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PETITIONER: ISHWARDAS

       Vs.

RESPONDENT: MAHARASHTRA REVENUE TRIBUNAL & ORS.

DATE OF JUDGMENT: 13/03/1968

BENCH: VAIDYIALINGAM, C.A. BENCH: VAIDYIALINGAM, C.A. HIDAYATULLAH, M. (CJ) BACHAWAT, R.S. HEGDE, K.S. GROVER, A.N.

CITATION:  1968 AIR 1364            1968 SCR  (3) 441  CITATOR INFO :  D          1970 SC 439  (5)

ACT: Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 ss. 2(12), 36(1)--Bombay Public Trusts Act s. 2(18)--If managing trustee of a trust is (landlord) and can ’cultivate personally’  within s. 2(12) to be able to claim  possession of land under s. 36(1).

HEADNOTE: The   appellant  was  the  Managing  Trustee  of  a   public charitable  trust  maintaining a Dharamshala.  He  filed  an application  under the provisions of the Bombay Tenancy  and Agricultural  Lands  (Vidarbha  Region) Act,  XCIX  of  1958 before  the Naib Tehsildar, the third respondent  to  direct the  fourth respondent, the tenant, to surrender four  acres of  land,  on the ground that the lands  were  required  for personal  cultivation.   According  to  the  appellant,  the necessary  notices,  terminating the tenancy of  the  fourth respondent,  had been given and be was entitled to get  pos- session of the lands.  The tenant raised a legal  contention that  inasmuch  as  the lands belonged  to  the  Trust,  the appellant  could not be considered the landlord;  the  trust itself  ’could not ’cultivate personally’ the  lands  within the  meaning  of  the.  Act and  therefore  the  appellant’s application  was  not  maintainable.   This  contention  was overruled and the tenant ordered to surrender possession  of the land to the appellant.  However, the tenant’s appeal  to the  Special Deputy Collector, Tenancy Appeals,  Akola,  the second  respondent,  was  allowed  and  this  decision   was confirmed  in revision by the Maharashtra Revenue  Tribunal, Nagpur.   A  writ  petition  filed  by  the  appellant   was summarily rejected by the High Court. On appeal to this Court, HELD : The appeal must be allowed and the order of the  Naib Tehsildar restored. Under  s. 2(18), of the Bombay Public Trusts Act, a  Trustee has  been defined as meaning a person, in whom either  alone or in association with other persons. the trust property  is

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vested and includes a manager.  In view of this  definition, it is clear that in the present case, the properties of  the Trust vest in the Managing Trustee the appellant; and he  is the ’landlord’, under cl. (32) of s. 2. As trustee, he would have  to  administer  the  properties  for  the  purpose  of carrying  out  the  objects  of  the  Trust;  but,  as   the properties  vest in him and he it a ’landlord’, he  can  ask for  a surrender from the tenant of the lands of  the  Trust ’to  cultivate personally’.  He can cultivate -  the  lands, either, by his own labour, or under the personal supervision of  himself, by hired labour or by servants as  contemplated under  sub-cls.  (i) or (iii), of cl. (12) of s. 2.  As  the properties vest in him. in law, cultivation by him, is to be considered ’on one’s own account.’ [444 H-445 C] Shri  Kalanka Devi  Sansthan, Patur  v. Pandu Maroti  [1963] Mh.  L. J. 249, referred to. Buvasaheb   v.   Yesu  Krishna,  (1960)   N.L.J.   219   and Kesheoraj  Deo Sansthan Karanja v Bapurao, (1964) Mh.   L.J. 589. distinguished. 442

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 641 of 1966. Appeal  by special leave from the judgment and  order  dated July  27,  1964 of the Bombay High Court,  Nagpur  Bench  in Special Civil Application No. 32 of 1964. R. V. S. Mani, for the appellant. The respondent did not appear. The Judgment of the Court was delivered by Vaidialingam,  J.  In  this appeal, by  special  leave,  the appellant  attacks  the judgment and order, dated  July  27, 1964,  of  the  Nagpur  Bench, of  the  Bombay  High  Court, dismissing Special Civil Application No. 322 of 1964. Badridatta  Ishwardas  Trust is a public  charitable  trust, maintaining  a  Dharamshala.  The  appellant,  the  Managing Trustee  of the said Trust, filed an application, under  the provisions  of  the Bombay Tenancy  and  Agricultural  Lands (Vidarbha Region) Act, 1958 (Bombay Act XCIX of 1958) (here- inafter called the Act), before the Naib Tehsildar,  Balapur (the  third  respondent,  herein),  to  direct  the   fourth respondent, the tenant, to surrender four acres of land,  on the-ground that the lands were required for being cultivated personally.   According  to  the  appellant,  the  necessary notices,  terminating the tenancy of the fourth  respondent, had  been given, under the Act, and that he was entitled  to get possession of the lands, in question. The fourth respondent raised various objections, on  merits; but  all  those  objections were over-ruled,  by  the  third respondent.  The fourth respondent raised a legal contention that,  inasmuch as the lands, in question, belonged  to  the Trust,   the  appellant  Managing  Trustee  could   not   be considered  to be the landlord.  He further  contended  that ’the Trust itself could not ’cultivate personally’ the lands and, therefore, the application, filed by the appellant, was not  maintainable.   The third, respondent  overruled  these objections,  on the ground ’that the Managing Trustee was  a person  in whom the properties of the\Trustee vested in  law and,  therefore,  it  was open to him to make  a  claim  for possession  of the lands from a tenant, on the  ground  that they  were  required for ’personal  cultivation’.   In  this view,  the third respondent further held that  the  Managing Trustee  was  a  landlord, under the Act,  entitled  to  get possession  of  the lands.  Finally,  the  third  respondent

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ordered  the tenant to surrender possession of the land,  as required by the appellant. The  order  of the third respondent was challenged,  by  the tenant,  in  appeal, before the  Special  Deputy  Collector, Tenancy  443 Appeals,  Akola  (the second respondent).   The  latter,  by order  dated October 30, 1963, reversed the decision of  the Naib   Tehisildar.   The  second  respondent  accepted   the appellant’s  plea  that he was the Managing Trustee  of  the Trust,  in  question,  but took the view that  a  claim,  on behalf of a Trust, for personal cultivation, under the  Act, could  not be made, as a Trust was incapable of  cultivating lands  personally.  The second respondent followed, in  this regard, the decision of the Maharashtra Revenue Tribunal, in Shri Kalanka Devi Sansthan, Patur v. Pandu Maroti(1),  which had  held  that  a Deity or Sansthan, which  is  a  juristic person,  could  hold  property, but could  not  act,  except through a Wahiwatdar or Manager, and, as such, was incapable of  cultivating lands personally.  In this view  the  second respondent held that the appellant was not a person  capable of  cultivating  land  personally  and,  as  such,  was  not entitled to ask for surrender of the lands, from the tenant. The  appellant  went up, in revision,  against  this  order, before  the Maharashtra Revenue Tribunal Nagpur  (the  first respondent).  That Tribunal took the view that the case  was governed  by  the  decision of the  Bombay  High  Court,  in Buvasaheb  v. Yesu Krishna(’), and dismissed  the  revision. The  High Court summarily rejected the writ petition,  filed by the appellant, against this order. Mr.  R.  V.  S.  Mani learned  counsel,  appearing  for  the appellant,  raised two contentions before us : (1) that  the appellant, being a Managing Trustee of the Public Charitable Trust, the properties of the Trust vested in law in him  and so  he was the landlord, under the Act, entitled to ask  for possession  of the lands for personal cultivation; and  (11) if the Managing Trustee was not so entitled, under the  Act, such  of  the  provisions  of the  Act,  which  were  to  be construed,   as  denying  the  fundamental  rights  of   the appellant,  would  have to be struck down, as  violative  of Arts. 14 and 19(1)(f), of the Constitution.  There has  been no appearance, before us, on behalf of the respondents. At  the outset, it has, to be stated that in the grounds  of appeal, filed, in this Court, there has been a mixing up  of the provisions of the Bombay Tenancy and  Agricultural Lands Act, 1948 (Bombay Act LXVII of 1948), and,. the Act; but, on a  careful  perusal of the proceedings, before  the  Revenue Tribunals,  it is seen that the proceedings were  initiated, by  the  appellant, under the Act and, therefore,  we  shall refer  to  the  material provisions of  that  Act.   We  may further  add that, in the view that we take,  regarding  the construction to be placed, on the material provisions of the Act,  it becomes unnecessary for us to consider  the  second contention, raised by Mr. Mani,- for the appellant. (1) (1963)Mh.L.J.249.            (2) (1960) N.L.J  219. 444 Section  2,  of the Act, contains the  definitions,  of  the various  expressions,  occurring in the Act.   Clause  (12), omitting the Explanations, reads               "(12)  ’to  cultivate  personally’  means   to               cultivate 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  one-

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             self or of any member of ones family by  hired               labour or by servants on wages payable in cash               or kind but not in crop share-" Clause  (31) defines ’tenancy’ as meaning that  relationship of landlord and tenant.  Under clause (32), ’tenant’ means a person who holds land on lease and include (a) a person  who is  deemed  to be a tenant under sections 6, 7 or 8;  (b)  a person  who is a protected lessee, or occupancy tenant,  and the  word ’landlord shall be constructed,  accordingly.   It must  be noted that there is no separate definition  of  the word  ’landlord’  but,  as provided in cl,  (32),  the  word ’landlord’ has to be construed accordingly. There  is  no  controversy, in this case,  that  the  fourth respondent  is a ’tenant’, as defined in cl. (32) of  s.  2. The appellant gave the necessary notice, as required by sub- s.  (1)  of s. 38, claiming that he bona fide  required  the land,   for  cultivating  it  personally.   It  was,   after complying  with  the provisions of this section,;.  that  he applied for possession of the land,’ under s. 36(1) of.. the Act. The’  claim. of the Managing Trustee, in this case, is  that he intends to cultivate personally’, the lands in  question. The  objection,  raised  by the fourth  respondent,  to  the appellant’s  claim, was that the properties belonged to  the Trust,  and a Trust could not ’cultivate personally’  lands. It was further urged that if the Managing Trustee cultivated the  lands  of  the Trust, he could  not  be  considered  to ’cultivate on one’s own account,’ as any cultivation, by the Managing  Trustee  of Trust lands, must necessarily  be  on, account  of  the  Trust, therefore, s. 2 (12)  will  not  be satisfied.  This objection found favour with respondents  I’ and  2.  The High Court also appears to  agree  ’with  their views, as is evident ,from the.-fact, that it dismissed  the Writ petition of the appellant, summarily: To  consider the soundness of the objection raised   by  the tenant, it is necessary to refer, in law, to the position of a  Trustee vis-a-vis Trust properties.  Under s. 2 (18),  of the Bombay Public Trusts Act, a Trustee has been defined, as meaning a person, in 445 whom, either alone or in association with other persons, the trust  property is vested, and includes a Manager.  In  view of  this  definition, it is clear that, in  this  case,  the properties of the Trust vest in the Managing Trustee, Pandit Ishwardas, and he is the ’landlord’, under cl. (32) of s. 2. No  doubt,  as  Trustee,  he will  have  to  administer  the properties,  for the purpose of carrying out the objects  of the  Trust; but, as the properties vest in him and he  is  a ’landlord’, he can ask for a surrender, from the tenant,  of the  lands of the Trust ’to cultivate personally’.   He  can cultivate the lands, either by his own labour, or under  the personal  supervision  of himself, by hired  labour,  or  by servants, on wages payable in cash or kind, as  contemplated under  sub-cls. (i) or (iii), of cl. (12), of s. 2.  As  the properties  vest  in him, in law, cultivation,  by  him.  as indicated above, is to be considered ’on one’s own account.’ Thus  the requirements of s. 38(1), read with s. 2(12),  are amply  satisfied,  in  this  case.   It  follows  that   the application,  filed by the appellant, was maintainable,  and the order of the third respondent accepting the  appellant’s claim, is correct.  In  our opinion, the decision of the Bombay High Court,  in Buvasaheb’s  case(’), relied on by the  Maharashtra  Revenue Tribunal, for disallowing the claim of the appellant, has no application, to the case on hand.  The question, that  arose

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for  consideration,  in that decision, was as to  whether  a Wahiwatdar,  or Manager, of lands belonging to a Deity,  was entitled to apply, under s. 34, read with s. 2(6), of Bombay Act LXVII of 1948, for surrender of lands, from the  tenant, for  personal cultivation.  The High Court held  that  there was a distinction, between a Trustee, in whom the properties of the trust vest in law, and a Manager or a Shebait of  the properties, which vest in an idol, which is the legal owner. On  this basis, the learned Judges have held that,  inasmuch as  the legal ownership of the property, in the case  before them,  vested in the idol, and as the Manager or  Wahiwatdar of  such property, was no more than an administrator of  the property, managing that property, for and on. behalf of  the idol, he was not a ’landlord’ and hence could not Apply, for surrender of lands from a tenant, on the ground of  personal cultivation.  It is their further view that it is, only  the person,  in whom the legal ownership of the lands vest,  who can be regarded as the landlord, and who alone can apply, on the  ground  that  he  requires the  land,  bona  fide,  for personal   cultivation.   The  expressions   ’to   cultivate personally’,  ’tenant’  and ’landlord’,  which  the  learned Judges  had  to consider, in Bombay Act LXVII of  1948,  are substantially  similar to the definitions, contained in  the Act. We may also refer, to a later decision, of the Bombay High Court, in kesheoraj Deo Sansthan, Karanja v. Bapurao(2).  In (1) (1960) N.L.J.219. (2) (1964) Mh.L.J. 589 446 that  decision,  the  learned Judges had  to  consider  the. identical  provisions of the Act.  The claim,  for  personal cultivation,  in  that case, was made by the  Manager  of  a private Sansthan.  The learned Judges held that Sansthan  is a  juristic  person,  in whom the   properties  vest.   They further  held  that cultivation, through an agency,  like  a Manager, on behalf of a juristic person, did not come within the ambit of the definition to cultivate personally,’ in  s. 2(12)  of  the  Act.   They also held that  an  idol,  or  a juridical  person,  like the Sansthan, was  not  capable  of cultivating personally, and hence the tenancy of a tenant of land,   owned,  by  a  Deity  or  Sansthan,  could  not   be terminated, under s. 38 of the Act. We  do not propose to express any Opinion, as to  whether  a Manager  or  Shebait, of the properties of an idol,  or  the Manager  of a Sansthan, can or cannot apply, for  surrender, by  a  tenant,  of lands for personal  cultivation.   It  is enough  to point out that the learned Judges of  the  Bombay High  Court,  in  both  the  decisions,  cited  above,  have indicated  that  a Trustee, in whom the properties  vest  in law,  stands  on a different footing, from a  Shebait  or  a Wahiwatdar or Manager.  This distinction, pointed out by the learned  Judges  of  the Bombay High  Court,  has  not  been properly  appreciated,  by  the  Revenue  Tribunal,  in  the present case. To  conclude,  the  appellant, the Managing  Trustee,  is  a person,  in  whom -the legal ownership of, the  property  is vested and, as such, he was entitled to apply for surrender, by  the  tenant,  of the lands in  question,  ’to  cultivate personally’, under S. 38, read with s.  2(12), of the Act. Inasmuch  as all the other points, on facts, have been  held in the appellant’s favour, it follows that this appeal  will have  to be allowed in consequence, the order of  the  third respondent, dated June 29, 1963, will stand restored.  There will be no order as to costs. R.K.P.S.              Appeal allowed.

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