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Harkubai G. Sundechamutha Vs. Shankar Daulat Bengane and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 9 of 1971
Judge
Reported inAIR1980Bom384; 1980MhLJ671
ActsBombay Tenancy and Agricultural Lands Act, 1948 - Sections 29 and 31; Transfer of Property Act, 1882 - Sections 3 and 106; Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, 1958
AppellantHarkubai G. Sundechamutha
RespondentShankar Daulat Bengane and ors.
Appellant AdvocateBhimrao N. Naik, Adv.
Respondent AdvocateD.M. Nargolkar, Adv.
Excerpt:
.....- sections 29 and 31 of bombay tenancy and agricultural lands act, 1948, sections 3 and 106 of transfer of property act, 1882 and bombay tenancy and agricultural lands (vidarbha region and kutch area) act, 1958 - whether notice under section 106 is necessary for terminating tenancy under section 31 - section 31 deals with special rights and privileges of tenants and provisions of resumption of land for personal cultivation under which there is part relating to termination of tenancy for personal cultivation and non-agricultural use - section 31 is specific provision - notice under section 106 not intended to be applied to notice contemplated under section 31 - notice under section 31 was valid. - [couto; m.l. pendse, jj.] in the first instance the order passed under s. 132(5) is..........only on the ground that the notice did not comply with the provisions of section 106 of the transfer of property act; as to the bona fides to resume the land as well as the requirement of the land standing in the record of rights in the name of the landlady or her ancestor on january 1, 1952 the tribunal found that the judgment under appeal was sustainable. it may be observed that the tribunal recorded a finding that there was no reason to differ from the view taken by the appellate court in the matter of bona fide need of the landlady. accepting the defect of notice, the application was rejected. that order is questioned in the writ petition. the narrow question as is set out by the learned single judge is: whether the notice under section 106 of the transfer of property act is.....
Judgment:

Masodkar, J.

1. This petition has been placed before the Division Bench by an order of the learned single Judge dated November 27, 1979. for the learned single Judge felt that there was a conflict of decisions in two Division Bench cases being : AIR1965Bom19 Zadba Sadashiv Balpande v. The Maharashtra Revenue Tribunal and Special Civil Appln. No. 160 of 1969 decided on June 24, 1971. Few facts may be stated to decide the present controversy.

2. The present petitioner relying on her right to inherit the property of Jamanabai who died on February 6, 1965, after giving notice applied for resumption of land for personal cultivation under Section 31 read with Section 29 of the Bombay Tenancy and Agricultural Lands Act. 1948. In the inquiry held by the Mamlatdar the application was rejected while the Special Deputy Collector in appeal held on merits that the petitioner was entitled to resume the land to the extent of 1/2 of the tenanted area. The matter was taken up before the Revenue Tribunal. By the impugned order made by the Revenue Tribunal on July 8, 1970 the Tribunal allowed the revision only on the ground that the notice did not comply with the provisions of Section 106 of the Transfer of Property Act; as to the bona fides to resume the land as well as the requirement of the land standing in the Record of Rights in the name of the landlady or her ancestor on January 1, 1952 the Tribunal found that the judgment under appeal was sustainable. It may be observed that the Tribunal recorded a finding that there was no reason to differ from the view taken by the Appellate Court in the matter of bona fide need of the landlady. Accepting the defect of notice, the application was rejected. That order is questioned in the writ petition. The narrow question as is set out by the learned single Judge is: Whether the notice under Section 106 of the Transfer of Property Act is necessary for terminating the tenancy under Section 31 of the Bombay Tenancy Act

3. As far as the provisions of the Tenancy Act are concerned, Section 3 makes the provisions of Chapter V of the Transfer of property Act, 1882 applicable to the tenancies and leases of land to which the Tenancy Act applies in so far as they are not inconsistent with the provisions of the Tenancy Act. It follows that if there be a special provision with regard to tenancies and leases including their termination, the provisions of Chapter V of the Transfer of Property Act would not be attracted. Section 31 is a part of Chapter III which deals with special rights and privileges of tenants and provisions of resumption of land for personal cultivation, under which there is a part relating to termination of tenancy for personal cultivation and non-agricultural use. Section 31, therefore, is a specific provision with regard to termination of tenancies for two purposes, that is, for cultivating personally and for any non-agricultural purpose. In other words, the provisions of Section 31 are not general in character nor are the matters governed by the general law. Furthermore, Sub-section (1) of Section 31 specifies a modality of seeking possession of tenanted land and it requires two things to be done by the person so seeking possession. Firstly, such a person is required to give notice, which is not enough, but it must be followed by an application for possession as is provided in Sub-section (2) of Section 31. The purpose of giving notice and making of an application is to terminate the tenancy. Sub-section (2) clearly lays down that it has to be a specific notice as contemplated by Sub-section (1). It states that such a notice shall be in writing and it will state the purpose for which the landlord requires the land, and lastly it has to be served on the tenant on or before 31st December 1956. This embargo with regard to time is further extended in the case of landlords of specific categories by Sub-section (3), where the landlord is a minor, or a widow or a person subject to mental or physical disability the time within which a notice and an application has to be made is governed by Clauses (i), (ii) and (iii) of Sub-section (3) as is provided in Sub-section (2). Sub-section (2) also provides for a time when an application has to be made before the Mamlatdar subject to extension available to specified categories under Sub-section (3). Reading plainly the provisions of Section 31, therefore, it does not admit any doubt that this is a specific provision with regard to termination of tenancies for the purposes specified in Clauses (a) and (b) of Sub-section (1) of Section 31. If such a person were to base his right on Section 31, he will have to comply with the provisions of Section 31 itself and none else. It is significant that by notice or by an application the termination of tenancy does not take effect so as to entitle a landlord to enter upon the land. Under Section 31A such a landlord has to be a landlord who is not within the prohibition of Section 31B. Even with regard to land to the extent of which the tenancy can be terminated by recourse to Section 31, pro-visions are made under Sections 31C and 31-D. It follows, therefore, in the integrated scheme of Section 31 there is neither possibility of ipso facto termination of tenancy or mere recourse of notice for such termination as is contemplated under Section 106 of the Transfer of Property Act nor as a result of notice assuming it can be given the tenancy comes to an end. Section 3 of the Act, therefore, does not subserve to attract the provisions of Section 106 so as to terminate the tenancy under Section 31 of the Act. Both because the notice has to be before specified time and has to be for the purposes mentioned, the general provision of Section 106 of the Transfer of Property Act which does not admit such restrictions is inconsistent with the provisions of notice contemplated under Section 31 (1) of the Act. In our view, the plain reading of the section itself indicates that to the notice contemplated under it, Section 106 of the Transfer of property Act is not intended to be applied.

4. We are fortified in this regard by a decision of the Division Bench of this Court on this aspect rendered in : AIR1965Bom19 Zadba Sadashiv Balpande v. The Maharashtra Revenue Tribunal. That was a case pari materia dealing with the provisions of Section 39 requiring a notice and making of an application under the provisions of the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, 1958 and one of the submissions was that Section 106 of the Transfer of Property Act governed the modality of notice. The Division Bench repelled that submission by observing that, 'there is no force in this argument. The provisions of Section 106 of the Transfer of Property Act apply only in the absence of any local law. The relevant local law, Sub-section (1) of Section 39 does not provide for any period of notice. All that it requires is that the tenant should be given a notice in writing. That requirement has been complied with'. The ratio of that judgment, in our view, also applies to the question before us and we are in respectful agreement with what is stated therein. The other judgment of the Division Bench on which reliance is placed has in fact made it clear in express terms that the Court was not interpreting the provisions of Section 31, but on the basis of the earlier judgment proceeded to determine the rights of the parties applying the provisions of Section 106 of the Transfer of Property Act. While considering the argument having reference to Section 108 of the Transfer of Property Act and Section 31 of the Act the judgment states: 'Without expressing any view on the interpretation of Section 31 laid down in that judgment and even assuming that the widow in the present case could terminate the tenancy of her tenant after the tillers' day and could make an application to recover possession, thereafter, we find nothing in that judgment to support the argument of Mr. Albal that since the Tenancy Act does not prescribe any period of notice, any reasonable notice would be sufficient to terminate the tenancy of a tenant of a widow who intended to terminate the tenancy of the land for bona fide personal cultivation after the tillers' day.' This express statement available in the Judgment shows that the judgment did not lay down as a matter of ratio that under Section 31 a notice contemplated has to be in accordance with Section 106 of the Transfer of property Act, No doubt, the judgment proceeded to apply those provisions but that was done on the assumption and without interpreting the provisions of Section 31. After going through the judgment we feel that the view expressed in Zadba's case : AIR1965Bom19 has not been rendered in conflict with the ratio of the judgment in Spl. C. A. No. 160 of 1969. In fact the latter judgment proceeded to decide the matter on the assumption without interpreting the provisions of Section 31, while in Zadba's case the Court in terms considered the provisions of Section 106 of the Transfer of Property Act and its applicability to the notice under a local law like Section 39 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act that had made a specific provision for termination by giving notice and making an application.

5. Mr. Nargolkar relied on another Division Bench judgment of this Court in the case of Manekji Edulji Mistry v. Maneksha Ardeshir Irani reported in (19731 75 Bom LR 609. That judgment too does not help to resolve the question before us for it was expressly a judgment concerning the tenancies covered by Section 88-B to which tenancies Section 31 is not applicable.

6. The views taken by the single Judge in the case of Dundayappa Shivappa Patil v. Surendra Bhima Rajmane reported in 1979 Mah LJ 83 and the other judgment in Spl. C. A. Nos. 1578/75 and 1579/75 decided on April 18. 1979 are based following the judgment of the Division Bench in Zadba's case : AIR1965Bom19 and in our view rightly.

7. In the result, therefore, the Maharashtra Revenue Tribunal was not right in relying upon the provisions of Section 106 of the Transfer of Property Act for the purpose of digging out the validity of the notice under Section 31 of the Bombay Tenancy Act. Admittedly notice was given and thereafter an application was made in which the applicant established the bona fide need for personal cultivation. Thus, all the requirements were fully satisfied and the Tribunal was not entitled to reverse the order made by the Special Deputy Collector, Poona in favour of the present petitioner with regard to resumption of land under Section 31 read with Section 29 of the Act.

8. Taking this view the present petition is allowed. The order of the Maharashtra Revenue Tribunal to the extent it holds that the notice of termination was bad is set aside and the order made by the Special Deputy Collector, Poona and affirmed on those points by the Maharashtra Revenue Tribunal is restored.

9. The Rule is made absolute, with no order as to costs.

10. Petition allowed.


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