B.C. Gadgil, J.
1. The petitioner who owns Survey No. 21 situated at Eksar, Taluka Borivli, filed an application under section 41 of the Presidency Small Causes Court Act (unamended) for getting possession of a part of that land with an allegation that this part was let out to the respondents and that the said tenancy has been terminated. This proceeding was numbered as E.A. No. 97E of 1976. The learned Judge of the Small Causes Court passed an order dated 22-2-1983 for the return of the application for presentation of the property. The order is passed on a hypothesis that as the land is an agricultural land, the courts constituted under the Bombay Tenancy and Agricultural Lands Act, 1948, (hereinafter referred to as the `Tenancy Act') alone has jurisdiction. The petitioner filed appeal No. 304 of 1983 against this order. The appeal was dismissed as not maintainable. However, the merits of the earlier order (directing the return of the application) were discussed by the Appellate Court and the Appellate Court found that neither the Rent Act nor the Tenancy Act is applicable to the suit property and that the application under section 41 was maintainable in the Court of Small Causes.
2. However, as the appeal has been dismissed as not maintainable the petitioners have filed present writ petition. It is true that generally speaking the rights over the agricultural land are covered by the Tenancy Act. However, the said Act contains a number of provisions to show that the Tenancy Act is not applicable to certain types of land. In the present case section 88(1)(b) is relevant. It provides that the Tenancy Act would not apply to any land which the State Government by notification certify as being reserved for non-agricultural or Industrial development. The State Government has issued a notification No. TNC. 5157/31190-M dated 29-3-1957 under section 88(b). The said notification is published in the Government Gazette dated 4-4-1957. The notification clearly states that the lands mentioned in the schedule (the schedule contains a list of various villages including the village Eksar) as being reserved for non-agricultural and Industrial development. At this juncture it would be relevant to take into account the section 88(a)(1). It provides that the lands within the limits of the erstwhile Borivli Municipality would be governed by the Tenancy Act unless those lands have been exempted by the above mentioned notification issued under section 88(1)(b). The net result of all these provisions, therefore, is that the suit land is not governed by the provisions of the Tenancy Act. It is also material to note that the lands are equally not governed by the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, as that Act is primarily meant for non-agricultural properties. In this view of the matter an application under section 41 of the unamended Act would be tenable.
3. It was, however, urged before me on behalf of the respondents that the petitioner has not made a mention of the notification under section 88(1)(b) and also of the legal position that flows from that notification read with section 88-A(1). It was, therefore, contended that in the absence of such pleading, the trial Court was right in holding that it has no jurisdiction as the land is an agricultural land. It is true that there is no proper pleading. However, absence of pleading in that respect would not be much relevant particularly when the question as to whether the Tenancy Act applies to the suit land or not is beyond a pale of doubt, in view of the above mentioned legal position. In my opinion, it is not necessary to direct that the application under section 41 be sent back to the trial Court with a liberty to the petitioner to amend the application and thereafter the question covered by the above discussion should be decided. In my opinion, the interests of justice will be met if the matter is remanded to the Small Causes Court with a direction that the plaintiffs should incorporate the necessary pleading to show that the Tenancy Act and the Rent Act is not applicable. This is just to complete the formality and nothing more.
4. Rule is, therefore, made absolute. The impugned orders are quashed and E.A. No. 97-E of 1976 is remanded to the Court of Small Causes for proceeding further according to law. However, it is made specifically clear that the question as to whether the Small Causes Court has jurisdiction or not, need not be gone into in view of this judgment, but the petitioner should make a formal application to the trial Court for amending the application to make the record complete. The application when made shall stand granted. No order as to costs of this writ petition.