1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2546 OF 1992 Dagadu Maruti Kumbhar .. Petitioner Vs. Smt. Gojabai Nana Varute Deceased- through her Heirs- Rajaram Nana Varute and others .. Respondents Mr. D. S. Sawant with Mr. R. P. Walvekar for the petitioner. Mr. P. D. Dalvi for the Respondents 2 to 7 CORAM: SHRI R. Y. GANOO, J. DATED : 8 th FEBRUARY, 2010 P.C. 1. Heard learned Advocate Mr. Sawant appearing on behalf of the petitioner and learned Advocate Shri Dalvi for the respondent Nos. 2 to 7. 2. The petitioner before this Court is a landlord in 2 respect of the land bearing Revenue Survey No. 927/2, more particularly described in the order dated 29 th April, 1987, passed by the Tenancy Aval Karkun, Karvir in Tenancy Case No. 4 of 1986( Hereinafter referred to as said land). According to the petitioner, Shri Nana Sakharam Varute (original opponent), was the tenant in respect of the said land and he was in arrears of rent for the period 1973-74 to 1984-85. On account of this, the petitioner filed an application before the Tenancy Awal Karkun, Karvir for recovery of possession in accordance with the provisions of Section 14 and Section 29(2) of the Bombay Tenancy of Agricultural Land Act, 1948 (hereinafter referred to as ‘the said Act’). 3. It is noticed that the proceedings in the nature of fixation of reasonable rent were conducted before the Tenancy Awal Karkun, Karvir being Tenancy Case No. 69 of 1973, between the petitioner and the original tenant Nana. In the said proceedings the reasonable rent came to be fixed @ Rs. 1097.75 vide order dated 9 th April, 1985. Despite this order of fixation of standard rent at Rs.1097.75, treated that the arrears for the aforesaid period 1973-74 to 1984-85 were @ 3 Rs.700/- per year, being the contractual rent. It was the positive case of the petitioner that the tenant fell in arrears @ Rs.700/- per year for the period 1973-74 to 1984-85. After the order dated 29.4.1987 passed by the Tenancy Awal Karkun, the original tenant expired and his heirs were brought on record who have attended the subsequent proceedings. 4. In the application for recovery of possession, it was averred that the arrears for the aforesaid period were demanded orally from time to time and ultimately by notice dated 30 th July, 1995, the arrears of rent were demanded. It is also seen that the said notice dated 30 th July, 1985 was replied by the original tenant and that is how the dispute was raised as regards the payment of the rent by the tenant. The petitioner terminated the tenancy by notice dated 29 th August, 1985 and proceeded to file the said application for recovery of possession on the ground that the tenant has fallen in arrears. Said proceedings were conducted by the Tenancy Awal Karkun, Karvir and by the judgement dated 29 th April, 1987, he came to the conclusion that the tenant was in arrears Rs. 7000/- @ Rs.700/- per year for the period of 10 years and that 4 the tenant should pay the said arrears of rent within the period of three months from the date of the order dated 29 th April, 1987. He also ordered that upon failure to pay the said arrears, the possession should be restored to the applicant- landlord. 5. Being aggrieved by this order dated 29 th April, 1987, the petitioner-landlord filed the Tenancy Appeal No. 78 of 1987 before the Sub-divisional Officer, Karvir Subdivision, Kolhapur. The Sub-divisional Officer allowed the appeal and the order of Tenancy Awal Karkoon was set aside vide his order dated 25 th August, 1990. The tenants filed revision before the Maharashtra Revenue Tribunal, Bombay being MRT-KP-107/90 (TEC.B.107/90). The learned President of the Maharashtra Revenue Tribunal Bombay by his order dated 30 th January, 1992 allowed the revision and passed the following order. “Revision application is allowed. Impugned order dated 25 th August, 1990 is hereby set aside and the order dated 29 th April, 1987 is confirmed with a direction that the opponent landlords would be entitled to get the difference of arrears of rent for the period in question after due calculation. No order as to costs.” 5 6. In view of order passed by Maharashtra Revenue Tribunal, as above, the original order passed by the Tenancy Awal Karkun dated 29 th April, 1987 came to be restored. The tenants were granted time to make payment of the arrears of rent. Both the parties have conceded before this Court that the arrears have been paid as set out in the order dated 29 th April, 1987. 7. Before this Court, learned Advocate Shri Sawant appearing on behalf of the petitioner-landlord contended that the authorities below failed to appreciate the facts involved in the matter and the learned Tenancy Awal Karkun ought to have given the benefit of provisions of Sub section 2 of Section 25 of the said Act to the petitioner. According to the learned Advocate Mr. Sawant, the tenant was asked to pay arrears of rent by making repeated oral demands as well as by notice dated 30 th July, 1985, and the tenant has failed to pay the arrears and, therefore, the Tenancy Awal Karkun should not have passed the order under Section 25(1) of the said Act. According to the learned Advocate Mr. Sawant, in the facts 6 and circumstances of the case and keeping in view the text of the application for eviction, the tenant was not entitled to the benefit of Section 25(1) of the said Act and to that extent, the order dated 29 th April, 1987 which was confirmed by the learned President of the Maharashtra Revenue Tribunal, Bombay by his order dated 30 th April, 1992, is wrong. According to Mr. Sawant, the petitioner should get the benefit of provisions of section 25(2) of the said Act and the order accordingly ought to have been passed. 8. Learned Advocate Mr. Dalvi appearing on behalf of the respondents-tenants contended that in order to have the benefit of the provisions of Section 25(2) of the said Act, it was obligatory upon the landlord to give notices as set out in Section 25(2) of the Said Act. According to learned Advocate Mr. Dalvi, the word “intimation” appearing in Section 25(2) of the said Act would mean written notice asking for the rent for a particular period. According to learned Advocate Mr. Dalvi, case put up by the landlord that orally the arrears of rent were demanded should not be accepted as a the mode available and understood within the meaning of Section 25(2) of the said 7 Act. Learned Advocate Shri Dalvi submitted that in the application filed for eviction, except stating that the written notice dated 30 th July, 1985 was sent there is no material placed before the Tenancy Awal Karkun to show that intimation i.e. written notice or written demand was made to the tenants asking them to pay rent from time to time. Learned Advocate Mr. Dalvi had submitted that the learned President of the Maharashtra Revenue Tribunal has taken correct view of the matter and as the tenants have already complied with the order regarding payment of arrears, there was no question of passing any order of eviction against the tenants. 9. I have heard learned Advocate of both the sides and in my view, the submissions advanced by learned Advocate Mr. Dalvi will have to be accepted. The provisions of Section 25(2) of the said Act provides a situation where the Court can pass an order of eviction provided requirements therein as regards intimation to tenant are complied with. 10. Provisions of Section 25(2) of the said Act enables the landlord to take possession of the land from the tenant if 8 arrears of rent are not paid though demanded from time to time. The purpose of enacting Sub Section (2) of Section 25 of the said Act seems to be that, if the landlord is vigilant, and has given intimation to the tenant about the default committed by the tenant, from time to time, then the tenant is not entitled to the benefit which is conferred upon the defaulting tenant under Sub Section (1) Section 25 of the said Act. The provisions of Sub Section (2) of Section 25 would protect the interest of the landlord if the tenant is made aware of his persistent default. Then a such tenant would not be able to avoid eviction merely by paying arrears of rent. Section 25(1) and Section 25(2) of the said Act if read together would go to indicate that persistent defaulter is not entitled to say that he can pay the arrears and avoid eviction. The provisions of Section 25 (2) are as follows: “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 the rent and land lord has given intimation to the tenant to that effect within a period of three months on his default.” 11. Reading of this section would clearly indicate that it 9 is expected of the landlord to give intimation to the tenant about the default committed by him. In my view, the word “intimation” will have to be interpreted to mean notice and, therefore, it would mean that it is expected of a landlord to give notice in writing to the tenant placing on record the period for which the rent is in arrears and consequent demand for the said rent. 12. In the present case, the landlord has admitted in his application that he had orally demanded arrears from time to time and written communication was made only on 30 th July, 1985 i.e. after elapse of 10 years. In my view, this is not a case where the Court should accept the stand of the landlord and observe that the landlord is entitled to possession straightway as contemplated in Section 25(2) of the said Act. In my view, since the provisions of Section 25(2) of the said Act were not complied with, the tenant was entitled to better treatment as understood under Section 25(1) of the said Act. The tenancy Awal Karkun, in my view, has taken a right decision to allow the tenant to pay off the arrears of rent and and avoid eviction. It is pertinent to note that the Maharashtra Revenue Tribunal has concurred with the view taken by the Tenancy Awal 10 Karkun and to that extent the order passed by the Tenancy Awal Karkun stands confirmed. 13. In view of the aforesaid observations, the petition fails and the same is required to be to be dismissed. The petition is accordingly dismissed with no order as to costs. ( R. Y. GANOO, J. ) jpc/-