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Bandu Pandu Ghadge Vs. Smt. Gulshanbi Mard Kondibhai Karbhari - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 1429 of 1971
Judge
Reported in(1977)79BOMLR391; 1976MhLJ350
AppellantBandu Pandu Ghadge
RespondentSmt. Gulshanbi Mard Kondibhai Karbhari
DispositionAppeal allowed
Excerpt:
.....the date before which the notice of termination of tenancy is to be issued and before which application for possession should be filed. any action by the certificated landlord for termination of tenancy and filing of the application must be done before the prescribed date.;parvatibai ramchandra v. mahadu (1967) 69 bom. l.r. 383, maneklal v. shivlal (1938) 40 bom. l.r. 1169, preferred to. - [couto; m.l. pendse, jj.] in the first instance the order passed under s. 132(5) is an order of a summary nature and does not conclude the rights of the petitioners, because while passing the assessment order, it is always open to the petitioners to point out that the assets recovered in the search were not undisclosed to point out that the assetsrecovered in the search were not undisclosed..........legal representatives have been brought on record, were the tenants of these fields. kondibhai filed an application under section 88c of the bombay tenancy and agricultural lands act, 1948 (hereinafter called as the 'tenancy act') before the mamlatdar, patan, for a certificate that provisions of sections 32 to 32r of the tenancy act were not applicable to these lands. the mamlatdar, after enquiry, issued a certificate on november 11, 1959. soon the thereafter kondibhai died on december 23, 1959 without filing an application for possession under section 33b of the tenancy act. the respondent and one ashabi-her co-widow, their two sons and five daughters inherited the property of kondibhai. however, the respondent alone filed an application under section 88c of the tenancy act. it was.....
Judgment:

Hajarnavis, J.

1. This is tenants' petition against the order passed by the Maharashtra Revenue Tribunal, Poona, dismissing the application for revision filed by the petitioner against the appellate order passed by the District Deputy Collector, Satara, dismissing the appeal of petitioners against the order passed by the Tenancy Awal Karkun, Patan directing that the lands held by the petitioners under tenancy rights be restored to the respondent.

2. Survey Nos. 331, 332 and 338/2 situate at Mhavashi, Taluka Patan, District Satara, originally belonged to the deceased Kondibhai. Bandu and deceased Shindu, whose legal representatives have been brought on record, were the tenants of these fields. Kondibhai filed an application under Section 88C of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter called as the 'Tenancy Act') before the Mamlatdar, Patan, for a certificate that provisions of Sections 32 to 32R of the Tenancy Act were not applicable to these lands. The Mamlatdar, after enquiry, issued a certificate on November 11, 1959. Soon the thereafter Kondibhai died on December 23, 1959 without filing an application for possession under Section 33B of the Tenancy Act. The respondent and one Ashabi-her co-widow, their two sons and five daughters inherited the property of Kondibhai. However, the respondent alone filed an application under Section 88C of the Tenancy Act. It was her case that the property in suit was gifted to her by her deceased husband. While those proceedings were going on, she filed an application on October 16, 1962 for withdrawal of her application. The Mamlatdar dismissed her application filed under Section 88C on October 17, 1962 on the ground that she did not press the application. The respondent thereafter issued a notice terminating the tenancy of the petitioners and then filed an application under Section 33B of the Tenancy Act on December 31, 1962 on the basis of certificate obtained by her deceased husband.

3. The petitioners resisted the claim of the respondent for possession. It was the case of the petitioners that the application was barred by time inasmuch as it was not filed within the period prescribed under Sub-section (3) of Section 33B of the Tenancy Act, as neither the notice of termination of tenancy was given before January 1, 1962 nor was the application filed before April 1, 1962. The Tenancy Awal Karkun, after completing the enquiry, held that the petition was within time inasmuch as it was filed within three months after the dismissal of her application under Section 88C of the Tenancy Act. He held that the certificate obtained by her husband can be said to have been obtained on the date of the dismissal of her application. An appeal filed by the petitioners was also dismissed, so also the application for revision was dismissed by the Maharashtra Revenue Tribunal. It is against these orders that the present petition has been filed.

4. Mr. Garud, the learned Counsel for the petitioner, urged that the application under Section 33B of the Tenancy Act was barred by time inasmuch as the notice of termination of tenancy was not issued before January 1, 1962 nor was the application filed before April 1, 1962 as prescribed by Sub-section (3) of Section 33B of the Tenancy Act. He also urged that application for possession by one of the heirs is not maintainable. He further urged that the bona fide requirement of all the heirs has got to be considered. In my opinion, it is not necessary to record findings on points Nos. 2 and 3 as the petition can be disposed of on the ground of limitation alone.

Section 33B of the Tenancy Act reads:

33B. (1) Notwithstanding anything contained in Section 31, 31A or 31B a certificated landlord may, after giving notice and making an application for possession as provided in Sub-section (3), terminate the tenancy of an excluded tenant, if the landlord bona-fide requires such land for cultivating it personally.

(2) ...

(3) The notice required to be given under Sub-section (1) shall be in writing, and shall be served on the tenant-

(a) before the first day of January 1962, but

(b) if an application under Section 88C is undisposed of and pending on that date then within three months of his receiving such certificate,

and a copy of the notice shall, at the same time, be sent to the Mamlatdar. An application for possession of the land shall be made thereafter under Section 29 to the Mamlatdar before the 1st day of April 1962, in the case falling under (a) and within three months of his receiving the certificate in the case falling under (b)....

Here there is no dispute that a certificate on the basis on which the proceedings were initiated was granted to Kondibhai on November 11, 1959 and, therefore, the notice of termination of tenancy ought to have been given before January 1, 1962 and the proceedings ought to have been initiated before April 1, 1962. This has not been done. The tenancy was not finally terminated nor were the proceedings initiated within the time prescribed.

5. The revenue authorities below have, however, held that the respondent has again applied for obtaining certificate under Section 88C of the Tenancy Act after the death of her husband and she had made that application within the time prescribed. She, however, withdrew that application on October 16, 1962 and the Mamlatdar has actually dismissed that application on October 17, 1962. The revenue authorities have observed that there were conflicting decisions en the point whether the heirs of a deceased certificated landlord could initiate proceedings for obtaining possession under Section 33B of the Tenancy Act on the basis of the certificate obtained by him. Some authorities have held that the certificate was a personal thing and could not be used for the benefit of the heirs, while other authorities held that the heirs can initiate proceedings on the basis of that certificate. In the case of Parvatibai Ramchandra v. Mahadu : AIR1967Bom428 a Division Bench of this Court has held that the right of a certificated landlord to apply under Section 33B of the Bombay Tenancy and Agricultural Lands Act, 1948, for possession of land from an excluded tenant does not lapse on his death and can be exercised, within the specified time, by his successor in interest. The revenue authorities, therefore, held that the certificate which was obtained by the deceased Kondibhai could be said to have been issued on the date on which the Mamlatdar dismissed the application of the respondent and, therefore, the certificate which was obtained by Kondibhai could be deemed to have been issued in her favour on October 17, 1962. It is not possible to accept this reasoning. There is no basis for holding that the certificate which was obtained by the deceased Kondibhai should be deemed to have been issued on the day on which the respondent's application was dismissed.

6. Mr. Gole, the learned Counsel for the respondent, tried to justify this reasoning on the basis of Section 29 read with Section 14 of the Indian Limitation Act. He urged that there were conflicting decisions and, therefore, the period spent by the respondent in trying to obtain the certificate should be excluded. It is doubtful whether Section 14 of the Limitation Act would be applicable to the facts of this case for the simple reason that Section 33B of the Tenancy Act does not prescribe the period for filling the application. Sub-section (3) of Section 33B of the Tenancy Act only prescribes the date before which the notice of termination of tenancy is to be issued and before which application for possession should be filed. Any action by the certificated landlord for termination of tenancy and filing of the application must be done before the prescribed date. It is, therefore, not possible to hold that special period has been prescribed by Sub-section (3) of Section 33B of the Tenancy Act and, therefore, it cannot be held that the respondent's application for obtaining certificate was pending on January 1, 1962 and April 1, 1962, the two dates prescribed under Sub-section (3) of Section 33B of the Tenancy Act.

7. Mr. Gole, the learned Counsel for the respondent, cited a decision of this Court in Maneklal v. Shivlal (1938) 40 Bom. L.R. 1169 in support of his case, but as I have already observed, it is doubtful whether the provisions of Section 14 of the Limitation Act would be applicable to the facts of this case and even if they were applicable, at the most, the respondent would be entitled to exclude the period spent by her for obtaining certificate under the misapprehension that she was required to obtain a fresh certificate after the death of her husband. She would have been at the most entitled to extend the period upto the date on which her application was pending, viz. upto October 17, 1962. The moment she takes the decision to withdraw that application, she ought to have initiated proceedings under Section 33B of the Tenancy Act. She has not done so. Therefore, Section 14 of the Limitation Act cannot be of any assistance to her. That being so, the revenue authorities have committed an error in holding that the certificate issued in favour of Kondibhai could be deemed to have been issued on the day on which the respondent's application was dismissed. The notice of termination of tenancy was given by respondent and proceedings before the Mamlatdar were initiated after the period prescribed for that purpose was over. That being the position, the Mamlatdar has committed an error in entertaining the application. The orders passed by the revenue authorities were, therefore, liable to be quashed.

8. Mr. Gole, the learned Counsel for the petitioner, urged that this Court should not interfere in proceedings under Article 227 of the Constitution for correcting mere errors of law. It is true that this Court will not interfere in proceedings under Article 227 of the Constitution for correcting errors of law but this is an error of law apparent on the face of record as the proceedings initiated were hopelessly barred by time. This is, therefore, question of jurisdiction also.

9. In the result, the petition is allowed and the orders passed by the authorities below are quashed and the rule is made absolute with costs. I am told by the counsel for the petitioners that the respondent has obtained possession in pursuance of the orders of the Mamlatdar. If that be so, the petitioners are entitled for restoration of the possession. Possession be restored forthwith.


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