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PETITIONER:

DHONDU UNDRU CHUDHARY

Vs.

RESPONDENT:

GANPAT LAL SHANKAR LAL AGARWAL

DATE OF JUDGMENT18/01/1991

BENCH:

SAIKIA, K.N. (J)

BENCH:

SAIKIA, K.N. (J)

OJHA, N.D. (J)

CITATION:

1991 AIR 1037 1991 SCR (1) 81

1991 SCC Supl. (1) 513 JT 1991 (1) 145

1991 SCALE (1)43

ACT:

Bombay Tenancy and Agricultural Lands Act, 1948-Sectins

45, 47, 61, 65, 87 and 88-Mamlatdar appinted to manage suit

land-Lease of land for 10 years-Payment of rent to Mamlatdar

even after expiry of lease period-Whether lease continues.

Bombay Tenancy and Agricultural Lands Act, 1948-

Sections 61, 4, 4-B-Mamlatdar appointed to manager suit-

land-Granting of lease by him-Expiry of lease-Subsequent

termination of management- Sections 4, 4-B not applicable.

HEADNOTE:

The suit land was taken under Government management as

it was lying fallow for two consecutive years. The

Mamlatdar, appointed as a Manager thereof under Section 45,

of the Bombay Tenancy and Agricultural Lands Act, 1948,

after assuming management, leased out the said land to the

appellant for a period of 10 years by an agreement of lease

dated 7.12.1951. The period of lease expired on 6.12.1961.

However, the management of the land was terminated by

Government by the Assistant Collector's order dated 27.7.63

and possession thereof was ordered to be restored to the

respondent-landlord.

The appellant filed a Civil Suit against the respondent

contending that he was paying rent to the Mamlatdar during

the period 7.12.1961 to 27.7.1963 and thus continued to be a

tenant in respect of the land.

The Civil Judge made a reference to the Mamlatdar, who

held that the appellant continued to be tenant.

The respondent's appeal to the Assistant Collector

having failed, a revision application was moved before the

Revenue Tribunal wherein the question arose whether the

appellant's tenancy was subsisting on 27.7.1963, the date of

termination of the management.

The Tribunal held that the appellant could not

continue as tenant on the termination of the management,

since the land was taken under the Government management

under Section 88(1) of the Act.

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The High Court in the Application under Article 227 of

the Constitution of India having upheld this finding of the

Tribunal, the appellant filed Special Leave petition to this

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Court.

The appellant contended that 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, while the respondent submitted that the appellant

could by no means continue to be a tenant after the expiry

of lease, and that no fresh lease was granted to him after

the management was terminated.

Dismissing the appeal, this Court,

HELD: 1. On the finding of the courts below that after

the expiry of the lease, no fresh lease was granted by the

Manager, 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. 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

landholder, it could not be burdened with any tenancy

created or resulting while under management. Besides,

there could be no privacy 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. [86B-D]

2. The appellant could not have been a deemed tenant

either 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.[86E]

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 936 of

1977.

From the Judgement and Order dated 16.9.1976 of the

Bombay High Court in S.C.A. No. 2741 of 1971.

Shishir Sharma and P.H. Parekh for the Appellant.

Dr. N.M. Ghatate, S.V. Deshpande for the Respondent.

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The Judgement of the Court was delivered by

K.N. SAIKIA, J. This appeal by Special Leave is from

the Judgement of the High Court of Bombay, dated 16th

September, 1976, in Special Civil Application N. 2741 of

1971 upholding the Judgement 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 Mallatdar, 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 years by an agreement of lease

dated 7.12.1951. The period of lease accordingly expired on

6.12.1951. The period of lease accordingly expired on

6.12.1961. However, the management of the land was

terminated by the Government by the Assistant Collector's

order dated 27.7.1963, and the possession thereof was

ordered to be restored to the respondent landlord. There

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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 was paying rent to the

Mamlatdar during the period of 7.12.1961 to 27.7.1963 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 Tribunal, 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 Civil 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

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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 provision s of Sections 1 to 87 were not

applicable and the appellant, therefore, could not continue

to be tenant after expiration of the period of lease on

6.12.1961. The High Court in the Special 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 Mamlatdar even after expiry of

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.

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

unclutivated, 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 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

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land shall vest in the State Government during the

continuance of the management and the provision of

Chapter IV shall mutatis mutandis apply to the

said land:

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Provided that the manager may in suitable cases

give such land on lease at rent even equal to the

amount of its assessment:

Provided further that, if the management of the

land has been assumed under 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 land, with effect from the date on and from

which such management has 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, estate the in respect of which the

notification has been published shall, so long as

the management continues, 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 proceeding 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 be due to the credit of the

said holder. All acts done or purporting to be

done by the Manager during the continuance of the

management of the estate shall be binding on the

holder or to any person to whom the possession of

the estate has been delivered."

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Thus on termination of the management 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

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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

continued 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 landholder, it could not be burdened with

any tenancy created or resulting while under management.

Besides, there could be no privacy 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), nothing in the forging provisions of

this Act shall apply-

(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:

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 xxx xxx xxx"

In Keshav Vithal Mahatre v. Arbid Ranchhod Parekh, [1973]

Bom. L.R. LXXXV 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

unlawfully as a trespasser and he cannot, therefore, claim

to be a deemed 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.

V.P.R Appeal dismissed.

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