DAHYA LAL AND OTHERS versus RASUL MOHAMMED ABDUL RAHIM

THE SUPREME COURT REPORTS

DAHYA LAL AND OTHERS

RASUL MOHAMMED ABDUL RAHIM

~(B. P. SINHA, c. J., P. B. GA.JENDRAGADKAR, K. SuBBA RAo, K. N. WANoHoo, and J.C. SHAH, JJ.)

Agriculturai Lanri--Tenant inducted by mortgagee-Whether could be evicted, or deemed to be tenant under the mottgagor-Tke Bombay Tenancy and Agricultural Land Act, 1948 (Born. 6'1of1948), 88. 4 cl8. (a), (b), (c), 29-0onBtitution of India, Art. 22'1.

In 1891 the ancestor~ of the appellant mortgaged the land to U. who inducted one R. as tenant on the land. The appellant as owners of the equity of redemption applied to the Court constituted under the Bombay Agricultural Debtors Relief Act for adjustment of the debt due under the mortgage and for redemption of the land mortgaged. An award was made on this application by compromise and in execution of the award R was evicted. R applied to the Mahalkari under s. 29 of the Bombay Tenancy and Agri-cultural Lands Act, 1948 for an order restoring possession of the land. The application was rejected and the order was coufirmed by the Deputy Collector and the Revenue Tribunal. In petition Art. 227 of the Constitution, the High Court of Bombay it set aside the order passed by the Tribunal and ordered that possession of the land be restored to the respon-dent and declared that the respondent was entitled to continue in occupation as tenant on the same terms on .which he was tenant of the mortgagee.

Held, that the Act affords protection to all persons who hold agricultural lands as contractual tenants, and subject to the exceptions specified all persons lawfully cul ti-vating lands belonging to others, and it would be undul9 resµ-icting the intention of the Legislature to limit the benefit of the Bombay Tenancy and Agricultural Land Act to persons who derive their authority from the owner, either under contract of . tenancy, or otherwise. All persons other than those mentioned in els. (a), (b) and (c) of s. 4 of the Act who lawfully cultivate land belonging to other

190~ I!Jahya Lal v. . Ra.iul M oharmrtd AblluZ Rahim

B'hahJ.

StJ;FREME COURT REPoRTS [i963]

persons whether their authority is derived directly Crom. the owner of the land or not must be deemed to be tenants of the land.

Crvn., APPELLATE JURISDICTION : Civil.Appeal No. 516 of 1960.

Appeal by special leave from the judgment and ordP.r dated July .19, 1957, of the Bombay High Court.in· Special · Civil Application No. sr,9 of 1957.

. W. S. Barlingay and Ganpat Rai for· the appe· llanta.

0. B. Pai, J.B. DadMhanji, S. N.- Andley,

R.ameshwar _Nath and P. L. J'ohra, for the respon-dents 1-5. ·

R. Gan.apathy Iyer and R.H. Dluihar, for the respondent No. 6 llnd for the State of Maharashtra (Intervener). 1962. May 3. T_he. Judgment of the Court was delivered by

SHAH, J.-Survey No. 126 admeasuring 11 acres and 20 gunthas of Mouje Telod, Distriot :Broach belonged to the ancestors of the appellants. By deed dated July 24, -1891, the owners mortga-ged .the land to .one Umiyashanker with poBSeasion. tihortly after the mortgage, the mortagee inducted one Mohammed Abdul Rahim as tenant on the land.

The appellants as owners of the equity of redem·ption applied ·to the Court constituted under the Bombay . Agricultural Debtors Relief Act, 28 of 1947, for adjustment . of the debt due under the deed dated July 24, 1891, a.nd for redemption. of the land mortgaged. On ·February 19, 1954, an award was made in this application by compromise between the parties decla!ing that Rs. 3,000/· were

3s.c.R.

SUPREME COURT REPoRTS

due to mortgagee under the deed dated July 24, 1891, that " the land in dispute was in the posses-sion 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, 19~4, the respondent t pplied to the Mahalkari of Hansot for an order under s. 29 of the Bombay Tenancy & Agricultural Land Act, 1948, restoring possession of the land. The Mahalkari rejected the applica-tion 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 Art. 227 of the Constitution. The High Court following its earlier judgment in Jaswantrai Tricurnlal, Vyas v. Bai Jiwi set aside the order passed by the Tribunal and ordered that possession of the land be restored to the respondent and de-clared that the respondent was entitled to continue in occupation as tenant on the same terms on which he was tenant of the mortgagee. The mort{lagors have appealed to this Court against that order of the High Court with. special leave.

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 s. 89 of the Bombay Tenancy and Agricultural Lands Aot, 1948, which came into operation on December 28, 1948. By the repealing clause, certain provisions of the Act of 1939 with modifirations were conti-nued. By the Act of 1948, under s. 2(18) as it stood at the material times, tenant was defined

1962 Dahyalcl •• Rasul Jlekarnmt& ..tb1/ul Ha him

Dahy Lal v. Rasul Mohammed Ab4ul Rahim ' Shah J.

4 Stli>REME COURT RE~R~S [I963j . .

as "an agriculturist who holds land on lease and includes person who is deemed to be tenant under the provisions of this Act." s. 14 of the 'Aot providt!s that notwithstanding any· agreement, usage, decree or· order of Court of Jaw, the tenancy of any land held by tenant shall not be determined unless the conditions specified· in that ·section are fulfilled. It was unnecessary' to set oht 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 s. 14: ,it was in execution of the' award made by the Debt Relief Court that the respondent was dispossesse'd. Section 29, by sub-s. ( 2) provides that no fandlord shall obtain possession of any land or dwelling house held by tenant except under an order 'of 'the .Mamlatdar. For obtaining such order he shall make an application in the prescribed form ' x x x x". Section 4 of the Act in so far as it is material provides: "A person lawfully cultivating any land belonging to another persbri shall be deemed to be tenant if such land is not cultivated personally by the ·owner and- if such · person is not (a) member of the ownei.s family, or (b) servant on wages payble in cash or k:ind· lint not in orop share or hired labourer cultivating the land under the personal supervision of· the owner's family, or (c) · mortgagee in possession". Section 4 seeks to· confer the status of tenitnt upon person lawfully cultivating laµd be~onglng to another. .By that provision, certain.persons who are not tenants under the ordina!y law are dellllled ; to .be tenants for purposes of the Act. A, person ~ho is deemed tenant by S. 4 is manifestly in oJass. I a:part from the tenant who holds land.s' on :1ease -f~p~ / the owner .. i:Such person would be invested' with the status of tenant if three conditions .are fulfilled.'..'...: I (a) that he is cultivating land JawfuiJy; (b) that'tJ:le, land belongs to another· person, and. (c),tl:\at ll~ 1s' not w~thin the excepted categories. ·

3 s.c.R.. SUPREME COURT REPORTS

The respondent wa3 on December 28, 1948, undoubt'edly cultivating land which belonged to another persons ; 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 with-in the excepted categories. Prima faoie, he was "deemed tenant" within the meaning of s. 4 of the Act.

But Dr. Barlingay, on behalf of the appel-lants, contended that person can be said to be lawfully cultivating land within the meaning of s. 4 only if he bas derived his right to cultivate directly from the owner of the land, and not from some otlier person who has ·a limited interest, such as mortgagee from the owner. Counsel also contend-ed that the expression "mortgagee in posession" in cl. ( c) of s. 4 includes person claiming deriva-tive right such as tenant of the mortgagee in possession. We are unable to agree with these contentions. The Bombay Tenancy Act of I 839 conferred protection upon tena.nta against eviction, 'converted all subsisting contractual tenancies for less then ten years, restricted the rights of land-lords to obtain possession of land even on surren-der, 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 ces8es and suspension and remission of rents in certain contingencies, and barred eviction of tenants frotn dwelling houses. The Act was found inadequate and was substituted by the Bombay Tenancy and Agricultural Lands Act of Hl48. The latter Act preserves the essential features of the Act of 1939 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 g1owirig tnes on land, itlief ll~aipst terpiinatioJl of tfJ1ancy for non-paJp:i.ent of

DahyaLal v. Rasul M of.ammed .Abdul itahim Shah J.

Dahya Lai v.

· Ra1ul M oli.tJmmuJ 4bdul Rahim·. ShahJ.

rent, special rights and privil"1ges of protected tenantg, vesting of ~states in Government for managment, restrietion on transfer of agri: cnltnral land and the· constitution of Special Tribunals . for deciding disputes relating to valne of land. The two Acts were. mani-festly steps in the ·process of agrarian reform launched with the object of improving the economic condition of the peasants and ensuring full and effi-cient use of land for agricultural purpose. The pro-visions of the Bombay Tenancy and Agricultural land Act, 1948 must be viewed in the light of the social reform envisaged thereby.

The Act 1948, it is undisputed, seeks to encom-pass within its beneficent provisions not only ten-, ants who held land for purpose of cultivation under contracts from the land owners but persons who are deemed to the tenants also. The point in 'contro-versy is whether person claiming the status of 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 . relation based on contract . between the owner of land, and the person in occu-pation of the land; and there can be no tenancy without the consent or, authority of the owner to the occupation of that land. But ~he Act has. by s. 2(18) devised' special definition of tenant and included therein persons who are not contractual tenants. It wouid therefore be difficult to assume in construing s. 4 that the person who claims the status of 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 deemed tenant must be cultivating land '•lawfully": it is not the condition that he must cultivate land with the· -pon~ent 11f or uµder authorit_y deriveq directl;y fi:1mi

3 S.C.R. SUPREME COURT REPORTS

~ -the - . owner. To import such condition it is to re-write the section, and destory its practical utility. person who derives his right to cultivate land from the owners would normally be contractual tenant and he will obviously not be "deemed tenant". Persons such as licencees from the owner may cert-ainly be regarded as falling within the class of per-sons lawfully cultivating land belonging to others, but is 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 land as contractual tenants and subject to the exceptions specified all persons lawful1y cultivating lands belonging to others, and it would be unduly restricting the intention of the Legisla-ture to limit the benefit of its provisions to persons who derive their authority from the owner, ei~her under contract of tenancy, or otherwise. In our view, all persons other than those mentioned in els. (a), (b) and (c) of s. 4 who lawfully cultivate land belonging to other persons whether or not their aut-hority is derived directly from the owner of the land must be deemed tenants of the lands.

Under the Transfer of property Act, the. right of tenant who bas been inducted by 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 statute which has been enacted with the object of the granting protection to per-sons lawfully cultivating agricultural lands. Nor has the contention that the expression "mortgagee in possession'' includes tenant from such mort-gagee any force. mortgagee in possession is ex-cluded from the class of deemed tenants on ground of public policy: to confer that status ·upon mort-gagee in possession would be to invest him with rifhUI incopsiatept wit}l Jiis fiducial"? character. 4

1962 Dahya Lal Vti . Raml M ohamrned Abdul Rahim Shah J,

l'Jahya L•l v. Baaul Mo"4.mm<d 4 lil!ui R?hini Shih J.

transferee of the totality o.f the rights of mortg· age in possession may also be deemed to be mort· gagee in possession. But 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 hy restricting the exclusion to mortga-gees 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 deemed tenant. ·

One more argument about the jurisdiction of the High Court under Art.227 of the constitution to set aside the order of the Bombay Revenue Tribu-nal may be considered. The High Court in setting aside the order of the Revenue Tribunal exercised jurisdiction under Art. 227 of the Constitution, and it was urged by counsel for the appellants that tliis was not fit oase for exercise of that juris-dicti01;1. But the Legislature has expr'essly prohibi-ted by s. 29 (2) of the Act, landlords from obtaining possession of any lands otherwise than under an order of the Mamlatdar. The possession of the disp-uted land was obtained by the appellants in execut-ion of the- award of the debt adjustment Court and without an orqer of the Mamlatdar. .The respon-dent was therefore unlawfully dispossessed of the land, and the Revenue Authorities in refusing to give him assistance illegally refused to exercise jur-isdiction vested in them by law. The qµesiion being

3 S.0.R. SUPREME COURT REPORTS

one qf jurisdiction, the High Court was, in our view, competent to exercise the powers vested in it by Art. 227.

·The appeal therefore fails and is dismissed with costs.

Appeal dismisseil.

B.AM AUTAR

STATE OF U. P. (J. L. KAPUR, K. C. DAS GUPTA and RAGHU:SAR DAYAL, JJ.)

Public Nuisance-Auctioning vegetables in private house-Oarts of seUers kept on public road-Unlawful obstruction, if auctioneers responsible-Noise caused in auctioning-Whether trade injurious to public health and comf ort-Oode of Criminal Procedure, 1898 (Act V of 1898), s. 133.

The appellants carried on the trade of auctioning vege-tables in private house in the Subzimandi quarter. The persons who brought vegetables for sale. kept their carts on the public road where they caused obstruction to traffic. The noise caused by the auctioning caused discomfort to persons living in the locality. An order was passed under s. 133 of the Code of Criminal Procedure restraining auctioning vege-tables in their house.

Held, that the order was not justified under s. 133 of the Code. Merely because the appellants carried on auction-ing in connection with which the carts were brought, they could not be considered to have caused the obstruction. In trade like auctioning which has to be carried on as necessary for the well being of the community some amount of noise has to be borne by the public. Section 133 was not intended to stop such trades merely because of the discomfort caused by the noise.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 79 ofl960.

Appeal by special leave from the judgmtlnt and order dated August 18, 1969, of the Allahabad lli~h Court in CriJDinal Revision No. 947 of 1959. i • • . ,

Dahya Lal v. Rasul Mohammed Abdul Rahim Shah J,

1962 MoyJ.