SUPREME COURT OF INDIA

(Large Bench)

Before:- B.P. Sinha, C.J.I., P.B. Gajendragadkar, K. Subba Rao, K.N. Wanchoo, J.C. Shah, JJ.

Civil Appeal No. 516 of 1960. D/d. 3.5.1962.

Dahya Lala and others - Appellant

Versus

Rasul Mahmed Abdul Rahim and others - Respondents

For the Appellant :- Dr. W. S. Barlingay, Senior Advocate, (Mr. Ganpat Rai, Advocates.

For the Respondent No. 1 and 5:- M/s. G. B. Pai and J. B. Dadachanji, Advocates, M/s. S. N. Andley, Rameshwar Nath and P. L. Vohra, Advocates of M/s. Rajinder Narain and Co.

For the Respondent No. 6 :- M/s. R. Ganpathy Iyer, and R. H. Dhebar, Advocates.

A. Bombay Tenancy and Agricultural Lands Act, 1948, Sections 2(18), 4(c), 29(2) - Tenancy - Eviction - Deemed tenant - Mortgagee in possession inducing tenant - Held, that the tenant lawfully inducted by the mortgagee, shall, on resumption of the mortgage shall be deemed to be tenant of the mortgagor and he cannot be evicted by the mortgagor upon redemption of the mortgage - Appeal dismissed with costs.

[Paras 5 and 9]

B. Bombay Tenancy and Agricultural Lands Act, 1948, Section 29(2) - Constitution of India, Article 227 - Writs - High Court - Jurisdiction - Possession obtained from respondent in execution of award of debt adjustment Court without order from Mamlatdar - Held, that the High Court is competent to exercise jurisdiction under Article 227 and High Court, therefore, was right in setting aside the order of the Revenue Tribunal - Appeal dismissed with costs.

[Paras 8 and 9]

Cases Referred :-

Jaswantrai Tricumlal v. Bai Jiwi, ILR 1957 Bombay 342.

JUDGMENT

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 Umiyashankar with possession. Shortly after the mortgage, the mortgagee inducted one Mohammed Abdul Rahim as a tenant on the land.

2. The appellants as owners of the equity of redemption applied to the court constituted under the Bombay Agricultural Debtor's 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 due to the 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 Section 29 of the Bombay Tenancy and Agricultural Lands 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 Article 227 of the Constitution. The High Court following its earlier judgment in Jaswantrai Tricumlal v. Bai Jiwi, ILR 1957 Bombay 342 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 applied to this Court against that order of the High Court with special leave.

3. 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 Section 89 of the Bombay Tenancy and Agricultural Lands Act, 1948, which came into operation on December 28, 1948. By the repealing clause, certain provisions of the Act of 1939 with modifications were continued. By the Act of 1948, under Section 2(18) as it stood at the material time, a tenant was defined as "an agriculturist who holds land on lease and includes a person who is deemed to be tenant under the provisions of this Act." Section 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 is 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 Section 14 : it was in execution of the award made by the Debt Relief Court that the respondent was dispossessed. Section 29, by sub-section (2) provides that no landlord shall obtain possession of any land or dwelling house held by a tenant except under an order of the Mamlatdar. For obtaining such order he shall make an application in the prescribed form .......". Section 4 of the Act in so far as it is material provides: "A person lawfully cultivating any land belonging to another 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 or any member 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 Section 4 is manifestly in a class apart from the tenant who holds lands on lease from the owner. Such a 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 he is not within the excepted categories.

4. The respondent was on December 28, 1948 undoubtedly cultivating land which belonged to another person; 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 Section 4 of the Act.

5. But Dr. Barlingay, on behalf of the appellants, contended that a person can be said to be lawfully cultivating land within the meaning of Section 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 possession" in clause (c) of Section 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 into tenancies for 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 rent, abolition of cesses and suspension and remission of rents in certain contingencies, and barred eviction of tenants from dwelling 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 and provides for additional rights and protection to tenants such as fixation of reasonable rent, commutation of crop share into cash, right to produce of naturally growing trees on land, relief against termination of tenancy for non-payment of rent, special rights and privileges of protected tenants, vesting of estates in Government for management, 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 provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 must be viewed in the light of the social reform envisaged thereby.

6. The Act of 1948, it is undisputed, seeks to encompass its beneficent provisions not only tenants who held land for purpose of cultivation under contracts from the owners but persons who are deemed to be 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 Section 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 Section 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 the owner. To import such a condition is to rewrite the section, and destroy 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 licencees from the owner may certainly be regarded as falling within the class of persons lawfully cultivating land belonging to others, but it 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 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 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 clauses (a), (b) and (c) of Section 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.

7. Under the Transfer of Property Act, the right of a tenant 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 granting protection to persons lawfully cultivating agricultural lands. Nor has the contention that the expression "mortgagee in possession" includes a tenant from such a mortgagee any force. A mortgagee in possession is excluded from the class of deemed tenants on grounds 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 transferee of the totality of the rights of a mortgagee in possession may also be deemed to be a mortgagee in possession. But a tenant of the mortgagee in possession is 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 class 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.

8. One more argument about the jurisdiction of the High Court under Article 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 Article 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 Section 29(2) of the Act, landlords from obtaining possession of any lands otherwise than under an order of the Mamlatdar. 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 respondent was therefore unlawfully dispossessed of the land, and the Revenue Authorities in refusing to give him assistance illegally refused to exercise jurisdiction vested in them by law. The question being one of jurisdiction, the High Court was, in our view, competent to exercise the powers vested in it by Article 227.

9. The appeal therefore fails and is dismissed with costs.

Appeal dismissed.