Allowed

Dinkar Shankar Thorat. v. Baban Ganu Mali and Anr.

Bombay HC16 Feb 2024WP/1536/1996

Case brief

AI extract

What is this about?

This writ petition challenged an impugned order confirming the setting aside of a Tahsildar's decision allowing delivery of possession to a tenant. The High Court quashed the lower courts' orders, holding the claims barred by Section 88C were misplaced, and validating the action of a single heir. The plea that the Collector lacked jurisdiction was also rejected. The petition was allowed with a 12-

What did the court decide?

Rule of absolute in terms of prayer clauses (b) and (c); stay on implementation for 12 weeks.

Dinkar Shankar Thorat. Vs Baban Ganu Mali and Anr. — Landlord and Tenant | Bombay HC (2024)

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201-wp1536-1996-J-F.doc

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AGK

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.1536 OF 1996

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ATUL GANESH KULKARNI Digitally signed byATUL GANESH KULKARNI Date: 2024.02.22 18:10:18 +0530

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1.Dinkar Shankar Thorat

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Since deceased through LRs.

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1A.Mr. Baban Dinkar Thorat,

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Age 71 years, R/o. B-10/5,
Sahyadri Nagar No.1, Near Birla
School, Kalyan (W), Thane.

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1B.Mr. Shrirang Dinkar Thorat,

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Age 68 years, Occu.:- Nil,
R/o. Raviwar Peth, Wai,
District Satara.

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1C.Mr. Prakash Dinkar Thorat,

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Age 60 years, Occupation Nil,
R/o. Laxmi Mandir Java 1,
Hingnale Vill, Hingnale, Karad,
District Satara

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1D.Mrs. Mangal Ramesh Kamble,

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Age 55 years, Occupation.
R/o. Laxmi Mandir Javal,
Hingnale Vill, Hingnale Karad,
District Satara… Petitioners

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V/s.

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1.Baban Ganu Mali,

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2.Anandrao Shankar Mali,
Both of Hinganale, Taluka Karad,
District Satara… Respondents

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Ms. Gunjan Shah i/by Mr. P.B. Shah for the petitioners.
Mr. S.P. Thorat for respondent Nos.1 and 2.

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CORAM :AMIT BORKAR, J.

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DATED:FEBRUARY 16, 2024

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ORAL JUDGMENT:

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1.The petitioner/original tenant is challenging the Judgment
and Order passed by the Maharashtra Revenue Tribunal ("MRT" for
short) confirming Judgment and Order passed by the Sub-
Divisional Officer ("SDO" for short) setting aside Judgment and
Order passed by the Tahsildar allowing petitioner's application
under Section 37, 39 & 29 of the Maharashtra Tenancy and
Agricultural Lands Act, 1948 ("the said Act" for short).

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2.Lands bearing Gat Nos.415, 539, 546 and 543 described in
the application are "lands in dispute". According to the petitioner,
based on the Certificate of Exemption under Section 88C dated 30
April 1964, respondent No.1 on 27 May 1964 applied for
possession of the lands in dispute under section 33B read with
Section 29 for personal cultivation. On 2 March 1966 application
of respondent Nos.1 for delivery of possession from the petitioner
was allowed. After dismissal of appeal, on 2 July 1975 respondent
No.1 handed over actual possession of the lands in dispute. On 5
February 1986 respondent No.1 sold lands in dispute to
respondent No.2. Mutation entry of sale was effected on 3 August
1987 and certified on 16 October 1987.

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3.The petitioner filed Application No.2 of 1988 on 21 March
1988 under Section 39 read with Sections 37 and 29 of the said
Act stating that land in dispute had been sold by respondent No.1
by registered sale deed within 12 years from the date of taking

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over possession under Section 33B of the said Act and, therefore,
he had ceased to use the land for the purpose specified in
proceedings under Section 33B of the said Act. The Tahsildar
allowed the application.

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4.Respondent Nos.1 and 2 filed Appeal No.9 of 1990 before
SDO, Satara. By order dated 23 August 1990, SDO allowed the
appeal setting aside the order of delivery of possession.

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5.The petitioner challenged the order of SDO by filing a
revision before MRT. MRT by the impugned order dismissed the
petitioner's revision. Hence, the petitioner has filed a present writ
petition.

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6.Learned advocate for the petitioner submitted that provisions
of Section 37(4), 43-1A, 1B and 1C are inapplicable in the facts of
the present case as the said provisions apply to an application filed
by the landlord who is or has ceased to be a serving member of the
Armed Forces. Said provisions are inapplicable to the application
filed by the tenant against a landlord who was or is a member of
the Armed Forces. She further submitted that the application filed
on 23 March 1988 under Section 29 was within a period of two
years as the revenue entry for the sale of lands was effected on 3
August 1987 which is the date of knowledge and the application.
She further submitted that the application on behalf of legal
representatives of the original tenant can be filed by one heir as
such heir has implied agency on behalf of other co-tenants unless
such agency is revoked or objected to by the other heirs before
filing of the application. She, therefore, submitted that the

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Judgments and Orders passed by the SDO and MRT are liable to be
set aside.

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7.Per contra, the learned advocate for respondents Nos.1 and 2
submitted that one heir cannot file an application for possession
from the landlord for breach of conditions of the said Act, in the
absence of partition amongst heirs of the original tenant. By
inviting my attention to Sections 43-1B, 1C, 37(4), he submitted
that the proceedings pending before the Tahsildar needed to be
transferred to the Collector as the Tahsildar had no jurisdiction to
pass an order of possession. He submitted that the application by
the tenant for delivery of possession under Section 29 is after a
period of two years the sale deed was effected on 6 February 1986.
He further submitted that the provisions of the said Act including
proceedings for delivery of possession from the landlord are
inapplicable after the grant of certificate under Section 88C of the
said Act. He, therefore, submitted that the orders passed by the
SDO and MRT do not suffer from legal infirmity.

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8.Having considered the submissions made on behalf of both
sides, in my opinion, the orders passed by the SDO and MRT
deserve to be quashed and set aside for the following reasons.

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9.The SDO allowed the appeal filed by respondent Nos.1 and 2
on three grounds:

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(i) the application under Section 37 filed by the petitioner before the Tahsildar was not maintainable as such power was available only to the Collector;

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(ii) the application was barred by limitation as it is filed after

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two years from the date of the sale deed; and

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(iii) all legal representatives of the tenant ought to have
applied and only one heir had no authority to file such
application.

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10. For the purpose of adjudication of the points, it is necessary
to set out relevant provisions of the said Act, which reads thus:

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“29.Procedure of taking possession. —(1) A tenant
or an agricultural labourer or artisan entitled to possession of
any land or dwelling house under any of the provisions of
this Act may apply in writing for such possession to the
Mamlatdar. The application shall be made in such form as
may be prescribed and within a period of two years from the
date on which the right to obtain possession of the land or
dwelling house is deemed to have accrued to the tenant,
agricultural labourer or artisan, as the case may be.

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(2) …..

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(3)…...

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3A.Where a landlord proceeds for termination of the
tenancy under sub-section (1) of section 43-1B, then,
notwithstanding anything contained in this Act, the
application for possession of the land shall be made to the
Collector, who shall, after holding an inquiry in the
prescribed manner, pass such order thereon as he deems fit.

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33A. Definitions. — For the purposes of sections 33B and
33C, —

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(i) "certificated landlord" means a person who holds a
certificate issued to him under sub-section (4) of section 88C
but does not include a landlord within the meaning of
Chapter III-AA holding a similar certificate; and

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(ii) "excluded tenant" means a tenant of land to which

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sections 32 to 32R (both inclusive) do not apply by virtue of
sub-section (1) of section 88C.

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33B. Special right of certificated landlord to terminate tenancy for personal cultivation.—

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(1) Notwithstanding anything contained in sections 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.

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(2) …….

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(3) ……….

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(4) ……..

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(5) ……...

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(6) ……….

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(7) …………………….”

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“37. Landlord to restore possession if he fails to
cultivate within one year.— (1) If after the landlord
takes possession of the land after the termination of the
tenancy under section 31, 33B or section 34 of this Act as it
stood immediately before the commencement of the
Amending Act, 1956 he fails to use it for any of the purposes
specified in the notice given under section 31, 33B or section
34 of this Act as it stood immediately before the
commencement of the Amending Act, 1956 within one year
from the date on which he took possession or ceases to use it
at any time for any of the aforesaid purposes within twelve
years from the date on which he took such possession, the
landlord shall forthwith restore possession of the land to the
tenant whose tenancy was terminated by him, unless he has
obtained from the tenant his refusal in writing to accept the
tenancy of the same terms and conditions or has offered in

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writing to give possession of the land to the tenant on the
same terms and conditions and the tenant has failed to
accept the offer within three months of the receipt thereof.

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(2)…

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(3)…

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(4) The provisions of this section shall not apply to a
landlord who becomes a serving member of the armed
forces; and on that account, fails to use the land, or ceases to
use it, for any of the purposes specified in the notice referred
to in sub-section (1) and within the period specified in that
sub-section.”

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“39. Application for recovery of possession by
tenant.— If at any time the tenant makes an application to
the Mamlatdar and satisfies him that the landlord has failed
to comply within a reasonable time with the provisions of
section 37, the tenant shall be entitled on a direction by the
Mamlatdar to obtain immediate possession of the land and to
such compensation as may be awarded by the Mamlatdar for
any loss caused to the tenant by eviction and by failure on
the part of the landlord to restore or give possession of the
land to him as required by section 37.”

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“43-1A. Definition.— In this Chapter, unless the context
requires otherwise, "landlord" means a landlord (including a
certificated landlord within the meaning of section 33A) who
is, or has ceased to be, a serving member of the armed
forces; and in relation to the land of a landlord who is dead,
includes his widow, son, son's son, unmarried daughter;
father or mother.

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43-1C.Transfer of pending proceedings to
Collector and State Government.— All proceedings for
recovery or restoration of possession of land filed under
section 31 or 33B by a landlord pending immediately before
the commencement of the Tenancy and Agricultural Lands

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Laws (Amendment) Act, 1964, before a Mamlatdar shall
(subject to any rules made as respects such transfer or any
matter incidental thereto) on such commencement, stand
transferred to the Collector, and all such proceedings
pending in appeal before the Collector or in revision before
the Maharashtra Revenue Tribunal shall likewise stand
transferred to the State Government; and such proceedings
shall be deemed to have been instituted for restoration of the
land before the Collector under section 43-1B, or as the case
may be, pending in revision before the State Government
under section 73-A and be disposed of accordingly.”

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11. On consideration of the aforesaid provisions, it is evident
that the Maharashtra Tenancy and Agricultural Lands Act confers
right on the tenant for restoration of possession in case the
landlord who gets possession under Section 32 or 33B or 34 and if
such landlord ceases to use such land for the purposes for which
he takes possession of the land. Section 29(1) lays down the
procedure for taking possession on an application filed by the
tenant or other persons enumerated in the provision. If such
application is filed within two years from the date when the right
to obtain possession accrues in favour of the tenant or other
persons, sub-section (4) of Section 37 provides that provisions of
Section 37 shall not apply to the landlord who becomes serving
member of Armed Forces and 'on that account' fails to use the land
or ceased to use it for the purpose specified in the notes referred to
in subsection (1). Section 43-1A to 43-1C confers the right of a
landlord who is serving or a past member of the Armed Forces to
terminate the tenancy and to seek recovery of possession from the
tenant. Section 43-1C contemplates transfer of proceedings to the

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Collector when such proceedings for recovery or restoration of
possession of land under Section 31 or 33B of the said Act were
pending on the date of commencement of Chapter III-AA.

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12. The findings recorded by the SDO and MRT is that only the
Collector had power to decide the application filed by the tenant
under Sections 29 read with Sections 37 and 39 of the said Act. In
my opinion, the Collector has the power to decide proceedings for
recovery or restoration of possession of land filed under Sections
31 or Section 33B of the Act by the 'landlord'. Chapter III-AA, and
in particular Sections 43-1B and 43-1C apply to only those
proceedings which are filed by a 'landlord' who is or was a serving
member of the Armed Forces.

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13. Section 37(4) of the said Act will apply on the fulfillment of
two conditions: (i) the landlord who becomes a serving member of
the Armed Forces; and (ii) 'on that account' fails or ceases to use
the land for the purposes referred in the notice under sub-section
(1). Fulfillment of both conditions is essential for the applicability
of sub-section (4) of Section 37. In the facts of the case, only
ingredient (i) is fulfilled. In the facts of the present case, the
landlord had not ceased to use the lands in dispute on account of
being a member of the Armed Forces. The expression "on that
account" used in sub-section (4) is of significance. The purpose of
taking away rights conferred on agricultural tenants under the
provisions of the said Act which is a beneficial provision for
tenants on account of the social reform policy of the Government
at the relevant time was interpreted by the Court's favouring
interpretation in favour of the tenant. However, the exception is

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made in favour of landlords serving in the Armed Forces by
inserting Chapter III(AA). The purpose of inserting such a Chapter
was to confer benefits on the serving members or past members of
the Armed Forces for the services rendered to the nation's security.
It is, therefore, necessary to balance the rights of members of the
Armed Forces and the tenants for whose benefit the legislation was
brought about. Therefore, the expression "on that account" in sub-
section (4) needs to be interpreted keeping in view the purpose of
the act and introduction of Chapter III(AA). Therefore, Section
37(4) shall apply only when the landlord fails to use or cease to
use the land 'on account of he becoming a member of the Armed
Forces'. Therefore, in my opinion, the finding recorded by the SDO
and MRT holding that the Tahsildar had no power to pass an order
of delivering possession under Section 29 read with Section 37 of
the Act is unsustainable.

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14. The next ground for setting aside the order of Tahsildar is on
the ground of bar of limitation contained under Section 29(2) of
the said Act. The relevant facts on this point are not in dispute.
The sale deed executed by the respondent No.1 is dated 5 February
1986. The mutation entry of the said sale deed had been effected
on 3 August 1987. The application before the Tahsildar was filed
on 23 March 1988. Sub-section (2) of Section 29 requires an
application to be filed by the tenant within two years from the date
on which the right to obtain possession is deemed to have accrued
to him. Since the petitioner was not party to the sale deed, the
deemed knowledge of such accrual of right under Section 37 is
deemed to have accrued to him only on 3 August 1987. Therefore,

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the application filed on 29 March 1988 is within limitation.

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15. The third ground that is held against the petitioner is the
non-joinder of the necessary party. According to respondent No.1,
the order of delivery of possession passed on 2 March 1966 was in
favour of the original tenant who was the father of the petitioner.
The original tenant is survived by five heirs who are brothers of
the petitioner. Therefore, according to respondents Nos.1 & 2 and
the appellate and revisional authority, in the absence of all heirs
joined in the application for eviction, the application under Section
29 read with Section 37 was not maintainable for the non-joinder
of the necessary party.

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16. The law regarding the principle of co-owners applying for
eviction is well settled. The Apex Court in the cases of Sri Ram
Pasricha v. Jagannath reported in (1976) 4 SCC 184;
Dhannalal v. Kalawatibai reported in (2002) 6 SCC 16; and
India Umbrella Manufacturing Co. & Ors. v. Bhagabndei
Agarwalla (dead) by LRs Savitri Agarwalla (Smt) & Ors.
reported in (2004) 3 SCC 178 has held that one of the co-owners
can file suit for eviction of a tenant in a property generally owned
by co-owners. The principle is based on the doctrine of agency.
One co-owner filing a suit for eviction against the tenant does so
on his own behalf in his own right and as an agent of the other co-
owners. The consent of other co-owners is assumed as taken unless
it is shown that the other co-owners were not agreeable to eject
the tenant and the suit was filed in spite of their disagreement. In
the present case, no material is brought on record by respondent
No.1 that before filing of application under Section 29 read with

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Section 37 of the said Act, co-owners objected for the initiation of
eviction proceedings against respondent Nos.1 and 2. Therefore, in
my opinion, the findings recorded by the SDO and MRT dismissing
the petitioner's application on the ground of non-joinder of
necessary party suffers from legal infirmity.

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17. Learned advocate for respondent No.1 during the course of
submissions submitted that in view of the issuance of a certificate
under Section 88C of the said Act, the provisions of Sections 29,
37, 39 and 33B are inapplicable. Section 88C of the said Act read
thus:

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“88C. Exemption from certain provisions to lands leased by persons with the annual income not exceeding Rs.1,500

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(1) Save as otherwise provided by sections 33-A, 33-B and
33-C, nothing in sections 32 to 32-R (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
such person including the rent of such land does not exceed
Rs. 1,500:

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Provided that the provisions of this sub-section shall
not apply to any person who holds such land as a permanent
tenant or who has leased such land on permanent tenancy to
any other person.

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(2) ………..

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(3) ………..

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(4) ………...

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(5) ……………..”

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18. On careful reading of Section 88C, it is clear that the
proceedings under Section 33B are saved and only proceedings
under Sections 32 to 32R are held to be inapplicable in case the
landlord is granted a certificate under Section 88C. Undisputedly,
the petitioner applied Section 29 read with Sections 37 and 39 of
the said Act. Therefore, the issuance of a certificate under Section
88C loses its significance. Since the provisions of Section 33B are
saved under Section 88C and Sections 37 and 39 do not find a
place in Section 88(C)(i), respondent No.1 is not entitled to the
benefit of issuance of a certificate under Section 88C of the said
Act.

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19. Therefore, in my opinion, the Judgment and Order passed by
the SDO and confirmed by the MRT need to be quashed and set
aside. Hence, the following order:

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20. Rule is made absolute in terms of prayer clauses(b) and (c).

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21. No costs.

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22. At this stage, the learned advocate for respondents Nos.1 and
2 seeks a stay of the implementation of this order. Since the writ
petition has been pending since 1996, the effect, operation and
implementation of this order is stayed for a period of 12 weeks
from today.

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(AMIT BORKAR, J.)

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Dinkar Shankar Thorat. v. Baban Ganu Mali and Anr.

Case brief

What is this about?

What did the court decide?

Dinkar Shankar Thorat. v. Baban Ganu Mali and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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