Spl. C. Appln. No. 427 of 1962

11th March, 1964.

Petitioner Counsel: V.R. Manohar
Respondent Counsel: G.R. Mudholkar, C.S. Dharmadhikari, S.V. Natu

JUDGMENT

JUDGMENT:- Chainani, C.J.-The land in dispute in this case was leased to the petitioner for the year 1958-59. On April 15, 1959, opponent No, 4 (hereinafter referred to as the opponent) gave a notice to the petitioner, terminating his tenancy with effect from April 30, 1959. On April 22, 1959, the opponent made an application for obtaining possession of the land under section 39 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, 1958. The Tahsildar made an order of possession of the land being given to the opponent. That order was confirmed in appeal by the Sub-Divisional Officer and in revision by the Revenue Tribunal.

2. Mr. Manohar, who appears on behalf of the petitioner, has raised two points. He has first urged that the application for possession was premature, as it was made by the opponent even before the petitioner's tenancy had been terminated. It is, however, conceded that the opponent could have made an application for possession after April 30, 1959, for the last date for making an application for possession, at the relevant time, was September 30, 1959. No prejudice has, therefore, been caused to the petitioner by the application made by the opponent being entertained before April 30, 1959.

3. The next point, which Mr. Manohar has raised, is that the notice given to the petitioner terminating his tenancy is not valid. Sub-section (1) of section 39, under which the opponent had made his application, is in the following terms:

"(1) Notwithstanding anything contained in section 9, 19 or 38 but subject to the provisions of sub-section (2), a landlord who holds an area not exceeding a family holding, may terminate such tenancy created by him not earlier than the first day of April 1957 as could have been terminated but for the provisions of the Bombay Vidarbha Region Agricultural Tenants (Protection from Eviction and Amendment of Tenancy Laws) Ordinance, 1957 or the Bombay Vidarbha Region Agricultural Tenants (Protection from Eviction and Amendment of Tenancy Laws) Act, 1957, by giving to the tenant a notice in writing and making an application for possession as provided in sub-section (2) of section 36 within one year from the date of the commencement of the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) (Amendment) Act, 1960 if he bona fide requires the land for cultivating it personally."

The Ordinance referred to in this sub-section was repealed by the Bombay Vidarbha Region Agricultural Tenants (Protection from Eviction and Amendment of Tenancy Laws) Act, 1957. The latter Act was repealed by section 132 of the Tenancy Act, which came into force on December 30, 1958. The Act as it originally stood specified March 31, 1959 as the last date for making an application under the said sub-section (1) of section 39. This date was extended upto September 30, 1959 by section 2 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) (Amendment) Act, 1959 (Act XXX of 1959), which came into force on May 4, 1959. The words "within one year from the date of the commencement of the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) (Amendment) Act, 1960" were substituted for the words and figures "before the 30th day of September 1959" by section 9 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) (Amendment) Act, 1960, which came into force on January 28, 1961.

4. The sub-section as it originally stood or in its amended form does not prescribe any period of notice. It only states that the tenancy may be terminated by giving to the tenant a notice in writing and making an application for possession. Section 5 of the Tenancy Act states that the provisions of Chapter V of the Transfer of Property Act, 1882, shall, in so far as they are not inconsistent with the provisions of the Tenancy Act, apply to the tenancies and leases of lands, to which this Act applies. Section 106 of the Transfer of Property Act states that in the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice expiring with the end of a year of the tenancy. Mr. Manohar has contended that section 106 of the Transfer of Property Act applies in the present case in regard to the period of notice, as sub-section (1) of section 39 of the Tenancy Act does not provide for any period of notice, and that consequently the opponent should have given six months' notice to the petitioner for terminating his tenancy. As no such notice was given, he has argued that the notice given by the opponent is invalid. There is no force in this argument. The provisions of section 106 of the Transfer of Property Act apply only in the absence of any local law. The relevant local law, sub-section (1) of section 39 does not provide for any period of notice. All that it requires is that the tenant should be given a notice in writing. That requirement has been complied with.

5. As stated above, the last date for making an application under sub-section (1) of section 39 originally was March 31, 1959. If Mr. Manohar's argument is accepted, no landlord could have availed himself of this provision, because it was not possible for him to give six months' notice after it came into force on December 30, 1958 and before March 31, 1959. He could not also have given six months' notice under the section as amended in 1959, because the amending Act came into force on May 4, 1959, i.e. less than five months before September 30, 1959, the last date then fixed for making an application under the section. It is, therefore, obvious that section 106 of the Transfer of Property Act was not intended to apply in such cases.

6. The view taken by the Revenue Tribunal that all that is required under sub-section (1) of section 39 for terminating a tenancy of the nature referred to in this sub-section is a notice in writing to the tenant followed by an application for possession as provided in sub-section (2) of section 36, is therefore correct.

Petition dismissed.