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Keshav Gaman Vs. Bai Rukhaiyabibi and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 2481 of 1957
Judge
Reported inAIR1958Bom474; (1958)60BOMLR613; ILR1958Bom894
ActsConstitution of India - Article 227; Tenancy Law; Bombay Tenancy and Agricultural Lands Act, 1948 - Sections 29, 34, 34(2), 34(2-A), 34(2-A)(1), 75, 76 and 78(1); Bombay Tenancy and Agricultural Lands (Amendment) Act, 1952 - Sections 8
AppellantKeshav Gaman
RespondentBai Rukhaiyabibi and anr.
Appellant AdvocateJ.C. Tarapore, Adv.
Respondent AdvocateC.G. Shastri, Adv.
Excerpt:
.....the mamlatdar had to consider the position as to whether he would follow the direction of the bombay revenue tribunal or he would follow the ruling of the bombay high court given in durlabbhai's case (a) and, i dare say, the mamlatdar would have been well within his rights, had he chosen to follow the principle laid down in durlabbhai's case (a). while the mamlatdar is an authority subordinate to the bombay revenue tribunal and, therefore, bound to obey the direction given by the bombay revenue tribunal, the mamlatdar is an authority subordinate to the bombay revenue tribunal which again was an authority subordinate to the high court under article 227. therefore, even if the mamlatdar' had disregarded the direction of the bombay revenue tribunal because he would prefer to follow the..........in the record of rights as an occupant on 1-1-1952. the ease was then taken in revision before the bombay revenue tribunal.3. now, it would appear that the bombay tenancy and agricultural lands act, 1948 was amended by act xxxiii of 1952, and section 34 stood amended from 12-1-1953. the provision by whirl) section 34 was amended is contained in section 8 of the amending act. section 8 of the amending act made important changes in section 34 as it originally stood. a new provision was added to section 34(2) (b) and the provision is in the following terms :'or (c) to terminate the tenancy of a protected tenant on the ground that the landlord requires the land for cultivating it personally, unless the income by the cultivation of such land will be the main source of the income of the.....
Judgment:

Dixit, J.

1. This is a tenant's petition under Article 227 of the Constitution of India and it arises under the following circumstances.

2. Opponent No. 1 to this petition is the owner of four pieces of land bearing survey Nos. 133, 134, 140 and 141 situate at Palod in the Mangrol taluka, of which the present petitioner is the tenant. On 10-3-1952 the first opponent as the land-lady issued a notice to the applicant-tenant terminating his tenancy with effect from 31-3-1953 on the ground of bona fide personal cultivation under Section 34 of the Bombay Tenancy and Agricultural Lands Act, 1948. As the notice was not complied with, the first opponent filed against the applicant an application for possession of the suit lands on 4-4-1953. This application was rejected by the Mamlatdar on 10-11-1953, holding that the name of the land-lady i.e., the first opponent was net entered in the record of rights on 1-1-1952. From this order an appeal was preferred before the Prant Officer, who confirmed the order of the Mamlatdar, holding that the land-lady's name did not stand in the record of rights as an occupant on 1-1-1952. The ease was then taken in revision before the Bombay Revenue Tribunal.

3. Now, it would appear that the Bombay Tenancy and Agricultural Lands Act, 1948 was amended by Act XXXIII of 1952, and Section 34 stood amended from 12-1-1953. The provision by whirl) Section 34 was amended is contained in Section 8 of the amending Act. Section 8 of the amending Act made important changes in Section 34 as it originally stood. A new provision was added to Section 34(2) (b) and the provision is in the following terms :

'or

(c) to terminate the tenancy of a protected tenant on the ground that the landlord requires the land for cultivating it personally, unless the income by the cultivation of such land will be the main source of the income of the landlord for his maintenance.'

There was another important change made in section 34 and new sub-section was added after Sub-section (2), and it is Sub-section (2-A) which provides, by Clause (1) 'The land held by the protected tenant on lease stands in the record of rights in the name of the landlord on the first day of January 1952 as the superior holder'.

The rest of the amendments are not material to the decision of this application.

4. Now, in this case the notice was given on 10-3-1952 and the proceedings were commenced on 4-4-1953, after terminating the tenancy on the 31st of March 1953. It is apparent that the amended provision came into operation between the date of the notice which was 10-3-1952 and the termination of the tenancy which was on 31-3-1953. The question, therefore, arose as to whether the new provision would apply to the proceedings pending before the Bombay Revenue Tribunal and the Bombay Revenue Tribunal took the view that the amended provision of Section 34 would not apply to the case as the notice by which the tenancy had been terminated was given in March 1953 i. e. before the amended section came into operation on 12-1-1953. Having taken that view, the Bombay Revenue Tribunal, by an order made on 17-8-1955, remanded the proceedings to the Mamlatdar for disposal in accordance with law after raising the necessary issues under Section 34 as it stood before the amendment made in 1953. This conclusion of the Bombay Revenue Tribunal was contrary to the decision of this Court reported in the case of Durlabbhai v. Jhaverbhai. : AIR1956Bom285 . It may be pointed out that the case was decided on 12-10-1955. Therefore, the view which this Court took in Duriabbhai's case (A) was after the revisional application was decided by the Bombay Revenue Tribunal on 17-8-1955. Ii was open to the Bombay Revenue Tribunal to interpret Section 34 as amended, as it thought fit, and to give the section its own meaning. But the fact remains that the interpretation placed by the Bombay Revenue Tribunal was contrary to the opinion given by the Full Bench in Duriabbhai's case {A).

5. When the matter went back, the Mamlatdar raised the necessary issues as they arose under section 34 before its amendment. On the issues which were framed the Mamlatdar found that the notice terminating the tenancy of the opponent was valid, that the land-lady was cultivating personally other lands which were in area less than fifty acres and that she bona fide required the lands for personal cultivation. In accordance with these findings, the Mamlatdar made an order for possession in favour of the land-lady on 24-4-1956. The order was then challenged in appeal before the Assistant Collector, Surat Prant, and the Assistant Collector disposed of the appeal on 27-7-1956. In making the order which the Assistant Collector did, the Assistant Collector observed as follows:

'Now, in this case a peculiar position has arisen, because since B. R. T. passed this order in the present case, holding that as in this case the notice Was given prior to the amendment of Section 34, old section 34 should apply, but subsequently this interpretation has been upset by High Court in the Special Civil Application No. 1111/56, dated 12-10-1955 and, therefore, to carry out this order of B. R, T. is likely to lead to miscarriage of justice, as High Court whose decision is binding on B. R. T. as well as subordinate Courts has held that even in such cases the amended Section 34 is applicable. 1, therefore, consider it more fit to allow this appeal, remand the case to lower Court with a specific direction to refer the matter to B. R. T. to get it clarified whether order of B. R. T. should be carried out in the altered circumstances, or High Court's interpretation accepted and case tried accordingly'.

The Bombay Revenue Tribunal has described this order as 'very difficult to understand''. However that may be, the fact remains that the Mamlatdar, who is an authority subordinate to the Bombay Revenue Tribunal, was faced with a difficulty. If the Mamlatdar followed the principle laid down in Duriabbhai's case (A), he would be disregarding the direction given by the Bombay Revenue Tribunal. If, on the other hand, the Mamlatdar was prepared to follow the direction given by the Bombay Revenue Tribunal, the Mamlatdar would not be following the decision of the Bombay High Court. In order to get out of this difficulty, the Assistant Collector seems to have advised -- an unusual piece of advice, I think -- the Mamlatdar to get the point clarified. So the clarification was sought and upon clarification, the Deputy Registrar of the Bombay Revenue Tribunal informed the Mamlatdar on 30-8-1956 that the order of the Bombay Revenue Tribunal should be treated as final. It would appear that this clarification was made not by the Bombay Revenue Tribunal but by the Deputy Registrar of the Tribunal in a reply sent by that Officer to a letter written by the Mamlatdar. When the reply was received by the Mamlatdar, the task of the Mamlatdar became easy and therefore, on 25-9-1956 he passed an order in the following terms:

'In view of the directions of the B. R. T. as well as of the .Assistant Collector, Surat, the order of the B. R. T. bearing No. 142/54 dated 17-8-55 stands final and as such nothing remains to be done now in the matter by this court. The parties should be informed accordingly'.

If one may say so without offence, the Mamlatdar literally carried out the order and made no order. The order if it is an order and can be described as such was then taken in appeal before the Assistant Collector and the Assistant Collector was again faced with a difficulty. An appeal would lie only against an order, but the tenant chose to prier an appeal and the appeal was entertained by the Assistant Collector. The Assistant Collector concurred with the Mamlatdar on the question of bona fides as well as on the issue about the acreage of lands under the personal cultivation of the land-lady. The Assistant Collector, however, differed from the Mamlatdar as regards the construction of the notice given by the landlady to the tenant and the Assistant Collector came to the conclusion that the notice was not valid, because it did not terminate the tenancy of the tenant. On that finding, the order made by the Mamlatdar was set aside and the application made by the first opponent was dismissed. It was from that order that a revisional application was filed before the Bombay Revenue Tribunal on 22-2-1957. In dealing with the revisional application the Bombay Revenue Tribunal was again faced with a difficulty. By an order previously made, the Bombay Revenue Tribunal had taken the view that the case was governed by Section 34 as it stood before its amendment and since that view was taken by the Bom. Revenue Tribunal, the Bombay Revenue Tribunal was of the opinion that that order had become final. The Bombay Revenue Tribunal, on the other hand, had to consider the implication of the decision of the High Court in Durlabbhai's case (A) but the Bombay Revenue Tribunal thought that notwithstanding the enunciation of the principle by the High Court in Durlabbhai's case (A), the Bombay Revenue Tribunal had previously made an order which had become final and, therefore, the Bombay Revenue Tribunal was not concerned with the principle laid down by the High Court in Durlabbhai's case (A). Having taken that view, the Bombay Revenue Tribunal then went on to confirm the order made by the Mamlatdar on 24-4-1956. It may be pointed out that on the question of notice, the Bombay Revenue Tribunal came to the conclusion that the notice given by the landlady to the tenant was a proper notice.

6. Mr. Tarapore appearing for the tenant has, upon this petition, challenged the order made by the Bombay Revenue Tribunal and his contention is that so far as the present case is concerned, there is no question that the case is governed by Section 34, as it was amended in the year 1953. There can be no-doubt that Mr. Tarapore is right. The notice was issued on 10-3-1952 terminating the tenancy. The tenancy would stand terminated with effect from 31-3-1953 and although the amending Act came into force on 12-1-1953, the High Court had ruled that in such cases Section 34, as amended, would come into operation, But Mr. Shastri appearing for the first opponent contends that the Bombay Revenue Tribunal was right in adhering to the view which it had taken on 17-8-1955. In considering the validity of this contention, one must first consider the nature of the order made by the Bombay Revenue Tribunal on 17-8-1955. That, order was an order of remand, directing the Mamlatdar to dispose of the application in accordance with law, according to Section 34 as it stood before its amendment in 1953. This order did not make any final order. The application was yet to be tried on its merits; the necessary issues had to be raised; evidence had to be led and findings had to he recorded upon those issues, and the only final order which the Mamlatdar could make upon the application would be under suction 29 either allowing the application of the landlady or refusing it. No finality was attached to this order. It was, so to say, an order which did not finally determine the rights of the parties. Now, an order may become final in one of two ways. An order which is subject to an appeal may become final when no appeal is preferred. An order may not be subjected to an appeal. In such a case again, an order may become final. But in either case the order must be a final order in the sense that it determines the rights of the parties. In this case it is evident that the rights of the parties were not determined except in so far as the rights of the parties were governed not by Section 34, as amended, hut by Section 34 before its amendment. Mr. Shastri, however, says that the order of 17-8-1955 was final as between the parties to the revisional application. Mr. Shastri would he right provided the parties were parties to an application in which a final order had been made. To the extent to which the Bombay Revenue Tribunal took a particular view of law, that view of law would no doubt be one binding upon the parties. But it was an erroneous view of law and the question for decision is whether the present applicant is concluded by the view of law taken by the Bombay Revenue Tribunal on 17-8-1955. It is conceded by Mr. Shastri that there is no provision according to which the present applicant was bound to come up to the High Court under Article 227 of the Constitution. Article 227 gives power to the High Court in order to do justice between the parties. It no doubt affords a remedy to an aggrieved party to come un to the High Court under Article 227. But there is no law which compels a party to come up to the High Court under Article 227. If, therefore there was a provision by which the present applicant was bound to apply to the High Court under Article 227, there would nave been some force in the contention of Mr. Shastri. In the absence of any such provision, the contention of Mr. Shastri that the view of the Bombay Revenue Tribunal had become final as between the parties to the revisional application cannot be accepted.

7. There is another reason why his contention cannot also be accepted. It may be that the Bom-bay Revenue Tribunal had taken a particular view of law by its order dated 17-8-1955. When the Mamlatdar was dealing with the application a second time, the Mamlatdar had to consider the position as to whether he would follow the direction of the Bombay Revenue Tribunal or he would follow the ruling of the Bombay High Court given in Durlabbhai's case (A) and, I dare say, the Mamlatdar would have been well within his rights, had he chosen to follow the principle laid down in Durlabbhai's case (A). While the Mamlatdar is an authority subordinate to the Bombay Revenue Tribunal and, therefore, bound to obey the direction given by the Bombay Revenue Tribunal, the Mamlatdar is an authority subordinate to the Bombay Revenue Tribunal which again was an authority subordinate to the High Court under Article 227. Therefore, even if the Mamlatdar' had disregarded the direction of the Bombay Revenue Tribunal because he would prefer to follow the ruling of the Bombay High Court given in Durlabbhai's case (A), the Mamlatdar would have been perfectly within his rights. Therefore, there is no substance in the contention of Mr. Shastri that the Mamlatdar was hound to obey the direction given by the Bombay Revenue Tribunal in its order of 17-8-1955 which had become final.

8. Mr. Shastri relies upon a decision of this Court reported in Ramkuvarbai Tuljaram v. Damodhar Narbheram 6 Bom HCR 146. The head-note to that case is in the following terms:

'A remand order made on Special Appeal is (unless a review of it be obtained within the prescribed time) a conclusive determination of the points of law involved in it; and the correctness of law laid down upon a remand cannot be questioned on a second Special Appeal nor is the fact of the Court's adopting a different view of the law after an order has been made in general a good ground for allowing a review of such order after the time for a review has elapsed'.

What happened in that case was that the High Court held a certain view of law when the case was remanded by it. That view of law was not correct when the High Court was called upon to consider the question again and the High Court took the view that in such a case the previous view of the High Court was binding upon a Bench of the High Court at a subsequent stage. Now, whatever difficulty the High Court may feel in such a case so far as this Court is concerned, no such difficulty arises in this case. The view of law taken by the Bombay Revenue Tribunal would, upon examination now be found to be erroneous. It may be -- but we express no opinion upon it -- that the Bombay Revenue Tribunal may consider that it should not depart from the view which it had previously taken. But so far as this Court is concerned, this Court had not taken previously a'y view of law inconsistent with the principle laid down in Durlabbhai's case (A) and even on the contention raised by Mr. Shastri, there is an answer and that answer will be found in Mt. Chauli v. Mt. Meghoo : AIR1945All268 . It is sufficient to quote an observation in that judgment:

'On the other hand, it cannot he said that any question has been finally determined until it leads to some action, that is, to a decree which may be executed or an order which must be carried into effect.'

It is interesting to notice that the view of the Allahabad High Court proceeds upon a principle recognised in Balvant Ramchandra v. Secretary of State ILR 32 Bom 432 this is what is observed:

'In so far as any part of the judgment is based upon an assumption or hypothesis which is now ascertained to he erroneous, it is, we think, competent to us or rather, it is incumbent on us _to disregard it, and to reopen that portion of the case affected by the error'.

Applying this principle to the facts of this case, it is clear that the previous order of the Bombay Revenue Tribunal was affected by the error in so far as it took an erroneous view of Section 34 and now that the error has come to our notice, it is, in the language of this observation, incumbent upon us to reopen that portion of the case affected by the error.

9. There is also another aspect of the matter which may be considered. The Bombay Revenue Tribunal takes the view that the order made by it on 17-8-1955 had become final and even if wrong, cannot be reconsidered. Now, we fail to see what order has been conclusive. There was no order made by the Bombay Revenue Tribunal by which either the Bombay Revenue Tribunal had allowed the application of the landlady or had refused it. There was no order which would amount to a decree or no order which would amount to an executable order. What the Bombay Revenue Tribunal did was merely to remand the proceedings after laying down the Jaw as it thought fit. When the Bombay Revenue Tribunal saw that the exposition of the law made by it on a previous occasion was not correct, the Born-bay Revenue Tribunal, which is bound by a decision given by this Court, would have been well within its rights by following that decision and giving effect to it. The powers of the Bombay Revenue Tribunal are indicated in Section 76 read with Section 78 which, by Sub-section (1) provides:

'The Collector in appeal and the Bombay Tribunal in appeal under Section 75 and fn revision under Section 76 may confirm, modify or rescind the order in appeal or revision or its execution or may pass such other order as may seem legal and just in accordance with the provisions of this Act'.

Therefore, the order which the Bombay Revenue Tribunal has to pass in a legal order and must be in consonance with the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948. Now, when the Bombay Revenue Tribunal restored the order made by the Mamlatdar on 24-4-1956, can it be said that this order was in consonance with the provisions of the Bombay Tenancy and Agricultural Lands Act and it does not take two minutes to decide that the order is not in consonance because the order is contrary to the principle laid down in Durlabbhai's case (A).

10. It may be pointed out that a Court or a Tribunal or an authority may take one view of law. It may well happen that the view is right. It may also happen that the view may be wrong. But the moment it is recognised that the view is wrong, it is the duty of an authority subordinate to this Court to give effect to the view propounded by this Court. In our view, therefore, the order made by the Bombay Revenue Tribunal cannot be supported and must be set aside.

11. The question then arises as to what order we should pass upon this petition. Now, under section 34 as amended there are two principal considerations. The first of these is that the name of the landlord must appear in the record of rights on 1-1-1952. At a previous stage of this proceeding the Mamlatdar as well as the Assistant Collector had come to the conclusion that the name of the landlady did not appear in the record of rights on 1-1-1952, so that there is a finding recorded by a competent authority that the name of the landlady does not appear in the record of rights on 1-1-1952. If that position is correct, then the landlady's application must fail. On the other hand, it may be urged in favour of Mr. Shastri's contention that that finding was set aside when the Bombay Revenue Tribunal reversed the order made by the authorities below and sent the matter hack for decision on the merits after framing the necessary issues on 17-8-1955. To-day, therefore, the position is that there is no effective finding on the question whether or not the landlady's name appears in the record of rights on 1-1-1952. It is, therefore, for the Mamlatdar to determine whether this particular requirement of Section 34(2-A) (1) is satisfied. Then the other requirement of Section 34 which is contained in Section 34(2)(c) is that the landlady must show that the income of the suit lands is the main source of income and in regard to this requirement, this Court has also laid down in Dattatraya Vishnu v. Ganpat Ragho : AIR1957Bom193 that the landlord or the landlady in relying upon these provisions has to (satisfy two conditions. One of the conditions is that the land, possession of which is sought by him or her is required for maintenance of the landlord or the landlady; and the other condition which the landlord or the landlady has to satisfy is that it is the main source of the landlord's or the landlady's income. In other words, the landlord or the landlady has to show that the income of the suit land exceeds the income from other sources.

12. We would, therefore, allow this application, reverse the order made by the Bombay Revenue Tribunal on 3-7-1957 and send the proceedings back to the learned Mamlatdar in order to determine the questions (1) whether the landlady's name appears in the record of rights on 1-1-1952 and (2) whether the landlady proves that the lands of which possession is sought constitute her main source of income and that the lands are required for her maintenance. The parties will be allowed to lead evidence if they wish to bring any before the Mamlatdar and the application may be disposed of in accordance with law. Except the above issues, issues on which findings have been already given should not be agitated again. There will be no order as to costs on this petition.

13. Application allowed; Case remanded.


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