Dinkar
Maruti Jadhav Vs. Nivrutti Gangaram Pawar (Dead) by LRS. and Ors. [2008] Insc
52 (18 January 2008)
Dr.
Arijit Pasayat, Tarun Chatterjee & Lokeshwar Singh Panta Dr. Arijit Pasayat, J.
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 is how the
matter was posted before us. The essence of the judgment in Moreshwars
case (supra) was that once an action in Section 31-B is taken, Section 88C of
the Bombay Tenancy and Agricultural Lands Act, 1948 (in short the
Act) has no relevance.
2. In
the instant case, the original owner had expired.
Undoubtedly,
the certificate had been issued to him under Section 88-C with reference to the
qualification possessed by the landlord as on 1st April, 1957. The question which fell for consideration before the High
Court was the effect of the death of the original landlord who had either applied
for issuance of certificate under Section 88-C, which is pending, or was the
certificate already granted in his favour. In Paragraph 27 of Moreshwars
case (supra) it is held that once certificate under Section 88-C is issued and
the landlord has issued notice in exercise of the rights under Section 33-B of
the Act and proceeds to file an application for possession under Section 33- B
read with Section 29 of the Act, the relief under Section 88-C gets exhausted. Moreshwars
case (supra) related to rights under Section 88D of the Act. The question which
may arise is that when death has taken place whether the income or the extent
of land of the legal heirs have to be reckoned.
3.
Sections 33-B and 88-C operate in different fields. Bona fide requirement and
personal cultivation concepts are applicable only under Section 88-C because it
refers to Section 33-B. Section 33-B refers to bona fide requirement and
personal cultivation. Section 88D(iv) comes into operation when the annual
income exceeds the limit fixed and/or economic holdings exceeded. There are two
separate stages. The tenant can, in a given case, oppose the application in
terms of Section 33-B on the ground that there is no bona fide requirement
and/or personal cultivation. It deals with enforcement of the certificate. With
the death of the original landlord, the question of economic holding and the
income also becomes relevant. In Section 33-B income and/or economic holding
concept is not there.
4. The
decision in Moreshwars case (supra) is accordingly clarified. We remit the
matter to the High Court to hear the writ petitions afresh in the light of the
position of law delineated above.
5. The
appeal is allowed to the aforesaid extent without any order as to costs.
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