Ramchandra Gajanan Bhoi Since ... vs Udaysing Abasaheb Mohite And Anr.
2004 Latest Caselaw 622 Bom

JUDGMENT

A.M. Khanwilkar, J.

1. Both these petitions can be disposed of by common Judgment and I proceed to do so by this Judgment.

2. This is the third round of proceedings before the High Court between the same parlies. For deciding the point in issue, it will not be necessary for us to burden the judgment with all the events. Briefly stated, land bearing Survey No. 105/1 situated at Phaltan, admeasuring 17 acres and 32 gunthas was held by the predecessor of the petitioners as tenant since prior to the tillers day i.e. 1st August, 1957. It is common ground that the said land originally stood in the name of Ganpatrao Laxmanrao Mohite as the Manager of the joint family of the respondents herein. Mutation entry also reinforces the position that the joint family comprising of Ganpatrao and his Uncle Rangrao, were owners of the suit land. It is not in dispute that the landlords did not initiate proceedings for possession either under Section 29 or Section 31 of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as 'the Act') prior to 1st April, 1957. The said Ganpatrao died on 22nd February, 1961. It is only thereafter the respondents in the respective Writ Petitions claimed that partition was effected between the family members and the portion of suit lands came to their respective shares. It is on that basis, on September 30, 1961 application under Section 88-C of the Act came to be filed by the respondents in the respective writ petitions, for issuance of exemption certificates. It is relevant to note that before such applications were filed by the respondents in the respective writ petitions, application for same relief was filed by their predecessor said Ganpatrao, in his capacity as landlord against the original tenant, who had already died. That application was therefore rejected, against which, Ganpatrao had filed appeal, in which, it is stated that order came to be passed granting liberty to the respondents herein to pursue their remedy for issuance of exemption certificates under Section 88-C of the Act. It is not necessary for us to go into the controversy as to whether the second set of applications filed by respondents herein was permissible in law, because the matter can be decided on the basis of admitted facts and the settled legal position, on merits. The application as filed by the respondent has been eventually decided in their favour by the Authorities on the reasoning that the lands in question came to the share of respective respondents on 6th September, 1964 and the eligibility of the landlords for getting exemption certificate under Section 88-C of the Act will have to be decided with reference to that date. The correctness of this view is put in issue in these petitions. In substance, the grievance of the petitioners is that on the tillers day i.e. 1st April, 1957 the predecessor of the petitioners being in lawful cultivation, became deemed purchaser as admittedly, no application for possession of the suit land, either under Section 29 or under Section 31 was instituted by the landlord before that date. Moreover, even the provisions of Section 32F of the Act had no application to the facts on hand. Besides, it is common ground that the land stood in the name of Ganpatrao as Manager of the joint family on 1st April, 1957 and he expired on 22nd February, 1961, only whereafter, the respondents claim to have got separate share in the suit lands. In other words, the respondents in the respective writ petitions claim to have acquired ownership in respect of the land which has come to their share, after the tillers day. These are the admitted facts which can be culled out from the record and which are not disputed by the Counsel appearing for the respondents.

3. In view of the aforesaid facts, it is argued on behalf of the petitioners that the authorities below had no option but to dismiss the applications filed by the respondents in the respective writ petitions because on 1st April, 1957, the predecessor of the petitioners became deemed purchaser. Moreover, the acquisition of ownership subsequent to the tillers' day, of the respective respondents, cannot be the basis for maintaining application under Section 88-C. To buttress this proposition, reliance is placed on the decision of the Apex Court in the case of Ganpati Bayaji Patil v. Shridhar Babaji Vibhute (D) by LRs. and Ors. and also on the exposition of the Full Bench of our High Court in the case of Anna Balgonda Patil v. Vasant Raghunath Kulkami, 1962 (Vol. LXIV) B.L.R. 591.

4. The Apex Court in the case of Ganpati Bayaji Patil (supra), has taken the view that the Scheme of the Act is that the tenant becomes deemed purchaser of the land on 1st April, 1957. Any subsequent change in the ownership of the land after 1st April, 1957 will not invest any right on the subsequent owner to get the benefit of Section 88-C of the Act. Unless the person who is the landlord on 1st April, 1957 makes an application under Section 88-C, the rights of the tenant cannot be defeated. In the present case, the application proceeds on the assertion that the respondents in the respective writ petitions acquired independent right with regard to the share which has been allotted to them after 1st April, 1957. If it is so, that subsequent acquisition of ownership cannot be the basis for maintaining application under Section 88-C; whereas, in the fact situation of the present case, the eligibility of the landlords will have to be reckoned as on 1st April, 1957. On that date, Ganpatrao held the land as Manager of the joint family. It is not in dispute that the suit land admeasures 17 acres and 32 gunthas, as has been recorded consistently by all the authorities below. That fact is not questioned, nor is in issue before this Court. If it is so, the holding of the joint family on 1st April, 1957, being in excess of the economic holding, the applications as filed by the respondents in respective writ petitions, were bound to be rejected. Section 6 of the Act prescribes the economic holding. It provides that insofar as "Jirayat land" is concerned, the economic holding is 16 acres. In the present case, it is seen that one block of land admeasuring 13 acres was seasonal block, which means it was seasonally irrigated land. In case of "seasonally irrigated land", the economic holding is prescribed only as 8 acres. Assuming that the entire suit land was Jirayat land, the economic holding could not, and ought not to have exceeded 16 acres. But in the present case, since the land exceeded that limit, being 17 acres and 32 gunthas, the question of exemption under Section 88-C of the Act, in favour of the respondents, does not arise. Needless to observe that for succeeding in getting exemption certificate under Section 88-C of the Act, the landlord has to satisfy the twin requirement of economic holding and of total annual income. As the landlords failed to satisfy the requirement of economic holding, it is unnecessary to examine the matter any further.

5. Viewed in this perspective, the decisions of the Courts below, though concurrent, need not detain me from deciding the matter in favour of the petitioners by setting aside those decisions and holding that the applications filed on behalf of the respondents in the respective petitions for issuance of exemption certificates under Section 88-C of the Act, ought to be rejected.

6. It is seen from the record that the proceedings under Section 32G of the Act have already concluded in favour of the tenant and purchase price has been determined, but the consequential steps to be taken on the basis of the said decision were kept in abeyance because of the pendency of proceedings under Section 88-C of the Act. That can be discerned from the decision of our High Court in the earlier round in Judgment dated 27th September, 1982 in Special Civil Application Nos. 2209 of 1978 and 2210 of 1978. It is brought to my notice that in fact the tenant has deposited the purchase price in terms of the said order and Certificate under Section 32M of the Act, has also been issued in his favour. In the circumstances, for the view now taken on the applications under Section 88-C in this Judgment, the said Certificate issued in favour of the tenant under Section 32M would come into effect forthwith.

7. Petitions allowed on the above terms. No order as to costs. Rule made absolute.