Bombay High Court
| vs Dinkar Matuti Jadhav on 13 December, 2011
Bench: G. S. Godbole
1 jwp1308-90.sxw
ast
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 1308 OF 1990
Nivrutti Gangaram Pawar, since deceased, |
through his heirs and legal representatives : |
1 Prakash Nivrutti Pawar, |
son, aged about 33 yrs. Occ.Labourer. |
2 Smt. Hirabai Nivrutti Pawar, Aged 55, |
W/o. Nivrutti Gangaram Pawar, Occ.Household.|
3 Yeshwant Nivrutti Pawar,
ig |
son, aged about 30 yrs. Occ.Labourer. |
4 Sudam Nivrutti Pawar, |
son, aged about 22 yrs. Occ.Labourer. |
5 Sambhaji Nivrutti Pawar, |
son, aged about 18 yrs. Occ.Labourer. |
All R/o. Village Surali, Tal. Koregaon, |
Dist. Satara. |
|
6 Smt. Ratnamala Suresh Devkar, |
Daughter, aged about 19 yrs. Occ.Household, |
r/o. Village Kulakraj, Tal Man, |
Dist. Satara. |
7 Smt. Indubai Govindrao Kada, |
Daughter, aged about 40 yrs., |
Occu. Household, R/o. Sakari Post. Bibvi, |
Tal. Patan, Dist. Satara. | ... Petitioners.
V/s.
Dinkar Matuti Jadhav, aged about 50 years, |
Occu.: Agriculturist, R/o. Dhaktwadi, |
Post. Kuroli (Siddheshwar), Tal. Khatav, |
Dist. Satara. | ... Respondent.
---
Mr. R. V. Govilkar for the Petitioners.
::: Downloaded on - 09/06/2013 18:00:16 :::
2 jwp1308-90.sxw
Mr. S.G. Karandikar i/by Dilip Bodake for Respondent.
---
CORAM : G.S. GODBOLE, J.
JUDGMENT DICTATED ON: 09th NOVEMBER, 2011 &
16th NOVEMBER, 2011.
JUDGMENT PRONOUNCED ON: 13th DECEMBER, 2011.
ORAL JUDGMENT :
1 Heard Mr. R.V. Govilkar, learned Advocate for the Petitioner
Mr. S.G. Karandikar i/by Dilip Bodake, learned Advocate for the
Respondents.
2. Proceedings for eviction commenced by a certificated landlord
against an excluded tenant under the BT & AL Act, 1948 have remained
pending after having travelled from the Mamlatdar to the SDO, to the
MRT, to the High Court and to the Supreme Court and on remand the
Petition is being decided. As is usual in proceedings between landlord and
tenant under the BT & AL Act, 1948, the litigants are forced to run from
one forum to another forum. Like the game of foot ball, the litigants travel
from one forum to another forum.
3. The present Writ Petition filed under Article 227 of the
Constitution of India seeks to challenge the Judgment and Order dated
3 jwp1308-90.sxw
07.02.1989 passed by the learned Member of the Maharashtra Revenue
Tribunal (MRT) in Revision Application No. 85/1987 filed under the
provisions of Section 76 of the Bombay Tenancy and Agricultural Lands
Act,1948 (hereinafter referred to as "the Tenancy Act", for short) whereby
the Revision Application filed by the landlord -Petitioner was dismissed
and the Judgment and Order dated 10th February, 1987 passed by the
learned S.D.O. Phaltan in Tenancy Appeal No. 13/1985 thereby allowing
the said Appeal and setting aside the Judgment and Order dated 11th
February, 1985 passed by the Tenancy Awal Karkoon in Tenancy Case
No. 53/1984 allowing the said Application for restoration of the
possession under Section 33(B) read with Section 29 of the B.T.& A.L. Act,
1948.
4 As stated in para 1 above, this case has a checkered history
and the parties to the litigation have undergone at least three remands
(including last remand by the Supreme Court) and the litigation which
was commenced in the year 1964 is being decided after a long gap of 47
years by this Court. It is, therefore, necessary to briefly note relevant
statutory provisions and the facts.
5 The Bombay Tenancy and Agricultural Lands Act, 1948 is an
4 jwp1308-90.sxw
Act to amend the law relating to the Tenancy of the Agricultural Lands.
The Act was enacted on account of the fact that due to the disputes
between landlords, land holders and tenants, the cultivation of the estate
had seriously suffered. The Act was also enacted for the purpose of
improving the economic and social conditions of peasants and for ensuring
the full and efficient use of land for agricultural purpose and to regulate
and impose restrictions on the transfer of agricultural land. Section 6 and
6A of the said Act deal with the "economic holding" and "irrigated land"
and read thus :
"6. Economic holding :
(1) For the purpose of this Act, an economic holding shall
be,--
(a) 16 acres of jirayat land, or
(b) 8 acres of seasonally irrigated land, or paddy or rice
land, or
(c) 4 acres of perennially irrigated land.
(2) Where the land held by a person consists of two or
more kinds of land specified in sub-section (1), an economic
holding shall be determined on the basis applicable to the
ceiling area under sub-section (2) of section 5.
[Explanation .-- In calculating an economic holding, warkas
land shall be excluded]
5 jwp1308-90.sxw
6A. Irrigated land
For the purposes of this Act, --
(a) irrigated land, whether perennially or seasonally
irrigated, shall not include land irrigated by sources other than
canals or bundharas within the meaning of the Bombay
Irrigation Act, 1879, or any lift irrigation system constructed
or maintained by the State Government;
(b) seasonally irrigated land shall include alluvial land
and land situated in the bed of a river and seasonally flooded by
the water of such river.".
6.
Section 32 of the said Act provides that on the first day of
April, 1957 (hereinafter referred as "the tillers day") every tenant shall,
[subject to the other provisions of this section and the provisions of] the
next succeeding sections, be deemed to have purchased from his landlord,
free of all encumbrances subsisting thereon on the said day, the land held
by him as tenant if, the conditions enacted in the said Section are
fulfilled. Section 31 confers a right on the landlord to terminate tenancy
for personal cultivation and non-agricultural purpose. Section 29 provides
for procedure of taking possession. Section 32G empowers the Tribunal
(Mamlatdar) to issue notices and determine the price of the land which is
required to be paid by the Tenant to the landlord after such tenant becomes
a deemed purchaser.
6 jwp1308-90.sxw
7 For the purpose of this Petition, the provisions of Sections
33A and 33B sub-sections 1, 3, 5, 6 and 7 are relevant and the same read
thus :
"33A. Definitions:
For the purpose of sections 33B and 33C,--
(i) "certificated landlord" means a person who holds a
certificate issued to him under sub-section (4) of section 88C
[but does not include a landlord within the meaning
Chapter III-AA holding a similar certificate]; and
of
(ii) "excluded tenant" means a tenant of land to
which sections 32 to 32R (both inclusive) do not apply by
virtue of sub-section (1) of Section 88C.
33B. Special right of certificated landlord to terminate
tenancy for personal cultivation.
(1) Notwithstanding anything contained in sections 31,
31A, or 31B a certificated landlord may, after giving notice and
making an application for possession as provided in sub-section
(3), terminate the tenancy of an excluded tenant, if the landlord
bona fide requires such land for cultivating it personally.
(2) The notice may be given and an application made by a
7 jwp1308-90.sxw
certificated landlord under sub-section (3), notwithstanding that
in respect of the same tenancy an application of the landlord
made in accordance with sub-section (2) of section 31 --
(i) is pending before the Mamlatdar or in appeal
before the Collector, or in revision before the Maharashtra
Revenue Tribunal, on the date of the commencement of the
Bombay Tenancy and Agricultural Lands (Amendment) Act,
1960 (hereinafter referred to in this section as "the
commencement date"), or
(ii)
commencement date.
has been rejected by any authority before the
(3) The notice required to be given under sub-section (1)
shall be in writing and shall be served on the tenant --
(a) before the first day of January, 1962 but
(b) if an application under section 88C is undisposed
of an pending on that date then within three months of his
receiving such certificate.
and a copy of the notice shall, at the same time, be sent to the
Mamlatdar. An application for possession of the land shall be
made thereafter under section 29 to the Mamlatdar before the 1st
day of April, 1962, in the case falling under (a) and within three
months of his receiving the certificate in the case falling under
(b).
(4) .............
8 jwp1308-90.sxw
(5) The right of a certificated landlord to terminate a
tenancy under this section shall be subject to the following
conditions, that is to say,-
(a) If any land is left over from a tenancy in respect of
which other land has already been resumed by the landlord or
his predecessor-in-title, on the ground that other land was
required for cultivating it personally under section 31 (or
under any earlier law relating to tenancies then in force), the
tenancy in respect of any land so left over shall not be liable
to be terminated under sub-section (1).
(b)
igThe landlord shall be entitled to terminate a
tenancy and take possession of the land leased but to the
extent only of so such thereof as would result in both the
landlord and the tenant holding thereafter in the total an
equal area for personal cultivation - the area resumed or the
area left with the tenant being a fragment, notwithstanding,
and notwithstanding anything contained in section 31 of the
Bombay Presentation of Fragmentation and Consolidation of
Holdings Act, 1947.
(c) The land leased stands in the Record of Rights
(or in any public record or similar revenue record) on the 1st
day of January, 1952 and thereafter until the commencement
date in the name of the landlord himself, or of any of this
ancestors (but not of any person from whom title is derived
by assignment or Court sale or otherwise) or if the landlord
is a member of a joint family, in the name of a member of
such family.
9 jwp1308-90.sxw
(6) The tenancy of any land left with the tenant after the
termination of the tenancy under this section shall not at any time
afterwards be liable to termination again on the ground that the
landlord bona fide requires that land for personal cultivation.
(7) If, in consequence of the termination of the tenancy
under this section, any part of the land leased is left with the tenant,
the rent shall be apportioned in the prescribed manner in
proportion to the area of the land so left with the tenant.
Section 33C(3) reads thus :
(3) Where the certificated landlord, belonging to any of the
categories specified in sub-section (4) of section 33B, has not
given notice of termination of the tenancy of an excluded tenant
in accordance with sub-section (3) of that section, or has given
such notice but has not made an application thereafter under section
29 for possession as required by the said sub-section (3), such
excluded tenant shall have the right to purchase the land held by
him as tenant within one year from the expiry of the period
specified in sub-section (4) of section 33B:
Provided that where the tenancy is terminated and application
for possession is made in accordance with the provisions of sub-
section (4) of section 33B, the tenant shall, within one year from
the date on which such application is finally decided, be entitled to
purchase the land which he is entitled to retain in possession after
such decision.
10 jwp1308-90.sxw
8 Section 33(C)(3) provides that if a certificated landlord fails to
issue a notice of termination of the tenancy within the stipulated time or
fails to file an Application for eviction under section 33(B) read with
section 29 within the stipulated time, the excluded tenant becomes a
deemed purchaser.
9 Sections 88 (C) and 88 (D) read thus :
Section 88C. : Exemption from certain provisions to lands
leased by persons with the annual income not exceeding Rs.
1,500
(1) [Save as otherwise provided by sections 33-A,33-B
and 33-C, nothing in sections] 32 to 32-R (both inclusive) shall
apply to lands leased by any person if such land does not
exceed an economic holding and the total annual income of
such person including the rent of such land does not exceed
Rs.1,500 :
Provided that the provisions of this sub-section shall not
apply to any person who holds such land as a permanent
tenant or who has leased such land on permanent tenancy to
any other person.
[(2) Every person eligible to the exemption provided
in sub-section (1) shall make an application in the prescribed
11 jwp1308-90.sxw
form to the Mamlatdar within whose jurisdiction all or most
of the pieces of land leased by him are situate within the
prescribed period for a certificate that he is entitled to such
exemption.
(3) On receipt of such application, the Mamlatdar
shall, after giving notice to the tenant or tenants of the land,
hold inquiry and decide whether the land leased by such
person is exempt under sub-section (1) from the provisions
of section 32 to 32-R.
(4) If the Mamlatdar decides that the land is so
exempt, he shall issue a certificate in the prescribed form to
such person.
(5) The decision of the Mamlatdar under sub-section
(3), subject to appeal to the Collector, shall be final.]
88D. Power of Government to withdraw exemption.
(1) Notwithstanding anything contained in sections
88, 88A, 88B and 88C, if the State Government is satisfied,-
(i) in the case of an area referred to clause (b)
of section 88, that the chances of non-agricultural or
industrial development are remote,, or that after the
eviction of tenants from any land in such area, the land
has not been used for a non-agricultural or industrial
purposes.
(ii) that the lands transferred by a Bhoodan
Samiti are not cultivated personally by the transferee or
are alienated by them.
12 jwp1308-90.sxw
(iii) in the case of lands referred to in clause
(b) of section 88B, that the trust is unable to look after
the property or has mismanaged it or that there are
disputes between the trust and the tenants, and
(iv) in the case of lands referred to in section
88C, that the annual income of the person has
exceeded Rs.1,500 or that the total holding of such
person exceeds as economic holding.
the State Government may, by order published in the
prescribed manner, direct that with effect from such date as
may be specified in the order such land or area, as the case
may be, shall cease to be exempted from all or any of the
provisions of this Act from which it was exempted under any
of the sections aforesaid, and any certificate granted under
section 88B or 88C, as the case may be, shall stand revoked.
(2) Where any such land or area ceases to be so
exempted then in the case of a tenancy subsisting on the date
specified in the order issued under sub-section (1), the
landlord shall be entitled to terminate such tenancy under
section 31, within one year from such date and the tenant,
unless his tenancy is so terminated, shall have a right to
purchase the land within one year from the expiry of the
period during which such landlord is entitled to terminate
the tenancy. The provisions of sections 31 to 31D (both
inclusive) and sections 32 to 32R (both inclusive) shall, so far
as may be applicable, apply to such termination of tenancy
13 jwp1308-90.sxw
and to the right of the tenant to purchase the land.]
10 Brief resume of facts which are somewhat complicated is
necessary for understanding the controversy.
(a) It is not disputed that late Nivrutti G. Pawar was the landlord and the
Respondent Dinkar Maruti Jadhav was the tenant in respect of the land
bearing survey No. 619/2 admeasuring 1 acre 5 gunthas and survey No.
619/3 admeasuring 1 acre 4 gunthas situated at village Karadi, Taluka
Khatau, District Satara. It is also not in dispute that including the said two
suit lands which totally admeasure 2 acre 9 gunthas, the total holding of
Respondent is approximately 15 acres. It is also not disputed before me
that the total holding of the Petitioners (original landlord and his heirs)
excluding the aforesaid portion of 2 acres 9 gunthas is only 1 acre 5
gunthas. Thus, this is a situation where instead of having a tenant having
less land under cultivation against a landlord having more land under
cultivation, the land available with the landlord is only 1 acre 5 gunthas
whereas the land available with the Respondent tenant is 15 acres.
b) On 27/1/1961 an order was passed by the concerned Mamalatdar
exercising jurisdiction under Section 88C of the Act in favour of Nivrutti
Pawar. Thus, the satisfaction of the two conditions contemplated by
14 jwp1308-90.sxw
Section 88C namely, having annual income less than Rs. 1500/- and land
of deceased landlord not exceeding an economic holding were duly
fulfilled by the said late Nivrutti Pawar. In fact there was no challenge to
the said certificate and the same has admittedly attained finality, nor were
any proceedings ever initiated under Section 88 D of the Act. Thus, late
Nivrutti Pawar is a certificated landlord and the Respondent was an
excluded tenant within the meaning of Section 88C and 33 B respectively.
The certificate under Section 88C attained finality and within the statutory
prescribed period of 3 months after actually getting the Certificate under
Section 88C Nivruti issued notice of termination of tenancy to the
Respondent on 24/8/1964. Notice was duly served. On 21/9/1964 Nivrutti
filed an application for eviction of Respondent under the provisions of
Section 33(B) r/w. Section 29 of the Act which which was numbered as
Tenancy Case No. 12 of 1964. The case was contested on merits.
c) After being satisfied that Nivrutti fulfilled the requisite conditions
under Section 33 B namely that he had a bonafide need for cultivation and
that even after passing an order of eviction, the total holding of Nivrutti
will not exceed the total holding of the Respondent, Mamalatdar (Tenancy
Aval Karkun), Phaltan passed an order of eviction on 30/6/1966.
d) Aggrieved by this order, the Respondent filed Tenancy Appeal No.
27 of 1966 before the Special Deputy Collector, Tenancy Appeal, Phaltan
15 jwp1308-90.sxw
who allowed the same on 10th February, 1968. Aggrieved by this order,
Nivrutti filed a Revision Application before the MRT under Section 76 of
the Act which was also dismissed on 9th December, 1976. Aggrieved by
those orders, passed by MRT and Special Deputy Collector, Tenancy
Appeal, Phaltan, Nivrutti filed a Writ Application under the Constitution of
India being Special Civil Application No. 969 of 1977 in this Court which
was allowed by Order dated 27/12/1980 by learned Single Judge (M.P.
Kanade, J as he then was). It was held that the notice was duly served and
that the termination of the tenancy was duly proved. By setting aside the
orders under challenge, the Tenancy Appeal No. 27 of 1966 was revived
and the same was remanded back to the Special Deputy Collector (Tenancy
Appeals), Phaltan to dispose of the Appeal in accordance with law within 3
months.
e) After the remand, by order dated 31/3/1982 the said Appeal was
again allowed. During the pendency of the Appeal No. 27 of 1966, after
remand, Nivrutti died on 4/1/1981 and the present Petitioners were brought
on record as heirs of Nivrutti. Aggrieved by this order, heirs of Nivrutti
filed Revision Application No. 3/82 before the MRT.
f) By Judgment and Order dated 30 November, 1983, the learned
Member of the MRT, allowed the Revision Application No. 3/82 and
remanded the case back to the Tahasildar. It is necessary to note that during
16 jwp1308-90.sxw
these proceedings, the Respondent tenant sought to agitate the question
regarding legality and validity of Certificate under Section 88C. However,
that challenge was conclusively repelled by the MRT. Thus, original order
which was in favour of Nivrutti was also set aside.
g) After such remand, the said Tenancy Case No. 12/1964 was
renumbered as Tenancy Case No. 53 of 1984 and the Tenancy Aval Karkun,
Khatav after recording evidence of the parties, allowed the Application
under Section 33B and possession was directed to be given to the present
Petitioners. A finding of fact was recorded that the Petitioners had no other
source of income and that a very small area of land is in his possession.
This order was challenged by the Respondent by filing Tenancy Appeal No.
13 of 1985.
h) By order dated 10th February, 1987, SDO, Phaltan allowed the said
Tenancy Appeal No. 13 of 1985. The Appeal was allowed essentially on
the ground that from an admission in the cross-examination of the
Petitioner Prakash it was clear that his income was around Rs. 200 to 300
per month. Thus, prima facie, on a ground which will be relevant for an
enquiry under Section 88C but may not be relevant for an enquiry under
section 33B, the original Application was dismissed and the Appeal was
allowed. Aggrieved by this order one of the present Petitioners Prakash
Nivrutti Pawar filed Tenancy Revision Application No. 85 of 1987 before
17 jwp1308-90.sxw
the MRT. By Judgment and Order dated 7/2/1989 the learned Member of
MRT, Pune dismissed the Revision Application essentially on 3 grounds
namely, that the Petitioner Prakash has admitted in his oral evidence that he
gets Rs. 200 to 300 per month; that his witness has admitted that Prakash
gets income of Rs. 10 to 15 per day out of his work of hair cutting and that
his annual income was Rs. 4000/-. The other ground was to the effect that
the Petitioner Prakash had no agricultural implements and that he is
residing at the place around 32 to 35 miles away from the suit land. The
third reason was that apart from the Petitioner Prakash, there were other
heirs of deceased Nivrutti and they have not joined in demanding
possession and hence one of the landlord can only ask for possession in
respect of his share only. The learned Member ultimately held that the
Petitioner Prakash has failed to prove his bonafides under section 33B(5)
of the Act.
i) Aggrieved by these orders of the learned SDO and Member, MRT,
present Writ Petition was filed on 21st July, 1989 and was thereafter
numbered as Writ Petition No. 1308 of 1990. Thereafter the learned Single
Judge of this Court (A.M. Khanwilkar, J) heard the Writ Petition and by
Judgment and Order dated 11/9/2003, the Writ Petition was allowed. The
orders impugned were quashed and set aside and the Order of eviction was
restored.
18 jwp1308-90.sxw
j) The Respondent herein filed a Petition for Special Leave to Appeal
(Civil) No. 7361 of 2004. The learned Single Judge of this Court (A.M.
Khanwilkar, J) had relied upon the Judgment of the Supreme Court in the
case of Moreshwar Balkrishna Pandare & ors. vs. Vithal Vyanku Chavan
& ors., 2001(5) SCC 5511 and since the Hon'ble Judges of the Division
Bench of the Supreme Court doubted the correctness of some of the
observations made in Moreshwar Pandare (supra) the case was referred to
a larger bench. The said Appeal filed by the Respondent was numbered as
Civil Appeal No. 2564 of 2005.
k) By Judgment and Order dated 18/1/2008, the Bench of the Hon'ble 3
Judges of the Supreme Court allowed the Appeal partly by giving a limited
clarification of the Judgment in the case of Moreshwar Pandare (supra) and
the matter was remitted to this Court to hear the Writ Petition afresh. This
Judgment is Dinkar Maruti Jadhav v/s. Nivrutti Gangaram Pawar (dead)
by Lrs. and ors. and is reported in (2008) 5 SCC 4892. It is in these
circumstances that the present Petition is being heard.
l) Before proceeding further I deem it proper to reproduce the
Judgment of the Supreme Court which reads thus :
1 2001(5) SCC 551
2 (2008) 5 SCC 489
19 jwp1308-90.sxw
1. A two judge Bench doubted the correctness of some of the
observations made in Moreshwar Balkrishna Pandare & Ors. v.
Vithal Vyanku Chavan and Ors. [2001(5) SCC 551] and therefore
referred the matter to a larger Bench and that is how the matter was
posted before us. The essence of the judgment in Moreshwar's case
(supra) was that once an action in Section 31-B is taken, Section
88C of the Bombay Tenancy and Agricultural Lands Act, 1948 (in
short the 'Act') has no relevance.
2. In the instant case, the original owner had expired.
Undoubtedly, the certificate had been issued to him under Section
88-C with reference to the qualification possessed by the landlord as
on 1st April, 1957. The question which fell for consideration before
the High Court was the effect of the death of the original landlord
who had either applied for issuance of certificate under Section 88-
C, which is pending, or was the certificate already granted in his
favour. In Paragraph 27 of Moreshwar's case (supra) it is held that
once certificate under Section 88-C is issued and the landlord has
issued notice in exercise of the rights under Section 33-B of the Act
and proceeds to file an application for possession under Section 33-
B read with Section 29 of the Act, the relief under Section 88-C gets
exhausted. Moreshwar's case (supra) related to rights under Section
88D of the Act. The question which may arise is that when death has
taken place whether the income or the extent of land of the legal
heirs have to be reckoned.
3. Sections 33-B and 88-C operate in different fields. Bona fide
requirement and personal cultivation concepts are applicable only
under Section 88-C because it refers to Section 33-B. Section 33-B
refers to bona fide requirement and personal cultivation. Section
88D(iv) comes into operation when the annual income exceeds the
limit fixed and/or economic holdings exceeded. There are two
separate stages. The tenant can, in a given case, oppose the
application in terms of Section 33-B on the ground that there is no
bona fide requirement and/or personal cultivation. It deals with
enforcement of the certificate. With the death of the original
landlord, the question of economic holding and the income also
becomes relevant. In Section 33-B income and/or economic holding
concept is not there.
4. The decision in Moreshwar's case (supra) is accordingly
20 jwp1308-90.sxw
clarified. We remit the matter to the High Court to hear the writ
petitions afresh in the light of the position of law delineated above.
5. The appeal is allowed to the aforesaid extent without any
order as to costs.
11. Mr. R.V. Govilkar, appearing for the Petitioners has filed
written submissions when the Petition was decided earlier and he advances
the following submissions.
a) Once a certificate under section 88 C was granted it had attained
finality as excluded tenant had not filed any appeal before the Collector.
b) The certificated landlord had issued notice of termination of tenancy
and made an application under Section 33 B on the ground that the landlord
required the land bonafide for cultivating it personally. It is submitted that
once the certificate is issued under Section 88C and the certificated
landlord has completed the requirement of section 33B by giving notice and
applying for possession within the statutory period of three months after the
receipt of certificate under section 88 C, the right of the landlord crystalises
and the exemption certificate gets exhausted. Therefore, thereafter the
excluded tenant cannot seek revocation. Reliance is placed on
Moreshwar(supra). Therefore in the present case the certificated landlord
has complied with the requirement of section 33 B and it is not open now
for the Respondent to re-agitate the issue with regard to validity of
21 jwp1308-90.sxw
certification under section 88C.
c) As held by the Hon'ble Supreme Court in the case of Shriram
Pasricha vs. Jagannath and others, (1976) 4 SCC 1843, a co-owner is as
much an owner of the entire property as any sole owner of a property is and
therefore it is not necessary to establish that the co-owner is the only owner
of the property. Such a co-owner was entitled to initiate proceedings
without impleading all the other co-owners.
d) The rights of the certificated landlord are inheritable. Reliance is
placed on the Judgment in the case of Maruti Namdeo Gade vs. D.V.
Maval 1977 Mh. L.J. 8484.
e) The Hon'ble Supreme Court has also laid down that the doctrine of
Actio Prosanalis Moritur Cum Persona did not apply to Rent Control Acts.
It is therefore submitted that considering the analogous or similar situation
in respect of the requirement of landlord in respect of Agricultural lands,
the rights of the certificated landlord do survive, in his heirs who become
owners in common. In short considering the position that the rights of the
certificated landlord are inheritable and that the representatives of the dead
man continue with the rights, it is not necessary that merely because all the
heirs have not made any claim, the rights of the certificated landlord get
vitiated or extinct.
3 (1976) 4 SCC 184
4 1977 Mh. L.J. 848
22 jwp1308-90.sxw
(f) What is required to be considered is the bonafide requirement of
heirs or in a given case even of one of them to have the land resumed for
cultivation. In a given case assuming there are two heirs of the certificated
landlord and one of them does not require the land for several reasons;
merely because one of the heirs not requiring the land for bonafide
cultivation, just could not be a ground to deny the bonafide requirement of
a genuine person.
(g) In the present case however this question would not arise as none of
the heirs have any land disentitling them the right. They are all landless
labours. The land is hardly two acres and nine gunthas as against about 15
acres of land holding of the respondent. The provisions of Section 33 (B) 5
(b) relating to the extent of land which will be given to the landlord and to
the tenant will not be applicable in the present case.
(h) It is further submitted that Certificate under Section 88C has attained
finality in all respects and once an application under section 33 B read with
29 is filed, Section 88C and Section 88D get exhausted. In this respect
heavy reliance is placed on the judgment of the Supreme Court in
Moreshwar (supra). It was submitted that as stages under Section 88D (1)
(iv) and 33 B are different, it is not necessary to satisfy the requirement of
Section 88C.
(i) The Hon'ble Supreme Court had categorically observed and held that
23 jwp1308-90.sxw
section 33-B and 88-C operate in different fields. Though in paragraph 3
thereafter it is recorded that bonafide requirement and personal cultivation
concepts are applicable only under Section 88-C, it is obviously a
typographical error in as much as Section 88-C does not refer to bonafide
requirement and personal cultivation and it refers to only the economic
holding and the annual income. The Hon'ble Supreme Court has further
held that there are two different stages.
(j) It is submitted that the further observation of the Hon'ble Supreme
Court that with the death of the original landlord the question of economic
holding and the income also becomes relevant is again not to be read in
isolation or as an independent and exclusive finding as the word income is
to be read down not to be construed as interpreting Section 33-B.
12 On the other hand Mr. Karandikar, learned Advocate appearing
for the Respondent opposed the Petition by advancing following
submissions :
a) That in view of the finding of fact recorded by SDO which has been
affirmed by MRT to the effect that the Petitioner does not have bonafide
need, there is no perversity in this finding and hence there is no ground for
interference under Article 227 wherein such a finding should not be
interfered with.
24 jwp1308-90.sxw
b) The ratio of the Division Bench Judgment in the case of Moreshwar
(supra) is not applicable to the facts of the present case in as much as in
that case question of Section 88 D and applicability of the said section was
under consideration and hence that Judgment does not lay down a binding
precedent so as to be relevant for deciding this case.
c) Dealing with the case of Moreshwar (supra) Mr. Karandikar
submitted that all that has been held by the said Judgment is that an
application under Section 88D(1)(iv) can be filed only till the certificated
landlord files an application under Section 33 B r/w 29 and by inviting my
attention to the paragraph-27 and 32 of the said Judgment Mr. Karandikar
submitted that the ratio of the said Judgment has no application to the facts
of this case. It was alternatively submitted that in any case said Judgment
was explained by the 3 Judge Bench of the Supreme Court in the present
case of Dinkar Jadhav (supra) and hence the same does not constitute a
binding precedent.
d) Regarding the Judgment of the Division Bench in the case of Maruti
Namdev Gade (supra) it was submitted that Judgment resolves the
controversy where the certificated landlord had applied under Section 33B
and during the pendency of the appeal he died and in that context
according to Mr. Karandikar all that has been held by the said Judgment is
that on the death of the landlord proceedings did not automatically abate or
25 jwp1308-90.sxw
come to an end. Mr. Karandikar referred to the observations at page 606 of
the report 78 BLR and contended that the ordinary rule of lis being decided
on the facts existing on the date of initiation thereof is inapplicable in such
a situation. According to Mr. Karandikar therefore the moment Nivrutti
died and Prakash was brought on record as heir, it was obligatory for
Prakash to independently prove the requirement of 88C and hence, it was
obligatory on the part of Prakash to show and prove that his annual income
was less than Rs. 1500 and also prove the second requirement of Section
88 C. Mr. Karandikar frankly submitted that the second requirement could
be fulfilled since the lease land did not exceed economic holdings.
e) It was further submitted that in every case under Section 33 B the
same is based on the personal qualification under Section 88C and therefore
once a certificated landlord dies earlier evidence regarding his
qualifications becomes redundant and the proceedings must abate. It was
alternatively submitted that in any case and independent of the certificate it
must be independently proved that the requirement of Section 88C is
fulfilled. Mr. Karandikar submitted that the right given to the landlord is
personal right. He further submitted that since the right is only personal
right, the heirs will have to prove ingredients of Section 88C.
f) Referring to the Judgment of the Supreme Court in this case in Civil
Appeal No. 2564 of 2008 in the case of Dinkar Jadhav (supra) it was
26 jwp1308-90.sxw
submitted that the only ratio of this Judgment is to the effect that with the
death of the Original landlord the question of economic holdings and the
income will also become relevant. It is further submitted that in the earlier
round of final hearing of this Writ Petition before A.M. Khanwilkar, J,
submissions had been advanced to the effect that economic holdings and
income are relevant factors but that was rejected.
g) By relying on the Judgment of the Supreme Court in Moreshwar
(supra) it was submitted that since this approach of the learned Single
Judge who decided the Writ Petition earlier was not accepted by the
Supreme Court, as a necessary consequence, the Petition has been
remanded for rehearing and, now, the finding of facts about income is
relevant and important. According to Mr. Karandikar since Prakash, the
heir of the original landlord has accepted that his income is much more than
Rs.1500/- per annum, the view taken by the learned SDO and MRT was
unassailable and no interference whatsoever was called for.
h) Mr. Karandikar submitted that what is the total holding of the
Respondent is really irrelevant. It was alternatively submitted that what is
irrigated land is defined in section 6A of the Act and there is nothing on
record to come to a conclusion that all the land with Respondent is
irrigated. It is further submitted that all heirs of deceased Nivrutti had not
been brought on record and it was necessary to consider the income of
27 jwp1308-90.sxw
every heir or legal representative of the deceased Nivrutti Pawar. It was
therefore submitted that since the ratio of the Judgment of the Supreme
Court in Dinkar Jadhav (supra) is clearly to the effect that it explains the
earlier Judgment in Moreshwar (supra) and since the Supreme Court has
used the words "with the death of the original landlord, the question of
economic holding and the income also become relevant"; that is the ratio
of the Judgment and, since, the income is more than Rs. 1500/- and since
the holding of the Respondent is not shown to be more than economic
holding, the Writ Petition deserves to be dismissed.
CONSIDERATION OF SUBMISSION
13. I have carefully considered the rival submission in the light of
the various binding precedents in the case of Maruti Gade (Supra),
Moreshwar Pandare (supra) and Dinkar Jadhav (supra) as also in the
case of Shriram Pasricha (supra). The Division Bench which has decided
the case of Maruti Gade (supra) which was a decision on reference has
held thus :
"It is true, scheme of s. 33B of the Tenancy Act also does not admit
of resumption by any claimant unless he satisfies that - (1) the
claimant needs the land, (2) such need is bona fide, and (3) he is in a
position to personally cultivate it, and (4) his holdings qualify him
to so claim. This provision, being an inroad into protections
afforded to the tenants, made in the interest of those considered to be
28 jwp1308-90.sxw
"the small landholders" cannot sbe availed of, unless the above
qualifications are strictly proved. Ordinarily, with the death of the
landlord during pendency of tenant's appeal or revision against an
order of resumption, the very foundation of the claim gets
extinguished and the tenant has hardly anything further to make out
to succeed as against the heirs. Courts can ill afford to ignore such
vital post-suit developments, and would ordinarily be impelled to
accept the tenant's appeal or revision. But the right of certificated
landlord under s. 88C has been held to be heritable by this Court in
Parvatibai Ramchandra v. Mahadu. Claims under s. 33B, however,
cannot be initiated beyond a specified date and the heirs cannot
institute fresh proceedings where landlord dies after expiry of such
date. Lest such rights of the heirs, becomes illusory, the proceedings
initiated by the deceased before the specified date, have got to be
allowed to be continued by his heirs, enabling them to exercise such
rights. This way alone the legislative intendment can be effectuated.
This necessarily excludes the application of the abatement rule,
ordinarily applicable to personal actions, alluded to in Phool Rani's
case. This explains the provisions enabling the heirs to be brought
on record."
It is further held that :
" Ordinarily rule of lis being decided on the facts as existing on
the date of initiation thereof, is rendered inapplicable to such a
situation. Rather, situations like these attract the powers of the
Courts, whether at original, appellate or revisional stage, to take
notice of the post-suit developments, recognised in the cases of
Lachmeshwar v. Keshwar Lal; Nuri Mian v. Ambica Singh and
Rustomji v. Sheth Purshotamdas. These powers can exercised to do
complete justice between the parties and to mould relief in the light
of subsequent developments which render granting of original relief
impracticable or unsustainable. The quality of the change in such
circumstances during the pendency of litigation is different from the
one discussed in the case of Madhav Vithoba v. Dhondudas. An
order of possession passed by the Mamlatdar in favour of landlord
cannot be sustained, if the landlord dies during the pendency of
proceedings and claim also cannot be rejected or allowed without
enquiry into the holdings and bona fides of the heirs. Though,
therefore, claims under s. 33B also are of personal nature,
29 jwp1308-90.sxw
proceedings do not abate with the death of the claimant but enure for
the benefit of the heirs. Heirs, however, cannot succeed in claiming
resumption unless they prove their qualifications as to bona fides and
holdings, by reference to the date of their being brought on record.
That would be the deemed date of their application. This should be
so without regard to whether the landlord dies before, or after,
succeeding at any stage. In either case, resumption is not permissible
unless the claimant proves his personal qualifications. Question of
defending estate and, benefits arising thereto, under a decree cannot
arise till the litigation goes through all the stages at the choice of the
parties, and order becomes final and immune from any interference.
That the death of such landlord, after such termination, but before
execution, relieves the heirs from proving their qualifications, is
besides the point as such accidents are always implicit in any
litigation. Section 37 of the Act however gives some relief to such
tenants by enabling them to claim restitution when land is not
cultivated personally by such heirs."
14. In Moreshwar Pandare(supra), the ratio of the Judgment is
required to be noted and for that purpose it would be beneficial to
reproduce observations in paragraph- 7, 8, 9, 10, 12(part) which read thus :
7. From a plain reading of the provisions, extracted above, it is
evident that in view of the opening words -- a non-obstante
clause -- Section 88D(1) overrides Sections 88, 88A, 88B and 88C
provided the requirements thereof are satisfied. Thus, it
follows that a certificate granted under sub-section (4) of
Section 88C which is final in view of sub-section (5), can be
revoked under Section 88D(1) if the State Government is satisfied
that in the case of the land referred to in Section 88C, the total
annual income of the person holding the certificate has exceeded
Rs.1,500/- or that the total holding of such person exceeds the
economic holding, as the case may be. It may be noted that for
grant of certificate under Section 88C(4) income of the applicant-
landlord as on April 1, 1957 is the criteria but for the purpose of
revocation of the certificate what is relevant is the income of the
person holding the certificate as on the date of the application for
revocation of the certificate. The words employed in clause(iv),
30 jwp1308-90.sxw
noted above, are, the annual income of the person has
exceeded Rs.1500/-. They imply that even if on April 1, 1957 the
total income was not exceeding Rs.1500/- but subsequently it has
exceeded that amount as on the date of the revocation application,
clause (iv) will be attracted. Therefore, the first contention of
Mr.Bhasme cannot but be rejected.
8. Mr.Bhasme next contended that after the appellants
terminated the tenancy of the respondents by notice in writing
and applied for possession of the land for bonafide personal
cultivation under Section 33B, the respondents could not seek
the revocation of the certificate under Section 88D. Mr.V.B. Joshi,
however, argued that in the absence of any constraint in Section
88D with regard to either the limitation or the stage of any
proceedings, the respondents could solicit revocation of the
certificate and that termination of tenancy would not bar their
application for revocation of the certificate unless the Mamlatdar
has already passed order on the application.
9. The germane question that arises for consideration is :
whether the application of the respondents under Section 88D(1)
(iv), for revocation of the exemption certificate granted under
Section 88C(4), filed after termination of their tenancy by issuing
notice and filing of application for possession of the land by the
appellant, under Section 33B read with Section 29, is
maintainable.
10. It is a common ground that the Act is a beneficial
legislation and it confers valuable rights on the tenants of agricultural
lands. Among others Section 32 provides that on April 1, 1957
(the Tillers Day) every tenant shall be deemed to have purchased
from his landlord free of all encumbrances, subsisting thereon
as on that date, the land held by him as tenant. Such deemed
purchase is subject to the provisions of that Section and Sections
32A to 32R. Side by side the benefits conferred on tenants, a few
rights of the landlords are preserved to terminate tenancy under
Sections 14, 31, 43(1B) and in somewhat truncated form, a right
embodied in Section 88C read with Section 33B.
12. An analysis of the Section, quoted-above, discloses that sub-
section (1) of Section 88C postulates : (a) exemption of the land
31 jwp1308-90.sxw
leased by any person, if such land does not exceed an economic
holding and the total annual income of the person including the rent
of such land does not exceed Rs.1500/-, from the provisions of
Section 32 to 32R (both inclusive); (b) the exemption is subject to
the provisions of Sections 33A, 33B and 33C; and (c) the
exemption does not apply to a person who holds such lands as a
permanent tenant or who has leased such land on permanent tenancy
to any other person from its provisions.
Thereafter after quoting Section 33 B the Supreme Court has observed
thus :
"15. A close reading of the section, quoted above, shows that sub-
section (1) enables a certificated landlord who bona fide requires
the land, covered by the certificate, for cultivating it personally, to
terminate the tenancy of the excluded tenant by giving him
notice and making an application for possession, in the manner
prescribed in sub-suction (3). The said sub-section requires
the certificated landlord to give notice in writing which shall be
served on the excluded tenant on or before January 1, 1962;
however, in a case where the application of such landlord under
Section 88C is not disposed of and pending on that date, he can do so
within three months of his receiving such certificate sending
simultaneously a copy of the notice to the Mamlatdar. The
application for possession of the land has to be made under
Section 29 to the Mamlatdar before April 1, 1962 in the case where
notice was served before April 1, 1962 on the tenant and in a case
where notice was served on him within three months of receiving a
certificate under Section88C, the application can be made for
possession under Section 29 within three months of his receiving
the certificate. The right conferred on a certificated landlord
to terminatethe tenancy of an excluded tenant is an independent
right and is not affected by the provisions of Sections 31, 31A and
31B.
16. It may be noticed here that under the scheme of the Act a
landlords right to terminate the tenancy of an agricultural land is
regulated by the provisions contained in Section 31 which enables
32 jwp1308-90.sxw
a landlord to terminate the tenancy of his tenant of an agricultural
land for personal cultivation or for non-agricultural purposes.
Sections 31A and 31B incorporate conditions subject to which the
tenancy shall stand terminated and enumerate cases in
which tenancy cannot be terminated under Section 31.
17. Sub-section (2) of Section 33B clarifies that even if in
respect of the same tenancy an application of the landlord
under Section 31(2) is pending before the Mamlatdar or in
appeal before the Collector, or in revision before the Maharashtra
Revenue Tribunal on the commencement date*; or if it has been
rejected before the commencement date by any authority, notice
under sub-section (1) may be given.
18. Sub-section (4) which deals with a certificated landlord who is
either a minor, a widow or a person subject to any physical or
mental disability, is not relevant for our purposes.
19. Sub-section (5) enumerates conditions subject to which the
right of the certificated landlord to terminate a tenancy under Section
33B can be exercised.
20. A safeguard is provided for the tenant in sub-section (6)
which says that the tenancy of any land left with the tenant after
the termination of the tenancy under Section 33B shall not at any
time afterwards be liable to termination again on the ground that
the landlord bona fide requires that land for personal cultivation.
21. The import of sub-section (7) is to safeguard the interest
of the tenant by causing proportionate reduction in the rent of the
area of the land left with him in consequence of termination
of tenancy under the said section.
The ultimate ratio of the said Judgment is to be found in paragraphs 25 to
27, 31(part) and 32 which read thus :
"25. From the examination of the provisions of Section 88C and
33 jwp1308-90.sxw
Section 33B, it is incontrovertible that they are enacted to give relief
to landlords having small parcel of land to enable them to
cultivate the land personally and augment their meager
income. These provisions have, therefore, to be so interpreted as to
make them meaningful and not to render them illusory.
26. A combined reading of Sections 33B and 33C discloses that
for purposes of terminating the tenancy of an excluded tenant both
giving of notice and filing of an application for possession, are
necessary. The certificated landlord should take both the steps
either within the dates specified therein or within three months
from the grant of exemption certificate under Section 88C(4). In
the event of the certificated landlord not taking the steps, as noted
above, the deeming provisions of Section 33C will be attracted and
the excluded tenant will be deemed to have purchased the land
free from all encumbrances thereon if such land is cultivated
by him personally. Be it noted that the provisions of Section
33C override the provisions of Section 88C.
27. From the above discussion, it appears to us that where the
landlord has complied with the requirements of Section 33B, by
giving notice and applying for possession within the statutory
period of three months after receipt of certificate under Section
88C, the right of the landlord crystallises and the exemption
certificate gets exhausted, therefore, thereafter the excluded tenant
cannot seek revocation of exemption certificate granted under
Section 88D(1)(iv). The contention that application for revocation
of exemption certificate under Section 88D will be
maintainable till the order is finally passed by the Mamlatdar on
the application for possession of the land, cannot be accepted for
reasons more than one. First, the provisions of Sections 88C, 33B
and 88D(1) cannot be so construed as to lead to a situation where an
excluded tenant by seeking revocation of the exemption certificate
sets at naught the benefit conferred on the certificated landlord
who has complied with the provisions of Sections 33B as it will
frustrate the provisions of Sections 88C as well as 33B for no fault
of the certificated landlord; where, however, the certificated
landlord fails to give notice in writing within the prescribed time or
having thus given notice, omits to make application for possession
of the land under Section 29, within the specified period, the
certificated landlord loses the benefit of the exemption certificate as
34 jwp1308-90.sxw
the right of the excluded tenant to be a deemed purchaser will get
revived under Section 33C. Secondly, when to realise the fruits of
the certificate given under Section 88C(4) the certificated landlord
has taken steps under Section 33B read with Section 29 and has
done what all could be expected of him delay in disposal of such an
application by the Mamlatdar, cannot be allowed to prejudice
the interest of the certificated landlord. Thirdly, a valuable right
of certificated landlord cannot be allowed to be defeated with
reference to an uncertain event i.e. the date of passing of order by
the Mamlatdar on the application under Section 29, because the
period for disposal of the application may vary from a day to a
decade or even more. If two landlords similarly situated apply
for possession before the Mamlatdars in two different areas under
the said provisions or even before the same Mamlatdar and in one
case the order is passed
ig immediately, no application under
Section 88D(1)(iv) of the Act could be entertained against him
but in the other case if the proceedings are kept pending for
some years, for no fault of the certificated landlord, his position
would be vulnerable and the application for revocation of
certificate under Section 88D(1)(iv) would be maintainable against
him. It would not be just and reasonable to adopt such an uncertain
criteria. And fourthly, it would not be in conformity with the scheme
of the said provisions to prescribe a criteria which yields different
consequences in similar cases depending upon the date of passing of
the order by the Mamlatdar. In our view, it will, therefore, be
just and reasonable to hold that after a certificated landlord
has complied with the provisions of Section 33B within the
specified time, the application of the excluded tenant under
Section 88D(1)(iv) for revocation of certificate cannot be entertained.
31. ............ While we agree with the conclusion of the
Division Bench that under the scheme of the said provisions
reasonable limitation has to be read in Section 88D, we are unable to
subscribe to the view that the date of final order of the Mamlatdar
on the application of the certificated landlord should be treated as
limitation after which no application under Section 88D(1)(iv)
could be entertained. In our opinion, the proper date should be
the date on which the certificated landlord makes the application in
terms of Section 33B read with Section 29 for possession of the
land after giving notice to the excluded tenant which would meet the
35 jwp1308-90.sxw
ends of justice and on this aspect we approve the view taken by the
learned Single Judge in the case of Atmaram Onkar Talele (supra).
32. It has been pointed out above that the date of passing of
the final order by the Mamlatdar on an application under Section 29
read with Section 33 of the Act, is an uncertain factor. Having regard
to the various amendments made in the Act by inserting Sections
88C, 88D, 33B and 33C in the Act and prescribing a period of
three months from the date of receipt of certificate under Section
88C within which the certificated landlord may terminate tenancy
of the excluded tenant by issuing a notice and filing of an
application in terms of Sections 33B read with 29(2) of the Act, and
for the afore- mentioned reasons, in our view, it would be just and
appropriate to treat the date of filing of an application after
notice to the excluded tenant in terms of Section 33B read with
Section 29 as the date before which an application for revocation of
exemption certificate under Section 88D(1)(iv) of the Act shall be
maintainable."
15. In so far as the Judgment of the Supreme Court in Dinkar
Jadhav (supra) is concerned, it would be fruitful to reproduce paragraph 2,
3, 4 thereof which read thus :
"2. In the instant case, the original owner had expired.
Undoubtedly, the certificate had been issued to him under Section
88-C with reference to the qualification possessed by the landlord as
on 1st April, 1957. The question which fell for consideration before
the High Court was the effect of the death of the original landlord
who had either applied for issuance of certificate under Section 88-C
which is pending or was the certificate already granted in his favour.
In Paragraph 27 of Moreshwar's case (supra) it is held that once
certificate under Section 88-C is issued and the landlord has issued
notice in exercise of the rights under Section 33-B of the Act and
proceeds to file an application for possession under Section 33-B
read with Section 29 of the Act, the relief under Section 88-C gets
exhausted. Moreshwar's case (supra) related to rights under Section
88D of the Act. The question which may arise is that when death has
taken place whether the income or the extent of land of the legal
36 jwp1308-90.sxw
heirs have to be reckoned.
3. Sections 33-B and 88-C operate in different fields. Bona fide
requirement and personal cultivation concepts are applicable only
under Section 88-C because it refers to Section 33-B. Section 33-B
refers to bona fide requirement and personal cultivation. Section
88D (1) (iv) comes into operation when the annual income exceeds
the limit fixed and/or economic holdings exceeded. There are two
separate stages. The tenant can, in a given case, oppose the
application in terms of Section 33-B on the ground that there is no
bona fide requirement and/or personal cultivation. It deals with
enforcement of the certificate. With the death of the original landlord,
the question of economic holding and the income also becomes
relevant. In Section 33-B income and/or economic holding concept is
not there.
4. The decision in Moreshwar case is accordingly clarified. We
remit the matter to the High Court to hear the writ petition afresh in
the light of the position of law delineated above."
16. In the facts of the present case, admittedly no application under
section 88 D, has ever been filed and it is not necessary to deal with that
aspect. However, merely because that aspect is not required to be decided
it is not possible to accept the submission of Mr. Karandikar that the ratio
of the judgment in the case of Moreshwar (supra) has no application to the
facts of this case. Though Moreshwar (supra) has been explained by the 3
Judges Bench of the Supreme Court in Dinkar Jadhav (supra), the ratio of
the Judgment in the case of Moreshwar (supra) is not diluted. As observed
by the Supreme Court in paragraph-25 in Moreshwar (supra) it is
incontrovertible that sections 88C and 33B are enacted to give relief to
37 jwp1308-90.sxw
landlord having small parcel of land, to enable them to cultivate the land
personally and augment their meager income. I respectfully agree with
this observation as also observation of the Supreme Court that this
provisions have to be so interpreted as to make them gainful and not to
render them illusory.
17. In my opinion, right created by these sections is a peculiar
rights given to the owners of very small pieces of lands and with limited
income and this was a conscious inroad in the rights of the tenant to
become a deemed purchaser. It is however not possible to accept the
submission that the heir of certificated landlord who wants to be
beneficiary of such inroad in the rights of the tenant must establish the strict
requirement of section 88 C and must also have income less than Rs.
1,500/-. If such a view is taken, that would be clearly contrary to the ratio
of Judgment in Moreshwar (supra), which according to me, is not diluted
by the Judgment in the case of Dinkar Jadhav (supra). As held by the
Supreme Court in Dinkar Jadhav (supra) Section 33B and 88C operate in
different fields. The tenant can oppose the proceedings under section 33
only by raising defences available in that section namely by contending
that the landlords (it will include the heir of the landlord) requirement is
not bona fide or that if an order of eviction is passed, the same would result
38 jwp1308-90.sxw
in creation of a situation where holding of the landlord would be more than
the holding of the tenant. The observations of the Supreme Court in
paragraph-3 of the Judgment of Dinkar Jadhav (supra) to the effect that
with the death of the original landlord, the question of economic holding
and the income will also become relevant, will have to be construed in the
context of the earlier statement of law in Moreshwar (supra) as also in
Dinkar Jadhav (supra) that section 33 B and 88 C operate in different
fields. This is clear from the further sentence in the Judgment in the case of
Dinkar Jadhav (supra) which states that in Section 33-B income and/or
economic holding concept is not there.
18. It is therefore not possible to agree with Mr. Karandikar's
submission that the real ratio of the Supreme Court Judgment would mean
that the heir of the certificated landlord has to show that his income is less
than Rs. 1,500/- per annum. Accepting this argument would completely
nullify the legislative intent behind enacting a beneficial provision for a
very small and poor land owner whose interests are sought to be protected
vis- a - vis his tenant holding larger area of land than held by the landlord
which is precisely the case in hand.
19. In my opinion, therefore, legislative intent can be advanced
39 jwp1308-90.sxw
and sub-served by a harmonious construction and harmonious reading of
the binding precedent of the Division Bench and the Supreme Court
referred hereinabove and can be achieved by interpreting the observations
of the Supreme Court in relation to the economic holding and income in
the context of the facts of each case. It is not possible to hold that the
Supreme Court has laid own any preposition of law that the moment a
certificated landlord dies at any stage of proceedings initiated under section
33 B, the heirs must ipso facto again satisfy requirement of section 88 C.
Accepting this submission of Mr. Karandikar would amount to the Court
legislating which exercise is wholly impermissible. Accepting this
submission would also amount to adding words to the Statute which is also
contrary to settled cannons of interpretation of Statute. In my opinion, the
words "economic holding and income of the landlord" will have to be
construed in the context of only the bona fide requirement of the landlord.
20. In view of this, in the facts of the present case even if one
proceeds on the basis of finding of fact reached by the S.D.O. and affirmed
by the Tribunal based on the admission of Prakash to the effect that his
income was around Rs. 200 to 300 p.m., all that can be said is that
maximum income of Prakash at the time of recording his deposition was
Rs. 300/- per month or Rs. 3,600/- per annum. Even this income cannot be
40 jwp1308-90.sxw
held to be a handsome income so as to affect the bona fide needs of
Prakash to have the land resumed, particularly in backdrop of the fact that
the land presently in possession of Prakash is only 1 Acre and 5 Gunthas as
against the total holding of Respondent which is almost 15 Acres. It is not
shown that the need pleaded by Prakash is malafide need. Merely because
Prakash is working as a barber in a place at a distance about 25 to 30 k.m.
from the suit land is also not a factor which would militate against his
bonafide requirement to cultivate his own land. If his holding is meager
holding of 1 Acre 5 gunthas, it is possible to hold that for such a small
holding, it may not be remunerative for him to leave his present vocation of
barber and depend only on the income of a small piece of 1 acre 5 gunthas
land which is in his possession. Thus, in so far as first criteria of bonafide
requirement is concerned, the same has been duly established by Prakash
independently and a finding in that regard will have to be returned in favour
of the Petitioner landlord.
21. This leaves me to decide the next question regarding
equalisation of holding as mandated by sub-section 7 of section 33 B. That
exercise is quite easy in view of the admitted facts. The total holding of the
Respondent including tenanted area of 2 Acres and 9 Gunthas is about 15
Acres. Even if an order of eviction is passed as was rightly passed by the
41 jwp1308-90.sxw
Mamlatdar in this case, the Respondent tenant will still continue to hold 12
Acres 31 gunthas of land whereas even after resumption of the tenanted
land, the total holding of the landlord will be only 3 Acres 14 gunthas.
Hence even on the question of equalisation, the finding has to be in favour
of the Petitioner landlord.
22. In so far as the objection that all the co-landlords were not
brought on record is concerned, in view of the Judgment of the Supreme
Court in Shriram Pasricha (supra), said objection has no merit. Even
otherwise all the heirs of the original landlord have been impleaded as
parties in the Writ Petition.
23. As an outcome of the aforesaid discussion the Writ Petition
deserves to succeed. Hence I pass following order :
(i) The impugned Judgment and Order dated 10/2/1987 passed by
the Sub-Divisional Officer, Phaltan Sub-Division, Phaltan District
Satara in Tenancy Appeal No. 13 of 1985 being Exh. G to the Writ
Petition and the impugned Judgment and Order dated 7/2/1989
passed by the Maharashtra Revenue Tribunal, Pune in Case No.
MRT-NS-IV/2/87 being Exh. H to the Writ Petition are quashed and
42 jwp1308-90.sxw
set aside.
(ii) The Judgment and Order dated 11th February, 1985 passed by
B/Dhakatwadi/12/64 & 29 (Kuroli) remanded T.C. No. 53/84 being
Exh. F to the Writ Petition is restored and consequently an order of
eviction would follow in favour of the Petitioners and against the
Respondent Tenant in respect of tenanted land admeasuring 2 Acres
and 9 Gunthas, comprising of Survey No. 619/2 admeasuring 1
Acre 5 Gunthas and Survey No. 619/3 admeasuring 1 Acre 4 Gunthas
at village Kuroli, Taluka Khatav, District Satara.
(iii) The parties are left to bear their own costs. Rule is is made
absolute in the aforesaid terms with no order as to costs.
(G.S. GODBOLE,J.)
