KALANKA DEVI SANSTIIAN v. MAHARASHTRA REVENUE TRIBUNAL, NAGPUR & Ors.

Shri Kesheoraj Deo Sansthan. Karania v. Bapuraa Deoba &: Ors. [1964] :l.fah L.J. 589, 593, relied upon. (ii) Neither proyisions of Bcrar Regulation of Agricultural Leases Act, 1951 nor of the Bombay Public Trustc; Act could be of any assistance to the appellants. In the present case it 'A'as common ground that the Sansthan was a private trust and y..·as not governed by the provisions of the Bombay Public Trusts Act. The manager of the Wahiwatdar of the SanSlhan could not, therefore, fall within the definition of the word "trustee" as given in s. 2(18 l of the Act. [940 F-FJ /1hwardas v. Maharashtra Revenue Tribunal <l Ors., [19681 3 S.C.R.

#441. refeinod to. E F G H KALANXA v. REVENUE TRIBUNAL (Grover, J.) 937 A (iii) There was no fOrce in the contention that the provisions of Act which had the effect of debarring the appellant from ciaiming posses sioP. for personal cultivation were violative of Articles 14 and 19(1)(f) di the Constitution. The Act is rendered grounds in view of the provisions of Article 31(A) of the Constitution. 1941 A-Bl immune from attack on B Shri Mahadw Palkaji Kolhe Yavatmal v. The State of Bombay, [19621 1 S.C.R. 733 and Sri Ram Ram Narain Medhi v. The State of Bombay, [1959] Supp. 1 $,C.R. 489, referred to. CIVIL APPELLj\TB JURISDICTION : Civil Appeal No. 862 of

#1966. c Appeal by special foave from the order dated April 8, 1965 of the Bombay High Court, Nagpur Bench in Letters Patent Appeal No. 40 of 1965. W. S. Bar/ingay, R. Mahalingier and Ganpat Rai, for appellant. M. S. K. Sastriand S. P. Nayar, for respondents Nos. 2, 3 and B

#5. M. Veerappa, for respondent No. 4. The Judgment 6f the Court was delivered by E F G H Grover, J. This is an appeal by special leave from a judg ment of the High Court of Bombay dismissing a petition under Art. 227 of the Constitution which had been filed by appellant Sans than. . The appellant is a private religious Tmst which is managed by Laxman Anant Mulay who is described as a Wahiwatdar (Manager). The main source of income for performing several acts including the daily worship of the family deity ( Shri Kalanka Devi) is stated to be derived from endowed agricultural land. Respondent No. 4 is the tenant in field survey No. 94 with an area of 30 acres 8 gunthas in Mouza Malrajura, district Akola. On Jamuary 30, 1961 a notice was served on behalf of the appellant on respondent No. 4 under the provisions of s. 38 of the Bombay Tenancy and · Agricultural Lands (Vidarbha Region) Act, 1958, hereinafter called the Act. It was mention ed in the notice that an earlier notice under s. 9(i) of the Berar Regulation of Agricultural Leases Act had been served in the year 1955 that the Sansthan required the aforesaid field for personal cultivation and, therefore, he should give up possession. Those proceedings were Pending but a notice under s. 38 of the Act was given to tenninate the tenancy without prejudice to the pre vious proceedings; As the notice· was not complied with an application was filed on behalf of the appellant under s. 36 of the Act for possession which was opposed by respondent No. 4 . . , \138 SUPREME COGRT REPORTS [19 70] I S.C.R. T)ie Naib Tehsildar rejected the application on the ground that the Sansthan was not a land-holder who could cultivate the land the Sub-Divisional personally. His order was confirmed by Officer and by the Maharashtra Revenue Tribunal to whom appeals were taken. The appellant ultimately tiled a petition under Art. 227 of the Constitution before the High Court which, as stated before, was dismissed. The only point which has to be determined is whether Sansthan could take advantage of the provisions contained in the Act by which possession can be claimed from the tenant on the ground that it is required for personal cultivation. Section 2(12) of the Act defines the words "to cultivate personally" in following manner : S. 2 ( 12) "to cultivate p.~rsonally" means to culti vate on one's O\\'n account- (i) by one's own labour, or (ii) by the labour of any member of one's family, or (iii) under the personal supervision of one-self or of any member of one's family by hired labour or by servants on wages payable in cash or i<ind but not in crop share; Explanation /.-A widow or a minor or a person who is subject to any physical or mental disability, or a serving member of the armed forces shall be deemed to cultivate the land personally if it is cultivated by her or his servant> or by hired labourer; Explanation II . ........... " According to s. 2 < 22) the "physinl or mental disability" means physical or mental disability by reason of which the person sub ject to such disability is incapable of cuitivating lan<l bv personal Jabour or supervision. The word "tenant .. is defined bys. 2(32) as meaning a person "lw holds land on lea~' inclu<ling a person who is dccme<l to be a tenant un<ler ss. 6, 7 or 8 and a person who is a protected lessee or occupancy It is provided that the wor<l ":an<llord" shall he construed accordin~ly. Sec tion 3R deals with termination of tenancv bv landlord for culti vatin.c land personally. It says that after ~iving notice to a tc· nant in writing at any time on or before February 15. 1961 and makine an :tpplication for possession under s. 36 on or before March- 31. 1961 the landlor<l may terminate the tenancy other tha;n an occupancy tenancy if the landlord bona fidr requires the land for cultivating it personally. Sub-s. (3) gives the condi tions subject to which the tenancy can be terminated. tenant. A c D F G H A B c D E F G H KALANKA v. REVENUE TRIBUNAL (Grover, J.) 939 Now it is well known that when property is given absolutely for the worship of an idol it vests in the idol itself as a juristic person. As pointed out in Mukherjee's Hindu Law of Reiigious and Charitable Trust at pp. 142-43, this view is in accordance with the Hindu ideas and has been uniformly accepted in a long series of judicial decisions. The idol is capable of holding pro "It has a juridical perty in the same way as a natural person. Its interests are status with the power of suing and being sued. attended to· by the person who has the deity in his charge and who is in law its manager with all the powers which would, in such circumstances, 6n analogy, be given to the manager of the estate of an infant heir". The question, however, is whether the idol is capable of cultivating the land personally. The argu ment raised on behalf of the appellant is that under Explanation I ins. 2(12) ,of the Act a person who is subject to any physical or mental disability shall be deemed to cultivate the land per sonally if it is cultivated by the servants or by hired labourer. In other words an idol or a Sansthan that would fall within the meaning of the word "person" can well be regarded to be sub ject to a physical or mental disability and land can be cultivated It is urged that in Explanation (I) the idol would be in the same position as a minor and it .can · certainly cultivate the land persona!ly within the meaning. of s. 2(12). It is difficult to accept the suggestion (I) that the case of th'e appellant would fall within Explanation ins. 2(12). Physical or mental disability as defined bys. 2(22) lays emphasis on the words "personal labour or supervision". As has been rightly pointed out in Shri Kesheora; Deo Sansthan, Karan;; v. Bapurao Deoba & Ors.(') in which an identioally . similar point came up for consideration, the dominating idea of anything done personally or in person is that the thing must be done by the person himself and not by or through some one else. In our opinion the following passage is that judgment at p. 593 explains the whole l)osition correctly : · on its behalf by servants or hired labourers. "It should thus appear that the legislative intent clearly is that in order to claim a cultivation as a per sonal cultivation there must be established a direct nexus between the person who makes such a claim, and the agricultural processes or activities carried on the land. In other words, all the agricultural operations, though al!owed to be done through hired labour or workers mnst be under the direct supervision, control, or management of the landlord. It is in that sense fbat the words "personal supervision" must be understood. In other words, the requirement of personal supervision under the third category of personal cultivation provid- (1) [1964] Mah. L.J. 589, 593. 940 SUPREME COURT REPORTS ( 1970] 1 S.C.R. cd for in the definition docs not admit of an intern¥- diary between the landlord and the labourer,~ who can act as agent of the landlord for supervising the opera- tions of the agricultural worker. If that is not possi- ble in the case of one landlord, we do not sec how it is possible in the case of another landlord merely because the landlord in the latter case is a juristic person". In other words the intention is that the cultivation of the concerned must be by natural persons and not by legal persons. the appellant. In view of this definition It has next been contended that in the provision of the Berar Regulation of Agricultural Leases Act, 1951 publiG trusts ot charitab!.: nature were included among those who could claim possession from a tenant on the ground of petsonal cultivation. It is not possible to sec how the provisions of a repealed · statute which was no longer in force, after the enactment of the Act, could be of any avail The decision in Jshwardas v. Maharashtra Revenue Tribunal & Ors.(') has also In that case been referred to hy the counsel for the appellant. it was said that under s. 2 ( 18) of the Bombay Public Trusts Act a trustee has been defined as meaning a person in whom either alone or in association wi!ll other persons the trust property is vested and includes a manager. properties of the trusts vest ·in the managing trustee and he is the landlord under cl. 32 of s. 2 of the Act. As he is the land lord, he can ask for a surrender from the tenant of the lands of the trust "to cultivate personality". common ground that th.~ Sansthan is a private trust and is not governed by the provisions of the Bombay Public Trusts Act. The manager of the Wahiwatdar of the Sansthan cannot, there fore, fall within the definition of the word "trustee" as given in s. 2(18) of that Act. lshwardas, case ( 1 the court refrained from expressing any opinion on the question whether a manager or a Shebait of the properties of an idol or the manager of the Sansthan can or cannot apply for sur render by a tenant of lands for personal cultivation. The distinction between a manager or a Shebait of an idol and a trustee where a trust has been created is well recognised. The properties of tho trust in law vest in the trustee whereas in the case of an idol or a Sansthan they do not vest in the manager or tl!e Shebait. It is the deity or the Sansthan which owns and holds the properties. It is only the possession and the management which vest in the manager. It may be mentioned that in In the present case ) - A B c D E F G It has lastly been contended that the relevant provisions of the Act which have the effect of debarring the appellant claiming possession for personal cultivation violate the provisions H (I) [196813S.C.ll.441. KALANKA v. REVENUE TRIBUNAL (Grover, J.) 941 A B It is urged that of Arts. 14 and 19(l)(f) of the Constitution. discrimination is writ large between animate and juristic persons who fall within the definition of the word "person". Such a con tention, however, cannot be entertained in view of Art. 3 lA of the Constitution. The Act had received the assent .of the Presi dent and is rendered immune from attack or challenge on In ground of violation of Articles 14 or 19 of the Constitution. Shri Mahadeo Paikaji Ko/he Yavatmal v. The State of Bom ) the constitutional validity of the Act itself was canvassed bay ( 1 but the challenge failed. Similarly the validity of the Bombay Tenancy and Agricultural Lands Amendment Act, 1956 as applied to Viqatbha Region and Kutch Area was upheld Sri Ram Ram Narain Medhi v. The State of Bombay('). The appeal consequently fails and it is dismissed with costs. R.K.P.S. Appeal dismissed. (I) [1962] I S.C.R. 733. (2) [1959] Supp. 1 S.C.R. 489. Ll~Sup./69-22-5-70-GIPF.