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Dundyappa Sivappa Patil Vs. Surendra Bhima Rajmane - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civi Application No. 1734 of 1977
Judge
Reported in(1978)80BOMLR284
AppellantDundyappa Sivappa Patil
RespondentSurendra Bhima Rajmane
DispositionAppeal dismissed
Excerpt:
.....in this petition. as is well-known, a certificate under section 88c is issued to a landlord whose holding does not exceed economic holding and whose total annual income including the rent of such land does not exceed rs. during the pendency of those proceedings the state government, in exercise of its powers under section 88d, was satisfied that the income of the respondent had exceeded rs. 7. this is a well-founded contention. it was evident from the provisions noticed in that judgment that an application had to made before september 30, 1959. the landlord had served a notice in writing upon the tenant on april 15, 1959 terminating the tenancy with effect from april 30, 1959. before the expiry of the period of notice, the landlord made an application on april 22, 1959. it was contended..........act if he bona fide required the land for cultivating it personally. it was evident from the provisions noticed in that judgment that an application had to made before september 30, 1959. the landlord had served a notice in writing upon the tenant on april 15, 1959 terminating the tenancy with effect from april 30, 1959. before the expiry of the period of notice, the landlord made an application on april 22, 1959. it was contended on behalf of the tenant in that case that the landlord ought to have given a notice of six months under section 106 of the transfer of property act and the notice given by him did not therefore effectively terminate the tenancy. the division bench consisting of chief justice chainani and abhyankar j. held that section 39 was a local law within the meaning.....
Judgment:

Jahagirdar, J.

1. An interesting question relating to the interpretation of Sub-section (2) of Section 88D of the Bombay Tenancy and Agricultural Lands Act has been raised in this petition. The proceedings contemplated under Sub-section (2) of Section 88D arise after a certificate which is issued under Section 88C of the Tenancy Act is revoked. As is well-known, a certificate under Section 88C is issued to a landlord whose holding does not exceed economic holding and whose total annual income including the rent of such land does not exceed Rs. 1,500. If, however, the annual income of the person exceeds Rs. 1,500 or the total holding of such person exceeds the economic holding, the State Government is empowered to revoke the certificate which has been granted under Section 88C. The order revoking the certificate is, however, required to specify the date with effect from which the revocation is to take effect and also it has to be published in a manner which is said to be publication in the official gazette.

2. In the present case respondent No. 1, who will hereinafter be referred to as 'the respondent', had obtained a certificate under Section 88C of the Tenancy Act and thereafter made an application under Section 33B of the Tenancy Act for possession of the land mentioned in the certificate. During the pendency of those proceedings the State Government, in exercise of its powers under Section 88D, was satisfied that the income of the respondent had exceeded Rs. 1,500 and accordingly revoked the certificate issued under Section 88C. This order was published in the gazette of June 21, 1962. The respondent issued a notice dated June 8, 1963 terminating the tenancy of the petitioner and ten days thereafter, i.e. on June 19, 1963, made an application under Section 88D(2) of the Tenancy Act for possession of the land.

3. This application was numbered as Tenancy Case No. 7/63-64. By his judgment and order dated February 5, 1974, the Tahasildar granted possession of half of the land to the respondent. The appellate authority allowed the appeal of the petitioner being Tenancy Appeal No. 35 of 1974 by its judgment and order dated October 29, 1975. The respondent thereafter approached the Maharashtra Revenue Tribunal in its revisional jurisdiction. The Maharashtra Revenue Tribunal by its judgment and order dated July 6, 1977 allowed the revision application and set aside the order of the appellate authority and restored the order of the trial Court. It is against this order of the Maharashtra Revenue Tribunal that the tenant has approached this Court under Article 226 of the Constitution.

4. Though several defences had been raised in the Courts below for resisting the application filed by the respondent, in the petition before me the only point that survives and could be legitimately argued by Mr. Rege, the learned advocate appearing in support of the petition, is the point relating to the period of notice that should be given by the landlord under Section 88D(2) of the Tenancy Act. An admission had been made in the Courts below that a notice terminating the tenancy issued by the landlord on June 8, 1963 had not been replied to by the petitioner at all. The findings of the authorities below is concurrent on this that the petitioner did receive the notice given by the respondent. Mr. Rege, therefore, was forced to confine his arguments only to the question of the period of notice that should be issued by the landlord under Section 88D(2) of the Tenancy Act. According to Mr. Rege, since Section 88D(2) itself does not prescribe any period of notice and since by virtue of the provisions contained in Section 3 of the Tenancy Act the provisions of chap. V of the Transfer of Property Act have been made applicable to the tenancies under the Tenancy Act, it was incumbent upon the respondent to give a notice of six months for terminating the tenancy of the petitioner before he could make an application to the appropriate authority for obtaining possession of the land. In support of his contention that where no particular period is prescribed under the Tenancy Act, the provision under Section 106 of the Transfer of Property Act applies, Mr. Rege relied upon a judgment of a division Bench of this Court in Laxmibai Yadavrao Jadhav v. Namdeo Narayan Jadhav (1969) Special Civil Application No. 160 pf 1969.

5. In that case a widow had made an application for possession of the tenanted land under Section 31 of the Tenancy Act after April 1, 1957. A question arose whether it was necessary for her to terminate the tenancy of the tenant before making an application for possession under Section 31. That a widow could make an application under Section 31 of the Tenancy Act even after the tillers Day, has been laid down by this Court in another unreported judgment in Nagarbai Shankarrao Kokate v. Gahininath Baburao Kokate (1963) Special Civil Application No. 892 pf 1962. Vaidya J. delivering the judgment in Laxmibai Yadavrao Jadhav v. Namdeo Narayan Jadhav, held that reading the provision of Section 3 of the Tenancy Act together with the provisions of chap. V of the Transfer of Property Act, it was necessary that the widow should have terminated the tenancy only under the provisions of Section 106 of the Transfer of Property Act. Since she had not done so, on the facts of the case before them, the order dismissing the widow's application for possession passed by the Maharashtra Revenue Tribunal was confirmed by the division Bench. It is true, as Mr. Rege has contended, that in the case before K.K. Desai and Vaidya JJ. it was held that where there was no specific period of limitation provided under the Tenancy Act, the general law viz. the provisions for the termination of the tenancy as contained in Section 106 of the Transfer of Property Act would be applicable. Section 3 of the Tenancy Act provides that the provisions of chap. V shall, in so far as they are not inconsistent with the provisions of the Tenancy Act, apply to the tenancies and leases of land to which the Tenancy Act applies. It may also be mentioned that Section 106 of the Transfer of Property Act itself provides that the provisions contained in that section shall apply in the absence of a contract or local law or usage to the contrary.

6. Mr. Pendse, the learned advocate appearing in opposition to the petition, has contended that the provisions of Section 106 of the Transfer of Property Act are manifestly inconsistent with the provisions contained in Section 88D(2) of the Tenancy Act, because if the provisions under Section 106 of the Transfer of Property Act are followed, an application for possession under Section 88D(2) of the Tenancy Act, may become impossible of being availed of in several cases. As an illustration, he showed that if a certificate under Section 88C is revoked on February 1, 1976 and if the tenancy is to be terminated in accordance with Section 106 of the Transfer of Property Act, a notice will have to be given terminating the tenancy with effect from March 31, 1977. By that time the period within which an application for possession has to be filed under Section 88D(2) will have expired.

7. This is a well-founded contention. The agricultural tenancies have to be terminated by a notice of six months and the notice must expire with the end of the tenancy which under the Land Revenue Code, is March 31 of the year. Mr. Rege, however, wanted to suggest that a part of Section 106 of the Transfer of Property Act is still consistent with the provisions of Section 88D(2) of the Tenancy Act inasmuch as six months' notice can be given by the landlord before making an application for possession. He suggests that an application is to be made within one year after the date with effect from which certificate under Section 88C is revoked and if a notice can be given, a notice of six months ending on any day can easily be given and thereafter an application for possession can still be made within one year from the relevant date. I am unable to accept this interpretation placed by Mr. Rege on these two relevant provisions. In my opinion, one cannot split Section 106 into two parts and suggest that one part of it could be applicable and another is not applicable. What is required by the provisions of Section 106 of the Transfer of Property Act is a notice of six months, a notice expiring with the end of the year of tenancy and it is not merely a six months' notice expiring at any time. In my opinion, therefore, the provisions of Section 106 of the Transfer of Property Act are inconsistent with the provisions contained in Section 88D(2) of the Tenancy Act. The ratio laid down by the division Bench in Laxmibai Yadavrao Jadhav v. Namdeo Narayan Jadhav, therefore, will not be applicable to the termination of tenancy and application for possession to be made under Sub-section (2) of Section 88D of the Tenancy Act.

8. If this is so and if Section 88D(2) has not provided for any period during which tenancy can be terminated, then in my opinion a tenancy can be terminated by an application made for possession as provided therein. The words of Section 88D(2) suggest that a landlord can terminate a tenancy at any time by making an application within one year from the date with effect from which the certificate under Section 88C had been revoked. On somewhat analogous provisions, a division Bench of this Court has taken a similar view in Zadba v. Maharashtra Rev. Trib. AIR(1964) 66 474. The provisions of Section 39(1) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, 1958, hereinafter referred to as 'the Vidarbha Act', fell to be interpreted by the Court. As per those provisions, a landlord who had created a tenancy after April 1, 1957 could terminate the tenancy by giving a notice to the tenant and by making an application for possession as provided in Sub-section (2) of Section 36 within one year from the date of the commencement of the Vidarbha Act if he bona fide required the land for cultivating it personally. It was evident from the provisions noticed in that judgment that an application had to made before September 30, 1959. The landlord had served a notice in writing upon the tenant on April 15, 1959 terminating the tenancy with effect from April 30, 1959. Before the expiry of the period of notice, the landlord made an application on April 22, 1959. It was contended on behalf of the tenant in that case that the landlord ought to have given a notice of six months under Section 106 of the Transfer of Property Act and the notice given by him did not therefore effectively terminate the tenancy. The division Bench consisting of Chief Justice Chainani and Abhyankar J. held that Section 39 was a local law within the meaning of Section 106 and since it did not provide for any period of notice, the notice given in writing to the tenant was sufficient to meet the requirements of Section 39(1). It may further be noted that the division Bench found that Section 106 of the Transfer of Property Act could not possibly be attracted because if such a notice had been given, the application before September 30, 1969 could not have been made. It was therefore obvious, the division Bench said, that Section 106 of the Transfer of Property Act was not intended to be applied in such cases.

9. The provisions of Section 88D(2) pose a similar question and therefore similar answer has to be given as I have done above. If the provisions of Section 106 are made applicable, an application for possession of the land under Section 88D(2) cannot be made within one year as required under the said provisions. Reference to Section 31 in Sub-section (2) of Section 88D must be interpreted to mean that the landlord is entitled to apply for possession of the land if he requires the same for personal cultivation or for non-agricultural purposes as mentioned in Section 31. Other provisions of Section 31 obviously do not apply to an application of this type. Though it is provided in Sub-section (2) of Section 88D that the provisions of Sections 31 to 31D and 32 to 32R shall, so far as may be applicable, apply to such termination of tenancy and to the right of the tenant to purchase the land, for reasons given above, other provisions in Section 31 do not apply.

10. In the result, the petition must fail. The rule is discharged with no order as to costs.


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