Dhondu Undru Choudhary v. Ganpat Lal Shankar Lal Agarwal.

Judgment

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 936 of 1977. From the Judgment and Order dated 16.9.1976 of the Bombay High Court in S.C.A. No. 2741of1971. Shishir Sharma and P.H. Parekh for the Appellant. Dr. N.M. Ghatate, S.V. Deshpande for the Respondent. D.U. CHOUDHARY v. GANPAT LAL [SAIKIA, J.] 83 The Judgment of the Court was delivered by K.N. SAIKIA, J. This appeal by Special Leave is from the Judgment of the High Court of Bombay, dated 16th September, 1976, in Special Civil Application No. 2741 of 1971 upholding the Judgment of the Maharashtra Revenue Tribunal. The suit land bearing Survey No. 182, owned by Shankarlal Kunjilal, was taken under Government management as per order of the Assistant Collector, Jalgaon bearing No. TEN. WS-946 dated 14.12.1950 as the land was lying fallow for two consecutive years. The Mamlatdar, Raver was appointed as a Manager thereof under Section 45 of the Bombay Tenancy and Agricultural Lands Act, 1948, hereinafter referred to as 'the Act.'

After assuming the management the land was leased out to the appellant Dhondu Choudhary by the Mamlatdar for a period of 10 yea.rs by an agreement of lease dated 7 .12.1951. The period of lease accordingly expired on 6.12.1961. However, the management of the land was terminated by the Government by the Assistant Coll~ctor's order dated 27. 7 .1963, and the possession thereof was ordered to be restored to the respondent landlord. There was nothing on the .record to show that the lease which expired on 6.12.1961 was extended by the Manager thereafter till the termination of management by order dated 27.7.1963. The appellant claimed that he ~as paying rent to the Mamlatdar during the period of 7.12.1961to27.7.1963 and thus continued to a be tenant in respect of the land. He filed a Civil Suit against the respondent in the Court of Civil Judge, Raver, who made a reference to the Mamlatdar, Raver who held that the appellant continued to be tenant.

The respondent's appeal to the Assistant Collector having failed, he moved a revision application before the Maharashtra Revenue Tri- ;, bunal, hereinafter referred to as 'the Tribunal', wherein the question arose whether the appellant's tenancy was subsisting on 27.7.1963, and whether he had become the tenant in respect of the land since that date under the Act. Relying on . a bench decision of the Bombay High Court in Special c;ivil Application No. 1077 of 1961 Ghambhir Lal Laxman Das v. Collector of Jalgaon, (decided on 20.12.1962) wherein it was held that the person to whom lease was granted by the Manager of the land which was taken under Government management, could not continue to be the tenant after the expiry of the period of 10 years without a fresh lease, and that after the management was terminated by the 84 {1991]

1 S.C.K Government on expiration of the lease, the tenancy under the lease ,..,"-. could not be said to be subsisting on the date on which the management was terminated. The Tribunal held that the appellant could not continue as tenant since termination of the lease on 27.7.1963. The Tribunal further held that since the land was taken under the Government management by the order of the Assistant Collector under Section 88( 1) of the Act the provisions of Sections 1 to 87 were not applicable and the appellant, therefore, could not continue to be tenant after the expifation of the period of lease on 6.12.1961. The High Court in the Special Civil Application under Article 227 of the Constitution of India having upheld the above finding of the Tribunal, the appellant obtained Special Leave. The only submission of the learned counsel for the appellant Mr. Shishir Sharma is that the appellant having continued payment of rent to the Mamlatdar even after expiry of the lease till the termination of management, he continued to be a tenant which the landlord could not avoid on resumption of the land.

Dr. N.M. Ghatate, the learned counsel for the respondent, submits that the appellant could by no means continue to be a tenant after his lease expired and no fresh lease was granted to him and more so after the management was terminated on 27.7.1963. y We find force in Dr. Ghatate's submission. Admittedly the ~>--­ management of the land was assumed by the State Government under Section 65 of the Act. Section 65 deals with assumption of management of lands which remained uncultivated, and says: "65. (1) If it appears to the State Government that for any two consecutive years, any land has remained uncultivated or the full and efficient use of the land has not been made for the purpose of agriculture, through the default of the J holder or any other cause whatsoever not beyond his control the State Government may, after making such inquiry as it thinks fit, declare that the management of such land shall be assumed. The declaration so made shall be conclusive. (2)

On the assumption of the management, such land '[- shall vest in the State Government during the continuance of the management and the provisions of Chapter IV shall mutatis mutandis apply to the said land: . i 1 D.IJ. CI-j:OUDHARY v. GA~PAT LA)-. [SAIKIA, J.] 85 Provided that the rqanager may in suitable cases give ~uch land o~ lease at rent even equal to the amount of it~ assessllle11r: Provided further that, if the managemept of the land has been assumed up.der sub-section (1) on account of the default of the tenant, such tenant shall cease to have any right or privilege under Chapter II or III, as the case may be, in respect of such lap.d, with effect from the date on and from which such management bas been assumed." Admittedly, the Manager was appointed under Section 45 of the Act. Section 45 deals with vesting of estate in management, and says: "45.

(1} On the publication of the notification under ·section 44, the estate in respect of which the notification has been published shall, so long as the management con- . tinues, vest in the State Government. Such management shall be deemed to commence from the date on which the notification is published and the State Government shall appoint a Manager to be in charge of such estate. (2) Notwithstanding the vesting of the estate in the State Government under sub-section (1), the tenant holding the lands on lease comprised in the estate shall, save as otherwise provided in this Chapter, continue to have the same right and shall be subject to the same obligations, as they have or are subject under the preceding Chapters in respect of the lands held by them on lease." Section 61 deals with termination of management, and says: "61.

The State Government, when it is of opinion that it is not necessary to continue the management of the estate, by order published in the Official Gazette, direct that the said management shall be terminated. On the termination of the said management, the estate shall be delivered into the possession of the holder, or, if he is dead, of any person· entitled to the said estate together with any balances which may b~ due ~o the credit of the said holder. All acts done or purporting to be done by the Manager during the coqtinuance of the management of the estate shall be binding on the holder or to any person to whom the possessioq of H the estate has been delivered."

86 Thus on termination of the ma,nagement the suit land in the instant case was to be delivered into the possession of the respondent holder and all acts done or purporting to be done by the Manager during the continuance of the management of the estate should be binding on the holder or on any person to whom the possession of the estate had been delivered. In the instant case the finding of the Courts below is that after expiry of the lease no fresh lease was granted by the Manager. In view of this finding, the appellant's claim to have continued as the tenant even after expiry of the lease on 6.12.1961 and till 27. 7 .1963, the date of termination, by paying rent for the period to the Mamlatdar would be of no avail, in the absence of fresh lease after expiry of the 10 years lease on 6.12.1961.

The Tribunal followed the binding decision of the-Bombay High Court holding that there was no lease in favour of the appellant and that by mere holding over he could not have,continuea the status of a tenant. This would be so because the Act does not envisage the Government as a landholder but only as Manager. While delivering back the land into the possession of the ' r landholder, it could not be burdened with any tenancy created or resulting while under management. Besides, there c<))uld be no privity between the landlord and the erstwhile tenant under Government in the matter of tenancy. Between the appellant and the respondent landlord, therefore, no question of the former continuing as tenant of the latter could arise after the land was reverted to the landholder. Mr. Sharma's submission that the appellant was a deemed tenant is also not tenable.

The appellant could not have been a deemed tenant under Section 4 or 4B of the Act inasmuch as Section 88 of the Act grants exemption inter alia to lands held on lease from the Government. It says: "88. (1) Save as otherwise provided in sub-section (2), _ y· ~ nothing in the foregoing provisions of this Act shall apply- _A( (a) to lands belonging to, or held on lease from, the Government; xxx xxx xxx xxx xxx xxx xxx xxx ( d) to an estate or land taken under management by the State Government under Chapter IV or section 65 except as provided in the said Chapter IV or section 65, as the case may be, and in sections 66, 80A, 82, 83, 84, 85, 86 and 87: D,l), CHOUDHARY v. GANPAT LAL [SAIKIA, J.]

87 Provided that from the date on. which the land is released from management, all the foregoing provisions of this Act shall apply thereto; but subject to the modification that in the case of a tenancy, not being a permanent tenancy, which on that date subsists in the land XXX XXX XXX XXX · XXX XXX XXX XXA xxx'' In Keshav Vithal Mhatre v. Arbind Ran.chhod Parekh, [1973] Born. L.R. Vol. LXXV 694, a learned Single Judge has held that a lease of land granted by a Manager under s. 47 of the Bombay Tenancy and Agricultural Lands Act, 1948, comes to an end with the termination of the management of the land by virtue of s. 61 of the Act. If the tenant continues to remain on the land thereafter, he would be cultivating it u,nlawfully as a trespasser and he cannot, therefore, claim tQ be a deeme<,:l tenant under s. 4 of the Act. This is consistent with the decision. in Ghambhir Lal's case (supra) relied on by the Tribunal.

Thus, Sections 4 and 4B were not applicable during the period from expiry of the lease to the termination of management. . In the result, we find no merit in this appeal and it .is dismissed, but without any order as to costs. VP.R. Appeal dismissed.