1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4656 OF 1988 The Pune Panjarpole Trust, ) Office at 416/3, Sadashiv Peth, ) Pune - 411030 ) .... Petitioner. V/s 1. Shri Baban Gabaji Saste ) ) 2. Shri Dashrath Nabaji Saste ) ) 3. Shri Appa Savleram Saste ) [delted as per Court order dated ) 22/02/2007] ) ) 4. Shri Sahebrao Savaleram Saste ) deceased by heir Hanumant ) Sahebrao Saste ) [deleted as per Court order dated ) 22/02/2007] ) ) 5. Shri Nathu Ramji Saste ) [Petition abated against R.No.5 ) as per court order dated 5/3/97] ) Shri Nathu Ramji Saste ) since deceased, through his heirs ) and legal representatives ) 5A. Rakhmabai Nathu Saste ) Age 70 years. ) 5B. Shankar Nathu Saste ) Age 50 years ) 5C. Vilas Nathu Saste ) Age 48 years ) 5.D. Sunil Nathu Saste ) Age 45 years ) 5E. Santosh Nathu Saste ) 2 Age 43 years ) ) 6. Shri Raghunath Keshav Saste ) deceased by hiers and legal ) representatives ) 6A. Dilip Rathunath Saste ) 6B. Himant Raghunath Saste ) 6C. Sharad Raghunath Saste] ) 6D. Baby Sudhakar Alekar ] ) [R. 6C and 6D deleted as per court’s ) order dated 22/02/2007.] ) ) 7. Laxman Ananta Saste ) deceased by ) Shri Dnyanoba Laxman Saste ) [deleted as per court’s order ) dated 22/02/2007] ) ) 8. Shri Namdeo Ananta Saste ) deceased by heir ) 8A. Bajirao Namdeo Saste ) ) 9. Shri Nana Ananta Saste ) deceased by heir Smt. Kondabai ) Nana Saste. ) [deleted by Court’s order dated ) 22/02/2007] ) ) 10. Shri Damu Ananta Saste ) deceased by heir ) Shri Popat Damu Saste ) [deleted by Court’s order dated ) 22/02/2007] ) ) 11. Shri Sahadu Abaji Saste ) deceased by heir ) Narayan Sahadu Saste ) ) 12. Shri Balwant Abaji Saste ) deceased by heir Gangaram ) Balwant Saste. ) [deleted as per court’s order dated ) 3 22/02/2007] ) ) 13. Shri Nivrutti Babu Saste ) [Petition abated against R.No.13 as ) per Court’s order dated 5/3/1997] ) 13. Shri Nivrutti Bhau Saste ) since deceased, by heir and ) legal representative : ) ) 13-A. Dnyanoba Bhau Saste ) Age: 60 years ) [deleted as per Court’s order dated ) 22/02/2007] ) ) 13-B Shivaji Bhau Saste ) since deceased by heir ) 13-B(i) Bhauso @ Dilip ) Shivaji Saste ) Age : 28 years ) ) 13-C. Balu Nivrutti Saste ) Age : 50 years ) ) 14. Shri Sadashiv Bhau Saste ) [deleted as per Court’s order dated ) 22/02/2007] ) ) 15. Shri Krishna Dhondiba Saste ) [Petition stands abated as per Court’s ) order dated 5/3/1997] ) ) 15. Shri Krishna Dhondiba Saste ) since deceased, by his heir and ) legal representatives :- ) ) 15-A Shri Jaishankar Krishna Saste ) Age 60 years ) ) 15-B Shri Narayan Krishna Saste ) Age - 59 years ) ) 15-C. Shri Dasharath Krishna Saste ) 4 Age - 55 years ) ) 15-D. Shri Pandurang Krishna Saste ) Age - 58 years ) ) 15-E. Shri Kundalik Krishna Saste ) Age - 50 years ) ) 15-F Shri Uttam Krishna Saste ) Age - 48 years ) ) 15-G. Hirabai Dhannu Bavare ) Age - 46 years ) [deleted as per Court’s order ) dated 22/02/2007] ) ) 15-H. Tarabai Shantram Kavare ) [deleted as per Court’s order ) dated 22/02/2007] ) ) 15-I. Sushila Raghu Dhage ) [deleted as per Court’s order ) dated 22/02/2007] ) ) 16. Shri Damu Nana Saste ) deceased by heir Smt. Sitabai ) Damu Saste ) [deleted as per Court’s order ) dated 22/02/2007] ) ) 17. Shri Nivrutti Ganpati Saste ) ) 18. Shri Vithu Babaji Saste ) deceased by heir Shri ) Deoram Vithu Saste ) ) 19. Shri Tukaram Babaji Saste ) ) 20. Shri Kesu Babaji Saste ) deceased by heir Pandurang ) Kesu Saste ) ) 5 21. Shri Haribhau Dagadu Saste ) ) 22. Shri Shantaram Nathu Saste ) ) 23. Shri Shivram Maruti Saste ) deceased by heir Hiraman ) Shivram Saste. ) ) 24. Shri Nivrutti Vishnu Saste ) deceased by heir Shri Baban ) Nivrutti Saste ) [deleted as per order dated ) 22/02/2007] ) ) 25. Shri Narayan Ganpati Saste ) deceased by heirs ) 25A. Shri Sahebrao Narayan Saste ) 25B. Shri Nana Narayan Saste ) 25C. Shri Balu Narayan Saste ) 25D. Shri Suresh Narayan Saste ) ) 26. Shri Baban Mahadu Saste ) [deleted as per order dated 22/2/2007] ) ) 27. Shri Hiraman Balkrishna Saste ) [deleted as per order dated 22/2/2007] ) ) 28. Shri Laxman Balwant Saste ) [Petition stands abated against ) R No.28 as per Court’s order dated ) 5/3/1997] ) 28. Shri Laxman Balwant Saste ) deceased by heir ) ) 28-A. Balwant Laxman Saste ) Age 50 ) deceased by heirs ) 28A(i) Shri Vasudeo Balwant ) Saste Jadhav, Age 42 yrs) 28A(ii) Shri Balu Balwant Saste ) Jadhav, Age 39 yrs ) 6 28A(iii)Shri Vijay Balwant Saste) Jadhav, Age 30 yrs. ) ) 28B. Ramchandra Laxman Saste ) Jadhav, ) deceased by heirs ) 28B(i) Shri Nandkumar ) Ramchandra Saste ) Jadhav, Age 41 yrs. ) 28B(ii) Shri Santosh ) Ramchandra Saste ) Jadhav, Age 38 years ) 28-C. Sou. Gangubai Rajaram Garade ) Age - 40 years ) ) 28-D. Sou Shevantabai Keshavrao ) Deshmukh, Age - 38 years ) ) ) 29. Shri Dhulaji Kondaji Saste ) [Petition stands abated against ) R.No.29 as per Court’s order dated ) 5/3/1997) ) ) 29. Shri Dhulaji Kondaji Saste ) since deceased, by heirs and legal ) representatives :- ) ) 29-A. Indubai Dhulaji Saste ) Age - 76 years ) [deleted as per Court’s order ) dated 22/02/2007] ) ) 29-B. Dasharath Dhulaji Saste ) Age - 58 years ) [deleted as per Court’s order ) dated 22/02/2007] ) ) 29-C. Dnyaneshwar Dhulaji Saste ) Age - 55 years. ) [deleted as per Court’s order ) 7 dated 22/02/2007] ) ) 29-D. Gangubai Dasharath Gaikwad ) Age - 50 years. ) ) 29-E. Sindhubai Bhagwan Bhalekar ) Age - 45 years. ) ) 30. Shri Gangaram Yeshwant Saste ) deceased by heir ) ) 30A. Shri Dnyanoba Gangaram Saste ) 30B. Shri Vithal Gangaram Saste ) 30C. Shri Krishna Yeshwant Saste ) [deleted as per Court’s order dated ) 22/02/2007] ) ) 31. Shri Jayshankar Krishna Saste ) [deleted as per Court’s order dated ) 22/02/2007. ) ) 32. Shri Kondiba Dhondiba Saste ) [Petition stands abated against ) R.No.32 as per Court’s order dated ) 5/3/1997] ) ) 32. Shri Kondiba Dhondiba Saste ) since deceased, by heirs and ) legal representatives - ) ) ) 32-A Babu Kondiba Saste ) Age - 60 years. ) ) 32-B Dasharath Kondiba Saste ) Age 55 years ) [deleted as per Court’s order ) dated 22/02/2007] ) ) 33. Shri Nivrutti Bhau Saste ) ) 8 34. Shri Kisan Maruti Saste ) ) 35. Shri Dashrath Shripati Saste ) deceased by heir ) ) 35A. Shri Laxman Dashrath Saste ) ) 36. Smt. Madhubai Tukaram Saste ) deceased by heir ) Smt. Vanarasibai Tukaram Saste ) [deleted as per Court’s order ) dated 22/02/2007] ) ) 37. Shri Babu Dhondiba Saste ) Nos. 1 to 29 and 31 to 37 ) residing at Mouje Moshi, ) Taluka Haveli, District Pune ) No.30 residing at Post Dehugaon) Embhewasti, Taluka Haveli, ) District Pune. ) Respondents. ---- Mr. R.G. Ketkar for the Petitioner. Mr. N.V. Walawalkar, Sr. Counsel i/b Mr. G.H. Keluskar for Respondent Nos. 8A, 28B(i), 34, 25D, 17, 6B, 35A. Mr. S.V. Pitre for Respondent Nos. 1, 2, 11, 19, 20, 21, 22, 13B(i), 13C, 15B, 30B 18 and 37. Mr. Mahesh Subramaniam for Respondent Nos. 5A to 5E. --- CORAM: V.M. KANADE, J. DATE : 5th October, 2007 ORAL JUDGMENT: 1. Petitioner is challenging the judgment and order dated 9 21 st July, 1985 passed by the Sub Divisional Officer, Sub- Division Pune in TNC/Appeal 51 of 1984 whereby the appeal filed by Respondents was allowed and it was declared that the Petitioner is not the tenant of the suit lands. This order was challenged by the Petitioner by filing revision before the Maharashtra Revenue Tribunal (For short “MRT”). MRT dismissed the revision application by judgment and order dated 31/08/1988. This order is also challenged in this Writ Petition. 2. Petitioner is the Pune Panjarpole Trust and it was established in the year 1855 A.D. It was duly registered under the Societies Registration Act, 1860 as also a Public Trust under the Bombay Public Trusts Act, 1950. Petitioner filed application before the learned Additional Tahsildar and ALT, Haveli under section 70(b) of the Bombay Tenancy and Agricultural Lands Act, 1948 (Fort short “BT & AL Act), seeking declaration that they are tenants in respect of the suit lands situated at village Moshi being Gat Nos. 122 & 123. It was contended that the Trust is an agriculturist within the definition of section 2(2) of the BT & AL Act and though it 10 is a juristic person it acts through its trustees and that the land was held by them on lawful lease which was executed on 05/09/1947 and that the name of the Trust was entered as a protected tenant vide Mutation Entry No. 3126 dated 30/09/1948 which was duly certified as such. Further, it was contended that the lands were exempted under the provisions of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 by the Government. It was further contended that the lands in question were specifically given for the purpose of grazing cattle and to cut grass and, therefore, it fell within the meaning of the term “Agriculture” and trustees, therefore, were persons cultivating the land within the meaning of section 2(5) of the BT & AL Act. 3. Mr. Ketkar, the learned Counsel appearing on behalf of the Petitioner submitted that the Sub-Divisional Officer and the MRT had committed an error of law which was apparent on the face of the record by holding that the Trust, being a juristic person, could not be a tenant in cultivation as required under section 32 and was not entitled to claim right of statutory purchase and, therefore, was not entitled to get 11 a declaration that it was a tenant. He submitted that the Trial Court had erred in relying on the judgment in the case of Chintamani Yeshwant Kale Vs. Shri Nasik Panchavati Panjarpol reported in 65 TLR 47 and the judgment reported in 1963 Gujrat Law Reporter 23. He submitted that the Apex Court had considered both these judgments and had held that though the Trust was a juristic person, the land could vest in it through its trustees. He relied on the judgment of the Apex Court in Pandit Ishwardas Vs. Maharashtra Revenue Tribunal reported in 71 BLR 59. He then submitted that both the lower authorities had erred in holding that the lands in question were not agricultural lands. He invited my attention to the definition of the word “Agriculture” which was amended in 1957 by virtue of Bom. 15 of 1957, s.2(a). He submitted that both the lower authorities had failed to take into consideration the inclusive definition of the word “Agriculture” after the amending Act. He further submitted that the word “cultivation” as is found in sub-clause (5) of section 2 does not include raising of crops, grass or garden produce which was inserted by amendment made in 1957 and, that being the position, 12 raising of grass amounted to cultivation. He submitted that reliance which was placed by the lower authorities on the judgment of the High Court in the case of Motiram and also Judgment of the High Court in Civil Appeal No. 5 of 1970 delivered by Shimpi J., did not take into consideration the amended provisions of section 2(1). He submitted that the words “raising of grass”, therefore, would include the naturally grown grass and, as such, the lands in question were agricultural lands within the said definition. He submitted that since the definition was inclusive definition, it had to be widely interpreted. He submitted that both the lower authorities had not taken into consideration this aspect and, therefore, the impugned order is liable to be set aside. He then submitted that though the Petition had been abated in respect of some of the respondents, the right to sue continue. He relied upon the judgments of the Apex Court in State of Punjab Vs. Nathu Ram reported in AIR 1962 SC 89 and in Rameshwar Prasad and others Vs. Shambehari Lal Jagannath and another reported in AIR 1963 SC 1901. 4. Mr. Pitre, the learned Counsel appearing on behalf of 13 some of the respondents, however, contended that the judgment of the Apex Court in Pandit Ishwardas Vs. Maharashtra Revenue Tribunal reported in 71 BLR 59 would not apply to the facts of the present case. He submitted that, in the said case, application was made by the Trust as a landlord for personal cultivation, whereas, in the present case, the Trust was claiming to be a tenant. He further submitted that both the lower authorities had recorded a finding of fact that no grass was cultivated on the said lands. He relied upon the panchanama which was made at the instance of ALT which indicated that no grass was cultivated by the Trust. He submitted that since this finding of fact was recorded by both the authorities, it was not open for this Court to set aside the said finding of fact. 5. Mr. Walawalkar, the learned Counsel appearing on behalf of some of the respondents relied upon the judgment of the Division Bench of this Court in Nathubhai Gandabhai Desai V. The State of Bombay reported in 1954 BLR (Vol.LVII) 199. He submitted that prior to amendment of the definition of the word “Agriculture” found in section 2(1), Division 14 Bench of this Court had an occasion to consider the meaning of the expression “Agriculture” and “raising grass” and that it had held that the naturally grown grass did not fall within the expression of “raising grass” or “Agriculture”. He submitted that, in that context, the word “raising grass” had to be construed even after amendment and, in the present case, the Trust was not an agriculturist and, therefore, could not get benefit of the amended definition of the word “Agriculture”. He invited my attention to the definition of the term “Agriculturist” and the words “to cultivate” and submitted that on conjoint reading of these expressions, it was apparent that the Petitioner was not an agriculturist and was not cultivating grass. He further invited my attention to lease of 1947. He submitted that the purpose of the lease was expressly to cut grass and to graze cattle. He submitted that both these aims and objects did not fall within the definition of the word “Agriculture” or “Agriculturist”. He submitted that, therefore, there was no infirmity in the order passed by the authorities below and that there was no reason to interfere with the impugned order. The other respondents have adopted the arguments advanced by Mr. 15 Walawalkar and Mr. Pitre. 6. Three points which fall for consideration before this Court are (i) whether a Trust which is a juristic person can claim a declaration of tenancy under section 70(b) of the BT & AL Act, (ii) whether the land on which natural grass is grown can be said to be an agricultural land within the meaning of section 2(1) of the BT & AL Act and (iii) whether naturally grown grass on the land can amount to cultivation of land as defined under section 2(5) of the said Act. 7. In the present case, some of the admitted facts are that the suit lands were given on lease to the Petitioner - Trust for the purpose of permitting the Petitioner to graze its cattle on the said lands and to cut grass for the purpose of feeding its cattle. This lease deed was executed between the parties on 05/09/1947. The Government had notified the approval of these lands as being lands held by the Petitioner - Trust for the purpose of maintaining old and infirm animals of all categories. Thirdly, the Mutation Entry No.3126 was made 16 dated 30/09/1948 stating that in respect of the said lands, the Secretary of the Trust was a protected tenant under section 3(A) of the said Act. 8. The Petitioner - Trust filed an application for a declaration under section 70(b) that it was a tenant of the said lands which was allowed by the Tahsildar and ALT. However, in appeal, Sub-Divisional Officer and the MRT, in revision, held that the Petitioner - Trust, being a juristic person, could not claim a declaration under section 70(b) of the BT & AL Act and, secondly, that the lands in question are not agricultural lands and, therefore, Petitioner - Trust was not entitled to get declaration under the said Act that the Petitioner - Trust is a tenant of the suit lands. 9. In order to appreciate the rival contentions, it is necessary to refer to the relevant provisions. Section 2(1) of the said Act defines “agriculture” which reads as under:- “ 2. Definitions : ........................................ [(1) “Agriculture” includes horticulture, 17 the raising of crops, grass or garden produce, [the use by any agriculturist of the land held by him or a part thereof for the grazing of his cattle, the use of any land, whether or not an appanage to rice or paddy land, for the purpose of rab manure] but does not include allied pursuits or the cutting of wood only.” Section 2(2) defines the word “Agriculturist” which reads as under:- “ 2. Definitions : ......................................... (2) “Agriculturist” means a person who cultivates land personally;” Section 2(5) defines the word “to cultivate” and section 2(6) defines the word “to cultivate personally” which read as under:- “ 2. Definitions : ........................................... (1) ................. (2) ................. (3) ................ (4) ................ [(5) “to cultivate” with its grammatical variation and cognate expressions means to till or husband the land for the 18 purpose of raising or improving agricultural produce, whether by manual labour or by means of cattle or machinery, or to carry on any agricultural operation thereon; and the expression “uncultivated” shall be construed correspondingly; Explanation.- A person who takes up a contract to cut grass, or to gather the fruits or other produce of trees on any land, shall not on that account only be deemed to cultivate such land;] [(6) “to cultivate personally” means to cultivate land on one’s own account - (i) by one’s own labour, or (ii) by the labour of any member of one’s family by hired labour or by servants on wages payable in cash or kind but not in crop share, being land, the entire area of which - (a) is situate within the limits of single village, or 19 (b) is so situated that no piece of land is separated from another by a distance of more than five miles, or (c) forms one compact block : Provided that the restrictions contained in clause (a) (b) and (c) shall not apply to any land, - (i) which does not exceed twice the ceiling area (ii) upto twice the ceiling area, if such land exceeds twice the ceiling area. Explanation I. -A widow or a minor, or a person who is subject to physical or mental disability, or a serving member of the armed forces shall be deemed to cultivate the land personally if such land is cultivated by servants, or by hired labour, or through tenants. Explanation II. - In the case of a joint family, the land shall be deemed to have been cultivate personally if it is cultivated by any member of such family;]” The word “Agriculture” was amended in 1957 and the 20 bracketed portion was incorporated in the said definition. However, prior to the amendment, the words “to raise grass” have been interpreted by the Division Bench of this Court in the case of Nathubhai Gandabhai Desai (supra) wherein Division Bench has held that naturally grown grass does not amount to cultivation of land and, as such, the said land does not fall under the category of agricultural land. The Division Bench has observed as under:- “ Now, the first question that we have to consider is : What did the legislature actually intend when it used the expression “any land has remained uncultivated,” and for that purpose we must turn to s. 2 which is the definition section. In that section “to cultivate has been defined as “to carry on any agricultural operation,” and “agriculture” has been defined as including horticulture, the raising of crops, grass or garden produce, diary farming, poultry farming, stock breeding and grazing, but does not include cutting of wood only. Briefly, the contention of the State of 21 Bombay is that the lands which have been the subject matter of the declaration are grass lands in which grass grows, but grass grows spontaneously, grass is a natural crop and no human agency or human industry or effort is required for the purpose of growing grass. On the other hand, the contention of the petitioners is that the grass that they grow requires the sowing of seeds, it requires the process of weeding, and at least in one case it has been suggested that there is actually a well out of which water has to be supplied in order to enable the grass to grow. Now, these are divergent versions of what actually is being done on the lands of the petitioners. As we have pointed out, it is for the Government to be satisfied as to what is actually being done on these lands. It is for the Government to decide whether the land is uncultivated as provided by the statute. Realising this difficulty the petitioners have argued these petitions on the basis that the version given by the Government as to what is being done on these lands is the correct version, and 22 even so it is urged by the petitioners that the result of the growing of this grass on the lands is agriculture and the petitioners are cultivating their lands within the meaning of that definition in s. 2. The question therefore which presents itself to us is whether it could be said of a person on whose land grass grows naturally and spontaneously without any effort on his part or without any activity on his part, that he is raising grass and he is carrying on an agricultural operation. The only agricultural operation we are concerned with in this case is the raising of grass, and the case of the Government is, which we must accept for the purpose of these petitions, that all that the petitioners do is to cut the grass and use it as fodder for their cattle, and it is urged on behalf of the State that merely cutting of grass can in no view of the case amount to the raising of grass as required by the Act. It will be noticed that the definition of “agriculture” is an inclusive definition; it is not an exhaustive definition; and by 23 an inclusive definition it is always open to a Legislature to extend the natural meaning of a word or expression. It may give an artificial meaning to an expression and include in the connotation of that expression a connotation which it does not naturally bear, and it will be open to the petitioners to suggest that inasmuch as the definition of “agriculture” is not exhaustive, if they satisfy us that “agriculture” in its plain natural meaning would include the process which Government admit the