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Vishnu Narayan Divan Vs. Govind Chudappa and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 2996 of 1957
Judge
Reported inAIR1959Bom238; (1958)60BOMLR670; ILR1958Bom927
ActsConstitution of India - Article 227; Bombay Tenancy and Agricultural Lands (Bombay Revenue Tribunal Procedure) Rules, 1954 - Rule 32 and 32(1); Bombay Tenancy and Agricultural Lands Act, 1948 - Sections 14, 29(2) and 76
AppellantVishnu Narayan Divan
RespondentGovind Chudappa and anr.
Appellant AdvocateM.V. Paranjape, Adv.
Respondent AdvocateB.M. Kalagate and ;R.G. Samant, Advs.
Excerpt:
.....be accepted by tribunal or tribunal should weigh facts itself.;the jurisdiction conferred upon the bombay revenue tribunal under section 76 of the bombay tenancy and agricultural' lands act, 1948, is a limited jurisdiction. even in considering the question of exercise of discretion, they must accept the facts as found by the authorities below. the tribunal cannot, in such a case, weigh facts. they must take the facts as found and then come to a conclusion as to whether the discretion has been exercised in a perverse manner or not. if it is exercised in a perverse manner, the tribunal would have jurisdiction to interfere with the order made by the authority below. but if it is not exercised in a perverse manner, the tribunal would have no jurisdiction to substitute its discretion, in..........by the mamlatdar and dismissed the tenant's appeal. the tenant then applied in revision before the bombay revenue tribunal and the tribunal made an order setting aside the orders of the authorities below and granting the first opponent relief from forfeiture. it is the correctness of this order which the landlord has challenged upon this petition under article 227 of the constitution.3. mr. m.v. paranjape, appearing for the landlord, contends that in view of the concurrent finding of the mamlatdar and of the district deputy collector in appeal that the default of the first opponent was intentional, it was not proper for the bombay revenue tribunal to interfere with the conclusion reached by the authorities concerned. on behalf of the first opponent, however, a preliminary objection has.....
Judgment:

Dixit, J.

1. The petitioner is the owner of two fields bearing Revision Survey Nos. 238 and 239 of the village Annur in the Kagal Taluka of the Kolhapur District. The first opponent is a tenant of these lands which were let out to him at an annual rent of Rs. 1,300. The case of the petitioner is that the first opponent committed default in the payment of the amount of rent for three years, i.e., 1952-53, 1953-54 and 1954-55. The landlord gave a notice to the first opponent terminating his tenancy and eventually filed Tenancy Suit No. 233 of 1955 to recover possession under Section 29(2) read with Section 14 of the Bombay Tenancy and Agricultural Lands Act, 1948. In answer to the suit, the first opponent filed a written statement, in which he alleged that he had improved the land by constructing a well, that he was keeping with him cattle of the applicant for the purpose of grazing and that no receipt was given to him by the applicant for payment of the rent.

2. The Mamlatdar of Kagal, who heard the suit held, inter alia, that the defaults were proved and made an order in favour of the landlord, directing that possession of the suit lands should be handed over to the petitioner-landlord. The first opponent appealed, and in appeal, the District Deputy Collector affirmed the order made by the Mamlatdar and dismissed the tenant's appeal. The tenant then applied in revision before the Bombay Revenue Tribunal and the Tribunal made an order setting aside the orders of the authorities below and granting the first opponent relief from forfeiture. It is the correctness of this order which the landlord has challenged upon this petition under Article 227 of the Constitution.

3. Mr. M.V. Paranjape, appearing for the landlord, contends that in view of the concurrent finding of the Mamlatdar and of the District Deputy Collector in appeal that the default of the first opponent was intentional, it was not proper for the Bombay Revenue Tribunal to interfere with the conclusion reached by the authorities concerned. On behalf of the first opponent, however, a preliminary objection has been raised by Mr. R.G. Sawant, and the objection is that this petition should be dismissed in limine on the ground that there has been, in this case, gross delay in presenting the petition and, therefore, the petitioner is not entitled to any relief under Article 227 of the Constitution.

4. Now, the facts in connection with the objection are these: The order made by the Bombay Revenue Tribunal is dated 7th June, 1957 and the present application was filed in this Court on 10th October, 1957 and the interval is an interval of four months and a little more. Now, although Article 227 does not fix any particular period of limitation within which to present an application, it is well settled that a party wanting to claim relief under Article 227 must come up to this Court as expeditiously as possible. Since Article 227 itself does not provide for any period of limitation, no period of limitation can be fixed as such by an authority other than Parliament. So that it is for the Court to consider in each case whether there is gross delay in presenting a petition. Evidently, it must be a question of fact in each case, and, if I may say so, what can be regarded as gross delay is not and cannot be capable of a precise definition. Mr. Paranjape contends that the relief under Article 227 is an important right conferred upon a citizen who has a right to invoke the jurisdiction of the High Court and the exercise of jurisdiction cannot be determined by an arbitrary rule of limitation. In my view, Mr. Paranjape has put forward the argument a little too high. It is true that Article 227 confers upon a citizen a valuable right. But a party wanting to take advantage of the right must act diligently and must not lay by and play a waiting game. All that, therefore, the applicant must show is that he has lost no time in coming up to the High Court for the exercise of the Court's jurisdiction and in coming up to the High Court, he has exercised due diligence. Mr. R.G. Samant contends that the delay is gross delay and relies upon a decision of this Court recently given by the leaned Chief Justice sitting with Mr. Justice Datar in Special Civil Application No. 2906 of 1957 D/- 17-1-1958 (Bom), where the Court refused to interfere with a decision of the Bombay Revenue Tribunal on the ground that there was gross delay on the part of the petitioner in that case in coming up to the High Court. In that case, the order made by the Bombay Revenue Tribunal was dated 18th April, 1957 and the petition was filed on 12th September, 1957 and the petition was filed on 12th September, 1957; so that in that case it was a delay of some five months and, as I read the judgment, no particular ground was relied upon in that case to show that the delay was intentional. But it is clear that the application was dismissed on the ground that there was gross delay in that case.

5. As I have already observed, on has to examine the facts in each case to consider whether the petition should be dismissed on the only ground of limitation. The petitioner has stated in his petition that a copy of the judgment of the Bombay Revenue Tribunal was supplied to him on or about 27th August, 1957 and that the papers were despatched to Bombay for filing an application on or about 9th September, 1957 and further, that the petitioner was in straitened financial circumstances and was, therefore, unable to raise funds for the prosecution of this petition. I will at once say that the inability of a party to find out funds is hardly any ground in justification of the delay. In special circumstances, it may perhaps constitute to be a legitimate ground. But Mr. Paranjape relies upon a rule, viz., Rule 32(1) of the rules framed by Government, called the Bombay Tenancy and Agricultural Lands (Bombay Revenue Tribunal Procedure) Rules, 1954, which runs as follows:

'(1) A certified copy of the final order passed by the Tribunal on an appeal or application for revision shall be sent free of cost by the Registrar as soon as practicable to (a) the appellant or applicant;.....'

Therefore, the requirement of the rule is that a certified copy of the final order has got to be sent to the party concerned and the rule is evidently mandatory. In compliance with this rule, a certified copy of the order appears to have been supplied to the petitioner on or about 27th August, 1957. Now, it appears that the order dated 7th June, 1957 was made in the presence of the pleaders of the parties; so that the petitioner was present through his advocate at the time when the revisional application was decided by the Bombay Revenue Tribunal. On that basis, the advocate for the petitioner knew about the decision and ordinarily, the knowledge about the decision to the advocate may well be attributed also to the petitioner. The petitioner also knew that the order was made against him. The petitioner must be taken to have known that unless the order was challenged successfully, the order was binding upon him. The petitioner must, therefore, be taken to know that he must make an application, if so advised, by a petition under Article 227 of the Constitution; and if the petitioner knew all that, the petitioner would want a copy of the order in order to enable him to file a petition in this Court. But the petitioner does not appear to have applied for a copy, evidently relying upon the fact that a certified copy of the order was to be supplied to him under Rule 32 referred to above. If, therefore, the petitioner thought that a certified copy of the order would be supplied to him, as required by Rule 32, one need not find fault with the petitioner because he did not apply for a certified copy himself of the order made against him. He may well have thought that as a certified copy of the order would be supplied to him, he may reasonably wait for the supply of such a copy. It should not, however, be understood that because the petitioner has to be supplied a certified copy of the order, the petitioner would be justified in waiting for a certified copy for a long time so as to contend, relying upon this judgment, that there would be no delay in such a case. I am satisfied that if a petitioner waits fora reasonable time, expecting to receive a certified copy of the order, one need not say that the delay is on that account any gross delay. But there is something more. Although the petitioner received the copy on 27th August, 1957 and although the copy was despatched on or about 9th September, 1957, the petition was not filed until 10th October, 1957. In that connection, the explanation given by the petitioner is that he was in straitened financial circumstances. I will again say at once that the circumstance of the petitioner being in financial embarrassment is no reason for his waiting in order to make up his mind to file a petition in this Court. What I have to consider is whether the delay in this case can fairly be described as gross delay. The petitioner received the copy on 27th August, 1957 and the petitioner filed the petition on 10th October 1957, and I am prepared to say that this period can by no means be described as anything gross delay. Therefore, on the facts of this case, we are satisfied that the contention raised by Mr. Samant is not well-founded and must be rejected.

6. Going to the more important question raised by Mr. Paranjape, the question for consideration is whether the Bombay Revenue Tribunal was justified in interfering with the orders made by the District Deputy Collector in appeal and by the Mamlatdar of Kagal? Now, it is again a settled principle that where discretion is conferred upon an authority, the discretion must be judicially exercised and unless the discretion has been exercised either arbitrarily or capriciously or in a perverse manner, the superior authority would have no power to interfere with the exercise of the discretion on the part of the lower authority. In order to appreciate this contention, it is necessary to state the facts as found by the Mamlatdar as well as by the District Deputy Collector in appeal.

7. Let met first refer to the years of default. The agreed rent is a sum of Rs. 1,300 per year. For the year 1952-53, the amount of the rent was payable on 20th March, 1953 and the tenant paid the rent on 27th November, 1953. If the amount of the rent is payable on 20th March, 1953 and the payment was made on 27th November, 1953, it is clear that there was a default in 1952-53. For the year 1953-54 and the year 1954-55, the tenant did not pay the amount of the rent due for those years. There was, therefore, a clear case of default in the payment of rent for the years 1952-53, 1953-54 and 1954-55. But Mr. R.G. Samant, appearing for the tenant, contends that the payment made on 27th November, 1953 was a payment made by the tenant for the year 1953-54 and not for the year 1952-53, and in this connection he relies upon Section 26(1) of the Bombay Tenancy and Agricultural Lands Act, which provides:

'In the absence of an express intimation in writing to the contrary by a tenant, every payment made by a tenant to the landlord shall be presumed to be a payment on account of rent due by such tenant for the year in which the payment is made.'

Now, the payment was made on 27th November, 1953, and Mr. Samant is right that, having regard to the date of payment, the rent must be taken to have been paid for the year 1953-54. But it is necessary to remember that the payment was not made by the tenant. The payment was made by witness Appa Bhau Patil, whose evidence is that he paid Rs. 1,300 to the landlord on behalf of the tenant on 27th November, 1953 as rent for the year 1952-53. Appa Bhau Patil has not suggested that the payment was for the year 1953-54. If Appa Bhau Patil had stated in the sense in which he has not stated, it would have been possible to accept the contention of Mr. Samant that the payment made on 27th November, 1953 must be taken to be payment for the year 1953-54. But, in view of the evidence of Appa Bhau Patil, who has been believed by the Mamlatdar, we must accept the fact found that the payment made by the tenant on 27th November, 1953 was a payment for the year 1952-53 and not for the year 1953-54. The result, therefore, is that the tenant committed a default and made a late payment. For the years 1953-54 and 1954-55 there was a default and no payment was made. In any case, therefore, the case is one of default for non-payment of rent for the years in question.

8. But this is no all. For the year 1949-50, the petitioner had to file an assistance suit and obtained a decree on 9th April, 1951. It is evident that there was a default committed by the tenant in respect of the payment of rent for the year 1949-50. For the year 1950-51 the tenant did not pay the amount of the rent and so the landlord filed an application for possession, but the application ended in a compromise. Now, the fact found in that connection is that the tenant had made improvement by constructing a well and the landlord remitted the amount of the rent. It will not, therefore, be reasonable to say that the tenant had committed default in the payment of the rent for the year 1950-51. Then, for the year 1951-52, the tenant paid the rent in April 1953, although the rent was payable on 20th March, 1952. It is evidently again a case of default.

9. But this is not all. There is something more to be said in favour of the landlord. It would appear from the order made by the Mamlatdar that the tenant admitted that he would credit the amount of the rent of two years within a month or so. But the tenant did not pay any amount by way of rent, and the Mamlatdar observed: 'He was given an opportunity to pay off the dues but he has failed to do so, so far'. On these facts, which are not now in dispute, the Mamlatdar came to the conclusion that the default was intentional. The District Deputy Collector in appeal examined, as indeed he was entitled to examine, the facts of the case and concluded:

'When the Mamlatdar was convinced that the dues related clearly for three years and that the appellant was a contumacious defaulter, he was justified in not passing such an order. I therefore, agree with the observations of the Mamlatdar.'

In substance, therefore, the position is that both the Mamlatdar as well as the District Deputy Collector in appeal came to the conclusion that the default on the part of the tenant was intentional, i.e., wilful. Now, when one examines the reasons in support of the order made by the Bombay Revenue Tribunal, the Tribunal took into consideration the fact that the tenant was on the land for a period of 22 years; so that the tenant has been on the land for a fairly long time and one would justifiably say that that is a greater reason for paying the rent than for withholding it. But the conclusion reached by the Bombay Revenue Tribunal is; 'We do not think, therefore, that the tenant can be called a contumacious defaulter.' The Bombay Revenue Tribunal conceded that there was a default for the year 1953-54 and for the year 1954-55. They also conceded that in respect of the year 1952-53 there was a late payment. But if a tenant does not pay the amount of the rent on a due date and the tenant does not pay the amount of the rent at all, there should be no difficulty in holding that the default is wilful, unless there are circumstances showing that the default was not wilful. There are no such circumstances on which the Bombay Revenue Tribunal has relied. The Bombay Revenue Tribunal also proceeds to observe:

'It cannot, therefore, be said that he is a persistent defaulter.'

This view is based on the reasoning that it was not a case where the tenant was not willing to pay the amount, but that he was not in a position to pay the amount. With respect, this reasoning is indeed startling. How can the circumstance that a person is not in a position to pay the amount help him in saying that, because he was not in a position to pay the amount, he was not a defaulter? If a man does not pay continuously for a certain number of years the amount of rent payable by him, he is certainly a persistent defaulter. The question whether he is a wilful defaulter or not is entirely different. Therefore, the circumstance which need be taken in favour of the tenant is the fact that the tenant is upon the land for a period of twenty-two years. It is true that the tenant constructed a well and improved the land. But I am unable to see how the Bombay Revenue Tribunal could reach the conclusion that the tenant was not a wilful defaulter, and, in that connection, what is relevant is the conduct of the tenant. So that, there is a great deal in favour of the landlord and there is just a little in favour of the tenant. But how can the latter make the discretion exercised by the District Deputy Collector in appeal and by the Mamlatdar either arbitrary or capricious or perverse? In order to give jurisdiction to the Bombay Revenue Tribunal in the matter of exercise of jurisdiction, the Bombay Revenue Tribunal Must come to the conclusion that the authority below has exercised the discretion capriciously or arbitrarily or in a perverse manner, and, looking to the facts which are found in this case, we are not prepared to conclude that the discretion exercised by the District Deputy Collector and the Mamlatdar was, in any way, arbitrary, capricious or perverse. If the tenant improves the land, he stands to gain by the improvement. We may infer that the tenant is a willing worker. But that does not relieve him from paying the amount of rent on the due dates, nor would it justify him in not paying the amount of rent and driving the landlord to file an assistance suit.

10. The jurisdiction conferred upon the Bombay Revenue Tribunal under Section 76 of the Act is a limited jurisdiction. Even in considering the question of exercise of discretion, they must accept the facts as found by the authorities below. The Bombay Revenue Tribunal cannot in such a case weigh facts. They must take the facts as found and then come to a conclusion as to whether the discretion has been exercised in a perverse manner or not. If it is exercised in a perverse manner, the Bombay Revenue Tribunal would have jurisdiction to interfere with the order made by the authority below. But if it is not exercised in a perverse manner, the Bombay Revenue Tribunal would have no jurisdiction to substitute its discretion in place of the discretion exercised by the authority below. On all these grounds, I think, the order made by the Bombay Revenue Tribunal cannot be supported and will have to be set aside.

11. The result is that this application will be allowed, the order made by the Bombay Revenue Tribunal on 7th June, 1957 will be reversed and the order made by the District Deputy Collector on 23rd October, 1956 and the one made by the Mamlatdar, Kagal, on 27th June, 1956 restored. The first opponent to pay the costs of the petition.

12. Application allowed.


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