1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 2116 OF 1991 Babulal S/o Navalmal Pipada } Age : 55 Years, Occ. : Agriculture, } R/o : Rahata, Tq. Kopargaon, } Dist. : Ahmednagar. } .... PETITIONER V E R S U S 1. Dropadabai W/o Manohar Gore } Age : 65 Years, Occ. Trader & } Household, R/o : Rahata, Tq. } Kopargaon, Dist. : Ahmednagar. } 2. Baban S/o Manohar Gore } Age : 50 Years, Occ. Primary Teacher} R/o : Rahata, Tq. Kopargaon, } Dist. : Ahmednagar. } 3. Machhindra S/o Manohar Gore } Age : 42 Years, Occ. Trader, } R/o : Rahata, Tq. Kopargaon, } Dist. : Ahmednagar. } 4. Ramesh Manohar Gore } Deceased through L.Rs. : } 4-A. Nand W/o Ramesh Gore } Age : 50 Years, Occ. Household, } R/o : Khandoba Chowk, Rahata, } 2 Tq. Kopargaon, Dist. : Ahmednagar. } 4-B. Nilima Prakash Karpe } Age : 30 Years, Occ. Household, } R/o : Plot No. 31, Shraddha-Saburi Niwas,} Laghu Vetan Colony, Kukundwadi, } Aurangabad. } 4-C. Pravin Ramesh Gore } Age : 26 Years, Occ. Service, } R/o : Khandoba Chowk, Rahata, } Tq. Kopargaon, Dist. : Ahmednagar. } 4-D. Mahesh Ramesh Gore } Age : 22 Years, Occ. Business, } R/o : Khandoba Chowk, Rahata, } Tq. Kopargaon, Dist. : Ahmednagar. } 5. Jagan S/o Manohar Gore } Age : 38 Yrs., Occ. Service, } R/o : Rahata, Tq. Kopergaon, } Dist. Ahmednagar. } 6. Vilas S/o Manohar Gore } Age : 34 Yrs.10/3/2010, Occ. Cloth Merchant, R/o : Rahata, Tq. Kopergaon, } Dist. Ahmednagar. } 7. Madaneshwar S/o Manohar Gore } Age : 28 Yrs., Occ. Transport,Contractor } R/o : Rahata, Tq. Kopergaon, } Dist. Ahmednagar. } 8. Prithviraj S/o Manohar Gore } Age : 24 Yrs., Occ. Transport Contractor, } R/o : Rahata, Tq. Kopergaon, } Dist. Ahmednagar. } 9. Raju S/o Manohar Gore } 3 Age : 21 Yrs., Occ. Commission Agent } in Vegetable,R/o : Rahata, Tq. Kopergaon, } Dist. Ahmednagar. } 10. Kaushlyabai W/o Arun Kalekar } Age : 32 Yrs., Occ. Household, } R/o : Dhule, Dist. Ahmednagar. } 11. Manda W/o Zumber Bhadange } Age : 26 Yrs., Occ. Household, } R/o : Dhule, Dist. Ahmednagar. } 12. Member } Maharashtra Revenue Tribunal, } Pune. } 13. Sub-Divisional Officer } Sangamner, Dist. Ahmednagar. } 14. Additonal Tahsildar and } Agricultural Lands Tribunal, } Kopergaon, Dist. Ahmednagar. } .... RESPONDENTS Mr. P.R.Patil (Beedkar), , Advocate for Petitioner. Mr. N.H.Borade, A.G.P. for State – Respondent No.12 to 14. Mr. C.V.Koralkar, Advocate for respondent nos. 1 to 3, 4-A to 4-D, 5 to 11. CORAM : V.R.KINGAONKAR, J. DATE OF JUDGMENT : 10/03/2010 ORAL JUDGMENT : 1. By this petition, petitioner challenges concurrent Judgments rendered by learned Additional Tahsildar and A.L.T., 4 Kopergaon in tenancy case No. 3 of 1982, learned Sub Divisional Officer, Sangamner in tenancy Appeal No. 8 of 1983 and M.R.T., Pune in tenancy Revision Application No. MRT/AR/VI/3/90 ( TNE.V. 174.1990). 2. Originally, the respondents along with deceased Dhrupadabai W/o Manohar Gore had filed joint application under section 43 – A of the Bombay Tenancy and Agricultural Lands Act ( For short, ‘ B.T. and A.L. Act ’) read with Govt. Notification dated 14/2/1958 issued thereunder. Together they may be referred as ‘ the landlords ’ and the petitioner may be referred as ‘ the tenant ’. It is an admitted fact that the land bearing S.No. 291/1/2/3/4-A/4-B/2-A situated at Rahata ( Dist. Ahmednagar) was leased out to the petitioner. The land in question comprised of 1 H. 11 Rs. ( 2Acres 31 Gunthas ). Out of the said land, the tenant had released 1 H. 7 gunthas land in favour of original landlord, namely, Manohar Gore for his personal cultivation. After the death of said Manohar Gore, the tenancy in respect of the remaining land was continued. It appears that somewhere in 1981, the said 1 A. 7 Gunthas land, which was surrendered in favour of the respondents, was sold away by them due to financial difficulties. They sought restoration of possession in respect of the remaining 64 Rs. land on the ground that they had no other source of income, except the agriculture and that they bonafidely required the land for personal cultivation. They submitted that the land 5 was leased out for cultivation of sugarcane and, therefore, initially the relevant provisions could not have been invoked in view of section 43- A, which exempted the tenancy from applicability of certain provisions including section 31 to 31-D and 32 to 32-R, etc. of the B.T. and A.L. Act. They submitted that subsequently by virtue of Govt. Notification dated 14/2/1958, they were entitled to seek restoration of the land because they did not hold more than one economic holding and used to earn their livelihood principally by agriculture or agriculture labour. The application filed by deceased Dhrupadabai and the respondents was resisted by the petitioner. He submitted that the respondents and deceased Dhrupadabai were not eligible to claim the land in question under section 31-C of the B.T. and A.L. Act. He further contended that the respondents were not principally earning livelihood from agricultural income nor were working as agricultural labours. He admitted that the landlords had served a termination notice on him. He denied that the tenancy was lawfully terminated. He asserted that the respondents ( landlords ) have not fulfilled the conditions enumerated in the Notification in question and as such were not entitled to seek restoration of the land in question. 3. The Tahsildar – A.L.T. conducted certain enquiry in the proceedings. He came to the conclusion that the land in question was required for personal cultivation by the respondents and deceased Dhropadabai ( landlords ). He further held that the landlords did not 6 hold more land than the economic holding. He came to the conclusion that the landlords were entitled to seek restoration of the tenanted land in view of the Notification issued under section 43-A of the B.T. and A.L. Act. So, their application was allowed. They preferred Appeal which came to be dismissed. By the impugned Judgment, the M.R.T. dismissed their Revision Application. 4. Mr. P.R. Patil, the learned counsel would submit that the requirement of deceased land lady – Dhropadabai does not exist after her death. He further submits that the land lady may be earning her livelihood principally on agricultural income but that is not the case in respect of the present respondents. It is argued that the present respondents failed to establish that their principal source of income was agriculture or that they were earning livelihood by doing work as agricultural labours. Mr. Patil would submit that the further developments which have taken place after filing of the original application, would go to show that the respondents are not eligible to seek restoration of possession as per conditions enumerated in the Govt. notification dated 14/2/1958. He contended that the subsequent developments ought to be taken note of and, therefore, unless it is specifically found that the legal representatives of deceased Dhropadabai also satisfy the condition enumerated in the said Notification, they can not seek restoration of possession. Per contra, Mr. Koralkar submits that juxta position which prevailed on the date of 7 application will be the appropriate decisive factor. He would submit that the tenant was found in possession of more land besides several other sources of income like business of spare parts, etc. and, therefore, he can not be allowed to retain the land in question. Hence, Mr. Koralkar sought dismissal of the petition. 5. At the outset, it may be mentioned that there are concurrent findings of facts rendered by the three ( 3 ) Tribunals below. The record shows that deceased Dhrupadabai was alive till the impugned Judgment was rendered by the M.R.T. She died during pendency of the present Writ Petition. Needless to say, all along her case pertaining to applicability of the conditions enumerated in the Notification was in existence. Obviously, clinching question is : Whether legal representatives of deceased Dhrupadabai, who are remaining respondents, and who were already parties to the original proceedings, can be deprived of the fruits of the concurrent findings of the three ( 3 ) Tribunals on the ground that due to her death, the change of circumstances require afresh proof in respect of satisfaction of the conditions enumerated under the Notification by them, separately, and, therefore, it is necessary to remand the matter to the tenancy Tribunal. The subsequent developments are required to be noticed if it is found that due to change in the circumstances, the legal position of the parties undergo a substantial change. 8 6. Mr. Patil referred to “ Dagdu Shivrao Tilekar V/s Kacharushah Mohammad Shah and others ” ( 1997 (1) Mh. L.R. 259 and “ Shankar S/o Dattu Dhangar V/s Dhondopant Narayan Kulkarni ” ( 1998 (3) Mh.L.J. 371. In case of Dagdu Tilekar, a Single Bench of this Court held that, “ if an action is initiated by the landlord for his personal requirement, such requirement must be proved to exist when the matter is finally decided in the sense that it has been decided either way by the highest Court in which it was sought to be challenged ”. It has been held that , “ where the death of the landlord occures during pendency of the proceedings, the subsequent event ought to be taken into account in order to examine whether the requirement of the land for personal cultivation by the legal representatives had also continued to exist ”. In Shankar Dhangar, a Single Bench of this Court held that, “ the trial Court could be directed to record finding as to the needs of the heirs of the deceased landlord and the Writ Petition can be heard after receiving such finding ”. 7. Mr. Patil also referred to “ Dattatraya Vishnu Pendse V/s Ganpat Ragho Ambre ” ( Vol. LIX - The Bombay Law Reporter – 164 . In the given case, Full Bench of this Court held : “ For the purpose of section 34 (2) (c) of the B.T. and A.L. Act, the first question that must be decided was, whether the source for his income from the 9 land in suit is larger than his income from all other sources ”. It is observed that, “ if such income is not larger, then no further question remains to be determined and the landlords action must fail. If it turns out that the source of his income from the land in question than the sources from all other sources, then the next question would be whether he requires income for his maintenance. If the landlord is already in a position to maintain himself from the other sources, then again the landlord must fail ”. 8. One can not be oblivious of the parameters required to be observed for the purpose of exercising supervisory jurisdiction under Article 227 of the Constitution of India. Unless it is demonstrated that the impugned Judgment suffers from vice of perversity, arbitrariness or is rendered without considering material evidence or is rendered on the basis of no material, interference with the finding Courts/Tribunals is impermissible. The writ jurisdiction can not be invoked for re-appreciating of the evidence or for the purpose of rectification of minor errors committed by the Tribunals. Unless it is demonstrated that the view taken by the M.R.T. is per-se against the settled principles of law, it is difficult to interfere with the findings recorded by the Tribunals below. 9. At this juncture, I shall advert to examine the legal impact of Notification issued under Section 43 – A (3) of the B.T. and A.L. 10 Act . The copy of the Notification ( Exh. B ) reveals that the purport of Notification is to declamp the previous disability pertaining to the applicability of the certain provisions of the B.T. and A.L. Act to the leases of lands which were leased for the purpose of growing sugarcane. The purpose of the Notification seems to declamp the exemptions enumerated in section 43-A. The Notification is issued under sub clause (3) of section 43-A which reads as follows. “ Sec. 43- A : Some of the provisions not to apply to leases of land obtained by industrial or commercial undertakings, certain co-operative societies or for cultivation of sugarcane or fruits or flowers. (1) xxxxxxxxxx (2) xxxxxxxxxx (3 ) Notwithstanding anything contained in sub- sections ( 1 ) and (2), it shall be lawful for the State Government to direct, by notification in the Official Gazette that the leases [ or lands, as the case may be, ] to which the provisions of sub – sections (1) and (2) apply, shall be subject to such conditions as may be specified in the notification, in respect of - (a) the duration of the lease ; (b) the improvements to be made on the land and the formation of co-operative farming societies for that purpose and financial assistance to such 11 societies ; (c) the payment of land revenue, irrigation cess, local fund cess and any other charges payable to the State Government or any local authority; or (d) any other matter referred to in sections mentioned in sub section (1). 10. A plain reading of sub section (3) of section 43-A would make it manifestly clear that due to non obstante clause as used in the opening words of the section, the prohibition enumerated in sub clause (1) of section 43-A and non applicability of certain provisions of the B.T. and A.L. Act stood declamped. In other words, the provisions under section 31 to 31-D or 32 to 32-R and other provisions shown under the sub section (1) of section 43-A could be made applicable to the lease transaction in question. The impact of such Notification dated 14/2/1958 is that the lessor ( landlord ) would be able to claim the leased land subject to termination of the lease if certain conditions were satisfied. It is worth while to notice that the Notification provides for conditions as to the duration and termination of lease. For the present purpose, condition no. 2 , and particularly, proviso appended thereto, will be of more significance. The condition no. 2 reads as follows : “ 2. If a lessor bonafide requires any land so leased by him for cultivating it personally or for any non agricultural use, such lease may, subject to the 12 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. Provided that, if the holding of a lessor does not exceed one economic holding and such lessor earns his livelihood principally by agriculture or by agricultural labour, the conditions mentioned in Sec. 31-A and 31-B shall not apply but the lessor’s right to resume land shall be subject to the conditions mentioned in clauses ( b ) and (c ) of sub – section (5) of sec. 33-B with this modification that clause ( c) of the said sub section ( 5) shall be read as if for the words ‘ the commencement date ‘ appearing therein the words, letters, figures and brackets “ the date of Government Notification, Revenue and Forest Department, No. TNC 6769/9667-M (Spl. dated the 8th October, 1969 ’ were substituted). 11. The proviso appended below condition no. 2 reveals that the conditions enumerated in section 31-A, 31-B, 31-C and 31-D were not required to satisfied in case the lessor's holding does not exceed one economic holding and that he earns the livelihood principally by agriculture or by agricultural labour. In such a case, the right of the lessor to resume the leased land would be subject to the conditions stated in clauses ( b ) & ( c ) of sub section 5 of section 33 – B. In other words, the lessor would be entitled to seek resumption of the leased 13 land without proof of bonafide requirement if his holding does not exceed the economic holding and the principal source of livelihood is the agriculture and further that the 2 conditions which are shown under section 33 ( b ) & ( c ) have been satisfied. The condition ( b ) shown under sub section 5 of section 33 is that the termination of the tenancy and right to recover possession would be restricted only to the extent of equalization of the holding by the landlord and tenant. The expression, “ to the extent only of so much thereof as would holding thereafter in the total and equal area for personal cultivation ” does imply equalization to be achieved in case of allowing the resumption of the land by the landlord. The purport is to ensure that the landlord and the tenant are ordinarily kept in pari delecto position in relation to possession of lands. So, the landlord will not be entitled to deprive the tenant of the entire leased land if the tenant, in fact, does not hold any other land. The next condition enumerated in sub clause ( c ) of sub section (5) of section 33 ( B) is that the leased land shall stand in the name of the landlord in the record of rights of 1st day of January, 1952. 12. The term ‘ economic holding ’ is defined in section 6 of the H.T. and A.L. Act. On bare reading of section 6, it is manifest that in case of seasonally irrigated land or paddy or rice land, 8 Acres of seasonally irrigated land and in case of perenially irrigated land 4 acres can be recorded as ‘ economic holding ’. As a matter of fact, it was held that they did not possess any land. The testimony of Dhropadabai 14 indicated that she had sold 1 Acre 7 Gunthas land somewhere in 1981 due to financial difficulties. She categorically stated that there was no land left with her. It appears that the tenancy Tribunals accepted her version that she was dependent on the agricultural income and so also her 2 sons were labours. As stated before, in the exercise of writ jurisdiction, the concurrent findings of facts can not be disturbed. The findings of facts are based on material which was placed on record during course of the enquiry. 13. Mr. Koralkar rightly pointed out that the authorities in case of Dagdu Tilekar and Dattatraya Vishnu Pendse operate in different field. They deal with scope of section 29 and 31 as well as section 34 (2 ) ( C ) of the H.T. and A.L. Act. Here is the case, in which the impact of the Notification issued under section 43-A ( 3 ) of the H.T. and A.L. Act is required to be examined and, therefore, the above authorities may not be applicable. It need not be reiterated that the proviso appended to condition no. 2 of the said notification gives leave to the landlord in seeking resumption of the land notwithstanding absence of personal and bonafide requirement as enumerated in section 31-A or 31-B if the other conditions as discussed above are satisfied. I mean to say the conditions required for termination of the tenancy under section 31-A have been diluted due to the proviso enumerated in condition no. 2 of the said Notification issued under section 43-A ( 3 ). One of such condition enumerated in section 31-A ( c ) is that income 15 by the cultivation of the land of which the landlord is entitled to take possession ought to be the principal source of income for his maintenance. This condition is some what different from the condition enumerated in the proviso appended to condition no. 2 shown in the Notification. The lessor is required to only show that his livelihood principally is agriculture or by agriculture work as a labour. If condition under section 31-A ( c ) is considered, what is required to be shown is that the landlords maintenance entirely depends upon the income derived from the leased land. Say for example, if the land is leased on profit share basis and the landlord is entitled to seek 50 % of the profit and that is the only source of his income, then only the termination under section 31-A is permissible. In another case, say for example, the landlord has leased out the land for a sum of Rs. 10,000/- per year and that is the only source of income available to the landlord, then also perhaps his case may fall within the ambit of section 31 ( 1 ) ( c ) so as to make him eligible for the termination of the tenancy subject to satisfaction of the other conditions including the bonafide requirement as enumerated in sub clause ( a ) of section 31- A. Still, however, sub clause ( a )of section 31-A is not attracted where the landlord stakes his claim in purusance to the Govt. Notification issued under section 43-A (3). The necessary corollary of this would be that the landlords were not required to prove their personal and bonafide requirement for resumption of the land in question. It is to be noticed that in case of Dagdu Tilekar and Shankar Dhangar ( supra ), what the 16 Hon’ble single Judges were required to consider was the continuity of the need and personal requirement of the heirs of the landlord. It is amply clear that the requirement of the heirs of the land lady is not necessarily the a decisive factor in view of non applicability of section 31 – A ( a) of the B.T. and A.L. Act to the fact situation of the present case. 14. Mr. Patil would submit that the income of the petitioner, his holding of the lands and other factors are extraneous and yet were considered by the Tribunals and, therefore, the findings are perverse. He would further submit that the deceased land lady ( Dhropadabai ) may have the agriculture as principal source of her livelihood but the same can not be said to be the principal source of livelihood for the present respondents and as such without examining their dependency on the agricultural income or their occupation being that of agricultural labour, the resumption of the leased land can not be permitted. Reference is made to “ Jai Prakash Gupta ( Dead ) through L.Rs. V/s Riyaz Ahamad and another ” [ ( 2009 ) 10 Supreme Court Cases 197. The Apex Court held that, “ changes in the circumstances during span of 15 years, after the commencement of the proceedings under the Rent Control Act, were required to be taken into account in order to locate bonafide requirement of the landlord as well as comparative hardship of the parties ”. It is well settled that the normal rule is that in any litigation, the rights and obligation of the parties are adjudicated upon 17 as they obtain on the commencement of the lis. However, the subsequent events are required to be taken into account if they have bearing on the merits, either in holding of the relief or for the purpose of reconsideration of the merits. 15. Reliance is also placed on “ Kedar Nath Agrawal ( dead ) and another V/s Dhanraji Devi ( dead ) by Lrs. And another ” [ ( 2004 ) 8 Supreme Court Cases 76 ]. Mr. Patil invited my attention to paragraph no. 16 of the given Judgment. The Apex Court held : “ the basic rule is that the rights of the parties should be determined on the basis of the date of institution of the suit or proceeding and the suit/action should be tried at all stages on the cause of action as it existed at the commencement of the suit/action. This, however, does not mean that