1 jwp1308-90.sxw ast IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1308 OF 1990 Nivrutti Gangaram Pawar, since deceased, | through his heirs and legal representatives : | 1 Prakash Nivrutti Pawar, | son, aged about 33 yrs. Occ.Labourer. | 2 Smt. Hirabai Nivrutti Pawar, Aged 55, | W/o. Nivrutti Gangaram Pawar, Occ.Household.| 3 Yeshwant Nivrutti Pawar, | son, aged about 30 yrs. Occ.Labourer. | 4 Sudam Nivrutti Pawar, | son, aged about 22 yrs. Occ.Labourer. | 5 Sambhaji Nivrutti Pawar, | son, aged about 18 yrs. Occ.Labourer. | All R/o. Village Surali, Tal. Koregaon, | Dist. Satara. | | 6 Smt. Ratnamala Suresh Devkar, | Daughter, aged about 19 yrs. Occ.Household, | r/o. Village Kulakraj, Tal Man, | Dist. Satara. | 7 Smt. Indubai Govindrao Kada, | Daughter, aged about 40 yrs., | Occu. Household, R/o. Sakari Post. Bibvi, | Tal. Patan, Dist. Satara. | ... Petitioners. V/s. Dinkar Matuti Jadhav, aged about 50 years, | Occu.: Agriculturist, R/o. Dhaktwadi, | Post. Kuroli (Siddheshwar), Tal. Khatav, | Dist. Satara. | ... Respondent. --- Mr. R. V. Govilkar for the Petitioners. 2 jwp1308-90.sxw Mr. S.G. Karandikar i/by Dilip Bodake for Respondent. --- CORAM : G.S. GODBOLE, J. JUDGMENT DICTATED ON: 09th NOVEMBER, 2011 & 16th NOVEMBER, 2011. JUDGMENT PRONOUNCED ON: 13th DECEMBER, 2011. ORAL JUDGMENT : 1 Heard Mr. R.V. Govilkar, learned Advocate for the Petitioner Mr. S.G. Karandikar i/by Dilip Bodake, learned Advocate for the Respondents. 2. Proceedings for eviction commenced by a certificated landlord against an excluded tenant under the BT & AL Act, 1948 have remained pending after having travelled from the Mamlatdar to the SDO, to the MRT, to the High Court and to the Supreme Court and on remand the Petition is being decided. As is usual in proceedings between landlord and tenant under the BT & AL Act, 1948, the litigants are forced to run from one forum to another forum. Like the game of foot ball, the litigants travel from one forum to another forum. 3. The present Writ Petition filed under Article 227 of the Constitution of India seeks to challenge the Judgment and Order dated 3 jwp1308-90.sxw 07.02.1989 passed by the learned Member of the Maharashtra Revenue Tribunal (MRT) in Revision Application No. 85/1987 filed under the provisions of Section 76 of the Bombay Tenancy and Agricultural Lands Act,1948 (hereinafter referred to as “the Tenancy Act”, for short) whereby the Revision Application filed by the landlord -Petitioner was dismissed and the Judgment and Order dated 10th February, 1987 passed by the learned S.D.O. Phaltan in Tenancy Appeal No. 13/1985 thereby allowing the said Appeal and setting aside the Judgment and Order dated 11th February, 1985 passed by the Tenancy Awal Karkoon in Tenancy Case No. 53/1984 allowing the said Application for restoration of the possession under Section 33(B) read with Section 29 of the B.T.& A.L. Act, 1948. 4 As stated in para 1 above, this case has a checkered history and the parties to the litigation have undergone at least three remands (including last remand by the Supreme Court) and the litigation which was commenced in the year 1964 is being decided after a long gap of 47 years by this Court. It is, therefore, necessary to briefly note relevant statutory provisions and the facts. 5 The Bombay Tenancy and Agricultural Lands Act, 1948 is an 4 jwp1308-90.sxw Act to amend the law relating to the Tenancy of the Agricultural Lands. The Act was enacted on account of the fact that due to the disputes between landlords, land holders and tenants, the cultivation of the estate had seriously suffered. The Act was also enacted for the purpose of improving the economic and social conditions of peasants and for ensuring the full and efficient use of land for agricultural purpose and to regulate and impose restrictions on the transfer of agricultural land. Section 6 and 6A of the said Act deal with the “economic holding” and “irrigated land” and read thus : “6. Economic holding : (1) For the purpose of this Act, an economic holding shall be,-- (a) 16 acres of jirayat land, or (b) 8 acres of seasonally irrigated land, or paddy or rice land, or (c) 4 acres of perennially irrigated land. (2) Where the land held by a person consists of two or more kinds of land specified in sub-section (1), an economic holding shall be determined on the basis applicable to the ceiling area under sub-section (2) of section 5. [Explanation .-- In calculating an economic holding, warkas land shall be excluded] 5 jwp1308-90.sxw 6A. Irrigated land For the purposes of this Act, -- (a) irrigated land, whether perennially or seasonally irrigated, shall not include land irrigated by sources other than canals or bundharas within the meaning of the Bombay Irrigation Act, 1879, or any lift irrigation system constructed or maintained by the State Government; (b) seasonally irrigated land shall include alluvial land and land situated in the bed of a river and seasonally flooded by the water of such river.”. 6. Section 32 of the said Act provides that on the first day of April, 1957 (hereinafter referred as “the tillers day”) every tenant shall, [subject to the other provisions of this section and the provisions of] the next succeeding sections, be deemed to have purchased from his landlord, free of all encumbrances subsisting thereon on the said day, the land held by him as tenant if, the conditions enacted in the said Section are fulfilled. Section 31 confers a right on the landlord to terminate tenancy for personal cultivation and non-agricultural purpose. Section 29 provides for procedure of taking possession. Section 32G empowers the Tribunal (Mamlatdar) to issue notices and determine the price of the land which is required to be paid by the Tenant to the landlord after such tenant becomes a deemed purchaser. 6 jwp1308-90.sxw 7 For the purpose of this Petition, the provisions of Sections 33A and 33B sub-sections 1, 3, 5, 6 and 7 are relevant and the same read thus : “33A. Definitions: For the purpose of sections 33B and 33C,-- (i) “certificated landlord” means a person who holds a certificate issued to him under sub-section (4) of section 88C [but does not include a landlord within the meaning of Chapter III-AA holding a similar certificate]; and (ii) “excluded tenant” means a tenant of land to which sections 32 to 32R (both inclusive) do not apply by virtue of sub-section (1) of Section 88C. 33B. Special right of certificated landlord to terminate tenancy for personal cultivation. (1) Notwithstanding anything contained in sections 31, 31A, or 31B a certificated landlord may, after giving notice and making an application for possession as provided in sub-section (3), terminate the tenancy of an excluded tenant, if the landlord bona fide requires such land for cultivating it personally. (2) The notice may be given and an application made by a 7 jwp1308-90.sxw certificated landlord under sub-section (3), notwithstanding that in respect of the same tenancy an application of the landlord made in accordance with sub-section (2) of section 31 -- (i) is pending before the Mamlatdar or in appeal before the Collector, or in revision before the Maharashtra Revenue Tribunal, on the date of the commencement of the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1960 (hereinafter referred to in this section as “the commencement date”), or (ii) has been rejected by any authority before the commencement date. (3) The notice required to be given under sub-section (1) shall be in writing and shall be served on the tenant -- (a) before the first day of January, 1962 but (b) if an application under section 88C is undisposed of an pending on that date then within three months of his receiving such certificate. and a copy of the notice shall, at the same time, be sent to the Mamlatdar. An application for possession of the land shall be made thereafter under section 29 to the Mamlatdar before the 1st day of April, 1962, in the case falling under (a) and within three months of his receiving the certificate in the case falling under (b). (4) ............. 8 jwp1308-90.sxw (5) The right of a certificated landlord to terminate a tenancy under this section shall be subject to the following conditions, that is to say,- (a) If any land is left over from a tenancy in respect of which other land has already been resumed by the landlord or his predecessor-in-title, on the ground that other land was required for cultivating it personally under section 31 (or under any earlier law relating to tenancies then in force), the tenancy in respect of any land so left over shall not be liable to be terminated under sub-section (1). (b) The landlord shall be entitled to terminate a tenancy and take possession of the land leased but to the extent only of so such thereof as would result in both the landlord and the tenant holding thereafter in the total an equal area for personal cultivation – the area resumed or the area left with the tenant being a fragment, notwithstanding, and notwithstanding anything contained in section 31 of the Bombay Presentation of Fragmentation and Consolidation of Holdings Act, 1947. (c) The land leased stands in the Record of Rights (or in any public record or similar revenue record) on the 1st day of January, 1952 and thereafter until the commencement date in the name of the landlord himself, or of any of this ancestors (but not of any person from whom title is derived by assignment or Court sale or otherwise) or if the landlord is a member of a joint family, in the name of a member of such family. 9 jwp1308-90.sxw (6) The tenancy of any land left with the tenant after the termination of the tenancy under this section shall not at any time afterwards be liable to termination again on the ground that the landlord bona fide requires that land for personal cultivation. (7) If, in consequence of the termination of the tenancy under this section, any part of the land leased is left with the tenant, the rent shall be apportioned in the prescribed manner in proportion to the area of the land so left with the tenant. Section 33C(3) reads thus : (3) Where the certificated landlord, belonging to any of the categories specified in sub-section (4) of section 33B, has not given notice of termination of the tenancy of an excluded tenant in accordance with sub-section (3) of that section, or has given such notice but has not made an application thereafter under section 29 for possession as required by the said sub-section (3), such excluded tenant shall have the right to purchase the land held by him as tenant within one year from the expiry of the period specified in sub-section (4) of section 33B: Provided that where the tenancy is terminated and application for possession is made in accordance with the provisions of sub- section (4) of section 33B, the tenant shall, within one year from the date on which such application is finally decided, be entitled to purchase the land which he is entitled to retain in possession after such decision. 10 jwp1308-90.sxw 8 Section 33(C)(3) provides that if a certificated landlord fails to issue a notice of termination of the tenancy within the stipulated time or fails to file an Application for eviction under section 33(B) read with section 29 within the stipulated time, the excluded tenant becomes a deemed purchaser. 9 Sections 88 (C) and 88 (D) read thus : Section 88C. : Exemption from certain provisions to lands leased by persons with the annual income not exceeding Rs. 1,500 (1) [Save as otherwise provided by sections 33-A,33-B and 33-C, nothing in sections] 32 to 32-R (both inclusive) shall 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.1,500 : Provided that the provisions of this sub-section shall not apply to any person who holds such land as a permanent tenant or who has leased such land on permanent tenancy to any other person. [(2) Every person eligible to the exemption provided in sub-section (1) shall make an application in the prescribed 11 jwp1308-90.sxw 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. (3) On receipt of such application, the Mamlatdar shall, after giving notice to the tenant or tenants of the land, hold inquiry and decide whether the land leased by such person is exempt under sub-section (1) from the provisions of section 32 to 32-R. (4) If the Mamlatdar decides that the land is so exempt, he shall issue a certificate in the prescribed form to such person. (5) The decision of the Mamlatdar under sub-section (3), subject to appeal to the Collector, shall be final.] 88D. Power of Government to withdraw exemption. (1) Notwithstanding anything contained in sections 88, 88A, 88B and 88C, if the State Government is satisfied,- (i) in the case of an area referred to clause (b) of section 88, that the chances of non-agricultural or industrial development are remote,, or that after the eviction of tenants from any land in such area, the land has not been used for a non-agricultural or industrial purposes. (ii) that the lands transferred by a Bhoodan Samiti are not cultivated personally by the transferee or are alienated by them. 12 jwp1308-90.sxw (iii) in the case of lands referred to in clause (b) of section 88B, that the trust is unable to look after the property or has mismanaged it or that there are disputes between the trust and the tenants, and (iv) in the case of lands referred to in section 88C, that the annual income of the person has exceeded Rs.1,500 or that the total holding of such person exceeds as economic holding. the State Government may, by order published in the prescribed manner, direct that with effect from such date as may be specified in the order such land or area, as the case may be, shall cease to be exempted from all or any of the provisions of this Act from which it was exempted under any of the sections aforesaid, and any certificate granted under section 88B or 88C, as the case may be, shall stand revoked. (2) Where any such land or area ceases to be so exempted then in the case of a tenancy subsisting on the date specified in the order issued under sub-section (1), the landlord shall be entitled to terminate such tenancy under section 31, within one year from such date and the tenant, unless his tenancy is so terminated, shall have a right to purchase the land within one year from the expiry of the period during which such landlord is entitled to terminate the tenancy. The provisions of sections 31 to 31D (both inclusive) and sections 32 to 32R (both inclusive) shall, so far as may be applicable, apply to such termination of tenancy 13 jwp1308-90.sxw and to the right of the tenant to purchase the land.] 10 Brief resume of facts which are somewhat complicated is necessary for understanding the controversy. (a) It is not disputed that late Nivrutti G. Pawar was the landlord and the Respondent Dinkar Maruti Jadhav was the tenant in respect of the land bearing survey No. 619/2 admeasuring 1 acre 5 gunthas and survey No. 619/3 admeasuring 1 acre 4 gunthas situated at village Karadi, Taluka Khatau, District Satara. It is also not in dispute that including the said two suit lands which totally admeasure 2 acre 9 gunthas, the total holding of Respondent is approximately 15 acres. It is also not disputed before me that the total holding of the Petitioners (original landlord and his heirs) excluding the aforesaid portion of 2 acres 9 gunthas is only 1 acre 5 gunthas. Thus, this is a situation where instead of having a tenant having less land under cultivation against a landlord having more land under cultivation, the land available with the landlord is only 1 acre 5 gunthas whereas the land available with the Respondent tenant is 15 acres. b) On 27/1/1961 an order was passed by the concerned Mamalatdar exercising jurisdiction under Section 88C of the Act in favour of Nivrutti Pawar. Thus, the satisfaction of the two conditions contemplated by 14 jwp1308-90.sxw Section 88C namely, having annual income less than Rs. 1500/- and land of deceased landlord not exceeding an economic holding were duly fulfilled by the said late Nivrutti Pawar. In fact there was no challenge to the said certificate and the same has admittedly attained finality, nor were any proceedings ever initiated under Section 88 D of the Act. Thus, late Nivrutti Pawar is a certificated landlord and the Respondent was an excluded tenant within the meaning of Section 88C and 33 B respectively. The certificate under Section 88C attained finality and within the statutory prescribed period of 3 months after actually getting the Certificate under Section 88C Nivruti issued notice of termination of tenancy to the Respondent on 24/8/1964. Notice was duly served. On 21/9/1964 Nivrutti filed an application for eviction of Respondent under the provisions of Section 33(B) r/w. Section 29 of the Act which which was numbered as Tenancy Case No. 12 of 1964. The case was contested on merits. c) After being satisfied that Nivrutti fulfilled the requisite conditions under Section 33 B namely that he had a bonafide need for cultivation and that even after passing an order of eviction, the total holding of Nivrutti will not exceed the total holding of the Respondent, Mamalatdar (Tenancy Aval Karkun), Phaltan passed an order of eviction on 30/6/1966. d) Aggrieved by this order, the Respondent filed Tenancy Appeal No. 27 of 1966 before the Special Deputy Collector, Tenancy Appeal, Phaltan 15 jwp1308-90.sxw who allowed the same on 10th February, 1968. Aggrieved by this order, Nivrutti filed a Revision Application before the MRT under Section 76 of the Act which was also dismissed on 9th December, 1976. Aggrieved by those orders, passed by MRT and Special Deputy Collector, Tenancy Appeal, Phaltan, Nivrutti filed a Writ Application under the Constitution of India being Special Civil Application No. 969 of 1977 in this Court which was allowed by Order dated 27/12/1980 by learned Single Judge (M.P. Kanade, J as he then was). It was held that the notice was duly served and that the termination of the tenancy was duly proved. By setting aside the orders under challenge, the Tenancy Appeal No. 27 of 1966 was revived and the same was remanded back to the Special Deputy Collector (Tenancy Appeals), Phaltan to dispose of the Appeal in accordance with law within 3 months. e) After the remand, by order dated 31/3/1982 the said Appeal was again allowed. During the pendency of the Appeal No. 27 of 1966, after remand, Nivrutti died on 4/1/1981 and the present Petitioners were brought on record as heirs of Nivrutti. Aggrieved by this order, heirs of Nivrutti filed Revision Application No. 3/82 before the MRT. f) By Judgment and Order dated 30 November, 1983, the learned Member of the MRT, allowed the Revision Application No. 3/82 and remanded the case back to the Tahasildar. It is necessary to note that during 16 jwp1308-90.sxw these proceedings, the Respondent tenant sought to agitate the question regarding legality and validity of Certificate under Section 88C. However, that challenge was conclusively repelled by the MRT. Thus, original order which was in favour of Nivrutti was also set aside. g) After such remand, the said Tenancy Case No. 12/1964 was renumbered as Tenancy Case No. 53 of 1984 and the Tenancy Aval Karkun, Khatav after recording evidence of the parties, allowed the Application under Section 33B and possession was directed to be given to the present Petitioners. A finding of fact was recorded that the Petitioners had no other source of income and that a very small area of land is in his possession. This order was challenged by the Respondent by filing Tenancy Appeal No. 13 of 1985. h) By order dated 10th February, 1987, SDO, Phaltan allowed the said Tenancy Appeal No. 13 of 1985. The Appeal was allowed essentially on the ground that from an admission in the cross-examination of the Petitioner Prakash it was clear that his income was around Rs. 200 to 300 per month. Thus, prima facie, on a ground which will be relevant for an enquiry under Section 88C but may not be relevant for an enquiry under section 33B, the original Application was dismissed and the Appeal was allowed. Aggrieved by this order one of the present Petitioners Prakash Nivrutti Pawar filed Tenancy Revision Application No. 85 of 1987 before 17 jwp1308-90.sxw the MRT. By Judgment and Order dated 7/2/1989 the learned Member of MRT, Pune dismissed the Revision Application essentially on 3 grounds namely, that the Petitioner Prakash has admitted in his oral evidence that he gets Rs. 200 to 300 per month; that his witness has admitted that Prakash gets income of Rs. 10 to 15 per day out of his work of hair cutting and that his annual income was Rs. 4000/-. The other ground was to the effect that the Petitioner Prakash had no agricultural implements and that he is residing at the place around 32 to 35 miles away from the suit land. The third reason was that apart from the Petitioner Prakash, there were other heirs of deceased Nivrutti and they have not joined in demanding possession and hence one of the landlord can only ask for possession in respect of his share only. The learned Member ultimately held that the Petitioner Prakash has failed to prove his bonafides under section 33B(5) of the Act. i) Aggrieved by these orders of the learned SDO and Member, MRT, present Writ Petition was filed on 21st July, 1989 and was thereafter numbered as Writ Petition No. 1308 of 1990. Thereafter the learned Single Judge of this Court (A.M. Khanwilkar, J) heard the Writ Petition and by Judgment and Order dated 11/9/2003, the Writ Petition was allowed. The orders impugned were quashed and set aside and the Order of eviction was restored. 18 jwp1308-90.sxw j) The Respondent herein filed a Petition for Special Leave to Appeal (Civil) No. 7361 of 2004. The learned Single Judge of this Court (A.M. Khanwilkar, J) had relied upon the Judgment of the Supreme Court in the case of Moreshwar Balkrishna Pandare & ors. vs. Vithal Vyanku Chavan & ors., 2001(5) SCC 5511 and since the Hon’ble Judges of the Division Bench of the Supreme Court doubted the correctness of some of the observations made in Moreshwar Pandare (supra) the case was referred to a larger bench. The said Appeal filed by the Respondent was numbered as Civil Appeal No. 2564 of 2005. k) By Judgment and Order dated 18/1/2008, the Bench of the Hon’ble 3 Judges of the Supreme Court allowed the Appeal partly by giving a limited clarification of the Judgment in the case of Moreshwar Pandare (supra) and the matter was remitted to this Court to hear the Writ Petition afresh. This Judgment is Dinkar Maruti Jadhav v/s. Nivrutti Gangaram Pawar (dead) by Lrs. and ors. and is reported in (2008) 5 SCC 4892. It is in these circumstances that the present Petition is being heard. l) Before proceeding further I deem it proper to reproduce the Judgment of the Supreme Court which reads thus : 1 2001(5) SCC 551 2 (2008) 5 SCC 489 19 jwp1308-90.sxw 1. A two judge Bench doubted the correctness of some of the observations made in Moreshwar Balkrishna Pandare & Ors. v. Vithal Vyanku Chavan and Ors. [2001(5) SCC 551] and therefore referred the matter to a larger Bench and that