Ganpati
Bayaji Patil Vs. Shridhar Babaji Vibhute [D] by Lrs. & Ors [1996] INSC 1000
(22 August 1996)
Punchhi,
M.M. Punchhi, M.M. Manohar Sujata V. (J)
CITATION:
1996 SCALE (6)191
ACT:
HEAD NOTE:
O R D
E R
The
appellant is the tenant of the land in dispute which is situated in Taluka Walwa,
district Sangli in the State of Maharashtra. On the Tillers' Day, i.e., 1.4.1957, the appellant was the
tenant in occupation of the lands in question. The landlord as of 1.4.1957 was
a joint family of which the original respondent was a member. On 31.3.1958 a
partition took place of the joint family and the lands in question came to the
share of the original respondent.
Thereafter,
the original respondent applied for a certificate under Section 88C of the
Bombay Tenancy and Agricultural Lands Act, 1948 [the Act]. It is the case of
the appellant that no notice was given to him of this application under Section
88C nor was he aware of a certificate being granted under Section 88C in favour
of the original respondent, on 14.4.1959.
In
1962, the original respondent made an application under Sec. 33B for obtaining
possession of the land. In these proceedings under Sec. 33B, the appellant
challenged the bona fide requirements of the original respondent for
cultivating these lands personally. During the pendency of these proceedings
the original respondent died and his heirs were brought on record; as a result
a fresh enquiry was required to be made about the bona fide requirements of the
heirs of the respondent under Sec. 33B. Before the Maharashtra Revenue
Tribunal, the appellant contended that there was no valid certificate under
Sec. 88C on the basis of which the respondent(s) could make an application
under Sec. 33B because, on the relevant date, namely, 1 4.1957, the original
respondent was not the landlord of the land in question. Only the joint family
which was the landlord on the relevant date, could have applied for a
certificate under Sec. 88C. In the absence of any such application by the joint
family, the appellant's rights as on 1.4.1957 under Section 32-G cannot be now
defeated by a subsequent certificate under Section 88C- obtained by a person
who was only a member of the joint family on the relevant date and who had
subsequently acquired these lands under a partition which took place after the
Tillers' Day. The Revenue Tribunal has upheld this contention. The High Court,
however, in a writ petition filed by the respondents findings of the Revenue
Tribunal, held that the certificate under sec. 88C cannot be examined. On the
basis of this certificate, the respondents are entitled to succeed in their
application under Sec. 33-B in the light of the findings given by the revenue
authorities in their favour.
The
High Court was not right in coming to this conclusion. Under the scheme of the
Act, a tenant becomes the deemed purchaser of the land on 1.4.1957. Under
Sec.88C, however, an exemption is granted to the lands of a small landlord
whose land does not exceed an economic holding as defined under the Act and
whose total annual income does not exceed Rs. 1,500/-. The landlord must fulfil
these criteria on the date [1.4.1957] when the tenant would have become the
deemed owner of the land, under Section 32-G in order to save his lands from
the operation of Section 32- G. Any subsequent change in ownership will not
confer any right on the subsequent "owner" to get the benefit of
Sec.88C. Unless the person who is the landlord on 1.4.1957 makes an application
under Sec. 88C, the rights of a tenant cannot be defeated. [See in this
connection Chanchalben v. Gujarat Revenue Tribunal 12 Gujarat Law Reporter
428].
It is
contended on behalf of the respondents that since the original respondent was a
member of the joint family on 1.4.1957, he was entitled to apply for a
certificate under Sec. 88C. The requirements of Sec.88C, however, have to be
complied with by the joint family looking to the holding of all the members of
the joint family as also the income of the joint family, because it was the
joint family which was the owner of the land on 1.4.1957. [See in this
connection Jainabai v. Bakeji Bhan 63 Bom. Law Reporter 653. The Revenue
Tribunal was, therefore, right in coming to the conclusion that the original
respondent who obtained these lands on partition of the joint family on 31.3.1958
was not entitled to apply for a certificate under Sec. 88C. The rights of the
appellant could not be defeated by such a certificate.
It is
also submitted by the respondents that in proceedings under Sec. 33B, there
cannot be any collateral challenge to a certificate under Sec. 88C. The
respondents have relied upon a decision of this Court in Krishnabai Ghule v. Nivruthe
Ramchandra 1983 3 SCR 822 in support of this submission. In that case, however,
there had been previous proceedings between the tenant and the landlord in
connection with the certificate issued under Sec. 88C which had culminated
against the tenant. In this context, this Court observed that the same
challenge cannot be repeated collaterally in proceedings under Sec. 33-B. In
the present case a certificate under Sec. 88-C was obtained behind the back of
the tenant and without any notice to him. Moreover? in the present case, there
is no certificate under Sec.88-C in favour of the landlord who held the land on
1.4.1957 and this fact is not in dispute. It is, therefore, open to us in the
light of undisputed facts to examine the validity of the certificate on the
basis of which proceedings under Sec. 33B have taken place. Since the
certificate is void ab initio, the appellant is entitled to succeed. The appeal
is allowed, the order of the Maharashtra Revenue Tribunal dated 19.8.1992 is
restored and the order of the High Court is set aside.
There
will, however, be no order as to costs.
Back
Pages: 1 2