1. This petition under Article 227 of the Constitution of India is directed against an order of the Commissioner, Poona Division, who is respondent No. 2 before us.
2. the facts necessary for appreciation of the points raised before us lie within a narrow compass: The petitioners are the tenants and respondent No. 1 is the landlord in respect of an agricultural land bearing Survey No. 44/1 and admeasuring 13 acres 21 gunthas situated at village Pimpari, taluka Khatav, District Satara. On 29th May, 1971, respondent No. 1 landlord obtained a certificate under Section 88-C of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as 'the Bombay Tenancy Act') granting exemption to his said land from the provisions of Sections 32 to 32-R of the Bombay Tenancy Act on the ground that this total annual income including the rent thereof did not exceed Rs. 1500/- and that the suit land did not exceed an economic holding. The petitioners-tenants preferred an appeal against the grant of this certificate which was dismissed on 26th November, 1971. The tenants then preferred a Special Civil Application to this Court being Spl. C. A. No. 255 of 1972, which was summarily rejected by this Court on 14th March, 1972. It may be mentioned that after obtaining the certificate on 29th May, 1971, the landlord made an application on 15th November, 1971 for obtaining possession of the land under Section 33-B of the Bombay Tenancy Act. This application is still pending. On 29th July, 1972, the tenants made an application under Section 88-D (1) (iv) for revocation of the certificate granted to the landlord under Section 88-C of the Bombay Tenancy Act. This application came to be disposed of by respondent No. 2. Respondent No. 2 followed the decision of this Court in Atmaram Onkar v. Ananda : (1970)72BOMLR287 and held that the certificate granted to the landlord under Section 88-C of the Bombay Tenancy Act got exhausted and spent as soon as the landlord had instituted the proceedings under Section 33-B of that Act and that the question of revoking the certificate did not survive in cases where proceedings under Section 33-B had been started. In view of this respondent No. 2 dismissed the application of the tenants as not being ,maintainable. The present petition is directed against this decision of respondent No. 2.
3. the question which arises for consideration before us really is, whether the certificate granted to a landlord under Section 88-C of the Bombay Tenancy Act gets exhausted when the landlord makes an application for possession under Section 33-B or whether the said certificate gets exhausted only when the Mamlatdar makes the initial order disposing of the said application of the landlord. The submission of Mr. Gole, the learned counsel for the petitioners, is that such a certificate gets exhausted only when the Mamlatdar makes the initial order on the application of the landlord under Section 33-B of the Bombay Tenancy Act. In support of this submission Mr. Gole placed strong reliance on the decision of a Division Bench of this Court in Special Civil Applns. Nos. 868 of 1970 and 2085 of 1973 respectively (decided by Telzapurkar and Shah, JJ., on 6th September, 1974 (Bom)). In both those cases the landlords had obtained exemption certificates under Section 88-C of the Bombay Tenancy Act on the ground that they were small landholders and that the conditions laid down in Section 88-C of that Act were satisfied. After obtaining the exemption certificates the landlords, by their notices, terminated the tenancy of the tenants in respect of the lands in question and filed applications under Section 33-B of the Bombay Tenancy Act. Orders for possession in favour of the landlords were made by the Mamlatdar in both cases. It was after these order were made that applications under Section 88-D of the Act were made by the tenants for revocation of the exemption certificates granted under Section 88-C of the Act. In Special Civil Application No. 868 of 1970 the application preferred by the tenant before the Maharashtra Revenue Tribunal and in Special Civil Application No. 2085 of 1973 the application was made even after the order had been confirmed by this Court in Special Civil Application No. 3746 of 1969. A contention was raised by the tenants, placing reliance on the decision in Jamunabai Shivram .v Madhav (1973) 75 Bom LR 264, to the effect that the mere fact that an order had been passed under Section 33-B in favour of the landlord did not deprive the Commissioner of his jurisdiction or powers to revoke the certificate under Section 88-D of the Bombay Tenancy Act. The question was referred to a Division bench in view of the conflict in the view taken by two single Judges in Atmaram Onkar's case : (1970)72BOMLR287 and Jamunabai Shivram's case (1973) 75 Bom LR 264. The question which arose for the consideration of the Division Bench was whether in the absence of express words of limitation being found in Section 88-D of the Bombay Tenancy Act itself, any time limit could be put on the powers of the State Government or the Commissioner to entertain an application for cancellation or revocation of the exemption certificate under that section or not. After examining the scheme of Sections 88-C and 88-D as well as the other relevant provisions, particularly those contained in Part II-A of Chapter III (Sections 33-A to 33-C) of the Bombay Tenancy Act, the Division Bench held as follows:
'.............. These provisions would clearly show that no sooner an order is finally passed under Section 33-B (5) (b) read with Section 29 of the Act, the exemption certificate exhausts itself completely, that is to say, the same shall have spent itself out. If, therefore, under the scheme of Sections 33-B and 33-C read along with Sections 88-C and 88-D, the position that obtains very clearly is that the exception certificate obtained by the landlord gets itself fully exhausted, then the natural corollary would be that thereafter there will be nothing left for the State Government or the Commissioner to cancel or revoke under Section 88-D of the Act; and this, in our view, clearly indicates the limit which will have to be read while interpreting Section 88-D under which the State Government or the Commissioner as the case may be can exercise power to revoke or cancel the exemption certificate. It is, therefore, clear to us that though no express words of limitation or restriction are to be found in Section 88-D, the scheme of the provisions of Sections 33-B and 33-C read with Sections 88-C and 88-D as discussed above clearly suggests that the reasonable limitation that could be put upon the power of Government or Commissioner under Section 88-D to entertain an application for cancellation of the exemption certificate thereunder would be the date of the final order passed under Section 33-B read with Section 29 of the Act. Once the application under Section 33-B is disposed of, no request for cancellation of the exemption certificate would be entertainable under Section 88-D (1) (iv).'
It has also been held in this case that the time limit put on the power of the State Government or the Commissioner to entertain an application of the exemption certificate is the date when the initial order is passed by the Mamlatdar under Section 29 read with Section 33-B of the Bombay Tenancy Act and that this limit is not extended till the final decision of the question by the various authorities either in appeal or revision. In our opinion, this decision clearly lends support to the submission of Mr. Gole.
4. It was, on the other hand, contended by Mr. Rane, the learned counsel for respondent No. 1, that the question raised before us is not concluded by the decision of the Division Bench in Special Civil Applications Nos. 868 of 1970 and 2085 of 1973 (Bom), as there is an observation in the judgment showing that the learned Judges have not considered it necessary to go into the question whether the view taken in Atmaram Onkar's case : (1970)72BOMLR287 is correct or not. It is pointed out by Mr. Rane that the view taken by Deshpande, J., in Atmaram Onkar's case is that under Section 88-D of the Bombay Tenancy Act the Commissioner cannot entertain an application by a tenant to revoke the certificate of exemption granted to the landlord under Section 88-C who has already availed himself of the certificate by filing an application for possession under Section 33-B of the Act. It is submitted by Mr. Rane that if the decision in Atmaram Onkar's case is good law, the present petition must be dismissed. It is true that there is an observation in the judgment of the Division Bench to the effect that the Division Bench did not consider it necessary to go into the question whether the view taken in Atmaram Onkar's case was correct or not. However, we find, on going through the entire judgment, that the question, which, as we have already pointed out, the Division bench considered it necessary to decide was relating to the time limit before the expiry of which an application for revocation of the exemption certificate, under Section 88-D of the Bombay Tenancy Act, must be filed and the decision of the Division bench clearly shows that his limit is held to be the date on which the initial order is made by the Mamlatdar on the application of the landlord under Section 29 read with Section 33-B of the Bombay Tenancy Act. In our view, the decision in Atmaram Onkar's case clearly conflicts with the ratio of the judgment of the Division Bench in the aforesaid Special Civil Applications and must be taken as disapproved. It may be pointed out that the Division bench has taken the view that even as far as the termination of the tenancy is concerned, the same takes place only when the initial order is made by the Mamlatdar on the application of the landlord under Section 33-B of the Bombay Tenancy Act and hence an application for the revocation of the exemption certificate can be made till that time.
5. It was next submitted by Mr. Rane that so far as Section 33-B of the Bombay Tenancy Act is concerned, the tenancy of the tenant is terminated as soon as the landlord after having obtained a certificate under Section 88-C of the Act gives a notice terminating the tenancy of the tenant and makes an application under Section 33-B of the Act. According to Mr. Rane, as soon as the application under Section 33-B of the Bombay Tenancy Act is made the tenancy gets terminated and the exemption certificate must stand exhausted. In support of this contention, Mr. Rane relied on the following observations of a Division Bench of this Court in Madhav Vithoba v. Dhondudas, : AIR1967Bom250 :-
'.......... It is thus clear that where a certificated landlord (meaning thereby a landlord who has obtained an exemption certificate under Section 88-C) requires the leased land bona fide for personal cultivation the termination of the tenancy takes place after giving notice and making an application for possession. Since the notice contemplated by this provision must be given prior to the making of the application for possession, it follows that the termination of the tenancy takes place on the date when the certificated landlord applies for possession of the leased land.' In our view, this decision is not of any assistance to Mr. Rane. The question as to when the tenancy of an excluded tenant (meaning thereby a tenant of land in respect of which the landlord had obtained an exemption certificate under Section 88-C) was terminated never directly arose for decision in that case and these observations are merely incidental to the determination of the question which really arose there. As against these observations, we find that there is a direct decision of a Division Bench of this Court in Namdeo Vishnu v. Faghunath, : AIR1974Bom311 where it has been held that the date on which the Mamlatdar himself passes an order under sub-section (2) of Section 29 of the Bombay Tenancy Act in favour of the landlord is the date on which the tenancy terminates and the possession of the tenant subsequent to that date becomes unlawful or unauthorised and that shall be the starting point for the purpose of calculating mesne profits. In view of the fact that this question has been directly decided in this case, we are of the view that the aforesaid observations relied on by Mr. Rane cannot really be of assistance to him. Apart from this, it may be pointed out that the Division Bench in Namdeo Vishnu's case has placed reliance on the decision of a Full Bench of this Court in Ramchandra Anant v. Hanardan, : AIR1963Bom79 (FB) to the effect that under the Bombay Tenancy Act even after the tenancy of a tenant has been determined by a notice given by the landlord, the tenant has a legal right to continue in possession, until the Mamlatdar has made an order for possession being restored to the landlord. During the intervening period, the tenant has an estate in possession, of which he can only be deprived by an order of Mamlatdar. These observations have been subsequently approved by the Supreme Court in Venkatesh Narahar v. H. K. Mulla, : 2SCR215
6. In our view, the settled position, in view of the decisions referred to by us earlier, clearly is that an application under Section 88-D (1) (iv) of the Bombay Tenancy Act for revocation of the exemption certificate granted under Section 88-C thereof can be made till the initial order is made by the Mamlatdar on the application of the landlord for possession under Section 33-B, of the Bombay Tenancy Act . In the present case, the application made by the landlord for possession under Section 33-B of the Bombay Tenancy Act is still pending and hence the view taken by respondent No. 2 that the application of the tenants was not maintainable is clearly wrong and disclose an error apparent on the record.
7. in the result, the rule is made absolute and the order of respondent No. 2 dated 15th September, 1972, which is impugned in the present petition, is set aside. The matter is remanded to respondent No. 2 for disposal according to law. Respondent No. 1 must pay the costs of the petition to the petitioners.
8. Order accordingly.