Bombay High Court
Smt. Savitagauri Jagannath Modi, ... vs Shri. Rajendra Ganesh Kadam And ... on 1 March, 2016
Bench: M.S. Sonak
dss j-wp-394-12.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 394 OF 2012
Smt. Savitagauri J. Modi and ors. .. Petitioners
vs.
Rajendra G. Kadam and ors. .. Respondents
Mr. K.K. Malpathak for the Petitioners.
Ms M.S. Bane, B-Panel Counsel for Respondent No.8.
CORAM : M. S. SONAK, J.
Date of Reserving the Judgment : 17 February 2016.
Date of Pronouncing the Judgment : 01 March 2016.
JUDGMENT :-
1] The challenge in this petition is to the judgment and order
dated 19 October 2011 made by the Maharashtra Revenue Tribunal
(MRT) in exercise of revisional jurisdiction conferred upon it by
Section 76 of the Maharashtra Tenancy and Agricultural Lands Act,
1948 (Tenancy Act) .
2] By the aforesaid the impugned judgment and order, the MRT
has interfered with and set aside the judgments and orders dated 12
February 2009 and 3 September 2009 made by the Tahsildar and
Sub-Divisional Officer (SDO), who had held that the Petitioners-
landlords were entitled to the recovery of possession of the suit
property from the Respondents-tenants, inter alia, on the grounds of
default in payment of rent and commission of act, which was
destructive or permanently injurious to the land.
dss j-wp-394-12.doc
3] The Petitioners are the owners of the suit property, which was
used to grow Coconuts, Betel Nuts, Mangoes etc. In 1943 or
thereabouts, the said property was leased by means of 'Naukarnama'
to the predecessor-in-tile of the Respondents-tenants, subject to
certain terms, conditions and covenants. It is the case of the
Petitioners-landlords that since the suit property was leased for
growing of fruits in terms of Section 43-A of the Tenancy Act, certain
provisions of the Tenancy Act as specified in sub-section (1) thereof,
do not apply in respect of the lease of the said property. On such
basis, it is the case of the Petitioners-landlords that the provisions
relating to 'deemed purchase' are inapplicable and further, the
Petitioners-landlords are entitled to terminate the lease inter alia,
upon the grounds set out in Section 14 of the Tenancy Act.
4] Accordingly, the Petitioners-landlords, by address of notice
dated 17 May 2008 and upon grounds set out in the said notice
terminated the lease and instituted Tenancy Case No. 4 of 2008
before before the Tahsildar, Alibaug, seeking the recovery of
possession of the said property from the Respondents-tenants. The
Tahsildar, Alibaug by his judgment and order dated 12 February
2009 upheld the claim of the Petitioners-landlords and directed the
Respondents-tenants to restore the possession of the said property to
the Petitioner-landlords.
dss j-wp-394-12.doc
5] The Respondents-tenants, thereupon appealed against the
judgment and order dated 12 February 2009 made by the Tahsildar,
Alibaug to the SDO, Alibaug vide Tenancy Appeal No. 11 of 2009.
The SDO, Alibaug by his judgment and order dated 3 September
2009, dismissed the appeal, thereby confirming the judgment and
order dated 12 February 2009 made by the Tahsildar, Alibaug.
6] The Respondents-tenants, thereafter instituted Tenancy
Revision No. 412/B/2009 before the MRT, Mumbai, which, by the
impugned judgment and order dated 19 October 2011, has set side
the judgments and orders dated 12 February 2009 and 3 September
2009 made by the Tahsildar and SDO, consequently dismissing the
Petitioners-landlords' Tenancy Case No. 4 of 2008, seeking recovery
of possession of the said property from the Respondents-tenants.
Hence, the present petition by the Petitioners-landlords.
7] Despite service, neither the Respondents-tenants nor any
advocate on their behalf, have appeared in the matter. Considering
that Petitioner No.1 was reported to be over 100 years of age, the
hearing in this petition was expedited by the orders dated 26 July
2012, 11 March 2013 and 18 April 2015. The matter was appearing
on the board and there is really no justification for the Respondents-
tenants or their advocate from not appearing in the matter.
dss j-wp-394-12.doc
8] Mr. K.K. Malpathak, learned counsel for the Petitioners, has
made the following submissions in support of the petition:
A] In order to hold that the provisions contained in Section
43-A of the Tenancy Act are inapplicable to the lease in
respect of said property, the MRT has placed reliance upon the
decision of this Court in case of Rama Dattu Naikwade Vs.
Govinda Bala Patil 1. However, the said decision has been
reversed by the Supreme Court on 29 July 2013 and
consequently the view taken by the MRT is in direct conflict
with the decision of the Supreme Court made on 29 July
2013;
B] The MRT has grossly misconstrued the scope and import
of the provisions contained in Section 25 of the Tenancy Act.
In the present case, the defaults in payment of rent committed
by the Respondents-tenants had extended beyond three years
and therefore, the provisions of Section 25(2) of the Tenancy
Act and not Section 25(1) of the Tenancy Act were attracted.
He submitted that in terms of decision of the Hon'ble Supreme
Court in case of Hari S. Dhanavate (dead) By Lrs. Vs. A.N.
Patil Tukarane (Dead) by Lrs. And anr. 2, there was no
1 2003(3) Mh.L.J. 157
2 1995 Suppl (4) SCC 616
dss j-wp-394-12.doc
question of afford of opportunity to clear the arrears of rent
within three months as provided in the proviso to Section
25(1) of the Tenancy Act, in a situation where the default in
payment of rent pertains to three years or more; and
C] That there was overwhelming material on record to
establish the Respondents-tenants had indulged in acts
destructive or permanently injurious to the land, in particular
the Respondents-tenants had destroyed the extensive
plantation of suru trees necessary for prevention of erosion.
That apart, the Respondents-tenants had even destroyed
structures on the land. In such circumstances, there was no
justification for the MRT, in exercise of its revisional
jurisdiction to interfere with concurrent findings of fact. It was
submitted that the MRT has transgressed the limited scope of
revisional jurisdiction under Section 76 of the Tenancy Act by
purporting to reassess the material on record and disturb the
concurrent findings of fact, even though, such findings of fact
were well borne from the record and suffer from no perversity
whatsoever.
dss j-wp-394-12.doc
9] Mr. Malpathak's contention in the context of reversal of the
decision in case of Rama D. Naikwade (supra), upon which the MRT
has placed reliance, is well founded. In this case, both the Tahsildar
as well as the SDO had held that the provisions of Section 43-A of
the Tenancy Act apply, since, the suit property was leased for
growing of fruits. Section 43-A of the Tenancy Act provides that the
provision of Sections 4B, 8, 9, 9A, 9B, 9C, 10, 10A, 14, 16, 17A, 17B,
18, 27, 31, to 31D (both inclusive), 32 to 32R (both inclusive), 33A,
33B, 33C,43, 63, 63A, 64 and 65 shall not apply to the leases of land
granted to any bodies or other persons other than those mentioned
in clause (a) for the cultivation of sugarcane or the growing of fruits
or flowers or for the breeding of livestock. The MRT, relying upon the
decision of this Court in case of Rama D. Naikwade (supra), has held
that sub-clause(b) of Section 43-A(1) cannot be applicable in case of
lease of land to a single person, but will apply only in case of lease of
land to any bodies or persons. In case, the provisions of Section 43-A
of the Tenancy Act were to be inapplicable, then, the application
made by the Petitioners-landlords seeking recovery of possession
from the Respondent-tenants would obviously not be maintainable.
10] However, the Hon'ble Supreme Court, in case of Govinda B.
Patil (D) by Lrs. Vs. Ganpati R. Naikwade (D) by Lrs. 3, has
3 2013 (9) SCALE 649
dss j-wp-394-12.doc
specifically reversed the decision of this Court in case of Rama D.
Naikwade (supra). The relevant observations in the context of
interpretation of Section 43-A (1) of the Tenancy Act contained in
paragraphs 9,10 and 11 read thus:
"9. Dr. Masodkar, then submits that the High Court committed
a grave error in coming to the conclusion that Section 43A of the
Act would not govern the field and cannot be made applicable to
a single person. He submits that in law, the plural covers the
singular also. Mr. Pandey, however, submits that the High Court
is right in holding that in view of the use of the expression "any
bodies or persons" in sub clause (b) of Section 43A(1) of the Act,
the same cannot be made applicable to a single person. He points
out that in the present case, it is an admitted position that the
land in question was given on lease to a single person. In order to
appreciate the rival submissions, we deem it expedient to
reproduce Section 43A(1)(b) of the Act:
"43A. Some of the provisions not to apply to leases of
land obtained by industrial or commercial undertakings,
certain co-operative societies or for cultivation of
sugarcane or fruits or flowers (1) The provision of sections
4B, 8,9, 9A, 9B, 9C, 10, 10A, 14, 16, 17A, 17B, 18, 27, 31
to 31D (both inclusive), 32 to 32R (both inclusive), 33A,
33B, 33C, 43, 63, 63A, 64 and 65, shall not apply to-
(a) xxx xxx xxx
(b) leases of land granted to any bodies or persons other
than those mentioned in clause (a) for the cultivation of
sugarcane or the growing of fruits or flowers or for the
breeding of livestock;
(c) xxx xxx xxx"
10. Section 43A excludes the application of various provisions
of the Act including 33C in respect of "leases" granted to "any
bodies or persons" inter alia for the purpose of cultivation of
sugarcane. However, in view of the plural expression "any bodies"
or "persons", the High Court has come to the conclusion that it
shall cover only those cases in which lease has been given to more
dss j-wp-394-12.doc
than one person and not singular person. It seems that the
attention of the Court was not drawn to Section 13 of
the
Bombay General Clauses Act, 1904 which inter alia provides that
words in the singular shall include the plural and vice versa.
Section 13 of the aforesaid Act reads as follows:
"Section 13 - Gender and number.
In all Bombay Acts or Maharashtra Acts, unless there is
anything repugnant in the subject or context, -
(a) words importing the masculine gender shall be
taken to include females; and
(b) words in the singular shall include the plural, and
vice versa."
11. It is relevant here to state that the High Court has not
come to the conclusion that there is anything repugnant in the
subject or context so as to come to the conclusion that the plural
will not include the singular. We have examined the use of the
plural word "persons" from that angle and we do not find that
there is anything repugnant in the subject or context so that it
may not be read as singular. It is worth mentioning here that
sub-section (b) of Section 43A(1) of the Act has also used the
plural expression "leases" and if we accept the reasoning of the
High Court, the aforesaid provision shall cover only such cases
where there is more than one lease. This, in our opinion, will
defeat the very purpose of the Act."
(emphasis supplied)
11] From the aforesaid, it is quite clear that the MRT has grossly
erred in its interpretation of the provisions contained in Section 43-
A(1)(b) of the Tenancy Act. The view taken by the MRT that the
provisions contained in Section 43-A(1)(b) of the Tenancy Act are
inapplicable to the lease of said property is therefore, unsustainable
and is required to be set aside.
dss j-wp-394-12.doc
12] Similarly, the MRT has also not properly interpreted the scope
and import of the Section 25 of the Tenancy Act in the context of
default in the payment of rent committed by the Respondents-
tenants. The material on record, indeed indicates that the
Respondents-tenants have defaulted in the payment of rents for the
period in excess of three years. In fact, it is the case of the
Petitioners-landlords that the defaults extend from the year 1982
onwards. In these circumstances, the MRT was obviously not right in
applying the provisions of Section 25(1) of the Tenancy Act to the
facts and circumstances of the present case. Rather, the MRT was
required to consider the matter in the light of provisions contained in
Section 25(2) of the tenancy Act. The distinction between the two
provisions is apparent. Section 25(1) enables a Mamlatdar to grant
relief against termination of tenancy for non-payment of rent by
facilitating payment of rent on call to the tenant to pay it directly to
the landlord or in court with costs of the proceedings within 15 days
from the date of the order, and on failure of which to suffer an
ejectment. In contrast, Section 25(2) carves out an exception that if
the tenant is in arrears on his failure to pay rent for any three years,
the landlord has to give an intimation to that effect to the tenant
within a period of 3 months of each default, and then ejectment
must follow as a consequence and the remedial provision under
dss j-wp-394-12.doc
Section 25(1) cannot come to the rescue of the tenant*.
13] However, in order that the Petitioners succeed on the basis of
provisions contained in Section 25(2) of the Tenancy Act, it was
necessary for the Petitioners to both plead as well as proove that they
have given intimation to the Respondents-tenants with regard to the
defaults, within a period of three months on each default. If the
pleadings are perused, there are no clear averments to the effect that
necessary intimation was given to the Respondents-tenants with
regard to defaults within a period of three months on each default.
There is also no evidence to this effect on record. Mr. Malpathak
indeed submitted that there are some civil suits instituted by the
Petitioners-landlords against the Respondents-tenants, in which
there is some material in this regard. However, it is impermissible to
place reliance upon such material, if any, in the present proceedings.
Besides, it is settled position in law that the evidence which is
beyond the pleadings, cannot be taken into consideration. Therefore,
even though, the MRT has erred in failing to note the distinction
between the provisions contained in Section 25(1) and 25(2) of the
Tenancy Act, on the basis of material on record, the Petitioners
cannot be said to have established the factum of intimation to the
Respondents-tenants within period of three months on each default.
* Haril S. Dhanavate (D) by Lrs. Vs. A.N. Patil Tukarane (D) by Lrs. - 1995 Supp (4) SCC 616
dss j-wp-394-12.doc
Accordingly, the conclusion recorded by the MRT on the aspect of
denial of eviction on the ground of default in the payment of rents
need not be interfered with, even though, the reasoning of the MRT
in this regard cannot be approved.
14] There is however, merit in the submission of Mr. Malpathak
that there was overwhelming material on record to establish that the
Respondents-tenants had indeed indulged in acts destructive or
permanently injurious to the land. Further, the MRT, in the exercise
of its limited revisional jurisdiction, ought not to have interfered with
the concurrent findings of facts recorded by the Tahsildar and the
SDO upon this aspect. At the outset, it must be noted that under
Section 76 of the Tenancy Act, the revisional jurisdiction can be
exercised where the order of the Collector (SDO) is contrary to the
law; or where the Collector (SDO) has failed to determine some
material issue of law; or where there is a substantial defect in
following the procedure provided by the Tenancy Act, which has
resulted in miscarriage of justice. If the impugned judgment and
order made by the MRT is perused, it is quite clear that the MRT has
not interfered with the orders made by the Tahsildar and SDO upon
any of the grounds permissible for interference under Section 76 of
the Tenancy Act. The MRT has re-assessed the material on record, as
if, it were exercising some appellate jurisdiction. This is clearly
dss j-wp-394-12.doc
impermissible and the impugned judgment and order made by the
MRT is liable to be set aside on this ground as well.
15] The MRT, has no doubt, stated in its impugned judgment and
order that the findings of fact recorded by the Tahsildar and the SDO
are based upon inadmissible evidence. In this regard, the MRT has
referred to the affidavits filed by Savitagauri Modi and other
witnesses, but observed that such affidavits could not have been
taken into consideration, without actual examination of the
witnesses in the Court and the afford of opportunity of cross-
examination to the Respondents-tenants. On the aspect of afford of
opportunity of cross-examination, the MRT would certainly have
been right, provided, the Respondent-tenants, had appeared in the
proceedings and were thereafter denied such opportunity. The
record in the present case bears out that there was valid service upon
the Respondents-tenants. In fact, even the MRT, in paragraph '6' of
the impugned judgment and order dated 19 October 2011, has
categorically returned a finding that there was a valid service upon
the Respondents-tenants and there was no reason as to why the
Respondents-tenants failed to appear in the proceedings before the
Tahsildar. The relevant observations in paragraph '6' read thus:
6. In this case, I am satisfied that notices of proceedings
before Tahsildar were served on all the applicants and respondent
No.9. Respondent Nos.8 & 10 were then at Bombay and
dss j-wp-394-12.doc
therefore as per Talathi's report notices were fixed on the door of
the house. Original Respondent No.1 Meenakshi Kadam was
seriously ill and therefore, was not served. It is argued on behalf
of applicant that Meenakshi died on very next day of service of
notices on other appellants and respondents. I may refer to the
report of Talathi on page 121 and the postal acknowledgements
at pages 155 & 157. Even though the absence of applicants in
October, 2008 could be overlooked in view of death of
Meenakshi, still there was no reason for applicants and
respondent No.9 not to appear before learned Tahsildar for
enquiry in November, December, January & February. It is worth
noting that Respondents 8 & 10 did not file Appeal or Revision
against the impugned order. In the circumstances, I am not
satisfied that present Revision Applicants had no sufficient
opportunity contesting the proceedings before learned Tahsildar
and it is a matter worth of remand.
16] Once it is established that there was valid service upon the
Respondents-tenants, despite which the Respondents- tenants
remained absent or took no part in the proceedings before the
Tahsildar, there was no reason to exclude the evidence lead by
Savitaguari, who at the relevant stage was 92 years of age, as also,
the evidence of the other witnesses for and on behalf of the
Petitioners-landlords. The MRT has also erred in referring to the
affidavits of Savitaguari as being as xerox copy of the affidavit. The
xerox copy noticed is only a true copy of the original. In any case,
there was documentary evidence on record, which established the
acts of destructive and permanent injury to the said property. The
Respondents-tenants, despite valid service, had neither appeared in
the proceedings before the Tahsildar, nor filed any written statement
to dispute the averments made by the Petitioners-landlords in the
dss j-wp-394-12.doc
context of destruction and permanent injury to the said property
caused by the Respondents-tenants. Strictly speaking therefore, the
averments in the plaint, having not been denied by the Respondents-
tenants, the material on record was more than sufficient to establish
destruction and permanent injury to the said property. The Tahsildar
and the SDO had considered all such material in their proper
perspective and there was no perversity in the concurrent record of
such findings of fact. The MRT, in exercise of its limited revisional
jurisdiction, therefore, ought not to have interfered with such
findings of fact.
17] There is material on record to establish that there were over
500 suru trees planted in the said property for the purposes of
preventing erosion, since, the said property appears to be a sea-side
property. There is reference to such suru trees in the panchanama of
2007 drawn by the Tahsildahr. The material on record suggest that
such suru trees have been felled, thereby permitting erosion of the
said property. The revisional Court, has purported to re-assess the
material on record and observe that merely because the suru trees
were in existence earlier, but were found not to be in existence in
2007, it cannot be said that it is the Respondent-tenants, who have
felled the same and further, suru trees are not even fruit bearing
trees. Apart from the jurisdictional aspect that the MRT ought not to
dss j-wp-394-12.doc
have reassessed the material on record, it must be noted that the
circumstance that the suru trees are not fruit bearing trees is totally
irrelevant. The suru trees were planted to prevent erosion of the said
property. The cutting of such suru trees, in the facts and
circumstances of the present case, clearly amounts to commission of
an act which was destructive or permanently injurious to the land.
There is also material on record with regard to demolition of
immovable structures by the Respondents-tenants upon said property
and the reconstruction thereon of new structures without authority
of law. There is material on record that no steps were taken by the
Respondents-tenants for the maintenance of said property, thereby
permanently injuring the said property. All this material was
sufficient to make out a case under Section 14(1)(ii) of the Tenancy
Act.
18] For all the aforesaid reasons, the impugned judgment and
order 19 October 2011 made by the MRT is set aside and the orders
dated 12 February 2009 and 3 September 2009 made by the
Tahsildar and SDO are restored. Accordingly, Rule is made absolute
in terms of prayer clause (a).
19] There shall however, be no order as to costs.
[M. S. SONAK, J.]
dss j-wp-394-12.doc
20] Mr. Sudhir Prabhu, who has appeared at the stage of
pronouncement of this judgment and order, for Respondents-tenants
(Respondent Nos.1 to 7) applies for restraint upon dispossession in
pursuance of the impugned judgment and order for a period of
twelve weeks, so as to enable the said Respondents to seek recourse
against this judgment and order. This request is quite reasonable and
therefore, for a period of twelve weeks from today, the Respondent
Nos.1 to 7 shall not be dispossessed from the said property, so also,
the Respondents-tenants are directed to maintain status quo in
respect of the said property.
[M. S. SONAK, J.]
