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Motibhai Trikambhai Vs. Chhotalal Mangalbhai Parmar and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Judge
Reported in(1962)3GLR506
AppellantMotibhai Trikambhai
RespondentChhotalal Mangalbhai Parmar and ors.
Excerpt:
.....deems fit confer an unlimited discretion upon the mamlatdar to extend the time for payment of the rent in arrears and the costs of the proceedings and that in the exercise of such power the mamlatdar had a right to relieve a person against the termination of his tenancy if payment has been made subsequent to the expiry of the period of three months referred to in section 25 (1). in our view the words pass such order thereon as he deems fit do not empower the mamlatdar to pass any order he liked however capricious the same may be. the extra aval karkun had passed an order in that case granting fifteen days time to the tenant to pay up the arrears and a direction was given that on the tenants failure to pay the arrears of rent within fifteen days from the date of the order possession of..........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 fox 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;provided that if the mamlatdar is satisfied that in consequence of total or partial failure of crops or similar calamity the tenant has been unable to pay the rent due the mamlatdar may for reasons to be recorded in writing direct that the arrears of rent together with the costs of the proceedings if awarded shall be paid within one year.....
Judgment:

K.T. Desai, C.J.

1. In this case the petitioner is the landlord and respondents 1 and 2 are the tenants. The land let by the petitioner consists of survey No. 424 situate in Anand village admeasuring one acre and eight gunthas. The land was originally let to Mangalbhai Haribhai the father of the 1st respondent and husband of the second respondent. Respondents 1 and 2 are the heirs of the said Mangalbhai. Mangalbhai did not pay the rent in respect of the said land for the years 1956-57 and 1957-58 amounting to Rs. 48/The petitioner thereupon gave the requisite notice of termination of the tenancy of Mangalbhai and filed an application for possession of the land in the Court of the Tenancy Mahalkari at Anand. On 17th December 1958 the Tenancy Aval Karkun passed an order directing Mangalbhai to pay the amount of the arrears of rent being Rs. 48/and 50 naya paises by way of costs. He further directed that the amount should be paid within three months from the date of the receipt of the order and further directed that on failure of payment of the aforesaid amount within the prescribed time the petitioner should apply for obtaining possession of the land. Mangalbhai (ailed to pay the amount of the rent within the time provided by the order. Thereupon the petitioner made an application for possession of the land. When the matter came up for hearing once again on 22nd August 1959 Mangalbhai paid the sum of Rs. 48/and 50 naye paise being the amount of the arrears of rent and costs. The petitioner accepted the amount under protest. The Tenancy Aval Karkun thereupon passed an order that the application of the petitioner for possession should merely be filed. An appeal was preferred from the said decision At the time when the matter was heard by the District Deputy Collector the heirs of Mangalbhai had come on the scene Mangalbhai having died. That appeal was dismissed and the order of the Tenancy Aval Karkun was upheld. The petitioner thereupon filed an application in revision before the Revenue Tribunal. The Revenue Tribunal held that there was no error either in the order passed by the Tenancy Court or by the District Deputy Collector and the application was dismissed. The petitioner has thereupon come before us.

2. The main contention urged by Mr. V.J. Desai the learned Advocate for the petitioner before us is that Mangalbhai having failed to pay the rent within the time prescribed by the order dated 17th December 1958 passed by the Tenancy Aval Karkun the petitioner was entitled to obtain possession of the land and that the Tenancy Aval Karkun was not entitled to consider any amount paid subsequent to the period provided by the order dated 17th December 1958 as being a payment which would result in the restoration of the tenancy. He relied upon various provisions of the Bombay Tenancy and Agricultural Lands Act 1948 Section 14 of the said Act deals with the termination of Tenancy. By Sub-section (1) thereof it is provided as under:

Notwithstanding any law agreement or usage or the decree or order of a court the tenancy of any land shall not be terminated

(a) unless the tenant

(1) has failed to pay the rent for any revenue year before the 31st day of May thereof;

XX XX XX XX(b) unless the landlord has given three months notice in writing informing the tenant of his decision to terminate the tenancy and the ground for such termination and within that period the tenant has failed to remedy the breach for which the tenancy is liable to be terminated.

3. The conditions laid down in this section for the termination of the tenancy have been fulfilled in the present case. Reference then is made to Section 25. That section provides as under:

25 (1) Where any tenancy of any land held by any tenant is terminated for nonpayment 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 fox 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;

Provided that if the Mamlatdar is satisfied that in consequence of total or partial failure of crops or similar calamity the tenant has been unable to pay the rent due the Mamlatdar may for reasons to be recorded in writing direct that the arrears of rent together with the costs of the proceedings if awarded shall be paid within one year from the date of the order and that is before the expiry of the said period the tenant fails to pay the said arrears of rent and costs the tenancy shall be deemed to be terminated and the tenant shall be liable to be evicted.

(2) Nothing in this section shall apply to any tenant whose tenancy is terminated for non-payment of rent if he has failed for any three years to pay rent and the landlord has given intimation to the tenant to that effect within a period of three months on each default.

4. By this section provision is made by the legislature for relief against the termination of tenancy for non-payment of rent. The legislature has granted such relief to persons who tender the rent in arrears together with the costs of the proceedings within three months from the date of the order passed by the Mamlatdar calling upon the tenant to tender to the landlord such rent in arrears and costs. Where such rent has been tendered in compliance with the order then the Mamlatdar has been empowered to pass an order directing that in spite of the notice of termination of tenancy duly given under Section 14 of the Act the tenancy had not been terminated. It has been further provided that thereupon the tenant would be entitled to hold the land as if the tenancy had not been terminated. By the proviso power is given to extend the time for payment under circumstances therein provided. No action has been taken in the present case under the proviso and it is not necessary to discuss the same. By Sub-section (2) it has been provided that this right of granting relief against termination of tenancy would not be available where the tenancy has been terminated for non-payment of rent if the tenant has failed for three years to pay the rent and the landlord has given intimation to the tenant to that effect within a period of three months on each default. By this sub-section the powers given to the Mamlatdar to grant relief have not been extended but in cases covered thereby the power conferred under Sub-section (1) is limited so that such power could not be exercised in cases covered by Sub-section (2). In the present case as the tenant failed to pay rent and costs as required by the order of the Tenancy Aval Karkun dated 17th December 1958 within the period of three months and as the case did not fall within the proviso to Sub-section (1) the right of the Tenancy Aval Karkun to grant relief against termination of tenancy ceased. It is however urged that even though under the provisions of Section 25(1) the Tenancy Aval Karkun may not have the power to enlarge the time originally fixed by him by his order dated 17th December 1958 he had the power to extend the time by virtue of the provisions contained in Section 29. That section provides as under:

A tenant...entitled to possession of any land under any of the provisions of this Act nay apply in relating for such possession to the Mam latdar....

(2) No landlord shall obtain possession of any land...held by a tenant except under an order of the Mamlatdar. For obtaining such order he shall make an application in the prescribed form and within a period of two years from the date on which the right to obtain possession of the land...is deemed to have accrued to him.

(3) On receipt of application under Sub-section (1) or (2) the Mamlatdar shall after holding an enquiry pass such order thereon as he deems fit.

5. It is urgrd that the words pass such order thereon as he deems fit confer an unlimited discretion upon the Mamlatdar to extend the time for payment of the rent in arrears and the costs of the proceedings and that in the exercise of such power the Mamlatdar had a right to relieve a person against the termination of his tenancy if payment has been made subsequent to the expiry of the period of three months referred to in Section 25 (1). In our view the words pass such order thereon as he deems fit do not empower the Mamlatdar to pass any order he liked however capricious the same may be. The order that is required to be passed by the Mamlatdar must be an order warranted by law. It does not empower the Mamlatdar to pass any order contrary to the provisions of law or in excess of the powers conferred upon him under the Act. The power of the Mamlatdar to grant relief against termination has been circumscribed by the provisions contained in Section 25 (1). The power conferred cannot be enlarged by a reference to the provisions contained in Section 29 (3). If the legislature had intended to confer an unlimited power upon the Mamlatdar to extend the time for making payment in order to relieve a person against termination of his tenancy then there was no necessity for the proviso to Section 25 (1). In our view once the tenancy had been duly terminated Under Section 11 the landlord acquired a right to be put in possession of the land. That right however was taken away when relief against termination of tenancy was granted by the Mamlatdar in exercise of the powers conferred under Section 25 (1). Except in cases referred to in the proviso to Section 25 (1) the Mamlatdar has no power to give relief against the due termination of tenancy, the Tenancy Aval Karkun in the present case was in error in considering that the fact of the payment made subsequent to the expiry of the period of three months mentioned in his order dated with December 1958 was sufficient for the purpose of enabling him not to take any further action whatsoever in respect of the application for possession made by the landlord. The order passed by the District Deputy Collector suffers from the same infirmity. The decision given by the Revenue Tribunal in this case proceeds upon an erroneous construction of some of the provisions of the Bombay Tenancy and Agricultural Lands Act 1948 The Tribunal was in error in taking the view that once a payment was made in respect of arrears of rent whatever may be the time when such payment was made the tenancy court had a right to consider whether it was a fit case to relieve the tenant from the effect of forfeiture. In so stating the Tribunal has overlooked the provisions contained in Section 25 (1) which alone gives the power and authority to the Mamlatdar to relieve a person against termination of his tenancy. The Tribunal was in error in considering that the provisions of Section 29 (3) enabled the Mamlatdar to give relief, against termination of tenancy in excess of the powers conferred under Section 25 (1).

6. We are supported in the conclusion to which we have arrived at by an unreported decision of a Division Bench of the Bombay High Court consisting of Chief Justice Chagla and Justice Dixit delivered on 6th July 1953 (Special Civil Application No. 790 of 1953). That decision was given at a time when Section 75 (1) provided for payment of arrears of rent and costs within fifteen days from the date of the order passed in connection therewith Instead of three months as is now provided by reason of the amendment made by Bombay Act XIII of 1950. In the course of his judgment Chief Justice Chagla has observed as follows:.the legislature has in Section 25 given relief to the tenant which relief the tenant can avail himself of on the conditions laid down in that section and the condition is that he must deposit the rent within 15 days of the order. If that condition is not compiled with the order for possession must be passed....If the tenant fails to make that tender there is no power in the court to extend the period or to give equitable relief.

7. We are in respectful agreement with the observation made in that case. The learned advocate for the petitioner very fairly drew our attention to a case reported in 61 Bom.L.R page 156 Sonajee Krishnajee Mujumdar V. Nathu Yadav Patil. That is a decision of a Division Bench of the Bombay High Court consisting of Mr. Justice Vyas and Mr. Justice Tambe. In that case the landlord had filed an application under Section 29 of the Act for recovery of possession of his land from the tenant on the ground that the rent of the premises was in arrears. The Extra Aval Karkun had passed an order in that case granting fifteen days time to the tenant to pay up the arrears and a direction was given that on the tenants failure to pay the arrears of rent within fifteen days from the date of the order possession of the hind would have to be handed over by the tenant to the landlord. The tenant failed to pay the arrears of rent and the Extra Aval Karkun made an order terminating the tenancy and directing the tenant to hand over possession of the land in question. Before the order for possession was passed the tenant had filed an appeal before the Prant Officer disputing the correctness of the finding regarding the arrears of rent. The Prant Officer came to the conclusion that the finding of the Extra Aval Karkun as regards the arrears of rent was correct. He however gave fifteen days time to the tenant to pay up the amount of the arrears from the date of his order. The landlord filed a revision application from that order to the Revenue Tribunal which was dismissed. The matter came up before the High Court on a petition being filed under Article 227 of the Constitution. The real point at issue in that case was whether the Prant Officer had a right to give fifteen days time to the tenant to pay up the arrears of rent as determined in appeal by the Prant Officer. In dealing with the matter it has been stated in the course of the judgment of Mr. Justice Vyas that it was not disputed that if the Extra Aval Karkun himself had got jurisdiction to enlarge the time originally granted by him then of course the Prant Officer being an appellate authority had also got the jurisdiction. It was further observed by him that it was not disputed that even in a case where the tenant had been found guilty of having committed three defaults in payment of rent it was within the jurisdiction of the Mamlatdar to give him time to pay the arrears of rent to the landlord. This concession at the has seems to have been made on a mis-reading of the provisions contained in Section 25(2). As we have already pointed out earlier Section 25(2) is intended to limit the power of the Mamlatdar to grant relief against termination of tenancy conferred under Section 25(1) so that such power did not extend to cases where the tenant had failed for any three years to pay the rent and the landlord had given the requisite intimation to the tenant as provided in Section 25(2). It has been observed by Mr. Justice Vyas in the course ol his judgment in that case as follows:

8. Mr. Samant contends that although the Mamlatdar has got an unfettered power to grant extention of time to the tenant even in a case where the tenant has committed three defaults in the payment of rent he has not got a similar jurisdiction where a tenant has committed one default or two defaults. Now this is a position which it is difficult to understand. If the intention of the Legislature in enacting the Act is as it obviously is that the Mamlatdar should have unfettered jurisdiction in the ratter of granting relief to the tenant upon the tenants paying up the arrears of rent even if he has committed three defaults it is not understood why the Legislature should have circumscribed that power of the Mamlatdar in a case where the tenant has committed only one default or two defaults in the payment of rent to the landlord.

9. The conclusion of the learned Judge should have been correct if the premise on which it is based had been correct. The premise being wrong the conclusion based thereon is equally wrong. In the course of his judgment the learned judge has relied upon the provisions of Section 29(3) as conferring an unfettered power upon the Mamlatdar to give relief in connection with forfeiture of tenancy. With respect we are unable to concur in the view taken by the learned Judge.

10. A Special Full Bench of this Court in a recent decision has laid down that a decision of the Bombay High Court given prior to 1st of May 1960 had the same binding force and effect as if the decision had been a decision of this High Court. In this case we have two decisions of the Bombay High Court one a decision of Chief Justice Chagla and Justice Dixit and the other a decision of Justice Vyas and justice Tambe. In the decision of the Special Full Bench it has been stated as under:

A Court is not bound by its own previous decisions that are in conflict with one another. If the new decision is in conflict with the old it is given per incuriam and is not binding on a later court.

Although the later court is not bound by the decision so given per incuriam this does not mean that it is bound by the first case. Perhaps in strict logic the first case should be binding since it should never have been departed from and was only departed from per incuriam. However this is not the rule. The rule is that where there are previous inconsistent decisions of its own the court is free to follow either. It can follow the earlier but equally if it thinks fit it can follow the later.

11. In this case we prefer the earlier decision ipf the Bombay High Court as in our view it is logical and sound in law.

In the result we direct the issue of a writ of certiorari quashing and setting aside the order of the Revenue Tribunal passed on 14th October 1960 The matter will be hereafter dealt with by the Revenue Tribunal in accordance with law. There will be no order as to costs.


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