Writ Petition No.919 of 1983

26th August, 1997

Petitioner Counsel: Mr. M.A.RANE with Mr. P.L.NAIK
Respondent Counsel: Mr. D.S.SAWANT

Cases Cited:
1962 Vol. 64 BLR 591 [Para 4]
1961 Vol. 63 BLR 657 [Para 4]
1982 Mh.L.J. 146 [Para 4]

JUDGMENT

JUDGMENT :- This petition has been filed for quashing the order dated 29th December, 1981 passed by the Additional Commissioner, Pune Division, Pune in No. TNC/352/SA-39. The facts as narrated in the petition may be noticed.

2. Mohiddin and Shahabuddin were the original owners of the suit land. Shahabuddin died on 20-8-1967. Few days before his death i.e. on 12-8-1967, he gave his share of the lands in dispute by oral gift to his wife Khudejabai for her maintenance. She, therefore, claims to be exclusive owner of the land. This land was leased by Shahabuddin and Mohiddin to deceased Vishnu Maruti Divate. He is succeeded by the Respondents. Shahabuddin having died in 1967 and Mohiddin having died during the pendency of the writ petition, are represented by their heirs and legal representatives. Shahabuddin initiated Tenancy Case No. 89-B/1957 for restoration of possession of the suit land. The Tenancy Mahalkari vide order dated 7-5-60 directed restoration of possession of half of the land. This order was successfully challenged by the tenants, in appeal, and the matter was remanded back to the Tenancy Mahalkari. Shahabuddin had also filed applications for exemption certificates under Section 88-C of the Act which were numbered as Tenancy Case No.154/58 and Tenancy Case No.153/58. On 28th May, 1960 Additional Mamlatdar, Karad granted two separate exemption certificates holding that the annual income of each of the applicants is less than Rs.1500/- by separate orders. After obtaining the certificates the landlord instituted fresh proceedings under Section 29, read with Section 33B of the Act bearing Tenancy Case No. 101/62. The tenants filed an application under Section 88D (1)(iv) of the Act for revocation of the two certificates. The case was sent to Collector, Satara for recording the evidence and the application was dismissed by the then Commissioner on 29th November, 1970.

3. Aggrieved by the said order, the tenants filed Special Civil Application No.242 of 1971 (under Article 227 of the Constitution of India). This Court on 10th November, 1975 quashed the said order and the matter was remanded back to the Commissioner for taking decision in accordance with law. After receiving the report from Tenancy Aval Karkun, Karad, the Commissioner passed the impugned order dated 29th December, 1981 and the application was allowed and the certificates of exemption granted under Section 88C of the Act were revoked. The present Writ petition came to be filed in these circumstances.

4. It has been submitted by Mr. Rane, learned Counsel appearing on behalf of the petitioner, that the order of Commissioner is erroneous in law and suffers from error apparent on the face of the record. It is submitted that the exemption certificates were granted on 28th May, 1960. Thereafter the tenant filed an application on 25th May, 1966 under section 88D (1)(iv) of the Act. Shahabuddin said to have given the lands by oral gift to his wife on 12th August, 1967 who died on 20th August, 1967. On 18th September, 1967 mutation entries were made in favour of Khudejabi. In these circumstances it is submitted by the Counsel that the income of the two brothers viz. Shahabuddin and Mohiddin had to be determined as on 28th May, 1960. In the event the income was found to be in excess at Rs.1500/- on 28th May, 1960 only then the certificates of exemption could have been revoked. It is submitted that a perusal of the impugned order would show that the Commissioner has relied upon the report submitted by the Tenancy Aval Karkun dated 27th July, 1981. Even otherwise, it is submitted that only the income of Shahabuddin could have been taken into account and his income could not have been clubbed with his other brothers. The legal heirs have been brought on the record in the tenancy proceedings and are also impleaded as parties in writ proceedings after 28-5-60, thus their income was irrelevant. According to the Counsel the relevant date was the date on which the exemption certificates were granted i.e. 28th May, 1960. For this proposition Counsel relies on a Full Bench decision of this Court reported as 1962 Vol. 64 B.L.R. 591 (Anna Balgonda Patil v/s. Vasant R. Kulkarni) The Full Bench has held as follows :

"For the purposes of Section 88C of the Bombay Tenancy and Agricultural Lands Act, 1948, in cases in which a tenant is deemed to have purchased the land held by him as a tenant before the application made by the landlord under S.88C of the Act is decided, the date on which the landlord should satisfy the requirements of S.88C, in order to be eligible to obtain a certificate under this Section, is the date on which the tenant is deemed to have purchased the land. In other cases in which the application under Section 88C is decided before the tenant can be deemed to have purchased the land held by him, the material date, by reference to which it should be decided whether the landlord is entitled to a certificate under S.88C, will be the date on which the landlord had made an application under this Section."

In view of this, Counsel has submitted that the income had to be assessed on the date the landlord had made the application for the certificate of exemption. This very date, according to the Counsel, also has to be accepted as the material date for the purpose of deciding as to whether or not the exemption is to be revoked under Section 88D (1)(iv) of the Act. For deciding the aforesaid matter it would be necessary to read the provisions of Section 88C together with Section 88D (1)(iv) of the Act. Section 88C provides that nothing in Section 32 to 32R 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.1500/-. Section 88D(1)(iv) provides inter alia that notwithstanding anything contained in Sections 88, 88A, 88B and 88C if the State Government is satisfied in the case of lands referred to in Section 88C that the annual income of the person has exceeded Rs. 1500/- or that the total holding of such person exceeds an economic holding the State Government may by order published in the prescribed manner direct that with effect from such date as may be specified in the order such land or area, as the case may be, shall cease to be exempted from all or any of the provisions of this Act from which it was exempted under any of the Sections aforesaid and any certificate granted under Section 88B or 88C, as the case may be, shall stand revoked. It may be noticed that neither Section 88C nor Section 88D prescribe any time limit either as to the grant of exemption under 88C or to the revocation under Section 88D (1)(iv). By virtue of Section 88D (1)(iv) the State Government has the power to revoke the certificate of exemption if it comes to the conclusion with regard to the lands referred to in Section 88C that the annual income of the person has exceeded Rs.1500/-. Thus, the Government would have to be in a position to determine as to whether or not the income has exceeded Rs.1500/- is either the time when the Government takes notice of the fact suo motu or on application of the affected party. The Section cannot be interpreted in such a way as to enable the State Government to reopen the orders passed at any time without prescribing any time limit. This would defeat the purpose for which the Act has been enacted. The object of enacting the Act is clearly to permit the tenants of small holdings to become owners of the land. It is also the object of the Act not to deprive owners of small holdings of land. When a tenant makes an application under Section 88D(1)(iv) of the Act he categorically states that between the period of grant of certificate of exemption and the date on which the application for revocation is made the income of the owner/landlord has exceeded Rs. 1500/-. Necessarily, therefore, the relevant date for determination of the income would have to be the date on which the application is made for revocation. It cannot be the date when the landlord made an application for exemption under Section 88-C. Whilst considering the similar provisions of Section 88C, the Full Bench has categorically held that the date of satisfying the requirements of Section 88C is the date when the tenant is deemed to have purchased the land held by him before the application made by the landlord under Section 88C of the Act is decided. It is not possible to accept the submission of Mr. Rane that the material date under Section 88D (1)(iv) should be identical to the material date when deciding the matter under Section 88C. This cannot be so because an order for revocation is passed on an application on the ground that during the period of the grant of the certificate under Section 88C and the date of the making of the application under Section 88D (1)(iv) the income of the landlord has exceeded Rs.1500/-. On the other hand it is also not possible to accept the submission of Mr. Sawant that there is no time limit prescribed under Section 88D (1)(iv) and, therefore, the material date is the date on which the matter is decided by the appropriate authority. If that was so, then the material date in the present case would be 29th December, 1981 when the order is passed by the Additional commissioner, Pune. The submission of Mr. Rane cannot be accepted as it would run counter to the provision of Section 88D (1)(iv) of the Act. On the other hand the submission of Mr. Sawant also cannot be accepted as it would militate against the very object of passing the Act. The only reasonable interpretation to be placed is that in the case an order of revocation is passed on the application of the tenant then the material date shall be the date on which the application is filed under Section 88D (1)(iv) of the Act. Otherwise the Government would be at liberty to take action at any unspecified time. This would not be reasonable. The provisions of Section 88D (1)(iv) have to be construed reasonably as the provisions of Section 88-C were construed by the Full Bench. In that case the High Court has laid down clear limits for the exercise of the right by the landlord for seeking an exemption certificate on the basis of the date of application. In my view Section 88D (1)(iv) also has to be interpreted with a similar reasonable restriction on the right of the tenant to seek revocation of the certificate given under Section 88-C. Normally speaking Courts have interpreted reasonable period to mean the period within which an aggrieved party is permitted to seek redressal in Court. Since under Section 88D (1)(iv) the Government is exercising the power of review over the order issued under Section 88-C, the application of the tenant ought not to be entertained unless it is taken out expeditiously. In the present case it can be seen that the certificate of exemption was issued on 28th May, 1960. The application for revocation of the certificate has been filed on 25th May, 1966, after six years of the certificate of exemption having been granted. The Respondents were even heard when the tenancy case Nos. 124/58 and 124/58 were decided with regard to the exemption certificate. It is not as if that the tenants were not aware of the proceedings. The application for the exemption certificate was filed sometime in 1957. So the matter has been kept alive by various proceedings for the last 40 years. The Revenue Tribunal has proceeded to compute the income on the basis of the report in the year 1981. If this kind of situation is permitted the landlord will never be able to show that as on the date of the passing of the final order, the income was less than Rs.1500/-. In my view, the date for determination of the income under section 88D (1)(iv) ought not to be beyond 3 years on the date the certificate of exemption is granted. This ought to be extended to the date of application by the tenants only on satisfactory explanation being offered by the tenants for the delay in making the application. Therefore, in my view the order of the Commissioner is liable to be set aside only on the ground that the income has not been assessed with reference to the date on which the application under Section 88D (1)(iv) of the Act was made by the tenant. It is also the submission of Mr. Rane that the income of Shahabuddin alone should have been taken into consideration. This submission is made on the strength of the fact that Shahabuddin had died on 20th August, 1967. The application was filed by the tenants under Section 88D (1)(iv) of the Act on 25th May, 1966. At the material time both Shahabuddin and his brother Mohiddin were alive. Consequently it would have been only the income of Shahabuddin that would have been relevant. However, Counsel submits that in view of the judgment of the Division bench reported in 1961 Vol. 63 Bombay Law Reporter page 657, the income of both the brothers would have to be taken into consideration. Consequently it is submitted that the income of both Shahabuddin and Mohiddin ought to have been computed. Even if the income of both the brothers is computed on the material date the income would not exceed Rs.1500/-. Mr. Sawant on the other hand has submitted that in view of the judgment of this Court reported in 1982 Mh.L.J. 146 the income of the heirs of Shahabuddin has to be clubbed together with the income of Mohiddin. In that case the landlord who had made an application for exemption certificate died during the pendency of the proceedings. The question which was being considered by this Court in that case was whether the application had abated as being personal to the deceased. It was held that the heirs were entitled to continue with the proceedings under Section 88C of the Act. The question as to whether the enquiry regarding the satisfaction of the conditions for grant of the certificate must be with reference to the original landlord or his heirs, who have been brought on record, was also considered and it was held that the heirs will have to establish that they are entitled to the certificate with reference to the date on which they have been brought on record. Thus it was held that the application which had been decided on the basis of the income of the original landlord was contrary to law and not permissible. Those observations, however, were made on the facts of the case in that the original landlord had died prior to the application made by the tenants therein under Section 88-D (1)(iv) of the Act. Thus all the applicants had become tenants in common before the application under Section 88-D (1)(iv) of the Act had been made. In the present case the application under Section 88D (1)(iv) was made prior to the death of the original landlord. Thus the legal heirs of Shahabuddin and Mohiddin were not tenants in common of the suit land on the relevant date. Thus in my view the reliance on the judgment of the learned single Judge by Mr. Sawant is misplaced. In view of the above I do not find any substance in the submission made by Mr. Sawant to the effect that the income of the legal heirs has to be included when examining the question as to whether the landlord has satisfied the conditions as prescribed under Section 88-D(1)(iv) of the Act. Counsel for the petitioner has also submitted that the Commissioner has erred in not appreciating that the gift deed had passed on the title of the disputed land to Smt. Khudejabi. A perusal of the order, however, shows that the gift deed has been disregarded on account of the fact that the same has not been given effect to in the record of rights.

5. In view of the facts and circumstances stated above I am of the view that the impugned order deserves to be set aside. Consequently Rule is made absolute. The judgment and order dated 29th December, 1981 is hereby set aside. The matter is remanded back to the Tribunal for computing the income of the landlords as on 25-5-1966, by aggregating the income of the two brothers Shahabuddin and Mohiddin only and excluding the income of the legal heirs. The parties are permitted to lead evidence on the point of income of the two brothers as on 25-5-1966. thereafter the Revenue Tribunal is directed to decide the matter expeditiously, preferably within six months of the receipt of this order. In view of the above the Officer is directed to remit the record to the Commissioner forthwith.

No costs.

Certified copy expedited.

Order accordingly