1. These two Special Civil Applications are connected matters and raise an interesting question as to the true scope and interpretation of Section 88D of the Bombay Tenancy and Agricultural Lands Act (hereinafter referred to as the Tenancy Act). The facts giving' rise to this litigation are simple and few. Ananda Shrawan Kolambe the petitioner in Special 'Civil Application No. 1746 of 1965 is the landlord and owner of survey No. 925/1B measuring two acres, six gunthas and assessed at Rs. 1.14 and situated at village Yawal, district Jalgaon, while respondent Atmaram Onkar Talele in the said Special Civil Application is admittedly the tenant thereof. The landlord made an application on May 6, 1959, for exemption certificate under Section 88C of the Bombay Tenancy Act. An enquiry was held in the presence of the tenant and order granting the said exemption and directing the issue of the said certificate was passed on July 7, 1959. On the strength of the said certificate the landlord terminated the tenancy by notice dated April 29, 1961 and made an application for possession of the suit land on February 5, 1962, under Section 33B and Section 29 of the Act. This application of the landlord was rejected by the Tenancy Awal Karkun on December 11, 1962. On appeal, however, by the landlord, the same was allowed on August 30, 1963. Tenant's revision to the Maharashtra Revenue Tribunal was dismissed on February 10, 1965. The tenant has filed Special Civil Application No. 862 of 1965 challenging the said order of possession in favour of the landlord.
2. The only contention raised in this Special Civil Application by Mr. Sharad Manohar appearing for the tenant-petitioner is that the order for possession cannot be upheld as now the certificate under Section 88C itself has been revoked by the Commissioner by order dated April 28, 1965 passed in exercise of powers under Section 88D of the Tenancy Act.
3. After the Deputy Collector allowed the landlord's appeal and granted his application for possession under Section 33B on August 30, 1963, the tenant made an application to the Commissioner under Section 88D on October 1, T963. It is averred in the said application that landlord's income has now exceeded Us. 1,500 and hence the certificate of exemption granted under Section 88C was liable to be revoked. The Commissioner seems to have held some inquiry through the Mamlatdar concerned, and then called upon the landlord to show cause as to why the exemption certificate should not be revoked. This notice was served on the landlord. However, he did not appear before the Commissioner to show cause. The Commissioner then passed order on April 28, 1965, referred to in the earlier paragraph, revoking the exemption certificate. This order of the Commissioner is challenged by the landlord in Special Civil Application No. 1746 of 1965.
4. The principal contention of Mr. Bhokarikar, the learned advocate appearing for the landlord, is that the Commissioner could not have entertained any application from the tenant on October 1, 1963, after the proceedings under Section 33B were instituted on February 5, 1962, and the order passed by the Commissioner therefore is incompetent and invalid in law. Mr. Sharad Manohar, the learned advocate appearing for the tenant and Mr. S.C. Pratap, the learned Assistant Government Pleader appearing for the State, contend that the Commissioner's jurisdiction to hold enquiry under Section 88D(7) of the Tenancy Act, is not ousted merely because the landlord has started proceedings under Section 33B of the Tenancy Act on the strength of the certificate issued to him under Section 88C. According to them, it is open for the Commissioner to hold such enquiry at any time before the landlord succeeds in getting possession of the land from the tenant in proceedings under Section 33B, and revoke the certificate granted to the landlord, in the event of it being proved either that his income has exceeded Rs. 1,500 or that area of the leased lands belonging to the landlord has exceeded the economic holding.
5. In view of these rival contentions, it becomes necessary to examine the scheme enunciated in Sections 88C and 88D of the Act. Section 88C of the Tenancy Act was introduced in the Act on August 1, 1956 by amendment Act No. XIII of 1956. Under the said amendment Act No. XIII of 1956 several changes were introduced in the main enactment of 1948 and sweeping rights were conferred on the tenants, including the statutory right to purchase the land held by them as tenants under Section 32 of the Act. Section 88C was designed to give some relief to the small landholders whose leased area did not exceed economic holding and whose total annual income did not exceed Rs. 1,500. Their lands were sought to be exempted from the operation of Sections 32 to 32R of the Tenancy Act under which the tenants were deemed to have become purchasers. Section 88D(1)(i) provided for the revocation of such exemption certificate in the event of any increase of income or increase in the area of the leased land of such landlord. Both these sections namely, 88C and 88D, have been subsequently amended by Bombay Act No. XXXVIII of 1957. Suffice it to note that provision has been made under Section 880 to enable the Mamlatdar to hold enquiry as to the eligibility of any claimant-landlord to the exemption certificate and the order passed by the Mamlatdar is made final, subject to the appeal to the Collector under Section 74 of the said Act. Section 88D provides for revoking of the exemptions granted in regard to the several lands not only under Section 88C but also under Sections 88 and 88B, in the event of the contingencies mentioned in Clauses (i) to (iv), of Sub-section (1) of the said section. The section authorises the State Government to exercise the said powers. However, it is common ground that the said powers have been delegated by the State Government to the Commissioner. What requires, however, to be noted for the purpose of this case is that the powers conferred on the State Government or the Commissioner under Section 88D(7) or for that matter under Section 88D(1)(i) to (iv) are not the powers of revision or the review enabling the State Government or the 'Commissioner to consider the propriety, legality or validity of the order passed under Section 88C nor the State Government or the Commissioner is enabled under this section to revoke the certificate granted under Section 88C on the ground of fraud or suppression of any material in the course of the enquiry under Section 880. The powers conferred under Section 88D are independent and appear to have been intended to be exercised apparently only when as a result of some material change in the circumstances, the exemption granted is found to be unnecessary or undeserving.
6. Sub-Chapter HA in Chapter III of the Act was added by Maharashtra Amendment Act No. IX of 1961, introducing the provisions under which the exempted landlord under Section 88C could claim the possession of the land from his tenants. Section 88C also was slightly amended when this sub-Chapter IIA was introduced in the Act. The tenants of the exempted lands also were contemplated to be deemed purchasers in the event of contingencies mentioned in Section 330 of the said Act,
7. It is under this Section 33B that the landlord in this case instituted the proceedings for recovery of possession on February 5, 1962 after terminating the tenancy on April 29, 1961. Mr. Bhokarikar the learned advocate appearing for the landlord contends that as soon as he made an application for possession on February 5, 1962, he got a vested right in the lands sought to be resumed by him, and he cannot be deprived of his right to get the possession of the land by the subsequent order of the Commissioner passed by him as a result of some enquiry held under Section 88D of the Tenancy Act. I find much substance in this contention of the learned advocate. In the first instance it is the certificate granted under Section 88C which clothes the landlord with the attribute of being' a certificated landlord as contemplated under Section 33A. Now that certificate enables him to institute the proceedings. As soon as the proceedings are instituted for possession, the Mamlatdar or for that matter the Deputy Collector in appeal or the M.R.T. in revision, is under a statutory obligation to proceed with the case and dispose of the same in accordance with the requirements of Section 33B. The certificate gets exhausted and spent as soon as the proceedings are instituted and the Mamlatdar chooses to act on it and proceeds with the enquiry as contemplated under Section 33J3. After the case is taken up by the Mamlatdar the scope of the enquiry is limited to the questions of bona fide requirement and the factum of the termination of tenancy by service of notice and the matters enumerated in Clauses (a), (b) and (c) of Sub-section (5) of the said section. The plain language of this section does not warrant the assumption that a certificated landlord making an application under Section 3313 of the Act must continue to be so certificated landlord till the final disposal of the proceedings by the Mamlatdar.
8. Normal well settled rule is that rights of any litigant at all stages of the litigation have got to be determined and adjudicated with reference to the law and the facts as they stood on the date when the litigation was commenced. In fact, if the decision of the litigation is prolonged from the date of making an application, it is not because of any fault of the litigant but it is because the Court itself, due to several exigencies, is not in a position to grant the relief required as soon as the application is made. In this view of the matter, the mere circumstance that at a subsequent stage the certificate is revoked by the Commissioner under Section 88D, cannot have the effect of depriving the landlord of the rights which he possessed on the date of instituting the proceedings on the basis of such certificate and other facts and legal position as it stood on that day. As is well said a litigant gets a vested right in getting his claim adjudicated in accordance with the cause of action and facts as they stood on the date of the commencement of the litigation. True, it is open for the Legislature to amend the law depriving the suitor of his vested rights and give retrospective effect to such amended law. As long as however the law does not say so specifically or give indication of its intendment to that effect, clearly, the litigant cannot be deprived of his vested right to get his claim adjudicated in accordance with the cause of action and the facts as they stood on the date when the application or plaint was filed before the Court.
9. This apart, the Courts or the Tribunals in which the plaint or application is lodged are also under a statutory obligation to dispose of the claim in accordance with the rights as they existed at the commencement of the litigation. They are bound to give effect to the legislative mandate whenever the Legislature is found to have given such a mandate. But it is not open for even the Court to drop the proceedings or to close any proceeding inconclusively or to decide the matters in the light of subsequent enactment or subsequent developments in the absence of clear indication to that effect given by the Legislature. The question that arises for consideration then is, is there any indication either in Section 88D itself or in any other section of the Tenancy Act, showing that the vested rights accrued to the landlord on the date of the commencement of the proceedings should be ignored and the case should be decided in the light of the subsequent order passed by the Commissioner revoking the said exemption certificate? and is there anything either in Section 88D or in any other provision of the Tenancy Act authorising the Mamlatdar or the appellate or revisional authority to drop the proceedings as soon as any such certificate is revoked which was required to be possessed by the landlord at the commencement of the proceedings?
10. Mr. Pratap, for the State and Mr. Sharad Manohar, for the tenant, contend that Section 88D itself gives an indication that in the event of exemption being revoked by the Commissioner, the landlord so exempted and possessed of certificate should be denied the relief which he claims under Section 33B of the Tenancy Act and the said section itself indicates that proceedings instituted even before the revocation of the said certificate should be dropped and dismissed as soon as the certificate is found to have been revoked. Strong reliance is placed on the fact that Section 88D itself requires the Commissioner to direct as to from what date such revocation of the certificate is to take effect. Contention urged before me is that by requiring the Commissioner to fix the date the Legislature has given a mandate requiring the Court to drop the proceedings from the date from which the certificate is shown to have been revoked and the landlord is shown to have been disentitled to continue the proceedings already instituted by him.
11. Now, as stated earlier, there is nothing in Section 88D in terms requiring the Mamlatdar or the Deputy Collector in appeal or the M.R.T. in revision, to file or close the proceedings instituted or dismiss the proceedings so instituted merely on the ground that the certificate granted to him under Section 88C has been subsequently revoked by the Commissioner. If the Legislature wanted really to give any such mandate to the Mamlatdar or the higher authorities who are in fact quasi-judicial tribunals under obligation to dispose of the claims in accordance with the law, then the Legislature would have spoken with some clearer voice. I find it extremely difficult to read any such mandate in the phraseology of Section 88D. In effect the argument of the learned advocates results in the ouster of the jurisdiction vested in the Mamlatdar and the higher officers under the provisions of Section 33B of the Act. Ouster of the jurisdiction cannot be readily inferred in the absence of unambiguous indication to that effect. Secondly, the section requires the Commissioner to mention a date with effect from which the said certificate is to be made ineffective. Plain implication is that till the date so mentioned in the order, the certificate is effective and can be validly acted upon. To my mind the requirement of mentioning the date, from which the certificate is to stand revoked, on the contrary, supports the contention of Mr. Bhokarikar. It clearly gives an indication that Legislature wanted that at any rate till the date so mentioned in the said order passed by the Commissioner under Section 88D the certificate was not only effective but could have been acted upon by the Mamlatdar for the purpose of granting the relief to the land-holder so exempted. Once the certificate is found at any rate to be valid upto a certain date it is very difficult to resist the argument of Mr. Bhokarikar when he says that the valid certificate acted upon by the Mamlatdar at the commencement of the proceedings cannot be held to have become invalid retrospectively merely because the same is revoked with effect from a date subsequent to the institution of the proceedings. Had the Legislature not required the Commissioner to mention any such date from which the certificate is to be revoked it was possible to argue that that certificate becomes ineffective from the date on which the same was ordered to he granted. Requirement of mentioning the date to my mind gives an indication of the contrary intention of the Legislature and if even as a result of the order of the Commissioner passed under Section 88D the certificate is shown to have been effective on the date when the proceedings were commenced, the conclusion is irresistable that the proceedings already instituted before the Mamlatdar were valid and were required to be taken to the final termination by the Mamlatdar or even by the Collector and Tribunal in revision without being influenced as to what happened to the certificate subsequently as a result of the order passed under Section 88D.
12. It was then urged that the Courts are not powerless to take subsequent events into consideration which come into existence by the time the final order is passed. Reliance is thus placed on the doctrine of moulding relief in accordance with the changed circumstances in a given case to avoid multiplicity of the proceedings and relaxing the rigour of the normal rule that cases of the litigant must be decided in accordance with the cause of action as it existed on the date of the suit. But one well-known limitation on giving' effect to this doctrine is that subsequent events cannot be taken into consideration unless it is shown that these events factually or legally have the effect of putting an end to the rights of the litigant from the date when the litigation was instituted. 'Whether such rights have been put an end to or cancelled retrospectively as a result of the revocation of such certificate again is a question which has to be answered independently of the above doctrine. The argument that the rights of the certificated landlord accrued on the date of the institution of proceedings stand cancelled retrospectively as a result of the subsequent revocation of the said certificate shall have therefore to be answered not by reference to this doctrine but by reference to some other source and the only source for such a proposition relied on by the learned advocates for the tenant and the State is the provision of Section 88D. I have already shown above that there is nothing in Section 88D which gives an indication that revocation of the certificate affects retrospectively the rights of the landlord which he possessed on the date of the institution of the proceedings. As shown by me earlier the requirement of fixing the date in the order of the Commissioner gives an indication of the intention to the contrary. This reasoning will apply also to the case even when the Commissioner chooses to render the certificate ineffective from a date prior to the institution of proceedings under Section 33B.
13. It was strongly urged by Mr. Pratap and Mr. Sharad Manohar that the normal principle of requirement of deciding the rights of the litigants on the basis of the cause of action and the facts available on the date of the institution of the suit, is not applicable to the proceedings under Section 33B of the Tenancy Act. The argument advanced is that relationship of the landlord and tenant under the Tenancy Act does not come to an end on the date when the landlord terminates tenancy by issuing a notice to that effect. Such relationship comes to an end only when landlord succeeds in getting the possession of the land leased to the tenant in execution of the order passed on his application for possession after terminating the tenancy by serving notice on him. Reliance is placed on the judgment of the Pull Bench of this Court reported in Ramchandra Anant v. Janardan : AIR1963Bom79 . Now I have not been able to appreciate how this proposition can have any bearing on the principle that the rights of the parties have got to be decided in accordance with the cause of action and the facts as were available on the date of the institution of the suit. Secondly, it is not possible to accept this proposition in its absolute and broad form in which it has been placed before me. It is not in dispute that the tenancy rights are normally put an end to by the landlord after serving a notice to that effect on the tenant. It is also true that in view of the special provisions of the Tenancy Act, designed to protect tenants from the unlawful dispossession by the landlord, the tenancy cannot be said to have been terminated till the application is made and order to that effect is passed by the Mamlatdar under Section 29 of the said Tenancy Act. This does not mean that the tenant continues to be tenant till the litigation comes to an end finally and all remedies of the tenant are exhausted and landlord gets possession in execution of any such order. The judgment of the Full Bench does not lay down any such broad proposition. On the other hand judgment of this Court reported in Balkisan v. Tukaram (1966) 68 Bom. L.R. 874 lays down that the tenancy comes to an end on the date when the Mamlatdar passes an order on the application for possession made by the landlord. It is that date which determines the tenancy rights notwithstanding whether the Mamlatdar actually accepts the application of the landlord or whether he rejects the order and ultimately the landlord has to move the higher authorities to get his application granted. I do not think it necessary to pursue their aspect any further in this case as, in my opinion, this controversy as to on which date the tenancy comes: to an end, has nothing to do with the doctrine that the rights of the litigants are required to be decided in accordance with the facts and law as they existed on the institution of the suit. The date when the tenancy is terminated is really not relevant for the purpose of deciding this controversy. What is material and relevant is as to what were the rights possessed by the litigant and what was the cause of action and the facts on which the said rights were founded on the date of institution of the proceedings.
14. Mr. Pratap, the learned Assistant Government Pleader, drew my attention to the judgment of my learned brother Palekar J. in Abdul Bahiman Aldwlaji Jamadar v. Dattu Khandu Shinde (1969) Special Civil Application No. 2253 of 1968, decided by Palekar J., on March 6, 1969 (Unrep.) Relying on this judgment Mr. Pratap contends that, not the date of the institution, nor the date of the order of any particular Court, but the date on which some authority out of the hierarchy of authorities under the Tenancy Act grants his application for possession, determines on what date the tenancy of the tenant stands terminated, As far as I could read the judgment of Palekar J., I do not find any support in the said judgment to the proposition of law propounded by Mr. Pratap before me. In fact, Palekar J. has in terms observed in the concluding portion of his judgment that he was not laying down any such proposition but was only meeting the argument advanced by the advocate for the petitioner in that case. As stated earlier no further discussion on this point is necessary for the purpose of this case as I am inclined to take the view that in the absence of any specific legal provision to the contrary, the rights of the landlord must be decided in proceedings under Section 33B in the light of the facts as they existed on the date when the application was filed by the landlord for possession before the Mamlatdar.
15. It was also urged before me that provisions of Section 88D will become redundant if it is held that the Commissioner is incompetent to institute proceedings for cancellation of the certificate after institution of 33B proceedings even when he is informed that there has been increase in the income of the landlord or the area of the leased land has increased as a result of certain subsequent events. I do not think that there is any justification for this submission. As stated earlier Section 880 was introduced in the Tenancy Act on August 1, 1956. As against that Section 33B has been introduced in the Tenancy Act along with sub-Chapter II-A in Chapter III by amendment Act No. IX of 1961 i.e. about five years later. The certificate under Section 88C is granted on the basis of the income and the leased area of the claimant-landlord as it was in existence on the date when the tenant would have been the statutory purchaser of the said land. There might have been several cases where the position as to the income and the area of the leased land of the landlord to whom the certificates were granted had materially changed and such changes were brought to the notice of the Commissioner before provisions of Section 33B were availed of by the landlord before the last proscribed date April 1, 1962. This apart, a Division Bench of this Court in Parvalibai Ramchandra v. Mahadu : AIR1967Bom428 had the occasion to examine the precise scope of Section 88C! and the provisions under sub-Chapter II-A in Chapter III of the Tenancy Act with a view to find out whether the heirs of the certificated landlord also were entitled to make an application under Section 33B or not. The Division Bench has held that the certificate is contemplated to enure for the benefit not only of the persons who had actually applied and obtained the certificate but also for their heirs. The said Division Bench also has taken into consideration the fact that the different last dates are prescribed for different categories of landlords for making applications under Section 33B of the Tenancy Act. Thus in cases where there has been a change in the circumstances in regard to the income and in regard to the area of the leased land of the landholders who had obtained certificates under Section 88C or their heirs but had not availed of the said certificate, it was open for the Commissioner to move in the matter and proceed to revoke their certificates in the event of it being proved that their income and the area of the leased land has increased. It is not possible, therefore, to accept the contention of the learned advocates that the provisions of Section 88D will be rendered redundant if it is held that the Commissioner cannot proceed to revoke the certificate of the landlord who has already availed of it by making application under Section 33B and which has been acted upon by the Mamlatdar when deciding to proceed ahead with the said application filed by the landlord for possession under the said section.
16. There is also another aspect of the matter which is equally relevant in considering the scope of Section 88D. One of the requirements of Section 33B is that the landlord is required to prove to the satisfaction of the Mamlatdar that his requirement is bona fide. Now, if in fact there is an increase in the income of the landlord and the area of his leased lands for some reason or the other after the institution of the proceedings under Section 33B it is open for the tenant to prove the said increase, in the income and the lands and thereby show that the landlord has ceased to be a small landholder and his claim for possession of the land for personal cultivation has ceased to be bona fide in view of the increase in his income. Thus it is not as though the substantial increase in the income of the landlord is likely to go unnoticed in the course of the proceedings before the Mamlatdar even if as a result of the above interpretation the Commissioner is found to be incompetent to revoke the said certificate.
17. The order of the Commissioner in this case is bad on other grounds also. The Commissioner has not given any indication in his order showing as to from which date the certificate is to be treated as revoked. One of the mandatory requirements of Section 88D is that the Commissioner should specify such date in his order. Importance of mentioning such date need be hardly emphasised as the certificate revoked by him is as a result of his finding that there has been some increase, in the income of the certificated landlord and in the area leased by him to his tenant, with effect from a certain date after the issuance of certificate under Section 880 as a result of certain developments. It was necessary for the Commissioner therefore to apply his mind to the evidence on record and determine as to which was the date from which the income of this landlord was found to have been increased and which was then the date from which he wanted to revoke the said certificate granted to him under s(. 880. Secondly it appears from his order that for coming to the conclusion that there has been an increase in the income of the landlord, the Commissioner has entirely relied on the letter of the Company where the landlord is employed and which is dated February 5, 1965. It is not clear from the said letter as to when precisely the salary and the dearness allowance payable to the landlord was increased. It is also not clear as to whether the landlord was guilty of any suppression of the sources of his income. Apparently it does not appear that the landlord had suppressed any sources of his income, It appears. from his deposition before the Mamlatdar that prior to the granting of certificate on July 7, 1959 he had disclosed three sources of his income. He bad told the Mamlatdar on oath that he was getting Us. 40 as salary and Rs. 40 by way of dearness allowance. He has then deposed that he was getting Rs. 50 from his another land which he was cultivating personally. He then gave the figure of the income of the land which he was receiving from the tenant of this land in dispute. The enquiry papers in the file of the Commissioner do not disclose that there has been any substantial change in the sources of his income. All that appears to have happened is that his salary and dearness allowances have been increased. The question that arises for consideration is what precisely the Legislature had intended to mean when they authorised the Commissioner to proceed to revoke the certificate on finding that 'the annual income of the person has exceeded Rs. 1500', within the meaning; of Section 88D(7)(it>) of the Act. If this clause is read in the context of the other three preceding clauses of Section 88D(7) of the Act, it becomes clear that what is contemplated is not the mere small change in the income as a result of the usual increments or as a result of the increase in dearness allowance but what is contemplated is the substantial increase in the sources of income. It cannot be altogether ignored that order passed by the Mamlatdar under Section 880(3) and (4) is made by the Legislature final subject only to the appeal to the Collector. All these proceedings under Section 88C as also the finality given by the Legislature to the order passed by the Mamlatdar on the basis of the evidence placed before him, will be reduced to mockery if it is held that the Commissioner was intended to be authorised under Section 88D(7)(w) of the Act to revoke the certificate merely on finding that there has been some increase in his salary as a result of the passing of years and there has been some increase in the dearness allowance as a result of the changes introduced in the pay structure of the company where the landlord has been employed. To my mind the order passed by the Commissioner is unsustainable on these grounds also.
18. In the result, the order of the Commissioner is liable to be set aside. I accordingly allow Special Civil Application No. 1746 of 1965 and set aside the order of the Commissioner. It is unnecessary to remand the papers to the Commissioner in the view that I have taken of the scope of Section 88D of the Act. Special Civil Application No. 862 of 1965 filed by the tenant is liable to be dismissed as the only point urged before me in support of the application by Mr. Sharad Manohar is that the order of the Tribunal and the Collector cannot be sustained as the exemption certificate has been revoked by the Commissioner, As the order of the Commissioner revoking the certificate itself is being quashed by me, the contention raised in Special Civil Application No. 862 of 1965, therefore, does not survive. The said application is accordingly rejected. In the circumstances of this case there will be no order as to costs.