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Sham Kekhushru Vs. N.P. Shah - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 416 of 1958
Judge
Reported in(1959)61BOMLR289
AppellantSham Kekhushru
RespondentN.P. Shah
DispositionApplication rejected
Excerpt:
.....jurisdiction under section 10 of the bombay tenancy and agricultural lands act, 1948, to decide a tenant's application of the amount tendered by him to the landlord under section 25(1) of the act for obtaining relief against forfeiture. - indian evidence act, 1872 section 24: [v.s. sirpurkar & deepak verma,jj] dying declaration - multiple murders by accused - dying declaration not implicating one accused - evidence of eye witnesses however completely fixing his criminal liability ocular evidence found credible held, absence of his name in dying declaration would be of no help to accused. - 1. this is an application made by the petitioner sham kekhushru under article 227 of the constitution of india wherein the petitioner has prayed for the setting aside of the order made by the..........1948. the point is: has the mamlatdar got jurisdiction under section 10 of the act to decide a tenant's application for the refund of the excess amount if any tendered by him to the landlord under section 25(1) for obtaining relief against forfeiture? this point arises in the following circumstances:3. the petitioner landlord filed an application on october 11, 1954, for ejecting opponent no. 2, who was his tenant, from s. nos. 285, 289, 290 and 297 of village bakrol situated in the district of baroda. the ejectment was sought by the landlord upon the ground that opponent no. 2 had committed three defaults in the payment of rent and the defaults alleged to have been committed by the tenant were in respect of the years 1951-52, 1952-53 and 1953-54. a notive terminating the tenancy of.....
Judgment:

Vyas J.

1. This is an application made by the petitioner Sham Kekhushru under Article 227 of the Constitution of India wherein the petitioner has prayed for the setting aside of the order made by the Bombay Revenue Tribunal on November 22, 1957.

2. This application raises an interesting point under the Bombay Tenancy and Agricultural Lands Act, 1948. The point is: Has the Mamlatdar got jurisdiction under Section 10 of the Act to decide a tenant's application for the refund of the excess amount if any tendered by him to the landlord under Section 25(1) for obtaining relief against forfeiture? This point arises in the following circumstances:

3. The petitioner landlord filed an application on October 11, 1954, for ejecting opponent No. 2, who was his tenant, from S. Nos. 285, 289, 290 and 297 of village Bakrol situated in the District of Baroda. The ejectment was sought by the landlord upon the ground that opponent No. 2 had committed three defaults in the payment of rent and the defaults alleged to have been committed by the tenant were in respect of the years 1951-52, 1952-53 and 1953-54. A notive terminating the tenancy of opponent No. 2 was duly given by the petitioner-landlord. On May 30, 1955, the Mamlatdar rejected the application of the landlord as he held that the defaults for the three years alleged by the landlord were not proved. From this order of the Mamlatdar the landlord appealed to the Prant Officer. The Prant Officer held that the three defaults in the payment of rent, which were alleged by the landlord, were established in this case and accordingly he allowed the appeal of the landlord and passed an order for ejectment against the tenant. This order was passed on August 18, 1955. It may be noted at this stage that the petitioner's case is that the contractual rent for the aforesaid lands which the tenant had agreed to pay to him was Rs. 501 per year. On the other hand, the case of opponent No. 2 is that the contractual rent was Rs. 325 per year. The Prant Officer who heard the appeal of the petitioner-landlord held that even on the assumption that the contractual rent was Rs. 325 per year, the defaults in the payment of rent for the years 1951-52, 1952-53 and 1953-54 had been established by the landlord. It was upon this finding which he arrived at that the Prant Officer passed an order directing the ejectment of the tenant from the lands of the petitioner. From the aforesaid order of the Prant Officer opponent No. 2 went in revision before the Revenue Tribunal. The Revenue Tribunal accepted the finding of the Prant Officer to the effect that the defaults alleged by the landlord were proved. It is to be noted, however, that when the matter was pending before the Tribunal, opponent No. 2 asked for relief against forfeiture. He agreed that the contractual rent for the survey numbers in question was Rs. 501 per year and he agreed to pay all the arrears of rent at that rate. On June 4, 1956, the Tribunal ordered that relief against forfeiture be granted to opponent No. 2 upon his paying the rent at the rate of Rs. 501 per year till the end of 1955-56. On June 12, 1956, opponent No. 2 paid the amount of Rs. 2,505, that is to say, all the arrears of rent up to date at the rate of Rs. 501 per year. Two days there after, on June 14, 1956, opponent No. 2 applied to the Mamlatdar under Section 12 of the Act, as it stood before amendment for determination of the reasonable rent. To that application the petitioner-landlord filed his objections, Wherein he contended that such an application was not tenable. Thereafter on October 25, 1956, opponent No. 2 filed another application, which was an application under Section 10 of the Act, claiming refund of a part of the amount tendered by him under Section 25(1) of the Act. It may be noted that the Amending Act came into force on August 1, 1956, with the result that upon that date the old Section 12 stood deleted from the statute book. On October 31, 1956, the Mamlatdar rejected both the applications which were made by opponent No. 2, viz., the application under Section 12 and also the application under Section 10 of the Act. The application under Section 12 was rejected upon the ground that with effect from August 1, 1956, Section 12 had been deleted from the statute, book. The application under Section 10 of the Act was rejected by the Mamlatdar in view of the fact that opponent No. 2, consequent upon the Tribunal's order, had voluntarily paid up all the arrears of rent at the agreed rate of Rs. 501 per year. From the aforesaid order of the Mamlatdar dated October 31, 1956, rejecting both the applications of opponent No. 2, opponent No. 2 appealed to the Prant Officer. The Prant Officer dismissed the appeal on March 27, 1957. Thereupon opponent No. 2 went in revision before the Tribunal and by an order made on November 22, 1957, the Tribunal remanded the case to the Mamlatdar, directing the Mamlatdar to determine the reasonable rent for the survey numbers concerned under Section 12 of the Act as it stood before amendment and also to hear and decide the application of opponent No. 2 made by him under Section 10 of the Act. It is this order made by the Tribunal on November 22, 1957, which is challenged by the petitioner in this application.

4. Now, at the outset, the learned advocate Mr. Gokhale appearing for opponent No. 2 raised a preliminary objection to the maintainability of this application. Mr. Gokhale said that the Tribunal by its order of remand dated November 22, 1957, did not pass any final order. The rights of the parties Were not affected by reason of that order. All that the Tribunal had done was to direct the Mamlatdar to determine the reasonable rent and to decide the application of opponent No. 2 made under Section 10 of the Act. Mr. Gokhale contended that unless the Mamlatdar had determined the reasonable rent and had decided the application of opponent No. 2 for refund under Section 10, no question would arise of the rights of the parties being affected and therefore the present application of the petitioner-landlord was not tenable.

5. We are unable to uphold Mr. Gokhale's preliminary objection. By the order of remand passed by the Tribunal the rights of the parties are affected, in that the Tribunal has laid down a principle which the Mamlatdar would follow. Upon the principle so laid down by the Tribunal the Mamlatdar would merely make arithmetical calculations, i.e., he would determine the rent under Section 12 as directed by the Tribunal, would deduct the amount of the said rent from the amount tendered by opponent No. 2 under Section 25(1) for obtaining relief against forfeiture and would direct refund of the balance by the landlord. The Prant Officer, upon the facts of the case, took the view that since opponent No. 2 had voluntarily tendered the amount under Section 25(1) of the Act to obtain relief Against forfeiture, this could not be said to be a case of recovery of excess amount by the landlord and therefore no question could arise of opponent No. 2 legitimately claiming a refund. The Tribunal did not accept that view and held that merely because the agreed rent was tendered to the landlord under Section 25(1) it could not be said that ''the landlord had not recovered the rent so as to bring him within the mischief of Section 10'. It is this principle laid down by the Tribunal by its remand order which affects the rights of the parties and which is challenged by the landlord by this petition. In these circumstances, the preliminary objection taken by the learned advocate Mr. Gokhale must be rejected.

6. Mr. Gokhale says that since Section 12 of the Act stood deleted from the statute book with effect from August 1, 1956, the Mamlatdar could now determine competently only the rent under Section 9 of the Act and not reasonable rent under Section 12. It is to be noted that opponent No. 2 had applied for determination of reasonable rent under Section 12 on June 14, 1956, i.e., before the Amended Act came into force on August 1, 1956. In other words, he had already instituted a legal proceeding viz., an application under Section 12 in respect of his right to have reasonable rent determined. That legal proceeding was pending on August 1, 1956, the date upon which the Amended Act came into force. Under Section 89(2)(b)(ii) of the Act that proceeding was saved and therefore the application made by opponent No. 2 under Section 12 of the old Act could be decided as if Section 9 of the new Act had not been on the statute book. The remand order of the Tribunal directing determination of reasonable rent under Section 12 of the Act, as it stood before amendment, is therefore right. It must, however, be pointed out that the determination of reasonable rent in this case, must be confined to a period after June 12, 1956, the date upon which opponent No. 2 tendered the amount of Rs. 2,505 under Section 25(1) to obtain relief against forfeiture. Opponent No. 2 having tendered the amount under Section 25(1), no enquiry as to resonable rent for the period preceding the tender is permissible rent under the Act. The Mamlatdar would therefore, determine the reasonable rent for the period subsequent to June 12, 1956, and not prior to it.

7. The next point is whether the Mamlatdar has jurisdiction under Section 10 of the Act to decide an application for refund made be a tenant who has tendered the amount to the landlord under Section 25(1) to obtain relief against forfeiture. The learned advocate Mr. Gokhale for opponent No. 2 says that under Section 10 it is competent to the Mamlatdar to decide such an application and determine the amount of refund. In our view, upon examination of the language of Section 10, Section 25(1) and Section 70, Clauses (f) and (h), of the Act, Mr. Buch's contention appears to be correct and must be upheld. It would be appropriate at this stage to set out the provisions of Section 10. Section 10 provides :

If any landlord recovers rent from any tenant in contravention of the provisions of Sections 8, 9, 9A or 9C, he shall forthwith refund the excess amount recovered to the tenant and shall be liable to pay such compensation to the tenant as may be determined by the Mamlatdar in this behalf and shall also be liable to such penalty as may be prescribed by rules made under this Act.

It is significant to note that the Legislature has coupled 'refund' with 'compensation' and 'penalty' while enacting Section 10. Now, coupling of 'compensation' and 'penalty' with 'refund' in Section 10 would show that when the Legislature used the expression 'recovers rent' in Section 10, it contemplated recovery of rent by the landlord in a manner contrary to law or otherwise improper of objectionable. If the recovery of rent by the landlord is in order and does not offend against any provision of law, no question can possibly arise of compensation and penalty in respect of the said recovery. A scope for compensation and penalty could only arise when something which is not right, something which offends against the 'provisions of, law, is done by a person. Now, when a tenant tenders the amount under Section 25(1) and when the landlord accepts it, the acceptance is in conformity with the law; it is not an improper or offensive recovery. In other words, in our view, it is not recovery which would Ml 'under Section 10 of the Act. Therefore, when a tenant has tendered the amount finder Section 25(1) to obtain relief against forfeiture, no subsequent application by him for the refund of a portion of that amount can lie under Section 10 of the Act.

8. Then, again, we have no doubt that the expression 'as may be determined by the Mamlatdar' which is used in Section 10 of the Act, is used in relation to 'compensation' and not in relation to 'refund'. This becomes clear upon a perusal of Clauses (f) and (h) of Section 70. Now, whatever jurisdiction the Mamlatdar has under the Act to decide the various matters and questions falling under the Act, it is derived from Section 70 of the Act. Clause (f) of Section 70 provides that for the purposes of the Act it shall be the duty and function of the Mamlatdar to determine the amount of compensation under Section 10 for contravention of Sections 8, 9, 9A and 9C. Clause (h) provides that it shall be the duty and function of the Mamlatdar to determine the amount to be refunded to a tenant under Section 13(5), It is thus clear from the provisions of Clauses (f) and (h) of Section 70 that the only applications under Section 10 which the Mamlatdar has jurisdiction under the Act to hear and decide are applications claiming compensation for the contravention of Sections 8, 9, 9A and 9C of the Act. I have mentioned above that Section 10 consists of three elements, viz., the elements of refund, compensation and penalty. It is impossible to believe that while referring to Section 10 while enacting Clause (f) of Section 70, the Legislature did not have before its mind all the elements of Section 10; and yet when it came to enacting Clause (f) the Legislature purposely omitted the words 'refund' and 'penalty' and used only the word 'compensation'. If the intention of the Legislature was to confer jurisdiction upon the Mamlatdar to hear and decide applications for refund made under Section 10 of the Act, we have no doubt that alongside the word 'compensation' the Legislature would have used the word 'refund' also in Clause (f) of Section 70. The Legislature did not do so and herein lies a clear clue to the intention of the Legislature upon the question of conferring jurisdiction upon the Mamlatdar so far as an application for refund under Section 10 is concerned. In our view, the Legislature did not intend to confer jurisdiction upon the Mamlatdar to entertain and decide an application for refund under Section 10. Then again, if we turn to Clause (h) of Section 70, it would be clear that the only applications for refund which the Mamlatdar is given jurisdiction to hear and decide are applications for refund under Section 13(5) of the Act. In Clause (h), which is a clause specifically dealing with applications for refund, the Legislature omitted a reference to Section 10. The learned advocate Mr. Jathar appearing for Mr. Gokhale says that Section 70 of the Act is not comprehensive or exhaustive and, therefore, even if the expression 'refund' does not find place in Clause (f) of Section 70 and even if Section 10 does not find place in Clause (h) of Section 70, it would be competent to the Mamlatdar to decide an application made by a tenant for refund under Section 10. Mr. Jathar has invited our attention to the provisions of Section 29, Sub-section (3) and has contended that under this sub-section the Act has cast a duty upon the Mamlatdar to hold an enquiry and pass an appropriate order in the matter of delivering possession either to the landlord or to the tenant as the case may be. Mr. Jathar says that although such a jurisdiction is conferred by the Act upon the Mamlatdar under Section 29(3), there is no reference to Section 29 in Section 70. Therefore, says Mr. Jathar, Section 70 is not a comprehensive section, laying down all the duties of the Mamlatdar under the Act. We have examined this contention of Mr. Jathar, but we are unable to see substance in it. Mr. Jathar has probably overlooked Clause (n) of Section 70. Clause (n) provides that for the purposes of the Act it shall be the duty and function to be performed by the Mamlatdar to take measures for putting the tenant or landlord or the agricultural labourer or artisan or person carrying on an allied pursuit into the possession of the land or dwelling house under the Act. There is no doubt that when the Legislature enacted Clause (n) of Section 70, it was clearly conferring jurisdiction upon the Mamlatdar to decide questions of handing over possession to the tenant or the landlord as the case may be. In our view, the fact that the Legislature, while conferring jurisdiction under Clause (f) of Section 70 upon the Mamlatdar to determine certain applications made under Section 10, did not refer to applications for refund and the further fact that while conferring jurisdiction upon the Mamlatdar under Clause (h) of Section 70 the Legislature referred only to applications for refund made under Section 13(5) would clearly show that the Legislature did not intend to confer any jurisdiction upon the Mamlatdar to decide the question of refund agitated by a tenant under Section 10. That being so, the present application made by opponent No. 2 under Section 10, claiming refund of a portion of the amount tendered by him for claiming relief against forfeiture under Section 25(1), would not be competent.

9. Then again, there is another reason why opponent No. 2 cannot invoke the assistance of Section 10 in this case for claiming refund of a portion of the amount tendered by him under Section 25(1). Unless opponent No. 2 is able to establish in the first place that this is a case in which the landlord had recovered rent from him, the provisions of Section 10 cannot assist him. In order that the provisions of Section 10 can come into operation, it must first be established that the landlord had recovered rent from a tenant. Now, in this case, as I have mentioned above, opponent No. 2 tendered the amount of Rs. 2,505 on June 12, 1956, to obtain relief against forfeiture. It was a tender by a person who was a one time tenant of the landlord, but whose tenancy had been terminated and whom the landlord had become entitled to evict from the land. This is clear enough, if we turn to the provisions of Section 25(1). It is to be remembered that it was under this section that the tender of the amount of Rs. 2,505 was made by opponent No. 2. Section 25(1) provides:

Where any tenancy of any land held by any tenant is terminated for non-payment of rent and the landlord files any proceeding to eject the tenant, the Mamlatdar shall call upon-the tenant to tender to the landlord the rent in arrears together with the cost of the proceeding, within three months from the date of order, and if the tenant complies with such order, the Mamlatdar shall, in lieu of making an order for ejectment, pass an order directing that the tenancy had not been terminated and thereupon the tenant shall hold the land as if the tenancy had not been terminated:

The words italicised above are the important words in Section 25(1). They would show that the tender which is made under this section is made by a person whose tenancy was terminated for non-payment of rent and whom his landlord has become entitled to eject from the land, in other words by a person who had ceased to be a tenant. The section speaks of an artificial revival of tenancy, which had already come to an end, upon a certain event happening, viz., upon the tender of a certain amount being made by the one time tenant to the owner of the land. In these circumstances, it is impossible to say that when the amount of Rs. 2,505 was tendered by opponent No. 2 and was made over to the petitioner the petitioner recovered rent from his tenant within the meaning of Section 10 of the Act. For these reasons also we are of the view that a recourse to Section 10 of the Act cannot avail opponent No. 2.

10. Apart from what has been stated above, it is clear in this case that if opponent No. 2 had not tendered the amount of Rs. 2,505 to be paid over to the petitioner, he would not have obtained the relief against forfeiture. His tenancy had been terminated by the landlord giving him a notice under the Act and the landlord had become entitled to an order of ejectment, which the Court would have passed, but for the tender of the amount. His tenancy which had been terminated would not have been revived, but for the tender of the amount. In these circumstances, to entertain an application from opponent No. 2 for the refund of a portion of the amount tendered by him under Section 25(1) would be permitting him to approbate and reprobate at the same time. We cannot allow this in the absence of a specific provision to that effect in the Act. He cannot expect to retain the benefit of relief against forfeiture, obtained by him under Section 25(1), and at the same time ask for the refund of a portion of the amount tendered by him. We are referring to this aspect of the case quite independently of what has been stated above.

11. In the result, the application of opponent No. 2 made by him for refund under Section 10 of the Act fails and is rejected. The case shall be remanded to the Mamlatdar for determination of the reasonable rent, bearing in mind the provisions of Sections 8 and 9 of the Act, for the period after June 12, 1956. So far as the question of costs is concerned, opponent No. 2 will bear his own costs as also the petitioner's costs of this application.


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