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Monday, July 29, 2013

Section 32G of the Bombay Tenancy and Agricultural Lands Act, 1948= 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. = 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…………..”= INTERPRETATION OF WORD " PERSONS " = “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.

           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.
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