Case: Shankar Madhoji Nemade Vs. Chisuji Janaji Bhadke &amp; Ors

1. The appellant was a protected lessee within the meaning of the expression contained in the Berar Regulation of Agricultural Leases Act, 1951 (Act 24 of 1951) (hereinafter called the Berar Act) in respect of the suit lands bearing survey No. 23 of an extent of 7 acres and 4 gunthas under the 5th respondent herein who was then the original owner of the lands. The 5th respondent served on the appellant (hereinafter called the tenant) a notice dated December 28, 1955 under Section 9 (1) of the Berar Act terminating the tenancy of the appellant on the ground that he required the lands for personal cultivation: and he also submitted an application to the Revenue Officer under Section 8 (1) (g) of the Berar Act for an order determining the tenancy. The 5th respondent obtained an order from the Revenue Officer on May 15, 1956 directing the tenant to surrender possession of the lands. The 5th respondent in pursuance of the order of the Revenue Officer obtained possession of the lands on April 4, 1957 and continued in such possession till June 21, 1961 on which date he transferred the suit lands to the first respondent (hereinafter to be referred as the landlord) and got in exchange 8 acres in survey No. 33 plus an amount of Rs. 13,000/-. In the meanwhile on Dec. 30, 1958 the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act of 1958 (Act No. XCIX of 1958) (hereinafter called the Bombay Act) came into force.2. The tenant filed an application under Sec. 52 of the Bombay Act before the Naib Tahsildar, Achalpur against respondents Nos. 1 and 5 for restoration of the possession of the suit lands on the ground that the original owner, the 5th respondent, had ceased to cultivate the lands personally within the period of 12 years after obtaining possession of the lands on April 4, 1957. The Naib Tahsildar by his order dated November 14, 1962 dismissed the application on the ground that Section 52 does not apply and hence the application was not maintainable. On appeal by the tenant the Special Deputy Collector, Amravati by his order June 30, 1964 reversed the decision of the Naib Tahsildar and directed the landlord to restore possession of the lands as prayed for by the tenant. The first respondents revision challenging the order of the Special Deputy Collector was dismissed on August 5, 1965 by the Maharashtra Revenue Tribunal. The Revenue Tribunal while dismissing the revision petition, inter alia, held that the tenant was a protected lessee and that in pursuance of the proceedings taken by the 5th respondent in terms of the notice under Section 9 (1) of the Berar Act, the tenant was deprived of the lands and his tenancy rights on the ground of personal cultivation by the then owner of the lands. The Tribunal further held that as the 5th respondent had transferred the suit lands in favour of the first respondent on June 21, 1961, the former must be considered to have failed to use the lands for the purposes specified in his notice within 12 years from the date on which he took possession and in consequence the tenant was entitled to be restored to possession under Section 52 of the Bombay Act. On this reasoning the Revenue Tribunal confirmed the order of restoration passed by the Special Deputy Collector in favour of the tenant.3. The first respondent filed a writ petition under Article 227 of the Constitution, being Special Civil Application No. 831 of 1965, in the High Court of Bombay (Nagpur Bench) challenging the orders for restoration passed against him by the Special Deputy Collector and the Maharashtra Revenue Tribunal. The High Court by its judgment and order dated August 19, 1966 has set the orders of the Special Deputy Collector and the Revenue Tribunal thus restoring the order of the Naib Tahsildar and has dismissed the application for restoration filed by the tenant. The tenant challenges the decision of the High Court in this appeal by special leave.

Reasoning:
9. From the facts in that case it will be seen that the material statements made in the special leave petition were false.We have given due consideration to all these aspects presented before us by both the learned counsel and we are of the view that in the particular circumstances of this case it cannot be said that the appellant is guilty of making any false or untrue statement on any material particulars or matters of importance or regarding valuation. The mistake committed by the appellant regarding valuation was the result of the mistaken value given by the High Court itself in its judgment, which was corrected only long afterwards. No doubt, the appellant who is a party to the proceedings should have been a little more careful, but that does not disclose any deliberate attempt on his part to mislead this Court. Further the statement regarding valuation is not of much consequence in this case because the questions arising for decision are really points of law regarding applicability of either the Berar or Bombay Acts. Therefore, Mr. Gupta has not been able to make out a case for cancelling the special leave already granted.In our opinion, the Full Bench has too broadly stated the principles regarding the circumstances under which S. 52 of the Bombay Act will apply. If taking possession of the land by the landlord after December 30, 1958, is the sole test for the applicability of S. 52, the position, in our view, will be very anomalous. For instance if a landlord had taken possession on December 29, 1958, S. 52 will not apply and the requirement of two years personal cultivation may not also become necessary as the Berar Act stands repealed as on December 30, 1958. Similarly if the landlord had taken possession and had also complied with the requirement of two years personal cultivation long before December 30, 1958, but nevertheless if he is in possession of the land on December 30, 1958, according to the Full Bench, Section 52 will stand attracted. No doubt the Full Bench has not answered the second question posed before it but the reasoning of the decision will be to that effect if the test of possession on December 30, 1958 is the only criteria.31. We are of the opinion that the question of S. 52 being retrospective or not has no material bearing in interpreting that section. That section had necessarily to refer Sections 38, 39 and 39A as they were also provisions enabling a landlord to get possession from a lessee. It is in the light of these matters that the expressions occurring therein have to be given their natural meaning. The Full Bench has misinterpreted that section.32. In interpreting S. 52,in our opinion, S. 132 (2) (i) will be helpful. The obligation of the landlord when he takes possession of the land from the tenant under the Berar Act is to cultivate it personally for two years and once the landlord complies with that requirement before the Bombay Act came into force, the tenants right to get restoration stands extinguished as the landlord has discharged hisdue regard to the provisions of the two statutes and what has been stated by us earlier the position is that if the landlord on December 30, 1958 had completed the two years period of personal cultivation, his right not to be disturbed is continued and preserved under Section 132 (2) (i) of the Bombay Act. Again if the landlord in pursuance of an order obtained under the Berar Act, takes possession, after the commencement of the Bombay Act, Section 52 applies to him and his original obligation to cultivate personally for two years under the Berar Act gets extended by the 12 years period provided under that section. If he ceases to so cultivate within the period of 12 years from his taking possession, the tenant gets a right to apply for restoration of the land.34. The several aspects enumerated above have not been considered by the Full Bench of the Bombay High Court and it has rested its decision for applying Section 52 by applying the sole test whether the landlord has taken possession before or after December 30, 1958. Such a test is not warranted by the provisions of both the statutes read together. A fair reading of Section 52 also, in our opinion, leads to the same conclusion. Section 52 providesthe tenancy being terminated under Section 9 of the Berar Act;(ii) the landlord taking Possession of such land on the basis of such termination of the tenancy;(iii) the landlord failing to use the land for the purpose specified in the notice under Section 9 of the Berar Act;(iv) failure to use the land for the purpose mentioned in the notice within one year from the date on which he took possession;(v) the landlord ceasing to use the land for the purpose for which he obtains possession within 12 years of his takingTo the case of a landlord who had already completed two years personal cultivation before Dec. 30, 1958, the requirement of his failing to use the land for the purpose specified in the notice under Section 9 within one year from the date of his taking possession, will have no application whatsoever. The normal and reasonable construction to be placed upon Section 52 is that it will apply only to cases of lands, the possession of which was obtained by the landlord under Section 9 of the Berar Act, but in respect of which the period of two years disability imposed under Section 9 (6) read with Rule 9 of the Rules was not over before the coming into force of the Bombay Act. In respect of such landlords, Section 52 enlarges the period for which he is required to personally cultivate the lands. In this respect we are inclined to agree with the view of Mr. Justice Wagle.36. To conclude Section 52 applies to all cases where possession is taken by the landlord on or after December 30, 1958 on the basis of an order obtained under the Berar Act. It applies to cases where possession had been taken by a landlord under the Berar Act but the two years period of personal cultivation had not been completed when the Bombay Act came into force. The instances of obtaining possession under Ss. 38, 39 or 39-A of the Bombay Act have not been considered by us in this appeal.37. It follows that Section 52 of the Bombay Act applies to the case before us, as the landlord has not completed two years personal cultivation on December 30, 1958, the date on which the Bombay Act came into force. He had taken possession on April 4, 1957, and the two years period will expire only on April 4, 1959. In the meanwhile the Bombay Act had come into force on December 30, 1958. Under Section 52 the period of personal cultivation had been extended to 12 years from the date of taking possession. But as the 5th respondent. who obtained possession for personal cultivation had transferred the suit lands to the 1st respondent on June 21, 1961, on which date the 12 years period had not expired, the appellant tenant was entitled to apply for restoration on the ground that the said landlord had ceased to cultivate the lands for the required period as provided under Section 52.