Dinkar Maruti Jadhav Vs. Nivrutti Gangaram Pawar (dead) by Lrs. and Ors.
EmailAppeal: Civil Appeal No. 2564 of 2005
[From the Final Judgment and Order dated 11.09.2003 of the High Court of Judicature at Bombay in Writ Petition No. 1308 of 1990]
[From the Final Judgment and Order dated 11.09.2003 of the High Court of Judicature at Bombay in Writ Petition No. 1308 of 1990]
Petitioner: Dinkar Maruti Jadhav
Respondent: Nivrutti Gangaram Pawar (dead) by Lrs. and Ors.
Apeal: Civil Appeal No. 2564 of 2005
[From the Final Judgment and Order dated 11.09.2003 of the High Court of Judicature at Bombay in Writ Petition No. 1308 of 1990]
[From the Final Judgment and Order dated 11.09.2003 of the High Court of Judicature at Bombay in Writ Petition No. 1308 of 1990]
Judges: Dr. Arijit Pasayat & S.H. Kapadia, JJ.
Date of Judgment: May 09, 2007
Appearances:
Mr. A.S. Bhasme, Advocate for the Appellant.
Mr. M.S. Nargolkar, Senior Advocate, Mr. Varun Thakur and Mr. Sanjay Dubey and Mr. D.M. Nargolkar, Advocates with him for the Respondents.
Mr. M.S. Nargolkar, Senior Advocate, Mr. Varun Thakur and Mr. Sanjay Dubey and Mr. D.M. Nargolkar, Advocates with him for the Respondents.
Head Note:
LANDS and TENANCY
Bombay Tenancy and Agricultural Lands Act, 1948
Sections 33B, 88C and 88D – Scope and ambits – Bonafide requirements and personal cultivation – Death of land lord – Certificate issued by Mamlatdar before or after death – Effect. Held that view in Moreshwar’s case JT 2001 (Suppl-1) SC 49 appears to be incorrect. Hence, matter referred to larger Bench.
Bombay Tenancy and Agricultural Lands Act, 1948
Sections 33B, 88C and 88D – Scope and ambits – Bonafide requirements and personal cultivation – Death of land lord – Certificate issued by Mamlatdar before or after death – Effect. Held that view in Moreshwar’s case JT 2001 (Suppl-1) SC 49 appears to be incorrect. Hence, matter referred to larger Bench.
Held:
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. (Para 3)
There is no dispute that once the tenancy is determined under Section 33-B, the question of action in terms of Section 88D(iv) does not arise but making of an order would be necessary. Mere making an application in terms of Section 33-B does not have the effect of terminating the relationship between the landlord and the tenant. Therefore, till the Mamlatdar passes an order there is no severance of status. The contrary view taken in Moreshwar’s case JT 2001 (Suppl-1) SC 49 prima facie does not appear to be correct. Even when the landlord applies for possession in terms of Section 33-B it may become conclusive so far as it relates to the income and economic holding concepts are concerned. But other requirements like bona fide requirement and personal cultivation are to be decided by the Mamlatdar. The certificate issued under Section 33-B is crystalized only in respect of the income and the economic holding concepts. (Para 5)
There is no dispute that once the tenancy is determined under Section 33-B, the question of action in terms of Section 88D(iv) does not arise but making of an order would be necessary. Mere making an application in terms of Section 33-B does not have the effect of terminating the relationship between the landlord and the tenant. Therefore, till the Mamlatdar passes an order there is no severance of status. The contrary view taken in Moreshwar’s case JT 2001 (Suppl-1) SC 49 prima facie does not appear to be correct. Even when the landlord applies for possession in terms of Section 33-B it may become conclusive so far as it relates to the income and economic holding concepts are concerned. But other requirements like bona fide requirement and personal cultivation are to be decided by the Mamlatdar. The certificate issued under Section 33-B is crystalized only in respect of the income and the economic holding concepts. (Para 5)
Cases Reffered:
1. Moreshwar Balkrishna Pandare and Ors. v. Vithal Vyenku Chavan and Ors. [JT 2001 (Suppl-1) SC 49] (Para 2)
JUDGEMENT:
Dr. ARIJIT PASAYAT, J.
1. The scope and ambit of Sections 33-B and 88-C of the Bombay Tenancy and Agricultural Lands Act, 1948 (in short the ‘Act’) fall for determination in the present appeal.
2. During the course of hearing learned counsel for the appellant placed strong reliance on the observations made by this Court in Moreshwar Balkrishna Pandare and Ors. v. Vithal Vyenku Chavan and Ors.1 to the effect that the High Court’s view is unsustainable. The essence of that judgment is that once action in terms of Section 33-B is taken Section 88-C has no relevance. In the instant case, the original owner had expired. Undoubtedly, the certificate had been issued to him under Section 88-C with reference to the qualification possessed by the landlord as on 1st April, 1957. The question which fell for consideration before the High Court was the effect of the death of the original landlord who had either applied for issuance of certificate under Section 88-C which is pending or was the certificate already granted in his favour. In Paragraph 27 of Moreshwar’s case (supra) it is held that once certificate under Section 88-C is issued and the landlord has issued notice in exercise of the rights under Section 33-B of the Act and proceeds to file an application for possession under Section 33-B read with Section 29 of the Act, the relief under Section 88-C gets exhausted. Moreshwar’s case (supra) related to rights under Section 88D of the Act. The question which may arise is that when death has taken place whether the income or the extent of land of the legal heirs have to be reckoned.
3. Sections 33-B and 88-C operate in different fields. Bona fide requirement and personal cultivation concepts are applicable only under Section 88-C because it refers to Section 33-B. Section 33-B refers to bona fide requirement and personal cultivation. Section 88D(iv) comes into operation when the annual income exceeds the limit fixed and/or economic holdings exceeded. There are two separate stages. The tenant can, in a given case, oppose the application in terms of Section 33-B on the ground that there is no bona fide requirement and/or personal cultivation. It deals with enforcement of the certificate. With the death of the original landlord, the question of economic holding and the income also becomes relevant. In Section 33-B income and/or economic holding concept is not there. It is only there in Section 88-C. In Moreshwar’s case (supra) it was concluded 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 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 1.1.1962; however, in a case where the application of such landlord under Section 88-C is not disposed of and is 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 1.4.1962 in the 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.’
4. As noted above, Section 33-B and Section 88D (iv) operate in different fields. The former refers to landlord’s right and the other refers to tenant’s right and the Moreshwar’s case (supra) did not deal with the case of the death of the landlord.
5. There is no dispute that once the tenancy is determined under Section 33-B, the question of action in terms of Section 88D(iv) does not arise but making of an order would be necessary. Mere making an application in terms of Section 33-B does not have the effect of terminating the relationship between the landlord and the tenant. Therefore, till the Mamlatdar passes an order there is no severance of status. The contrary view taken in Moreshwar’s case (supra) prima facie does not appear to be correct. Even when the landlord applies for possession in terms of Section 33-B it may become conclusive so far as it relates to the income and economic holding concepts are concerned. But other requirements like bona fide requirement and personal cultivation are to be decided by the Mamlatdar. The certificate issued under Section 33-B is crystalized only in respect of the income and the economic holding concepts. Therefore, there is need for clarifying this aspect. Accordingly, we refer the matter to the larger bench. Let the matter be placed before Hon’ble the Chief Justice of India for necessary orders to place the matter before an appropriate bench.
1. The scope and ambit of Sections 33-B and 88-C of the Bombay Tenancy and Agricultural Lands Act, 1948 (in short the ‘Act’) fall for determination in the present appeal.
2. During the course of hearing learned counsel for the appellant placed strong reliance on the observations made by this Court in Moreshwar Balkrishna Pandare and Ors. v. Vithal Vyenku Chavan and Ors.1 to the effect that the High Court’s view is unsustainable. The essence of that judgment is that once action in terms of Section 33-B is taken Section 88-C has no relevance. In the instant case, the original owner had expired. Undoubtedly, the certificate had been issued to him under Section 88-C with reference to the qualification possessed by the landlord as on 1st April, 1957. The question which fell for consideration before the High Court was the effect of the death of the original landlord who had either applied for issuance of certificate under Section 88-C which is pending or was the certificate already granted in his favour. In Paragraph 27 of Moreshwar’s case (supra) it is held that once certificate under Section 88-C is issued and the landlord has issued notice in exercise of the rights under Section 33-B of the Act and proceeds to file an application for possession under Section 33-B read with Section 29 of the Act, the relief under Section 88-C gets exhausted. Moreshwar’s case (supra) related to rights under Section 88D of the Act. The question which may arise is that when death has taken place whether the income or the extent of land of the legal heirs have to be reckoned.
3. Sections 33-B and 88-C operate in different fields. Bona fide requirement and personal cultivation concepts are applicable only under Section 88-C because it refers to Section 33-B. Section 33-B refers to bona fide requirement and personal cultivation. Section 88D(iv) comes into operation when the annual income exceeds the limit fixed and/or economic holdings exceeded. There are two separate stages. The tenant can, in a given case, oppose the application in terms of Section 33-B on the ground that there is no bona fide requirement and/or personal cultivation. It deals with enforcement of the certificate. With the death of the original landlord, the question of economic holding and the income also becomes relevant. In Section 33-B income and/or economic holding concept is not there. It is only there in Section 88-C. In Moreshwar’s case (supra) it was concluded 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 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 1.1.1962; however, in a case where the application of such landlord under Section 88-C is not disposed of and is 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 1.4.1962 in the 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.’
4. As noted above, Section 33-B and Section 88D (iv) operate in different fields. The former refers to landlord’s right and the other refers to tenant’s right and the Moreshwar’s case (supra) did not deal with the case of the death of the landlord.
5. There is no dispute that once the tenancy is determined under Section 33-B, the question of action in terms of Section 88D(iv) does not arise but making of an order would be necessary. Mere making an application in terms of Section 33-B does not have the effect of terminating the relationship between the landlord and the tenant. Therefore, till the Mamlatdar passes an order there is no severance of status. The contrary view taken in Moreshwar’s case (supra) prima facie does not appear to be correct. Even when the landlord applies for possession in terms of Section 33-B it may become conclusive so far as it relates to the income and economic holding concepts are concerned. But other requirements like bona fide requirement and personal cultivation are to be decided by the Mamlatdar. The certificate issued under Section 33-B is crystalized only in respect of the income and the economic holding concepts. Therefore, there is need for clarifying this aspect. Accordingly, we refer the matter to the larger bench. Let the matter be placed before Hon’ble the Chief Justice of India for necessary orders to place the matter before an appropriate bench.
