1 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Writ Petition No.5183 of 1991 WITH Writ Petition No.5184 of 1991 Shri Dnyaneshwar Shivram Tilekar & ors. ... Petitioners Versus Pannalal Raichand Vora ... ... Respondents Mr.G.R. Rege i/by Ms.S.A. Mudbidri for Petitioners. Mr.P.K. Dhakephalkar with Mr.A.H.Palekar i/by Mr.M.V. Sali for Respondents. (In both matters) ----- CORAM : SMT.ROSHAN DALVI, J. Date of reserving the judgment : 6 th January, 2010 Date of pronouncing the judgment : 22 nd January, 2010 JUDGMENT : 1. The Petitioners are the tenants/lessees in respect of the land bearing Survey Nos.568 admeasuring 10 Hectares 53 Ares in Akluj Taluka Malshiras, District Solapur. The Petitioners have been granted two leases for growing sugarcane. The Respondent, who is the lessor of these lands, has sought to terminate the lease on the ground of bona fide requirement. The parties case falls under Section 43A of the Bombay Tenancy and Agricultural Lands Act, 1948 (the Act). Under Section 43A(1) of the Act, the provisions, inter alia, of 2 Sections 31A and 31B of the Act are not to apply to the cultivation of sugarcane. However, under Section 43A(3) of the Act the State Government is empowered to direct by Notification in the Official Gazette that the leases of such lands covered under Section 43A(1) would be subject to such conditions as may be mentioned in the Notification. 2. The State Government issued a Notification on 1.10.1969 with regard to the termination of the leases for bona fide requirement. 3. Under Clause 2 of the Notification, if the lessor bona fide requires any land leased by him for cultivating it personally or for any non- agricultural use, he may terminate the said lease subject to the conditions mentioned, inter alia, in Sections 31A and 31B of the Act. 4. Under the proviso to Clause 2 of the said Notification, if the lessor s holding did not exceed one economic holding and a lessor earned his livelihood principally by agriculture or by agricultural labour, the conditions mentioned in Sections 31A and 31B of the Act were not to apply. Such is not the present case since admittedly the Respondent-lessor was not earning his livelihood 3 principally by agriculture and his holding was larger than the economic holding as defined under Section 6 of the Act. 5. The Respondent-lessor was, therefore, required to essentially show his bona fide requirement of the land leased by him which was of the ceiling area as defined in Section 5 of the Act. The Respondent- lessor had, therefore, essentially to show his bona fide requirement of the land leased to the Petitioners for cultivating it personally and as per Sections 31A and 31B of the Act to show that the income of the cultivation of which he would take possession upon the termination of the lease, would be his principal source of income for his maintenance and as per Section 31B that upon the termination of tenancy, the Petitioners- lessees/tenants would be left with half the area of the land leased to them. 6. The Application was initially made before the Tahsildar for determination of the bona fide requirement and the source of income of the Respondent-lessor for and upon the termination of tenancy in Tenancy Case Nos.313 and 314 of 1981 for the two leases in favour of the Petitioners-lessors. Both these cases were considered together. The 4 Respondent examined himself and two other witnesses. The Petitioners have claimed in paragraph 4 of the Petition that the Respondent produced evidence of rent rates in respect of the two leases. The Respondent did not produce any documentary evidence of his income or for proving his bona fide requirement. He admitted that he was a partner in the business Firm. He deposed that he earned Rs. 7,000/- to Rs.8,000/- per year. Nevertheless, he admitted that he was the tax practitioner. At the relevant time, the minimum income for the liability to assessment for tax was Rs.20,000/-. He further deposed that he had never cultivated any land in his life time. However, he admitted in his cross- examination that he cultivated 10/12 Acres of land in Bavade village in Indapur Taluka. He did not produce any documents showing which land he cultivated or any documents with regard to his share in the partnership Firm in which he admitted that he was a partner. 7. He, however, gave evidence of the extent of land cultivated by the Petitioners herein and the crops which were cultivated by the Petitioners, including sugarcane, cotton seeds, wheat, gram, etc. He deposed that the Respondent earned Rs.1 Lakh from such cultivation. 5 8. The evidence, therefore, was essentially oral evidence unsubstantiated by any documentary evidence. The learned Tahsildar held that bona fide requirement was not proved. The secondary aspect of whether the lands, if reverted to Respondent No.2, would constitute his principal source of income would, therefore, not even come up for consideration. 9. In Appeal therefrom being Tenancy Appeal No.40 of 1984, the Sub Divisional Officer (SDO) also came to the conclusion upon such evidence that bona fide requirement was not proved and that the income from the land would not have been his principal source of income. It may be mentioned that essentially the evidence, which was required to be shown by the Respondent-lessor, was the evidence in respect of his earnings from the partnership Firm. Unless those earnings were substantiated and proved, the principal source of income could not be determined. Since the Respondent-lessor was a partner and contended that he did not cultivate any land, he was not an agriculturist at the time he terminated the tenancy. Unless, therefore, the Respondent showed what was his precise income, the principal source of income could not be determined even if the 6 Respondent showed the income that could be derived by the Petitioners-lessees from growing sugarcane, wheat gram, cotton seeds, etc. 10. It may be mentioned that the extent of the profits and income of the Respondent was known only to the Respondent and he would be the only person to lead evidence in that behalf. Further evidence with regard to such income of profits cannot be merely orally led. It essentially had to be substantiated by documentary evidence which the Respondent failed to produce altogether. 11. After the Appeals came to be dismissed, the Respondent-lessor filed Revision Application Nos.8 and 9 of 1990 before the Maharashtra Revenue Tribunal(MRT). The MRT re-appreciated the evidence. It considered that the Respondent-lessor led sufficient evidence to show his income by cultivation of the suit land which would be his principal source of income. It also considered that the Respondent had sons and daughters (how many not shown) who were to be educated and the income from the partnership business was not sufficient to maintain his family. Since the evidence showed only income of Rs.7,000/- to Rs.8,000/- orally stated without being substantiated, the MRT fell in gross 7 error to conclude that that was not sufficient for the maintenance of the Respondent and his family. Since that basic fact has remained unsubstantiated, whether or not the income from the suit land would be his principal source of income, could not be determined. The MRT further observed that the income of the Respondent-lessor from all other sources could be less than income from the suit land, which, it is seen, could never have been the conclusion in the absence of the precise income of the Respondent- lessor being shown and substantiated from his partnership earnings. 12. The MRT further observed that there was no other land in his possession which is also contrary to the evidence given the admission in his cross- examination that he had cultivated 10/12 Acres of land in Bavade village in Indapur Taluka. 13. In view of the aforesaid position, evidence with regard to the income generated from the suit land and earned by the Petitioners need not be considered. It may be mentioned that various other aspects of the ownership of certain utilities or luxury like car, television, etc. need not be adverted to as the main source of income of the Respondent, which alone was required to be seen, has 8 not been shown. 14. This question of fact emanating from the evidence has been fully considered by the Tahsildar himself. The SDO in Appeal has also rightly considered that the Respondent-lessor failed to give evidence to show his income from cultivation and all other sources as less than the income to be obtained from the suit land. Re-appreciation of such evidence by the MRT in Revision is not called for. In any event, there is a material irregularity itself in re- appreciating that evidence. The essential absence of the income from the partnership Firm determines the fate of the Respondent-lessor s Application for bona fide requirement under the Act. The orders of the Tahsildar and the Sub Divisional Officer are as per the evidence led by the Respondent-lessor. The order of the Maharashtra Revenue Tribunal dated 25.9.1991 in Revision Application No.9 of 1990 suffers from a material irregularity. It is, therefore, required to be set aside. 15. Consequently, both the Writ Petitions are allowed in terms of prayer clause (b) thereof. Rule is made absolutely accordingly. 16. There shall be no order as to costs. [SMT.ROSHAN DALVI, J.] 9