Smt. Gulshanbai Mard Kandibhai Vs. Shri Bandu Pandu Ghadge & Ors.
EmailAppeal: Civil Appeal No. 917 of 1976
Petitioner: Smt. Gulshanbai Mard Kandibhai
Respondent: Shri Bandu Pandu Ghadge & Ors.
Apeal: Civil Appeal No. 917 of 1976
Judges: T.KOCHU THOMMEN & V. RAMASWAMY,JJ.
Date of Judgment: Apr 18, 1990
Head Note:
TENANCY AND LAND LAWS
Bombay Tenancy and Agricultural Lands Act, 1948:
Sections 33A,33B and 88C – ‘Certificated landlord’ – Appellant’s husband held the certificate and on his death the authorities gave her assurance that she could act on the certificate held by her husband and that she could withdraw her own application for the certificate – Application filed by Appellant under section 33B – Limitation – Held that the Order dated 17.10.1962 dismissing her application as withdrawn would be the starting point to determine the period of limitation – Decision of the High Court set aside.
JUDGEMENT:
O R D E R
1. This appeal is by the wife of the deceased landlord against the judgment of the Bombay High Court in Speical Civil Application No. 1429 of 1971. The husband was a ‘certificated landlord’ within the meaning of section 33A of the Bomaby Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as ‘the Act’) He died on 23.12.1959. He had obtained a certificate under section 88C of the Act on 11.11.1959. The appellant had also applied for a certificate under that section on 30.9.1959. That application had been made within the time prescribed under the Act. However she was told by the concerned authority, namely, the Mamlatdar that in view of the certificate held by her deceased husband, it was unnecessary for her to make an application for a fresh certificate. On the assurance of the Authority that she was entitiledt o terminate the tenancy and assume possession of the land on the basis of the certificate held by her deceased husband, she did not press her application under section 88C for a certificate. Her application was accordingly dismissed by Order dated 17 the October, 1962. She then made an application under section 33B on 31.12.1962 for possession of the land ub question. These facts are no longer in dispute because they were found to be correct by three statutory authorities. All of them held that the facts, as pleaded by her on the point, enabled her to make an application under section 33B, which, as aforesaid, she did on 31.12.1962. The authorities concurrently found in her favour on the question of bona fide requirements. On a Writ petition filed by the tenant, the High Court, by the impugned judgment, held that the application filed by the appellant on 31.12.1962 was not within time. The Writ petition was allowed quashing the orders of the authorities below solely on the ground of limitation.
2. Sectioon 33B says that a notice has to be given under sub-section (1) before the 1st day of January, 1962, or if an application under section 88C was undisposed of and pending on that day, within three months of receipt of a certificate under that section. The appellant applied on 31.12.1962 for possession in terms of section 33B. If the Order dated 17th October, 1962 dismissing her application for a certificate under section 88C, for the reasons stated by the three statutory authorities, is accepted as the starting point of the period of limitation, her application dated 31.12.1962 was filed within time. On the other hand, if her application for a certificate under section 88C had not been withdrawn, she would have had time to file an application under section 33B until such certificate was issued to her. If the certificate was denied to her, she would have had a right to appeal against the order denying the certificate.
3. The Order dated 17th October, 1962 was made on the assumption that the appellant was entitled to make her application under section 33B on the strength of the certificate held by her husband. That the certificate hedl by the husband was heritable by the wife was not in doubt. All the parties proceeded on the basis that such a certificate was heritable. The only question then is whehter the authority that gave an assurance to the wife that she could act on the certificate held by her deceased husband, and that she could safely withdraw her own application which was unnecessary, is not estopped from denying her right to rely upon that certificate held by her husband. On the facts found, it is clear that she would not have withdrawn her application, but for the assurance held out to her by the concerned authority.
4. In the circumstances, the Order dated 17th October, 1962 dismissing her application under section 88C as withdrawn is the starting point of time of be reckoned to determine whether the application filed by the appellant under section 33B was within the perid prescribed. We agree with the three statutory authorities that the application was filed within time. The finding arrived at the High Court to the contrary in a writ proceeding is unsustainable. It is accordingly set aside. The appeal is allowed in the above terms. The parties shall bear their respective costs.
1. This appeal is by the wife of the deceased landlord against the judgment of the Bombay High Court in Speical Civil Application No. 1429 of 1971. The husband was a ‘certificated landlord’ within the meaning of section 33A of the Bomaby Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as ‘the Act’) He died on 23.12.1959. He had obtained a certificate under section 88C of the Act on 11.11.1959. The appellant had also applied for a certificate under that section on 30.9.1959. That application had been made within the time prescribed under the Act. However she was told by the concerned authority, namely, the Mamlatdar that in view of the certificate held by her deceased husband, it was unnecessary for her to make an application for a fresh certificate. On the assurance of the Authority that she was entitiledt o terminate the tenancy and assume possession of the land on the basis of the certificate held by her deceased husband, she did not press her application under section 88C for a certificate. Her application was accordingly dismissed by Order dated 17 the October, 1962. She then made an application under section 33B on 31.12.1962 for possession of the land ub question. These facts are no longer in dispute because they were found to be correct by three statutory authorities. All of them held that the facts, as pleaded by her on the point, enabled her to make an application under section 33B, which, as aforesaid, she did on 31.12.1962. The authorities concurrently found in her favour on the question of bona fide requirements. On a Writ petition filed by the tenant, the High Court, by the impugned judgment, held that the application filed by the appellant on 31.12.1962 was not within time. The Writ petition was allowed quashing the orders of the authorities below solely on the ground of limitation.
2. Sectioon 33B says that a notice has to be given under sub-section (1) before the 1st day of January, 1962, or if an application under section 88C was undisposed of and pending on that day, within three months of receipt of a certificate under that section. The appellant applied on 31.12.1962 for possession in terms of section 33B. If the Order dated 17th October, 1962 dismissing her application for a certificate under section 88C, for the reasons stated by the three statutory authorities, is accepted as the starting point of the period of limitation, her application dated 31.12.1962 was filed within time. On the other hand, if her application for a certificate under section 88C had not been withdrawn, she would have had time to file an application under section 33B until such certificate was issued to her. If the certificate was denied to her, she would have had a right to appeal against the order denying the certificate.
3. The Order dated 17th October, 1962 was made on the assumption that the appellant was entitled to make her application under section 33B on the strength of the certificate held by her husband. That the certificate hedl by the husband was heritable by the wife was not in doubt. All the parties proceeded on the basis that such a certificate was heritable. The only question then is whehter the authority that gave an assurance to the wife that she could act on the certificate held by her deceased husband, and that she could safely withdraw her own application which was unnecessary, is not estopped from denying her right to rely upon that certificate held by her husband. On the facts found, it is clear that she would not have withdrawn her application, but for the assurance held out to her by the concerned authority.
4. In the circumstances, the Order dated 17th October, 1962 dismissing her application under section 88C as withdrawn is the starting point of time of be reckoned to determine whether the application filed by the appellant under section 33B was within the perid prescribed. We agree with the three statutory authorities that the application was filed within time. The finding arrived at the High Court to the contrary in a writ proceeding is unsustainable. It is accordingly set aside. The appeal is allowed in the above terms. The parties shall bear their respective costs.
