Digambar S/O Pandurang Deshmukh, ... vs Mohan S/O Bhaurao Deshmukh, ...
2003 Latest Caselaw 748 Bom

JUDGMENT

Naresh H. Patil, J.

1. This petition is directed against the judgment and order dated 5th August, 1985 passed by the Maharashtra Revenue Tribunal, Aurangabad in Case No.179/D/84-Osmanabad.

2. The petitioner contends that he had filed an application before the Tahsildar, Osmanabad on 23rd January, 1974 for termination of tenancy and restoration of possession of the suit lands under section 32(2) read with sections 19 and 28 of the Hyderabad Tenancy and Agricultural Lands Act, 1950 (hereinafter referred to as the Act of 1950). The Tahsildar, by an order dated 18th June, 1975, declared the tenant as defaulter and granted relief under section 28 of the Act of 1950 for payment of rent. The said order was challenged before the Deputy Collector, Land Reforms in Appeal, which came to be dismissed on 31st March, 1979. An appeal was preferred to the Maharashtra Revenue Tribunal, Aurangabad (hereinafter referred to as the M.R.T.). By an order dated 4th February, 1980, the M.R.T. remanded the matter back.

3. The Additional Tahsildar, Osmanabad by an order dated 5th October, 1983 rejected the application of the petitioner / landlord filed for seeking possession of the suit property. Being aggrieved by the said order, the petitioner / landlord preferred an appeal to the Deputy Collector, Land Reforms, Osmanabad. By an order dated 24.9.1984, the Deputy Collector, Land Reforms, Osmanabad set aside the order passed by the Additional Tahsildar and directed restoration of the suit property to the petitioner. The original respondent Mohan Bhaurao Deshmukh thereafter preferred revision to the M.R.T. which came to be allowed by judgment and order passed on 5.8.1985.

4. It needs to be clarified here itself that the original landlord / petitioner Digambar died and his legal representatives were brought on record of this court in the year, 2002. The original tenant / respondent no.1 also expired and his legal representatives were brought on record of this court.

5. The original petitioners precise contentions were that he was owner of the suit land admeasuring 1 acre and 9 gunthas in survey no.27 and 1 acre and 9 gunthas in survey no.29, and 2 acres and 56 gunthas in survey no.30, and 9 acres and 9 gunthas in survey no.31. All the lands are situated at village Deolali, taluka Osmanabad. Initially, suit lands were mortgaged by the petitioner with one Vinaykumar Motichand Gandhi, resident of Osmanabad. In proceedings initiated for redemption of mortgage in the civil Court, the petitioner secured possession of the suit properties but, on an objection petition filed by the original respondent / tenant, the civil Court directed handing over possession to the respondent / tenant.

6. It is the case of the petitioner that the respondent / tenant did not pay rent for the period from 1967-68 to 1972-73. Terming the respondent to be defaulter, a notice was issued under section 19 of the Act of 1950 on the plea of non payment of annual rent of Rs.333.20. An application was filed under section 32 of the Act of 1950 to seek possession of the land by the petitioner.

7. The respondent appeared in the matter and raised a plea that he is protected tenant of the suit property and he was in possession of the suit property on the tillers day and by virtue of the provisions of section 38(C) of the Act of 1950, he had become owner of the suit property. Both the parties filed some revenue record in the shape of 7/12 extracts and other documents including receipt of payment of rent by the respondent, which was deposited in the Tahsil office, Osmanabad.

8. Shri Bhapkar, learned Counsel for the petitioner submitted that the M.R.T. while allowing the revision of the respondent, had committed an error which is apparent on the face of the record and the M.R.T. had illegally exercised revisional jurisdiction to disturb the findings of fact reached by the Deputy Collector, Land Reforms. The petitioner had complied with the requirements in law and accordingly, he had issued a notice under section 19 and intimations under section 28 of the Act of 1950. The notice issued under section 19 of the Act of 1950 was, according to the petitioner, refused to be accepted by the respondent. The M.R.T. had remanded the matter and the purpose of remand was to get the witnesses of the petitioner, cross-examined by the respondent as those witnesses could not be cross-examined. The learned Counsel further submitted that there was no certificate issued in favour of the respondent under section 38E of the Act of 1950. He supported the order passed by the Deputy Collector and contended that there is perversity in the order passed by the M.R.T.

9. Shri Bhagat, learned Counsel appearing for the legal representatives of respondent no.1 submitted that the view taken by the M.R.T. was in consonance with the provisions of the Act of 1950. There was patent illegality committed by the Deputy Collector, in allowing the appeal of the petitioner. The learned Counsel led emphasis on the issue of giving intimation under section 28 of the Act of 1950 to the tenant of the default period. In his submission, as the petitioner had failed to establish that such intimations were given to the respondent tenant, the entire proceedings seeking possession of the suit properties got vitiated for want of compliance of the provisions of section 28(1) proviso of the Act of 1950. It was further submitted that the tenant had deposited rent with the Tahsil Office on 28th March, 1970, 28th April, 1971 and 9th May, 1974. His claim is that he did not receive such notice issued by the petitioner. The landlord was reluctant to receive the rent, so he had to deposit the same in Tahsil Office. The allegations of the petitioner is that the respondent deliberately, did not cross-examine the witnesses and the matter proceeded after remand without there being any cross-examination of the witnesses of the petitioner. The learned Counsel for the respondent placed reliance on the Roznama of the lower authorities to demonstrate that after giving number of chances to the petitioner, he failed to secure presence of his witnesses for getting them cross-examined by the respondent / tenant.

10. I have heard the parties at length. With the assistance of both the learned Counsel, I had looked into the Roznama maintained by the authorities below, the rent receipts, the notice issued under section 19 of the Act of 1950 by the petitioner. Notice was issued by the petitioner under Section 19(2)(a)(i) of the Act of 1950, which reads as under:

"19(1)........

(2) The landholder may terminate a tenancy on the ground that the tenant -

(a)(i) has failed to pay in any year, within fifteen days from the day fixed under the Land Revenue Act for the payment of the last instalment of land revenue due for the land concerned in that year; the rent of such land for that year; or"

11. The landlord had claimed rent for the period from 1967-68 to 1972-73. Hence, the provisions of section 28(1) proviso could also come into play. The provisions of section 28(1) proviso are reproduced herein below:

"28. (1) Whereas a tenancy of any land held by a tenant is terminated for non-payment of rent and the landholder filesany proceeding to reject the tenant, the Tahsildar shall call upon the tenant to tender, the land-holder the rent in arrears together with the cost of proceeding, within ninety days from the date of the order, and if the tenant complies with such order, the Tahsildar shall, in lieu of making an order of ejectment pass an order directing that the tenancy has not been terminated, and thereupon the tenant shall hold the land as if the tenancy had not been terminated:

Provided that nothing in this section shall apply to any tenant whose tenancy is terminated for non-payment of rent if he has failed for any three years to pay rent within the period specified in sub-clause (i) of clause (a) of sub-section (2) of section 19 and the landholder has given intimation to the tenant of the default within a period of six months of each default."

12. The petitioner had established that the notice under section 19 of the Act of 1950 was issued in writing to the respondent and in his statement made before the Tahsildar, the respondent had admitted that he had refused to receive the said notice. There is no dispute on the point as to whether notice under section 19 of the Act of 1950 was validly issued. It was sought to be argued on behalf of the petitioner that the witnesses examined by the petitioner had stated that in their presence intimation was given to the respondent. The learned Counsel for the respondent submitted that it was obligatory on the part of the petitioner to give intimation in writing under the provisions of section 28(1) proviso of the Act of 1950. Though, the provisions of section 19 refers to notice to be issued in writing, under the provisions of section 28(1) proviso, there is no mention of issuance of intimation to the respondent also to be in writing. It was sought to be contended by the learned Counsel appearing for the petitioner that giving intimation in writing was not envisaged under section 28(1) proviso. Even, oral intimations are sufficient to comply with the said provisions and accordingly, the petitioner had led evidence in the shape of statements of those three witnesses who had stated that they were party to such giving of intimation to the respondent by the landlord to deposit rent of the past years.

13. On issuance of notice under section 19 of the Act of 1950, the petitioner examined two witnesses namely Dattu and Namdeo on the point of giving of intimation under Section 28(1) proviso of the Act of 1950. The learned Counsel appearing for the respondent placed reliance on a decision in the case of Waman and others vs Shrikishan and another reported in 1993 MCR 43 to support his contention that "intimation" under section 28(1) proviso of the Act of 1950 is different than issuance of notice under section 19 of the Act of 1950. In Wamans case (supra), there was no evidence on behalf of the tenant having received notices by registered post. The landlord came with a plea that intimations were issued under three notices which were sent by registered post to the tenant. The application seeking possession filed by the landlord did not mention that these three notices were given separately in each year within 6 months from the date fixed for payment of the land revenue by the State Government. There was no such averment except an omnibus statement that the applicant had sent the notices through certificate of posting and the receipts were enclosed therewith. Thought it was stated that the receipts were enclosed, no receipts had been enclosed by the landlord. Apart from this evidence, the landlord in that case did not examine himself on oath and he did not state that he had demanded rent in presence of the witnesses. No witness was examined by the landlord who was present at the time when the landlord demanded rent. One witness Dnyaneshwar who was examined by the landlord stated that he was present when the intimation was given by the landlord to the tenant. This Court did not accept this evidence of landlord based on the statement of a witness examined by the landlord to the effect that in his presence the landlord had given intimation to the tenant. Such evidence was found to be no evidence and was perverse. The judgment in Wamans case (supra) does not decide the issue raised by the parties as to whether the intimation to be given by the landlord to the tenant under section 28(1) proviso of the Act of 1950 has to be in writing or not. In this view of the matter, the issue will have to be dealt with in view of the facts of the present case.

14. The learned Counsel appearing for the respondent placed reliance on the decision in the case of Samba Motiram Alone vs Tukaram Mahadeo Chandakar reported in 1980 Mh.L.J. 213 in which it was the view of this Court that the proviso to section 28(1) of the Act of 1950 requires six months notice in writing. The law specifically requires the decision to terminate to be expressly stated in the notice. If the notice does not intimate the intention to terminate the tenancy, the notice is not valid and does not terminate the tenancy entitling the landlord to apply under section 28(1). The notice given by the landlord stated that on failure to pay the rent within the stated time "legal proceedings would be taken" could not imply termination of tenancy and taking proceedings under section 19 read with section 28(1). Hence, the notice was termed to be not valid, it could not terminate the tenancy and the landlord was not entitled to apply under section 28(1) of the Act of 1950.

15. The Deputy Collector while dealing with the case had placed reliance on the point that after passing of the order by the Additional Tahsildar, the respondent failed to deposit rent within a period of 90 days. This, according to the Deputy Collector, was a wilful default on the part of the respondent. The Deputy Collector was of the opinion that there was no certificate issued in favour of the respondent under section 38E, F, G, H of the Act of 1950. The Deputy Collector further observed that as the notice issued by the petitioner was refused by the respondent, he becomes a wilful defaulter. The Deputy Collector further relied upon a judgment of Supreme Court without giving exact citation of the same and concluded his judgment and order by allowing the appeal solely on the ground that the respondent was a wilful defaulter as he did not deposit rent within 90 days as per the order passed by the Naib Tahsildar vide order dt. 12.6.1975.

16. There is non application of mind on the part of the Deputy Collector, Osmanabad in observing that the respondent did not deposit rent within a period of 90 days after passing the order by the Naib Tahsildar on 12.6.1975. After remand of the matter in the first round by the M.R.T., the Additional Tahsildar, Osmanabad had heard the parties again and had rejected the application of the petitioner by an order dated 5th October, 1983 which was filed for seeking possession of the said lands. Reliance placed by the Deputy Collector on the earlier proceedings was an error apparent on the face of record.

17. The Deputy Collector had termed non payment of rent by the respondent as wilful default. The principle of wilful default was brought into effect in the matter governing the landlord tenant relationship. The principle of willful default has no bearing on the facts of the case and is not a germane issue to have been addressed by the Deputy Collector while deciding the application under Section 19 of the Act of 1950. The perusal of the order passed by the Deputy Collector, shows that he had not addressed the issue of giving intimation by landlord to the respondent under section 28(1) proviso. The M.R.T. had addressed the issue and had arrived at a finding that there are neither pleadings nor evidence regarding oral intimations given by the landlord to the tenant and the Deputy Collector had avoided to discuss the point.

18. The learned Counsel for the petitioner had stated that to the extent that there are no pleadings by the landlord on giving intimations to the respondent, the order of M.R.T. is perverse. It is true that in the notice issued under section 19 of the Act of 1950 by the landlord there is reference of giving intimation to the tenant by him. It will have to be seen as to whether the issue of giving intimation to the respondent under section 28(1) proviso was substantiated by the petitioner by leading cogent and convincing evidence in absence of their being admittedly, no written intimation as demanded by the respondent. The statements of witnesses examined by the petitioner were not sufficient to establish the requirement of giving intimation by the petitioner to the respondent. Both the parties have leveled allegations against each other for non cross-examination of the witnesses of the petitioner. It is true that the respondent had filed an application before the Additional Tahsildar, Osmanabad, which is at page 213 of the record and proceedings, praying for initiating action against the petitioner for not making himself available for cross-examination along with his three witnesses. The Roznama dated 1.10.1983 has an endorsement to the effect that several chances were given to the plaintiff to produce the witnesses for cross-examination by the defendant but, the witnesses remained absent. The defendant was willing to cross-examine the witnesses. There is one more application at page 205 of record and proceedings filed by the respondent praying for recalling of the witnesses of the petitioner for cross-examination. Based on these material, the contention of the petitioner that it was the respondent who deliberately avoided to cross-examine the witnesses of the petitioner is not sustainable. One of the main purposes of remanding the matter by M.R.T. to the lower authorities was to get the cross-examination of the witnesses done so as to have some evidence on record to assess the case and to arrive at a proper conclusion. Nothing prevented the petitioner to take steps to get his witnesses cross-examined. I do not find that there was a deliberate act on the part of the respondent in not cross-examining the witnesses of the petitioner and petitioner himself. I do not find any error in the view expressed by the M.R.T. that the Deputy Collector did not address the issue of giving intimation to the respondent under section 28(1) proviso of the Act of 1950 and on the facts and materials placed before the Court, there was no convincing evidence led on behalf of the petitioner that such intimations as desired under the provisions of section 28(1) proviso of the Act of 1950 were given by the landlord to the tenant.

19. The issue of there being no certificate under section 38E of the Act of 1950 in favour of the respondent / tenant will not be relevant for the purpose of consideration of the issue raised by the parties before the lower authorities. Though initially the application was filed for seeking possession under Section 32 and 44, the Deputy Collector and the M.R.T. did not lay any emphasis as regards landlords right to seek possession under section 32 and 44 of the Act of 1950. Before this Court also, there was no serious submission on the issue of seeking possession under sections 32 and 44 of the Act of 1950. Even otherwise, no case is made out by the petitioner to seek possession under Section 32 and 44.

20. The M.R.T. had arrived at a conclusion that the evidence brought on record by the petitioner would not be sufficient to satisfy the requirements under section 28 of the Act of 1950. The M.R.T. had gone through the record of the case and had given reference to some of the relevant documents in the record.

21. Shri Bhapkar, learned Counsel for the petitioner placed reliance on the decision in the case of Pushpabai Raghunath v. Vithal Irban reported in 1972 Mh.L.J. Note No.12 to advance his arguments that in case the tenant fails to deposit payment of arrears of rent within 90 days as directed by the Tahsildar, it was held that the landlord was entitled to possession of the suit property. In case at hand, the Naib Tahsildar in the year, 1975 directed the tenant to deposit arrears of rent but, in the second round after remand by M.R.T., the application seeking possession by the landlord itself was rejected. Hence, the present ruling is not applicable. Relying on decisions of this Court in the cases of Sharfunnisa w/o Abdul Karim vs. Maruti Sakharam Kale reported in 2001 (4) Mh.L.J. 772 and Norman Joseph Ferreira and another vs Arjandas Newandram reported in 2001(2) Mh.L.J. 810, it was contended on behalf of the petitioner that this Court in exercise of its jurisdiction under Article 227 of the Constitution of India, can interfere in the findings of fact in case there is perversity and error of jurisdiction. It was observed by this Court in case of Kishor Waman Darne and others vs. Tarabai Waman Gharat and others reported in 2002(4) Mh.L.J. 22 that when High Court is exercising jurisdiction and powers in view of Article 227 of the Constitution of India the approach would be stricter and wider also. When High Court finds that there has been a defect in procedure and the judgments were defective, illegal, High Court is bound to interfere. In the said case, it was observed that the two Courts below and the M.R.T. had accepted the evidence which a person of reasonable prudence would not have accepted and that acceptance of evidence had resulted in passing of the orders which were perverse.

22. The observations made by the Supreme Court in the case of Essen Deinki vs Rajiv Kumar reported in (2000) 8 SCC 400 can be usefully referred in the facts and circumstances of this case. It was observed by the Supreme Court in Essen Deinkis case thus,-

"2. Generally speaking, exercise of jurisdiction under Article 227 of the Constitution is limited and restrictive in nature. It is so exercised in the normal circumstances for want of jurisdiction, errors of law, perverse findings and gross violation of natural justice, to name a few. It is merely a revisional jurisdiction and does not confer an unlimited authority or prerogative to correct all orders or even wrong decisions made within the limits of the jurisdiction of the courts below. The finding of fact being within the domain of the inferior tribunal, except where it is a perverse recording thereof or not based on any material whatsoever resulting in manifest injustice, interference under the article is not called for.

3. The observations above, however, find affirmance in the decision of this Court in Nibaran Chandra Bag v. Mahendra Nath Ghughu. In Nibaran this Court has been rather categorical in recording that the jurisdiction so conferred is by no means appellate in nature for correcting errors in the decision of the subordinate courts or tribunals but is merely a power of superintendence to be used to keep them within the bounds of their authority. More recently, in Mani Nariman Daruwala v. Phiroz N. Bhatena this Court in a similar vein stated: (SCC pp.149-50, para 18) "In the exercise of this jurisdiction the High Court can set aside or ignore the findings of fact of an inferior court or tribunal if there was no evidence to justify such a conclusion and if no reasonable person could possibly have come to the conclusion which the court or tribunal who (sic) has come or in other words it is a finding which was perverse in law. Except to the limited extent indicated above the High Court has no jurisdiction to interfere with the findings of fact."

5. In this context reference may also be made to a still later decision of this Court in the case of Savita Chemicals (P) Ltd. v. Dyes & Chemical Workers Union wherein this Court in para 19 of the Report observed:(SCC P.166) "Under Article 227 of the Constitution of India, the High Court could not have set aside any finding reached by the lower authorities where two views were possible and unless those findings were found to be patently bad and suffering from clear errors of law."

1 Nibaran Chandra Bag v. Mahendra Nath Ghughu.

2 Mani Nariman Daruwala v. Phiroz N. Bhatena

3 : Savita Chemicals (P) Ltd. v. Dyes & Chemical Workers Union.

23. From perusal of the impugned judgments and orders in this petition, the available record, I do not find it to be a fit case to exercise jurisdiction under Article 227 of the Constitution of India. There is no error apparent on the face of record. No perversity is seen in the impugned judgment and order.

24. In the result, the writ petition fails and it is accordingly, dismissed. Rule is discharged. No order as to costs.