Moreshwar
Balkrishna Pandare & Ors Vs. Vithal Vyanku Chavan & Ors [2001] Insc 304
(11 May 2001)
Syed
Shah Mohammed Quadri & S.N. Phukan Syed Shah Mohammed Quadri, J.
L.I.T.J
This
appeal, by special leave, is from the judgment and order of the High Court of
judicature at Bombay, allowing Writ Petition No.1560 of
1981, filed by the respondents, on July 19, 1991.
Before
adverting to the contentions of the parties it will be appropriate to refer to
the relevant facts. The predecessor- in-interest of the appellants was the
landlord of agricultural land bearing Survey No.238/1 measuring acres 2 & guntas
5 in village Kalgaon, District Satara, Maharashtra State (for short, the land).
He filed tenancy case No.252/61 before the Tenancy Aval Karkun Karad (for
short, the Mamlatdar) against Vyanku Daji Chavan, the tenant of the land,
claiming exemption certificate under sub-section (4) of Section 88C of the
Bombay Tenancy & Agricultural Lands Act, 1948 (all sections referred to in
this judgment are of the said Act unless otherwise stated).
During
the pendency of the tenancy case both the landlord as well as the tenant died.
The appellants are the legal representatives of the landlord and the
respondents are the legal representatives of the tenant. By order dated April 26, 1972 the Mamlatdar granted exemption
certificate under sub- section (4) of Section 88C in favour of the appellants.
The
aggrieved respondents carried the matter in appeal before the Sub-Divisional
Officer, Satara Division, who set aside the order of the Mamlatdar by order
dated February 25, 1974. The appellants challenged the
validity of the said order in the Bombay High Court in Special Civil
Application No.2526 of 1974. On January 11, 1979 the High Court set aside the said order of the
Sub-Divisional Officer holding that for purpose of Section 88C the total income
of the deceased landlord as on April 1, 1957
should be the criteria and not that of the appellants and thus restored the
order of the Mamlatdar by allowing the said writ petition.
Immediately
thereafter the appellants terminated the tenancy by issuing notice to the
respondents on January 27, 1979 and making application to the Mamlatdar for
possession of the land for personal cultivation under Section 33B(3)(b) read
with Section 29 in March 1979. On August 2, 1979, during the pendency of the
said application, the respondents applied under Section 88D(1)(iv) for
revocation of exemption certificate on the ground that the income of the
appellants had exceeded Rs.1500/- per year. The Additional Commissioner, Pune
Division, Pune, having regard to the order of the High Court in the Writ
Petition No.2526 of 1974 dated January 11, 1979, rejected the application of
the respondents as not maintainable by order dated January 17, 1981. The
respondents assailed the correctness of that order in the High Court in Writ
Petition No.1560 of 1981.
By the
impugned order dated July 19, 1991, the High Court quashed the order of the
Additional Commissioner holding that the application for revocation of the
certificate was maintainable and remanded the case for fresh disposal on
merits. It is that order which is the subject matter of the appeal before us.
The first contention of Mr.A.S.Bhasme, the learned counsel appearing for the
appellants, is that as the High Court had restored the order of the Mamlatdar
granting exemption certificate in favour of the appellants on the ground that
the annual total income of the deceased landlord as on April 1, 1957 was less
than Rs.1,500/- which had become final, therefore, now the income of the
appellants cannot be taken into account which would amount to reopening the
issue before the Additional Commissioner in proceedings under Section 88D as
such the High Court erred in quashing the order of the Additional Commissioner.
Mr. V.B.Joshi,
the learned counsel appearing for the respondents, has argued that Section 88D
gives an independent right to the tenant to have the exemption certificate
revoked on establishing, inter alia, that the annual income of the landlord had
exceeded Rs.1,500/-, therefore, the contention that the exemption certificate
has attained finality, is untenable. Here, it will be useful to read Section 88D(1)(iv)
under which revocation of the certificate is applied for and it runs as follows
:
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) to (iii) * * * * * * * * * (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 an
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.
From a
plain reading of the provisions, extracted above, it is evident that in view of
the opening words -- a non-obstante clause -- Section 88D(1) overrides Sections
88, 88A, 88B and 88C provided the requirements thereof are satisfied. Thus, it
follows that a certificate granted under sub-section (4) of Section 88C which
is final in view of sub-section (5), can be revoked under Section 88D(1) if the
State Government is satisfied that in the case of the land referred to in
Section 88C, the total annual income of the person holding the certificate has
exceeded Rs.1,500/- or that the total holding of such person exceeds the
economic holding, as the case may be. It may be noted that for grant of
certificate under Section 88C(4) income of the applicant-landlord as on April 1, 1957 is the criteria but for the purpose
of revocation of the certificate what is relevant is the income of the person
holding the certificate as on the date of the application for revocation of the
certificate. The words employed in clause (iv), noted above, are, the annual
income of the person has exceeded Rs.1500/-. They imply that even if on April 1, 1957 the total income was not exceeding
Rs.1500/- but subsequently it has exceeded that amount as on the date of the
revocation application, clause (iv) will be attracted. Therefore, the first
contention of Mr.Bhasme cannot but be rejected.
Mr.Bhasme
next contended that after the appellants terminated the tenancy of the
respondents by notice in writing and applied for possession of the land for bonafide
personal cultivation under Section 33B, the respondents could not seek the
revocation of the certificate under Section 88D. Mr.V.B. Joshi, however, argued
that in the absence of any constraint in Section 88D with regard to either the
limitation or the stage of any proceedings, the respondents could solicit
revocation of the certificate and that termination of tenancy would not bar
their application for revocation of the certificate unless the Mamlatdar has
already passed order on the application. The germane question that arises for
consideration is : whether the application of the respondents under Section
88D(1)(iv), for revocation of the exemption certificate granted under Section
88C(4), filed after termination of their tenancy by issuing notice and filing
of application for possession of the land by the appellant, under Section 33B
read with Section 29, is maintainable.
It is
a common ground that the Act is a beneficial legislation and it confers valuable
rights on the tenants of agricultural lands. Among others Section 32 provides
that on April 1, 1957 (the Tillers Day) every tenant
shall be deemed to have purchased from his landlord free of all encumbrances,
subsisting thereon as on that date, the land held by him as tenant. Such deemed
purchase is subject to the provisions of that Section and Sections 32A to 32R.
Side
by side the benefits conferred on tenants, a few rights of the landlords are
preserved to terminate tenancy under Sections 14, 31, 43(1B) and in somewhat
truncated form, a right embodied in Section 88C read with Section 33B.
Now,
we shall refer to Section 88C. It will be appropriate to quote it here. 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
33A, 33B and 33C, nothing in Sections 32 to 32R (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 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 lands 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 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 32R.
(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.
An
analysis of the Section, quoted-above, discloses that sub-section (1) of
Section 88C postulates :
(a)
exemption of the land leased by any person, if such land does not exceed an
economic holding and the total annual income of the person including the rent
of such land does not exceed Rs.1500/-, from the provisions of Section 32 to
32R (both inclusive);
(b) the
exemption is subject to the provisions of Sections 33A, 33B and 33C; and
(c) the
exemption does not apply to a person who holds such lands as a permanent tenant
or who has leased such land on permanent tenancy to any other person from its
provisions.
Sub-section
(2) which is procedural, provides that every person eligible for exemption
under sub-section (1) shall make an application in the prescribed form, within
the prescribed period, for a certificate that he is entitled to such exemption,
to the Mamlatdar within whose jurisdiction all or most of the pieces of land
leased by him are situate. Sub- section (3) castes an obligation on the Mamlatdar
to hold inquiry after notice of such application to tenant or tenants of the
land and to decide as to whether the land leased by such person is exempt,
under sub-section (1), from the provisions of Sections 32 to 32R; in otherwords
he has to decide whether the twin requirements of sub-section (1), namely,
(i) the
land leased does not exceed an economic holding and
(ii) the
total income of the applicant including the rent of such land does not exceed
Rs.1,500/-, are satisfied. In the event of the Mamlatdar deciding that the said
requirements are satisfied and therefore the land is so exempted, sub-section
(4) enjoins on him to issue a certificate in the prescribed form to such
person. Sub-section (5) declares that the decision of the Mamlatdar under sub-
section (3), subject to appeal to the Collector, shall be final. We have
already held above that certificate of exemption issued under Section 88C(4),
notwithstanding its finality, is liable to be revoked under Section 88D(1).
Inasmuch
as sub-section (1) of Section 88C says save as otherwise provided by Sections
33A, 33B and 33C, it will be necessary to notice them here. Section 33A defines
two expressions, employed in the aforesaid provisions: (i) certificated
landlord to mean a person who holds a certificate issued to him under
sub-section (4) of Section 88C but a landlord within the meaning of Chapter
III-AA (a serving member of armed forces) holding a similar certificate is not
included within the meaning of the expression; and (ii) excluded tenant to mean
a tenant of land to which Sections 32 to 32R (both inclusive) do not apply by
virtue of sub-section (1) of Section 88C.
Section
33B confers a special right on the certificated landlords to terminate tenancy
for personal cultivation. It is necessary to advert to it which is as follows :
33B.
Special right of certificated landlord to terminate tenancy for personal
cultivation.
(1)
Notwithstanding anything contained in Section 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 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 and 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)
Where the certificated landlord belongs to any of the following categories,
namely (a) a minor, (b) a widow, (c) *** *** *** (d) a person subject to any
physical or mental disability, then if he has not given notice and not made an
application as required by sub-sections (1) and (3), such notice may be given
and such application made (A) by the landlord within one year from the date on
which he, - (i) in the case of category (a) attains majority;
(ii)
*** *** *** (iii) in the case of category (d), ceases to be subject to such
physical or mental disability;
and
(B) in the case of a widow, by the successor-in-title within one year from the
date on which widows interest in the land ceases :
Provided
that, where a person belonging to any category is a member of a joint family,
the provisions of this sub-section shall not apply if any one member of the
joint family does not belong to any of the categories mentioned in this
sub-section, unless the share of such person in the joint family has been
separated by metes and bounds before the 31ast day of March 1958 and the Mamlatdar
on inquiry is satisfied that the share of such person in the land is separated
(having regard to the area, assessment, classification and value of the land)
in the same proportion as the share of that person in the entire joint family
property, and not in a larger proportion.
(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 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 much 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 Prevention 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 his 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.
(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.
A
close reading of the section, quoted above, shows that sub-section (1) enables
a certificated landlord who bona fide requires the land, covered by the
certificate, for cultivating it personally, to terminate the tenancy of the
excluded tenant by giving him notice and making an application for possession,
in the manner prescribed in sub-suction (3). The said sub-section requires the
certificated landlord to give notice in writing which shall be served on the
excluded tenant on or before January 1, 1962; however, in a case where the
application of such landlord under Section 88C is not disposed of and pending
on that date, he can do so within three months of his receiving such
certificate sending simultaneously a copy of the notice to the Mamlatdar. The
application for possession of the land has to be made under Section 29 to the Mamlatdar
before April 1, 1962 in the case where notice was served before April 1, 1962
on the tenant and in a case where notice was served on him within three months
of receiving a certificate under Section 88C, the application can be made for
possession under Section 29 within three months of his receiving the
certificate. The right conferred on a certificated landlord to terminate the
tenancy of an excluded tenant is an independent right and is not affected by
the provisions of Sections 31, 31A and 31B. It may be noticed here that under
the scheme of the Act a landlords right to terminate the tenancy of an
agricultural land is regulated by the provisions contained in Section 31 which
enables a landlord to terminate the tenancy of his tenant of an agricultural
land for personal cultivation or for non-agricultural purposes. Sections 31A
and 31B incorporate conditions subject to which the tenancy shall stand
terminated and enumerate cases in which tenancy cannot be terminated under
Section 31. Sub-section (2) of Section 33B clarifies that even if in respect of
the same tenancy an application of the landlord under Section 31(2) is pending
before the Mamlatdar or in appeal before the Collector, or in revision before
the Maharashtra Revenue Tribunal on the commencement date*; or if it has been
rejected before the commencement date by any authority, notice under
sub-section (1) may be given.
__________________________________________________
*The date of commencement of the Bombay Tenancy and Agricultural Lands (Amendment)
Act, 1960 (Act IX of 1961) Sub-section (4) which deals with a certificated
landlord who is either a minor, a widow or a person subject to any physical or
mental disability, is not relevant for our purposes. Sub-section (5) enumerates
conditions subject to which the right of the certificated landlord to terminate
a tenancy under Section 33B can be exercised.
A
safeguard is provided for the tenant in sub-section (6) which says that the
tenancy of any land left with the tenant after the termination of the tenancy
under Section 33B 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.
The
import of sub-section (7) is to safeguard the interest of the tenant by causing
proportionate reduction in the rent of the area of the land left with him in
consequence of termination of tenancy under the said section.
This
is so far as Section 33B is concerned.
Section
33C contains a further protection for an excluded tenant. It may also be
relevant to notice the relevant provisions of Section 33C of the Act here,
which read as follows :
33C.
Tenant of lands mentioned in Section 88C to be deemed to have purchased land
and other incidental provisions.
(1)
Notwithstanding anything contained in sub- section (1) of Section 88C, every
excluded tenant holding land from a certificated landlord shall, except as
otherwise provided in sub- section (3), be deemed to have purchased from the
landlord, on the first day of April 1962, free from all encumbrances subsisting
thereon on the said day, the land held by him as tenant, if such land is
cultivated by him personally, and
(i) the
landlord has not given notice of termination of tenancy in accordance with
sub-section (3) of Section 33B, or
(ii) the
landlord has given such notice, but has not made an application thereafter
under Section 29 for possession as required by the said sub-section (3), or
(iii)
the landlord, not belonging to any of the categories specified in sub-section
(4) of Section 33B, has not terminated the tenancy on any of the grounds
specified in Section 14, or has so terminated the tenancy but has not applied
to the Mamlatdar on or before the 31st day of March 1962 under Section 29 for
possession of the land :
Provided
that, where the landlord has made such application for possession, the tenant
shall, on the date on which the application is finally decided, be deemed to
have purchased the land which he is entitled to retain in possession after such
decision.
(2)
*** *** *** *** (3) *** *** *** *** (4) *** *** *** *** (5) The provisions of
Sections 32 to 32R (both inclusive) shall, so far as may be applicable, apply
to the purchase of land by an excluded tenant under this section.
Section
33C, quoted above, provides for deemed purchase of land, dealt with in Section
88C, by the excluded tenant.
A coadunated
reading of sub-sections (1) and (3) of Section 33C discloses that
notwithstanding anything contained in sub-section (1) of Section 88C, every
excluded tenant be deemed to have purchased land held by him as tenant from the
landlord on April 1, 1962 if :
(a) such
land is cultivated by him personally;
(b) the
landlord has not given notice of termination of tenancy in accordance of
sub-section (3) of Section 33B; or
(c) where
the landlord has given such notice but has not made an application thereafter
under Section 29 for possession as required under the said provision of Section
33B(3); or
(d) a
landlord, not falling under any of the categories mentioned in sub-section (4)
of Section 33B, has not terminated the tenancy on any of the grounds specified
in Section 14; or
(e) having
so terminated the tenancy has not applied to the Mamlatdar on or before March 31, 1962 for possession of the land under
Section 29. Sub-sections (2), (3) and (4) are not relevant for the present
discussion. Sub-section (5) declares that the provisions of Sections 32 to 32R
(both inclusive) will be applicable to the purchase of land by an excluded
tenant under Section 33C. From the examination of the provisions of Section 88C
and Section 33B, it is incontrovertible that they are enacted to give relief to
landlords having small parcel of land to enable them to cultivate the land
personally and augment their meager income. These provisions have, therefore,
to be so interpreted as to make them meaningful and not to render them
illusory. A combined reading of Sections 33B and 33C discloses that for
purposes of terminating the tenancy of an excluded tenant both giving of notice
and filing of an application for possession, are necessary. The certificated
landlord should take both the steps either within the dates specified therein
or within three months from the grant of exemption certificate under Section
88C(4). In the event of the certificated landlord not taking the steps, as
noted above, the deeming provisions of Section 33C will be attracted and the
excluded tenant will be deemed to have purchased the land free from all
encumbrances thereon if such land is cultivated by him personally. Be it noted
that the provisions of Section 33C override the provisions of Section 88C.
From
the above discussion, it appears to us that where the landlord has complied
with the requirements of Section 33B, by giving notice and applying for
possession within the statutory period of three months after receipt of
certificate under Section 88C, the right of the landlord crystallises and the
exemption certificate gets exhausted, therefore, thereafter the excluded tenant
cannot seek revocation of exemption certificate granted under Section 88D(1)(iv).
The contention that application for revocation of exemption certificate under
Section 88D will be maintainable till the order is finally passed by the Mamlatdar
on the application for possession of the land, cannot be accepted for reasons
more than one. First, the provisions of Sections 88C, 33B and 88D(1) cannot be
so construed as to lead to a situation where an excluded tenant by seeking
revocation of the exemption certificate sets at naught the benefit conferred on
the certificated landlord who has complied with the provisions of Sections 33B
as it will frustrate the provisions of Sections 88C as well as 33B for no fault
of the certificated landlord; where, however, the certificated landlord fails
to give notice in writing within the prescribed time or having thus given
notice, omits to make application for possession of the land under Section 29,
within the specified period, the certificated landlord loses the benefit of the
exemption certificate as the right of the excluded tenant to be a deemed
purchaser will get revived under Section 33C. Secondly, when to realise the
fruits of the certificate given under Section 88C(4) the certificated landlord
has taken steps under Section 33B read with Section 29 and has done what all
could be expected of him delay in disposal of such an application by the Mamlatdar,
cannot be allowed to prejudice the interest of the certificated landlord.
Thirdly, a valuable right of certificated landlord cannot be allowed to be
defeated with reference to an uncertain event i.e. the date of passing of order
by the Mamlatdar on the application under Section 29, because the period for
disposal of the application may vary from a day to a decade or even more.
If two
landlords similarly situated apply for possession before the Mamlatdars in two
different areas under the said provisions or even before the same Mamlatdar and
in one case the order is passed immediately, no application under Section
88D(1)(iv) of the Act could be entertained against him but in the other case if
the proceedings are kept pending for some years, for no fault of the
certificated landlord, his position would be vulnerable and the application for
revocation of certificate under Section 88D(1)(iv) would be maintainable
against him. It would not be just and reasonable to adopt such an uncertain
criteria.
And
fourthly, it would not be in conformity with the scheme of the said provisions
to prescribe a criteria which yields different consequences in similar cases
depending upon the date of passing of the order by the Mamlatdar. In our view,
it will, therefore, be just and reasonable to hold that after a certificated
landlord has complied with the provisions of Section 33B within the specified
time, the application of the excluded tenant under Section 88D(1)(iv) for
revocation of certificate cannot be entertained.
We
shall now advert to the cases cited at the Bar. The High Court relying on the
judgments of Bombay High Court in [1967 (69) Bombay Law Reporter 383] and Bandu
Kesu Jagadale 1976 (63) Bombay 216] held that the application under Section 88D(1)(iv)
filed by the respondents prior to passing of final order by the Mamlatdar on
the application in terms of Section 33B read with Section 29 of the Act, was
maintainable.
In Parvatibai
(supra) the question before the Division Bench of the Bombay High Court was:
Whether the right of a certificated landlord to apply in terms of Section 33B
for possession of land from an excluded tenant is personal to the certificated
landlord and lapses on his death or whether it can be exercised by his
successors. In dealing with that question the Division Bench observed that the
object of section 88C was to give some limited protection to small holders with
limited incomes and on their death, the successors-in-interest in majority of
the cases would also be small holders of limited income so it would be in
conformity with reason and justice to hold that if a certificated landlord dies
before the expiry of the last date for filing an application for possession in
terms of Section 33B, his successors-in-interest should be able to file such an
application within the specified time. This case undoubtedly emphasises that
protection is given to small land holders under the said provisions, but it did
not deal with the question the High Court was concerned with.
In Bandu
Kesu (supra) the question before the Division Bench of the High Court was :
Whether the certificate granted to a landlord under Section 88C of the Act gets
exhausted when the landlord makes an application for possession in terms of
Section 33B of the Act or only when the Mamlatdar makes a final order disposing
of the said application of the landlord. There the landlord obtained the
certificate under Section 88C on May 29, 1971 and made an application on
November 15, 1971 for obtaining possession of the land in terms of Section 33B
of the Tenancy Act.
While
that application was pending the tenants made an application under Section 88D(1)(iv)
on July 29, 1972. The said application was disposed of by the Mamlatdar taking
the view that such a certificate got exhausted as soon as the landlord has
instituted proceedings under Section 33B of that Act so the question of
revocation of certificate did not survive in cases where proceedings in terms
of Section 33B have been started. The Mamlatdar was fortified in his approach
by the judgment of a learned Single Judge of Bombay High Court in Atmaram Onkar
Talele vs. Ananda Shrawan Kolambe [1970 (72) Bom.L.R.287]. However, the High
Court followed an unreported judgment of another Division Bench of the said
court in Special Civil Applications Nos.868 of 1970 and 2085 of 1973 (Bom.)
taking the view that though no express words of limitation or restriction are
to be found in Section 88D of the Act, the scheme of the provisions of Sections
33B and 33C read with Sections 88C and 88D of the Act would suggest that the
reasonable limitation that could be put upon the power of the Government or the
Commissioner under Section 88D to entertain an application for cancellation of
exemption certificate thereunder and held that after the date of final order of
the Mamlatdar on the application of certificated landlord in terms of Section
33B read with Section 29 of the Act, no request for cancellation of the
exemption certificate under Section 88D(1) would be entertainable. While we
agree with the conclusion of the Division Bench that under the scheme of the
said provisions reasonable limitation has to be read in Section 88D, we are
unable to subscribe to the view that the date of final order of the Mamlatdar
on the application of the certificated landlord should be treated as limitation
after which no application under Section 88D(1)(iv) could be entertained.
In our
opinion, the proper date should be the date on which the certificated landlord
makes the application in terms of Section 33B read with Section 29 for
possession of the land after giving notice to the excluded tenant which would
meet the ends of justice and on this aspect we approve the view taken by the
learned Single Judge in the case of Atmaram Onkar Talele (supra).
It has
been pointed out above that the date of passing of the final order by the Mamlatdar
on an application under Section 29 read with Section 33 of the Act, is an
uncertain factor. Having regard to the various amendments made in the Act by
inserting Sections 88C, 88D, 33B and 33C in the Act and prescribing a period of
three months from the date of receipt of certificate under Section 88C within
which the certificated landlord may terminate tenancy of the excluded tenant by
issuing a notice and filing of an application in terms of Sections 33B read
with 29(2) of the Act, and for the afore- mentioned reasons, in our view, it
would be just and appropriate to treat the date of filing of an application
after notice to the excluded tenant in terms of Section 33B read with Section
29 as the date before which an application for revocation of exemption
certificate under Section 88D(1)(iv) of the Act shall be maintainable.
In
this view of the matter, we cannot sustain the order of the High Court under
challenge; the order under challenge is set aside and the order of the
Additional Commissioner is restored. The appeal is accordingly allowed; in the
circumstances of the case we make no order as to costs.
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