Bombay High Court
Vithoba Ram Rahane And Anr. vs Bhalchandra Sadashiv Joshi And Ors. on 1 February, 1993
Equivalent citations: 1993(3)BOMCR95
JUDGMENT Bhimrao N. Naik, J.
1. This is a petition under Article 227 filed by the tenants challenging the order passed by the Assistant Collector, Junnar Sub Division, Khed on 10th June 1977 whereby their application under section 84 of the Bombay Tenancy and Agricultural Lands Act (hereinafter referred to as "the Act" for the sake of brevity) is rejected. This order passed by the Assistant Collector was confirmed by the Member, Maharashtra Revenue Tribunal, Pune in MRT. VIII-4/77 (TNC-B-290/77).
2. Few facts which are relevant for the purpose of this petition are as follows:
One Vithoba Rama Rahane was the tenant of 9 pieces of land, namely ; 721/3, 721/5, 725/3B, 231/2B, 720/1, 721/1, 732/1, 333/2 and 744/2B. The proceedings under section 32G were initiated some time in the year 1962 and on 5th August 1962 the statement of petitioner No. 1 was recorded. He expressed his unwillingness to purchase 5 pieces of land out of 9 pieces of land, being Survey Nos. 720/1, 721/1, 732/1, 333/2 and 744/2B. The order under section 32G and 32P appears to have been passed on the same day, that is, on 5th August 1962. Even the possession of the five pieces of lands mentioned above was taken by the respondent-landlords. It is important to note that the subject matter of dispute under section 32G was only these five lands and Survey Nos. 725/3B, 731/2B, 721/3 and 721/5. Notwithstanding this, it appears that, which is not in dispute, the petitioners were unauthorisedly dispossessed of the remaining four lands on 5th August 1962, which are subject matter of this petition.
3. Thereafter it appears that some time in the year 1964 the proceedings under section 32-1B were initiated. However, on 24th June 1972 the proceeding under section 32-1B were dismissed because it was observed that since the tenants were in possession on 1-4-1957 the question of going ahead with proceedings under section 32-1B does not arise. These proceedings will not have any bearing on the decision of the present petition.
4. It also appears, simultaneously when the proceedings under section 32-1B were pending the respondent landlord filed Regular Civil Suit No. 69 of 67 for injunction against the present petitioners and in those proceedings the issue of tenancy was framed because of the specific contentions raised by petitioner No. 2, namely; does defendant No. 2 (the present petitioner No. 2) show that he had been a tenant and deemed purchaser of the suit land. On reference petitioner No. 2 succeeded in getting the declaration that he is a tenant of the suit lands as on 1-4-1957.
5. Being aggrieved and dissatisfied by the said decision the respondent landlord filed Tenancy Appeal No. 88 of 1968 which appeal was allowed and it was held that petitioner No. 2 was not a tenant. Being aggrieved by this order of the S.D.O. a revision application being MRT-P-IV-53/69 was filed by the present petitioner which was also rejected, on 27th April 1970. Thus a finding was recorded that petitioner No. 2 was not the tenant and a deemed purchaser of the suit lands.
6. Thereafter an application under section 84 of the Act was filed by the present petitioner on 1st October 1973 for summary eviction of the respondent landlords. This application was filed before the Assistant Collector, Junnar Sub Division. The learned Assistant Collector dismissed the application by his judgment and order dated 10th June 1977. He placed reliance upon the earlier decision under section 32G and since no appeal was filed against those orders held that the proceedings were binding upon the petitioners and that the application under section 84 is not maintainable and that the proper remedy was to file an application under section 29.
7. Being aggrieved and dissatisfied by the aforesaid order of the Assistant Collector, Junnar Revision Application No. MRT/P/VIII/4/77 was filed by the present petitioners. The learned member took the view that the only course open to the tenant was to file an application under section 29(1) and an application under section 84(c) is not maintainable. In this view of the matter he confirmed the order passed by the S.D.O.
8. Being aggrieved and dissatisfied by the aforesaid two orders the petitioners - tenants have filed this petition.
9. Shri Gole, learned Counsel appearing for the petitioners, points out to me that the decisions are contrary to the law laid down by the Supreme Court in the case of Amrit Bhikaji Kale and others v. Kashinath Janardhan Trade & others, and in the case of Vallabhbhai Nathabhai v. Raijivi and others, . He points out that it is an admitted position that the petitioners were tenants of 9 pieces of land. The present petition is restricted by an order passed by this Court at the stage of admission only to 4 pieces of lands bearing Survey Nos. 725/3B, 731/2B, 721/3 and 721/5. These lands were not the subject matter of the proceedings under section 32G. Therefore, on the basis of it no order for possession was passed pertaining to these four lands. But notwithstanding this unauthorisedly the landlord dispossessed the present petitioners on 5th August 1962. He further points out that the present petitioners were on the suit lands on 1-4-1957 and as such in accordance with the decision in the matter of Amrit Bhikaji Kale and others (supra) on the Tillers' day the landlord's interest in the land gets extinguished and simultaneously by a statutory sale without anything more by the parties, the extinguished title of the landlord in kindled or created in the tenant. That very moment landlord - tenant relationship as understood in common law or Transfer of Property Act comes to an end. The link and chain is broken, and thus this amounts to termination of tenancy. In view of this it is wrong to contend that the present petitioners could have filed any applications under section 29 because, Shri Gole points out that section 29 is applicable only to the case where relationship of a landlord and tenant has not come to an end. The relationship between the landlord and tenant according to Mr. Gole came to an end as explained by the Supreme Court in the case of Vallabhbhai Nathabhai (supra), when there is a termination of tenancy under the provisions of the Act or when there is a valid surrender as contemplated under section 15 of the Act or when the tenant is on the land. According to him when the tenant is on the land on 1-4-1957, in view of the decision in the case of Amrit Bhikaji Kale's (supra) his tenancy also comes to an end and he extinguishes the title of the landlord and the title to the land vests in him. Therefore, possibly no application could have been filed by the petitioners under section 29. Under these circumstances under sub-clause (c) of section 89 there being no provision under the Act under which he could have proceeded the only remedy was to file an application under section 84. In view of this Shri Gole points out that the petition deserves to be allowed and the orders passed by the lower authorities will be required to be quashed and set aside.
10. Shri Limaye appearing for the respondent-landlord supports the view of the two authorities below and says that the case is covered by section 29 and section 29 also applies to a case where the person concerned is a former tenant or ex-tenant. He also points out that since the proceedings under section 32G were held rightly or wrongly an order was passed under section 32G and in pursuance of an order under section 32P if the possession is wrongly taken, then the only remedy was to file an appeal and challenge the same; that having not been done those decisions are binding upon the petitioners.
11. After hearing both the Counsel in extenso I am inclined to accept the view argued by Shri Gole. It is not in dispute that petitioners were tenants of 9 pieces of lands. It is also not in dispute that 32G enquiry was confined only to 5 lands. In the present petition because of the restriction order passed at the stage of admission we are not concerned with those five lands, as mentioned above. Thus the petition on the date of admission itself is due to have been rejected qua these five pieces of lands. However, the petition is admitted with respect to the four pieces of lands, namely, 725/3B, 731/2B, 721/3 and 721/5.
12. It is not in dispute that in the above four pieces of lands were in possession of the petitioner as on 1-4-1957. They were unauthorisedly dispossessed on 5th August 1962 though they were not the subject matter of proceedings under section 32G. Thus I hold that respondent-landlords were not entitled to the use and occupation of the abovementioned 4 pieces of lands under the provisions of the Act. The only question which I am called upon to decide is whether an application under section 84 filed by the present petitioners is maintainable or not.
13. As has been held by the Supreme Court in the case of Vallabhbhai Nathabai (supra), if an application is maintainable under section 29 then one cannot resort to section 84. To be very precise, it is pointed out that section 84 does not provide for a remedy alternative to that of section 29(1). Section 84 does not provide for a judicial inquiry or an appeal. Clause (c) of section 84 applies only when there is no other remedy under the provisions of the Act. Since the petitioners were on the land on 1-4-1957, after 1-4-1957 they seized to be the tenants because on 1-4-1957 the landlords title got extinguished and a new title in favour of the tenant is created. Thus the tenancy also stands determined or terminated. If that be so, after 1-4-1957 the present petitioners could not have filed any application under section 29, because section 29 applies only to a case where on the date of application the petitioners still continue to be the tenants. Since on 1-4-1957 the petitioners seized to be the tenants, the question of their filing any application under section 29 will not arise, because that is not a remedy which is available to them. Thus the only remedy available being under section 84 their application under the said section on the same reasoning and on the same law, as laid down by the Supreme Court in Vallabhbhai's case (supra) is maintainable. Therefore, the two authorities below were wrong when they say that the proper remedy for the petitioners was to file an application under section 29. Once it is held that the application is maintainable under section 84 then no limitation is provided for making an application under section 84 as held by Chagla C.J., in Special Civil Application No. 764 of 1955 decided on 2-8-1955. Hence the period of limitation is not applicable to proceedings under section 84 and thus there is no obstacle in the way of the present petitioners in filing the applications. Once the application is held to be maintainable, then there is no dispute of facts because the occupation of the respondent-landlords was unauthorised occupation, not permissible under the Act and therefore the tenants were entitled to get the possession.
14. I am not inclined to accept the contention of Shri Limaye that section 29 also applies to a case of former tenant or ex-tenant. I am not inclined to accept the contention of Shri Limaye that since no appeal is filed against an order passed under section 32G or 32P it is binding upon the parties. The order passed were clearly a nullity because the four disputed lands were not the subject matter of dispute under section 32G and if there is no 32G proceedings with respect to these four lands possibly any orders under section 32P with respect to these four lands would be a nullity. The order is totally non-est and therefore the Court can ignore such orders.
15. It appears that reliance was placed upon an unreported decision of this Court in Special Civil Application No. 2655 of 1975 dated 21st June 1980 decided by Kanade, J. However, in that case it was ultimately held that the tenancy continued on the date of application on 1-4-1957 and if the tenancy continues even after 1957 then there is no difficulty in holding that the application under section 29 would be maintainable. But in the present case after 1-4-1957 no tenancy was in existence. The tenant has become the owner of the land and therefore the question of filing any application under section 29 would not arise. Therefore, the reliance placed on this judgment is misplaced.
16. In the premises for the reasons stated above I allow the petition, set aside the order passed by the Assistant Collector, Junnar, Sub-Division Khed on 10th June 1977 in Tenancy Application No. 3 of 1973 and so also the order of the Tribunal dated 10-7-1981 in MRT-VIII-A/77 and I allow the application for possession filed by the petitioners under section 84. I hold that they are entitled to claim possession.
Rule is made absolute. However, in the facts and circumstances of the case there will be no order as to costs.