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LPA/604/2002 18/ 18 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 604 of 2002
In
SPECIAL
CIVIL APPLICATION No. 2437 of 1990
For
Approval and Signature:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
YES
2
To be
referred to the Reporter or not ? YES
3
Whether
their Lordships wish to see the fair copy of the judgment ?
NO
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ? NO
5
Whether
it is to be circulated to the civil judge ? NO
=========================================================
PRAVINKUMAR
MAGANLAL PATEL - Appellant(s)
Versus
SURAT
PEOPLE'S CO-OP BANK LTD - Respondent(s)
=========================================================
Appearance
:
MR
MC BHATT for
Appellant(s) : 1,
MR. A.J. PATEL, ld. Adv. for MS MEGHA JANI for
Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
and
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 10th /Oct /2008
CAV
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE BHAGWATI PRASAD)
The
present Letters Patent Appeal is filed by the appellant challenging
the judgement and order dated 14.2.2002 of this Court whereby the
Special Civil Application filed by the respondent bank was allowed by
the learned Single Judge. The learned Single Judge has noticed that
the dispute of the parties is to the land bearing Survey No. 49/11
situated in village Bhatbet, Taluka Choryasi, Dist. Surat and the
land bearing Survey No. 591 situated in village Pal, Taluka Choryasi,
Dist. Surat. The appellant contended that by an agreement entered
into between the appellant and the respondent bank on 13.6.1973,
tenancy was created in favour of the appellant. The appellant
cultivated the disputed land and after deducting expenses, two-third
share of the net profit was given to the respondent Bank.
2. After
considering the facts and arguments of the learned counsel for the
parties, learned Single Judge came to the opinion which reads as
under:
?SI
am of the opinion that the respondent has failed to establish that he
was a tenant with respect to the said lands. The bank has
successfully established that it was cultivating the lands personally
through hired labour. Further the Tribunal and the authority below
have resorted to erroneous approach to the matter at issue. Neither
the Tribunal nor the authority below has given a finding that the
respondent was a tenant with respect to the said lands. Instead, the
Tribunal and the authority below have held that the respondent was
not a servant of the Bank and he, therefore, is a deemed tenant as
envisaged under Section 4 of the Act. The question was whether the
respondent can be said to be a deemed tenant within the meaning of
Section 4 of the Act and not whether he was a servant of the Bank or
what was his relationship with the Bank. The respondent may or may
not be the servant of the bank. He may be said to be manager or a
supervisor employed by the Bank to supervise the agricultural
operations on the said lands. Be that as it may, the respondent has
failed to prove that he was cultivating the said lands as a tenant or
that he was cultivating the said lands at all. In the cases in the
above referred three judgements, the facts undisputed were that the
tenant concerned was cultivating the land in question personally and
that he was being paid in crop share. The facts in the said matters
are quite distinguishable and the said judgements shall lend no
support to the respondent herein.??
3. Impugning
the said judgement, learned counsel for the appellant stressed that
the learned Single Judge has gone wrong in not considering the true
purport and import of deeming provision of Section 4 of the Bombay
Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as
?Sthe Act?? for short) because according to learned counsel Section
4 of the Act gives a deeming clause and in this deeming fiction the
land having been cultivated by the appellant should be deemed to be
under his tenancy. Section 2(18) of the Act, according to learned
counsel, defines the status of a tenant and according to him includes
a deemed tenant under Section 4 of the Act and thus if the test of
Section 2 is applied, there is no escape from the conclusion that the
appellant is a tenant in terms of Section 4 of the Act because the
appellant was not paid in cash and was paid in crop share if the
reading of the agreement of the appellant and the respondent bank is
concerned. Therefore, crop share being permanent and dominant factor,
if that was the consideration between the bank and the appellant,
there is no escape from the conclusion that the appellant was a
deemed tenant and if he was a deemed tenant then the findings of the
learned Single Judge deserve to be quashed and set aside. Learned
counsel has relied on a decision of this Court in the case of THAKOR
KESAJI RANAJI (Decd.) BY HIS HEIRS & LRs. THAKOR LILAJI KESAJI
VS. VALLABHDAS PARSHOTTAMDAS PARIKH reported in 1996(3) G.L.R. 849
and has stressed that this Court has held at paragraph 22 as follows:
?SIt
is very clear from the aforesaid decision that what is required to be
seen and examined is whether a person has been in lawful cultivation
of the land who is not being paid any wages in cash or in kind but by
way of crop share. In that case, reliance was also placed on the
decision of the Apex Court rendered in DAHYA LAL V. RASUL MOHAMMED
ABDUL RAHIM, AIR 1964 SC 1320 DAHYA LAL’S CASE (supra) was decided by
a Bench of five Honourable Judges of the Apex Court. In Dahya Lal’s
case (supra), the provision which came up for consideration was Sec.
4 of the Bombay Tenancy Act. It is clearly held in Dahya Lal’s case
(supra) that the Tenancy Act encompassed with its beneficient
provisions not only tenants who held land for purpose of cultivation
under contract from the land-owners but persons who are deemed to be
tenants. The ratio enunciated in the aforesaid two decisions of the
Apex Court is attracted squarely to the facts of the present case.??
4. Thus,
according to learned counsel, the findings of learned Single Judge
then are contrary to the binding decision of this Court on the point.
Learned counsel further relied on a decision of the Bombay High Court
in the case of DINKAR VITHOBA SALGAONKAR & ORS VS. SHARAD
JAGANNATH KULKARNI & ORS., reported in 1999(1) Bom. L.R. 486
wherein it was decided by the Bombay High Court enumerating the same
provisions which are in question as under:
?SThe
Appellate Court has recorded a finding that the petitioners were
lawfully cultivating the lands i.e. Survey Nos. 45/13 and 45/19.
According to the Appellate Court even this was admitted by the
respondents. Those lands were belonging to the respondents. According
to their own case, there was crop sharing between the two. In view of
this, clearly, Section 4(b) is attracted. The Appellate Court has
failed to consider the import of the words `but not in crop share’
and has erroneously held that the petitioners have failed to prove
that their case is not hit by the provisions of Section 4(b). Even
considering the case of respondents, it is not hit in respect of
these lands i.e. Survey Nos. 45/13 and 45/19. The finding in this
respect was perverse.??
5. It
was held that since there was crop sharing between the parties, the
tenants would be deemed tenants under the Act and thus the same
provision which has been interpreted to be applied, the judgement of
learned Single Judge is not a correct proposition of law.
6. Learned
Counsel for the appellant has further relied on a decision of the
Hon’ble Supreme Court in the matter of JAGAN ALIAS JAGANNATH UMAJI
VS. GOKULDAS HIRALAL TEWARI reported in AIR 1987 SC 2429 in which the
Hon’ble Supreme Court has held at paragraph No. 8 as under:
?SAs
far as the case before us is concerned as we have already pointed out
that the appellant was admittedly cultivating the lands in question
and was not a member of the landlord’s family nor was he a hired
labourer. The landlord did not belong to any of the classes specified
in sub-Sec. (2) of Sec. 41. The aforesaid cultivation was clearly
lawful because the respondent to whom the lands belonged had
permitted him to do so. It is true that the record shows that this
right to cultivate the land and appropriate the produce was given to
the appellant because of the services he was performing as a Pujari
of the aforesaid temple of the respondent and as he was looking after
the dharamshalas. By reason of these facts, it might be said that he
was cultivating the said lands as a servant of the respondent, but he
was not being paid any wages in cash or kind but by way of a crop
share, the share being the entire crop. In these circumstances, he
must be held to be a deemed tenant of the said lands under the
provisions of S. 6 of the Vidarbha Tenancy Act. The fact of his
cultivating the land as a servant of the respondent would make no
difference because he was being paid for his services by way of a
crop share and hence was not covered by the provisions of Cl. (b) of
sub-sec. (1) of S. 6. The learned Judge of the High Court was in
error in coming to the conclusion that merely because the appellant
was a servant of the respondent, he could not be held to be a tenant
in respect of the said lands. The learned Judge altogether failed to
notice that although the appellant was a servant, he was not given
wages payable either in cash or kind but by way of a crop share and
hence not covered by the exception carved out by Cl. (b) of sub-sec.
(1) of S. 6. From the observations made by the learned Single Judge,
it appears that he proceeded on the wrong footing that in order to be
a deemed tenant, a person must show that his lawful cultivation owes
its origin to some sort of tenancy. In fact, the whole aim of S. 6 is
to confer deemed tenancy upon person who are not already tenants of
the land in question. We may point out that this conclusion finds
some support from the decision of this Court in DAHYA LAL VS. RASUL
MOHAMMED ABDUL RAHIM (1963) 3 SCR 1 at pp. 6-7 = (AIR 1964 SC 1320)
decided by a Bench of five learned Judges of this Court. In that case
the provision which came up for consideration was S. 4 of the Bombay
Tenancy and Agricultural Lands Act, 1948, the material portion of
which runs as follows:
?SA
person lawfully cultivating any land belonging to another person
shall be deemed to be a tenant if such land is not ……??
It
was held that this Act encompassed with its beneficient provisions
not only tenants who held land for purpose of cultivation under
contracts from the land owners but persons who are deemed to be the
tenants.??
Thus,
there was no escape than to hold that the appellant was a deemed
tenant.
7. Learned
counsel has further relied on a decision of a Division Bench of this
Court in the case of HARSHADRAI VS. PARAGJI reported in 1961 G.L.R.
505 wherein it has been held at page 508 as under:
?SIf
two views can be taken as to the construction of a document and the
view of the Tribunal cannot be said to be patently unsound or
erroneous, the High Court will not exercise its jurisdiction under
Article 227 of the Constitution (vide Satyanarayan V. Mallikarjun, 62
Bombay Law Reporter 146).??
8. Thus,
learned counsel strenuously contended that by plethora of decisions
the law has been interpreted in favour of the appellant that as and
when there is cultivation personally and on crop share basis, the
appellant was required to be declared as deemed tenant and therefore
learned counsel prayed that the findings of the learned Single Judge
are not in accordance with law and therefore deserve to be set aside.
9. Per
contra: learned counsel for the respondent submitted that the opinion
expressed by the learned Single Judge is perfectly in accordance with
law because the entire case of the appellant rests on the deeming
language of Section 4. Deeming is by fiction. Deeming provision
cannot be considered to be absolute and all deeming provisions have a
character of being rebuttable. Interpreting the same Section,
according to learned counsel for the respondent, the Bombay High
Court in the case of GULABRAO M. WANI VS. HEMAKASHIRAM GAJARE
reported in (1956) 59 Bombay Law Reporter 194 has held as under:
?SIt
is clear from the facts of the case that opponent No. 1 is not a
member of the owner’s family nor does he fall in any of the
categories as mentioned in the above definition. It is, however,
apparent that he is lawfully cultivating the land belonging to the
applicant. We have, therefore, to see whether he shall be deemed to
be a tenant for the purposes of this Section. The phrase ?Sdeemed to
be?? in our opinion raises a presumption in favour of the person
lawfully cultivating the land, of his being a tenant. But that
presumption, in our opinion, is a rebuttable presumption. The
explanation to S. 4 reads thus:
`A
person shall not be deemed to be a tenant under this Section if such
person has been on an application made by the owner of the land as
provided under Section 2-A of the Bombay Tenancy Act, 1939, declared
by a competent authority not to be a tenant.’
This
sufficiently supports our view. Section 4 in itself does not confer
any status of tenancy as stated above: it only raises a presumption.
In our opinion, it is clear from the terms of the agreement that
there was a special contractual relationship between the applicant
and opponent No. 1. That contractual relationship is not in the
nature of tenancy and, therefore, obviously opponent No. 1 is not a
tenant.??
10. Thus,
learned counsel for the respondent contended that before deeming
assistance is required to be invoked, it is to be seen what is the
relationship of the parties and for which learned counsel drew
attention of the Court towards the agreement between the parties. The
relevant portion of the agreement when read in Gujarati reads as
under:
qetInu
kam suVyviS4t 4ay Ane beNkae nuksan 4ay nhI te ma3e tmae beNknI
nIcenI ivgtnI jmInma> jate qetI iv8yk p/v qet mjuraenI mdd4I qetI krvanI 0e. Ane saru tul ]Tpadn 4ay
te ma3e qetI iv8yk p/v 0e. sdrhu
jmInma> ibyar`nI jrur pDe tae te tmea beNke Aapvanu> 0e. Ane
qet mjuraenI m>jurI p` mare beNkna nam4I beNkna Naa`a> l[ne,
cukvvanI 0e. qetI kam ma3e h5 lakDu lavvu> pDe tae te A>genae
qcR p` mare beNk JeaDe4I na>`a l[ne krvanea 0e.sdrhu jmInma> je
tul ]Tpn 4ay te beNkna nam4I mare saesay3I ma> naqvanu> 0e. Ane
tenI iv8yk p/vm mare beNk trf4I Ane
beNkna nam pr krvanI 0e. sdrhu jmInnae kbJae beNknae 0e. Ane beNk
trf4I j te jmInma> suprvIzn raqIx Ae3le mare sdrhu jmIn pr
g5aetIyt trIkenae 0e. jmIn mare kbjae haevanae n4I Ane te ivru^6 hu>
kae[ qae3I tkrar kru> tae Aa lqa`4I rd batl 4ay 0e. t4a tenI kae[
gervtR`u>knI tmae beNk ibn nae3Ise mne menejrma>4I 0u3ae krI
ka!I mukae shI tema> mare kae[ tkrar levanI n4I hu> tmarI trf4I
sdrhu jmIn ]pr deqwa5 raqu> te bdl tmare mne qcR jta je ne3 ]pr
4ay tenI Aek t<tyax rkm dr v8eR AapvanI nkKI kyuR 0e.
11. According
to learned counsel for the respondent, in the agreement the land
which was defined was also not to the extent as has been considered
by the Courts below and it was only 2 acres 4 gunthas 10 H. Thus,
the learned counsel for the respondent urged that the interpretation
as given by the Bombay High Court is plain and simple and establishes
the case in favour of the respondent and upholds the view taken by
the learned Single Judge. The learned counsel further stressed that a
Division Bench of this Court in the case of AMBALAL VALLAVBHAI PATEL
VS. MANGALBHAI DHULABHAI BHOI reported in 1978 G.L.R. 799 held at
paragraph No. 16 interpreting the same provision of law as under:
?SSec.
4 is not an instrument for a dishonest person to dupe a simple,
unwary and honest person. If a dishonest person enters into an
agreement of sale with another, pays a small amount towards the
earnest money, enters into possession in anticipation of the
conveyance of the title to him, deliberately commits breach of the
agreement, goes back upon it and claims tenancy when the intending
vendor seeks to recover possession of his land from him, what
happens? Shall the dishonest person succeed? Will he be able to
achieve his evil design successfully under the protection of law? If
we take this view, it will be removed from achieving its last
mentioned laudable objective and will operate as a fountain of
dishonesty and crookedness creating poverty where there is none
without removing it from any other social pocket. It cannot be
imagined that the Legislature, by enacting Sec. 4 in a very wide
language, thought of trapping the honest and the simple for making
them prey of the wily and the dishonest. Therefore, Sec. 4 does not
operate in the field of agreement of sale under which possession has
been delivered to the intending vendee.??
12. In
this judgement, according to the learned counsel, it has been stated
by the learned Judge that a ?Slegal fiction?? is one which is not
an actual reality but which the law requires the Court to accept it
as a reality. This is how the deeming clause is to be construed.
Deeming clause as has been interpreted by the learned Single Judge
has rightly been done and there is no illegality in the same and thus
prayed that the appeal deserves to be dismissed.
13. We
have given our thoughtful consideration to the question of fact and
law urged before us. The first and the foremost question of this
matter is to look into the definition of tenant which reads as under:
?SS.
2(18) – ?Stenant?? means a person who holds on lease and includes:
(a) a
person who is deemed to be a tenant under Section 4;
(b)
a person who is a protected tenant; and
(c)
a person who is a permanent tenant;
(d)
a person who, after the surrender of his tenancy in respect of
any land at any time after the appointed day but before the specified
date has continued, or is deemed to have continued, to remain in
actual possession, with or without the consent of the landlord, of
such land till the specified date;
and
the word ?Slandlord?? shall be construed accordingly.??
14. Thus,
according to definition of ?Stenant?? a person would be a tenant if
he is a deemed tenant under Section 4. Thus, we have to see whether
Section 4 brings the appellant within the definition of a tenant.
Section 4 of the Act reads as under:
?SSec.
4 ? A person lawfully cultivating any land belonging to another
person shall b 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 or any member of the owner’s family, or
(c)
a mortgagee in possession.??
15.
A plain reading of the language of the Section requires that a person
has to be lawfully cultivating the land. The character of the
appellant is defined by the parties by an instrument executed by both
the parties. According to that instrument, the appellant was not
described as to be a person who would cultivate the land. In terms of
the agreement, the person has been defined to be the Supervisor and
he was to get the land cultivated through agricultural labourer.
Thus, the opening sentence of Section 4 of the Act requires a person
to lawfully cultivate the land. This would not engulf the character
of the appellant to be a person lawfully cultivating the land, if at
all, he took some agricultural operations for himself because he only
was required by the bank to have supervised the agricultural
operations.
16. The
agreement and arrangement to cultivate can be seen to have been
necessitated upon simple contingency that a juristic entity like
bank can never personally cultivate any land at its disposal. It had
to fall back upon some person who can do or get done cultivation for
it. The term of agreement shows the appellant as a Supervisor. Thus,
he on this count alone, is not covered by Sec. 4.
17.
Another factor which is canvassed by the appellant in his favour is
that he is cultivating the land and is being paid by crop share. A
servant who is paid in cash is not included in the deeming fiction.
This is a negative covenant in Section 4 that if he is paid in crop
share then he could be deemed to be a tenant but then this is by such
expression of language which did not stipulate that a Supervisor who
is paid in terms of agreement would be deemed to be a crop sharer and
therefore deeming provisions of Section 4 of the Act would not come
to the rescue of the appellant and would not make him a person who is
cultivating the land lawfully. Since it cannot be construed from the
agreement that any lawful activity was conferred on the appellant to
make his cultivation lawfully, any other provisions of Section 4
would not be available to him to claim deemed tenancy.
18. The
controversy can be viewed from another angle wherein sub-section 6
of Section 2 defines ?Sto cultivate personally??. Personal
cultivation being defined in the definition clause sub-section 6 of
Section 2 which is quoted hereinbelow requires the personal
cultivator to cultivate the land on one’s own account.
?Ssec.
2(6) ? ?Sto cultivate personally?? means to cultivate land 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 oneself or any member of one’s family, by
hired labour or by servants on wages payable in cash or kind but not
in crop share.??
19. If
the status of the appellant is viewed from the definition clause then
it would be seen that the appellant was not cultivating on his own
account since the appellant was not cultivating on his own account.
If a reference is made to the agreement then it would be seen that it
was on account of the bank the cultivation was made. Thus, he cannot
be considered to be covered by the definition of ?Scultivating
personally??. If he was not cultivating personally then again the
requirement of section 4 that a person lawfully cultivating the land
would not engulf the appellant in that. In this regard, this may be
said that the law relied on by the learned counsel for the appellant
is distinguishable on account that in the case of HARSHADRAI VS.
PARAGJI (supra) it is stated that if two views of the construction of
the document can be taken then one which has been taken should not be
disturbed. Here two views are not possible from the reading of the
agreement which clearly specifies the appellant to be the Supervisor.
20.
As regards law relied upon in the case of THAKOR K.R. (DECD.) BY HIS
HEIRS VS. V.P. PARIKH (supra) suffice it to say that in this case the
facts were clearly to the effect that ?Snaokar-nama?? was alleged
to have been executed subsequent to the tenant having come into
possession of the land and he was then held to be lawfully
cultivating the land. Naokar-nama came subsequent to his entering as
tenant. Thus, the document having come into existence later, then the
case is distinguishable on facts.
21. As
regards decision of the Bombay High Court in the case of DINKAR V.
SALGAONKAR VS. SHARAD J. KULKARNI (supra) suffice it to say that,
that proceeded on the admitted facts where the respondents were said
to have admitted that the cultivator was lawfully cultivating the
land. Therefore, this case is also distinguishable. So also in the
case of JAGAN ALIAS JAGANNATH UMAJI VS. GOKULDAS HIRALAL TEWARI
(supra) wherein the Hon’ble Supreme Court has noticed that the
appellant was admittedly cultivating the land. The case has decided
on the admitted facts. There are no such admitted facts in this
case.
22. In
the present case, the bank could not due to its position cultivate
the land. Therefore, it was required to appoint somebody to supervise
the agricultural operations and in that case the ratio of AMBALAL
VALLAVBHAI PATEL VS. MANGALBHAI DHULABHAI BHOI (supra) clearly lays
down that those who dishonestly wants to travel that character are
not favoured. In any case, the discussion made by us regarding law
stated above clearly establishes that the case of the appellant is
not covered by Section 4 of the Act because he was not lawfully
cultivating the land and was inducted as a Supervisor who was not
cultivating the land on his own account which is required for
personal cultivation. In that background, the findings of the learned
Single Judge are not seen to be erroneous and do not require any
interference in this appeal. We accordingly uphold the judgement of
the learned Single Judge and dismiss the appeal. There shall be no
order as to costs.
(BHAGWATI
PRASAD, J)
(S.R.
BRAHMBHATT, J)
Learned
counsel for the appellant requested for continuance of stay order. In
the facts and circumstances of the case, we are not persuaded that
any case is made out for continuance of the stay order granted by
this Court during the pendency of the appeal. Request is therefore
rejected.
(BHAGWATI
PRASAD, J)
Dt:
10/10/2008
(S.R.
BRAHMBHATT, J)
(pkn)
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