JUDGMENT
J.G. Chitre, J.
1. The petitioner is assailing the correctness, propriety and legality of the judgment and order passed by the learned Member of M.R.T. in Revision Application No. MRT-KP-125/85 by which the learned Member set aside the judgment and order passed by the Sub Divisional Officer, Shahuwadi, District Kolhapur bearing Tenancy Appeal No. 18/82.
2. One Maruti Govind Patil, the L.R. of Govinda Bala Patil, the deceased, submitted an application before the Tahsildar and A.L.T. Radhanagari for an order effecting compulsory sale of the suit land. Originally 32G proceeding was started in respect of the suit land and it was held that Section 43A of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as “the Act” for convenience) was applicable to the matter. It gave rise to tenancy Appeal No. 115 of 1973 and it further gave rise to revision application bearing No. M.R.T. KP 439/73 which was decided by M.R.T. on 10-8-1978 with the following remarks :–
“For dropping the proceeding under Section 32G ………. what is important is the purpose of the lease. There must be instrument of lease. If there is no instrument there must be an agreement between parties to the effect that the land is leased out for the purpose of lease.”
3. Accordingly, notices were issued. The date of hearing was fixed. The parties were present and evidence was recorded by Tahsildar and A.L.T. The Tahsildar and A.L.T. formulated the following points for adjudication :-
1) Whether there exists between the parties the relationship of landlord and tenant since prior to 1.4.57 (Tiller's day). 2) Whether the holding of the tenant including the acreage of the suit land is below ceiling limit. 3) Whether there is agreement to raise sugarcane in the suit land and whether it comes under the purview of Section 43 A of the Act. 4) Whether the tenant is entitled to purchase the suit land and if so to what extent. 5) What would be the purchase price of the suit land and in how many instalments it should be made payable.
4. The Tahsildar and A.L.T. held that the suit land is below ceiling limit. He recorded the finding that it was proved that the suit land was leased and the extract produced by the landlord showed that sugarcane was alternatively grown. He held that there was an oral agreement between the parties to raise sugarcane in the suit land and, therefore, the matter comes under the purview of Section 43A of the Bombay Tenancy Act. He held that the tenant was not entitled to purchase it.
5. An appeal was preferred which was decided by the Sub-Divisional Officer, Shahuwadi Division Kolhapur bearing. T.N.C. Appeal No. 18 of 1982. The learned Sub-Divisional Officer set aside the judgment and order passed by Tahsildar and A.L.T. He held that the suit land was not leased out for the purpose of growing sugarcane and for coming to this conclusion he had discussed the evidence on record.
6. The matter went to M.R.T. By its judgment dated 15-3-1988, the learned Member of M.R.T. set aside the judgment and order passed by the Sub-Divisional Officer. Shahuwadi Division Kolhapur and held that the suit land was given on lease for growing sugarcane. For coming to this conclusion, the learned Member upset the findings of facts recorded by S.D.O. Shahuwadi dismissing the contention of the landlord that the said land was given for growing sugarcane and the matter was falling under the purview of Section 43A of the Bombay Tenancy Act.
7. The learned Counsel appearing for the Petitioner submitted that the approach adopted by the learned Member of the M.R.T. was totally erroneous because he was acting without jurisdiction in setting aside the finding of facts recorded by S.D.O. Shahuwadi without any justification. He submitted that there was nothing on record to show that the present matter was falling under purview of Section 43A of the Bombay Tenancy Act. He prayed for a writ of certiorari in favour of the petitioner for quashing the said judgment and order passed by the learned Member of M.R.T.
8. Shri Suryavanshi, the learned counsel appearing for the Respondent submitted that the learned Member of M.R.T. was right in dislodging the finding of fact recorded by S.D.O. Shahuwadi because the conclusion which was drawn by the learned S.D.O. Shahuwadi was not consistent with the evidence on record. He submitted that the matter falls squarely within the purview of provisions of Section 43A of the Bombay Tenancy Act. He submitted that it was falling under purview of Sub-clause (b) of Sub-section (1) of Section 43A of the Bombay Tenancy Act because Rama Dattu Naikwade was falling in the term “any bodies” mentioned in Sub-clause (b) of Sub-section (1) Section 43A of the Bombay Tenancy Act. He submitted further that the said land was used for growing sugarcane and on that ground also it fall within the purview of Section 43A of the Bombay Tenancy Act.
9. Section 43A of the Bombay Tenancy Act reads :
(1) The provisions of Sections 4B, 8, 9, 9A, 9B, 9C, 10, 10A, 14, 16, 17, 17A, 17B, 18, 27, 31 to 31D (both inclusive) 32 to 32R, (both inclusive), 33A, 33B, 33C, 43, 63, 63A, 64 and 65 shall not apply to –
(a) land leased to or hold by any industrial or commercial undertaking other than a Co-operative Society which in the opinion of the State Government bona fide carried on any industrial or commercial operations and which is approved by the State Government. (b) leases of land granted to any bodies or persons other than those mentioned in Clause (a) for the cultivation of sugarcane or the growing of fruits or flowers or for the breeding of livestock ; (c) to lands held or leased by such co-operative societies as are approved in the prescribed manner by the State Government which have for their objects the improvement of the economic and social conditions of peasants or ensuring the full and efficient use of land for agriculture and allied pursuits.
(2) The State Government may by notification in the official Gazette in this behalf direct that the provisions of the said sections shall not apply to a lease of land obtained by any person for growing any other class of agricultural produce to which it is satisfied that it will not be expedient in the public interest to apply the said provisions. Before the issue of such notification, the State Government shall direct an inquiry to be made by an officer authorised in this behalf by the State Government and shall give all persons who are likely to be affected by such notification, an opportunity to submit their objections.
(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 cooperative farming societies for that purpose and financial assistance to such 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 section mentioned in Sub-section (1).
10. Therefore, it was necessary for the learned Member of the M.R.T. to understand the purpose behind enacting the provisions of Section 43A. It was necessary for him to understand that the words and phrases which are used in Sub-clause (b) of Sub-section (1) were to be understood in its real spirit. It was necessary for the learned Member to give effect to the spirit behind enacting Section 43A of the Bombay Tenancy Act.
11. Section 43A of the Bombay Tenancy Act was exempting certain categories of the cultivation of the land and the persons cultivating it for growing sugarcane, for making improvement in the financial and social status of the peasants using the land for growing sugarcane, fruits or flowers or for the breeding of livestock. The words which are used in Sub-clause (b) of Section 43A(1) clearly provide that such exemption was available to the leases of land granted to “any bodies” or “persons” other than those mentioned in Clause (a) for cultivation of sugarcane or the growing of fruits or flowers or for breeding of livestock. The words used in Sub-clause (b) “any bodies” or “persons” cannot be made applicable to a single person. Such an attempt would be throttling the spirit of enacting Section 43A of the Bombay Tenancy Act. Law does not permit it to be done and this Court would not permit it to be done. Unfortunately, the learned Member of M.R.T. has done it and that too in an improper and illegal way. Therefore, his judgment and order has been polluted and has become illegal. What is illegal cannot be permitted to subsist. It has to be set aside for correcting the gross error of law.
12. While toppling the judgment and order passed by the Sub-Divisional Officer, Shahuwadi, the learned Member of M.R.T. has dislodged the findings of facts, recorded by the said authority. After examining the judgment and order passed by the S.D.O. Shahuwadi, this Court comes to the conclusion” that the findings recorded by the S.D.O. Shahuwadi were consistent with the evidence on record. The approach adopted by him was correct, proper and legal. When that was so, it was beyond the jurisdiction of the learned Member of M.R.T. to dislodge it in the revision. The findings of facts consistent with evidence and law cannot be disclosed by revisional authority.
13. Thus, the judgment and order which has been passed by the M.R.T. and which has been assailed by this writ petition is suffering from infirmities and it is illegal. Therefore, it has to be set aside by issuing a writ of certiorari in favour of the petitioner. Thus, this writ petition stands allowed with costs and rule stands made absolute. Needless to point out that when this writ petition is allowed and writ of certiorari has been issued, the judgment of the M.R.T. stands set aside and the judgment passed by the S.D.O. Shahuwadi stands restored.
14. The Tahsildar and A.L.T. should proceed in view of provisions of Section 32G of the Bombay Tenancy Act as Shri Katikar has submitted. The Tahsildar and A.L.T. should complete the proceedings as early as possible by following the relevant provisions of the Bombay Tenancy Act which has been enacted for the benefit of the true cultivator of the land i.e. the tiller.
15. Parties to Act on authenticated copy of this judgment duly authenticated by the Private Secretary of this Court.