Dahya Lal & Ors Vs. Rasul Mohammed
Abdul Rahim [1962] INSC 188 (3 May 1962)
03/05/1962 SHAH, J.C.
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.
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 3 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 respondentwas
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 4 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.
5 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 6 rent, special rights and privileges of protected tenants,
vesting of estates in Government for management, 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 provisions 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 7 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 per SODS lawfully cultivating land belonging to others, but is cannot
be assumed there from 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 8 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 respondent
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.
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