PUBLISHED IN http://judis.nic.in/supremecourt/imgst.aspx?filename=40605
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1675 OF 2004
GOVINDA BALA PATIL (D) BY LRS. APPELLANTS
VERSUS
GANPATI RAMCHANDRA NAIKWADE (D) BY LRS. RESPONDENTS
JUDGMENT
CHANDRAMAULI KR. PRASAD,J.
This appeal arises out of a proceeding under Section 32G of the Bombay
Tenancy and Agricultural Lands Act, 1948.
One Govinda Bala Patil, since
deceased, the predecessor-in-interest of the appellants, hereinafter
referred to as “the landlord”, owned land being R.S. No. 51 admeasuring 35
gunthas at Village Pandewadi within Taluka Radhanagari in the District of
Kolhapur.
A proceeding under Section 32G of the Bombay Tenancy and
Agricultural Lands Act, 1948, hereinafter referred to as “the Act”, was initiated by one Rama Dattu Naikwade, predecessor-in-interest of the respondents, for determination of price of the land on the plea that he shall be deemed to have purchased the land.
The Additional Tahsildar &
ALT, Radhanagari, at the first instance, held that the land in question was leased out for growing sugarcane and, accordingly, dropped the proceeding.
However, in appeal, the said order was set aside and the matter ultimately
remitted back to him to hold fresh inquiry.
Accordingly, the Additional
Tahsildar held fresh inquiry and again by its order dated 10th of December,
1981 reiterated its earlier finding and held that the land was leased out
for growing sugarcane and the proceeding was dropped.
The tenant
thereafter preferred appeal which was heard by the Sub-Divisional Officer,
Shahuwadi Division, Kolhapur who allowed the appeal and set aside the order
of the Additional Tahsildar on its finding that the landlord has failed to
prove the specific purpose of the lease.
The landlord then preferred
revision before the Maharashtra Revenue Tribunal, Kolhapur, hereinafter
referred to as “the Tribunal”, which set aside the order of the Sub-
Divisional Officer and restored that of the Additional Tahsildar. While
doing so, the Tribunal held as follows:
“In the instant case as I have stated earlier there is
sufficient evidence on record to show on the basis of entries in
the “E” Patrak that suit land was continuously growing sugarcane
crop from the year 1946 and this particular fact is also
corroborated to some extent by two independent witnesses
examined by the applicant-landlords. So in this case it cannot
be said that no agreement of lease was established between the
parties and in as much as sugarcane crop was grown in the suit
land since the year 1946, there are reasons to believe that the
main purpose of lease was for growing sugarcane crop.”
The tenant assailed the aforesaid order before the High Court in a
writ petition.
The High Court by the impugned order set aside the order of
the Tribunal and held that the Tribunal erred in setting aside the finding
of the Sub-Divisional Officer that the land in question was not leased out
for sugarcane cultivation.
The High Court, in this connection, has
observed as follows:
“12. While toppling the judgment and order passed by the Sub-
Divisional Officer, Shahuwadi, the learned Member of M.R.T. has
dislodged the findings of facts recorded by the said authority.
After examining the judgment and order passed by the S.D.O.
Shahuwadi, this Court comes to the conclusion that the findings
recorded by the S.D.O. Shahuwadi were consistent with the
evidence on record. The approach adopted by him was correct,
proper and legal. When that was so, it was beyond the
jurisdiction of the learned Member of M.R.T. to dislodge it in
the revision. The findings of facts consistent with evidence and
law cannot be dislodged by revisional authority.”
The High Court has further held that Section 43A of the Act will not
govern the field as the lease in question was not given to more than one
person. At this juncture, we consider it appropriate to reproduce the
reasoning of the High Court in this regard:
“11. Section 43A of the Bombay Tenancy Act was
exempting certain
categories of the cultivation of the land and
the persons
cultivating it for growing sugarcane, for making improvement in
the financial and social status of the peasants using the land
for growing sugarcane, fruits or flowers or for the breeding of
livestock.
The words which are used in sub-clause (b) of Section
43A(1) clearly provide that such exemption was available to the
leases of land granted by "any bodies" or "persons" other than
those mentioned in clause (a) for cultivation of sugarcane or
the growing of fruits or flowers or for breeding of livestock.
The words used in sub-clause (b) "any bodies" or "persons"
cannot be made applicable to a single person.
Such an attempt would be throttling the spirit of enacting Section 43A of the Bombay Tenancy Act…………..”
We have heard Dr. Rajeev B. Masodkar, learned counsel for the
appellants whereas respondents are represented by Mr. Kailash Pandey,
Advocate.
Dr. Masodkar contends that the finding recorded by the Tribunal that
the lease was for cultivation of sugarcane has been set aside by the High
Court without assigning any reason and it merely stated “that the finding
recorded by the SDO Shahuwadi is consistent with the evidence on record”
and “the approach adopted by him was correct, proper and legal” and in such
circumstances “it was beyond the jurisdiction” of the Tribunal “to dislodge
it in the revision”. He points out that the Sub-Divisional Officer had
jumped to a finding without assigning any reason and hence it was open for
the Tribunal to upset the same and record its own finding. Mr. Pandey,
however, submits that the Tribunal, which is a court of revision, cannot
act as a court of appeal and, hence, the High Court was right in setting
aside its finding.
We have considered the rival submission and we find substance in the
submission of Dr. Masodkar. True it is that the revisional court
ordinarily does not reappraise the evidence but in case it is found that
the finding recorded by the appellate authority is perverse, nothing
prevents it from upsetting the finding of the appellate authority. If the
appellate authority records a finding without consideration of the relevant
material or on consideration of irrelevant material or the finding arrived
at is such that no person duly instructed in law can reach at that finding,
such finding in law is called perverse and in such a contingency, in our
opinion, it is within the jurisdiction of the revisional court to set aside
the said finding.
Bearing in mind the principles aforesaid, when we consider the facts
of the present case we are of the opinion that the finding recorded by the
Sub-Divisional Officer is patently perverse. The Sub-Divisional Officer
has referred to the statement of the landlord and his witnesses that the
land was leased out for growing sugarcane but rejected the evidence on the
ground that the “landlord and his witnesses have not been able to prove the
purpose of lease beyond reasonable doubt” and ultimately held that “the
landlord has failed to prove the specific purpose of the lease.” While
doing so, the Sub-Divisional Officer, in our opinion, has lost sight of the
basic principle that the nature of the proceeding is decided on the
preponderance of probability and the principle of proof beyond reasonable
doubt does not apply in such proceeding. Further, the Sub-Divisional
Officer, without assigning any reason, has rejected the evidence of the
landlord and his witnesses and jumped to a conclusion without reference to
the evidence. We have quoted the observations of the Tribunal which has
recorded the finding that it was leased out for the purpose of growing
sugarcane. The Tribunal has referred to the evidence of the landlord and
his witnesses and further to the record of rights and from that it has come
to the aforesaid conclusion.
In the face of what we have observed above, the Tribunal was well
within its right in setting aside the finding of the Sub-Divisional Officer
and holding that the land was leased out for the purpose of growing
sugarcane. That being so, we are of the opinion that the High Court erred
in setting aside the finding of the Tribunal. Accordingly, we restore the
finding of the Additional Tahsildar as affirmed by the Tribunal and hold
that the land was leased out for cultivation of sugarcane.
Dr. Masodkar, then submits that the High Court committed a grave
error in coming to the conclusion that Section 43A of the Act would not
govern the field and cannot be made applicable to a single person. He
submits that in law, the plural covers the singular also. Mr. Pandey,
however, submits that the High Court is right in holding that in view of
the use of the expression “any bodies or persons” in sub clause (b) of
Section 43A(1) of the Act, the same cannot be made applicable to a single
person. He points out that in the present case, it is an admitted position
that the land in question was given on lease to a single person. In order
to appreciate the rival submissions, we deem it expedient to reproduce
Section 43A(1)(b) of the Act:
“43A.Some of the provisions not to apply to leases of land
obtained by industrial or commercial undertakings, certain co-
operative societies or for cultivation of sugarcane or fruits or
flowers
(1) The provision of sections 4B, 8, 9, 9A, 9B, 9C, 10, 10A, 14,
16, 17A, 17B, 18, 27, 31 to 31D (both inclusive), 32 to 32R
(both inclusive), 33A, 33B, 33C, 43, 63, 63A, 64 and 65, shall
not apply to-
(a) xxx xxx xxx
(b) leases of land granted to any bodies or persons other than
those mentioned in clause (a) for the cultivation of sugarcane
or the growing of fruits or flowers or for the breeding of
livestock;
(c) xxx xxx xxx”
Section 43A excludes the application of various provisions of the Act
including 33C in respect of “leases” granted to “any bodies or persons”
inter alia for the purpose of cultivation of sugarcane. However, in view
of the plural expression “any bodies” or “persons”, the High Court has
come to the conclusion that it shall cover only those cases in which lease
has been given to more than one person and not singular person. It seems
that the attention of the Court was not drawn to Section 13 of the Bombay
General Clauses Act, 1904 which inter alia provides that words in the
singular shall include the plural and vice versa. Section 13 of the
aforesaid Act reads as follows:
“Section 13 - Gender and number.
In all Bombay Acts or Maharashtra Acts, unless there is anything
repugnant in the subject or context, -
(a) words importing the masculine gender shall be taken to
include females; and
(b) words in the singular shall include the plural, and
vice versa.”
It is relevant here to state that the High Court has not come to the conclusion that
there is anything repugnant in the subject or context so as
to come to the conclusion that the plural will not include the singular.
We have examined the use of the plural word “persons” from that angle and
we do not find that there is anything repugnant in the subject or context so that it may not be read as singular.
It is worth mentioning here that
sub-section (b) of Section 43A(1) of the Act has also used the plural expression “leases” and
if we accept the reasoning of the High Court, the aforesaid provision shall cover only such cases where there is more than one lease.
This, in our opinion, will defeat the very purpose of the Act.
Thus, the impugned judgment of the High Court is vulnerable on both
the counts and, hence, cannot be sustained.
In the result, the appeal is allowed, impugned judgment of the High
Court is set aside and that of the Tribunal is restored. In the facts and
circumstances of the case, there shall be no order as to costs.
………………………………………………………………J
(CHANDRAMAULI
KR. PRASAD)
………..……….………………………………..J
(V.GOPALA GOWDA)
NEW DELHI,
JULY 29, 2013.
-----------------------
13
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1675 OF 2004
GOVINDA BALA PATIL (D) BY LRS. APPELLANTS
VERSUS
GANPATI RAMCHANDRA NAIKWADE (D) BY LRS. RESPONDENTS
JUDGMENT
CHANDRAMAULI KR. PRASAD,J.
This appeal arises out of a proceeding under Section 32G of the Bombay
Tenancy and Agricultural Lands Act, 1948.
One Govinda Bala Patil, since
deceased, the predecessor-in-interest of the appellants, hereinafter
referred to as “the landlord”, owned land being R.S. No. 51 admeasuring 35
gunthas at Village Pandewadi within Taluka Radhanagari in the District of
Kolhapur.
A proceeding under Section 32G of the Bombay Tenancy and
Agricultural Lands Act, 1948, hereinafter referred to as “the Act”, was initiated by one Rama Dattu Naikwade, predecessor-in-interest of the respondents, for determination of price of the land on the plea that he shall be deemed to have purchased the land.
The Additional Tahsildar &
ALT, Radhanagari, at the first instance, held that the land in question was leased out for growing sugarcane and, accordingly, dropped the proceeding.
However, in appeal, the said order was set aside and the matter ultimately
remitted back to him to hold fresh inquiry.
Accordingly, the Additional
Tahsildar held fresh inquiry and again by its order dated 10th of December,
1981 reiterated its earlier finding and held that the land was leased out
for growing sugarcane and the proceeding was dropped.
The tenant
thereafter preferred appeal which was heard by the Sub-Divisional Officer,
Shahuwadi Division, Kolhapur who allowed the appeal and set aside the order
of the Additional Tahsildar on its finding that the landlord has failed to
prove the specific purpose of the lease.
The landlord then preferred
revision before the Maharashtra Revenue Tribunal, Kolhapur, hereinafter
referred to as “the Tribunal”, which set aside the order of the Sub-
Divisional Officer and restored that of the Additional Tahsildar. While
doing so, the Tribunal held as follows:
“In the instant case as I have stated earlier there is
sufficient evidence on record to show on the basis of entries in
the “E” Patrak that suit land was continuously growing sugarcane
crop from the year 1946 and this particular fact is also
corroborated to some extent by two independent witnesses
examined by the applicant-landlords. So in this case it cannot
be said that no agreement of lease was established between the
parties and in as much as sugarcane crop was grown in the suit
land since the year 1946, there are reasons to believe that the
main purpose of lease was for growing sugarcane crop.”
The tenant assailed the aforesaid order before the High Court in a
writ petition.
The High Court by the impugned order set aside the order of
the Tribunal and held that the Tribunal erred in setting aside the finding
of the Sub-Divisional Officer that the land in question was not leased out
for sugarcane cultivation.
The High Court, in this connection, has
observed as follows:
“12. While toppling the judgment and order passed by the Sub-
Divisional Officer, Shahuwadi, the learned Member of M.R.T. has
dislodged the findings of facts recorded by the said authority.
After examining the judgment and order passed by the S.D.O.
Shahuwadi, this Court comes to the conclusion that the findings
recorded by the S.D.O. Shahuwadi were consistent with the
evidence on record. The approach adopted by him was correct,
proper and legal. When that was so, it was beyond the
jurisdiction of the learned Member of M.R.T. to dislodge it in
the revision. The findings of facts consistent with evidence and
law cannot be dislodged by revisional authority.”
The High Court has further held that Section 43A of the Act will not
govern the field as the lease in question was not given to more than one
person. At this juncture, we consider it appropriate to reproduce the
reasoning of the High Court in this regard:
“11. Section 43A of the Bombay Tenancy Act was
exempting certain
categories of the cultivation of the land and
the persons
cultivating it for growing sugarcane, for making improvement in
the financial and social status of the peasants using the land
for growing sugarcane, fruits or flowers or for the breeding of
livestock.
The words which are used in sub-clause (b) of Section
43A(1) clearly provide that such exemption was available to the
leases of land granted by "any bodies" or "persons" other than
those mentioned in clause (a) for cultivation of sugarcane or
the growing of fruits or flowers or for breeding of livestock.
The words used in sub-clause (b) "any bodies" or "persons"
cannot be made applicable to a single person.
Such an attempt would be throttling the spirit of enacting Section 43A of the Bombay Tenancy Act…………..”
We have heard Dr. Rajeev B. Masodkar, learned counsel for the
appellants whereas respondents are represented by Mr. Kailash Pandey,
Advocate.
Dr. Masodkar contends that the finding recorded by the Tribunal that
the lease was for cultivation of sugarcane has been set aside by the High
Court without assigning any reason and it merely stated “that the finding
recorded by the SDO Shahuwadi is consistent with the evidence on record”
and “the approach adopted by him was correct, proper and legal” and in such
circumstances “it was beyond the jurisdiction” of the Tribunal “to dislodge
it in the revision”. He points out that the Sub-Divisional Officer had
jumped to a finding without assigning any reason and hence it was open for
the Tribunal to upset the same and record its own finding. Mr. Pandey,
however, submits that the Tribunal, which is a court of revision, cannot
act as a court of appeal and, hence, the High Court was right in setting
aside its finding.
We have considered the rival submission and we find substance in the
submission of Dr. Masodkar. True it is that the revisional court
ordinarily does not reappraise the evidence but in case it is found that
the finding recorded by the appellate authority is perverse, nothing
prevents it from upsetting the finding of the appellate authority. If the
appellate authority records a finding without consideration of the relevant
material or on consideration of irrelevant material or the finding arrived
at is such that no person duly instructed in law can reach at that finding,
such finding in law is called perverse and in such a contingency, in our
opinion, it is within the jurisdiction of the revisional court to set aside
the said finding.
Bearing in mind the principles aforesaid, when we consider the facts
of the present case we are of the opinion that the finding recorded by the
Sub-Divisional Officer is patently perverse. The Sub-Divisional Officer
has referred to the statement of the landlord and his witnesses that the
land was leased out for growing sugarcane but rejected the evidence on the
ground that the “landlord and his witnesses have not been able to prove the
purpose of lease beyond reasonable doubt” and ultimately held that “the
landlord has failed to prove the specific purpose of the lease.” While
doing so, the Sub-Divisional Officer, in our opinion, has lost sight of the
basic principle that the nature of the proceeding is decided on the
preponderance of probability and the principle of proof beyond reasonable
doubt does not apply in such proceeding. Further, the Sub-Divisional
Officer, without assigning any reason, has rejected the evidence of the
landlord and his witnesses and jumped to a conclusion without reference to
the evidence. We have quoted the observations of the Tribunal which has
recorded the finding that it was leased out for the purpose of growing
sugarcane. The Tribunal has referred to the evidence of the landlord and
his witnesses and further to the record of rights and from that it has come
to the aforesaid conclusion.
In the face of what we have observed above, the Tribunal was well
within its right in setting aside the finding of the Sub-Divisional Officer
and holding that the land was leased out for the purpose of growing
sugarcane. That being so, we are of the opinion that the High Court erred
in setting aside the finding of the Tribunal. Accordingly, we restore the
finding of the Additional Tahsildar as affirmed by the Tribunal and hold
that the land was leased out for cultivation of sugarcane.
Dr. Masodkar, then submits that the High Court committed a grave
error in coming to the conclusion that Section 43A of the Act would not
govern the field and cannot be made applicable to a single person. He
submits that in law, the plural covers the singular also. Mr. Pandey,
however, submits that the High Court is right in holding that in view of
the use of the expression “any bodies or persons” in sub clause (b) of
Section 43A(1) of the Act, the same cannot be made applicable to a single
person. He points out that in the present case, it is an admitted position
that the land in question was given on lease to a single person. In order
to appreciate the rival submissions, we deem it expedient to reproduce
Section 43A(1)(b) of the Act:
“43A.Some of the provisions not to apply to leases of land
obtained by industrial or commercial undertakings, certain co-
operative societies or for cultivation of sugarcane or fruits or
flowers
(1) The provision of sections 4B, 8, 9, 9A, 9B, 9C, 10, 10A, 14,
16, 17A, 17B, 18, 27, 31 to 31D (both inclusive), 32 to 32R
(both inclusive), 33A, 33B, 33C, 43, 63, 63A, 64 and 65, shall
not apply to-
(a) xxx xxx xxx
(b) leases of land granted to any bodies or persons other than
those mentioned in clause (a) for the cultivation of sugarcane
or the growing of fruits or flowers or for the breeding of
livestock;
(c) xxx xxx xxx”
Section 43A excludes the application of various provisions of the Act
including 33C in respect of “leases” granted to “any bodies or persons”
inter alia for the purpose of cultivation of sugarcane. However, in view
of the plural expression “any bodies” or “persons”, the High Court has
come to the conclusion that it shall cover only those cases in which lease
has been given to more than one person and not singular person. It seems
that the attention of the Court was not drawn to Section 13 of the Bombay
General Clauses Act, 1904 which inter alia provides that words in the
singular shall include the plural and vice versa. Section 13 of the
aforesaid Act reads as follows:
“Section 13 - Gender and number.
In all Bombay Acts or Maharashtra Acts, unless there is anything
repugnant in the subject or context, -
(a) words importing the masculine gender shall be taken to
include females; and
(b) words in the singular shall include the plural, and
vice versa.”
It is relevant here to state that the High Court has not come to the conclusion that
there is anything repugnant in the subject or context so as
to come to the conclusion that the plural will not include the singular.
We have examined the use of the plural word “persons” from that angle and
we do not find that there is anything repugnant in the subject or context so that it may not be read as singular.
It is worth mentioning here that
sub-section (b) of Section 43A(1) of the Act has also used the plural expression “leases” and
if we accept the reasoning of the High Court, the aforesaid provision shall cover only such cases where there is more than one lease.
This, in our opinion, will defeat the very purpose of the Act.
Thus, the impugned judgment of the High Court is vulnerable on both
the counts and, hence, cannot be sustained.
In the result, the appeal is allowed, impugned judgment of the High
Court is set aside and that of the Tribunal is restored. In the facts and
circumstances of the case, there shall be no order as to costs.
………………………………………………………………J
(CHANDRAMAULI
KR. PRASAD)
………..……….………………………………..J
(V.GOPALA GOWDA)
NEW DELHI,
JULY 29, 2013.
-----------------------
13
