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Krishna Santu Wakarekar Vs. Sadashiv Ganesh Harolikar - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 1537 of 1977
Judge
Reported in(1978)80BOMLR423
AppellantKrishna Santu Wakarekar
RespondentSadashiv Ganesh Harolikar
DispositionAppeal dismissed
Excerpt:
.....or commissioner under section 88d to entertain an application for cancellation of the exemption certificate thereunder would be the date of the final order passed under section 33b read with section 29 of the act. the very fact that the matter was remanded to the appellate authority clearly indicates that the tribunal did not want to disturb the tahsildar's order dated january 25, 1963. this is implicit in the order of the revenue tribunal. if that part of the order could not have been disturbed then it is difficult to accept the contention that the order of the tahsildar dated january 25, 1963 also stood vacated by the order of the revenue tribunal dated march 24, 1965. 12. none of the authorities have understood or read the order of the revenue tribunal dated march 24, 1965 as..........both the landlord and the tenant filed two separate revision applications before the maharashtra revenue tribunal.4. it appears that while the appeals were pending before the appellate authority, the landlord had produced before it relevant revenue records to show the extent of the lands possessed by the tenant. the revenue tribunal while deciding both the revision applications by a common order took the view that though the khata extracts with regard to the tenant's land were not produced in the trial court, the assistant collector should have considered 'whether this particular evidence is admissible and could be used against the tenant?' the tribunal observed that an opportunity should be given to the tenant to rebut the inference which may be deduced from the additional evidence......
Judgment:

Chandurkar, J.

1. In this petition filed by the tenant the orders passed by the revenue authorities in favour of the landlord in the proceedings under Section 33B of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as ' the Tenancy Act') are challenged on the ground that the certificate issued under Section 88C in favour of the landlord was revoked during the pendency of the proceedings and since the correctness of the order of the Commissioner revoking the certificate had not been challenged by the landlord that order had become final and consequently a right had vested in favour of the tenant under Section 88D of the Tenancy Act.

2. Certain dates and the nature of the orders which were passed on the relevant dates are required to be stated in order to appreciate the contention raised on behalf of the petitioner.

3. Admittedly, respondent No. 1, who is the landlord, is the owner of a part of Survey No. 102, situate at Majnal, Taluka Panhala, of which the petitioner is the tenant. On December 13, 1961 the landlord obtained an exemption certificate under Section 88C of the Tenancy Act and after serving a notice under Section 33B(1) of the said Act, he applied for possession on March 29, 1962. The Tenancy Aval Karkun, who dealt with the application, passed an order to the effect that the landlord was to resume possession of only 1 acre 8 gunthas and the remaining half of the land would be retained by the tenant. It is not in dispute that this order was confirmed by the appellate authority while dismissing the appeal filed by the tenant as well as by the landlord. The tenant had filed the appeal contending that the landlord was not entitled to any land while, according to the landlord, in his own appeal he claimed the entire land from the tenant. Both these appeals came to be dismissed and both the landlord and the tenant filed two separate revision applications before the Maharashtra Revenue Tribunal.

4. It appears that while the appeals were pending before the appellate authority, the landlord had produced before it relevant revenue records to show the extent of the lands possessed by the tenant. The Revenue Tribunal while deciding both the revision applications by a common order took the view that though the Khata extracts with regard to the tenant's land were not produced in the trial Court, the Assistant Collector should have considered 'whether this particular evidence is admissible and could be used against the tenant?' The Tribunal observed that an opportunity should be given to the tenant to rebut the inference which may be deduced from the additional evidence. Since what exactly is the effect of the operative order of the Revenue Tribunal is of some consequence so far as this petition by the tenant is concerned, I quote the operative part of the Tribunal's order, which is as follows:

.In the interest of justice, therefore, we feel that both these cases should be remanded back to the appellate authority and the appellate authority should be directed to consider the Khata which has been produced before it and to give both the sides an opportunity to lead evidence to show whether the tenant possesses other land as shown in the Khata and whether that could be taken into consideration in making allotment under Section 33B(5)(b) of the Bombay Tenancy and Agricultural Lands Act, 1948. We, therefore, allow both the revision applications, set aside the orders passed by both the authorities and remand the case back to the appellate court for considering whether the tenant holds other land as shown in the Khata which has been produced and which can be taken into consideration in considering the distribution of the land under Section 33B (5)(b) of the Bombay Tenancy and Agricultural Lands Act, 1948.

It is proper to notice the contention raised on behalf of the petitioner at this stage because unless that contention is accepted admittedly the tenant will not be entitled to any relief. The contention of Mr. Pendse, the learned Counsel appearing on behalf of the tenant-petitioner, is that the effect of this order was that even the order of the Aval Karkun dated January 25, 1963 granting resumption of 1 acre 8 gunthas of land in favour of the landlord also was set aside because when the Tribunal refers to setting aside the 'orders passed by both the authorities', the authorities referred to could only be the appellate authority and the authority in the first instance, viz. the Aval Karkun.

5. Now, after this order came to be made by the Revenue Tribunal, the matter went back to the appellate authority. The order of the Tribunal was passed on March 24, 1965. After this order of the Revenue Tribunal, the tenant had on October 14, 1965 filed an application for revocation of the certificate issued to the landlord. This application was decided by the Commissioner, Poona Division, on April 14, 1969. The Commissioner took the view that the income of the landlord had exceeded the prescribed limit and, therefore, the certificate granted to him deserved to be revoked. By an order of the same date he revoked the certificate issued in favour of the landlord.

6. The Deputy Collector dealing with the landlord's claim for resumption on remand, however, took the view that the order of cancellation of the certificate was of no consequence in view of the decision of this Court in Atmaram Onkar v. Ananda (1969) 72 Bom. L.R. 287, in which this Court had taken the view that once a certificate under Section 88C of the Tenancy Act had been availed of by the landlord by filing an application for possession under Section 33B, the Commissioner cannot entertain an application by the tenant seeking revocation of the said certificate. Having thus negatived the contention that the application of the certificated landlord could not now be inquired into, the Deputy Collector directed the Tahsildar to make a report about the extent of the land held by the tenant in his personal cultivation on the date of the application under Section 33B. The Deputy Collector retained the seisin of the appeal before him. After the report was received from the Tahsildar with regard to the extent of the holding, the Deputy Collector held that the total holding of the tenant came to 2 acres 6 gunthas, excluding the land in dispute. The total holding of the tenant was thus found to be 4 acres 22 gunthas and the Deputy Collector, therefore, held that the landlord was entitled to resumption of 2 acres 11 gunthas while the remaining 5 gunthas out of the suit land would be retained by the tenant.

7. The correctness of this order was again challenged by both the landlord and the tenant by two revision applications before the Maharashtra Revenue Tribunal, both of which, however, came to be rejected. The tenant has, therefore, filed this petition challenging the order of the Maharashtra Revenue Tribunal and the Deputy Collector.

8. Apparently the question as to whether the revocation of the certificate which was ordered on April 14, 1969 could be availed of by the tenant for defeating the claim of the landlord really stands concluded by a division Bench judgment of this Court in Shri Dhomdu Trimbak Matale v. Mehaboobali Isakabhai Bagwan (1974) Special Civil Application No. 868 of 1970, But it was the contention of Mr. Pendse appearing on behalf of the tenant that to the facts of the present case the ratio of that decision was not attracted. Since the only point which was vehemently argued on behalf of the tenant in this case is the applicability of the ratio of the decision in Dhomdu's case, it is necessary to refer briefly to that decision. The question which fell for decision before the division Bench in Dhomdu's case was what was the outer limit of time within which the tenant could apply for cancellation of the certificate which was granted under Section 88C, having regard to the express right given to the tenant under Section 88D to take a proceeding for revocation of the certificate. Under Clause (iv) of Sub-section (1) of Section 88D power was given to the State Government if it was satisfied in case of lands referred to under Section 88C that the annual income of the person had exceeded Rs. 1,500 or that the total holding of such person exceeds an economic holding, to notify that the said lands had ceased to be exempted from the provisions of Section 88C of the Act, and to make a further order that the certificate of exemption granted under Section 88C shall stand revoked. There were two conflicting views which were prevalent in this Court with regard to exercise of the power under Section 88D(1)(iv) of the Act. One view was the one to which I have already referred and enunciated in Atmaram's case by Justice Deshpande. The other view was the one expressed in Jamunabai Shivram v. Madhav (1972) 75 Bom. L.R. 264, where another learned single Judge of this Court had taken the view that the fact that an order had been passed in favour of the landlord in a proceeding under Section 33B of the Tenancy Act did not deprive the Commissioner of his jurisdiction under Section 88D of the Act. The division Bench no doubt in Dhomdu's case observed that it was not necessary to go into the question whether the view in Atmaram's case, was correct or not. But, as I shall presently point out, in adjudicating upon the point of time beyond which the Commissioner was not entitled to exercise his jurisdiction under Section 88D, the authority of the decision in Atmaram's case in so far as it fixes the date of filing of the application under Section 33B as the outer limit of time for making an application for revocation of the certificate has been shaken. The division Bench in considering the question as to the limitation on the power of the Commissioner has, after a review of the scheme of the provisions in Section 33B read with Section 88D of the Act, observed as follows:

.If, therefore, under the scheme of Sections 33B and 33C read along with Sections 88C and 88D, the position that obtains very clearly is that the exemption 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 88D of the Act; and this, in our view, clearly indicates the limit which will have to be read while interpreting Section 88D under which the State Government or the Commissioner as the case may be can exercise powers 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 88D, the scheme of the provisions of Sections 33B and 33C read with Sections 88C and 88D as discussed above clearly suggests that the reasonable limitation that could be put upon the power of Government or Commissioner under Section 88D to entertain an application for cancellation of the exemption certificate thereunder would be the date of the final order passed under Section 33B read with Section 29 of the Act. Once the application under Section 33B is disposed of, no request for cancellation of the exemption certificate would be entertainable under Section 88D(l)(iv)

9. The division Bench then directed its attention to the question as to whether 'the limit which is put on the power of the State Government or Commissioner to entertain an application for cancellation of the certificate should be confined to or related only to the initial order that may be passed by the Mamlatdar under Section 29 read with Section 33B, or it should be extended still a final decision on the question of delivery of possession was reached by higher authorities either in appeal or in revision.' The division Bench took the view that:

.when an order of the Mamlatdar refusing to deliver possession is either set aside in appeal or in revision, and a further order is passed by the higher authority granting such possession, such order must relate back to the date of Mamlatdar's order; that is to say, in effect, the order passed in appeal or in revision must be deemed to have been made when the Mamlatdar made his initial order.

In short, the ratio of the decision of the division Bench is that once an order on an application under Section 33B either allowing or disallowing an application is made, the jurisdiction of the Commissioner or the State Government, as the case may be, to entertain an application for revocation of the certificate ceases. In other words, it is upto the date of the initial order of the Mamlatdar that a tenant has a right to make an application to the State Government or the Commissioner for revocation of the certificate.

10. Now, Mr. Pendse very fairly does not dispute that this is the ratio of the decision in Dhomdu's case. What he, however, contends is that the effect of the order of the Maharashtra Revenue Tribunal dated March 24, 1965 was that not only the order of the appellate authority but also the order of the Tahsildar dated January 25, 1963 was set aside. This contention is founded on the manner in which the order of the Maharashtra Revenue Tribunal is worded. The learned Members of the Revenue Tribunal in the operative part of the order have observed that:

.We, therefore, allow both the revision applications, set aside the orders passed by both the authorities and remand the case back to the appellate court.

It is contended that since both the orders were set aside, then on April 14, 1969 when the Commissioner revoked the exemption certificate there was no operative order of the Tahsildar in force and the order of revocation not having been challenged by the landlord, the landlord ceases to be a certificated landlord and the application under Section 33B must stand rejected.

11. However, on a perusal of the orders of the Maharashtra Revenue Tribunal it is not possible for me to accept this contention. It is not disputed that the Revenue Tribunal remanded the matter to the appellate authority. The direction given by the Revenue Tribunal to consider whether the additional evidence which was produced by the landlord should be accepted or not was given to the appellate authority and it was the appellate authority which was required by the Revenue Tribunal to decide the question of the extent of the holding of the tenant. If we read the order of the Revenue Tribunal in the manner in which the learned Counsel for the petitioner wants it to be read, the anomaly which arises is that the matter stands remanded to the appellate Court which is being called upon to decide the matter as a Court of first instance. The very fact that the matter was remanded to the appellate authority clearly indicates that the Tribunal did not want to disturb the Tahsildar's order dated January 25, 1963. This is implicit in the order of the Revenue Tribunal. The scope of the remand is restricted to ascertaining the total holding of the tenant with a view to decide the quantum of land which the landlord was entitled to resume. The order of the Revenue Tribunal shows that the finding of bona fide requirement of the landlord was not made the subject-matter of challenge before it. If that finding was not disturbed by the Revenue Tribunal, the only legal consequence which was to follow was that the right of the landlord to resume the land under Section 33B was accepted and what really remained to be decided was merely the extent of the land to be resumed. The determination of the holding of the tenant was material only for deciding this latter question. The Tahsildar had already directed resumption of 1 acre 8 gunthas of land. That part of the order was not disturbed by the Revenue Tribunal and it was in the revision application filed by the landlord that the Tribunal seemed to have accepted the contention that though the additional evidence was not produced before the Tahsildar, the Deputy Collector should have considered that additional evidence and determine afresh the total holding of the tenant. In any case it would not have been open to the Deputy Collector in view of the nature of the order made by the Revenue Tribunal to deprive the landlord of the right to resumption of 1 acre 8 gunthas of land which was awarded to him by the Tahsildar. If that part of the order could not have been disturbed then it is difficult to accept the contention that the order of the Tahsildar dated January 25, 1963 also stood vacated by the order of the Revenue Tribunal dated March 24, 1965.

12. None of the authorities have understood or read the order of the Revenue Tribunal dated March 24, 1965 as interfering in any way with the first order of the Tahsildar dated January 25, 1963. The Deputy Collector had on remand clearly understood that the appeals were remanded back to him for a fresh decision. Indeed, in the opening part of his order he has expressly so observed, when he writes 'the order of the Assistant Collector dismissing the cross-appeals has been set aside and the appeals have been remanded to the appellate Court.

The Revenue Tribunal itself had occasion to consider the effect of the order dated March 24, 1965 when the tenant approached it in revision challenging the order of the Deputy Collector made on April 9, 1970, by which the Deputy Collector required the Tahsildar to report on the holding of the tenant. Against this order dated April 9, 1970 the tenant had filed revision application No. 308 of 1970. While referring to the earlier order, the Tribunal has observed 'the order of the appellate Court was set aside and the appeals were remanded for reconsideration. Therefore, the Tribunal has understood its own earlier order as amounting to a remand of the appeals to the appellate authority and in my opinion that was the correct position. That was why the Assistant Collector while passing his final order on the appeals has observed that he was modifying the original order of the Tenancy Aval Karkun dated January 25, 1963. This modification, as already stated, was that in place of 1 acre 8 gunthas the landlord was given 2 acres 11 gunthas of land. It is, therefore, difficult to accept the contention of the learned Counsel that the order dated January 25, 1963 was not in existence when the order of revocation of the certificate was made on April 14, 1965. The original order of the Tahsildar dated January 25, 1963 made in favour of the landlord was never set aside. Indeed, it was modified by the Assistant Collector in favour of the landlord on November 25, 1976. In view of the fact that the initial order of the Tahsildar allowing the application under Section 33B was made on January 25, 1963 the application for revocation made thereafter on April 14, 1965 could not have been entertained by the Commissioner as he had no jurisdiction to entertain that application. The fact that the landlord did not challenge the order of revocation does not affect the proceedings under Section 33B. If, as held by the division Bench in Dhomdu's case, the Commissioner did not have jurisdiction to entertain the application, the order dated April 14, 1969 was an order which is entirely without jurisdiction and would have to be ignored.

13. In this view of the matter it is obvious that the ratio of the decision in Dhomdu's case expressly governs the facts of this case.

14. The petition, therefore, fails. Rule discharged. However, there will be no' order as to costs.


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