PETITIONER:
KALANKA DEVI SANSTHAN
Vs.
RESPONDENT:
MAHARASHTRA REVENUE TRIBUNAL, NAGPURl & ORS.
DATE OF JUDGMENT:
19/08/1969
BENCH:
GROVER, A.N.
BENCH:
GROVER, A.N.
SHAH, J.C. (CJ)
RAMASWAMI, V.
CITATION:
1970 AIR 439 1970 SCR (1) 936
1969 SCC (2) 616
ACT:
Bombay Tenancy and Agricultural Lands (Vidarbha
Region) Act, 1958---S. 2(12) Explanation I, ss. 36 and
38--Expression "to cultivate personally"--Scope of--If a
Sansthan or private religious trust entitled to recover
possession of agricultral, land for "personal cultivation".
HEADNOTE:
The appellant Sansthan, a private religious trust,
derived most of its income from endowed agricultural land.
The fourth respondent was a tenant of a part of the land. A
notice was served on him on behalf of the appellant in
January 1961 under s. 38 of the Bombay Tenancy and
Agricultural Lands (Vidarbha Region) Act, 1958, to give up
possession of the land as it was required by the Sansthan
for personal cultivation. As the notice was not complied
with, the. appellant made an application under s. 36 which
was 'rejected by the Naib Tahsildar. The S.D.O. as well as
the first respondent Revenue Tribunal, confirmed this order.
The appellant thereafter filed a petition in the High Court
under Art. 227 but this was dismissed.
In appeal to this Court it was contended on behalf of
the appellant that under Explanation I in s. 2(12) of the
Act a person who is subject to any physical or mental
disability shall be deemed to cultivate the land personally
if it is cultivated by the servants or by hired laborers; as
an idol or a Sansthan that would fall within the meaning of
the word "person' can well be regarded to. b.e subject to a
physical or mental disability and land can be cultivated on
its behalf by servants or hired laborers, by virtue of
Explanation I the idol would be in the same position as a
minor and it can cultivate the land personally within the
meaning of s. 2(12).
HELD: Dismissing the appeal,
(i) There was no 'farce in the contention that the case
of the appellant fell within Explanation I in s. 2(12).
Physical or mental disability as defined by s. 2(22), lays
emphasis on the words "personal labour or supervision". In
other words the intention is that the cultivation of the
land concerned must be by natural persons and not by legal
persons. [939 E]
Shri Kesheoraj Deo Sansthan, Karania v. Bapurao Deoba
JUDGMENT:
(ii) Neither provisions of Berar Regulation of
Agricultural Leases Act, 1951 nor of the Bombay Public
Trusts Act could be of any assistance to the appellants. In
the present case it was common ground that the Sansthan was
a private trust and was not governed by the provisions of
the Bombay Public Trusts Act. The manager of the Wahiwatdar
of the Sansthan could not, therefore, fall within the
definition of the word “trustee” as given in s. 2 ( 18 ) of
the Act. [940 E-F]
Ishwardas v. Maharashtra Revenue Tribunal & Ors.,
[1968] 3 S.C.R. 441, referred to.
937
(iii) There was no force in the contention that the
provisions of the Act which had the effect of debarring the
appellant from claiming possession for personal cultivation
were violative of Articles 14 and 19(1)(f) or the
Constitution. The Act is rendered immune from attack on
these grounds in view of the provisions of Article 31 (A)
of the Constitution. 1941 A-B]
Shri Mahadeo Paikaji Kolhe Yavatmal v. The State of
Bombay, [1962], 1 S.C.R. 733 and Sri Ram Ram Narain Medhi v.
The State of Bombay, [1959] Supp. 1 S.C.R. 489, referred
to.
&
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 862 of
1966.
Appeal by special leave from the order dated April 8,
1965 of the Bombay High Court, Nagpur Bench in Letters
Patent Appeal No. 40 of 1965.
W.S. Barlingay, R. Mahalingier and Ganpat Rai, for the
appellant.
M.S.K. Sastri and S.P. Nayar, for respondents’ Nos. 2, 3 and
5.
M. Veerappa, for respondent No. 4.
The Judgment of the Court was delivered by
Grover, J. This is an appeal by special leave from a
judgment of the High Court of Bombay dismissing a petition
under Art. 227 of the Constitution which had been filed by
appellant Sansthan.
The appellant is a private religious Trust which is
managed by Laxman Anant Mulay who is described as a
Wahiwatdar (Manager). The main source of income for
performing the several acts including the daily worship of
the family deity (Shri Kalanka Devi) is stated to be derived
from endowed agricultural land. Respondent No. 4 is the
tenant in field survey No. 94 with ,an area of 30 acres 8
gunthas in Mouza Malrajura, district Akola. ‘On January 30,
1961 a notice was served on behalf of the appellant on
respondent No. 4 under the provisions of s. 38 of the Bombay
Tenancy and Agricultural Lands (Vidarbha Region) Act,
1958, hereinafter called the Act. It was mentioned in the
notice that an earlier notice under s. 9(1) of the Berar
Regulation of Agricultural Leases Act had been served in the
year 1955 that the Sansthan required the aforesaid field for
personal cultivation and, therefore, he should give up
possession. Those proceedings were pending but a notice
under s. 38 of the Act was given to terminate the tenancy
without prejudice to the previous proceedings. As the
notice was not complied with an application was filed on
behalf of the appellant under s. 36 of the Act for
possession which was opposed by respondent No. 4
938
The Naib Tehsildar rejected the application on the ground
that the Sansthan was not a land-holder who could cultivate
the land personally. His order was confirmed by the Sub-
Divisional Officer and by the Maharashtra Revenue Tribunal
to whom appeals were taken. The appellant ultimately filed
a petition under Art. 227 of the Constitution before the
High Court which, as stated before, was dismissed.
The only point which has to be determined is whether
the Sansthan could take advantage of the provisions
contained in the Act by which possession can be claimed from
the tenant on the ground that it is required for personal
cultivation. Section 2(12) of the Act defines the words “to
cultivate personally” in the following manner:
S. 2(12) “to cultivate personally” means
to cultivate on one’s own account–
(i) by one’s own labour, or
(ii) by the labour of any member of one’s
family, or
(iii) under the personal supervision of
one-self or of any member of one’s family by
hired labour or by servants on wages payable
in cash or kind but not in crop share;
Explanation I.–A widow or a minor or a
person who is subject to any physical or
mental disability, or a serving member of the
armed forces shall be deemed to cultivate the
land personally if it is cultivated by her or
his servants or by hired laborer;
Explanation II………… ”
According to s. 2(22) the “physical or mental disability”
means physical or mental disability by reason of which the
person subject to such disability is incapable of
cultivating land by personal labour or supervision. The
word “tenant” is defined by s. 2(32) as meaning a person who
holds land on lease including a person who is deemed to be a
tenant under ss. 6, 7 or 8 and a person who is a protected
lessee or occupancy tenant. It is provided that the word
“landlord” shall be construed accordingly. Section 38
deals with termination of tenancy by landlord for
cultivating land personally. It says that after giving
notice to a tenant in writing at any time on or before
February 15, 1961 and making an application for possession
under s. 36 on or before March 31, 19611 the landlord may
terminate the tenancy other than an occupancy tenancy if
the landlord bona fide requires the land for cultivating it
person, ally. Sub-s. (3) gives the conditions subject to
which the tenancy can be terminated.
939
Now it is well known that when property is given
absolutely for the worship of an idol it vests in the idol
itself as a juristic person. As pointed out in Mukherjee’s
Hindu Law of Religious and Charitable Trust at pp. 142-43,
this view is in accordance with the Hindu ideas and has
been uniformly accepted in a long series of judicial
decisions. The idol is capable of holding property in the
same way as a natural person. “It has a juridical status
with the power of suing and being sued. Its interests are
attended to by the person who has the deity in his charge
and who is in law its manager with all the powers which
would, in such circumstances, on analogy, be given to the
manager of the estate of an infant heir”. The question,
however, is whether the idol is capable of cultivating the
land personally. The argument raised on behalf of the
appellant is that under Explanation I in s. 2 (12) of the
Act a person who is subject to any physical or mental
disability shall be deemed to cultivate the land personally
if it is cultivated by the servants or by hired laborer. In
other words an idol or a Sansthan that would fall within the
meaning of the word “Person” can well be regarded to be
subject to a physical or mental disability and land can he
cultivated on its behalf by servants or hired labourers.
It is urged that in Explanation (I) the idol would be in the
same position as a minor and it can certainly cultivate the
land personally within the meaning of s. 2(12). It is
difficult to accept the suggestion that the case of the
appellant would fall within Explanation (I) in s. 2(12).
Physical or mental disability as defined by s. 2(22) lays
emphasis on the words “personal labour or supervision”. As
has been rightly pointed out in Shri Kesheorai Deo Sansthan,
Karanji v. Bapurao Deoba & Ors.(1) in which an identically
similar point came up for consideration, the dominating idea
of anything done personally or in person is that the thing
must be done by the person himself and not by or through
some one else. In our opinion the following passage is that
judgment at p. 593 explains the whole position correctly:
“It should thus appear that the
legislative intent clearly is that in order
to claim a cultivation as a personal
cultivation there must be established a
direct nexus between the person who makes such
a claim, and the agricultural processes or
activities carried on the land. In other
words, all the agricultural operations, though
allowed to be done through hired labour or
workers must be under the direct supervision,
controL, or management of the landlord. It is
in that sense that the words “personal
supervision” must be understood. In other
words, the requirement of personal supervision
under the third category of personal
cultivation provid-
(1) [1964] Mah. L.J. 589, 593.
940
ed for in the definition does not admit of an
intermediary between the landlord and the
labourer, who can act as agent of the landlord
for supervising the operations of the
agricultural worker. If that is not possible
in the case of one landlord, we do not see how
it is possible in the case of another landlord
merely because the landlord in the latter case
is a juristic person”.
In other words the intention is that the cultivation of the
land concerned must be by natural persons and not by legal
persons.
It has next been contended that in the provision of the
Berar Regulation of Agricultural Leases Act, 1951 public
trusts of charitable nature were included among those who
could claim possession from a tenant on the ground of
personal cultivation. It is not possible to see how the
provisions of a repealed statute which was no longer in
force, after the enactment of the Act, could be of any
avail to the appellant. The decision in Ishwardas v.
Maharashtra Revenue Tribunal & Ors.(1) has; also been
referred to by the counsel for the appellant. In that case
it was said that under s. 2(18) of the Bombay Public Trusts
Act a trustee has been defined as meaning a person in whom
either alone or in association with other persons the trust
property is vested and includes a manager. In view of this
definition the properties of the trusts vest in the
managing trustee and he is the landlord under cl. 32 of s. 2
of the Act. As he is the landlord, he can ask for a
surrender from the tenant of the lands of the trust “to
cultivate personality”. In the present case it is common
ground that the Sansthan is a private trust and is not
governed by the provisions of the Bombay Public Trusts
Act. ‘The manager of the Wahiwatdar of the Sansthan cannot,
therefore, fall within the definition of the word “trustee”
as given in s. 2(18) of that Act. It may be mentioned that
in Ishwardas, case(1) the court refrained from expressing
any opinion on the question whether a manager or a Shebait
of the properties of an idol or the manager of the Sansthan
can or cannot apply for surrender by a tenant of lands for
personal cultivation. The distinction between a manager or a
Shebait of an idol and a trustee where a trust has been
created is well recognised. The properties of the ‘trust in
law vest in the trustee whereas in the case of an idol or a
Sansthan they do not vest in the manager or the Shebait. It
is the deity or the Sansthan which owns and holds the
properties. It is only the possession and the management
which vest in the manager.
It has lastly been contended that the relevant
provisions of the Act which have the effect of debarring the
appellant from ,claiming possession for personal
cultivation violate the provisions
(1) [1968] 3 S.C.R. 441.
941
of Arts. 14 and 19(1)(f) of the Constitution. It is urged
that discrimination is writ large between animate and
juristic persons who fall within the definition of the word
“person”. Such a contention, however, cannot be entertained
in view of Art. 31A of the Constitution. The Act had
received the assent of the President and is rendered immune
from attack or challenge on the round of violation of
Articles 14 or 19 of the Constitution. In Shri Mahadeo
Paikali Kolhe Yavatmal v. The State of Bombay(1) the
constitutional validity of the Act itself was canvassed but
the challenge failed. Similarly the validity of the Bombay
Tenancy and Agricultural Lands Amendment Act, 1956 as
applied to Vidarbha Region and Kutch Area was upheld in
Sri Ram Ram Narain Medhi v. The State of Bombay(2).
The appeal consequently fails and it is dismissed with
costs.
R.K.P.S. Appeal dismissed.
(1) [1962] 1 S.C.R. 733.
(2) [1959] Supp. 1 S.C.R. 489.
L15Sup./69--22-5-70--GIPF.
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