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Ramchandra Harischandra Vs. Tukaram Karu - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 2 of 1961
Judge
Reported in(1962)64BOMLR67
AppellantRamchandra Harischandra
RespondentTukaram Karu
Excerpt:
.....satisfied. 10. in our opinion, therefore, the provisions of sub-section (1) of section 38 and of the proviso to sub-section (2) of section 36 will not apply, but the other provisions of section 38 as well as the other relevant provisions of the act will apply to an application made by a landholder for obtaining possession of the land from his protected lessee on the ground that he requires it for personal cultivation, to which sub-section (5) of section 132 applies......need not be fulfilled in such cases. this argument ignores the provisions of section 132(5) that pending applications under the repealed enactments shall be deemed to have been instituted under this act and shall be disposed of in accordance with the provisions of this act. the provisions of the new act will consequently apply to such applications. an application, in which the revenue officer has made an order for termination of the lease under the b.b.a.l. act on the ground that the landholder wanted the land for personal cultivation, would, therefore, have to be regarded and dealt with as if it was an. application for obtaining possession for personal cultivation made under the tenancy act. the provisions of section 38 of the tenancy act will, therefore, apply to it.10. in our.....
Judgment:
To an application made by a landholder for obtaining possession of the land from his protected lessee on the ground that he required it for personal cultivation, to which Section 132(3) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region & Kutch Area) Act, 1958, applies, the provisions of Section 38(1) and of the proviso to Section 36(2) of the Act will not apply, but the other provisions of Section 38 as well as the other relevant provisions of the Act will apply.

Jayantraj v. Hari (1961) 64 Bom. L.R. 57, referred to.

H.K. Chainani, C.J.

1. The petitioner is the manager of a joint Hindu family, which owns two lands, Survey Nos. 31 and 32 of mouza Karankhed, taluq Chikhali, district Buldana. These two lands were held by opponent No. 1, hereinafter referred to as the opponent, as a protected lessee under the provisions of the Berar Regulation of Agricultural Leases Act, 1951. (XXIV of 1951), hereinafter referred to as the B.E.A.L. Act. A notice was given to the opponent terminating his tenancy under Sub-section (1) of Section 9 of the B.E.A.L. Act, on the ground that the landholder wanted the lands for personal cultivation. Thereafter, an application was made to the Revenue Officer under Section 8(1)(gr) of this Act for obtaining an order for the termination of the lease. On July 2, 1957, an order was made by the Revenue Officer terminating the lease of the opponent with effect from April 1, 1958. Before then, the Bombay Tenancy and Agricultural Lands (Vidarbha Region & Kutch Area) Act, 1958 (No. XCIX of 1958), hereinafter referred to as the Tenancy Act, had come into force. Sub-section (2) of Section 36 of this Act provides that no landlord shall obtain possession of any land held by a tenant except under an order of the Tahsildar, and that for obtaining such order, he shall make an application in the prescribed form and within a period of two years from the date on which the right to obtain possession of the land is deemed to have accrued to him. On May 15, 1959, an application was made to the Tahsildar for possession of the land under Sub-section (2) of Section 36 of the Act. It was stated in the application that an order terminating the tenancy had been made by the Sub-Divisional Officer on July 2, 1957, but that the landholder could not get possession of the lands in view of the provisions of the Bombay Vidarbha Region Agricultural Tenants (Protection from Eviction and Amendment of Tenancy Laws) Act, 1957 (No. IX of 1958). On this application the Tahsildar made an order for possession of the lands being given to the landholder. The order was set aside in appeal by the Sub-Divisional Officer, on the ground that no notice as required by Sub-section (1) of Section 36 of the Tenancy Act had been given to the opponent-tenant. The order made by the Sub-Divisional Officer was confirmed by the Revenue Tribunal. Thereafter, the present special civil application was filed.

2. A Full Bench of this Court in Jayantraj v. Hari (1961) 64 Bom. L.R. 57 has held that a proceeding under Section 8 or 9 of the B.R.A.L. Act should be regarded as pending until an application has been made under Sub-section (1) of Section 19 of this Act, or until an order has been made on such application. On May 15, 1959, when the petitioner made the application to the Tahsildar, he claimed relief on the ground that an order terminating the Lease of the opponent had been made by the Sub-Divisional Officer under Section 8(1)(g) read with Section 9(1) of the B.R.A.L. Act. His application was, therefore, really an application under Section 19 of this Act. In view of the decision of the Full Bench, this application would be regarded as having been made in the proceeding commenced under Section 8 of the B.R.A.L. Act, and as this was pending or should be regarded as having been pending on the date of the commencement of the Tenancy Act, Section 132(3)(a) of the Tenancy Act would apply to it. The application would, therefore, be deemed to have been made under the corresponding provision viz. Section 36(2) of. the Tenancy Act and it has to be disposed of in accordance with the provisions of the Tenancy Act.

3. The original application, for termination of the lease of the opponent had been made on the ground that the lands were required for personal cultivation. Section 38 of the, Tenancy Act contains provisions for terminating a tenancy on this ground. The next question to be considered is which provisions of this section will apply to such an application. Sub-section (3) of Section 36 states that on receipt of an application under Sub-section (2), the Tahsildar shall, after holding an inquiry, pass such order thereon as he deems fit. The proviso to this subsection is in the following terms:

Provided that where an application under Sub-section (2) is made by a landlord in pursuance of the right conferred on him under section 38, the Tahsildar may first decide as preliminary issues, whether the conditions specified in clauses (c) and (d) of Sub-section (3) and clauses (b), (c) and (d) of Sub-section (4) of that section are satisfied. If the Tahsildar finds that any of the said conditions are not satisfied, he shall reject the application forthwith.

4. Sub-section (I) of Section 38 provides that a landlord may, after giving to the tenant one year's notice in writing at any time within two years from the commencement of the Act and making an application for possession as provided in Sub-section (2) of Section 36, terminate the tenancy of the land held by a tenant other than an occupancy tenant if he liana fide requires the land for cultivating it personally. Sub-section (3) provides that the right of a landlord to terminate a .tenancy under Sub-section (I) shall be subject to the following conditions, namely:-

(a) If the landlord at the date on which the notice is given and on the dale on which it expires has no other land of his own or has not been cultivating personally any other land, he shall be entitled to take possession of the land leased to the extent of .three family holdings.

(b) If the land cultivated by him personally is less than three family holdings, the landlord shall be entitled to take possession of so much area of the land leased as will be sufficient to make up the area in his possession to the extent of these family holdings.

(c) The income by the cultivation of the land of which he is entitled to take possession is the principal source of income for his maintenance.

(d) The land leased stands in the record of rights or in any public record or similar revenue record on the 1st day of August 1937 and thereafter during the period between the said date and the date of the commencement of this Act in the name of the landlord himself or any of his ancestors, or if the landlord is a member of a joint family, in the name of a member of such family.

(e) If more tenancies than one are held under the same landlord, then the landlord shall be competent to terminate only the tenancy or tenancies which are the shortest in point of duration.

Sub-section (4) states that in no case, a tenancy shall be terminated in such manner as will result in leaving with the tenant, after termination, less than half the area of the land leased to him. This sub-section also imposes some other restriction on the termination of the tenancy.

5. We have now to determine which of these provisions will apply to an application, which under section 38, the , is deemed to have been made under Section 36(2) of this Act. Sub-section (J) of Section 132 applies to proceedings pending on the date of the commencement of this Act, and states that they shall be deemed to have been instituted and pending before the corresponding authority under this Act and shall be disposed of in accordance with the provisions of this Act. The notice referred to in Sub-section (1) of Section 38 could not obviously have been given in respect of proceedings which were pending or which are deemed to have been pending' on the date of the commencement of this Act. It does not also appear that it was the intention of the Legislature that such proceeding's should be kept pending for a further period until n fresh notice as required by Sub-section (1) of Section 38 had been given. Ordinarily, a notice terminating the tenancy is given before an application in made for possession to the appropriate authority. Consequently, we are of opinion that Sub-section (1) of Section 38 will not apply in respect of proceedings pending on the date of the commencement of the Tenancy Act, which under Sub-section (3) of Section 132, and deemed to have been instituted under this Act. For the same reasons, the proviso to Sub-section (2) of Section 36, which requires the application to be made within two months from the date of the expiry of the notice, will not apply in such cases.

6. The position is, however, different with regard to the other conditions for the termination of a tenancy imposed by Sub-sections (3) and (4) of Section 38, If an application were made to the Tabsildar under Sub-section (2) of Section 36 of the Tenancy Act for obtaining possession of the land, it would be his duty to inquire int.* it and satisfy himself that all the conditions specified in Sub-sections (3) and (4) of Section 38 were satisfied before he made an order for possession of the land in favour of the landlord. Under Sub-section (5) of R. 132 a proceeding, which was pending at the date of the commencement of the Act, is to be disposed of in accordance with the provisions of this Act. In other words, all the provisions of the Act, which would apply to an application made under Sub-section (2) of Section 36, would also apply to applications, which are deemed to have been made under this section.. It follows that Sub-sections (.?) and (4) of Section 38 would apply to all applications for obtaining possession of the land for personal cultivation, made under Section 19 of the B.R.A.L. Act, which were pending or which are to be deemed to have been pending' on the date of the commencement of the Tenancy Act.

7. Mr. Padhye has contended that the petitioner had obtained an order for the termination of the opponent's lease from the Sub-Divisional Officer, that a right to the possession of the lands had, therefore, accrued to him and that he is consequently entitled to obtain possession of the lands under Section 36 of the Tenancy Act, without being required to fulfil the additional conditions imposed by the new Act. The short answer to this argument is that before the petitioner could obtain possession of the lands under the right acquired by him under the B.R.A.L. Act, the Legislature has repealed that Act and by Section 132(3) of the Tenancy Act has directed that the application for possession must be disposed of in accordance with the provisions of this Act. The petitioner must, therefore, satisfy such of the requirements of the new Act, as may be applicable,.

8. Mr. Padhye has further contended that if we take this view, the proceedings, which were previously taken before a Revenue Officer and in which orders had been made under the B.R.A.L. Act, would have to be re-opened. We do not think that this argument is quite correct, for a proceeding under Section 8 or Section 9 of the B.R.A.L. Act cannot be said to have finally terminated until an order for ejectment of the tenant had been, made under Section 19. In cases in which, therefore, an order under Section 19 remained to be made, no final orders can be said to have been passed. In any case, an order for possession remained to be made. As the application for possession was pending or should be deemed to have been pending when the Tenancy Act came into force, it has to be dealt with in accordance with the provisions of the Tenancy Act, by reason of Section 132(5) of the Act. In deciding the application in accordance with the provisions of the new Act, the Tahsildar will not be re-opening the matters already decided, but he will have to determine whether the requirements of the new Act and the additional conditions imposed by it have been satisfied.

9. Mr. Kherdekar, who has intervened in this case, has argued that the conditions mentioned in Section 38 only apply to applications, in which a landlord seeks to enforce the right given to him by Sub-section (1) of Section 38. He has referred to the the proviso to Sub-section (5) of Section 36, which applies to an application 'made by a landlord in pursuance of the right conferred upon him under section 38.' Mr. Kherdekar has argued that the applications, to which Section 132(5) applies, are not applications in pursuance of the right conferred by Section 38 and that consequently the conditions laid down in this section need not be fulfilled in such cases. This argument ignores the provisions of Section 132(5) that pending applications under the repealed enactments shall be deemed to have been instituted under this Act and shall be disposed of in accordance with the provisions of this Act. The provisions of the new Act will consequently apply to such applications. An application, in which the Revenue Officer has made an order for termination of the lease under the B.B.A.L. Act on the ground that the landholder wanted the land for personal cultivation, would, therefore, have to be regarded and dealt with as if it was an. application for obtaining possession for personal cultivation made under the Tenancy Act. The provisions of Section 38 of the Tenancy Act will, therefore, apply to it.

10. In our opinion, therefore, the provisions of Sub-section (1) of Section 38 and of the proviso to Sub-section (2) of Section 36 will not apply, but the other provisions of Section 38 as well as the other relevant provisions of the Act will apply to an application made by a landholder for obtaining possession of the land from his protected lessee on the ground that he requires it for personal cultivation, to which Sub-section (5) of Section 132 applies.

11. In this view the orders made by the Tahsildar, the Sub-Divisional Officer and the Revenue Tribunal will be set aside and the matter will be remanded to the Tahsildar for dealing with the application made by the petitioner in the light of the directions given in this judgment. There will be no order as to costs.


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