1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.611 OF 2007 Krishnaji Sitaram Sawant (Deceased) Through his legal heirs 1a. Smt.Lilavati Krishnaji Sawant and ors. ..Appellants Vs. Kamalakar Atmaram Surve and ors. ..Respondents WITH WRIT PETITION NO.4068 OF 2000 Krishnaji Sitaram Sawant and ors. ..Petitioners Vs. Kamalakar Atmaram Surve and ors. ..Respondents ......... Mr.G.R.Rege i/b.Mr.S.M.Railkar, for appellants/petitioners. Mr.P.N.Joshi, for respondents. ......... CORAM: R.G.KETKAR, J. DATE : 16th JUNE, 2010. P.C. : The above Second Appeal No.611 of 2007 came up for admission before this Court on 30 th January, 2008. Considering the ground No.3 of the Memorandum of Appeal, it was felt that the Second Appeal and Writ Petition No. 4068 of 2000 should be heard by one and the same learned Judge. The Registrar (Judicial-1) was directed to obtain appropriate orders from the Hon’ble the Chief Justice in that behalf. Pursuant to the said order, the Registrar (Judicial-1) has obtained orders from the Hon’ble the Chief Justice and, 611-07 (A).sxw 2 accordingly, Second Appeal No.611 of 2007 is tagged along with Writ Petition No.4068 of 2000. 2] Heard Mr.G.R.Rege, learned counsel for the appellants/petitioners (hereinafter collectively referred as “landlord”) and Mr.P.N.Joshi, learned counsel for the respondents (hereinafter collectively referred as “tenant”). 3] Mr.Rege submitted that in the suo motu proceedings initiated under Section 32-G of the Bombay Tenancy and Agricultural Lands Act, 1948 (for short “the Act”), a joint statement of Jaywant Pandurang Surve, Krishna Pandurang Surve and Smt.Vijaya Vasudev Surve was recorded by the Addl. Tahsildar and the Agricultural Lands Tribunal, Ratnagiri on 30 th November, 1990. In that statement, these persons claimed tenancy only in respect of 48 R from survey No.398/1/2. The area of survey No.398/1/2 is 2 H 54 Ares, out of which, land admeasuring 48 R is cultivable and the rest of the land i.e. 2 H 6 R is Potkharaba. The controversy in this Second Appeal and Writ Petition relates to the area of 2 H 6 R which is described as Potkharaba. 4] Mr.Rege submitted that since these persons’ restricted tenancy is only in respect of cultivable land admeasuring 48 R, the tenancy authorities committed gross error in fixing the purchase price in respect of the entire land. The submission made on behalf of the landlord is that the tenancy authorities ought to have fixed the purchase price only in respect of the cultivable land admeasuring 48 R and should not have fixed the purchase price in respect of Potkharaba land of 2 H 6 R. In support of this submission, Mr.Rege invited my attention to Section 2(1) of the Act which defines the expression “agricultural” 611-07 (A).sxw 3 and Section 2(8) of the Act which defines the expression “land “. He also relied upon the judgment of this court in the case of Tukaram Kisan Sali of Chalisgaon Vs. Namdeo Ekoba Patil of Waghadu and another, passed in Special Civil Application No.3271 of 1956 decided by the Division Bench of this Court (Coram: Tendolkar and Shelat, JJ.) on 26 th June, 1957. 5] Section 2(1) of the Act reads as under:- “ In this Act, unless there is anything repugnant in the subject or context.- “Agriculture” includes horticulture, the raising of crops, grass or garden produce, [the use by a 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(8) of the Act reads as under:- In this act, unless there is anything repugnant in the subject or context,- “land” means (a) land which is used for agricultural purposes [or which is so used but is left fallow, and includes the sites of farm buildings] appurtenant to such land; and (b) for the purposes of sections 11, 16, 17, 17A, 17B, 18, 19, 20, 26, 28, 29, 29A, 30, 41, 63, 64A, 64A, 84A, 84B and 84C (i) the sites of dwelling houses occupied by agriculturists, agricultural labourers or artisans and land appurtenant to such dwelling houses; (ii) the sites of structures used by agriculturists for allied pursuits;] 611-07 (A).sxw 4 6] On the other hand, Mr.P.N.Joshi submitted that the tenancy authorities had fixed the purchase price in respect of the entire land, that is to say, the cultivable land admeasuring 48 R as well as Potkharaba of 2H 6R. In that, the Addl. Tahsildar and the Agricultural Lands Tribunal, Ratnagiri fixed the price on 30 th November, 1990. Against that decision, the landlord preferred appeal before the Sub-Divisional Officer, Ratnagiri. The said appeal was dismissed on 24 th August, 1993. Against that decision, the landlord preferred Revision Application before the Maharashtra Revenue Tribunal, Mumbai, which was dismissed on 26 th June, 1997. Before the tenancy authorities, the landlord specifically raised the contention that the Agricultural Lands Tribunal ought to have fixed the purchase price only in respect of the cultivable land admeasuring 48 R. This contention was negatived by the tenancy authorities and the purchase price was fixed in respect of the entire land. Based upon the decision of the tenancy authorities, Section 32-M certificate was issued in the prescribed Form on 30 th November, 1991. The said certificate is in respect of the entire survey No.398/1/2. Having regard to the provisions of Section 32-M of the Act, the said certificate is conclusive evidence of the purchase of land. Mr.Joshi further submitted that the Kabulayat dated 30 th November, 1996 executed by Sitaram Narayan Sawant, predecessor in title of landlord, in favour of the tenant was in respect of the entire land which was given on lease. The revenue entries also indicates that the predecessors of the tenant was holding entire land bearing survey No.398/1/2. 7] After hearing learned counsel for the parties at length and after going through the material on record, I find that under 32-G proceedings the respondents were declared as tenant in respect of the entire land bearing survey No.391/1/2. The certificate under Section 32-G was issued in respect of the 611-07 (A).sxw 5 entire land under Rule 18 of the Bombay Tenancy and Agricultural Lands Rules, 1948. The relevant portion of 32-M certificate reads as under :- Whereas Shri Kamlakar Atmaram Surve and 8 others are tenants of the land specified below................. In the schedule, area of survey No.398/1/2 is mentioned as 0.48 R 2 H 6 R Apart from above, the landlord filed application under Section 70(b) of the Act contending that the respondents are not tenant in respect of the entire land. That application was rejected on 12 th January, 1991. The Maharashtra Revenue Tribunal, while dismissing the Revision Application on 26 th June, 1997, observed that the landlord did not file any appeal challenging the decision dated 12 th January, 1881 in Tenancy Case No.101 of 1986 and the said decision attained finality. The Kabulayat dated 30 th November, 1996 was in respect of the entire land. 8] Mr.Rege relied upon section 2(1) and 2(8) of the Act. Section 2(1) of the Act defines “agriculture”. Section 2(8) defines “land” which is used for agricultural purposes or which is so used but is left fallow. The conjoint reading of these two sections would clearly show that Potkharaba land which is left fallow is included in Section 2(8) of the Act. I do not find any substance in the contentions raised on behalf of the landlord. Mr.Rege also relied upon the judgment of this court in the case of Tukaram (supra). In that case, the landlord applied for possession on the ground of bona fide personal cultivation. The order 611-07 (A).sxw 6 of possession was made by the Mamlatdar. Against that judgment, there was an appeal to the District Deputy Collector who confirmed the said decision and held that as the land of which possession was sought, was larger than the agricultural holding namely 16 acres, the landlord would be entitled to half the area of the land. Against that part of order which rejected the claim of landlord for possession of other half portion, he filed Revision before the Tribunal. The Tribunal held that in this context land “held” means the land owned by the landlord, and as the land owned by the landlord was 17 acres 26 gunthas, the District Deputy Collector had come to a correct conclusion. The Division Bench of this court in the case of Deolal Bulakhi Vs.Kadu Tolaram, 58 Bom.L.R. (1956), construed the words “land held” in Section 34 sub-section (2A) clauses (1), (2) and (3) as meaning “land possessed for personal cultivation”. The Division Bench in that case held that 3 acres 39 gunthas of Kharaba which were not cultivable could not possibly be included in that land in order to determine whether the landlord held land which was more than the agricultural holding. If that area was excluded, the land held for cultivation would be 13 acres 27 gunthas. The Division Bench made distinction between the word “held” and the word “owned”. In my opinion, the said judgment does not advance the case of the landlord any further. 9] In view of the aforesaid discussion, I do not find any error committed by the courts below which warrants interference in the Second Appeal. I also do not find that the orders passed by the tenancy authorities are perverse which requires interference in the exercise of the extra ordinary writ jurisdiction. The Second Appeal does not involve any substantial question of law. In view of the aforesaid discussion, I do not find any substance in the Second Appeal and Writ 611-07 (A).sxw 7 Petition. The same are liable to be dismissed. 10] Second Appeal and Writ Petition are, accordingly, dismissed. In the circumstances of the case, however, there shall be no order as to the costs. [R.G. KETKAR, J.] 611-07 (A).sxw