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Mangalbhai Fulabhai Nai and anr. Vs. Parsottam Garbadbhai Parmar and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Application Nos. 1393 of 1967 and 1621 of 1970
Judge
Reported inAIR1974Guj11; (1973)GLR292
ActsBombay Tenancy and Agricultural Lands Act, 1948 - Sections 32-T
AppellantMangalbhai Fulabhai Nai and anr.
RespondentParsottam Garbadbhai Parmar and anr.
Appellant Advocate C.K. Patel and A.J. Patel Advs.
Respondent Advocate B.H. Shah, Adv.
Cases ReferredChanchalben v. Gujarat Revenue Tribunal
Excerpt:
.....- termination - section 32t of bombay tenancy and agricultural lands act, 1948 - whether heirs of certified landlord to whom certificate issued under section 88c can continue proceedings under section 32t for obtaining possession - certified landlord means person who holds certificate issued to him under section 88c - person as per section 32s (1) includes joint family - any person who holds certificate issued to him under section 88c (4) is certified landlord - only certified landlord can terminate tenancy under section 32t - successors-in-interest of minors or person suffering from mental or physical disability not contemplated under sections 32t (4) or 31 (3) - held, heir of certified landlord could not maintain application under section 32t. - - the provisions of this..........both these special civil applications raise a common question of law. viz.. whether the heirs of a certified landlord to whom the certificate has been issued under seq. 88-c of the bombay tenancy and agricultural lands act. 1948 (hereinafter referred to as the act) car file or continue proceedings under section 32t of the act for the purpose of obtaining possession from the tenant. on february 4. 1971. m. p.2. before taking up the discussion regarding the legal point arising in the case. it will be appropriate to refer to the facts of each special civil application. in special civil application no. 1393 of 1967, the original petitioner in this high court was one mangalbhai fulabhai, whose father fulabbai ambaidas was the original landlord and fulabhai had obtained a certificate of.....
Judgment:

Divan, J.

1. Both these Special Civil Applications have been referred to a Division Bench. Special Civil Application No. 1393/1967 has been referred by M. P, Thakkar J. and Special Civil Application No. 1621/1970 has been referred by S. H. Sheth J. Both these Special Civil Applications raise a common question of law. viz.. Whether the heirs of a certified landlord to whom the Certificate has been issued under Seq. 88-C of the Bombay Tenancy and Agricultural Lands Act. 1948 (hereinafter referred to as the Act) car file or continue proceedings under Section 32T of the Act for the purpose of obtaining Possession from the tenant. On February 4. 1971. M. P.

2. Before taking up the discussion regarding the legal Point arising in the case. it will be appropriate to refer to the facts of each Special Civil Application. In Special Civil Application No. 1393 of 1967, the original petitioner in this High Court was one Mangalbhai Fulabhai, whose father Fulabbai Ambaidas was the original landlord and Fulabhai had obtained a certificate of exemption under S. 88-C of the Act, the certificate was issued to Fulabhai on May 6. 1959 and later on Fulabhai died on September 28, 1959. During the Pendency of the Special Civil Application filed by Mangalbhai in this Court. Mangalbhai expired and subsequently his heirs and legal representatives have been brought on the record of this case. Mangalbhai applied for Possession under Section 32T of the 1, 7 Act an March 3, 1962 and before that date he had served the original tenant Garbadbhai with a notice to quit on December 19, 1961. The Mamlatdar Petlad. Who tried the case held in favour of Mangalbhai and awarded possession to Him. The tenant died during the pendency of the proceedings before the Mamlatdar and his heirs and legal representatives came on the record and the heirs of the original tenant Preferred an appeal against the order of the Mamlatdar. The Deputy Collector disposed of the appeal. Kaira. Who allowed the appeal and set aside the order of the Mamlatdar. Against the decision of the Deputy Collector. Mangalbhai went in Revision to the Gujarat Revenue Tribunal, and the Revenue Tribunal held that the certificate of exemption having been obtained by Fulabhai, the deceased father of Mangalbhai, the latter i.e. Mangalbhai could not maintain an application for Possession under Section 32T of the Act. As be was not the certified landlord. The present Civil Application No i 1393/1967 has been filed against this decision of the Revenue Tribunal.

3. The facts in Special Civil Application No. 1621/70 are that the petitioner before the High Court is a tenant and the respondent Bai Manguben is the widow of one Chimanlal Kishorbhai. who prior to his death was the landlord of the petitioner. The lands admeasuring 4 acres and 12 gunthas in all were leased by Chimanlal to the Petitioner. Chimanlal died on March 24. 1964 and he had applied for an exemption certificate under Section 88C of the Act and the certificate had been granted to him on September 30. 1958. Chimanlal prior to his death applied for possession of these lands under Section 32T of the Act. That application was made on March 23, 1962. The Mamlatdar had awarded -possession of one of the two S. Nos. comprising the lands of the tenancy to the landlord. The petitioner appealed against the decision of the Mamlatdar. The appeal was heard by the Prant Officer. Kaira and the Prant Officer had remanded the matter back to the Mamlatdar. After the remand, the Mamlatdar again awarded all the lands to the landlord and after that order the petitioner went in appeal. Which was disposed of by the Deputy Collector. Kaira. The appeal was dismissed by the Deputy Collector, Thereafter the petitioner went in revision before the Gujarat Revenue Tribunal and the Tribunal dismissed the Revision Application. Special Civil Application No. 1621 of 1970 has been filed by the petitioner against this order of the Gujarat Revenue Tribunal.

4. Before referring to the different decisions on the Point. it would be advisable to refer to the provisions of Ss. 32-T. 88-C and other relevant provisions of the Act. Ss. 32 to 32-R provide for compulsory purchase of the land and consequential proceedings on such compulsory purchase under the tiller's day legislation and the relevant date is April 1, 1957 As of that day, which was known as the tiller's day in the State Act, every tenant was deemed to have purchased from his landlord free from all encumbrances the land held by him as a tenant. Under Section 88C. which in its present form was brought on the Statute Book by Bombay Act No. 13 of 1957, nothing in Sections 32 to 32-R (both inclusive) is to apply to lands leased by any person if such land does not exceed an economic holding and -the total annual income of such person including the rent of such land does not exceed Rs. 1500/-. Under sub-section (2) of Section 88C, every person eligible to the exemption Provided in sub-section (1) shall make an application hi the prescribed form to the Mamlatdar within whose jurisdiction all or most of the pieces of land leased by him are situate, within the prescribed period for a certificate that he, is entitled to such, exemption. By Gujarat Act No. 16 of 1960, a Proviso is added that where such person is a widow. she may make such application before the 1st day of July 1961 notwithstanding that the period prescribed under this section has expired. We may point out that by Rule 53 of the Bombay Tenancy and Agricultural Lands Rules, 1956, as amended from time to time, an application for a certificate under sub-section (2) of Section 88C shall be made on or before 31st day of December 1959. There are certain other exemptions to which we will refer later on. Therefore. So far as ordinary Persons are concerned the application for exemption has to be made by the landlord on or before 31st December 1959; and in the case of a widow, she may make an application for exemption before July 1, 1961. It must be emphasized at this stage that the exemption which is granted under Section 88C is from the operation of Sections 32 to 32-R. Gujarat Act 16 of 1960, added Sections 32S. 32T and 32U in the Act and Section 32S says that for purposes of Section 32T and 32U. certified landlord means a person who holds a certificate issued to him under sub-section (4) of Section 88C and excluded tenant means a tenant of land to which provisions of Sections 32 to 32-R (both inclusive) do not apply by virtue of sub-section (1) of Section 88C. Under Section 32-T(1), not withstanding anything contained in Sections 31 to 31-B (both inclusive) but subject to the provisions of this section a certified landlord may, after giving notice and making an application for Possession as Provided in sub-section (3), terminate the tenancy of any land leased by him to an excluded tenant. if he bona fide requires such land for cultivating it Personally. Sub-section (2) of Section 32T is not relevant for the Purposes of this judgment. Under Section 32-T(3). the notice required to be given under subsection (1) of Section 32T shall be in writing and shall be served on the tenant on or before 31st December 1961 and a copy thereof shall, at the same time be sent to the Mamlatdar. An application for possession of the land shall thereafter be made under Section 29 to the Mamlatdar on or before the 31st day of March 1962. The Proviso to sub-section (3) of Section 32T is again not relevant for the purposes of this -judgment. Sub-section (4) of Section 32T is in these words

'(4) Where the certified landlord is of one of the following categories, namely

(a) A minor

(b) A widow

(c) Deleted

(d) A person subject to any Physical or mental disability then if he has not given a notice, and not made an application as required by sub-sections (1) and (3), such notice may be given and such application may be made

(A) By the landlord within one year from the date on which

(i) In the case of category (a) he attains majority;

(ii) Deleted.

(iii) In the case of category (d) he ceases to be subject to such physical or mental disability; and

(B) In the case of a widow by the successor-in-title Within one year from the date on which the widow's interest in the land ceases to exist.:

Provided that where a person of such category is a member of a joint family. The provisions of this sub-section, shall not apply if at least one member of the joint family is outside the categories mentioned in this sub-section unless the share of such person in the joint family has been separated by metes and bounds before the 31st day of March 1953 and the Mamlatdar on inquiry is satisfied that the share of such person in the land is separated, having regard to the area, assessment, Classification and value of the land, in the same proportion as the share of that person in the entire joint family Property, and not in a larger Proportion.'

4-A. The whole controversy before us turns upon the question as to whether the heirs of a certified landlord can file an application for possession of the land under Section 32T and secondly even if at the time of filing the application under Section 32T. the landlord who filed that application was a certified landlord but if he dies during the pendency of that application. Whether the heirs of the certified landlord can continue that application for their own benefit.

5. The scope and effect of the certificate granted under S. 32T came up for consideration before a Full Bench of this Court in Madhaji v. Mashrubhai, 3 Guj LR 438 = (AIR 1962 Guj 235) (FB). The judgment of the Full Bench was delivered by Miabhoy J. (as he then was) and after examining the scheme of the sections, he has observed at page 456 of the report:

'Reading Section 88C as a whole it Ks quite clear that. Although the exemption. is made dependent upon the landlord fulfilling the two conditions mentioned therein. the result of the fulfillment of those two conditions is that the I-and of the landlord becomes exempt from the Provisions of the section mentioned therein. In other words, the exemption attaches to the land and not to the landlord. Although it is the landlord who in the ultimate analysis. Vets the benefit of exemption.'

It was also held by the Full Bench that the landlord who claims exemption under Section 88C of the Act, must fulfill the condition of annual income mentioned therein with reference to the year preceding the tillers' day i.e. from 1st April 1956 to 31st March 1957 and not on the postponed date or any other date.

6. The two judgments of J. B. Mehta J. about which M. P. Thakkar J. felt a difficulty are- (1) an unreported judgment in Special Civil Application No. 1043 of 1964 decided by our learned brother an 25-6-1969 (Guj), The contention before him in that case was that the certified landlord had died during the pendency of the Revision Application before the Revenue Tribunal and it was intended that on the death of the certified landlord the right to get possession from the excluded tenant lapsed and the heirs of the deceased landlord viz., widow and minor son could not continue the application under Section 32T which would abate on the death of the certified landlord. J. B. Mehta J. considered the provisions of Section 32T and particularly sub-section (4) of Section 32T and held that the person who is the landlord or the tenant would always include the successor-in-interest. unless there is something else in the context to compel departure. He based his conclusion on the reasoning that the expression 'person' occurring in Section 32-S(1). Which defines a certified landlord is of ambiguous import and Section 32-S(1), must be construed in the context of this exemption provision which exempts the land falling under Section 88-C(1) by including within the definition of the certified landlord and the excluded tenant even the successor-in-title. In view of these conclusions and also agreeing with the conclusions of a Division Bench of the Bombay High Court in Parvatibai's case 69 Bom LR 383 = (AIR 1967 Bom 428). Our learned brother held that the right of a certified landlord for possession of lands from an excluded tenant did not lapse on the death of the certified landlord as the term 'landlord,' covers the successor-in interest. The decision of the Division Bench of the. Bombay High Court was based on the corresponding Provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 as amended for the State of Maharastra.

7. The second decision of J. B. Mehta J. where he had taken a somewhat different view was in Chanchalben v. Gujarat Revenue Tribunal, (1971) 12 Gui LR 428. There our learned brother held 'The Position, therefore, clearly emerges that the landlord is not exempted but the land in question is exempt whose landlord satisfies the two conditions on -the relevant date April 1. 1957. The benefit of Section 88C could be availed of only by the Particular landlord whose tenant had become a deemed purchaser on April 1. 1957.'

It was also held that if the tenant became a deemed purchaser the landlord would have no heritable or transferable interest once his tenant became a deemed Purchaser because he could not fulfill the two relevant conditions and he had not applied for getting the certificate under Section 88C. The judgment in Chanchalben's case (1971) 12 Guj LR 428. (supra) indicates that the benefit of Section 88C cannot be availed of by the successor of the person who was a landlord as on April 1, 1957,

The decision of the Bombay High Court in Parvatiben's case 69 Bom LR383=(AIR 1967 Bom 428) (supra) turned upon the relevant provisions of the Maharashtra Act, which are in Pari materia with the provisions of Section 32T, the difference being only in number. Section 32T as it applies in Gujarat is equivalent to Section 33-B as it applies in Maharashtra and Section 32S of our Act is equivalent to Section 33-A of the Act as applicable in Maharashtra. The Division Bench consisting of Tarkunde & K. K.Desai JJ. Held 'that the right of a certified landlord to apply under Sec 33-B 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. Tarkunde J. who delivered the judgment of Division Bench considered the history of the different provisions of the Act as it was applied in Maharashtra and ultimately came to the conclusion particularly in the light of sub-section (4) of Section 33-B (equivalent to Section 32-T(4) applicable in Gujarat) that the Legislature did contemplate that even the heirs of the deceased certified landlord could continue the application or could apply for possession under the Provisions of Section 33-B of the Act as applicable in Maharashtra.

8. In our opinion, once the scheme of Section 32T is borne in mind and the scheme is studied in the light of similar other Provisions in the Act. the object of the Legislature becomes very clear. The Legislature has prescribed that a certified landlord means a Person who holds a certificate issued to him under subsection (4) of Section 88C. Section 2(11) defines a 'Person' as included a joint family and Section 2 (7-A) defines 'joint family' to mean an undivided Hindu Family and in the case of other persons a group or unit, the members of which are by custom joint in estate or residence. We are unable to agree with the conclusion of J. B. Mehta J. that the word 'Person' occurring in Section 32-S(1) is an expression of ambiguous import. The word 'person' in Section 32-S (1) has been used in its ordinary meaning and also includes the joint family as defined in Section 2(7-A); and any person who holds the certificate issued to him under sub-section (4) of Section 88C is a certified landlord. It is only the certified landlord who has first to give notice and then to apply for Possession oil the ground that he requires the land leased by him to the excluded tenant for his bona fide requirement for cultivating it personally. Ordinarily the tenancy of a tenant under the Civil Law and the Transfer of Property Act is terminated when the landlord gives a notice to the tenant to quit but looking to the Phraseology used in Section 32-T(1) where the termination is to come after the landlord giving the notice and making- an application for Possession as Provided in sub-section (3), it is obvious that the word 'terminate' with reference to termination of tenancy occurring in Section 32-T(1) means actually taking possession by the landlord in pursuance of the proceedings taken by him in accordance with Section 32-T(1). It is only the certified landlord who can terminate the tenancy in this fashion under Section 32T. Both J, B. Mehta J. in his decision in Spl. C. A. 1043 of 1964 D/- 25-6-1969 (Guj) and Tarkunde J. delivering the judgment of the Division Bench in Parvatibai's case. 69 Bom LR 383 (AIR 1967 Bom 428) (supra). have Put the particular interpretation as they did on the words 'certified landlord' because of the Provisions of sub-section (4) of Section 32T and similar provision in Section 33-B(4) of the Act as applicable in Maharashtra. We have already set out in extenso the Provisions of Section 32-T(4). It must be borne in mind that the notice required to be given by the certified landlord to the excluded tenant must be served on the tenant on or before 31st December 1961 as provided in sub-section (3) and the application for possession must be made to the Mamlatdar under the provisions of Section 29 on or before March 31. 1962. To this period of limitation viz., notice having to be given on or before 31st December 1961 and the application for possession having to be made to the Mamlatdar on or before March 31, 1962,an exception is carved out by sub-section (4) of Section 32T. The exception is in favour of a manor. a widow and a Person subject to any physical or mental disability; and there was a further exception to the two Periods of limitation in favour of a serving member of the Armed Forces but that exception has been removed from sub-section (4) of Section 32T and a special provision is made for members of the Armed Forces elsewhere in the Act. Under sub-section (4) of Section 32T in the case of a minor. a person. subject to a mental or physical disability or a widow, the fact that the certified landlord has not given a notice and has not made an application as required by sub-sections (1) and (3) before the relevant dates cannot stand in his way because sub-section (4) provides that , in the case of a minor, notice may be given and the application for -possession may be made within one Year from the date when the minor attains majority in the case of a person subject to any physical or mental disability. within one year from the date when he ceases to be subject to such disability; and in the case of a widow, the notice may be given and the application for Possession may be made by the successor-in-title of the widow within one year from the date on which the widow's interest in the land ceases to exist. It is obvious that so far as the minor is concerned, it is not the successor-in-title of the minor in whose favour the time for serving the notice and for making the application for possession to the Mamlatdar is extended by sub-section (4) of Section 32T. It is the minor himself who can serve the notice and make the application within one year of attaining majority. Similarly in the case of a person who was subject to Physical or mental disability, he himself can serve the notice on the tenant and make the application for possession within one year of the date on which the landlord ceases to be subject to such physical or mental disability. It is only in the case of a widow that it is provided that the notice to quit and the application for possession may be made by the successor-in-title of the widow within one year from the date on which the widow's interest in the land ceased to exist. Looking to the provisions of sub-section (1) of Section 32T. it is obvious that the termination of the tenancy within the special meaning of the word 'termination' which can be attributed, in the Scheme of Section 32T is to be done by the certified landlord: and, therefore. it is obvious even in the con-, text of Section 32-T(4) that if the termination is to be done by the widow's successor-in-title. even the successor-in-title must be a certified landlord. We may Point out that under Rule 53 of the; Rules. Where the landlord is a minor or a widow or a Person subject to mental (Divan J) or physical disability. The application under See. 88-C may be made within six months of the minor attaining majority or within six months of the Person subject to mental or physical disability ceasing to be subject to such disability and in the case of a widow by the successor-in-title within six months from the date on which the widow's interest in the land ceased to exist.

It is unfortunate that the attention of the Division Bench of the Maharashtra High Court, which decided Parvatibai's case. 69 Bom LR 383 = (AIR 1967 Bom 428) (supra), or of J. B Mehta J. of this High Court when he decided SO. C. A. 1043 of 1964. D/- 25-6-1969 -(Guj), was not drawn to similar other provisions of the Act where special exceptions have been carved out in favour of a minor, person suffering from physical or mental disability and a widow. Under Section 31 of the Act. a right is given to the landlord to terminate the tenancy of any land after giving notice and making an application for possession as Provided in sub-section (2) of Section 31, and such an applicant can succeed if he requires the land for cultivating it personally or for any non-agricultural Purpose, Under sub-section (2) of Section 31, the notice must be given by serving the tenant on or before 31st December 1956 and an application for possession under Section 29 must be made to the Mamlatdar on or before March 31, 1957. But under sub-section (3). where the landlord is a minor or a widow or a Person subject to Physical or mental disability, such notice may be given and the application far possession under Section 29 may be made by the minor within one year from the date on which he attains majority; by the successor-in-title of a widow within one year from the date on which her interest in the land ceased to exist; and within one year from the date- on which mental or Physical disability ceases to exist. The proviso to sub-section (3) of Section 31 is on the same line- as the proviso to sub-section (4) of Se( n 32T in the case of members of a joint family. Thus the provisions of Section 31 and Section 32T run on Parallel lines viz., it is only in connection with the period of limitation that a, medical exception is carved out hi favor of minors. Persons suffering from mental or physical disability and widows and the provisions of sub-section (3) of Section 31, as also Section 32-T(4) are meant to give a larger period of limitation for the Purpose of serving of notice on the tenant and for Purpose of making an application to the Mamlatdar but it is difficult to cull out the intention of the Legislature regarding the main Scheme of Section 32T merely from the exemption given in the case of widows only. As we have pointed out above, the successors-in-interest of minors or persons suffering from mental or physical disability are not contemplated either under Section 32-T (4) or under Section 31(3).

Similarly in the case of deemed purchase of land under Section 32, a special -provision has been made under Section 32F. viz.. where the landlord is a minor or a widow or a person subject to any mental or Physical disability the tenant 'I have the right to purchase such land under Section 32 within one --ear from the expiry of the period during which such landlord is entitled to terminate the tenancy under Section 31. Equally. it may be pointed out that under section 32-F(b). where the tenant is a minor or a widow or a person subject to any mental or physical disability then subject to the provisions of clause (a) the right to Purchase land under Section 32 may be exercised --- by a minor within one year from the date on which he attains majority: by a successor-in-title of the widow within one year from the date on which her interest in the land ceases to exist; and within one year from the date on which the mental or physical disability of the tenant ceases to exist. The reason why we are drawing attention to these provisions of Sections 31, 32F and Rule 53 of the Bombay Tenancy and Agricultural Lands Rules. 1956, is that the entire scheme followed by the Legislature is that in the case of ordinary landlords certain Periods of limitation are prescribed for the purpose of serving the notice on the tenant or for fixing the date of deemed purchase or for the purpose of Making an application for exemption under S. 88-C. But having provided the periods of limitation for serving the notice on tenant or for making the application for possession or for making an application for obtaining the exemption certificate under Section 88C. the Legislature and the rule-making authority provide for special exemptions from such periods of limitation in the case of a minor. a person suffering from mental or physical disability or a widow. Therefore looking to this consistent scheme adopted by the Legislature in all such cases the operation of Section 32-T(4) must be limited to the specific -purpose for which sub-section (4) was enacted viz. to extend the period of limitation beyond the dates mentioned in 'sub-section (3) of Section 32T, viz. 31st December 1961 for the purpose of serving the notice on the tenant and 31st March 1962 for making the application for possession before the Mamlatdar. In our opinion it is difficult to say that the meaning of the phrase 'certified landlord' as defined in Section 32-S(1) of the Act as it is applicable in Gujarat, is enlarged by reason of the exemption granted in the ewe of the widow when the widow is a certified landlord. If the landlord was a widow, the period of making an application for exemption under Section 88C is extended to six months from the date on which the widow's interest in the land ceases to exist and it is difficult to say, as held by the Division Bench of the Maharashtra High Court in Parvatibai's case 69 Bom LR 383 = (AIR 1967 Bom 428) (supra), and by J. B. Mehta J. in Special Civil Application No. 1043 of 1964, D/- 25-6-1969 (Guj) that the Legislature had contemplated giving an extended meaning to the words 'certified landlord' because of the exemption from operation of period of limitation which exemption is to be found in Section 32-T(4). It is obvious when one reads Section 32-T(4) along with Section 31(3) and Section 32F as also in the light of Rule 53, that the successor of the widow, in case where the widow is the landlord of the tenant, comes into the picture only for the limited Purpose of extending the period of limitation prescribed under the relevant Provision of law. I That does not mean that in every case the expression 'certified landlord' would include also the heirs or successors in -interest of the certified landlord.

9. In view of the above discussion, it is clear that the Revenue Tribunal was right in Spl. C. A. 1393/1967 when it held that the heir of the certified landlord could not maintain the application under Section 32T. Though the reasoning, which appealed to the Revenue Tribunal, is somewhat different from the reasoning which has led to us the conclusion reached b the Tribunal was the same, which we have arrived at. That Special Civil Application, therefore, fails and rule is discharged in that case. In Special Civil Application No.1621 of 1970 the view taken by the Revenue Tribunal that the heir of the certified landlord could continue the application which was filed by the certified landlord and during the pendency of which the certified landlord died was erroneous and hence Spl. C. A No. 1621/1970 must be allowed and rule' must be made absolute in that matter There will be no order as to costs in either of these two Special Civil Applications.


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