( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 484 OF 2002 Baburao s/o Bapurao Sukale Deceased, through his L.Rs. i. Pandurang s/o Baburao Sukale, R/o Kanherwadi, Tq. Kallam, District Osmanabad. ii. Vithal s/o Baburao Sukale, R/o as above. iii. Samabai w/o Trimbak Ganpat, R/o Indpur, Tq. Bhoom, District Osmanabad iv. Ababai w/o Sarjerao Thorbole, R/o Gojwada, Tq. Kallam, District Osmanabad. v. Drupadabai w/o Chandrakant Chekare, R/o Hasegaon, Tq. Kallam, District Osmanabad. PETITIONERS VERSUS 1. Rajendra s/o Basweshwar Appa Mitkari, R/o Kanherwadi, Tq. Kallam, District Osmanabad. 2. Vijaykumar s/o Basweshwar Appa Mitkari, R/o as above. 3. Jayant s/o Basweshwar Appa Mitkari, R/o as above. RESPONDENTS ..... Mr. V.D. Salunke, advocate for the petitioners. Mr. P.G. Godhamgaonkar, advocate for respondents No. 1 to 3. ..... ( 2 ) [CORAM : V.R. KINGAONKAR, J.] [DATE OF JUDGEMENT RESERVED : 15th June, 2009] [DATE OF JUDGEMENT PRONOUNCED : 19th June, 2009] JUDGEMENT : 1. The petitioners, who are legal representatives of deceased tenant, seek to challenge judgements and orders rendered by learned Tahsildar, Kallam, learned Deputy Collector, Osmanabad in appeal and by the Maharashtra Revenue Tribunal, Aurangabad in revision petition No. 15/B/2001/O. The three (3) concurrent judgements and orders rendered by the revenue authorities in proceedings under section 28 (2), 19 (2) and 32 (2) of the Hyderabaed Tenancy and Agricultural Lands Act, 1950 are impugned by the petitioners mainly on the ground that they are the statutory owners of the land in question and as such, there was no question of termination of their tenancy rights. 2. The dispute relates to northern triangular portion of land survey No. 203/Gat No. 364, admeasuring ( 3 ) 8 acres, situated at village Kanherwadi, Taluka Kallam, District Osmanabad. Originally, one Basweshwar Appa Rangnath Appa Mitkari was landlord of the entire survey No. 203 (Gat No. 364). The predecessor of the petitioners, namely, deceased Baburao Sukale was tenant of the land in question. The father of deceased landlord Basweshwar had initiated proceedings under section 32 (2) read with section 44 of the Hyderabad Tenancy and Agricultural Lands Act, 1950 (for short, “the HT&AL Act”) against deceased Baburao. The disputed land was carved out as per order rendered in the said proceedings and was given in possession of said Baburao. The remaining land, however, remained with the applicant Rangnath Appa Bhimashankar Appa i.e. the then landlord. 3. The landlord did not claim the land in question from deceased tenant – Baburao during his lifetime. After death of the successor landlord i.e. Basweshwar Appa Mitkari, his three (3) sons succeeded to the property. They claimed ownership rights on basis of a will-deed executed by the landlord in their favour. They asserted that they were entitled to claim rent from ( 4 ) the tenant. They issued three (3) demand notices dated 05-10-1981, 16-08-1982 and 01-11-1983 and called upon the deceased tenant (Baburao) to pay the rent. It was alleged by them that he had committed default in payment of the rent. Due to failure of tenant – Baburao to pay the rent consecutively for the three (3) years, the respondents/landlords instituted proceedings under section 19 (2), 28 (2) and 32 (2) of the HT&AL Act against the petitioners. The learned Additional Tahsildar, by judgement and order dated 03-08-1999, in file No. 1985/TNC/CR/28(2)/32(2)/181, allowed the application seeking leave to terminate the tenancy of the petitioners owing to non-payment of the rent for period of three (3) years and directed that the land in question shall be restored to the possession of the respondents. The petitioners preferred appeal before the Deputy Collector (L.R.). The appeal bearing No. 2000/TNC/A-24 came to be dismissed on 12-01-2001. Being dissatisfied with the concurrent judgement of the appellate authority, the petitioners preferred revision petition No. 15/B/2001 which came to be dismissed. Hence, the petition. ( 5 ) 4. Heard learned counsel for the parties. 5. Before I proceed to consider the rival contentions, let it be noted that the case of the respondents before the Tenancy Tribunal was that the petitioners were in arrears of rent at rate of Rs. 127.50 per year and there were three (3) successive defaults committed by the petitioners while making the payment. All the three (3) authorities have held that notices under section 19 (2) of the HT&AL Act were issued by the respondents on 05-10-1981, 16-08-1982 and 01-11-1983 through their advocate. The service of the notices on the petitioners was not challenged by them. The petitioners claimed to be protected tenants under section 38-E of the HT&AL Act. They did not produce, however, the sale certificate issued by the competent authority. They did not produce any record to show that they had paid the purchase price. The petitioners seek to rely on revenue entries appearing from the `khasra patrak’ for 1954-55, extract of final tenancy register and mutation entry No. 104 dated 28-11-1980. ( 6 ) 6. Mr. Salunke V.D. would submit that there was no legal obligation to pay any rent because the petitioners acquired statutory ownership due to declaration of ownership under section 38-E in favour of deceased Baburao. He would submit that the revenue entries appearing from khasra patrak, the final tenancy register and mutation entry No. 104 sufficiently proved the contentions of the petitioners about their statutory ownership. He would submit that the tenancy rights could not be brought to an end due to non-payment of the rent when the petitioners were not required to pay such rent in as much as the landlord – tenant relationship was no more in existence. He would further submit that the Tahsildar was required to set out the amount due towards the petitioners before termination of the tenancy and was required to call upon them to deposit such amount. It is argued that failure of the Tahsildar to determine the amount payable to the respondents and to give opportunity to the petitioners to deposit such amount as required under section 28 (1) of the HT&AL Act has rendered the judgements and orders of all the three ( 7 ) (3) authorities patently illegal. Hence, he urged to allow the petition. Per contra, Mr. P.G. Godhamgaonkar supports the impugned judgements and orders. 7. At the threshold, it may be mentioned that the three (3) Tribunals have rendered concurrent finding of fact regarding due service of the notice under section 19 (2) of the HT&AL Act on the deceased petitioner (tenant). The notices dated 05-10-1981, 16-08-1982 and 01-11-1983 were issued through the advocate of the deceased landlord. By giving such notices, the tenancy of deceased Baburao (tenant) was terminated on account of defaults committed by him. It is found by the three (3) Tribunals below that the petitioners could not produce ownership certificate issued under section 38-E of the HT&AL Act. In “Gunabai w/o Sahebrao Raithurkar v. Kumari Ujwala Sujansingh Jadhavrao N/J Laxmibai S. Jadhav and others” 1980 Bom.C.R. 93, it has been held that the concurrent findings of fact cannot be disturbed in the exercise of powers under Article 227 of the Constitution. The requirement of section 28 (1) of the HT&AL Act is that when an application is filed by the ( 8 ) land-holder to eject the tenant, the Tahsildar is required to call upon the tenant to tender to the land holder the rent in arrears within ninety (90) days from the date of the order. However, proviso appended to sub-section (1) of section 28 is important for the present purpose. The proviso reads as follows : “Provided that 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 within the period specified in sub-clause (i) of clause (a) of Sub-section (2) of section 19 and the land holder has given intimation to the tenant of the default within a period of six months of such default.” A plain reading of section 19 (2) (a) (i) of the HT&AL Act would make it manifest that tenancy can be terminated if the tenant has failed to pay in any year, within fifteen days from the date fixed under the Land Revenue Act, for the payment of the last instalment of land revenue due for the land concerned in that year; the rent of such land for that year. The default would ( 9 ) be deemed to have been committed if the payment of rent for the agricultural year is not paid within fifteen (15) days after end of the agricultural year. The agricultural year, as per provisions of the Maharashtra Land Revenue Code, would come to an end on 1st April of each calender year as provided in Notification No. UNF. 1367-Rev. Dated 11-08-1967. The stipulated period is of fifteen (15) days thereafter. Thus, the tenant is required to pay the rent on or before 30th April of each calender year as provided under section 19 (2) (a) (i). The tenancy, however, cannot be terminated unless the land holder gives six months’ notice in writing indicating his decision to terminate the tenancy. The notice of termination should set out the grounds available for such termination. 8. In “Vinayakrao s/o Wamanrao Doiphode v. Kishanrao Ganpatrao Tarodekar” 1983 Mah.L.R. 354, this Court observed that when the tenant was in arrears of rent for more than three years, coupled with the clear proof of prior intimation, the landlord was entitled to ( 10 ) get back possession of the tenanted land. This Court in “Shaniwar Dhondu Dharnekar v. Prabhavati Chandrakant Patange” 1979 Mh.L.J. 836, held that composite intimation and notice of termination of tenancy would be valid. Thus, it is not necessary that intimation about the default should be separately given and there should be separate notice about termination of the tenancy. 9. In the fact situation of the present case, it need not be reiterated that the petitioners failed to prove the main contention regarding absence of the landlord – tenant relationship between them and deceased Basweshwar Appa. Their contention that deceased Baburao (tenant) became statutory owner on basis of sale certificate issued under section 38-E of the HT&AL Act is without foundation. There are three (3) defaults committed by the petitioners in payment of the rent and the notices were served as required under proviso appended to section 28 (1). It is explicit, therefore, that the tenancy rights of the petitioners were terminated on account of the default. ( 11 ) 10. Mr. V.D. Salunke seeks to rely on certain observatins in “Johrabai v. Arjuna and others” 1980 Mh.L.J. 58. The Apex Court held that where the application for possession was made by the landlord long after the amendment came into force, the right to institute the proceedings had not accrued to him before the amendment in as much as the notice terminating the tenancy was issued after the proviso to section 28 (1) was amended. It is held that mere right to take advantage of the provision of the Act would not be equivalent to an accrual of the right. With due respect, these observations are inapplicable to the fact situation of the present case. The notices have been given by the landlord in the present case after the amendment of the Hyderabad Tenancy and Agricultural Lands (Amendment) Act, 1960 and the right has accrued after the three (3) defaults pertaining to the subsequent years i.e. In 1981, 1982 and 1983. These notices were given within period of six (6) months after the alleged defaults and are, therefore, covered by ( 12 ) section 28 (1) of the HT&AL Act. 11. Mr. Salunke invited my attention to certain observations in “Uttam Baburao Matre and others v. Satyanarayan Ramjeevan Malpani” 1990 (2) Mah. LR 494. In the given case, it was found that the intimations were not given within six (6) months of each default, but were given subsequently, in contravention of the provisions of section 28 (1). The facts of the given case are on different footings and, hence, the ratio of the said case is not applicable to the present case. In “Samba Motiram Alone v. Tukaram Mahadeo Chandakar” 1980 Mh.L.J. 213, it has been laid down that intimation given in the notice that on failure to pay, legal proceedings would be taken, could not be regarded as due notice for the purpose of section 28 (1) of the HT&AL Act. It has been held that it is the duty of the Tahsildar to decide whether the tenancy was properly terminated notwithstanding absence of plea by the tenant about validity of the notice. The learned Single Judge further held that validity of notice of termination ( 13 ) would depend upon proper construction of the notice and not upon the particular manner in which the landlord chooses to interpret the recitals. The reliance on dictum in case of “Samba Motiram Alone” (supra) is rather misplaced. In the given case, the notice did not specify consequence of failure to pay the rent. In other words, there was no clear termination of tenancy rights. In the present case, however, the landlord gave clear notices and terminated the tenancy rights of deceased Baburao (tenant) through whom the petitioners are claiming their rights. 12. Considering the legal position and the concurrent findings enumerated hereinabove, I do not find any substance in the petition. 13. In the result, the writ petition is dismissed. No costs. [ V.R. KINGAONKAR ] JUDGE NPJ/WP484-02