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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

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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 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 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

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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

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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 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 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  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

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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  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.