Gajanan Tukaram vs Maharashtra Revenue Tribunal and another

M. N. Chandurkar, J.—The petitioner holds a lease from the State Government in respect of field khasra number 93, admeasuring 5.47 acres of Bhishi, for a period of five years commencing from 1st April 1966 by virtue of a lease-deed dated 11-7-1966. This field belongs to respondent No. 2 Sitaram and was declared as surplus land u/s 21 (2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, hereafter referred to as the Tenancy Act, in a proceeding for verification of the surrender-deed executed by the tenant, who cultivated this land. The surrender-deed was executed in respect of this khasra number 93 which had an area of 13,73 acres, but only 6,47 acres of land was declared as surplus land, because the total land held by the respondent No. 2 along with the land surrendered exceeded three-family holdings by this area. The order in the surrender proceedings was passed by the Tahsildar on 30-11-1962 in Revenue Case No. 136 /59 (4-A) /1961-62. On the date on which the surrender-deed was verified the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, hereafter referred to as the Ceiling Act, had already come into force on 26-1-1962. Under the provisions of the Ceiling Act, the maximum land which the respondent No. 2 was held entitled to be in possession was determined, and in these proceedings the respondent No. 2 had shown this area of 5.47 acres as a part of his holding. This was Revenue Case No. 5/60 (A-5)/64-65 decided on 7-6-1965. In terms of the order passed in that case the respondent No. 2 was held entitled to 216 acres of land while he actually held 110-97 acres. In these 110.97 acres the disputed land was included by the respondent No. 2.

According to the petitioner, after he had been placed in possession by the Patwari on 24-7-1966 in pursuance of the lease granted to him by the State Government, the respondent No. 2 dispossessed him on 25-7-1966 forcibly and he, therefore, filed an application u/s 120 of the Tenancy Act for ejectment of the respondent No. 2. In these proceedings u/s 120 of the Tenancy Act, the case of the respondent No. 2 was that he was held entitled to be in possession of the disputed field in spite of the order u/s 21 (2) of the Tenancy Act. The sheet anchor of the case of the respondent No. 2 was the order passed in the proceeding under the Ceiling Act by which according to him he was held entitled to remain in possession of the land in dispute. The Sub-Divisional Officer found that the Government have assumed management of the land which was declared surplus land u/s 21 (2) of the Tenancy Act and that the Naib-Tahsildar who was appointed as the Manager had leased out the land to the petitioner for a period of five years on 11-7-1966 and he was, therefore, in lawful possession and cultivation of the field. The Sub-Divisional Officer, therefore, held that provisions of section 120 of the Tenancy Act were attracted and that the respondent No. 2 should have taken recourse to such remedies as were available to him instead of forcibly dispossessing the petitioner. He, therefore, passed an order summarily evicting the respondent No. 2 from 547 acres of land out of khasra No. 93.

The respondent No. 2 then filed a revision application before the Maharashtra Revenue Tribunal, The Tribunal took the view that the order passed in the Ceiling Case had the legal effect of effacing the order of the Naib-Tahsildar by which the disputed land was declared as surplus land u/s 21 (2) of the Tenancy Act and the management of which was assumed under Chapter VII of that Act. The Tribunal also took the view that the disputed land could not be declared as surplus land and its management could not be assumed in view of the Ceiling Act which came into force on 26th January 1962 and that the matter was to be finally settled and decided under the provisions of sections 6, 18 and 21 of the Ceiling Act, and therefore, the order passed by the Sub-Divisional Officer was contrary to law. The Tribunal further held that the respondent No. 2 was deemed to be in lawful ownership and possession of the disputed land. This conclusion was reached on the basis of certain observations which were made in the order in the Ceiling Case. A copy of the order dated 7-6-1965 in Ceiling Case No. 5 /60 (A-5) /64-65 has been made available to me by the learned counsel appearing on behalf of the respondent No. 2. The only operative part of this order is:

"So, ceiling area of the family of the remaining members comes to 216 acres, 108 acres being the local ceiling area and the actual land held by him is only 110.97. Thus he does not hold surplus land."

In paragraph 2 of the order among the fields which are shows to have been held by the respondent No. 2 on 4-8-1959 is shown khasra number 93, area 13-73 acres. The observations made by the Tribunal that "the applicant was deemed to be in lawful ownership and possession of the disputed land i. e. 5,47 acres of land of khasra No. 93 as it has been held so by Shri Khadse, Sub-Divisional Officer, Warora, in Ceiling (Revenue) Case No. 5/60 (A-o)/64-65 of Bhishi, vide order dated 7-6-1965" are not borne out by the order which is before me. The Tribunal allowed the revision application and held that the respondent No. 2 was not liable to be evicted from the land in suit. This order is now challenged by the petitioner in this petition.

The contention of the learned counsel for the petitioner is that the Tribunal was not justified in taking the view that the order passed by the Naib-Tahsildar u/s 21 (2) of the Tenancy Act automatically stood effaced by the order passed in the Ceiling Case on 7-6-1965. This contention must be accepted.

It may be noted that some provisions of the Tenancy Act were amended by the provisions of the Second Schedule to the Ceiling Act. The relevant sections to which a reference is necessary are sections 81 and 88 of the Tenancy Act. Section 88, as it stood before 26-1-1962, and which made the provisions of Chapter VII of the Tenancy Act applicable to the land declared surplus under sections 21 and 43, was deleted and section 81 which consisted of 9 sub-sections was replaced by another section with 3 sub-sections. These new provisions are found in the Second Schedule to the Ceiling Act. It may be pointed out that in the 1966 edition of the Tenancy Act, which is before me, the sub-sections (4) and (9) which are reproduced as a part of section 81 on page 5472-A do not appear in this section as it is reproduced in the Second Schedule of the Ceiling Act. Thus it will have to be assumed that section 81 which is now operative consists only of 3 sub-sections and not of 9 sub-sections as is the impression created by the compilation which is available. The effect of putting new section 81 on the statute book was that where any land had been declared to be surplus under any of the provisions of the Tenancy Act, the State Government was deemed to have assumed the management of such land for a public purpose from the date of the declaration. In other words since there is a declaration u/s 21 (2) of the Tenancy Act that some land is surplus land that is in excess of three-family holding as provided by section 21 (1) there is a fiction created that there is an assumption of management of the surplus land for a public purpose by the State Government. Merely because possession is allowed to be continued with the owner of the land it does not mean that management ha3 not been taken over because the fictional provision in section 81 came into operation the very moment the order declaring surplus land passed u/s 21 (2). In the instant case the order declaring surplus land was passed on 30-11-1962, when the present section 81 of the Tenancy Act was in force and the effect, therefore, would be that immediately with effect from 30-11-1962 the management would be deemed to have been taken over by the State Government. It is in pursuance of this management that a lease was granted to the petitioner. If this management has not terminated, then it is impossible to hold that the petitioner who was placed in possession as a lessee in exercise of this right of management was in unlawful or wrongful possession. Indeed, by virtue of the provisions of section 81 of the Tenancy Act he was entitled to be in possession under the provisions of that section itself. Nothing has been pointed out to me either from the provisions of the Ceiling Act or from the provisions of the Tenancy Act from which it can be concluded that because a particular land is not found to be surplus land within the meaning of the Ceiling Act, the order passed u/s 21 (2) of the Tenancy Act ceases to be operative or that the management which is deemed to have been assumed u/s 21 automatically stands terminated. In the absence of any experts provision it will be impossible to hold that an order which is passed u/s 21 (2) automatically stood vacated or that the provisions of section 81 ceased to be operative because the land in respect of which the management was deemed to have been taken was not declared as surplus land for the purpose of the Ceiling Act.

The learned counsel appearing on behalf of the respondent No. 2 contended that after the Ceiling Act came into force while exercising the powers under sections 21 and 22 the Tahsildar must determine the surplus land not with respect to minimum of three-family holdings as provided in sub-section (1) of section 21, but he must determine the surplus with reference to the Ceiling limit in the Ceiling Act. It is not possible to accept this contention. As pointed out above and as is clear from the Second Schedule to the Ceiling Act, some provisions of the Bombay Tenancy Act, 1958, were amended by that Act and yet no amendment was made in section 21 (1) of the Tenancy Act. Accepting the argument of the counsel for the landholder will really mean that section 21 (2) of the Tenancy Act must be read to have been automatically amended by the Legislature as a result of the passing of the Ceiling Act which is not permissible.

If the effect of section 81 of the Tenancy Act was that the land declared as surplus land was deemed to have been taken in the management by the State Government immediately and the order u/s 21 (2; was not automatically vacated by the declaration in the Ceiling Case, the petitioner must be held to have been validly granted a lease by the State Government. If he was validly granted a lease by the State Government, he was entitled to be in possession for the period of lease or at least during the period when the management continued. He was, therefore, entitled to be in possession under the provisions of the Tenancy Act. Since he was entitled to be in possession under the provisions of the Tenancy Act, he was not liable to be evicted forcibly and if it was the petitioner who was entitled to be in possession, the respondent No. 2 had no right to be in possession under any of the provisions of the Tenancy Act. His possession would be unauthorised and unlawful and he had incurred the liability of being evicted u/s 120 of the Tenancy Act. The Sub-Divisional Officer was, therefore, right in holding that the respondent No. 2 was not entitled to be in possession under the provisions of the Tenancy Act and was liable to be evicted. The construction which has been placed by the learned Member of the Tribunal on the order passed in the Ceiling Case that by the passing of that order, order passed u/s 21 (2) of the Tenancy Act immediately got effaced is not justified by any provisions of the Act. That order is liable to be quashed and set aside.

The result, therefore, is that this petition H allowed and the impugned orders passed by the Maharashtra Revenue Tribunal in Revision Application No. Tenancy-B-40/1967 dated 12-9-1967 is quashed and set aside. The petitioner shall be entitled to his costs.