Kondiba Dnyanu Dongale Since Dec ... vs Kashibai Ramrao Nigade Since Dec ...
2023 Latest Caselaw 5299 Bom

2023:BHC-AS:15097

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                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              APPELLATE SIDE CIVIL JURISDICTION

                                      WRIT PETITION NO.7723 OF 2022

             Kondiba Dnyanu Dongale
             (Since deceased through his heirs
             and legal representatives)                                ...Petitioners/
                                                                        Ori. Tenants
                   vs.
             Kashibai Ramrao Nigade
             (Since deceased through her heirs
             and legal representatives)                                ...Respondents/
                                                                       Ori. Landlords

             Mr. Dilip Bodake, for the Petitioners.
             Mr. Sandesh Patil a/w. Mr. Niranjan Bhavake i/b. Bhavake &
             Associate, for Respondent Nos. 1 and 2.

                                          CORAM :        N. J. JAMADAR, J.
                                      RESERVED ON :      APRIL 12, 2023
                                      PRONOUNCED ON :    JUNE 08, 2023

             JUDGMENT :

1. Rule. Rule made returnable forthwith. With the consent of the

learned counsel for the parties, heard finally at the stage of

admission.

2. This petition under Article 227 of the Constitution of India

assails the legality, propriety and correctness of a judgment and

order dated 22nd February, 2022 passed by the learned Member,

Maharashtra Revenue Tribunal at Pune in Revision Application

bearing Nos. NS/X/1/2020, NS/X/2/2020, NS/X/3/2020 and NS/X/

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4/2020 whereby the Revision Applications preferred by the

petitioners came to be dismissed affirming the order dated 14 th July,

2020 passed by the SDO, Karad, Dist. Satara in Tenancy Appeal No.

88 of 2018 which, in turn, had affirmed the order dated 5 th May,

2018 passed by Tahsildar-ALT, Karad in Tenancy Case No. 222 of

2017 thereby allowing the application of the respondents/ landlords

for delivery of the possession of the agricultural lands bearing Gut

Nos.27/1, 29 and 30/3 (Survey No. 180, 181 and 182) situated at

Mangwadi, Tal. Karad, Dist. Satara (the subject lands) under

section 33B of the Maharashtra Tenancy and Agricultural Lands

Act, 1948 (the Act, 1948).

3. Though the instant petition also presents a usual feature of

multiple rounds of litigation before the authorities under the Act,

1948 yet, shorn of unnecessary details, the background facts can be

stated as under:-

a} Smt. Kashibai Nigade, Muktabai Deshmukh, Ansuya Ghadge,

the predecessor in title of the respondents, who claimed to be the

owners of the subject land preferred applications being Tenancy

Case Nos. 331, 332, 336 of 1961 under section 88C of the Act, 1948

for grant of certificate of exemption from the application of the

provisions of the Act, 1948 in respect of the subject lands on the

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ground that lands did not exceed economic holding and their total

income, including the rent of the subject lands, did not exceed Rs.

1,500/- ALT by an order dated 7th December, 1963 granted

exemption certificate to above named landlords in respect of the

subject lands. Armed with the said certificate, the landlords filed

Tenancy Case Nos. 44, 45 and 46 of 1964 under section 33B of the

Act, 1948 seeking possession of the subject lands for personal

cultivation asserting that the landlords' bonafide required the

subject lands.

b} By judgment and order dated 5th February, 1964, the ALT

allowed the applications and ordered the tenants to deliver the

possession of the subject lands to the landlords. The tenants

preferred an appeal being Tenancy Appeal Nos. 19 of 1967 and 68

of 1967 before the Sub Divisional Officer, Satara. By a judgment and

order dated 31st January, 1991 the appeals came to be dismissed

affirming the orders passed by ALT on 5th February, 1964.

c} A Revision Application being Application No. NS/IV/2/1991

was filed by the tenants before the Maharashtra Revenue Tribunal,

Pune. By a judgment and order dated 2 nd August, 2017 the learned

Member, MRT, Pune was persuaded to allow the revision and remit

the matter back to ALT to decide it afresh on the point of economic

holding of the legal representatives of the landlords and income of

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the respective legal representatives of the landlords in the light of

the limit prescribed under section 88C of the Act, 1948. The learned

Member was of the view that since all 3 certificated landlords died

pending the lis and the applications for possession of the subject

lands were being prosecuted by the legal representatives, in view of

the judgment of the Supreme Court in the case of Dinkar Maruti

Jadhav vs. Nivrutti Gangaram Pawar1 an inquiry as to the economic

holding and income of the legal representatives, who were

prosecuting the application, was warranted.

d} Upon remand, ALT was again persuaded to allow the

application and direct the tenants to deliver the possession of the

subject lands under section 33B read with 29 of the Act, 1948. ALT

was of the view that the certificate under section 88C came to be

granted in the light of the then prevailing circumstances and

income of the landlords and thus it was not permissible to delve into

the legality and validity of the certificates after lapse of more than

56 years.

e} The tenants preferred an appeal, being Appeal No. 88 of 2018,

before the SDO. In Appeal, the SDO found no reason to interfere with

the order passed by the ALT and dismissed the appeal.

f} Being aggrieved, the tenants preferred the revisions before

the MRT, Pune. By the impugned judgment and order the learned 1 (2008) 5 SCC 489.

Vishal Parekar                                                                   ...4





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Member, MRT declined to interfere with the orders passed by the

authorities below. The learned Member, concurred with the view of

ALT that the certificate under section 88C came to be granted after

requisite inquiry and satisfaction and thus it was not open to a fresh

scrutiny. The learned Member, MRT distinguished the judgment in

the case of Dinkar Jadhav (supra) on the ground that ALT had

ordered the delivery of possession of the subject lands to the

landlords on 7th October, 1965 during the life time of the landlords

and, therefore, it was not warranted to again inquire into the aspect

of the economic holding and the annual income of the legal

representatives of the landlords, who were prosecuting the

application for possession. Hence, this petition by the tenants.

4. I have heard Mr. Dilip Bodake, the learned counsel for the

petitioners and Mr. Sandesh Patil, the learned counsel for the

respondent Nos. 1 and 2. The learned counsel took the Court

through the pleadings and orders passed by the authorities below

and the documents pressed into service on behalf of the parties.

5. A core question that arises for consideration in this petition is

whether the aspect of economic holding and annual income of the

legal representatives of the certificated landlord (under section

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88C) are required to be inquired into in the event the certificated

landlord passes away during pendency of the proceedings and

before delivery of possession under section 32B of the Act, 1948.

6. Mr. Bodke, learned counsel for the petitioners strenuously

submitted that aforesaid question is required to be answered in the

affirmative if the object of the Act, 1948 is to be advanced.

Amplifying the submissions, Mr. Bodke would urge that the bonafide

requirement of the landlords for personal cultivation of the land

must subsist till the final adjudication. The provisions contained in

section 88C of the Act 1948 are enacted with a definite object of

protecting the interest of landlord, whose holding does not exceed

the economic holding and annual income is less than the prescribed

threshold. If this object is kept in view, according to Mr. Bodke, the

legal representatives of the certificated landlord who pursue the

claim for the possession of the land under section 32B must fulfill

the aforesaid criteria, lest the ameliorative provisions of the Act,

1948 would become redundant.

7. Mr. Bodke urged, with a degree of vehemence, that the

learned Member, MRT while remitting the matter back to ALT had

correctly appreciated the import of the decision of the Supreme

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Court in the case of Dinkar Maruti Jadhav (supra) and specifically

directed the ALT to conduct an inquiry to ascertain both the aspects

of economic holding and income. However, the ALT and Sub

Divisional Officer did not advert to those aspects at all and

proceeded to pass the order under section 32B without holding such

inquiry afresh. In the impugned judgment and order the learned

Member, MRT also failed to appreciate the import of the said

judgment in the case of Dinkar Maruti Jadhav (supra) and correct

the errors which the authorities below had fallen in.

8. Mr. Bodke would urge that the proposition that legal

representatives of certificated landlords are required to establish

their bonafide requirement on the date they were brought on

record, has been well settled by a number of judgments of this Court

even before the pronouncement in the case of Dinkar Maruti

Jadhav(supra). Reliance was placed on the judgment of a learned

single judge in the case of Nivrutti Gangaram Pawar vs. Dinkar

Maruti Jadhav2 (which culminated in the 3 judge Bench judgment

of the Supreme Court in the case of Dinkar Jadhav (supra)) and a

judgment of a learned single judge of this Court in the case of Aba

Krishna Lokare & Anr. vs. Gopal Kashinath Vategaonkar and Anr.3

2 2004(2) Mh.L.J. 674.

3    2005(2) ALL Mr 534

Vishal Parekar                                                                  ...7





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9. In view of aforesaid position in law, according Mr. Bodke, the

authorities under Act, 1948 have committed a grave error in law in

dispensing with the statutory requirement on the premise that

certificate under section 88C of the Act, 1948 came to be granted

prior to 50 years and the said issue could not be opened again.

Taking the Court through the copies of the record of the right of the

petitioners/ tenants and respondents/landlords, Mr. Bodke would

urge the holding of the legal heirs of the certificated landlords

exceed the economic holding and their incomes are also far in

excess of the threshold fixed under section 88C of the Act, 1948.

10. Per contra, Mr. Sandesh Patil, learned counsel for the

respondents/ landlords, stoutly submitted that the tenants are

making an undisguised attempt to assail the order granting

certificate under section 88C, which was never challenged and

attained finality. Since, the said order granting exemption

certificate under section 88C attained finality, it was not open to the

tenant to question the correctness thereof in a proceedings for

delivery of possession under section 33B of the Act, 1948. Mr. Patil

would urge that the submissions sought to be canvassed on behalf of

the tenants that the economic holding and income below the

threshold are required to be proved again are based on a complete

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misreading of the provisions of the Act, 1948 and the judgment of

the Supreme Court in the case of Dinkar Maruti Jadhav (supra).

Mr. Patil made an earnest endevour to draw home the point that the

decision in the case of Dinkar Maruti Jadhav (supra) does not lay

down in no uncertain terms that such an inquiry is warranted

afresh whenever the legal representatives seek possession of the

land on the strength of a certificate granted in favour of their

predecessor in title, who has passed away. According to Mr. Patil,

the observations in Dinkar Maruti Jadhav (supra) were in the

context of the distinction between section 33B and 88C of the Act,

1948 and the different spheres in which they operate. This position,

Mr. Sandesh Patil would urge, has been elucidated by a learned

single judge of this Court in the very case of Nivrutti Gangaram

Pawar (since deceased) and Ors. vs. Dinkar Maruti Jadhav4.

11. Mr. Patil submitted that the authorities below have properly

appreciated the question in controversy and justifiably repelled the

endevour on the part of the tenants to reopen the legality and

validity of the certificates issued under section 88C. Thus, no case is

made out for interference with the concurrent finding throughout

recorded by the authorities below, in exercise of extraordinary writ

jurisdiction. Mr. Patil would further urge that the proceedings for 4 2012(1) ALL MR 850.

Vishal Parekar                                                                    ...9





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regaining the possession of the subject land which were commenced

in the year 1962 deserves a quietus after a litigation span of 60

years.

12. To appreciate the rival submissions canvassed across the bar,

it may be apposite to have a brief resume of the provisions of the

Act, 1948 which bear upon the determination of the core

controversy.

13. To start with, the import of the terms, "economic holding",

"certificated landlord" and "excluded tenant" deserves to be noted.

Section 6 of the Act defines an "economic holding" as under:-

Sec.6 - Economic holding -

(1) For the purposes 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.]

14. Section 33A defines the term "Certified Landlord" and

"Excluded Tenant" as under:-

Vishal Parekar                                                                      ...10





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Sec.33A. For the purposes 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 of Chapter III-AA holding a similar certificate]; and

(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.

15. It is trite the Act, 1948 is beneficial legislation and has been

enacted to confer the protective rights on the tenants of

agricultural lands. A prime protection given by the Act, 1948 is the

deemed purchase of the agricultural land held by a tenant from the

landlord free from all encumbrances on the 1 st April, 1957 (tiller's

day). Such deemed purchase is subject to the provisions of section

32 and the succeeding sections i.e. 32A to 32R. The right of the

landlord to terminate the tenancy is regulated by section 31 of the

Act, 1948. It enables a landlord to terminate the tenancy of his

tenant of an agricultural land for personal cultivation or for non-

agricultural purpose. Sec.31A and 31B incorporate the conditions

subject to which the tenancy shall be terminated and enumerate

the instances in which the tenancy cannot be terminated under

section 31. Simultaneously the act preserves few rights of the

landlords to terminate the tenancy, for instance sections 14, 31, 43-

1B. A right to terminate tenancy is also embodied, under certain

circumstances, in section 88C r/w. section 33B of the Act, 1948.

Vishal Parekar                                                                       ...11





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16. Section 88C of the Act, 1948 reads as under:-

88C. Exemption from certain provisions to lands leased by persons with the annual income not exceeding Rs. 1500/-:-

(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 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 S 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].

17. Plain reading of the aforesaid provision would indicate that a

landlord would be exempted from the operation of the provisions

contained in section 32 to 32-R (I) if such land does not exceed an

economic holding and the total annual income of the landlord,

including the rent of such land, does not exceed Rs. 1500/-, (ii) the

exemption is subject to the provisions of section 33A, 33B, 33C, and

(iii) the exemption cannot be availed of by a person who holds such

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land as a permanent tenant or who has leased such land on

permanent tenancy to any other person.

18. Thus the Tribunal under the Act,1948 would be required to

pose unto itself two questions, namely, whether the land does not

exceed the economic holding and whether the total income of the

landlord, including rent of such land, does not exceed Rs. 1500/-. If

the ALT holds in the affirmative, sub section (4) of section 88C

enjoins him to issue a certificate in the prescribed form to the

landlord, who, thereupon, becomes a certificated landlord. An

appeal is provided under sub section (5) to the Collector and,

subject to such appeal, the decision of the ALT has been clothed

with finality.

19. Section 33B confers a special right on the certificated

landlord to terminate the tenancy for personal cultivation. Under

sub section (1) of section 33B a certificated landlord who bonafide

requires the land, in respect of which certificate has been granted,

for personal cultivation has to terminate the tenancy of excluded

tenant by giving him notice and making an application for

possession. The period within which the notice envisaged by sub

section (1) is to be served is indicated in sub section (3). Sub

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section (5) of the section 33B incorporates the conditions subject to

which the right of the certified landlord can be exercised. Sub

sections (6) and (7) of section 33B essentially incorporate

consequential provisions.

20. It would be contextually relevant to note that the section

33C envisages deemed purchase of land covered by the certificate

under section 88C by the excluded tenant in the event of default on

the part of the landlord to give notice under sub section (3) of

section 33B or to make an application post notice, under section 29,

for possession of the land.

21. A conjoint reading of the aforesaid provisions leads to a

legitimate inference that these provisions have been enacted with

the object of providing relief to a class of landlords who hold a

relatively small tract of land and do not have adequate income so as

to enable them to cultivate the land personally and supplement

their income. The ameliorative provisions qua the landlord are in a

sense an inroad into the otherwise protective umbrella of the

provisions for the tenant contained in the Act, 1948 and deserve to

be given due weight, wherever applicability of these provisions is

unquestionably made out. In that event, an approach based on an

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overriding beneficial nature of the provisions of the Act, 1948 qua

the tenants may not advance the intendment of the legislature in

enacting the special provisions.

22. Indisputably, in the case at hand, the conditions stipulated by

sub section (1) of section 88C were fulfilled by the deceased

landlords. In fact, the order granting the certificates dated 7 th

February, 1963 attained finality as it was not appealed against, as

envisaged by sub section (5) of section 88C. What was challenged by

the tenants was the order to deliver the possession under section

33B after the certificated landlord terminated the tenancy and

applied for delivery of possession under section 29 of the Act, 1948

i.e. order dated 7th October, 1965. As noted above, the appeal came

to be decided after more than 25 years on 31 st January, 1991 and

the revision there against again after 25 years of the decision in the

appeal. In the meanwhile, the certificated landlord passed away and

their legal representatives professed to prosecute the claim for

possession. In this context, the question arises as to whether the

test of economic holding and annual income are to be satisfied qua

the legal representatives who seek the possession ?

23. In the case of Moreshwar Balkrishna Pandare vs. Vithal

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Vyanku Chavan and Others5 a two judge Bench of the Supreme

Court was confronted with the question as to whether the

application of the tenants under section 88-D(1)(iv) for revocation

of certificate granted under section 88C(4) filed after termination

of the tenancy by issuing notice and filing of an application for

possession of the land by the landlord under section 33B, read with

29, was maintainable. While answering the aforesaid question to the

effect 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 88-D(1)(iv) for revocation of

certificate cannot be entertained, the Supreme Court expounded

the interplay between the provisions contained in sections 88C and

33B of the Act, 1948.

24. The observations in paragraph 25 to 27 are instructive. They

read as under:-

25] From the examination of the provisions of Section 88C and 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 5 (2001) 5 Supreme Court Cases 551.

Vishal Parekar                                                                        ...16





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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 the right of the excluded tenant to be a deemed purchaser will get revived under Section 33C. Secondly, when to realize 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

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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 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.

25. In Dinkar Maruti Jadhav (supra) which arose out of the

judgment of a learned single judge of this Court in the case of

Nivrutti Gangaram Pawar (supra), a two judge bench of the

Supreme Court doubted the correctness of some of the observations

made in Moreshwar Balkrishna Pandare (supra) and the matter

came to be referred to a larger Bench. Thereupon in Dinkar Maruti

Jadhav (supra), a three judge Bench of the Supreme Court observed

that the essence of the judgment in Moreshwar Balkrishna Pandare

(supra) was that once the action under section 33B is taken, section

88C of the Act, 1948 has no relevance.

Vishal Parekar                                                                       ...18





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26. Explaining the import of the ratio of Moreshwar Balkrishna

Pandare (supra), the three judge Bench clarified as under:-

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 Moreshwars 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. Moreshwars 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 Moreshwars case (supra) is accordingly 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.

Vishal Parekar                                                                         ...19





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27. After the matter came to be remitted to this Court, a learned

single judge of this Court in the case of Nivrutti Gangaram Pawar

(supra), decided on 13th December, 2011, after an analysis of the

judgments of the Supreme Court in the cases of Moreshwar Pandare

(supra), the three judge Bench decision in Dinkar Jadhav (supra)

and the judgments of this Court, including the Division Bench

judgment in the case of Maruti Namdeo Gade vs. Dattatraya Vishnu

Maval6, observed that though the judgment in the case of

Moreshwar Balkrishna Pandare (supra) was explained by the three

judge Bench in the case of Dinkar Jadhav (supra), the ratio of the

judgment in the case of Moreshwar Balkrishna Pandare (supra) is

not diluted.

28. The observations of the learned single Judge in paragraphs 17

and 18 read as under:-

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 88C 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, 2001(3) ALL MR 499 (S.C.) (supra), which according to me, is not diluted by the Judgment in the case of Dinkar Jadhav, 2008 (2) ALL

6 1977 Mh.L.J.848

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MR 331 (S.C.) (supra). As held by the Supreme Court in Dinkar Jadhav, 2008 (2) ALL MR 331 (S.C.)(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 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.

29. This Court has thus held that the observations of the Supreme

Court in paragraph 3 of the judgment in the case of Dinkar Jadhav

(supra) that with the death of the landlord the question of economic

holding and the income would also become relevant will have to be

construed in the context of earlier statement of law in Moreshwar

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Pandare (supra) and also in Dinkar Jadhav (supra) that section

33B and 88C operate in different fields. Support was sought to be

drawn to this reasoning from the last sentence in paragraph 3 in

the judgment of the Supreme Court in the case of Dinkar Jadhav

(supra) that in section 33B income and/or economic holding

concept is not there.

30. If the aforesaid enunciation of law is considered in the light of

the scheme of the Act, 1948 which emerges from the combined

reading of the provisions contained in sections 88C, 33B and 33C of

the Act, 1948 the consideration which weigh in deciding the

application for grant of certificate under section 88C and an

application for delivery of possession under section 33B appear to

be materially distinct. To entertain an application under section

33B of the Act, 1948 a certificate under section 88C is a

jurisdictional condition. However, it does not imply that the

conditions which a landlord is required to satisfy for grant of

certificate under section 88C need to be complied with by the legal

representatives of the certificated landlord as well, till the final

delivery of the possession of the leased land. It is in this context, the

Supreme Court has held that section 88C and 33B operate in

different spheres.

Vishal Parekar                                                                     ...22





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31. The mater can be looked at from another perspective. Grant of

certificate under section 88C would not entitle the certificated

landlord to seek possession at any point of time. The recourse to

section 33B could be made by a certificated landlord either before

the first day of January, 1962 or within three months of the

certificated landlord receiving certificate under section 88C, if the

application for such certificate was pending before the Tribunal on

1st January, 1962. The necessary corollary is that an application for

grant of certificate under section 88C could be made only before 1 st

January, 1962 and if pending and undecided by that date, the

possession could be sought on the basis of subsequently granted

certificate only within three months thereof by complying with the

requirements of sub section (3) of section 33B. Thus, the income

limit of Rs. 1500/- was required to be evaluated as the income at

that point of time. The upper threshold of Rs. 1500/- was thus

relative and time sensitive.

32. The submission on behalf of the petitioners that legal

representatives of the deceased landlord must also satisfy the said

income criteria on the day they are brought on record in

proceedings under section 33B of the Act, 1948 looses sight of this

crucial aspect. Bonafide of their claim thus cannot be legitimately

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judged by applying the standards prescribed by the legislature as of

1st January, 1962, without completely ignoring the time value of

money. I am, therefore, not persuaded to accede to the submission

on behalf of the petitioners that the authorities below committed

error in not embarking upon an inquiry afresh into the income of

the legal representative of the landlord. The aforesaid analogy by

and large may govern the challenge on the ground of the economic

holding being exceeded on account of the land which the landlord or

the legal representatives happen to hold on the date the authorities

under the Act, 1948 are called upon to determine the aspect of

delivery of possession.

33. Nonetheless, the aspect of the holding of the landlord as on

the date the application for possession under section 33B is to be

determined can not be said to be wholly irrelevant for

determination of the application under section 33B of the Act,

1948. It is imperative to note that a landlord having a small holding

and meager income has been extended the benefit of seeking the

possession of the land for personal cultivation. Test that needs to be

satisfied by a certificated landlord is that the landlord bonafide

requires leased land for cultivating it personally. Bonafides are

required to be proved so also requirement for personal cultivation.

Vishal Parekar                                                                               ...24





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34. Grant of certificate under section 88C, if properly construed,

satisfies a prime nay jurisdictional condition for recovery of

possession of the land under section 33B. However, that is not the

only condition. The certificated landlord has to satisfy that he

required the land bonafide for personal cultivation. The certificated

landlord is further enjoined to satisfy the conditions as to

terminating the tenancy by giving notice in writing and making an

application to the ALT for possession within the time stipulated

under sub section (3) of section 33B of the Act. Thirdly, under sub

section (5) of section 33B the right of certificated landlord to

terminate the tenancy is subject to further conditions. Clause (b) of

sub section (5) of section 33B reads as under:-

The landlord shall be entitled to terminate a tenancy and take possession of the land leased but to the extent only of so much 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 Prevention of Fragmentation and Consolidation of Holdings Act, 1947.

35. The aforesaid clause (b) of sub section (5) of section 33B thus

brings in the element of equalization of the holding as between the

landlord and the tenant. The aspect of the holding of the landlord as

of the date the question of delivery of possession under section 33B

arises thus has a significant bearing on the entitlement of the

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certificated landlord to the possession of the land, especially the

extent thereof. Though the inquiry need not necessarily be to

ascertain as to whether the holding of the landlord or his legal

representative exceeds the economic holding, which could be

properly determined under section 88C of the Act, 1948, yet the

aspect of the extent of the holding becomes significant from the

point of view of satisfaction of the statutory conditions stipulated

under section 33B(5)(b) of the Act.

36. It is imperative to note that in the case of Nivrutti Pawar

(supra) this Court was not called upon to examine the challenge in

the backdrop of the extent of the land held by the landlord. It was

conceded on behalf of the tenant therein that the second

requirement of economic holding could be fulfilled since leased land

did not exceed the economic holding.

37. In fact, this Court in the case of Nivrutti Pawar (supra) had

adverted to the question of equalization of holding and, in the light

of the undisputed facts in the said case, it was found that even on

the question of equalization of holding was required to be recorded

in favour of the landlord therein. The observations in paragraph 21,

make this position explicitly clear.

Vishal Parekar                                                                  ...26





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21] This leaves me to decide the next question regarding equalization of holding as mandated by sub- section 7 of section 33B. 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 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 equalization, the finding has to be in favour of the petitioner landlord.

38. This question of equalization of holding, however, squarely

arose for consideration in the case of Hariba Keshav Barbole vs.

Motibai Deepchand7. A Division Bench of this Court while

interpreting the provisions of section 33B of the Act enunciated

that sub section (5) lays down the conditions subject to which

certificated landlord is entitled to terminate tenancy. Sub clause (b)

(extracted above) relates to equalization of holding of certificated

landlord and excluded tenants. It provides that the landlord shall

be entitled to terminate tenancy and take possession of the land

leased but to the extent only of so much thereof as would result in

both the landlord and the tenant holding thereafter in total an equal

area for personal cultivation. The Division Bench considered the

question as to which ought to be the relevant date for applicability

of sub section (5) of section 33B in case of legal representatives

7 1947 Mh.L.J. 823.

Vishal Parekar                                                                         ...27





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brought on record in place of original landlord. It was answered as

under:-

13] Now, the further question for consideration would be which is the relevant date for the applicability of sub-section (5) (b) of S. 33-B in the case of such an heir brought on record in place of the original applicant landlord? Here again, so far as the heir of the landlord is concerned, it would be necessary to fix the same date, that is, the date when the is brought on record as the heir of the deceased. It cannot be said that the holding of the heir on the date of the original application should be considered for the purpose of equalisation between the tenant and the heir under sub-section (5) (b) of S. 33-B. It is true that in a majority of cases, the heirs of the deceased who may be the widow and the sons would not be financially in a better position than the original landlord, nor would they have any other land than the one which the original applicant had on the date of the application. In such cases, it would not make any practical difference it their holding on the date when they were brought on recorded is taken into account. In such cases, they almost stand in the shoes of the original landlord, and the facts necessary for equalisation of holdings between the landlord and the tenant under Section 33-B sub-section (5) (b) would not differ.

However, the matter would stand on a different footing if the heirs have other land before they are brought on record as the heirs of the original applicant. As the heir gets the right to prosecute the original application and gets possession on establishment of certain facts, it is but proper and just to ask him to establish all the facts on the date when he comes on the scene, that is, when he was brought on record as the heir of the original applicant. Such an interpretation would be consistent. Such an interpretation would be consistent with the policy and object of the act, because this would not deprive the tenant of his rights any more if the original landlord was alive. It is only when the position is altered by reason of the fact that the heir has got other land or source of income that his rights are curtailed. Surely, the heir cannot claim any between position than the original applicant by not considering the total holding on the date of his being brought on record. We,

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therefore, hold that the legal heir who is brought on record during the pendency of the proceedings, must establish his own bona fide requirement as on the date he comes on record, as that would be the date for him for all practical purposes to establish his case to recover possession. We also hold that the holding of the heir on the date when he is brought on the record needs to be considered for the purposes of equalization of holdings of the tenant and the legal heir of the landlord.

14] Now the next point for consideration is about the position of the tenant or his legal representative brought on record in case of his death during the pendency of the proceedings. There is no reason why the death of the original landlord should affect the right of the tenant for equalisation of the land under Section 33-B (5) (b). His holding for comparison should, therefore, be as on the date of institution of the original application. It would be equally logical to hold that the death of the tenant during the pendency of the proceedings should not have any effect on the date for the purpose of equalisation of holding, and the date of the original application by the certificated landlord or by his heir, where the certificated landlord died without making an application, would be the relevant date for consideration of the tenant's holding. This is particularly so, because once an application is filed against him, the date of filing the same automatically becomes the date relevant for consideration of his holding to be taken into account for the purpose of equalisation under Clause (b) of S. 33-B (5) and this date does not appear to be varying with change in circumstances.

39. In case at hand, the authorities below have proceeded on the

premise that since the aspects of economic holding and income of

the landlord have been conclusively determined while granting

certificate under section 88C, it was not open to delve into those

aspects again while considering the application for possession

u/sec.33B. To the extent the authorities hold that the legality and

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validity of the certificate under section 88C can not be examined

afresh on the touchstone of the compliance of conditions of

economic holding and income limit prescribed therein, the said

view, in the light of the aforesaid enunciation of law, cannot be

faulted at.

40. However, I find it difficult to accede to the broad proposition

that the extent of the holding of the legal representatives is of no

salience at all while deciding an application under section 33B.

Such proposition has the propensity to render the conditions

stipulated in section 33B wholly redundant. It would imply that

once the certificate under section 88C is granted, the grant of

possession under section 33B would be a matter of course. Such a

view cannot be taken without doing violence to the plain language

and conditions stipulated in section 33B of the Act.

41. The authorities have not at all adverted to the question as to

whether the conditions stipulated under sub section (5) of section

33B of the Act have been fulfilled. Since the landlords have passed

away and their legal representatives have been brought on record

in view of the decision of the Division Bench in the case of Hariba

Keshav Barbole (supra), the question of satisfaction of the

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conditions under sub section (5) of section 33B is required to be

determined in the light of the holding of the legal representative, as

on the date they were brought on record.

42. Mr. Bodake, made an endevour to persuade the Court to delve

into the factual aspects of the holding of the legal representatives of

the landlords and that of the tenants/petitioners, by inviting the

attention of the Court to the copies of the record of right which

evidence the holding. By its very nature, the determination of the

extent of holding of the legal representatives of the landlords and

that of the petitioners and the further aspect of equalization, if

required to be resorted to, are rooted in facts. Therefore, it would be

apposite to remit the matter to the authorities under the Act, 1948

to consider and determine the issue of compliance of the conditions

stipulated under section 33B of the Act, 1948.

43. Since there have been, in effect, two rounds of litigation and

more than 60 years have elapsed since the institution of the

proceeding to grant certificate under section 88C of the Act, 1948,

in my view, it may not be appropriate to remit the matter to ALT,

with scope for further rounds of litigation. In the circumstances of

the case, it may be expedient in the interest of justice to direct the

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MRT to examine the issue of compliance of the conditions stipulated

under section 33B of the Act, 1948 and pass an appropriate order.

It is hereby made clear that the issue of economic holding and

income of the legal representatives shall not be further examined

and the matter is remitted to the MRT only for the purpose of

determination of the compliance of the conditions stipulated in

section 33B of the Act, 1948 and pass appropriate orders.

44. The conspectus of the aforesaid consideration is that the

petition deserves to be partly allowed.

Hence, the following order.

ORDER

1] The petition stands partly allowed.

2] The impugned order dated 22 nd February, 2022 passed by the

learned Member, Maharashtra Revenue Tribunal at Pune in

Revision Application bearing Nos. NS/X/1/2020, NS/X/2/2020, NS/

X/3/2020 and NS/X/4/2020 stands quashed and set aside.

3] Revision Application Nos. NS/X/1/2020, NS/X/2/2020,

NS/X/3/2020 and NS/X/4/2020 stand remitted to Maharashtra

Revenue Tribunal at Pune, for afresh decision only on the point of

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compliance of the conditions stipulated under section 33B of the

Act, 1948 and to pass appropriate orders in accordance with law.

4] The learned Member, Maharashtra Revenue Tribunal at Pune is

requested to decide the Revision Applications in the light of the

observations contained in paragraph Nos. 41 to 43 of this judgment

as expeditiously as possible and preferably within a period of three

months from the date scheduled for the appearance of the parties.

5] The parties shall appear before the Maharashtra Revenue

Tribunal at Pune on 26th June, 2023.

6] Rule made absolute to the aforesaid extent.

7] In the circumstances of the case, there shall be no order as to

costs.

                                       (N. J. JAMADAR, J.)




Vishal Parekar                                                                ...33