IMPORTANT POINT
In calculating the ceiling area of the landlord for the purposes of Section 43-1B (1)(a) of the Bombay Tenancy and Agricultural Lands Act, 1948 any land held by him outside the State of Maharashtra has not to be computed.

Headnote:Bombay Tenancy & Agricultural Lands Act, 1948-Section 43-1B(1)(a)-Calculating the ceiling area of the landlord under-Land alleged to be in occupation of the first respondent in the State of Karnataka-Whether can be taken into account in calculating the total land in his actual possession to ascertain if he holds the land equal to the ceiling area for purposes of Section 34-1B(1)(a) of the Act?-High Court holding No -Whether correct? (Yes)- Appeal dismissed.
       Held : The High Court relied on the judgment of a Division Bench of the Bombay High Court in Chhanubhai Karansang s case, (1956) 58 Bom. LR 463. In that case a Division Bench of the Bombay High Court considered the import of the expression "other land" in Section 34(2)(a) of the Act, (since deleted by Maharashtra Act XXVII of 1961). Clause (a) of sub-section (2) of Section 34 prohibited the landlord to terminate the tenancy of a protected tenant if the landlord has been cultivating personally "other land" to an extent of 50 acres or more. However, the right of the landlord to terminate the tenancy of the protected tenant and take possession of the land leased to him was saved when the land under the personal cultivation of the landlord was less than 50 acres and in such a case resumption of land was limited to such area as would be sufficient to make up the area of the land under personal cultivation to the extent of 50 acres. The question was whether the land held by the landlord in Saurashtra State would fall within the meaning of "other land" in that section. It was contended that the land held by the landlord in Saurashtra State did not fall within the meaning of "other land" and that that expression would take in only the land in the Bombay area. Chief Justice Chagla speaking for the Court gave a good number of reason to hold as to why the land held by the landlord in the State of Saurashtra could not be brought within the meaning of "other land" in Section 34(2) and that expression must be restricted to land in the State of Bombay. We are in entire agreement with the conclusion recorded therein. (Para 12)
       In this view of the matter, we find no illegality in the impugned order of the High Court holding that the land alleged to be in occupation of the first respondent in the State of Karnataka cannot be taken into account in calculating the total land in his actual possession to ascertain if he holds the land equal to the ceiling area for purposes of clause (a) of sub-section (1) of Section 43-1B of the Act. In the result, the appeal is dismissed but in the circumstances of the case, the parties are directed to bear their own costs. (Paras 15 & 16)

JUDGMENT

Syed Shah Mohammed Ouadri, J.-This appeal by special leave is filed by the tenant against the order of the High Court of Judicature at Bombay in Writ Petition No. 3205 of 1982 dated January 9/10, 1992.

2. The question that arises in this appeal is: whether in calculating the ceiling area of the landlord for purposes of clause (a) of sub-section (1) of Section 43-1B of the Bombay Tenancy and Agricultural Lands Act 1948, should any land held by him outside the State of Maharashtra be computed?

3. By Maharashtra Act XXXIX of 1964 Chapter III-AA was inserted in the Bombay Tenancy and Agricultural Lands Act, 1948 (for short the Act ) and the words or serving member of the armed forces" were deleted from Section 32-F of the Act. Chapter III-AA contains special provisions for termination of tenancy by landlords who are or have been serving members of the Armed Forces and for purchase of their lands by tenants. Section 43-1B which is one of the main provisions in that chapter confers a right on the landlord to terminate the tenancy of any land and obtain possession from the tenant thereof. We shall set out here sub-section (1) of Section 43-1 B:

43-1B. (1) Notwithstanding anything contained in the foregoing provisions of this Act, but subject to the provisions of this section, it shall be lawful to a landlord at any time after the commencement of the Tenancy and Agricultural Lands Laws (Amendment) Act, 1964, to terminate the tenancy of any land and obtain possession thereof, but-

(a) of so much of such land as will be sufficient to make up the total land in his actual possession equal to the ceiling area; and

(b) where the landlord is a member of a joint family, only to the extent of his share in the land (not exceeding the ceiling area) held by the joint family, provided that, the Mamlatdar on inquiry is satisfied that such share has (regard being had to the area, assessment classification and value of land), been separated by metes and bounds in the same proportion as his share in the entire joint family property and not in a larger proportion.

(2) to (4) xxx xxx xxx

4. From a perusal of sub-section (1) of Section 43-1B it is noticeable that it overrides the provisions of Chapters I to III bill is subject to the provisions of that section. It enables a landlord, at any time after the commencement of the said Act XXXIX of 1964, to terminate the tenancy of any land and obtain possession from the tenant thereof. This right is subject to the following conditions :

(1) the landlord is entitled to take possession of so much of such land only as will be sufficient to make up the total land in his actual possession equal to the ceiling area and where the landlord is a member of a joint family, only to the extent of his share in the land (not exceeding the ceiling area) held by the joint family;

(2) on enquiry the Mamlatdar has to be satisfied that such share of the landlord his been separated by metes and bounds in the same proportion as his share in the entire joint family property and is not in a larger proportion. In recording his satisfaction the Mamlatdar has to take into account the area, assessment, classification and value of the land.

5. Section 43-1A defines "landlord" for purposes of that Chapter to mean a landlord (including a certificated landlord within the meaning of Section 33A) who is or has ceased to be, a serving member of the armed forces; and in relation to the land of a landlord who is dead includes his widow, son, son s son, unmarried daughter, father or mother.

6. A brief account of the facts may be helpful in hitting upon a solution.

7. The first respondent (landlord) was a member of the Armed Forces from 1941 to 1970. On February 27, 1965, he filed Tenancy Case No.1 of 1968 before the Collector, Kolhapur, under Section 43-1B for resumption of the land to the extent of 1/2 share in Survey No.98 and 2/3rd share in Survey No. 99 he

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2001 Supreme(SC) 1379

IMPORTANT POINTIn calculating the ceiling area of the landlord for the purposes of Section 43-1B (1)(a) of the Bombay Tenancy and Agricultural Lands Act, 1948 any land held by him outside the State of Maharashtra has not to be computed.

Cases Referred (3)

IMPORTANT POINT
In calculating the ceiling area of the landlord for the purposes of Section 43-1B (1)(a) of the Bombay Tenancy and Agricultural Lands Act, 1948 any land held by him outside the State of Maharashtra has not to be computed.