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Gopal Shiroam Bhankhed Vs. Sagirabegum - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 850 of 1971
Judge
Reported inAIR1975Bom270; 1975MhLJ444
ActsBerar Regulation of Agricultural Leases Act, 1951 - Sections 8(1), 9, 9(1), 9(4) and 19
AppellantGopal Shiroam Bhankhed
RespondentSagirabegum
Appellant AdvocateB.V. Gaikwad, Adv.
Respondent AdvocateS.N. kherdekar and ;A.M. Bapat, Advs.
Excerpt:
a notice was issued by the landlord under section 9(1) of the berar regulation of agricultural leases act, 1951 for termination of lease on the ground of personal cultivation - the protected tenant had challenged the notice - the revenue officer had passed an order under section 9(4) of the act for rejecting the application made by the tenant - hence, the lease was terminated effectively - it was held that the order under section 8(1)(g) of the act terminating the tenancy would not be necessary - - note (d) 15) the tenancy effect of notice under section 9 (1) and the order of the revenue officer (sub-divisional officer) under section 9 (4) of the berar act, 1951 was that the lease to the petitioner was effectively terminated as on 1st april 1958. he accordingly answered the issue.....tulzapurkar, j.1. this matter has been refereed to a division bench by mr. justice masodkar since he felt that there was an apparent conflict between a decision delivered by , mr. justice padhye on 20th/21st september, 1966, in madhav v. shripat, (special civil appln. no. 929 of 1965) (bom) and the view taken by mr. justice deshmukh in baburao v. shionath, 1967 mlj 670, and the petition involved a question as to what would be the correct position applicable to this class of cases where a protected tenant had taken proceedings under section 9 (3) of the berar regulation of agricultural leases act, 1951 (hereinafter refereed to as the berar act 1951) to challenge the notice served upon him by his landlord under section 9(1) of the said act.2. the facts giving rise to the present petition.....
Judgment:

Tulzapurkar, J.

1. This matter has been refereed to a Division Bench by Mr. Justice Masodkar since he felt that there was an apparent conflict between a decision delivered by , Mr. Justice Padhye on 20th/21st September, 1966, in Madhav v. Shripat, (Special Civil Appln. No. 929 of 1965) (Bom) and the view taken by Mr. Justice Deshmukh in Baburao v. Shionath, 1967 MLJ 670, and the petition involved a question as to what would be the correct position applicable to this class of cases where a protected tenant had taken proceedings under Section 9 (3) of the Berar Regulation of Agricultural Leases act, 1951 (hereinafter refereed to as the Berar Act 1951) to challenge the notice served upon him by his landlord under Section 9(1) of the said Act.

2. The facts giving rise to the present petition may be stated. The respondent is a landlady of certain field, bearing survey number 3, admeasuring 29 acres 19 gunthas, situated at mouza karak, in tahsil Yeotmal. The petitioner has been a tenant of his land since 1956 onwards and admittedly was a protected lessee within the meaning of that expression as given in the Berar Act 1951. The respondent landlady served a notice dated 14th December. 1957 on the petitioner tenant under Section 9(1) of the said Act terminating the latter's tenancy in respect of the aforesaid land on the ground that she needed the land for personal cultivation. Under Section 9 (3) of the said Act, an application was made by the petitioner-tenant before the Revenue Officer (Sub-Divisional Officer, Yeotmal) challenging the aforesaid notice on the ground that the notice was not bona fide and that the same should be declared to be of no effect. It was the case of the petitioner tenant that the landlady did not have the means to cultivate the land personally and she was also in possession of more than 50 address of land, and therefore, the notice was not bona fide. The Sub-Divisional officer held an enquiry and on the material placed before him came to the conclusion that the holding of the landlady was not as suggested by the petitioner-tenant, that she was in a position to cultivate the fields and had the intention to cultivate the land at home. By his order dated 30th September 1958 passed under Section 9 (4) of the Berar Act 1951 he held that the notice given by the landlady to the petitioner-tenant was bona fide and he rejected the petitioner's application.

3. The petitioner-tenant carried the matter in appeal to the Deputy Collector, but that appeal was dismissed on 25th February, 1959. The respondent then filed an application under Section 19 (1) of the Berar Act 1951 for possession of the land on 24th April, 1960. It appears that in the meantime the new Bombay Tenancy (Vidarbha Region) Act, 1958 (hereinafter referred to as the Tenancy Act 1958) had come into force on 30th December, 1958 by which the Berar Act 1951 was repealed. The Naib Tahsildar to whom the respondents application was transferred for disposal dismissed the same on 8th December, 1960, on the ground that in view of the repeal of the Berar Act 1951 and in view of the provisions of Section 132 (3) (a) of the Tenancy Act 1958, the provisions of the new Act were applicable and the provisions of Section 38 of that Act had not been complied missal of her application on 8th December, 1960. The responder preferred an appeal Sub-Divisional Officer on 10th October, 1961. These orders passed by the Naib Tahsildar and the Sub-Divisional hands of the respondent by her by way of revision to the Maharashtra Revenue Tribunal.

4. In 1965, the respondent field a suit in Civil Court, being Civil Suit no. 4 of 1965. for possession of the field ground that she was entitled to recover possession as the tenancy of the petitioner - tenant had been duly terminated by reason of the service of the notice dated 14th December, 1957, upon the petitioner -tenant and the order passed by the Revenue Officer on 30th September, 1956. under section 9 (4) of the Berar Act 1951 declaring her notice to be bona fide. The petitioner contended that he was a tenant of the suit land and his tenancy was subsisting. In view of this contention raised by the petitioner. the relevant issues was tenancy Court under Section 125 of the Tenancy Act 1958

5. Following the decision of this Court in Madhav v. Shripal. In Special Civil Appln. No. 929 of 1965 (reported in 1967 Rev. Rul. Note (D) 15) the tenancy effect of notice under Section 9 (1) and the order of the Revenue Officer (Sub-Divisional Officer) under Section 9 (4) of the Berar Act, 1951 was that the lease to the petitioner was effectively terminated as on 1st April 1958. He accordingly answered the issue referred by the Civil Court against the petitioner by his order dated 14th October 1968. The Petitioner tenant preferred an appeal, being Revenue Appeal No.157/59 (B) 68-69 , and the Special Deputy Collector, who heard the appeal, confirmed the finding of the Tenancy Naib Tahsildar and dismissed the appeal on 31st July, 1969. The petitioner appeal on 31st July, 1969. The petitioner carried the matter in revision application was also dismissed by the Tribunal on 20th October, 1970. Against the said decision of the Maharashtra Revenue Tribunal the petitioner has filed the present Special Civil Application to this Court.

6. The principal question that arises for our consideration in this application is as to whether the petitioners tenancy of the land in dispute was effectively terminated as on 1st April, 1958 by reason of the notice that was served by the respondent on the petitioner under Section 9(1) of the Berar Act 1951, and by reason of the order that was passed by the Revenue Officer (Sub-Divisional Officer) on 30th September, 1958 under Section 9(4) of the said Act, holding the said notice to be bona fide and valid.

7. Mr. Gaikwad on behalf of the petitioner contended before us that having regard to the provisions of Sections 8.9 and 19 of the Berar Act, 1951, the tenancy of the petitioner in respect of the suit land could not be regarded as having been effectively terminated simply because a notice under Section 9(1) of the said Act has been served by the respondent-landlady on the petitioner, which was followed by an order passed by the Revenue Officer under Section 9(4) of the said Act, but it was absolutely essential that an order terminating the protected lease of the protected tenant ought to have been obtained from the Revenue Officer by the respondent under Section 8 (1) (g) of that Act and since no such order under Section 8(1) (g)had been obtained from the Revenue Officer, the tenancy of the petitioner, could not be said to have been effectively terminated and no right to obtain possession of the land became vested in the respondent.

8. On the other hand, it has been contended by Mr. Kherdekar, appearing for the respondent, that reading Sections 8,9, and 19 of the Berar Act, 1951, together it was clear that the entire scheme as envisaged by these provisions contemplated two classes of cases, one where a notice simplicities under Section 9(1) of the Berar Act 1951 and according to Mr. Kherdekar, it is only in the former class of cases that an order under Section 8(1) (g)of the Act would be necessary before the tenancy of a protected lessee could be effectively terminated and if the case were to fall under the latter class it was not necessary for the landlord to obtain yet another order under Section 8(1)(g)of the Act would be necessary before the tenancy of a protected lessee could be effectively terminated and if the case were to fall under the latter class it was not necessary for the landlord to obtain yet another order under Section 8(1)(g)of the Act. According to him, if a notice under Section 9(1) of the Act was served by a landlord upon the tenant terminating the tenancy on the ground that the leased land was required by him for personal cultivation and if upon service of the notice the tenant made an application to the Revenue Officer under sub-section (3) of Section 9 challenging the notice on the ground that the same was not bona fide and valid, must by necessary implication mean that the tenancy had been ordered to be terminated by the Revenue Officer. In such a situation, Mr. Kherdekar urged, there was no necessity for the landlord again to resort to Section 8(1) (g)of the Berar Act 1951 and obtain an order from the Revenue Officer terminating the Tenancy. According to him, in this manner the provisions of Section 8(1) (g)and Section 9 of the said Act could be harmoniously given effect to. In support of his contention Mr. Kherdekar strongly relied upon a Full Bench decision of this Court in Jayantraj v. Hari, : AIR1962Bom147 (FB) and Mr. Justice Padhye's decision in Madav v. Shripat.

9. It may be stated that the scheme of the Berar Act 1951 and particularly of the provisions of Sections 8, 9 and 19 thereof was considered by the Full Bench in Jayantraj's case (cit-supra). After referring to the provisions of Section 8, 9 and 19 the Full Bench has observed (vide para 8) as follows:

'The position therefore, was that in order to obtain possession of his land from a protected lessee, the land-holder had first to obtain an order from the Revenue Officer for the termination of the lease Under Section 8, and thereafter make an application under sub-section (1) of Section 19 for ejecting the protected lessee. After receiving the latter application, the Revenue officer had to make a summary inquiry: and thereafter make an order for restoring possession of the land to the land-holder is referred to as an order for 'restoring' possession of the land. It this Section 19 is read along with Section 8 and Section 19 as being parts of the of one proceeding which is described in some places as a proceeding for termination of a lease and in other s as a proceeding for ejectment. The proceeding commenced with an application under Sub-section (1) of Section 8 and emend with an order under sub-section (3) of Section 19. The application under sub-sec (1) of Section 19 was only a second step in the proceeding initiated under sub-section (1) of Section 8 to obtain back he possession of the land. Even though, therefore, a separate application had to be made under sub-section (1) of Section 19, the proceeding under this sub-section was a part or continuation of the proceeding under Section 8. In other words, the proceeding under Section 8 did not come to an end until an order had been made under sub-section (3) of Section 19'.

As regards the position under Section 9 read with Section 19 of the Berar Act 1951, this is what the Full bench has observed, (vide para. 9):-

'Sub-section (1) of Section 9 of the Berar Regulation of Agricultural Leases Act gave a right to the land-holder to terminate the lease of a protected lessee by giving him three month's notice in writing, if he required the land for cultivating it personally. Sub-section (2) stated that the land-holder would not be entitled to terminate the lease of the protected lessee on the ground that he wanted the land for personal cultivation, unless the area held by him and available to him for personal cultivation was below fifty acres, and where this condition was satisfied, the land-holder would be entitled to terminate the lease in respect of only so much area of the land as was necessary to make the total area equal to fifty acres'.

Then the provisions of sub-sections (3) , (4) and (5) of Section 9 were set out and the Full Bench proceeded to observe as follows:-

'This section did not contemplate any application being made by the land-holder to the Revenue Officer. The only application k to the Revenue Officer provided for by this section was an application by a lessee under sub-section (3). On such an application, the Revenue Officer had to hold an enquiry and thereafter decide the application. The opening words 'if under sub-section (4) the lease of a protected lessee is terminated; in sub-section (5), indicate that the order which the Revenue Office had to make in case he held that the notice under sub-section (1) of Section 9 was bona fide, was an order terminating the lease of the protected lessee. This is made further clear by sub-section (1) of Section 9 was bona fide, was an order terminating the lease of the protected lessee. This is made further clear by sub-section (1) of Section 19, which refers to a protected lessee against whom an order for the termination of the lease has been passed under Section 9'. The only order which the Revenue Officer could make under Section 9 is an order on the application made by the lessee under sub-section (3). It is, therefore, clear that if the Revenue Officer, after holding the inquiry contemplated under sub-section (4), came to the conclusion that the notice was valid, he had to make an order for the termination of the lease'.

10. It is true that the Full bench ultimately took the view that the proceeding started on an application under Section 19(1) of the Berar Regulation of Agricultural Leases Act was a part or continuation of the proceeding under Section 8 or under sub-section (3) of Section 9, for the lessee's rights could not be said to have been effectively determined until an order for ejectment had been made under Section 19, and that, therefore, an application under Section 19 of the said Act after commencement of the Bombay Tenancy Act, 1958 was an application in a pending proceeding of the kind referred to in clause (a) of sub-section (3) of Section 132 of the Tenancy Act, 1958. That sub-section would, therefore, apply to such an application and it will be deemed to have been instituted under the Tenancy Act and shall be liable to be disposed of in accordance with the provisions of the Tenancy Act. It may be stated that its latter part of the Full bench decision was not approved of and was actually overruled by the Supreme Court in the case of Ramchandra v. Tukaram, : [1966]1SCR594 but the scheme of the Berar Act 1951 and particularly of Secs, 8, 9, and 19 thereof, as was propounded by the Full Bench in Jayantraj's case, was not touched or dissented from by the Supreme Court. In fact before the Supreme Court Counsel who appeared for the appellant in that case did not touch on the correctness or otherwise of the view which the Full Bench in jayantraj's case had taken on the scheme of the relevant provisions of the Act, but had merely raised a contention that the High Court had not correctly interpreted Section 132 (3) of the Tenancy Act, 1958 . In other words, the scheme of the provisions of Section 8, 9 and 19 of the Berar Act 1951 , as propounded by the Full Bench of this Court in Jayantraj's case that proceedings taken under Section 8 read with Section 19 and proceedings taken under Section 9 read with Section 19 were part and parcel of one and the same proceedings was neither disapproved nor dissented from by the Supreme Court. It is thus clear that the Supreme Court, only reversed the view of the on the scope of applicability of Section 132 and the provisions of sub-section (3) and (4) of Section 38 in consequence of the interpretation, which was put upon the provisions of Section 132 of then Tenancy Act. That being the position, it seems to us clear, both in view of the Full bench decision in Jayantraj's case as well as on a consideration of the scheme of the provisions contained in Section 8, 9 and 19 of the Berar Act 1951 that the distinction sought to be made by Mr. Kherdekar between k two classes of cases, one in which a notice simpliciter under Section 9(1) has been served by the landlord upon the tenant without any proceedings having been initiated by the tenant under Section 9(3) tilted by the tenant under Section 9(3) and the other in which after service of notice under Section 9(1) the tenant has taken proceedings to challenge the notice under Section 9(3) of the said Act is well founded and that in the former class of cases an order under Section 8(1) (g)would be necessary to effectively terminated a protected tenancy while in the latter class of cases such an order would be unnecessary and we do find considerable force in his contention that the provisions of Section 8(1) (g)and the provisions of Section 9 of the said Act, which open with a non obstinate clause could be harmoniously construed and given effect to in this manner. In other words, a notice under Section 9(1) of the Berar Act 1951, by itself, would not be sufficient to effectively terminate the lease of a protected tenant without an order having been obtained under Section 8(1), (g),but in cases where a notice under Section 9(1) is followed by an application by the tenant under S. 9(3) challenging the notice on the grounds available to him and an appropriate order is passed by the Revenue Officer under Section 9(4) rejecting the tenants challenge to the notice the lease of the protected tenant would be effectively terminated.

11. In this behalf it would be convenient at this stage to refer to a judgment of Mr. Justice Padhye delivered on 20th /12th September, 1966, in the case of Madhav v. Shripat, Special Civil Appln. NO. 929 of 1965 reported in 1967 Rev. Rul , Note No. (D) 15. In that case the landlord had served the tenant with a notice dated 7-12-1955 under Section 9(1) of the Berar Act, 1951 terminating the latter's lease with effect from 1-4-1956 on the ground that the landlord required the land bona fide for personal cultivation. The tenant had made an application under Section 9(3) on 19-12-1955 challenging the bona fide of the notice on the ground that the landlord had more than 5- acres of land in his personal cultivation. The Sub-Divisional Officer rejected the contention of the tenant and held that the notice served by the landlord was bona fide. The order did not specifically state that the lease of the tenant had been terminated and the absence of express words to that effect gave rise to a contention that there was an order terminating the lease of the tenant. It was also contended on behalf of the tenant before the learned Judge that since no order under Section 8(1) (g)had been obtained by the landlord terminating the tenancy the landlord was not entitled to possession. Both these contentions were negatived by Mr. justice padhye, who took the view that the lease of the protected tenant had been effectively terminated. Reliance was placed upon the Supreme Court judgment in Ramchandra v. Tukaram (cit. supra) in support of the contention that an order under Section 8 (1)(g)was a must and unless such an order was passed, the landlord could never have any right to obtain possession. Dealing with this contention Mr. Justice Padhya observed as follows:-

'In that case Ramchandra v. Tukaram, the land -holder had given a notice under Section 9(1) terminating the lease of the protected lessee on the ground of personal cultivation. The tenant, it appears, did not challenge the bona fide of that notice as required by sub-section (3) of Section 9 and hence he made an application under Section 8(1) (g)for an order of the Revenue Officer. In that context, it was held by their Lordships that a mere notice under Section 9 (1) is not sufficient but it must be followed by an order under Section 8(1) (g).The question whether an order under Section 8(1) (g)would still be necessary if an order under sub-section (4) of Section 9 on the application under sub-section (3) of Section 9 is already passed was not canvassed before their Lordships. If the provisions of sub-section (4) read with sub-section (5) of Section 9 contemplate an order of termination being passed, then there does not appear to be any necessity or duplicating the proceedings for another order under Section 8(1) (g).It is only in a case where the lessee does not challenge that bona fides of the notice, then an occasion for obtaining an order under Section 8(1) (g)can arise. On reading the two provisions together, it appears to me that where an order has been passed under sub-section (4) of Section 9. there under sub-section (4) of Section 9, there is no need of another order under Section 8(1)(g).If the notice is not challenged by the lessee then notice is not challenged by the lessee then only the order under Section 8(1) (g)is necessary to be obtained'.

On the true effect of the order that was passed by the Sub-Divisional Officer on the tenant's application under Section 9 (5) Mr. Justice Padhye observed as follows:-

'The order states that the notices given by the land-holder cannot be said to be ill conceived and he held the notice as a bona fide one and rejected the application filed by the respondent No. 1 lessee. The order passed is in fact one under sub-section (4) of Section 9. If the Revenue Officer comes to the conclusion that the notice is valid bona fide then an order for the termination of the lease has to be made. The sub-Divisional Officer had specifically stated so in the said order. However, mere absence of those words in the order would not make that order one for not terminating the lease of the leasee. On a finding that the notice is valid and bona fide, the result must necessarily follow that the lease stands terminated'.

It is thus clear that the view taken by the learned Judge in the above case was that if an order was passed on an application under sub-section (3) of Section 9 in favour of the Land-holder in which notice was declared to be bona fide, it will be futile for the land-holder to apply to the Revenue Officer seeking a further order that the lease of the protected lessee has been terminated and that the order passed under sub-section (4) of Section 9 in fact has that effect because once the notice is held to be bona fide and the sanction to the notice is given by the Revenue Officer, the notice will take its effect and it will amount to an order terminating the lease. In our view, the aforesaid decision on which reliance has k been placed by Mr. Kherdekar clearly supports his contention that in this class of cases where after service of notice by the landlord upon his tenant under Section 9(1) proceedings are adopted by ht tenant under Section 9(3) and an appropriate order has been made by the Revenue Officer in such proceedings, if the order happens to be in favour of the landholder, then obviously there is effective termination of the lease of the protected tenant and the order asset by the Revenue Officer under Section 9(4) would obviate the necessity of obtaining yet another order under Section 8(1) (g)of the Berar Act 1951.

12. Mr. Gaikwad for the petitioner has, however, heavily relied upon the decision of the Supreme Court in Ramchandra v. Tukaram, (cit, supra) where, according to him, after taking general survey of the relevant provisions of Berar Act, 1951, the Supreme Court has expressed its view that even if the landlord desired to obtain possession of the land for bona fide personal cultivation High Court had to obtain an order in that behalf under Section 8(1) (g)of the Berar Act 1951. It is true that in that case the Supreme Court in paragraph 2 of its judgment has observed that it was necessary to make a brief survey of the diverse statutory provisions in their relation to the progress of the dispute which had a bearing on the question which fell to be determined and after considering the relevant provisions of Section 8(1) (g)and Section 9 of the Berar Act 1951 , the Supreme Court has observed as follows:-

'Even if the landlord desires to obtain possession of the land for bona fide personal cultivation, he had to obtain an order n that behalf under Section 8(1) (g)'.

A little later in the very paragraph this is what the Supreme Court has observed further:

'The landlord had, after serving a notice under Section 9(1), to obtain an order under Section 8(1) (g)that possession was required by him bona fide for personal cultivation'.

Mr. Gaikwad further pointed out that this decision of the Supreme Court came up for consideration before Mr. Justice Deshmukh in the case of Baburao v. Shionath, 1967 Mah LJ 670 where a question was directly posed as to whether the aforesaid observations made by the Supreme Court constituted the ratio of the decision or were obiter dicta or amounted to mere casual observations and applying his mind directly to this contention urged before him,. the learned Judge has taken the view that these observations constituted the ratio of the decision and the learned Judge has further expressed the view that even if these observations were regarded as obiter dicta, they would be binding upon the High Court. Mr. Gaikwad in particular relied upon the following observations made by Mr. Justice Deshmukh in paragraph 22 of his judgment;

'If this is the correct meaning of the Supreme Court judgment it is obvious that the Supreme Court has negatived by necessary implication the contention that a mere notice under Section 9(1) has the effect to termination of the tenancy by efflux of item mentioned in that notice. The Division Bench ruling of this Court in Tarabai v. Bombay Revenue Tribunal, : AIR1959Bom72 lays down that mere notice of termination under Section 9(1) for the purpose of personal cultivation has the effect of terminating the tenancy and creating a vested right in the landlord. I have already pointed out that this is subjected to only one execution, namely, the result of proceeding under sub-section (3) of Section 9 at the instance of the lessee. This precisely is the stage which is not considered by the Supreme Court as the stage where termination of the tenancy takes place. I am therefore of the opinion that the question directly arose before the Supreme Court for decision about the stage at which the termination of the lease of a protected lessee takes place when notice contemplated by Section 9(1) is served by the land-holder for the purpose of personal cultivation. The Supreme Court having come to the conclusion that even for such land-holder , an order under Section 8(1) (g)is necessary for the purpose of creating a vested right in his favour and for the purpose of effecting termination of the tenancy, the Division Bench judgment of this Court in Tarabai's case appears to be overruled'.

(Underlining is ours).

13. Reliance was also placed by Mr. Gaikwad upon yet another Full bench decision of this Court in the case of Smt., Joharabi, v. Member, Maharashtra Revenue Tribunal, 1971 Mah LJ 818 where the Full Bench has taken the view that the notice simplicities under Section 9(1) of the Berar Act 1951, by itself does not terminate the lease of the tenant and for the effective termination of the lease a further order under Section 8(1) (g)is necessary. He pointed out that the question that was referred to the Full bench was formulated thus:

'Whether a notice under Section 9(1) of the Bearer Regulation of Agricultural Leases Act, 1951 (Act XXIV of 1951) by or whether further order under Section 8 (1) (g)was necessary for the effective termination of the lease'? And this question was answered by the Full bench in this manner:

'In the result, therefore, we answer the first part of the question, namely, 'Whether a notice under sub-section (1) of Section 9 of the Leases Act by itself terminates the lease of a tenant?' in the negative and to the second part 'whether a further order under Section 8(1) (g)of the Leases Act was necessary for the effective termination of the lease?' the answer is Yes'.

In particular he relied upon the following observations made by the Full Bench which appear at page 832 of the report:-

'We think that the Supreme Court upon a full consideration of the provisions of Sections 8,9 and 19 of the leases Act positively came to a conclusion that a mere notice under Section 9(1) cannot by itself terminate tenancy and that in every case an order under Section 8(1) (g)is absolutely essential. In taking that view that confirmed the very basis of the decision of the Full Bench of this Court in Jayantrai's case. No doubt Jayantraj's case was found to be incorrectly decided, but upon different grounds. .........................'

Upon the view we have taken as to the impact of Supreme Court decision we must hold that the view taken in Ramchandra v. Tukaram and the other cases, which followed it, was impliedly overruled by the Supreme Court, Indeed, that was the view taken by our learned brother Deshmukh, J in Baburao v. Shionath which was decided after the Supreme Court case. We are in respectful agreement with the view taken by our learned brother. ..............

If then the correct view is that notice simplicities under Section 9(1) of the Leases Act does not terminate a tenancy and that an order under Section 8(1)(g)in every case is necessary, then having regard to the facts in this case we do not see how a right could arise in favour of the 'landlord' on 30.12.1958, the date on which the new Tenancy Act came into force'

Relying upon the aforesaid decision and particularly the observations from the Full Bench decision, which we have quoted above, Mr. Gaikwad strenuously urged before us that the Supreme Court decision in Ramchandra v. Tukaram (cit. supra) has been interpreted by Deshmukh, J. in a particular manner and that interpretation as indicated by Deshmukh, J., in Baburao v. Shionath (cit. Supra) has been approved by the Full Bench of this Court in Joharabi's case, and he further urged that having regard to what has been observed by the Full Bench in Joharbi's case, it must be held that in every case where notice under Section 9(1) has been served by the landlord upon the tenant seeking to terminate the tenant's tenancy for bona fide personal cultivation, an order under Section 8(1) (g)was absolutely essential to effectively terminate the tenancy of the protected tenant.

14. If the observations of the Full Bench in Johrabi's case, on which reliance has been placed by Mr. Gaikwad,. fell within the first category indicated by Mr. Kherdekar, namely, where a notice under Section 9(1) has been served by the landlord upon the tenant without any proceedings having been taken by the tenant under Section 9(3) of the Act and the decisions must be viewed in the light of that position which obtained in each case. It may be pointed out that in Ramchandra v. Tukaram (cit. supra) the facts were that the landlord had served a notice under Section 9(1) of the Berar Act, 1951 terminating the tenancy of the tenant on the ground that he required the land for personal cultivation./ Admittedly no steps were taken by the tenant to challenge that notice under Sec.9(3) and admittedly an application to the Revenue Officer under Section 8(1)(g)for obtaining an order for determination of the tenancy was there as a result of the order passed under Section 8(1)(g).In the case of Baburao v. Shionath (cit supra) the facts were that the plaintiffs, as landlords, had served a notice upon the defendant Ex. P-4 dated 16th December. 1957, under Section 9(1) of the Berar Act, 1951 seeking to terminate the tenancy of the defendant on the ground of personal cultivation. This notice was not followed by any proceedings adopted by the tenant under Section 9(3) and the question that was debated at the Bar was whether a notice under Section 9(1) by itself, effectively brought about the termination of the tenancy of the protected tenant in the absence of an order having been obtained under Section 9(1) of the Berar Act, 1951 seeking to terminate the tenancy on the ground that she required the filed for personal cultivation. Though the tenant had a right to commence proceedings to have the notice proceedings to have the notice declared to be not bona fide under Section 9(3). The landlady applied for an order terminating the lease under Section 8(1) (g)of the Act, but for some reasons that application was rejected and the landlady proceeded to file a suit to recover possession and it was in these circumstances that a question arose as to whether a notice under Section 9(1) of the Berar Act, 1951 was, by itself, sufficient to terminate the lease, or whether further order under Section 8(1) (g)was necessary for effective termination of the lease and the Full Bench took the view that a notice simpliciter under Section 9(1) of the berar Act, 1951 was by itself, did not terminate the lease of a tenant and for effective termination of a lease on order under Section 8(1) (g)was necessary. It will thus appear clear that in none of these three decisions was the notice served by the landlord under Section 9(1) of the Act followed by any proceedings being taken by the tenant under Section 9(3) resulting in any order by the Revenue Officer under Section 9(4) of the Act. In our view, therefore, whatever is the ratio of the Supreme Court decision and the interpretation thereof in Baburao's case as approved in Joharabi's case the same cannot be applied to those class of cases where the notice under Section 9(1) is followed by proceedings taken by tenant under Section 9(3) resulting in an appropriate order passed by the Revenue Officer under Section 8(1) (g)is necessary to effective terminate the lease of a protected tenant, and in our view, an appropriate order passed by the Revenue Officer under Section 9(4) upon an application made by the tenant under Section 9(3) challenging the landlords notice under Section 9(1) if the order happens to be in favour of the landlord, the same will have to be construed as an order terminating the tenancy and the view taken by Mr. Justice, Padhye in the case of Madhav v. Shripat, (Special Civil Appln. No. 929 of 1965) (Bom) appears to us to be the correct, the view, which must be allowed to hold the field. The particular observations in Johrabi's case on which Mr. Gaikwad has relied will have also to be understood in the context of the facts which obtained in that case. It is true that at more than one place the Full Bench has observed that 'a mere notice under Section 9(1) cannot, by itself, terminate the terminate the tenancy and that in every case an order under Section 8(1) (g)is absolutely essential'. The expression 'every case' will have to be regarded as meaning every case where a notice simpliciter under Section 9(1) has been served by the landlord upon the tenant and merely on the basis of such notice the tenancy is claimed to be effectively terminated. If the expression 'every case' is understood in this manner, it will become clear that it is only in these types of cases where a notice under Section 9(1) simpliciter has been served by the landlord upon his tenant, and where no steps under Section 9(3) have been taken by the tenant, that an order under Section 8(1)(g)became absolutely essential in order to effectively terminate the tenancy of the protected tenant. This aspect of the matter in our view has been clarified by the Full Bench has been stated by the Full Bench in Paragraph 19 of its judgment. If what has been stated by the Full Bench in regard to the contentions urged by the Counsel for the appellants is borne in mind, it will be clear that the Full Bench was full conscious of the fact that it was not dealing with a case where after service of a notice under Section 9(1) by the landlord upon the tenant the tenant had taken steps under Sections 9(1) by the landlord upon the tenant, the tenant had taken steps under Sections 9(1) by the taken steps under 9(3) if the Act to have the notice set aside on ground of want of bona fide. This is what the Full Bench has observed in paragraph 19 of its judgment:

'........ We now turn to the contention advanced by Mr. Kazi in the present case. The contention is that having regard to the provisions of Section 8 and 9 of the Leases Act there is a clear-cut distinction between the two classes or categories of cases which may arise after the landlord has once served a notice under Section 9(1) - (1) where a tenant in response to the notice takes action under Section 9(3), in other words the tenant challenges the notice as not bona fide or offers to give up land other than the one which the landlord asks, and (2) when he does not take any action and simply keeps silent. In the former case undoubtedly the provisions of sub-sections (3) to (9) of Section 9 will apply and the rights of the landlord and the tenant will be determined by the order of the Revenue Officer. With this category of cases we are not concerned in the present case. In the latter case, where the tenant does not apply, it is urged that the tenancy will be automatically terminated and no order would be necessary to be passed by a Revenue Officer. It is urged that the wording of sub-section (1) of Section 9 is plenary'.

It will thus appear clear from what we have quoted above that the observations of the Full Bench were intended to apply only to those close of cases that were before it and therefore the expression 'every case' on which Mr. Gaikwad laid considerable emphasis will have to be understood in the manner indicated by us. Having regard to the aforesaid discussion, we are clearly of the view that non of the decisions on which Mr. Gaikwad has relied, contains anything which runs counter to the view which we have taken in this case.

15. We are. therefore, inclined to accept the contention of Mr. Kherdekar that in the interest case since after service of notice under Section 9(1) by the landlord upon the tenant, the tenant had taken steps to challenge that notice under Section 9(3) and since these steps taken by the tenant were followed by an appropriate order passed by the Revenue Officer under Section 9(4), the tenancy of the petitioner had been effectively terminated. It is true that in this case also even if the words to the effect 'the tenancy of the petitioner has been terminated' are absent in the Sub-Divisional Officer's order who has merely passed an order upholding the validity of the notice on the grounds that it was bona fide and has rejected the application of the tenant under Section 9(3) of the Berar Act, 1951, but the reasoning which has been adopted by Mr. Justice Padhye, with respect would be applicable to the facts of this case also and we accordingly hold that the petitioner's tenancy had been effectively determined by reason of the order that was passed by the Sub-Divisional officer on the tenant's application under Section 9(3). The view taken by the Revenue Authorities below is, therefore, confirmed and the rule is discharged. Parties to bear their costs.

16. Rule discharged.


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