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Chintaman Anant Khasnis Vs. Keshav Dnyanu More and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 1778 of 1972
Judge
Reported inAIR1978Bom248; 1977MhLJ755
ActsBombay Tenancy and Arricultural Lands Act, 1948 - Sections 14, 29, 31 to 31D, 32R, 33A to 33C; Bombay Tenancy and Agricultural Lands (Amendment) Act, 1960; Bombay Tenancy and Agricultural Lands (Amendment) Act, 1961; Bombay Tenancy and Agricultural (Amendment) Tenancy Act, 1956 - Sections 88C and 88C(1), 88C(2), 88C(3) to 80C(5); Bombay Tenancy and Agricultural (Amendment) Tenancy Act, 1957
AppellantChintaman Anant Khasnis
RespondentKeshav Dnyanu More and ors.
Appellant AdvocateP.S. Warke and ;P.S. Joshi, Advs.
Respondent AdvocateG.R. Rege, Adv., i/b., R.G. Samant & Co.
Excerpt:
the case debated whether the certificated landlord, who had filed an application under section 33-b of the bombay tenancy and agricultural lands act, 1948, could claim tenancy of the entire land - the certificated landlord had already applied under section 31 of the act and had obtained a final order in his favour on 12.8.1957, long before 9.2.1961 - the court ruled that he was a certificated landlord, not falling either under section 33b(1) or (2) of the act - further, his application under section 33-b of the act, for obtaining possession of the entire tenanted land was to be rejected, on the ground that amended provisions were not meant for him and he was not one of the certificated landlords who could apply under section 33b of the act. - - no, 1255 of 1966 decided on 7-11-1968. in.....deshmukh, j.1. the petitioner is a certificated landlord under the provisions of the bombay tenancy and agricultural lands act, 1948 (hereinafter referred to as 'the tenancy act'). he had filed an application for obtaining possession of the entire tenanted land under the provisions of section 33b of the tenancy act. the application was rejected by the mamlatdar principally on the ground that he had previously applied under section 31 of the tenancy act and had obtained a final order in his favour. in the circumstances, section 33b(5)(a) would come in his way and he was not entitled to any relief. the appeal filed by the landlord succeeded as the special deputy collector held that resumption under section 33b(5)(a) meant actual recovery of possession and not a mere order to obtain.....
Judgment:

Deshmukh, J.

1. The petitioner is a certificated landlord under the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as 'the Tenancy Act'). He had filed an application for obtaining possession of the entire tenanted land under the provisions of Section 33B of the Tenancy Act. The application was rejected by the Mamlatdar principally on the ground that he had previously applied under Section 31 of the Tenancy Act and had obtained a final order in his favour. In the circumstances, Section 33B(5)(a) would come in his way and he was not entitled to any relief. The appeal filed by the landlord succeeded as the Special Deputy Collector held that resumption under Section 33B(5)(a) meant actual recovery of possession and not a mere order to obtain possession passed by the Tribunal under Section 31. The tenant was dissatisfied and filed a revision application before the Revenue Tribunal. The Revenue Tribunal allowed the revision application by accepting a view already taken by a Full Bench of that Tribunal. The learned President found that there were two conflicting judgments of single Judges of this Court one of which took the view similar to the one taken by the Full Bench of the Tribunal. He preferred to follow that view and allowed the revision application. Being aggrieved, the landlord has filed this petition.

2. When the matter was called out before the learned single Judge, it was brought to his notice and he also felt that the petition itself should be referred for disposal to a larger Bench. The ground on which reference is made in this manner is that there is a conflict of views between the judgments of two learned single Judges as to the correct meaning and interpretation of the phrasal 'land has already been resumed by the landlord,' One of those judgments by Deshpande J. has been reported in Antaji Ramchandra v. Pandurang : AIR1969Bom363 . The other judgment of Bhasme J. has not been reported in any authorised series, However, we have seen the original judgment in Special Civil Appl. No. 2035 of 1966 decided on the 22nd of Jan. 1971, It is also reported in 1972 TLR 36. This judgment follows another learned single Judge's decision in Special Civil Appl. No, 1255 of 1966 decided on 7-11-1968. In view of this conflict, the learned single Judge felt that the better course would be to refer the matter to a larger Bench, In this manner the petition itself has been referred to us for hearing and final disposal.

3. We heard the parties exhaustively. In order to understand how the referred question of law arises for decision in the petition, we requested the Counsel to investigate into the facts and give us a detailed statement of facts. Initially, the record was insufficient, but they managed to bring all the record and gave us the requisite details. Our further discussion will show that we are able to dispose of the case on an entirely different point not specifically raised in the proceedings but being a matter of approach to the maintainability of the petition itself, it could be raised and heard by us. In the circumstances, it has not been found necessary to decide the real meaning and interpretation of the above referred phrase in this litigation,

4. The few undisputed facts which should be known are these : The petitioner is admittedly a certified landlord. He had filed an application under the amended Tenancy Act (Bom. 13 of 1956) under Section 31. This application had to be made on or before the 31st of March 1957, Under the provisions of the Tenancy Act as then existed any landlord who wanted to resume land for personal cultivation had to terminate the tenancy and file an application as contemplated by Section 31, Subject to the conditions laid down by the succeeding sections being fulfilled, the landlord was entitled to resumption of half the land for personal cultivation. The present petitioner thus applied sometime before the 31st of March 1957 and he obtained a consent order from the Tenancy Mahalkari under Section 31 read with Section 29(2) of the Tenancy Act on the 12th of Aug. 1957, However, it is admitted that he has not executed the order nor has he actually taken possession till now. Under the consent order he is entitled to obtain possession for personal cultivation of half the land out of Section No. 390/3 measuring 5 acres and 24 gunthas assessed at Rs. 6-7-0 from the Village Jath.

5. Section 88C as was Introduced on 5-8-1956 was amended on 28-9-1957 Sub-sections (1) and (2) thereof were remodeled and Sub-sections (3) to (5) were added to that section. The provisions of Section 88C referred to a very small landholder whose total holding was less than one economic holding and whose total income from all sources including the rent of the tenanted land was not more than Rs. 1,500/-. In the case of such a person the amendment made in 1957 required him to apply within a specified time for a certificate of exemption under Section 88C. When the present petitioner applied before the Tenancy Mahalkari and obtained the consent order in his favour, the obtaining of such a certificate was not necessary. After the introduction of the amendment, by application No. 253 of 1958 the petitioner applied for a certificate under Section 88C and obtained the certificate in pursuance of an order dated 30-11-1961. By this time the Tenancy Act was further amended by Mali. Act No. 9 of 1961. This Act introduced the terminology of a certificated landlord for the landlord who was covered by Section 88C and enacted the provisions of Sections 33A to 33C which enabled the certificated landlord to apply before a certain date for claiming possession for personal cultivation of the entire land from the tenant. These provisions could enable the landlord to obtain possession of the whole land under certain circumstances or half the land if the circumstances fell within some of the provisions of Sub-section (5). Where, however, the tenant had ample land of his own under cultivation and the certificated landlord had the tenanted land only which could be availed of by him, it was possible for him to obtain an order and to recover possession of the entire land for personal cultivation.

6. In view of these amended provisions, the present petitioner applied for recovering possession of the entire land from the respondent by application No. 64 of 1962. The petitioner alleged that he was a certificated landlord and had obtained a certificate which concluded the question that the total land of the landlord was less than one economic holding and his total income from all sources including the rent of the land was not more than Rs. 1500/-, He further alleged that he wanted to cultivate the land personally and on that footing he was entitled to recover the possession of the entire land. This application was opposed on many grounds. But the principal defence was that the landlord had already applied under Section 31 and obtained a final order to his favour on 12-8-1957.

He might not have actually taken possession in pursuance of that order but the fact of having obtained a final order in his favour amounted to resumption of land within the meaning of that expression in Clause (a) of Sub-section (5) of Section 33B. In the circumstances, the petitioner was not entitled to file such an application and to claim further additional land for personal cultivation. As we have stated earlier, the Tenancy Mahalkari upheld the objection of the tenant and rejected the application. The appellate authority took the view that resumption for the purpose of Section 33B(5)(a) was actual physical resumption and since that had not taken place, the application was in order and was entitled to succeed. The Revenue Tribunal again restored the view of the Tenancy Mamlatdar and rejected the application of the landlord. This is how the landlord is before us.

7. When this matter was opened before us, we requested Counsel on either aide to take us through the entire scheme of the Tenancy Act in relation to the position of the certificated landlord from time to time. We must record our complete satisfaction at the exhaustive arguments addressed to us after careful scrutiny of the provisions of the Act as also the reported judgments by the learned Counsel on either side. That discussion led us to think that the provisions of Sections 33A to 33C have been introduced for the benefit, not of the entire class of certificated landlords but only some of them who could fall either under Sub-section (1) or Sub-section (2) of Section 33B. If a certificated landlord was not given the additional opportunity to apply for resumption of land under either of these two sub-sections of Section 33B, then he was excluded from these additional provisions as he was already provided for earlier under the general provisions of the Tenancy Act. We will presently show by referring to the amendments that took place from time to time how there has been a piecemeal and compartmental thinking by the Legislature which has deprived uniform advantage to a certain class of landlords who are considered by the Legislature itself as poor landlords. The label given to such poor landlords is 'certificated landlords' and the content of this certificate shows that the total land of this landlord is less than one economic holding and his total annual income from all sources including the rent of the tenanted land does not exceed Rs. 1,500/-. However, it will appear from the further discussion that where the Legislature felt that under the existing law certain remedies have been resorted to and have been finally concluded, there may not be a reopening of those cases. That must be the underlying idea as some of the landlords belonging to this class do not seem to be entitled to take advantage of the added provisions of Sections 33A to 33C.

8. We will now consider the schema of the Tenancy Act in relation to certificated landlord as was exhibited from time to time. When the original Tenancy Act of 1948 was amended by Bombay Act No. 13 of 1956 with effect from 1-8-1956, Sections 31 to 31D, 32 to 32R and 88C were introduced. To put in nut-shell the effect of these provisions the Legislature wanted to transfer all agricultural land to the actual cultivators thereof. 1-4-1957 was declared as tillers' day, it meant that on 1-4-1957 every tenant was deemed to have purchased the land from his landlord free from all encumbrances existing thereon on the said day subject to the amended provisions of the Tenancy Act. Liberty was reserved to the landlord to terminate the tenancy by serving a notice on the tenant on or before the 31st of Dec. 1956 by stating clearly the purpose for which the land was to be resumed. After service of such a notice, an application under Section 29 for recovering possession was to be made to the Mamlatdar on or before the 31st of March 1957. If no such application was made by the landlord, the tenant would be deemed to be the purchaser end therefore owner under the provisions of Section 32 of the Tenancy Act. However, if an application was in fact made and resulted in a decision in favour of the landlord, the vesting of the entire land in the tenant would be subjected to that result.

9. To this broad approach of the Legislature in transferring all agricultural land to the tiller himself an exception was carved out. A class of very small holders or poor landlords who were not given any label by the Legislature at that stage was described in Section 88C. In respect of those landlords who were sufficiently described till now the provisions of Sections 32 to 32R were not to apply. In other words, if a landlord fell within the description of Sub-section (1) of Section 88C, the provisions of the deemed purchase on the 1st of April 1957 were not to be operative and the landlord continued to be the landlord and the tenant a tenant of the land. There was exemption from transfer of title in the case of the landlord answering the description of Sub-section (1) of Section 88C. Sub-section (2) of Section 88C as it stood then provided that in case a dispute arose whether the annual income of such person exceeded Rs. 1500/- the decision of the Mamlatdar or in appeal that of the Collector was final.

10. A slight change was brought about in these provisions with effect from the 28th of Sept. 1957 by the amending Bom. Act No. 38 of 1957. Section 88C was amended by retaining Sub-section (1) as it was and by substituting Sub-sections (2) to (5) by considerably overhauling the original Sub-section (2). Under the original provisions which merely declared immunity from transfer of title, the landlords answering the description of Section 88C(1) were not required to apply to any authority to prove that they really belonged to that class. Only when dispute arose the Mamlatdar would decide whether the landlord really fell under that class and he was exempted. After this amendment of 1957, it was obligatory for every landlord to apply within the prescribed period which was extended from time to time for a certificate that he was entitled to exemption under that section. The immunity from the transfer of title was available only if the landlord so applied sometime before the 30th of Sept. 1961 and obtained a certificate since an obligation to apply was introduced. It would obviously mean that a landlord who did not apply in this manner and did not obtain the requisite certificate would be governed by the general provisions of the Act viz. Section 32 which would vest the title in the tenant with effect from 1-4-1957. If he however applied and obtained the requisite certificate, Section 32 would not apply to him and he would continue to be the landlord and his tenant would continue to be the tenant of the tenanted land.

11. A further amendment was introduced by the Legislature by the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1960 (Mah. 9 of 1961). By this Act, among other things, Sections 33A to 33C were introduced which are relevant for our purpose. That landlord has now received for the first time a designation or a label as certificated landlord and his tenant the description of excluded tenant, The gist of the new scheme is that a certificated landlord is entitled to apply for possession of the entire tenanted land for personal cultivation and if the provisions of Section 33B as a whole are satisfied he may get the entire land or a portion of it depending upon the facts and circumstances of the particular case. A further consequence of the introduction of these provisions also is that where the landlord does not apply or applies and fails to obtain possession or gets an order for a part of the land in his favour, the land remaining with the tenant viz. the whole or a part as the case may be would now vest in the tenant under Section 33C, Various dates can be conceived of for the purpose of vesting in the tenant depending again on the facts and circumstances of each case. Where there is no application by the landlord at all though he has obtained certificate more than three months before 1-4-1962, the vesting would automatically take place on 1-4-1962. Where a certificate has been obtained and an application has been filed in time as provided by the provisions, on the final termination of those proceedings vesting takes place. If the application is granted as a whole and the landlord gets the entire land for his cultivation, there is no question of vesting any title in a tenant. If, however, the application is wholly rejected or is partly granted and is partly rejected, as appears to be the language of Section 33C, to the extent of the land which the landlord is unable to resume vesting takes place with effect from the date of the final order. However, it appears to us that not every certificated landlord is entitled to apply under Section 33B, Consequences under these provisions are available only in the case of those landlords who are entitled to apply. Where the landlord is outside the purview of Section 33B, the provisions of the Tenancy Act as they stood apart from these added sections would operate in his case.

12. Bearing in mind this broad scheme of the Act, we will now find out who are the landlords who are entitled to apply under the provisions of Section 33B and whether the present petitioner falls amongst any one of them. Section 33A merely lays down as to who is a certificated landlord and who is an excluded tenant for the purpose of Sections 33B and 33C. On that point there is no dispute before us. The petitioner is a certificated landlord and the respondent is the excluded tenant. Since we are called upon to determine the class of landlords that fall under Sub-sections (1) and (2) of Section 33B for the purpose of giving a notice in the first instance and then applying for the purpose of obtaining advantages under the added provisions, in would be better to have the provisions ol Sub-sections (1) to (3) of Section 33B before our eyes. They are as follows:

'33B. (1) Notwithstanding anything contained in Sections 31, 31A or 31B a certificated landlord may, after giving notice and making an application for possession as provided in Sub-section (3), terminate the tenancy of an excluded tenant, if the landlord bona fide required such land fox cultivating it personally.

(2) The notice may be given and an application made by a certificated landlord under Sub-section, (3), notwithstanding that in respect of the same tenancy an application of the landlord made in accordance with Sub-section (2) of Section 31 -

(i) is pending before the Mamlatdar or in appeal before the Collector or, in revision before the Maharashtra Revenue Tribunal, on the date of the commencement of the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1960 (hereinafter referred to in this section as 'the Commencement date'), or

(ii) has been rejected by any authority before the commencement date.

(3) The notice required to be given under Sub-section (1) shall be in writing, and shall be served on the tenant -

(a) before the first day of January 1962 but

(b) if an application under Section 88C is undisposed of and pending on that date then within three month of his receiving such certificate,

and a copy of the notice shall, at the same time, be sent to the Mamlatdar. An application for possession of the land shall be made thereafter under Section 29 to the Mamlatdar before the 1st day of April 1962, in the case falling under (a) and within three months of his receiving the certificate in the case falling under (b)-'

Sub-section (1) opens with a non-obstante clause and it permits a certificated landlord to give notice as well as make an application for possession as provided in Sub-section (3) if the land is required for bona fide personal cultivation. The non obstante clause refers to Sections 31, 31A and 31B only and says that notwithstanding anything contained in these three sections a certificated landlord may give notice in the first instance and then apply for possession, What is precisely the implication of this non obstante clause? That clause says that in spite of whatever may have been contained in the 3 sections, viz, 31, 31A and 31B the certificated landlord is entitled to give notice and apply for possession. It would be, therefore, necessary to have a brief look at the provisions of Sections 31 to 31B. Section 31 enabled a landlord to terminate tenancy and apply for possession and the dead-end was laid down for adopting this course. It was obligatory to give notice as well as apply for possession under that section on or before the 31st of March 1957. If one did not, the consequence was vesting of title in the tenant under Section 32 as the tenant became the deemed purchaser. Supposing a landlord gave notice and applied under Section 31, what is the relief available to him? His application is now subject to the provisions of Sections 31A and 31B. He must prove that he falls under the enabling conditions of Section 31A and after proving his eligibility under that section the availability of land to him for personal cultivation is provided by Section 31B. In other words in spite of the fact that a landlord resorted to a proper legal procedure and proved his eligibility to obtain possession, the total land that was handed over to him by the legislative fiat was half the tenanted land and the other half land still vested in the tenant as from the 1st of April 1957.

13. The opening non-obstante clause of Section 33B wants to nullify the effect of these provisions. If a landlord had not applied, his right to claim possession for personal cultivation was lost for ever, That lost right of claiming land for personal cultivation was revived in the case of a particular class of landlords now described as certificated landlords. We have already shown that initially this class of landlords without any designation wag not required to apply for any certificate and was not subjected to the provisions of Section 32 relating to compulsory transfer of title. With the amended provisions an obligation was created to apply for and obtain a certificate. The moment this was done in time he was again saved of the consequences of Section 32 and continued to be a landlord. However, such a landlord who had already missed the remedy of Section 31 could not apply for personal cultivation. He had to continue as a landlord receiving the rent. It is true that on other grounds under Section 14 he may be entitled to claim possession if he proves the facts required by that section. The right to claim land for personal cultivation was enacted under S, 31 only and that right he had lost. The legislature now says that if such a landlord viz., the limited class of certificated landlords had not applied before he is now being given a fresh opportunity to apply and that Opportunity is notwithstanding the provisions of Sections 31, 31A and 31B. In other words, even though such a landlord had not applied before, when he now applies as provided by this new scheme, he is not subjected to the provisions of Sections 31, 31A and 31B but is controlled by this independent scheme as enacted in Section 33B Itself. The right to get the entire land for personal cultivation or a part of it would be now decided under Section 33B and not under any other provision. This is all that is meant by the non-obstante clause which opens with the word 'Notwithstanding.'

14. In our view, therefore, Sub-section (1) of Section 33B is an enabling provision only in the case of those certificated landlords who had never applied under Section 31 at all but were contented to remain landlords of the land tenanted, We of course assume that the landlord who wag not obliged originally to apply for a certificate had also applied and obtained a certificate when it became obligatory by the amendment of 1957, This is the only class of certificated landlords for whom Sub-section (1) has been enacted.

15. This leaves behind other certificated landlords who might have applied under Section 31. This general class of land--lords who might have applied under Section 31 again gets divided itself into two groups. One group would be of the landlords whose applications for possession under Section 31 are still not finally decided and are pending before some authority the original, the appellate or the revisional. The other group would be of those landlords whose applications have been finally disposed of. We are referring to these two contingencies as on the date when the new scheme of Sections 33A to 33C was introduced viz. the 9th of Feb. 1961 the Legislature was fully conscious that there would be landlords who had never applied under Section 31 at all and for them provision was made under Sub-section (1) of Section 33B. The Legislature was further aware that where landlords had applied under S, 31 the cases of some landlords would be still pending before some authority on the 9th of Feb. 1961 when this new scheme was being introduced and the cases of some landlords must have been finally disposed of on that day. Did the Legislature intend to provide for both these classes or some of them For that purpose, one has to look to Sub-section (2) of Section 33B.

16. This sub-section now says that the notice contemplated by Sub-section (3) may also be given and an application made by a certificated landlord notwithstanding that in respect of the same tenancy an application of the landlord made in accordance with Sub-section (2) of Section 31 is pending either before the Mamlatdar or in appeal before the Collector or in revision before the Maharashtra Revenue Tribunal on the commencement date, The commencement date has been described as the date when the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1960 (Man 9 of 1961), came into operation. This is what is provided by Clause (i) of Sub-section (2). There is also a provision contained in Clause (ii) which covers the cases of landlords whose applications have been rejected by the authority before the commencement date. The sum total of the two clauses leads to this : Certificated landlords who had applied under Section 31 and who had totally failed and whose applications were rejected before the commencement date would fall under Clause (ii). Certificated landlords who had applied under Section 31 but whose cases have not yet been finally disposed of but are pending before some of the three authorities mentioned above would fall under Clause (i). The landlords falling under both these clauses are given a further opportunity to terminate the tenancy and apply under Sub-section (3) because the provisions of Sub-section (2) of Section 33B are enacted notwithstanding that they had applied under Sub-section (2) of Section 31.

17. This leaves a further class of landlords in the field viz. those who had applied under Sub-section (2) of Section 31 but whose matters were not pending at all before any Tribunal but whose applications were granted by directing them the recovery of half the land as was the maximum possibility in the disposal of applications under Section 31. Now such a class does not fall either under Clause (i) or (ii) of Sub-section (2) of Section 33B and undoubtedly such a class does not fall under Sub-section (1) of Section 33B. It would, therefore, mean that for such a class of landlords belonging to the larger group of certificated landlords no provision hag been made by the Legislature enabling them to file applications under Section 33B. It is, therefore, plain that such landlords who applied under Section 31 successfully and obtained a final order in their favour before the commencement date had to remain content with such order as they obtained and the possession of any land under that order alone. They were not permitted to improve their chances of claiming more land from their tenants. They are pieced in the same position with those landlords who could apply under Section 33B but had not. If a certificated landlord who is entitled to apply under Section 33B does not apply, the land with the tenant vests in the tenant now with effect from 1-4-1962. In the same way, a landlord who had already pursued a remedy earlier and who wag not entitled to pursue the present remedy under Section 33B would be a certificated landlord who had in law never applied and the remaining land with the tenant would now vest in the tenant with effect from 1-4-1962. We have already indicated what would happen to those applications which are legally permissible under Sub-sections (1) and (2) and are disposed of in one way or the other by the Tribunal.

18. This according to us is the real meaning and scheme of Sections 31A to 31C and more particularly the provisions in Section 33B. If this is the correct interpretation of Section 33B, one has to find out at the very threshold when application is made by a certificated landlord under that section whether he is entitled to apply at all either under Sub-section, (1) or Sub-section (2). If he is, then the application has to be processed and disposed of on merits. If he is not entitled to apply at all under either of the two sub-sees. (1) and (2) of Section 33B, then he is outside the new scheme and is not entitled to make an application at all. Even if he applies, it is an application misconceived and must be rejected as untenable under Section 33B.

19. With these conclusions arrived at, when we look at the facts of the present case, we find that here is a petitioner who can be described as a certificated landlord. However, he is the certificated landlord who had applied under Section 31 and obtained a final order in his favour on 12-8-1957, long before 9-2-1961. The petitioner is, therefore, a certificated landlord who does not fall either under Sub-section (1) or Sub-section (2) of Section 33B. His application is liable to be rejected on the short ground that the amended provisions are not meant for him and he is not one of the certificated landlords who is eligible to apply afresh under the provisions of Section 33B. If Section 33B does not enable the present landlord to apply the question does not arise in this litigation as to how Clause (a) of Sub-section (5) of Section 33B should operate in the case of a certificated landlord who has validly made an application under Sub-section (1) or (2) of Section 33B. Though considerable discussion was made before us as to the correctness of the views taken by either of the learned single Judges, it is not necessary for us to enter upon that discussion as the case is being disposed of at the very threshold of Section 33B being an application not permissible at all under those provisions. This being our view, we reject this petition and discharge the rule. In the peculiar circumstances, there should be no order as to costs.

20. At this stage, Mr. Warke for the petitioner applies for leave to appeal to the Supreme Court which is refused.

21. Petition dismissed


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