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1977 Supreme(Bom) 237
IN THE HIGH COURT OF BOMBAY
(S. B. Bhasme J.)
VITHAL BABAJI PATIL - Petitioner.
v.
BHOLANATH S. NAVALKAR, since deceased by his heirs
Shrinath S. Navalkar and others - Respondents.
Spl. C. A. No. 2559 of 1971
Decided on 30-11-1977
Advocates Appeared
For petitioner - G. R. Rege for M/s. R. G. Samant and Co.
For respondents 1- A to 1-C, 2 and 3 - H. B. Shah.
Important Points
Subject
Landlord and Tenant - Agricultural Tenancy
Act Referred
CONSTITUTION OF INDIA : Art.227
Headnote
BOMBAY TENANCY AND AGRICULTURAL LANDS ACT - SECTION 88(2) - INTERPRETATION - SUB-TENANCY - AUTHORISATION - DISTINCTION BETWEEN SUB-TENANTS ON LAND BEFORE AND AFTER AMENDMENT - POLICY OF ACT - PROHIBITION AGAINST SUB-TENANCY - SECTION 27 - APPLICATION.
Fact of the Case:
The petitioner, a sub-tenant, applied for a declaration of lawful sub-tenancy under section 70(b) of the Bombay Tenancy and Agricultural Lands Act. The Tahsildar and Appellate Court granted the declaration, but the Maharashtra Revenue Tribunal set it aside, holding that the sub-tenancy was not authorized in accordance with the terms of the lease.
Finding of the Court:
The court held that the Tribunal erred in its interpretation of section 88(2) of the Tenancy Act. The court found that the words "and such subletting of the land or part thereof is authorized in accordance with the terms of the lease" govern only sub-clause (ii) of section 88(2), and not sub-clause (i). The court held that the petitioner, as a sub-tenant who was on the land before the date of the amendment to section 88, was entitled to the protection of the Tenancy Act, even though there was no express authorization in the lease deed for the creation of the sub-tenancy.
Issues: 1. Whether the Tribunal erred in its interpretation of section 88(2) of the Tenancy Act. 2. Whether the petitioner, as a sub-tenant who was on the land before the date of the amendment to section 88, was entitled to the protection of the Tenancy Act, even though there was no express authorization in the lease deed for the creation of the sub-tenancy.
Ratio Decidendi: The court held that the Tribunal erred in its interpretation of section 88(2) of the Tenancy Act. The court found that the words "and such subletting of the land or part thereof is authorized in accordance with the terms of the lease" govern only sub-clause (ii) of section 88(2), and not sub-clause (i). The court held that the petitioner, as a sub-tenant who was on the land before the date of the amendment to section 88, was entitled to the protection of the Tenancy Act, even though there was no express authorization in the lease deed for the creation of the sub-tenancy.
Final Decision: The court set aside the order of the Tribunal and restored the orders passed by the Tahsildar and Appellate Court, declaring the petitioner to be a lawful sub-tenant.
2. Mr. Rege, who appears for the petitioner, submitted that the case involves an interpretation of the relevant provisions of the Bombay Tenancy and Agricultural Lands Act and the Tribunal has committed an error of law while construing section 88 (2) of the Tenancy Act.
3. Mr. Shah for the respondents submitted that the view taken by the Tribunal about the meaning and scope of the relevant section is correct and may be confirmed.
4. For appreciating these rival contentions, it is necessary to state a few more facts.
5. It appears that the predecessors-in-title of the respondents were the original lessees who claimed some 600 acres and 27 gunthas of land from villages Mira and Bhaindar in Thana District by virtue of a lease deed executed between them and the Secretary of State on behalf of the Government. Under the terms of the lease deed dated 9-2-1905 and effective from 12-2-1889 the lessees were to hold the lands for a period of 999 years. It is not necessary to consider the other terms and conditions of the lease deed.
6. According to the Tribunal the petitioner by virtue of the sub-tenancy will not get any protection of the Tenancy Act because the sub-tenancy is not authorised in accordance with the terms of the lease. As this essential requirement under section 88 (2) is wanting in the present case, the petitioner, as a sub-lessee, has no rights under the Tenancy Act.
7. Before amendment of section 88 by Maharashtra Act 9 of 1961 under the unamended provision contained in section 88, the provisions contained in the Tenancy Act did not apply to lands belonging to or held on lease from Government. Under the amended provision contained in section 88 certain provisions of the Tenancy Act save as otherwise provided in sub-section (2) did apply to lands belonging to or held on lease from the Government. At this stage it will be desirable to reproduce section 88 (2) of the Tenancy Act in its entirety:
"Sec. 88 (2). If any land held on lease from Government or any part thereof-
(i) is held at the commencement of the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1960, by a person under a sub-lease from the lessee and is cultivated personally by such person, or
(ii) is sub-let after the commencement of the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1960, by the lessee to any person for cultivation,
and such subletting of the land or part thereof is authorised in accordance with the terms of the lease, then all the provisions of this Act except sections 32 to 32R (both inclusive) and section 43 shall, notwithstanding any thing contained in such lease, apply to the land, or as the case may be, the part thereof, held under such sub-lease, as if the person holding it under such sub-lease were a tenant within the meaning of section 4 of this Act and the lessee were the landlord :
According to the learned Member of the Tribunal, the words "and such subletting of the land or part thereof is authorised in accordance with the terms of the lease" govern both the sub-clauses of sub-section (2) i. e. sub-clauses (i) and (ii). As the lease deed in question does not contain any authorisation about creation of sub-tenancy,
