Laxmi Bai
Sadashiv Date Vs. Annappa Sidappa Nargude [1993] INSC 430 (12 October 1993)
PUNCHHI,
M.M. PUNCHHI, M.M. SINGH N.P. (J) CITATION: 1994 SCC (1) 378 JT 1993 (6) 256
1993 SCALE (4)205
ACT:
HEADNOTE:
ORDER
1.This is an appeal against the judgment and order of the High Court of Bombay
dated June 27, 1972 passed in Special Civil Application
No. 1804 of 1968.
2.The
appellant herein has claimed herself to be the landlady of a parcel of land in
a village in District Kolhapur, Maharashtra, details of which are available in the judgment under appeal. The
respondents are tenants thereon under a very old document of lease. Proceedings
started between the two, in the first instance in the court of Awal Karkun, the
appellant herein claiming that the contractual rent was inadequate and that
reasonable rent be determined under Section 43-B of Bombay Tenancy and
Agricultural Land Act, 1948. The claim was asserted on the foundational fact
that the lease granted in favour of the respondent was for cultivation of sugarcane
or for growing of fruits and flowers as covered under clause (b) of sub-section
(1) of Section 43-A of the said Act. The respondents resisted the proceedings
claiming inter alia that they had become the owners of the land on the tiller's
day i.e. on April 1,
1957 by virtue of
Sections 32 and 32-G of the said Act. The first court of Awal Karkun decided in
favour of the respondents and dismissed the petition holding that the
respondents have become owners of the land on the tiller's day. The Appellate
Court of the Deputy Collector however held otherwise on appeal by the appellant
and remitted the matter back to the Awal Karkun for determining the quantum of
reasonable rent in accordance with the provisions of Section 43-B of the Act.
Now, it was the turn of the respondents to take up the matter before the
revising authority, that is the Maharashtra Revenue Tribunal, who did not
interfere with the views of the Deputy Collector. This gave cause to the
respondents to approach the High Court under Article 227 of the Constitution
whereat three points were raised which may be enumerated as follows:
"(1)
The Dy. Collector of the Tribunal erred in law in holding that although the
land was in fact the jirayat land on the tiller's day, the tenants did not
become owners on the tiller's day;
(2)
the Dy. Collector and the Maharashtra Revenue Tribunal erred in law holding
that the land was for the purpose of sugarcane cultivation within the meaning
of Section 43- A(1)(b) of the Bombay Tenancy and Agricultural Land Act; and (3)
that even if Section 43-A is applied to the land, the landlord could not apply
for fixing the reasonable land under Section 43-B so as to enhance the rent
which was fixed under the original Mirashi Patra."
3. The
High Court ruled in favour of the respondents only on the third contention
viewing that decision on the other contentions was unnecessary. In order to
upset the views of the Deputy Collector and the Tribunal on the third
contention, stress was laid by the High Court on Section 30 of the Act which
provides as follows:
"30.
Save as provided in this Act, the rights or privileges of any tenant under
usage or law for the time being in force or arising out of 380 any contract,
grant, decree or order of a court or otherwise howsoever shall not be limited
or abridged." Section 43-B reads as follows:
"43-B.
Notwithstanding any agreement, usage, decree or order of a court or any other
authority, in the case of any land to which Section 43A applies, the rent
payable shall be reasonable rent as determined under the following clauses:
(1) A
landlord or a tenant of such land may make an application in writing to the Mamlatdar
for the determination of the reasonable rent in respect of such land.
(2) On
receipt of such application, the Mamlatdar shall give notice thereof to the
other party to the lease and after holding an inquiry shall determine the
reasonable rent.
(3) In
determining the reasonable rent regard shall be had to the following factors:
(a)
profits of agriculture of similar lands in the locality, (b) prices in the
locality of the particular crop for the growing of which the land is leased,
(c) the improvements made in the land by the lessee or the landlord, (d) the
assessment payable in respect of land, (e) the profits realised by the lessee
on account of the lease of the land, (f) profits earned by an industrial or
commercial undertaking by the manufacture or sale of articles made out of the
produce of the land leased, (g) such other factors as may be prescribed.
(4)
The reasonable rent determined by the Mamlatdar under clause (2) shall, with
effect from, [the date specified by the Mamlatdar] in that behalf, be deemed to
be the rent fixed under the lease in lieu of the rent, if any, agreed between
the parties."
4. The
High Court found the two provisions to be conflicting and viewed that an
application under Section 43- B did not lie in face of the provisions of
Section 30. We, on our part, can hardly see any justification for such a view
when the provisions of Section 43-B start with a non- obstante clause and are
dependent on Section 43-A. As is plain from its language in clause (1), both
the landlord as well as the tenant can apply in the manner provided for having
reasonable rent determined. Significantly, in order to determine the reasonable
rent the Mamlatdar to whom an application is required to be made, is to have
due regard to factors mentioned in clause (3). Clause (4) further provides that
the reasonable rent determined by the Mamlatdar under clause (2) shall be
payable w.e.f. the date specified by the Mamlatdar in that behalf and that
shall be deemed to be the rent fixed under the lease in lieu of the rent, if
any, agreed between the parties. It is thus obvious that Section 381 43-B is an
on-going provision and not a damp squib. The object of the provision is to
substitute reasonable rent in place of the contractual rent, should there be
any. It is invokable both by the landlord as well as by the tenant. It would
not be wrong to say that the provision is beneficial to either party. Thus it
seems to us that the High Court was in error in shadowing Section 43-B with the
provisions of Section 30. The provisions of Section 43-B start with a non-obstante
clause and of Section 30 barely with a saving clause. The former provision
obviously has an element of predominancy. Therefore on coming to the view that
the High Court was in error in upholding the third objection raised before it,
we upset its Judgment and order and remit the matter back to it for decision on
the other two questions, left undecided.
5. As
is evident from the fact narration there has been a split in some ways but the
twain must meet. As per the decision of the Tribunal and the Deputy Collector
the matter stands remitted back to the Awal Karkun for deciding the quantum of
reasonable rent on the basis that the respondents have not become owners of the
land on the tiller's day and the tenancy was subsisted in terms of clause (b)
of sub- section (1) of Section 43-A. These are the two subjects on which
objection was raised before the High Court. It is thus left to the High Court
to decide whether it would like to await the decision of the Awal Karkun on the
question of reasonable rent and then decide the matter before it or shall it go
ahead with the decision of the petition by itself letting the question of
reasonableness of the rent take its own course. In either situation the High
Court has the discretion but as said earlier somewhere it has to have a confluencing
point.
6.
Having observed so we allow this appeal on the above terms but without any
order as to costs.
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