Bombay High Court
Raghunath Ambadstrao vs Kishan Vithoba Kamble And Ors. on 10 September, 1979
JUDGMENT D.M. Rege, J.
1. This is a petition under Article 227 of the Constitution filed by a landlord challenging the order of the Tribunal dated 11th October, 1974 allowing the revision application filed by the tenant against the order of the Additional Tahsildar (Agricultural Lands Tribunal) dated 28th February, 1972 and the Dy. Collector's order dated 30th May, 1973 who had granted the landlord's application under section 32 read with section 28 of the Hyderabad Tenancy and Agricultural Lands Act, 1950 (hereinafter called as the Act).
2. Respondent Nos. 1 and 2 who are the tenants of the suit lands being Survey Nos. 12 and 14 belonging to the petitioner. Respondent Nos. 3 and 4 who are not really concerned in this petition directly, appear to have came on the said land subsequently.
3. Initially the landlord-petitioner had taken proceedings under section 28 read with section 32 of the said Act against respondent Nos. 1 and 2 for recovery of arrears of rent for the years 1961-62, 1962-63, 1963-64 in which a decree for payment of rent was made. Since the rent was not paid as ordered, within the prescribed time, a separate application for possession was made by the landlord which is pending
4. Thereafter the landlord had also filed another separate application under the said provision for possession and rent on the ground of default in payment of rent for the years 1964-65, 1965-66, 1966-67. In that application although an order for payment of the said rent was made in favour of the petitioner on 9-9-1968, respondent Nos. 1 and 2 had failed to comply with the said order. However, no application was made by the petitioner against the respondents for eviction on that ground under section 32 of the said Act.
5. Thereafter on 27th August, 1971 the petitioner filed the present application for possession of the suit lands, only on the ground of non-payment of rent again for the years 1964-65, 1965-66, 1966-67 and also for the years 1967-68, 1968-69 and 1969-70. In the said application he averted that intimations for each of the said defaults as required under proviso to section 28(1) of the said Act were given by him.
6. The said application was firstly heard by the Tahsildar who passed an order dated 28th February, 1972 holding that (1) the petitioner had given proper intimations and notices as required under section 19(2) of the said Act and (2) the tenants, respondent Nos. 1 and 2 had sub-let the premises. He, therefore, passed the following order :
"Application is allowed. The tenancy of non-applicants for three years' default and non-payment of rent before filing of application for ejectment is terminated...".
7. Against the said order of the Additional Tahsildar only respondent Nos. 1 and 2 viz. Kishan and Dalda (Dhuli) filed an appeal to the Dy. Collector. It may be pointed out at this stage that respondent Nos. 3 and 4 who were also parties to the original proceedings and against whom also the Tahsildar had passed an order terminating the tenancy, did not file any appeal against the said order. The said order, therefore, as against them has become final.
8. The Dy. Collector by his order dated 30th May, 1973 dismissed the said appeal of respondent Nos. 1 and 2 holding that the defaults in payment of rent, intimation of defaults by the petitioner to respondent Nos. 1 and 2 and the receipt of notices of termination for each default were proved beyond doubt by the petitioner and he found no reason to interfere with the orders of the lower Court.
9. Against the said order of the Dy. Collector, respondent Nos. 1 and 2 only filed a revision application being Case No. 300/B/73 Parbhani to the Maharashtra Revenue Tribunal. The Tribunal held firstly that there were no intimations given by the landlord to the respondent Nos. 1 and 2 for each default as required under section 28(1) proviso of the said Act and that by reason of the said fact respondent Nos. 1 and 2 cannot be said to be defaultion in the payment of arrears. The Tribunal also held that sub-letting by respondent Nos. 1 and 2 to other two persons i.e. the original respondent No. 3 Rama and respondent No. 4 Jairam, was not proved. The Tribunal, therefore, allowed the revision, quashed the order of the authorities below and dismissed the original application the petitioner dated 10th September, 1970 for recovery of rent and possession.
10. Challenging the said order of the Tribunal the petitioner landlord has filed this petition. The first challenge to the order is that the finding of the Tribunal as regards non-compliance by the petitioner of provisions of section 28(1) proviso, in as much as no intimation for each default were proved, and, therefore, respondent Nos. 1 and 2 the tenant were not defaulters, was not correct. He also challenged that sub-letting was not proved.
11. The scheme of the said Act so far as relevant for our purpose appears to be that section 19 of the said Act provides for the various grounds on which the tenancy can be terminated and procedure such as giving of notice etc. for doing so. On such termination being made section 32 of the said act provides for application for eviction and possession being made to the Tahsildar. If such an application for eviction is on the ground of default in payment of rent, then the Tahsildar, in lieu of passing an order of eviction on that ground, has got to just proceed under section 28 of the said Act.
12. Section 28 of the said Act provides for certain reliefs being granted to the tenants against the termination of the tenancy and eviction only on the ground of non-payment of rent. The said section 28(1) and proviso provides as follows :---
"28(1) Where a tenancy of any land held by a tenant is terminated for non-payment of rent and the landholder files any proceeding to reject the tenant, the Tahsildar shall call upon the tenant to the landholder with the cost of proceeding, within ninety days from the date of the order, and if the tenant complies with such order the Tahsildar shall, in lieu of making an order of ejectment pass an order directing that the tenancy has not been terminated, and thereupon the tenant shall hold the land as if the tenancy had not been terminated :
Provided that nothing in this section shall apply to any tenant whose tenancy is terminated for non-payment of rent if he has failed for any three years to pay rent within the period specified in sub-clause (i) of Clause (a) of sub-section (2) of section 19 and the landholder has given intimation to the tenant of the default within a period of six months of each default".
On the reading of the said section it is clear that it can come into operation only if firstly two things existed (1) that the tenancy of the land was terminated by the landlord for non-payment of rent and (2) the landlord had filed any proceedings to eject the tenant on that ground. Such proceeding can only be under section 32 of the said Act. If the said two things were to exist then only section 28(1) makes it obligatory on the Tahsildar in lieu of making an order of evidence (1) to call upon the tenant to tender to the landlord the rent in appears together with costs of proceedings within 90 days from the date of the order, and (2) if the tenant complies with the said order, to pass an order directing that the tenancy has not been terminated and on such an order being made the tenant was entitled to hold the land as if the tenancy had not been terminated. The said section 28(1) lays down certain further limitations which are to be found in the proviso. The said proviso reads thus :---
"Provided that nothing in this section shall apply to any tenant whose tenancy is terminated for non-payment of rent if he has failed for any three years to pay rent within the period specified in sub-clause (i) of Clause (a) of sub-section (2) of section 19 and the landholder had given intimation to the tenant of the default with in a period of six months of each default."
The proviso, therefore, takes out of the purview of the operation of section 28(1) certain cases of termination of tenancy on the ground of non-payment of rent. Those being causes where the landlord has terminated the tenancy for non-payment of rent (1) if the tenant has failed for any three years to pay rent within the period specified in section 19(2)(i) of the said Act and (2) the landlord has given intimation to the tenant of the default within a period of six months of each default.
13. In this case, there does not seem to be any dispute as to the default on the part of respondent Nos. 1 and 2 in respect of the rent for the said years 1964-65 to 1969-70. However, the main question is whether the petitioner landlord has shown that he had given intimation to the tenant for default within a period of six months of each default as required by the said proviso to section 28(1) of the said Act. If the petitioner fails to prove such a notice for each default then the case would fall under section 28(1) making it obligation on the Tahsildar to pass an initial order of deposit of arrears and costs in lieu of order of eviction.
14. The only written notices relied upon by the learned Counsel for the petitioner were those dated 20th September, 1967, 25th May, 1968 and 7th July, 1970. The Tribunal has rightly pointed out that the notices dated 29-9-1967 and 25-5-1967 can in the terms of the proviso only relate to the year 1966-67 for which admittedly a decree has already been passed and which cannot be included in the present application for recovery of rent and possession. Further the said notice dated 25-5-68 was also premature as it was given before the time allowed by law to the tenant to pay the said rent which was up to 31st May, 1968, had expired. As regards the notice dated 7-7-70 the reading of the notice shows that it was not an intimation of default as required under the said proviso but a notice of termination. In fact, from the judgment of the Tribunal it is clear that the learned Advocate for the petitioner had conceded before them that it was so. Even if it were taken to be an intimation of default, it can only be for the year 1969-70. However, what the proviso requires was that there should be an intimation of default within six months of each default. That in fact is not proved by the petitioner.
15. Under the circumstances the petitioner has failed to prove that he had given intimation of each default as provided under the said proviso. The evidence of the petitioner that he had also given oral intimation cannot be accepted bereft of any particulars. The result, therefore, is that in view of the fact that the petitioner failed to prove the requisite intimation for each default, the matter would come under the proviso of section 28(1) of the said Act and no order of termination of tenancy and evication could have been passed against the respondents. The Tribunal was, therefore right in holding that the orders of Tahsildar and the Dy. Collector, were not substainable on that ground.
16. The learned Counsel for the petitioner has contended that the Tribunal was wrong in holding that there was no sub-letting by respondent Nos. 1 and 2 to original respondent Nos. 3 and 4 i.e. Rama and Jayram. Firstly the Tribunal has held as a matter of fact that there was no sub-letting. That conclusion of the Tribunal appears to have been arrived at after proper appreciation of evidence and need not be interfered with.
17. Apart from that, otherwise also it is difficult to see how in this case on the application of the petitioner sub-letting could ever have been made a ground of termination of tenancy in favour of the respondent Nos. 1 and 2 and for an order of evication against them on that ground.
18. Firstly the petitioners said application does not makes any allegation or reference to sub-letting by the respondent nor does it make sub-letting a ground for the order of evication. The learned Counsel for the petitioner pointed out that the petitioner had in the rejoinder to the respondents reply to his application has referred to sub-letting. That by itself cannot makes sub-letting a ground of eviction.
19. Apart from that the petitioner in this case also otherwise cannot get the respondents evicted, on the ground of sub-letting. One of the grounds of termination of tenancy provided under section 19(2)(d) in sub-letting. However, under the proviso to that sub-section (2) termination of tenancy on that ground cannot be made unless the landlord gives six months notice in writing intimating his decision to terminate the tenancy on the ground for such termination. In this case the only notice to that effect is the termination notice date 7-7-1970, which by any stretch cannot be considered to be such a notice of termination. So in any event in this case the respondents tenancy of and could not be said to have terminated on the ground of sub-letting so that Tahsildar could have passed an order of eviction against the respondents on the ground. I may however, point out that both the lower authorities i.e. Tahsildar and Dy. Collecter had infact in their orders not sought to terminate the respondents tenancy and pass an order of eviction against them on ground of sub-letting.
20. The result, therefore, is that the petition fails. Rule is discharged with costs to respondent 1 & 2 only. The order of Tribunal in revision only by respondent Nos. 1 and 2 against the order of the Special Dy. Collecter and Tahsildar is confirmed.
21. Respondents Nos. 3 and 4 to the petitioner have not appeared at the hearing of the petition. The said respondent Nos. 3 and 4 were parties to the petitioner's application and had appeared before the Tahsildar at the hearing of the said application. Although Tahsildar's order dated 28-2-1972 terminating the tenancy was made also against them, while respondent Nos. 1 and 2 had chosen to appeal against the said order of Tahsildar, respondent Nos. 3 and 4 had not chosen to do so, with the result that the said order of termination of tenancy as against them has become final.
22. No order on C.A. 3686/77.