharashtra Revenue Tribunal by filing revision application No. MRT-AH-III-6/1984. The Maharashtra Revenue Tribunal dismissed the revision application filed by the petitioners. Hence, they seek to challenge the adverse findings of the Tribunals, including the Maharashtra Revenue Tribunal. 4. Heard learned counsel for the parties. 5. Before I proceed to consider the rival ( 5 ) submissions, it is necessary to mention here that the writ petition was heard by this Court. My learned predecessor (Hon’ble Mr. Justice J.A. Patil) allowed the writ petition by judgement dated 13th October, 1999 holding that the impugned judgements of the Maharashtra Revenue Tribunal and the Sub-Divisional Officer were unsustainable. He held that the personal bonafide requirement of the landlady had vanished as a result of her death during pendency of the appeal proceedings and, therefore, it was necessary to establish that the legal heirs continued to have the bonafide requirement of the tenanted land. In keeping with such observations, the petition was allowed by judgement dated 30th October, 1999. The respondents challenged judgement of this Court by filing Special Leave Petition (S.L.P.) No. 18753/2000. The Apex Court held that the effect of notification issued under section 43A of the BT&AL Act was not considered by this Court and, therefore, the S.L.P. was allowed. The Apex Court remitted the matter to this Court for afresh decision of the writ petition in accordance with the law. It is after the remand that the afresh hearing was undertaken and the counsel for ( 6 ) the parties are heard. 6. Questions involved in this petition are : (i) Whther the notification issued under section 43A (3) of the BT&AL Act in effect withdraws the exemption granted earlier vide section 43A (2) of the BT&AL Act from applicability of certain provisions of the said Act and, therefore, it was not necessary for the legal representatives of the landlady to establish their separate bonafide requirements in respect of the land in question ? (ii) Whether for the purpose of consideration of the application under section 43A read with notification, coupled with section 31 of the BT&AL Act, the heirs ought to prove their bonafide personal need for cultivation of the tenanted land and, therefore, it is necessary to remit the matter ( 7 ) for afresh enquiry so as to ascertain their such requirements ?” 7. Mr. Kulkarni strenuously argued that the personal requirement of the landlady ceases to exist soon after her death and, therefore, restoration of possession could not have been ordered in favour of her legal heirs without ascertaining their requirements. He would submit that the landlady had left only four (4) married daughters who are not prima facie agriculturists. He contended that the legal heirs of deceased landlady – Bhagirthibai never asserted that they were in need of the land for personal cultivation because of similar reasons which were stated in the application filed by said Bhagirthibai. He contended that by virtue of notification dated 14th February, 1958, which was amended on 8th October, 1969, the exemption from applicability of the provisions of the BT&AL Act had been de-clamped and, therefore, the tenant was entitled to continue his possession. He contended that the BT&AL Act is a beneficial Legislation and, therefore, rights of the tenant cannot be diminished or ( 8 ) taken away without taking recourse to the law. He invited my attention to observations in “Harikishan v. Krishna” (AIR 1977 BOMBAY 330) and other judgements which were referred to by the learned Single Judge (Hon’ble Mr. Justice J.A. Patil). Mr. Chapalgaonkar, however, submits that the juxtaposition available as on the date of filing of the application by original landlady, namely, Bhagirthibai is of significance and relevance. He would submit that her eligibility to seek restoration of land in question gave cause of action to file the proceedings and that could not be changed due to her death. He argued that the intervening developments are likely to impair the final outcome of such proceedings and, therefore, what was the juxtaposition at the time of the filing of the application will be the decisive criterion. Hence, he urged to dismiss the petition. 9. Coming to the question regarding effect of the Government Notification dated 14th February, 1958, issued under section 43A of the BT&AL Act, it may be stated ( 9 ) that section 43A was made applicable to certain tenancies subject to conditions enumerated under the Govt. Notification. Condition No. 2 reads as follows : “2. If a lessor bona fide requires any land so leased by him for cultivating it personally or for any non-agricultural use, such lease may, subject to the conditions mentioned in Secs. 31-A, 31-B, 31-C and 31-D be terminated by the lessor by giving the lessee a month’s notice in writing stating therein the reasons for the termination of the lease.” The proviso appended to condition No. 2 reveals that such termination of lease could be permitted if the holding of the lessor does not exceed one economic holding and such lessor earns his livelihood principally by agriculture or as an agricultural labour and in such cases, the conditions shown under sections 31-A and 31B would not apply. The notification issued in the exercise of powers under section 43A (3) of the BT&AL Act, therefore, has legal impact of uplifting the embargo put on right of lessor to terminate tenancy. The lessor will be eligible to seek restoration of the tenanted land if ( 10 ) his holding does not exceed one (1) economic holding under provisions of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, “the Ceiling on Holdings Act”) and also if it is demonstrated that his earning is principally by agriculture or as an agricultural labour, if he bonafidely requires land in question. Thus, three (3) conditions are required to be specified by the lessor before he can seek restoration of the leased land. They are : (i) That, he bonafidely requires the land for personal cultivation; (ii) That, his holding does not exceed the economic holding as provided under the Ceiling on Holdings Act; and (iii) That, his principal source of earning is agriculture or an agricultural labour. Needless to say, unless these three (3) conditions are satisfied, the notification issued under section 43A (3) of the BT&AL Act will not make the landlord/landlady eligible for restoration of the leased land. ( 11 ) 10. Assuming that deceased landlady, namely, Bhagirthibai was eligible to seek restoration of the land in question when she filed application before the Tahsildar, yet, the personal requirement of the landlady had vanished as a result of her death which occurred on 10th June, 1975 during pendency of the proceedings of appeal. The legal representatives of deceased Bhagirthibai have stepped into her shoes to the extent of ownership rights. However, her personal and bonafide requirement cannot be stretched so much so that it could be also attributed to the requirement of the legal representatives. The consistent view of this Court as expressed in “Hariba Keshav v. Motibai” (AIR 1975 BOMBAY 137) and “Harikishan v. Krishna” (AIR 1977 BOMBAY 330) (Full Bench), is that the personal requirement of the legal heirs of the landlord cannot be inferred on the basis of the evidence pertaining to the personal and bonafide requirement of the original landlord, who died during course of the proceedings. In other words, such personal requirement cannot be deemed to have continued ( 12 ) after the death of the landlady, namely, deceased Bhagirthibai. The legal representatives of deceased landlady must allege and prove their personal and bonafide requirements and the eligibility on touchstone of the conditions enumerated in the notification issued under section 43A (3). The petition cannot be, however, allowed in the terms as prayed for. It is necessary to conduct further enquiry as regards the bonafide personal requirements of the legal representatives of the landlady and to examine whether they are eligible to seek restoration of the land in question. The necessary steps will have to be taken by the competent authority to give afresh findings as regards eligibility of the legal heirs of deceased Bhagirthibai. Mr. Chapalgaonkar invited my attention to observations in “Shankar s/o Dattu Dhangar v. Dhondopant Narayan Kulkarni deceased through L.Rs. Smt. Dwarikabai wd/o Dhondopant and others” 1998 (3) Mh.L.J. 371. A Single Bench of this Court held that the requirement of the legal heirs of landlord were to be ascertained by the Tribunal. The Single Bench directed the Tribunal to record evidence of ( 13 ) the legal heirs of the landlord and to record afresh finding regarding their bonafide and personal needs for cultivation of the tenanted land. The Single Bench retained the writ petition, however, for final disposal after receiving of such finding. To the extent of latter course of the action taken by the Single Bench, it may be said that such view cannot be regarded as ratio decidendi and it is somewhat extraordinary step taken, having regard to the contingency. Mr. S.D. Kulkarni rightly pointed out that even if such finding is recorded by the Tenancy Tribunal, then also the right of the petitioners to challenge the same by way of appeal cannot be taken away. Considering these aspects of the matter, I am of the opinion that the original application will have to be restored with direction to determine whether the legal heirs of deceased landlady, namely, Bhagirthibai do require the land in question for personal and bonafide cultivation and are eligible to claim restoration thereof. 11. In view of the foregoing discussion, the petition is partly allowed. The impugned judgement ( 14 ) rendered by the Maharashtra Revenue Tribunal, Pune and order dated 20th February, 1984 rendered by the Sub Divisional Officer, in appeal No. 242/1974 are set aside. The original application filed by the landlady – deceased Bhagirthibai is restored and her legal representatives are directed to be taken on record with further direction that the Tenancy Tribunal shall record afresh findings as regards the personal and bonafide requirements of such legal representatives and also regarding their legal eligibility in the light of Government Notification, issued under section 43A (3) of the BT&AL Act. The Tenancy Tribunal shall endeavour to render the finding and decide the application afresh within period of six (6) months after receipt of the copy of this judgement alongwith record and proceedings and if the appeal is carried from such order, then the appellate authority shall endeavour to decide the appeal within period of six (6) months thereafter. The findings rendered by the authorities, when would reach finality, may be brought to the notice of this Court by filing a separate civil application in order to revive the present writ petition for final disposal immediately ( 15 ) on basis of such findings without consideration of any new ground. In other words, it would not be necessary for the parties to prefer any other writ petition in order to ventilate their grievances. The petition is accordingly disposed of. No costs. Rule partly made absolute accordingly. [ V.R. KINGAONKAR ] JUDGE NPJ/wp3137.90