Skip to content


Shrimati Joharabi Abdul Wahid Vs. Member, Maharashtra Revenue Tribunal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 1049 and 1050 of 1966
Judge
Reported in(1972)74BOMLR651
AppellantShrimati Joharabi Abdul Wahid
RespondentMember, Maharashtra Revenue Tribunal
DispositionPetition dismissed
Excerpt:
berar regulation of agricultural leases act (xxiv of 1951), sections 9, 8 - whether mere notice under section 9(1) of act terminates lease of tenant.;a notice under section 9(1) of the berar regulation of agricultural leases act, 1951, does not by itself terminate the lease of the tenant but a further order under section 8(1)(g) of the act is necessary for the effective termination of the lease.;ramchandra v. tukaram [1965] mh. l.j. 850 : s.c. 68 bom. l.r. 658, followed.;tarabai v. b'bay rev. tribunal (1958) 61 bom. l.r. 41 : s.c. [1958] n.l.j. 535, ramchandra v. mainabai (1960) special civil application no. 162 of 1959, dhananjaya v. bombay revenue tribunal (1959) 61 bom. l.r. 1156 : s.c. [1959] n.l.j. 436 and ramchandra v. mah'tra rev. trib. (1964) 70 bom. l.r. 623 : s.c. [1968] mh......s.p. kotval, c.j.1. these are both applications arising between the same landlord and tenant and give rise to a substantial common question of law. they have, therefore, been referred by a common order of our learned brother padhye j. on march 2, 1970. the question referred by our learned brother is not separately stated in the referring order but would be as follows:whether a notice under section 9(1) of the berar regulation of agricultural leases act, 1951 (act xxiv of 1951) by itself terminates the lease of the tenant or whether further order under section 8(1)(g) was necessary for the effective termination of the lease?2. the question arises upon the following facts: the petitioner in both the special civil applications is one joharbi, who was the 'landlord' of a tenant named madhao.....
Judgment:

S.P. Kotval, C.J.

1. These are both applications arising between the same landlord and tenant and give rise to a substantial common question of law. They have, therefore, been referred by a common order of our learned brother Padhye J. on March 2, 1970. The question referred by our learned brother is not separately stated in the referring order but would be as follows:

Whether a notice under Section 9(1) of the Berar Regulation of Agricultural Leases Act, 1951 (Act XXIV of 1951) by itself terminates the lease of the tenant or whether further order under Section 8(1)(g) was necessary for the effective termination of the lease?

2. The question arises upon the following facts: The petitioner in both the Special Civil Applications is one Joharbi, who was the 'landlord' of a tenant named Madhao Bhawani, who is respondent in both the petitions. The other respondents are merely the officers who passed the orders impugned in these petitions. Joharabi was the owner of survey number 11/2 having an area of 17 acres 36 gunthas of mouza Virkund, in taluq Wani, district Yeotmal. On December 4, 1954 she served a notice upon the tenant under Section 9(1) of the Berar Regulation of Agricultural Leases Act, 1951 (which we shall hereafter refer to as the Leases Act) claiming to terminate the tenancy of the respondent-tenant on the ground that she required the field for her personal cultivation. Having given this notice and waited for the statutory period referred to in Sub-section (1) of Section 9 she applied under Section 8(1)(g) of the Leases Act to the Sub-Divisional Officer, Wani for an order terminating the lease. The tenant had a right to commence a proceeding to have the notice declared to be not bona fide under Section 9(3) of the Leases Act, but he did not take any steps in that behalf. Nonetheless by his order dated May 8, 1957 the Sub-Divisional Officer rejected the 'landlord's' application on the ground that the notice was not bona fide. The petitioner 'landlord' appealed to the Deputy Collector and when that appeal was pending an important event took place. On January 20, 1958 there came into force a local Act entitled the Bombay Vidarbha Region Agricultural. Tenants (Protection from Eviction and Amendment of Tenancy Laws) Act, 1957 (Act No. IX of 1958). Section 3 of this Act imposed a bar on eviction of a tenant for a period of two years and Section 4 provided that all proceedings pending at the commencement of the Act or which may be instituted during the period of the Act for termination of the tenancy and eviction of a tenant shall be stayed upon certain conditions. The 'landlord's' appeal remained pending when Act IX of 1958 was repealed by Act No. XCIX of 1958, namely, The Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (hereinafter referred to as the new Tenancy Act). This Act came into force on December 30, 1958. The Deputy Collector then heard the landlord's appeal, set aside the order passed by the Sub-Divisional Officer and remanded the case to the Naib-Tahsildar ordering that it should be heard and decided in the light of the new Tenancy Act.

3. After this remand the Naib-Tahsildar rejected the application treating it as an application under Section 36(2) read with Section 38(1) of the new Tenancy Act. He held that a fresh notice had to be given under Section 38(1) which was not given, and therefore, the 'landlord' had no right to ask for the termination of the tenancy. In an appeal to the Sub-Divisional Officer the order of the Naib-Tahsildar was confirmed on May 25, 1961. The 'landlord' went up in revision to the Maharashtra Revenue Tribunal and the Tribunal held that a separate notice under Section 38(1) was not necessary but that the notice given under Section 9 of the Leases Act could be treated as a notice under Section 38 of the new Tenancy Act. They relied upon a decision of a division bench of this Court in Ramchandra v. Tukaram [1961] N.L.J. 644 : 64 Bom. L.R. 67, taking the view that the Tribunal had no option but to remand the case. The order of the Maharashtra Revenue Tribunal was passed on January 5, 1962. Thus the case stood remanded for the second time.

4. After this remand the present petitioner 'landlord' also took another step towards getting possession of her field. She filed Civil Suit No. 29 of 1962 in the Court of the Civil Judge, Junior Division, Wani. In that suit the defendant-tenant took the plea that he was a tenant, and therefore, under Section 125 of the new Tenancy Act the civil Court was bound to make a reference to the Revenue authorities which it did. This reference made by the civil Court has been heard simultaneously with the other proceedings taken by the 'landlord' in the Revenue Court and thus two parallel proceedings have been going on and the two Special Civil Applications before us pertain to these two parallel proceedings. The Revenue proceeding, which originally commenced upon the application under Section 8(1)(g) of the Leases Act demanding possession from April 1, 1955, is the proceeding with which we are concerned in Special Civil Application No. 1049 of 1966 and the reference which arises out of the Civil Suit filed by the 'landlord' is Special Civil Application No. 1050 of 1966 before us.

5. After the second remand by the Maharashtra Revenue Tribunal, the Naib-Tahsildar again held that the petitioner had failed to satisfy the requirements of Section 38(3)(c) of the new Tenancy Act, and therefore, dismissed her application on November 21, 1963. In an appeal to the Sub-Divisional Officer the order of the Naib-Tahsildar was confirmed on June 27, 1964 and a revision to the Maharashtra Revenue Tribunal was dismissed on April 27, 1966. The present petition No. 1050 of 1966 thus came to be filed on July 27, 1966.

6. The point which was raised in the writ petitions before the learned single Judge was not as such raised before the Revenue Authorities. The Maharashtra Revenue Tribunal merely confirmed the orders of the authorities below by finding that the total land held by the 'landlord' was in excess of one family holding, and therefore, she could not make the application for resumption of additional land from her tenant. It held that that finding was a finding of fact arrived at by the authorities below, and therefore, there was no ground, in revision to agitate against it. Before the learned single Judge, however, it was urged on behalf of the 'landlord' that the total holding of the 'landlord' in this case was not more than 50 acres, and therefore, to the extent that it was below 50 acres she could resume at least a part of the tenant's land, and therefore, the ground which prevailed with the Maharashtra Revenue Tribunal was not correct. The other ground which was argued in Special Civil Application No. 1050 of 1966 was whether the requirement of Section 9 of the Leases Act, as in the instant case, has been complied with having regard to the provisions of Section 8(1)(g) of the Leases Act read with Section 19(1) thereof and that is the point which has given rise to the reference.

7. Before we state the respective contentions of the parties it is necessary to set forth some of the relevant provisions of the law. Relevant portion of Section 8(1) of the Leases Act is as follows:

8. (1) Notwithstanding any agreement, usage, decree or order of a Court of law, the lease of any land held by a protected lessee shall not be terminated except under orders of a Revenue Officer made on any of the following grounds, namely:...

(g) he has been served with a notice by the landholder as provided in Section 9.

Sub-sections (1), (2) and (3) of Section 9 are as follows:

9. (1) Notwithstanding anything contained in Section 8 the landholder may terminate the lease of a protected lessee by giving him notice in writing delivered not less than three months before the commencement of the next agricultural year stating therein the reasons for such termination and the description of the area in respect of which it is proposed to terminate the lease, if the landholder requires the land for cultivating the land personally.

(2) Nothing contained in Sub-section (1) shall entitle the landholder to terminate the lease of a protected lessee on the ground that the landholder wants the land to cultivate personally unless the area held by the landholder and available to him for cultivating personally is or has diminished below fifty acres and where this condition is satisfied, the landholder shall be entitled to terminate the lease in respect of only so much area of the land as is necessary to make the total area equal to fifty acres.

(3) If, upon receipt of a notice under Sub-section (1), the protected lessee considers-

(a) that the notice is not bona fide, or

(b) that he should be permitted to give up some other land of the same landholder in lieu of the land mentioned in the notice;

he may apply to the Revenue Officer within thirty days from the date of receipt of the notice either for declaration that the notice shall have no effect or for permission to give up some other land of the same landholder in lieu of the land mentioned in the notice as the case may be.

Sub-sections (1) and (3) of Section 19 of the Leases Act are as under:

19. (1) A landholder may apply to the Revenue Officer to eject a protected lessee against whom an order for the termination of the lease has been passed under Sections 8 or 9.

(3) On receipt of an application under Sub-sections (1) or (2), the Revenue Officer may, after making such summary enquiry as he deems fit, pass an order for restoring possession of the land to the landholder or the protected lessee as the case may be and may take such steps as may be necessary to give effects to his order.

It may be noticed that there is an apparent conflict between the provisions of Section 8(1)(g) and the provisions of Section 9(1). Section 9(1) begins with the non-obstante clause 'notwithstanding anything contained in Section 8....' The normal effect of such a clause would be to exclude the provisions of Section 8, yet Clause (g) of Section 8(1) states as one of the grounds for termination of tenancy that 'the tenant has been served with a notice by the landlord as provided in Section 9.' (The italics are ours). In the authorities, to which we shall presently refer, one of the principal defects which Courts have endeavored to solve is to reconcile these words of Section 8(1)(g) with the non-obstante clause with which Section 9 opens.

8. The other contention raised on behalf of the 'landlord' by Mr. Kazi before us has been on the basis of Section 9. He contends that Section 9 deals with a special class or category of cases, namely, termination of a lease by giving of a notice by the landlord and it is comprised of two distinct parts-one, of Sub-sections (1) and (2) of Section 9 and the other, of Sub-section (3). Sub-sections (1) and (2) of Section 9 obviously refer to a case where a landlord gives a notice and complies with the requirements of a notice laid down in those sub-sections and nothing more happens, but Sub-section (3) gives the tenant an important right to challenge the notice. The tenant can challenge it on the two grounds mentioned therein, namely, (a) that the notice is not bona fide, or (b) that he should be permitted to give up some other land of the same landholder in lieu of the land mentioned in the notice. The conditions for serving the notice laid down in Sub-section (1) of Section 9 are: (1) that the notice must be in writing, (2) that it must be delivered not less than three months before the commencement of the next agricultural year, (3) that the landlord must state therein his reasons for termination, (4) that the description of the area in respect of which it is proposed to terminate the lease should be given and (5) the fact that the landlord requires the land for cultivating it personally should be stated. The notice in the present case, it must be assumed, complies with the requirements of Sub-section (1) of Section 9 because the contention that it has not fulfilled the requirement of Section 9(1) has not been raised. The tenant never challenged it at all. The matter is further complicated by the fact to which we have already referred that before the dismissal of the application filed by the landlord on April 1, 1955 was finally decided upon in the appeal filed by the 'landlord' the new Tenancy Act came into force on December 30, 1958. We may here refer to its relevant provisions. By Sub-section (1) of Section 132 read with Schedule I the Berar Regulation of Agricultural Leases Act, 1951 was wholly repealed. Then Sub-sections (2) and (3) provide as follows:

132. (2) Nothing in Sub-section (1) shall, save as expressly provided in this Act, affect or be deemed to affect-

(i) any right, title, interest, obligation or liability already acquired, accrued or incurred before the commencement of this Act, or

(ii) any legal proceeding or remedy in respect of any such right, title, interest, obligation or liability or anything done or suffered before the commencement of this Act,

and any such proceedings shall be instituted, continued and disposed of, as if this Act had not been passed.

(3) Notwithstanding anything contained in Sub-section (2)-

(a) all proceedings for the termination of the tenancy and ejectment of a tenant or for the recovery or restoration of the possession of the land under the provisions of the enactments So repealed, pending on the date of the commencement of this Act before a Revenue Officer or in appeal or revision before any appellate or revising authority 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, and

(b) in the case of any proceeding under any of the provisions of the enactments so repealed pending before a Civil Court on such date, the provisions of Section 125 of this Act shall apply.

It will be noticed that Sub-section (2)(i) of Section 132 preserves certain rights acquired, accrued or incurred before the commencement of the new Tenancy Act. Similarly, Sub-section (2)(ii) preserves the right to pursue any legal proceeding or remedy in respect of any such right, before the commencement of the new Tenancy Act, The question, therefore, necessarily arises, what was the right which the 'landlord' in the instant case had, before the commencement of the new Tenancy Act by virtue of the notice which she had given or the proceedings which she had taken, and it is in this context that the provisions of the Leases Act to which we have referred become relevant. Sub-section (5) makes provision for pending proceedings and says that those proceedings 'shall be deemed to have been instituted and pending before the corresponding authority' which must not only be deemed to be pending before the corresponding authority, but also must be deemed to be instituted under the new Tenancy Act and one question that had been argued before us is as to what extent the new Tenancy Act and its provisions, particularly Sections 36 and 38 thereof, would apply having regard to the proceedings which the 'landlord' had taken under the Leases Act prior to its commencement.

9. We have so far stated merely the law as it stood on the date of the application of the 'landlord' in the present case under Section 8(1)(g) of the Leases Act and the changes which came about. The construction of provisions of the law is no longer a matter of first impression so far as this Court is concerned. These provisions have been dealt with and pronounced upon in several authorities and the arguments before us have been more concerned with the authorities than with the provisions of the law itself.

10. It is necessary, therefore, to refer to two of the leading cases upon the subject. First of all there is the decision of the Full Bench of this Court in Jayantraj Kanakmal v. Hari Dagdu [1961] N.L.J. 636 F.B : 64 Bom. L.R. 57 which construed Sections 8, 9 and 19 of the Leases Act and Section 132(3)(a) of the new Tenancy Act. In that case the landlord gave a notice terminating the tenancy of his tenant under Sub-section (1) of Section 9 and the tenant in that case applied within the prescribed time under Sub-section (3) of Section 9 for declaring the notice as being not bona fide. On this application of the tenant the Sub-Divisional Officer passed an order terminating the tenant's lease. The order was passed on November 12, 1956 but the tenancy was ordered to be terminated from April 1, 1957. Against this order the tenant appealed and the Additional Deputy Commissioner set aside the Sub-Divisional Officer's order. He held that the notice given by the landlord was invalid. There was a second appeal preferred by the landlord to the Revenue Tribunal and pending that appeal, the Bombay Vidarbha Region Agricultural Tenants (Protection from Eviction and Amendment of Tenancy Laws) Act, 1957 (Act No. IX of 1958) came into force on January 20, 1958. Thereafter the Revenue Tribunal by its order dated February 13, 1958 allowed the landlord's appeal, set aside the order of the Additional Deputy Commissioner and restored the Sub-Divisional Officer's order. Against the Revenue Tribunal's order the Special Civil Application was filed.

11. The Full Bench reviewed the provisions of Sections 8, 9 and 19 of the Leases Act and it came to the conclusion that Sections 8, 9 and 19 had all to be read together. The principal bone of contention between The landlord and the tenant was whether a notice given under Section 9(1) by the landlord and complying with its provisions could ipso facto lead to a termination of the tenancy, or whether an order was necessary to be obtained from a Revenue Officer under Section 8(1)(g). The Full Bench held (vide para. 8 at p. 639):

The position, therefore, was that in order to obtain possession of his land from a protected lessee, the landholder 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 landholder. It may be noted here that the order which, under this section the Revenue Officer could make in favour of a landholder, is referred to as an order for 'restoring' possession of the land. If this Section 19 is read along with Section 8, and in particular Sub-section (3) of Section 8, it will be clear that the Legislature regarded both the proceedings under Section 8 and Section 19 as being parts of one proceeding, which is described in some places as a proceeding for termination of a lease and in others as a proceeding for ejectment. The proceeding commenced with an application under Sub-section (1) of Section 8 and ended with an order under Sub-section (3) of Section 19. The application under Sub-section (1) of Section 19 was only a second step in the proceeding initiated under Sub-section (1) of Section 8 to obtain back the 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 of 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.

The Full Bench also remarked on a perusal of the provisions of this Act, particularly Sub-section (3) of Section 8, that the Legislature regarded the proceedings for terminating the lease of a protected lessee as being really a proceeding for possession of the land which proceeding did not end until either the application has been rejected or alternatively an order for possession of the land being given to the landlord had been made.

12. As regards the applicability of Sub-section (3) of Section 132, the Full Bench pointed out that consistent with the view which it had taken as to the proceeding commenced under Section 9, namely, that it was a continuous process commencing with a proceeding under Section 8(1)(g) until possession was delivered to the landlord under Section 19(3), it must also be held that the proceeding continued to be pending so long as order under Section 19 was not made. Therefore, Section 132(3) would come into play and the landlord's application under Section 8(1)(g) would have to be treated as if it were a proceeding instituted under the new Tenancy Act, and should be disposed of in accordance with its provisions. Since the words of Section 132(3) are 'shall be disposed of in accordance with the provisions of this Act', the Full Bench held that the landlord must comply with the provisions of Sub-sections (3) and (4) of Section 38, which laid down additional conditions which the landlord had to fulfil before he could be allowed to resume land for personal cultivation. It must be stated here that a careful perusal of Jayantraj's case does not show that there was any real dispute before that Full Bench regarding the scope and applicability of Section 132(3). What was really in dispute before that Full Bench was the correct interpretation of Sections 8, 9 and 19 of the Leases Act. In fact it appears to have been taken for granted by both the parties and the Court that if it is held that a mere notice under Section 9(1) cannot terminate the tenancy without an order from a Revenue Officer under Section 8(1)(g), then the landlord would have to comply with the provisions of Section 38 of the new Tenancy Act.

13. Immediately after the decision in Jayantraj's case there was heard the case in Ramchandra v. Tukaram which was a Division Bench decision. It followed the Full Bench decision in Jayantraj's case. In that case no doubt so far as the application, of Section 132(3) is concerned, counsel for the landlord had urged that applications to which Section 132(3) applied were not applications in pursuance of the right conferred under Section 36 of the new Tenancy Act and that consequently the conditions laid down in the section need not be fulfilled in such cases. The Division Bench answered the point by saying (see para. 8 at p. 648):.This argument ignores the provisions of Section 132(3) 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.

We are especially emphasising this part of the decision in Ramchandra v. Tukaram here for a special reason. As we shall presently show, the case went up by grant of special leave to appeal to the Supreme Court and it was precisely upon this point alone that the decision was challenged before the Supreme Court and reversed. It was not reversed in so far as it followed the earlier Full Bench decision in Jayantraj's case, nor, as we shall presently show, was; Jayantraj's case at all in dispute before the Supreme Court.

14. The Supreme Court judgment against the decision of the Division Bench in Ramchandra v. Tukaram is reported in Ramchandra v. Tukaram [1965] Mh. L.J. 850 : 68 Bom. L.R. 658. What was the point which fell for determination before the Supreme Court will immediately be highlighted, if we reproduce the argument by counsel for the appellant as stated by the Supreme Court itself. (See para. 5 at p. 854):.Mr. Patwardhan for the appellant has, for the purpose of this appeal, not sought to canvass the correctness of the view of the judgment in Jayantraj Kanakmal Zambad, but has submitted that the High Court has not correctly interpreted Section 132(3) of the Tenancy Act.

It was this point which the Supreme Court proceeded to answer. It pointed out that Section 38 which made provisions in the new5 Tenancy Act equivalent to the provisions of Section 19 in the Leases Act consisted of two parts i.e., a procedural part and a substantive part. In the substantive part Sub-sections (3) and (4) of Section 38 laid down several additional conditions which had to be fulfilled by the landlord before he could obtain an order terminating the tenancy on the ground of his personal cultivation. They then pointed out that upon the facts in Ramchandra v. Tukaram an order had already been passed on July 2, 1957 terminating the tenant's lease with effect from April 1, 1958, upon the landlord's application under Section 8(1)(g). The tenant in that case, as in the present case, had not moved under Section 9(3). They also held that between Section 19(3) of the Leases Act and Section 36(3) of the new Tenancy Act in the matter of procedure there did not appear any substantial difference, but to the trial of the application for enforcement of the right acquired under the Leases Act, Section 38 of the Tenancy Act could not be attracted. Section 38 is, in terms, prospective and does not purport to affect rights acquired before the date on which the new Tenancy Act was brought into force. They, therefore, upheld that part of the decision of the Division Bench of the High Court where it held that if a valid notice is once given under Section 9(1) then a fresh notice under Section 38(1) was not necessary, but they did not accept the view of the High Court that Sub-sections (3) and (4) of Section 38 apply to an application filed or deemed to be filed under Section 19 of the Leases Act. They pointed out that the words in Section 132(3) 'shall be disposed of in accordance with the provisions of this Act', though no doubt general, clearly indicate that they were intended to apply to tenancies determined under Section 38(1). Once an order was passed under Section 8(1)(g) of the Leases Act by a Revenue Officer, the only enquiry contemplated to be made was under Section 19 of the Act and at that stage there was no scope for the application of the conditions laid down in Sub-sections (3) and (4) of Section 38, for, in our view, these provisions do not apply to proceedings to enforce right acquired when the Leases Act was in operation. It is thus clear that the Supreme Court only reversed the decision of this Court in Ramchandra v. Tukaram on the scope of applicability of Section 132 and the provisions of Sub-sections (3) and (4) of Section 38 in consequence of the interpretation which they put upon the provisions of Section 132(3) of the new Tenancy Act and the decision in Ramchandra v. Tukaram based upon the Full Bench decision in Jayantraj's case was not at all. touched, nor was the decision in Jayantraj's case at all in question before it.

15. Now, long before these two important decisions were given, there prevailed in this Court a certain view as to the effect and operation of Section 9(1) of the Leases Act which it is necessary to state in order to enable one to understand the contentions raised before us. That view has been taken in a series of cases commencing from Tarabai v. B'bay Rev. Tribunal (1958) 61 Bom. L.R. 41 : [1958] N.L.J. 535. In Tarabai's case the facts were that the landlord had given a notice on December 23, 1952 under Section 9(1) terminating the tenant's lease on the ground that she required the land for cultivating it personally. Pursuant to the notice the tenant, consented to the delivery of possession and possession was delivered to the landholder on April 1, 1953. A few months later, the tenant, the erstwhile protected lessee, applied under Section 9(6) of the Leases Act which permits the tenant to apply for restoration of possession of land to him if the landholder failed at any time during the period prescribed to utilise the land for the purpose for which the lease was terminated. Because of this application under Section 9(6) the question which arose for determination in that case was whether a notice simpliciter given under Section 9(1) could terminate a tenancy. It was urged on behalf of the landholder that the termination in that case was with the consent of the protected lessee and not under the orders of the Revenue Officer as required under Section 8(1)(g) read with Section 9(1), and therefore, an application under Section 9(6) could not lie.

16. The Division Bench took the view that the lease was terminated by the notice under Section 9(1) and the application under Section 9(6) was, therefore, maintainable. The Division Bench also pointed out an apparent conflict between the opening non-obstante clause of Section 9(1) and the provisions of Section 8(1)(g) which refer to Section 9, and the Division Bench held that it was clearly the intention of the Legislature to exclude the operation of Section 8 altogether in the case contemplated by Section 9(1), viz. where the lease was terminable on the ground that the landholder required the land for cultivating personally. The only protection afforded to the lessee in such a case was the protection under Section 9(3), but if the tenant did not take objection to the notice under Section 9(3), then there was no reason why the tenancy should not be held to be terminated. So far as the reference to Section 9 in Section 8(1)(g) is concerned, they pointed out that the words used in Section 8(1)(g) were 'a notice by the landholder as provided in Section 9' and that was not the same thing as saying 'under Section 9'. They held, therefore, that by use of these words in Section 8(1)(g) that section merely made a reference to the notice and its various requirements mentioned in Section 9(1) and to nothing further. These words could not bring in the remaining sub-sections of Section 9. They thus gave full effect to the non-obstante clause in Section 9(1) and explained the reference to Section 9 in Section 8(1)(g).

17. Since this decision, several Division. Benches of this Court have taken the same view and followed it. It was followed in Ramchandra v. Mainabai (1960) Special Civil Application No. 162 of 1959 by Tambe J. (as he then was, later Chief Justice) and Raju J. and by Mr. Justice Mudholkar and Mr. Justice Naik in Dhananjaya v. Bombay Revenue Tribunal : (1959)61BOMLR1156 . It may be noticed that in both the above cases an order had been passed after the notice under Section 9(1) at the instance of the landlord by the Revenue Officer. In Ramchandra v. Mainabai it was an order under Section 9(3) whereas in Dhananjaya's case it was an order under Section 8(1)(g). To that extent no doubt these two decisions somewhat extended the principle in Tarabai v. Bombay Revenue Tribunal which was a case where there was only a notice simpliciter and no order was passed by the Revenue Officer. No doubt also these decisions were given before the decision in the Full Bench case of this Court in Jayantraj's' case or the decision of the Supreme Court in Ramchandra v. Tukaram (cit. supra.)

18. A third decision is to be found reported in Ramchandra v. Mah'tra Rev, Tribunal (1964) 70 Bom. L.R. 623 : [1968] Mh.L.J. 574. (Abhyankar and Kantawala JJ). This case upon the facts was similar to Tarabai's case. In this case after notice was served upon the tenant under Section 9(1) he did not take any steps to contest the notice on any ground as provided in Sub-sections (3) to (5) of Section 9 and the landlord thereafter filed a suit claiming possession. The petition arose out of a reference made in that suit. The Division Bench held that in those cases where a landholder has given a valid notice under Section 9(1) of the Leases Act and no steps have been taken by a protected lessee in challenging that notice or asking any other relief under the provisions of Sub-sections (3), (4) and (5) of Section 9 of the Act, such a notice effectively terminates the tenancy of the protected lessee and the landholder is neither required nor entitled to make an application for ejectment of a protected lessee under Section 19(1) of the Act. This case was decided after the decision of the Full Bench in Jayantraj's case. The learned Judges did not find anything in that decision to counter the view which they took. They distinguished Jayantraj Kanakmal v. Hari Dagdu.

19. With this preamble as to the state of the law, we now turn to the contention advanced by Mr. Kazi in the present case. The contention is that having regard to the provisions of Sections 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 [tenant] is once served with 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 says that a landlord may terminate the lease of a protected lessee by giving him a notice in writing. The only conditions to the exercise of this right by the landlord of 'automatic termination', as we may conveniently call it, are those mentioned in Sub-section (2) of Section 9 after the word 'unless', namely, that the area held by the landholder and available to him for cultivating personally is or has diminished below fifty acres and that he can get only so much area of the land as is necessary to make the total area equal to fifty acres.

20. The question which was posed in one of the earliest cases, namely, Uttamrao v. Sahurao [1958] N.L.J. 182 a decision of the then Revenue Tribunal, as to who is to decide whether these conditions are fulfilled, is met by the answer that it is the civil Court that would decide it, because there is nothing in the Act to indicate that any Revenue Officer shall decide this issue. As a matter of fact it is pointed out that this is precisely what had happened in Ramchandra v. Maharashtra Revenue Tribunal. The counter argument that Section 16-B prevents the civil Court from adjudicating upon the matters in Sub-section (2) of Section 9 is met by the argument that the very wording of Section 16-B does not prevent it from being decided by the civil Court. The words of Section 16-B of the Leases Act are:

16-B. Except as otherwise provided in this Act, no Civil Court shall entertain any suit instituted, or application made, to obtain a decision or order on any matter which a Revenue Officer is by or under this Act, empowered to determine, decide or dispose of.

(The italics are ours).

Therefore, it is only if a Revenue Officer is empowered to determine, to decide or dispose of the matters mentioned in Sub-section (2) of Section 9 that the jurisdiction of the civil Court would be barred, but Sub-section (2) does not entrust the decision as to the existence or fulfilment of the conditions mentioned therein for decision by the Revenue Officer, nor is there any other provision in the Act indicating that. Counsel urged that the contention based on Section 9(2) is correct, that when there is automatic termination by giving of a notice, then the Revenue Officer is not empowered in. such a case to determine, decide or dispose of that question, and therefore, Section 16-B would not apply.

21. Next it was urged that only if such an interpretation is placed upon the provisions of Sub-sections (1) and (2) of Section 9, can full effect be given to the non-obstante clause with which Section 9 opens, otherwise it will have no meaning. It was urged that when the section says 'notwithstanding anything contained in Section 8' the Legislature has clearly indicated that the whole of Section 8 is excluded in application of Section 9, and we cannot curtail the ambit of that clear language by any artistry of construction. So far as this point is concerned, neither in the Full Bench case nor in the Supreme Court case is there any pronouncement on the effect of the non-obstante clause, or the extent to which it would be applicable. It was urged that since the Full Bench was considering the very provisions of Sections 8 and 9 they ought to have said something about this non-obstante clause, but it was in the sequel glossed over. On the other hand, it was submitted that in Tarabai's case it was considered and correctly interpreted to give it its proper effect. That case gave it full effect by totally excluding the applicability of Section 8. (See para. 6 at p. 537). It was urged that there is no answer to the reasoning adopted in Tarabai's case in the decision of the Full Bench so far as this particular category of cases is concerned, namely, cases where there is a mere notice given and the tenant takes no further action. The Supreme Court also was not concerned with the case of automatic termination, but in that case an order under Section 8(1)(g) had been passed. So also in the Full Bench case an order under Section 9(3) had been passed. Therefore, these cannot be the authorities upon the question which arises in the present case and cannot govern a contention like the present one that the mere giving of a notice terminates a tenancy, if the notice is not challenged by the tenant.

22. As to the verbiage of Clause 8(1)(g) 'has been served with a notice by the landholder as provided in Section 9' no doubt it refers to Section 9, but that does not bring in the substantive provisions of Section '9 at all. It was urged that the answer is given in Tarabai v. Bombay Revenue Tribunal, namely, that Section 8(1)(g) merely speaks of such a notice as is referred to in Section 9, that is to say, the ingredients of the notice should be such as mentioned in Section 9, but it need not be a notice under Section 9. In this connection it was stressed that the words are 'as provided in Section 9' and not 'under Section 9.'

23. As regards the reliance on Section 19(1) in the Full Bench case, stress was laid upon the words in the section 'an order for the termination of the lease has been passed under Sections 8 or 9'. It was again stressed that the Full Bench made these remarks in the context of a case in which an order had been passed under Section 9(5) and that the Full Bench had not before it a case where no order whatever was passed. Therefore, the Full Bench decision cannot govern a case like the present one. The argument which relies upon Section 19(1) to suggest that an order under Sub-sections (1) and (2) of Section 9 is essential merely begs the question. No doubt Section 19(1) refers back to Sections 8 and 9, but Section 19(1) speaks of an order for termination of the lease passed under Section 8 or 9, and therefore, where there is an automatic termination by notice, as is contended in this case, there is no order passed under Section 8 or 9 and therefore, Section 19 will not apply. This argument is not met in the Full Bench case nor did it fall for consideration in the case before the Supreme Court.

24. On all these grounds it was contended that the decision in Tarabai v. Bombay Revenue Tribunal and the catena of cases which followed that decision, to which we have already made reference, constituted a class by themselves, an exceptional class from which the other category of cases is apart and distinct. In the present case it is that category of cases alone which is applicable, and therefore, the case is taken out of the ambit of the principles laid down in the Full Bench case and the Supreme Court decision.

25. These are no doubt powerful arguments and were we free to consider them we would certainly have gone into them, but for reasons which we immediately proceed to state we are no longer free to consider them. In our opinion, the combined effect of the Full Bench case read along with the Supreme Court case is that the matter is no longer at large. We have already referred to the decision in the Full Bench case. No doubt in that decision the argument was not put in the shape in which it has been put before us, nor did counsel on behalf of the landlord point out the earlier decision in Tarabai v. Bombay Revenue Tribunal, as he ought to have done. The case merely illustrates to what extent the industry of counsel normally assists a Court in coming to a correct decision and vice versa, but for the reason that Tarabai v. Bombay Revenue Tribunal was not at all considered, it seems to us that it is no longer open to us to reconsider the decision in Jayantraj's case, because of the decision of the Supreme Court in Ramchandra v. Tukaram.

26. On the view which was propounded in Jayantraj's case what was held was that having regard to the cumulative effect of Sections 8(1) (g), 9(1) and 9(3) read with Section 19(1) it appeared that there was one continuous proceeding which the law contemplated for the termination of a tenancy and the eviction of a tenant. In terms the Full Bench held (p. 639):.A proceeding instituted under Sub-section (1) for obtaining an order for the termination of a lease was regarded as being essentially a proceeding for ejectment. The purpose or object of securing an order for termination of a lease is to get back possession of the land from the lessee. Ejectment is, therefore, ordinarily a necessary consequence of the order terminating a lease.

The Court pointed out that in that ill-drafted piece of legislation the draftsman did not consider it material whether the proceeding under Section 8 was described as a proceeding for termination of a lease or as a proceeding for ejectment and he indiscriminately used either expression. Taking this view, the Full Bench held 'a proceeding under Section 8 or Section 9 remains pending so long as an application can be made in it under Sub-section (1) of Section 19 and until an order has been made under Sub-section (3) of Section 19.' Of course, before the Full Bench an argument such as is advanced in the present case was not advanced. The Full Bench generally laid down what it felt was the effect of the provisions of that Act. Now in view of the contentions advanced before us and since we are sitting as a Full Bench, we might have proceeded to consider the contrary contentions, which we have set forth above and which no doubt are substantial, but in the sequel the matter does not rest with the decision of the Full Bench. As we have pointed out above, on the next day after the Full Bench case was decided, came the decision of the Division Bench in Ramchandra v. Tukaram where the Full Bench decision in Jayantraj's case was followed. That case then went up to the Supreme Court and the decision of the Supreme Court, to which we have already referred, is to be found Ramchandra v. Tukaram. Before the Supreme Court, no doubt, Jayantraj's case was referred to, but as we have shown from the very concession of counsel, the principle of its decision was never challenged. On the other hand, counsel in his argument accepted that decision. It cannot be said, therefore, that the Supreme Court either affirmed or commented upon that decision, but the only contention the counsel advanced in that case was, that Section 132(3) of the Tenancy Act had not been correctly interpreted in the Division Bench judgment of this Court in Ramchandra v. Tukaram.

27. However, the Supreme Court had occasion to consider for itself the provisions of Sections 8, 9 and 10 read with the provisions of Section 132(2) and (3) of the' Tenancy Act in order to determine whether any right inhered in the landlord in that case on the date on which the new Tenancy Act came into force, namely, December 30, 1958. The Supreme Court had to consider first of all what was that right and in order to determine what was that right, the Supreme Court had to apply its mind to the provisions of Sections 8, 9 and 19 and it has, in terms, pronounced upon those sections and, in our opinion, that pronouncement is absolutely binding upon us.

28. In the Full Bench case the ultimate conclusion which the Full Bench reached that the proceedings for termination of a tenancy and ejectment of a tenant are of one continuous process? commencing from a notice under Section 9(1) and obtaining of an order under Section 8(1)(g) or Section 9(3) and applying for possession, under Section 19(1) were founded upon one basic premise and that basic premise; was that the landlord after giving a notice under Section 9(1) must obtain an order under Section 8(1)(g), even though the tenant does not take advantage of Section 9(3). The Full Bench held, having regard to the provisions of Sections 8 and 9, that such an order was essential and that a mere notice would not terminate the tenancy. Independently of the Full Bench decision, which was not submitted for consideration to the Supreme Court, the Supreme Court, we say so with all respect, came to an identical conclusion and it is stated in para. 2, at p. 851 as follows:.It is necessary in the first instance to make a brief survey of the diverse statutory provisions in their relation to the progress of the dispute, which have a bearing on the question which falls to be determined. The land was originally in the Vidarbha region which before the Bombay Reorganisation Act, 1956 was a part of the State of Madhya Pradesh, and the tenancy of the land was governed by the Berar Act. The first respondent was a protected lessee in respect of the land under Section 3 of the Berar Act. Section 8 of the Act imposed restrictions on termination of protected leases. It was provided that notwithstanding any agreement, usage, decree or order of a Court of law, the lease of any land held by a protected lessee shall not be terminated except under orders of a Revenue Officer made on any of the grounds contained therein. Even if the landlord desires to obtain possession of the land for bona fide personal cultivation he had to obtain an order in that behalf under Section 8(1)(g). Section 9 enabled the landlord to terminate the lease of a protected lessee if he required the land for personal cultivation by giving notice of the prescribed duration and setting out the reasons for determination of the tenancy. A tenant served with the notice under Sub-section (1) could under Sub-section (3) apply to the Revenue Officer for a declaration that the notice shall have no effect or for permission to give up some other land of the same landholder in lieu of the land mentioned in the notice. Sub-sections (4), (5), (6), (7) and (8) dealt with the procedure and powers of the Revenue Officer. 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.

(Italics are ours).

It would thus appear that the Supreme Court after a complete consideration of Sections 8 and 9 and Section 19 in the subsequent passage gave a considered decision that a mere notice under Section 9(1) cannot by itself terminate a tenancy, but that in every case an order under Section 8(1)(g) was essential, and that principle was the basis of the decision of the Full Bench case also. That decision, therefore, is absolutely binding upon this Court and for that reason we think we are now precluded from re-considering the decision in the Full Bench case.

29. It may be, as was argued, that the Supreme Court omitted to consider all the contentions that counsel has raised in the present case and which we have in details set forth above. It may also be as was urged that no reference was made before the Supreme Court to the view taken in Tarabai v. Bombay Revenue Tribunal and the long catena of cases which followed upon it. But the Supreme Court did apply its mind to relevant provisions of the law and pronounced upon them. It is not open to High Courts1 to ignore the decisions of the Supreme Court on the ground that the relevant provisions of law were not brought to the Supreme Court's notice. See Ballabhdas v. Muni. Com. Malkapur [1970] Mh. L.J. 561.

30. It was further strongly urged in support of the same contention against applying the decision of the Supreme Court in the present case by Mr. K.H. Deshpande, who supplemented the argument of Mr. Kazi, that these remarks of the Supreme Court in para. 2 of their judgment, which we have reproduced, were mere casual observations and that such casual observations need not necessarily bind the High Court nor preclude a Full Bench from reconsidering another Full Bench's decision. A large number of cases were cited to show what is the ratio decidendi of a case and what is an obiter dictum and what a mere casual observation. In our opinion, however, none of these cases is in point for the simple reason that we think that upon the terms of the decision of the Supreme Court there was neither a casual observation made by them nor even an obiter dictum expressed. What the Supreme Court decided was the very basis of that decision. It was the ratio decidendi of that case. This is clear from the remarks of the Supreme Court which they prefaced to the discussion of the provisions of Sections 8, 9 and 19 of the Act. The learned Judge who delivered the judgment on behalf of the Full Bench commenced the discussion of the provisions by the following remarks:.It is necessary in the first instance to make a brief Survey of the diverse statutory provisions in their relation to the progress of the dispute, which have a bearing on the question which falls to be determined.

When the Supreme Court itself said that it was necessary to make a brief survey of the various statutory provisions and when it itself said that the provisions had a bearing on the question which fell to be determined, it is not now open to any one to contend that what they said in the subsequent passage was either an obiter dictum or a casual observation. In that view, we do not think that we need consider all the cases that were referred or cited before us on this point. 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 they confirmed the very basis of the decision of the Full Bench of this Court in Jayantraj's case. No doubt Jayantraj's case was found to be incorrectly decided, but upon different grounds. It was found incorrectly decided upon the interpretation of the provisions of Section 132(3) of the new Tenancy Act. But so far as the view taken as to the provisions of the Leases Act, we are satisfied that the Supreme Court impliedly affirmed that decision, even though counsel in that case did not want to refer to it.

31. Upon the view we have taken as to the impact of the Supreme Court decision we must hold that the view taken in Tarabai v. Bombay Revenue Tribunal 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 Laxman v. Shionath (1967) 69 Bom. L.R. 734 : [1967] Mh. L.J. 670 which was the only case brought to our notice which was decided after the Supreme Court case. We are in respectful agreement with the view taken by our learned brother. Another decision in Ramchandra v. Mah'tra Rev. Trib. was brought to our notice. This decision was given after the Full Bench decision in Jayantraj's case but before the Supreme Court decision. It explained away Jayantraj's case and followed the view in Tarabai v. Bombay Revenue Tribunal but for the same reason which we have given in holding that Tarabai v. Bombay Revenue Tribunal was impliedly overruled by the Supreme Court decision we must hold that this case (Ramchandra v. Mah'tra Rev. Trib.) is also impliedly overruled.

32. If then the correct view is that a notice simpliciter 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 December 30, 1958, the date on which the new Tenancy Act came into force. On that date the position was that the 'landlord' had given a notice on December 4, 1954 and had made an application under Section 8(1)(g) on April 1, 1955, but that application to obtain an order terminating the tenancy had been rejected by the Sub-Divisional Officer on the ground that the notice was not bona fide. Against that decision an appeal was pending. That appeal no doubt could be continued and heard as an appeal under the new Tenancy Act by virtue of Section 132(3), but pending that appeal there was no right whatsoever which had accrued or arisen in favour of the 'landlord'. Therefore, the provisions of Sections 36 and 38 of the new Tenancy Act would become applicable to the 'landlord'. Of course the 'landlord' need not give a fresh notice as was held in the Full Bench case as also in the Supreme Court decision, but that she had to fulfil the additional conditions laid down in Sub-sections (3) and (4) of Section 38, there can be no doubt. In that respect the present case would differ from the case in Ramchandra v. Tukaram where an order of termination had already been passed and it is on that ground that the Supreme Court said that the landlord need not fulfil all the additional requirements of Sub-sections (5) and (4) of Section 38. In the present case there was no order of termination, and therefore, when the new Act came into force no right had accrued in favour of the landlord. The landlord was bound, therefore, to have complied with the provisions of Sub-sections (3) and (4) of Section 38.

33. 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. 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.

34. At this stage Mr. Kherdekar asked for leave to appeal to the Supreme Court as the decision involves an important question of law which will affect several other cases. Leave is granted, under Article 133(1)(c) of the Constitution of India. Certificate to issue.

35. At this stage Mr. Kherdekar pointed out that he has made a separate application in this Court for permission to raise an issue as to res judicata. No such issue was raised before the learned single Judge, nor is it to be found in answer to the petition and we think it is too late to permit it to be raised before the Full Bench. The application is dismissed.

36. Both the petitions are dismissed. As these petitions involve a very controversial question on which there was doubt entertained in several Courts, we think that it would be just to order that each party shall bear its costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //