1 SA 243 of 2007 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 243 OF 2007 Late Kisan s/o Shripat Patil, (Since deceased through L.R’s) Appellants 1 Bhimrao s/o Kisan Patil, Aged 61 years, Occupation Agriculture, 2 Rangarao s/o Kisan Patil, (Since deceased through L.R’s) 2.1 Sayabai w/o Rangarao Patil, Aged 62 years, Occupation Household, Resident of Patil Galli, Taluka Chopada, District Jalgaon. 2.2. Jitendra s/o Rangarao Patil, Aged 24 years, Occupation Agriculture, Resident of as above. 2.3 Nirmalabai w/o Bapu Patil, Aged 35 years, Occupation Household, Resident of At Post Choubari, Taluka Amalner, District Jalgaon. 2.4 Rekhabai w/o Dagdu Patil, Aged 33 years, Occupation Household, Resident of Londe Galli, Near Shani Gate, Taluka Parola, District Jalgaon. 2.5 Pratibha w/o Raju Patil, Aged 28 years, Occupation Household, Resident of Ashtavinayaka Nagar, New Savda Road,Taluka Raver, District Jalgaon. 2.6 Sangita w/o Sunil Patil, Aged 28 years, Occupation Household, Resident of At Post Choubari, Taluka Amalner, District Jalgaon. 2 SA 243 of 2007 2.7 Vandana w/o Anil Patil, Aged 25 years, Occupation Household, Resident of as above. (Through Their GPA Tamraj s/o Bhimrao Patil, Aged 36 years, Occupation Agriculture, Resident of Patil Galli, Taluka Chopada, District Jalgaon) V E R S U S 1 Babulal @ Damodhar s/o Hiralal Gujrathi, Aged 66 years, Occupation Agriculture, Respondents 2 Late Chaganlal s/o Hiralal Gujrathi (Since dead, through L.R’s) 2.a Arvindlal s/o Chaganlal Gujrathi, Aged 61 years, Occupation Agriculture, 2.b Ravindralal s/o Chaganlal Gujrathi, Aged 56 years, Occupation Agriculture, 2.c Vithaldas s/o Chaganlal Gujrathi, Aged 53 years, Occupation Agriculture, 2.d Mangalabai w/o Narayandas Gujrathi, Aged 48 years, Occupation Agriculture, 2.e Smt. Gopibai Chaganlal Gujrathi, (Since Dead L.R’s already on record) Dismissed, as per Court’s order dated 27.02.2009 All resident of Gujarathi Galli, Chopada, Taluka Chopada, District Jalgaon. Mr. Vijay B. Patil, Advocate for the appellants Mr. S.A. Kulkarni, Advocate for the respondents No. 1, 2A to 2D CORAM : A.V. NIRGUDE, J. DATED : 18th February, 2011 3 SA 243 of 2007 ORAL JUDGMENT : 1. After hearing the submissions of the learned counsels appearing for the parties, following substantial question of Law is found arising in this appeal:- Is the appellants' tenancy to the suit lands protected under the provisions of Bombay Tenancy & Agricultural Lands Act, 1948? By consent of the learned Advocates appearing for the parties, I heard the submissions on the appeal finally. 2. The respondents/plaintiffs filed the suit in 1990 for eviction of the appellants/defendants from two agricultural lands bearing survey Nos. 995 and 1585, situated at Chopada, Taluka Chopada, District Jalgaon. It is common ground that in 1945, these two lands were given to the appellants’ predecessor for agricultural purpose. He thus became tenant in respect of the lands. It is also common ground that since prior to 1945, the lands fell within the municipal limits of Chopada town. The predecessor of the appellants continued to cultivate the lands as tenant, and after his death, the appellants/defendants are cultivating the same. 3. In the meantime, in 1983, the Chopada Municipal Council passed a resolution under Section 38 of the Maharashtra Regional & Town Planning Act, 1966 (hereinafter referred as ‘MRTP Act’), and proposed to prepare a revised development plan. The proposal was sent to the Government, and, as per the provisions of the MRTP Act, the Government issued a notification on 18th October, 1986, saying inter-alia that the suit lands are kept reserved for certain non- agricultural purpose viz. for construction of Semi Government Offices 4 SA 243 of 2007 and for residential purpose including traffic island and road. Taking clue from this event, the respondents / plaintiffs assumed that the appellants / defendants would no longer have protection of the provisions of Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred as ‘BTAL Act’) and further assumed that can be evicted by following provisions of Section 106 of the Transfer of Property Act. They accordingly issued a notice under Section 106 of the Transfer of Property Act and terminated the tenancy. Subsequently, they filed the present suit. They all along asserted that in view of Section 43C of the BTAL Act, the provisions of Sections 31, 32, 33A, 33B, 33C and 43 would not apply to the lands in question. As against this, the appellants / defendants took up a defence that they still held the lands as tenant and are protected by the provisions of BTAL Act and the suit should be dismissed. 4. The learned Judge of the trial Court dismissed the suit on the ground that the lands in question were not included in the municipal limits of Chopada Municipal Council, and so, the provisions of Section 43C of the BTAL Act will not come to the respondents/plaintiffs help. The learned Judge of the first appeal Court however rightly held that the lands are situated within the municipal limits of Chopada Municipal Council since prior to creation of tenancy in 1945. However, the learned Judge of the first appeal Court further held that the notification, referred to above, issued under Section 38 of the MRTP Act was equivalent to a notification under Section 88(1)(b) of the BTAL Act, and so, from the date of such notification of the provisions of BTAL Act would stop applying to the lands in question. In view of this, he held that the suit filed was maintainable and deserved to be 5 SA 243 of 2007 decreed. 5. In this background, in order to answer the substantial question of Law, I must give findings on following points, which arose for my consideration : (I) Whether Section 43C of the Bombay Tenancy & Agricultural Lands Act, 1948 is applicable to the facts of the case ? (II) Whether the Notification issued under Section 38 of the Maharashtra Regional & Town Planning Act, 1966 had similar effect to that of a notification that could have been issued under Section 88 (1)(b) of the Bombay Tenancy & Agricultural Lands Act, 1948 ? 6. The lands in question are situated in the vicinity of Chopada town and now it is proved that the lands since 1910 are lying within the municipal limits of Chopada town. In 1910, the then Bombay Government, under Section 8 of the Bombay District Municipal Act, 1909 altered the limits of Chopada Municipal District. After limits were so fixed, as said above, the lands in question fell within such municipal limits. Section 43C of the BTAL Act, reads as under : 43C. Nothing in sections 31 to 32R (both inclusive), 33A, 33B, 33C and 43 shall apply to lands in the areas within the limits of - (a) Greater Bombay. (b) a municipal corporation constituted under Bombay Provincial Municipal Corporation Act, 1949. (c) a municipal borough constituted under the Bombay Municipal Boroughs Act, 1925. (d) a municipal district constituted under the Bombay District Municipal Act, 1901. (e) a cantonment, or (f) any area included in a Town Planning Scheme under the Bombay Town Planning Act, 1954 : 6 SA 243 of 2007 Provided that if any person has acquired any right as a tenant under this Act on or after the 28th December 1948, the said right shall not be deemed to have been affected by the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1952, or by the amending Act, 1955, notwithstanding the fact that either of the said Acts has been made applicable to the area in which such land is situate. 7. Section 43C was inserted in the BTAL Act, 1948, in 1956. In view of clause (d), it is clear that though the predecessor of the appellants/defendants was a tenant in respect of the suit lands, he, and now the appellants/defendants, are unable to seek protection of the provisions of Sections 31 to 31R, 33A, 33B, 44C and 43 of the BTAL, Act. Sections 31, 31A, 31B, 31BB, 31C, 31D are the provisions relating to rights and privileges of the tenants and for distribution of the land for personal cultivation, and, provisions of Section 32 onwards till Section 32R, are in respect of the tenant’s right to purchase the land which he occupied as tenant on the tillers day. These provisions thus never applied to the relationship between the parties as landlord and tenant. Does it mean that the appellants / tenants had lost all the rights arising from the BTAL Act as tenant? The answer is in negative. The predecessor of the appellants/defendants were the persons, who held the suit lands on lease. He took the lands on lease in 1945, and in view of Section 3A of the Bombay Tenancy Act, 1939, he also became a protected tenant. Section 3A of the Bombay Tenancy Act, 1939, reads as under : 3A. Every tenant shall, from the eighth day of 7 SA 243 of 2007 November 1947 be deemed to be a protected tenant for the purposes of this Act and his rights as such protected tenant shall be recorded in the Record of Rights, unless his landlord has prior to the aforesaid date made an application to the Mamlatdar for a declaration that the tenant is not a protected tenant. 8. The predecessor of the appellants and the appellants after his demise thus could claim protection as protected tenants. In this situation, if at all the landlord intended to terminate their tenancy, he was under obligation to follow the provisions of Section 14 of the BTAL Act. Section 14 reads as under : 14. (1) Notwithstanding any law, agreement or usage, or the decree or order of court, the tenancy of any land shall not be terminated - (a) unless the tenant - (i) has failed to pay the rent for any revenue year before the 31st day of May thereof ; (ii)has done any act which is destructive or permanently injurious to the land ; (iii)has sub-divided, sub-let or assigned the land in contravention of section 27 ; (iv) has failed to cultivate it personally ; or (v) has used such land for a purpose other than agriculture or allied pursuits ; and (b) unless the landlord has given three months’ notice in writing informing the tenant of his decision to terminate the tenancy and the ground for such termination, and within that period the tenant has failed to remedy the breach for which the tenancy is liable to be terminated. (2) Nothing in sub-section (1) shall apply to the tenancy of any land held by a permanent tenant unless by the conditions of such tenancy the tenancy is liable to be terminated on any of the 8 SA 243 of 2007 grounds mentioned in the said sub-section. 9. Admittedly, the respondents/plaintiffs had not taken action against the appellants/defendants for terminating their tenancy. So, although the suit lands are affected due to the provisions of Section 43C of the BTAL Act due to their inclusion in the limits of Municipal District, yet the respondents/plaintiffs could not have terminated their tenancy merely by giving a notice under Section 106 of the Transfer of Property Act. 10. Admittedly, the respondents/plaintiffs did not intend to terminate the tenancy of the appellants/defendants only because their lands fell within the limits of Municipal District of Chopada town. They were prompted to terminate the tenancy, only because the notification under Section 38 of the MRTP Act was issued and the lands were reserved for certain purpose. Admittedly, this notification is not issued under Section 88 of the BTAL Act. Section 88 reads as under : 88. (1) Save as otherwise provided in sub- section (2), nothing in the foregoing provisions of this Act, shall apply - (a) to lands belonging to, or held on lease from, the Government ; (b) to any area which the State Government may, from time to time, by notification in the Official Gazette, specify as being reserved for non-agricultural or industrial development; (c) to an estate or land taken under the management of the Court of Wards or of a Government Officer appointed in his official capacity as a guardian under the Guardians ad Wards Act, 1890. (d) to an estate or land taken under management by the State Government under Chapter IV or section 65 except as provided in 9 SA 243 of 2007 the said Chapter IV or section 65, as the case may be, and in sections 66, 80A, 82, 83, 84, 85, 86 and 87. The State Government is empowered to reserve any area for non- agricultural or industrial development which hitherto is an agricultural land in use and occupation of a tenants. As soon as the State Government reserves a piece of land for non-agricultural or industrial development, the provisions of BTAL Act would cease to apply to the said lands. If such land is in occupation / possession of a tenant, all his rights arising from the provisions of BTAL Act would cease. In other words, his tenancy would not get protection of the provisions of the Act. With the result, his landlord would be able to terminate his tenancy under the provisions of the Transfer of Property Act and can initiate eviction proceeding against him in the Civil Court. But, the reservation of such land ought to be made under the provisions of Section 88 of the BTAL Act, 1948. 11. In this case, such reservation is not made, and so, the provisions of Section 88 (1) (b) of the BTAL Act are not attracted to the facts of the case. The observations of the learned Judge of the first appeal Court in this regard are thus erroneous. 12. The next question is, whether the notification issued under MRTP Act would deprive a tenant of his rights arising from the provisions of the BTAL Act ? In view of the Judgment of the Division Bench of this Court in the case of M/s Nilesh Construction Company and another v. Mrs. Gangubai and others (AIR 1982 Bombay 491), it is amply clear that it is only when a notification under Section 88 (1) (b) is issued in respect of a land, the provisions of the 10 SA 243 of 2007 BTAL Act would cease to apply to the said land. Similar effect will not ensue if a notification under MRTP Act is issued for reserving certain areas within the municipal limits for non-agricultural purposes. 13. The first and foremost reason is that the MRTP Act is made for ensuring that the local authorities should prepare development plans for the area within their jurisdiction and develop it accordingly. Most of the times the lands so reserved for public purposes are acquired. Until such land is acquired, the owner of the land is able to continue the use of the land. On the other hand, the BTAL Act, 1948, was made with a view to protect and improve economic and social conditions of peasants and to insure that they fully and efficiently use their land for agriculture. In other words, the provisions of this Act provide necessary protection to the peasants who cultivate the lands, but they are not necessarily owners of the same. Section 88 clearly makes an exception to this object of the Act. It takes into account possibility of some agricultural land being needed for non-agricultural or industrial development. Obviously, such area, which is required for non- agricultural or industrial development could not be within the municipal limits of any town or region established under the MRTP Act. This provision thus is clearly more potent than the provisions of Chapter – III of the MRTP Act, which provides procedure for preparation, submission and sanction of a development plan. Secondly, the provisions of MRTP Act do not provide that the lands reserved for non-agricultural purposes in a development plan would cease to get the protection of the BTAL Act. 14. In view of this, it is clear that the appellants/defendants still had protection of the BTAL Act, and consequently, they cannot be evicted 11 SA 243 of 2007 without following the due process of Law provided under the provisions of BTAL Act. The appeal thus should succeed. 15. The appeal is allowed. The Judgment and order passed by the lower appellate Court stands set aside. The suit filed by the respondents stands dismissed. ( A.V. NIRGUDE, J. ) SRM/sa/243/07/18/2/11/ok