Moreshwar Balkrishna Pandare v. Vithal Vyanku Chavan, (SC) BS78296
SUPREME COURT OF INDIA

Before:- S.S.M. Quadri and S.N. Phukan, JJ.

Civil Appeal No. 3872 of 1992. D/d. 11.5.2001.

Moreshwar Balkrishna Pandare and others - Appellant

Versus

Vithal Vyanku Chavan and others - Respondent

For the Appellant :- A.S. Bhasme and Manoj Kumar Mishra, Advocates.

For the Respondent :- V.B. Joshi and Sandeep Singh Tiwari, Advocates.

A. Bombay Tenancy and Agricultural Lands Act, 1948, Sections 88-C, 88-D - Tenancy - Exemption to small landlords - Certificate of exemption granted under Section 88-C - Can be revoked under Section 88-D if the income/or holding of holder of the certificate on the date of application for revocation found exceeding prescribed limits.

[Para 7]

B. Bombay Tenancy and Agricultural Lands Act, 1948, Sections 29, 33-B, 88-D - Tenancy - Exemption to small landlords - Revocation of exemption - Locus standi - Application for, by earlier tenant or the excluded tenant cannot be entertained once certificated landlord has given notice to the tenant and applied for possession for personal cultivation within statutory period.

[Paras 25, 26 and 27]

Cases Referred :-

Parvatibai Ramchandra Rokade v. Madhu Tukaram Varkhede, (1967) 69 Bom LR 383.

Bandu Kesu Jagadale v. Gopinath Ramchandra Inamdar, AIR 1976 Bombay 216.

Atmaram Onkar Talele v. Ananda Shrawan Kolambe, (1970) 72 Bom LR 287.

JUDGMENT

Syed Shah Mohammed Quadri, J. - This appeal, by special leave, is from the judgment and order of the High Court of Judicature at Bombay, allowing Writ Petition No. 1560 of 1981, filed by the respondents, on July 19, 1991.

2. Before adverting to the contentions of the parties it will be appropriate to refer to the relevant facts. The predecessor-in-interest of the appellants was the landlord of agricultural land bearing Survey No. 238/1 measuring acres 2 and guntas 5 in village Kalgaon, District Satara, Maharashtra State (for short, 'the land'). He filed tenancy case No. 252/61 before the Tenancy Aval Karkun Karad (for short, 'the Mamlatdar') against Vyanku Daji Chavan, the tenant of the land, claiming exemption certificate under sub-section (4) of Section 88-C of the Bombay Tenancy and Agricultural Lands Act, 1948 (all sections referred to in this judgment are of the said Act unless otherwise stated). During the pendency of the tenancy case both the landlord as well as the tenant died. The appellants are the legal representatives of the landlord and the respondents are the legal representatives of the tenant. By order dated April 26, 1972 the Mamlatdar granted exemption certificate under sub-section (4) of Section 88-C in favour of the appellants. The aggrieved respondents carried the matter in appeal before the Sub-Divisional Officer, Satara Division, who set aside the order of the Mamlatdar by order dated February 25, 1974. The appellants challenged the validity of the said order in the Bombay High Court in Special Civil Application No. 2526 of 1974. On January 11, 1979 the High Court set aside the said order of the Sub-Divisional Officer holding that for purpose of Section 88-C the total income of the deceased-landlord as on April 1, 1957 should be the criteria and not that of the appellants and thus restored the order of the Mamlatdar by allowing the said writ petition. Immediately thereafter the appellants terminated the tenancy by issuing notice to the respondents on January 27, 1979 and making application to the Mamlatdar for possession of the land for personal cultivation under Section 33-B(3)(b) read with Section 29 in March 1979.

3. On August 2, 1979, during the pendency of the said application, the respondents applied under Section 88-D(1)(iv) for revocation of exemption certificate on the ground that the income of the appellants had exceeded Rs. 1500/- per year. The Additional Commissioner, Pune Division, Pune, having regard to the order of the High Court in the Writ Petition No. 2526 of 1974 dated January 11, 1979, rejected the application of the respondents as not maintainable by order dated January 17, 1981. The respondents assailed the correctness of that order in the High Court in Writ Petition No. 1560 of 1981. By the impugned order dated July 19, 1991, the High Court quashed the order of the Additional Commissioner holding that the application for revocation of the certificate was maintainable and remanded the case for fresh disposal on merits. It is that order which is the subject-matter of the appeal before us.

4. The first contention of Mr. A.S. Bhasme, the learned counsel appearing for the appellants, is that as the High Court had restored the order of the Mamlatdar granting exemption certificate in favour of the appellants on the ground that the annual total income of the deceased-landlord as on April 1, 1957 was less than Rs. 1,500/- which had become final, therefore, now the income of the appellants cannot be taken into account which would amount to reopening the issue before the Additional Commissioner in proceedings under Section 88-D as such the High Court erred in quashing the order of the Additional Commissioner.

5. Mr. V. B. Joshi, the learned counsel appearing for the respondents, has argued that Section 88-D gives an independent right to the tenant to have the exemption certificate revoked on establishing, inter alia, that the annual income of the landlord had exceeded Rs. 1,500/-, therefore, the contention that the exemption certificate has attained finality, is untenable.

6. Here, it will be useful to read Section 88-D(1)(iv) under which revocation of the certificate is applied for and it runs as follows :

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 88-D(1) overrides Sections 88, 88-A, 88-B and 88-C provided the requirements thereof are satisfied. Thus, it follows that a certificate granted under sub-section (4) of Section 88-C which is final in view of sub-section (5), can be revoked under Section 88-D(1) if the State Government is satisfied that in the case of the land referred to in Section 88-C, 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 88-C(4) income of the applicant-landlords 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), 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 bona fide personal cultivation under Section 33-B, the respondents could not seek the revocation of the certificate under Section 88-D. Mr. V. B. Joshi, however, argued that in the absence of any constraint in Section 88-D 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 88-D(1)(iv), for revocation of the exemption certificate granted under Section 88-C(4), filed after termination of their tenancy by issuing notice and filing of application for possession of the land by the appellant, under Section 33-B 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 32-A to 32-R. 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 88-C read with Section 33-B.

11. Now, we shall refer to Section 88-C. It will be appropriate to quote it here.

12. An analysis of the section, quoted-above, discloses that sub-section (1) of Section 88-C postulates : (a) exemption of the land 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 Sections 32 to 32-R (both inclusive); (b) exemption is subject to the provisions of Sections 33-A, 33-B and 33-C; 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. Sub-section (2) which is procedural, provides that every person eligible for exemption under sub-section (1) shall make an application in the prescribed form, within the prescribed period, for a certificate that he is entitled to such exemption, to the Mamlatdar within whose jurisdiction all or most of the pieces of land leased by him are situate. Sub-section (3) castes an obligation on the Mamlatdar to hold inquiry after notice of such application to tenant or tenants of the land and to decide as to whether the land leased by such person is exempt, under sub-section (1), from the provisions of Sections 32 to 32-R; in other words he has to decide whether the twin requirements of sub-section (1), namely, (i) the land leased does not exceed an economic holding, and (ii) the total income of the applicant including the rent of such land does not exceed Rs. 1,500/-, are satisfied. In the event of the Mamlatdar deciding that the said requirements are satisfied and, therefore, the land is so exempted, sub-section (4) enjoins on him to issue a certificate in the prescribed form to such person. Sub-section (5) declares that the decision of the Mamlatdar under sub-section (3), subject to appeal to the Collector, shall be final. We have already held above that certificate of exemption issued under Section 88-C(4), notwithstanding its finality, is liable to be revoked under Section 88-D(1).

13. Inasmuch as sub-section (1) of Section 88-C says 'save as otherwise' provided by Sections 33-A, 33-B and 33-C, it will be necessary to notice them here. Section 33-A defines two expressions, employed in the aforesaid provisions : (i) "certificated landlord" to mean a person who holds a certificate issued to him under sub-section (4) of Section 88-C but a landlord within the meaning of Chapter III-AA (a serving member of armed forces) holding a similar certificate is not included within the meaning of the expression; and (ii) "excluded tenant" to mean a tenant of land to which Sections 32 to 32-R (both inclusive) do not apply by virtue of sub-section (1) of Section 88-C.

14. Section 33-B confer a special right on the certificated landlords to terminate tenancy for personal cultivation. It is necessary to advert to it which is as follows :

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-section (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 88-C 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 Section 88-C, 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 terminate the tenancy of an excluded tenant is an independent right and is not affected by the provisions of Sections 31, 31-A and 31-B.

16. It may be noticed here that under the scheme of the Act a landlord's right to terminate the tenancy of an agricultural land is regulated by the provisions contained in Section 31 which enables a landlord to terminate the tenancy of his tenant of an agricultural land for personal cultivation or for non-agricultural purposes. Sections 31-A and 31-B 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 33-B 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.

The date of commencement of the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1960 (Act IX of 1961).

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 33-B 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 33-B 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.

22. This is so far as Section 33-B is concerned.

23. Section 33-C contains a further protection for an excluded tenant. It may also be relevant to notice the relevant provisions of Section 33-C of the Act here, which read as follows :

24. Section 33-C, quoted above, provides for deemed purchase of land, dealt with in Section 88-C, by the excluded tenant. A coadunated reading of sub-sections (1) and (3) of Section 33-C discloses that notwithstanding anything contained in sub-section (1) of Section 88-C, every excluded tenant be deemed to have purchased land held by him as tenant from the landlord on April 1, 1962 if : (a) such land is cultivated by him personally; (b) the landlord has not given notice of termination of tenancy in accordance with sub-section (3) of Section 33-B; or (c) where the landlord has given such notice but has not made an application thereafter under Section 29 for possession as required under the said provision of Section 33-B (3); or (d) a landlord, not falling under any of the categories mentioned in sub-section (4) of Section 33-B, has not terminated the tenancy on any of the grounds specified in Section 14; or (e) having so terminated the tenancy has not applied to the Mamlatdar on or before March 31, 1962 for possession of the land under Section 29. Sub-sections (2), (3) and (4) are not relevant for the present discussion. Sub-section (5) declares that the provisions of Sections 32 to 32-R (both inclusive) will be applicable to the purchase of land by an excluded tenant under Section 33-C.

25. From the examination of the provisions of Section 88-C and Section 33-B, 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 33-B and 33-C 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 88-C(4). In the event of the certificated landlord not taking the steps, as noted above, the deeming provisions of Section 33-C 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 33-C override the provisions of Section 88-C.

27. From the above discussion, it appears to us that where the landlord has complied with the requirements of Section 33-B, by giving notice and applying for possession within the statutory period of three months after receipt of certificate under Section 88-C, 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 88-D(1)(iv). The contention that application for revocation of exemption certificate under Section 88-D 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 88-C, 33-B and 88-D(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 Section 33-B as it will frustrate the provisions of Sections 88-C as well as 33-B 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 33-C. Secondly, when to realise the fruits of the certificate given under Section 88-C(4) the certificated landlord has taken steps under Section 33-B 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 immediately, no application under Section 88-D (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 88-D(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 33-B within the specified time, the application of the excluded tenant under Section 88-D(1)(iv) for revocation of certificate cannot be entertained.

28. We shall now advert to the cases cited at the Bar.

29. The High Court relying on the judgments of Bombay High Court in Parvatibai Ramchandra Rokade v. Madhu Tukaram Varkhede, (1967) 69 Bom LR 383 and Bandu Kesu Jagadale v. Gopinath Ramchandra Inamdar, AIR 1976 Bombay 216, held that the application under Section 88-D(1)(iv) filed by the respondents prior to passing of final order by the Mamlatdar on the application in terms of Section 33-B read with Section 29 of the Act, was maintainable.

30. In Parvatibai (supra) the question before the Division Bench of the Bombay High Court was: Whether the right of a certificated landlord to apply in terms of Section 33-B for possession of land from an excluded tenant is personal to the certificated landlord and lapses on his death or whether it can be exercised by his successors. In dealing with that question the Division Bench observed that the object of Section 88-C was to give some limited protection to small holders with limited incomes and on their death, the successors-in-interest in majority of the cases would also be small holders of limited income so it would be in conformity with reason and justice to hold that if a certificated landlord dies before the expiry of the last date for filing an application for possession in terms of Section 33-B, his successors-in-interest should be able to file such an application within the specified time. This case undoubtedly emphasises that protection is given to small land holders under the said provisions, but it did not deal with the question the High Court was concerned with.

31. In Bandu Kesu (supra) the question before the Division Bench of the High Court was : Whether the certificate granted to a landlord under Section 88-C of the Act gets exhausted when the landlord makes an application for possession in terms of Section 33-B of the Act or only when the Mamlatdar makes a final order disposing of the said application of the landlord. There the landlord obtained the certificate under Section 88-C on May 29, 1971 and made an application on November 15, 1971 for obtaining possession of the land in terms of Section 33-B of the Tenancy Act. While that application was pending the tenants made an application under Section 88-D(1)(iv) on July 29, 1972. The said application was disposed of by the Mamlatdar taking the view that such a certificate got exhausted as soon as the landlord has instituted proceedings under Section 33-B of that Act so the question of revocation of certificate did not survive in cases where proceedings in terms of Section 33-B have been started. The Mamlatdar was fortified in his approach by the judgment of a learned single Judge of Bombay High Court in Atmaram Onkar Talele v. Ananda Shrawan Kolambe, (1970) 72 Bom LR 287. However, the High Court followed an unreported judgment of another Division Bench of the said Court in Special Civil Applications Nos. 868 of 1970 and 2085 of 1973 (Bom.) taking the view that though no express words of limitation or restriction are to be found in Section 88-D of the Act, the scheme of the provisions of Sections 33-B and 33-C read with Sections 88-C and 88-D of the Act would suggest that the reasonable limitation that could be put upon the power of the Government or the Commissioner under Section 88-D to entertain an application for cancellation of exemption certificate thereunder and held that after the date of final order of the Mamlatdar on the application of certificated landlord in terms of Section 33-B read with Section 29 of the Act, no request for cancellation of the exemption certificate under Section 88-D(1) would be entertainable. 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 88-D, 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 88-D(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 33-B read with Section 29 for possession of the land after giving notice to the excluded tenant which would meet the 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 88-C, 88-D, 33-B and 33-C in the Act and prescribing a period of three months from the date of receipt of certificate under Section 88-C 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 33-B read with 29(2) of the Act, and for the aforementioned 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 33-B read with Section 29 as the date before which an application for revocation of exemption certificate under Section 88-D(1)(iv) of the Act shall be maintainable.

33. In this view of the matter, we cannot sustain the order of the High Court under challenge; the order under challenge is set aside and the order of the Additional Commissioner is restored. The appeal is accordingly allowed; in the circumstances of the case we make no order as to costs.

Appeal allowed.