PETITIONER: DAHYA LAL AND OTHERS Vs. RESPONDENT: RASUL MOHAMMED ABDUL RAHIM DATE OF JUDGMENT: 03/05/1962 BENCH: SHAH, J.C. BENCH: SHAH, J.C. SINHA, BHUVNESHWAR P.(CJ) GAJENDRAGADKAR, P.B. SUBBARAO, K. WANCHOO, K.N. CITATION: 1964 AIR 1320 1963 SCR (3) 1 CITATOR INFO : D 1967 SC1793 (5,6) R 1974 SC2051 (3) R 1981 SC1881 (6,16,17) RF 1987 SC2146 (8) RF 1987 SC2392 (2) R 1987 SC2429 (8) RF 1989 SC 436 (39,42) ACT: Agricultural Land-Tenant inducted by mortgagee--Whether could be evicted, or deemed to, be tenant under the mortgagor-The Bombay Tenancy and Agricultural Land Act, 1948 (Bom. 67 of 1948), ss. 4 cls. (a), (b), (c), 29-Constitution of India, Art. 227. HEADNOTE: In 1891 the ancestors of the appellant mortgaged the land to U. who inducted one R. as a tenant on the land. The appellant as owners of the equity of redemption applied to the Court,constituted under the, Bombay Agricultural Debtors Relief Act for adjustment of the debt due under the mortgage and for redemption of the land mortgaged.. An award was made on this application by compromise and in execution of the award R was evicted, R applied to the Mahalkari under s.29 of the Bombay Tenancy and Agricultural Lands-Act, 1948 for an order restoring possession of the land. The application was rejected and the order was confirmed by the Deputy Collector and the Revenue Tribunal, In a petition Art. 227 of the Constitution, the High Court of Bombay it set aside the order passed by the Tribunal and ordered that possession of the land be restored to the respondent and declared that the respondent was entitled to. continue in occupation as a tenant on the same terms. on which he was a tenant of the mortgagee. Held , that the Act affords protection to all persons who hold agricultural lands as contractual tenants, and subject to the exceptions specified all persons lawfully cultivating lands belonging to others, and it would be unduly restricting the intention of the Legislature to limit the benefit of the Bombay Tanancy and Agricultural Land Act to persons who derive their authority from the owner, either under a contract of tenancy, or otherwise. All persons other than those mentioned, in cls. (a), (b) and (c) of s. 4 of the,, Act who lawfully cultivate land belonging to other 2 persons whether their authority is derived directly from the owner of the land or not must be deemed to be tenants of the land. JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 516 of 1960.
Appeal by special leave from the judgment and order dated
July 19, 1957, of the Bombay High Court in Special Civil
Application No. 809 of 1957.
W. S. Barlingay and Ganpat Rai for the appellants.
C. B. Pai, J. B. Dadachanji, S. N. Andley, Rameshwar Nath
and P. L. Vohra, for the respondents 1-5.
B. Ganapathy Iyer and R. H. Dhebar, for the respondent No.
6 and for the State of Maharashtra (Intervener).
1962. May 3. The Judgment of the Court was delivered by
SHAH, J.-Survey No. 126 admeasuring 11 acres and 20 gunthas
of Mouje Telod, District Broach belonged to the ancestors of
the appellants. By deed dated July 24, 1891, the owners
mortgaged the land to one Umiyashanker with possession
shortly after the mortgage, the mortagee inducted one
Mohammed Abdul Rahim as a tenant on the land.
The appellants as owners of the equity of redemption applied
to the Court constituted under the Bombay Agricultural
Debtors Relief Act, 28 of 1947, for adjustment of the debt
due under the deed dated July 24, 1891, and for redemption
of the land mortgaged. On February 19, 1954, an award was
made in this application by compromise between the parties
declaring that Rs. 3,000/- were
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due to mortgagee under the deed dated July 24, 1891, that
the land in dispute was in the possession of Mohammed Abdul
Rahim as tenant of the mortgagee, and that the mortgagor had
the right to take possession of the land from the said
tenant.” In execution of the award, Mohammed Abdul
Rahim–who will hereinafter be referred to as the
respondent- was evicted. On June 7, 1954, the respondent
applied to the Mahalkari of Hansot for an order under s. 29
of the Bombay Tenancy & Agricultural Land Act, 1948,
restoring possession of the land. The Mahalkari rejected
the application and that order was confirmed in appeal by
the District Deputy collector, and by the Bombay Revenue
Tribunal in revision from the order of the Deputy Collector.
The High Court of judicature at Bombay was then moved by the
respondent under Art. 227 of the Constitution. The High
Court following its earlier judgment in Jaswantrai Tricumlal
Vyas v. Bai Jiwi set aside the order passed by the Tribunal
and ordered that possession of the land be restored to the
respondent and declared that the respondent was entitled to
continue in occupation as tenant on the same terms on which
he was a tenant of the mortgagee. The mortgagors have
appealed to this Court against that order of the High Court
with special leave.
The Bombay Tenancy Act of 1939 was enacted, to protect
tenants of agricultural lands in the Province of Bombay and
for certain other purposes. That Act was repealed by s. 89
of the Bombay Tenancy and Agricultural Lands Act, 1948,
which came into operation on December 28, 1948. By the
repealing clause, certain provisions of the Act of 1939 with
modifications were Continued. By the Act of 1948, under s.
2(18) as it ,stood at the material times, a tenant was
defined
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as an agriculturist who holds land on lease and. includes a
person who is deemed to be tenant under the provisions of
this Act.” s. 14 of the Act provides that notwithstanding
any agreement, usage, decree or order of a Court of ‘law,
the tenancy of any land held by a tenant shall, not be
determined unless the conditions specified, in that section
are fulfilled. It was unnecessary to set out the conditions
because it is common ground that, the tenancy of the
respondent was not sought to be determined on any of the
grounds in s. 14, it was in execution of the award made by
the Debt Relief Court that the respondent was dispossessed
Section 29, by sub-s. (2) provides that no landlord shall
obtain possession of any land or dwelling house held by a
tenant except under an order of the Maltdar. For obtaining
such order he shall make an application in the prescribed
form x x X”. Section 4 of the Act, in, so far as it is
material provides: “A person lawfully, cultivating any land
belonging to an-other person shall be deemed to be a tenant
if such land is not cultivated personally by the owner and’
if such’ person is not (a) a member of the owner’s family,
or (b) a servant on wages payable in cash or kind but not in
crop share or a hired labourer cultivating the land under
the personal supervision of” the owner’s family, or (c) a
mortgagee in possession”” Section 4 seeks to confer the
status of a tenant upon a person lawfully cultivating. land
belonging to another. By that provision, certain persons
who are not tenants under the ordinary law are, deemed to be
tenants for purposes of the Act. A person who is deemed a
tenant, by S. 4 is manifest, in a clear apart, from the
tenant who holds lands on lease from the owner. ;Such person
would be invested with the Status of a tenant if three
conditions are fulfilled(a) that he is cultivating land
lawfully) (b) that the land belongs to another person, and
(c) that the is not within the excepted categories.
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The respondent, was on December 28, 1948, undoubtedly
cultivating land which belonged to another persons ; he ;was
lawfully cultivating the land because he: derived his right
to cultivate it from the mortgagee of the land, and he did
not fall within the excepted categories. Prima facie, he
was a “deemed tenant” within the meaning of s. 4 of the Act.
But Dr. Barlingay, on behalf of the appellants,contended
that a person can be said to be lawfully cultivating land
within the meaning of s.4 only if he has derived his right
to cultivate directly from the owner of the land, and not
from some other person who has a limited interest, such as a
mortgagee from the owner. Counsel also contended that the
expression mortgagee in posession” in cl. of s. 4. includes,
a person claiming a derivative right such as a tenant of the
mortgagee in possession. We are unable to agree with these
Contentions. The Bombay Tenancy Act of 1939 conferred
protection upon tenants against eviction, converted all
subsisting contractual tenancies for less than ten years,
restricted the rights of landlords to obtain possession of
land even on surrender, granted the status ,of protected
tenants to all persons who had personally cultivated land
for six years prior to the date specified, provided for
fixation of maximum rates of rates of rent abolition of
cesses and suspension and remission of rents in certain
contingencies, and barred eviction of tenants, from,dwelling
houses. The Act was found inadequate and was substituted by
the Bombay Tenancy and Agricultural Lands Act of 1948. The
latter Act preserves the essential features of the Act of
1939 provides for additional rights and protection to
tenants such as fixation of reasonable rent, commutation of
crop share into cash, right to procedure of naturally
growing trees on land, relief against termination of tenancy
for non-payment of
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rent, special rights and privileges of protected tenants,
vesting of estates in Government for managment, restriction
on transfer of agricultural land and the constitution of
Special Tribunals for deciding disputes relating to value of
land. The two Acts were manifestly steps in the process of
agrarian reform launched with the object of improving the
economic condition of the peasants and ensuring full and
efficient use of land for agricultural purpose. The pro-
visions of the Bombay Tenancy and Agricultural land Act,
1948 must be viewed in the light of the social reform
envisaged thereby.
The Act 1948, it is undisputed, seeks to encompass within
its beneficent provisions not only tenants who held land for
purpose of cultivation under contracts from the land owners
but persons who are deemed to the tenants also. The point
in controversy is whether a person claiming the status of a
deemed tenant must have been cultivating land with the
consent or under the authority of the owner. Counsel for
the appellants submits that tenancy postulates a relation
based on contract between the owner of land, and the person
in occupation of the land, and there can be no tenancy
without the consent or authority of the owner to the
occupation of that land. But the Act has by s. 2(18)
devised a special definition of tenant and included therein
persons who are not contractual tenants. It would therefore
be difficult to assume in construing s. 4 that the person
who claims the status of a deemed tenant must be cultivating
land with the consent or authority of the owner. The
relevant condition imposed by the statute is only that the
person claiming the status of a deemed tenant must be
cultivating land “lawfully”: it is not the condition that he
must cultivate land with the consent of or under authority
derived directly from
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the owner. To import such a condition it is to rewrite the
section, and destory its practical utility. A person who
derives his right to cultivate land from the Owners would
normally be a contractual tenant and he will obviously not
be a “deemed tenant”. Persons such as licensees from the
owner may certainly be regarded as falling within the class
of perSODS lawfully cultivating land belonging to others,
but is cannot be assumed therefrom that they are the only
persons who are covered by the section. The Act affords
protection to all persons who hold agricultural land as
contractual tenants and subject to the exceptions specified
all persons lawfully cultivating lands belonging to others,
and it would be unduly restricting the intention of the
Legislature to limit the benefit of its provisions to
persons who derive their authority from the owner, either
under a contract of tenancy, or otherwise. In our view, all
persons other than those mentioned in cls. (a), (b) and (c)
of S. 4 who lawfully cultivate land belonging to other
persons whether or not their authority is derived directly
from the owner of the land must be deemed tenants of the
lands.
Under the Transfer of property Act, the right of a tenant
who has been inducted by a Mortgagee in possession
ordinarily comes to an end with the extinction of the
mortgage by redemption, but that rule, in our judgment, has
no application in the interpretation of a statute which has
been enacted with the object of the granting protection to
persons lawfully cultivating agricultural lands. Nor has
the contention that the expression “‘mortgagee in
possessions includes a tenant from such a mortgagee any
force. A mortgagee in possession is excluded from the class
of deemed tenants on ground of public policy: to confer
that-status upon a mortgagee in possession would be to
invest him with rights inconsistent with his fiduciary
character. A
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transferee of the totality of the rights of a mortgage in
possession may also be deemed to be a mortgagee in
possession. But a tenant of the mortgagee in possession if;
inducted on the land in the ordinary course of management
under authority derived from the mortgagor and so long as
the mortgage subsists, even under the ordinary law he is not
liable to be evicted by the mortgagor. It appears that
the Legislature by restricting the exclusion to mortgagees
in possession from the claw of deemed tenants intended that
the tenant lawfully inducted by the mortgagee shall on
redemption of the mortgage be deemed to be tenant of the
mortgagor. In our view, therefore, the High Court was right
in holding that the respondent was entitled to claim the
protection of the Bombay Tenancy and Agricultural Lands Act,
1948 as a deemed tenant.
One more argument about the jurisdiction of the ‘High Court
under Art.227 of the constitution to set aside the order of
the Bombay Revenue Tribunal may be considered. The High
Court in setting aside the order of the Revenue Tribunal
exercised jurisdiction under Art. 227 of the Constitution,
and it was urged by counsel for the appellants that this
was. not a fit case for exercise of that jurisdiction. But
the Legislature has expressly prohibited by s. 29 (2) of the
Act, landlords from obtaining possession of any lands
otherwise than under an order of the Mamaldar. The
possession of the disputed land was obtained by the
appellants in execution of the award of the debt adjustment
Court and without an order of the Mamlatdar. “The respon-
dent was therefore unlawfully dispossessed of the land, and
the Revenue Authorities in refusing to gig him assistance
illegally refused to exercise jurisdiction vested in them by
law.,-The question being
9
one of jurisdiction, the High Court was in our view,
competent to exercise the powers vested in it by Art. 227.
The appeal therefore fails and is dismissed with costs.
Appeal dismissed.