Letters Patent Appeal No.39 of 2005,Writ Petition No.516 of 1992

23rd November, 2015.

Petitioner Counsel: Mr. S.R. DESHPANDE
Respondent Counsel: Mr. A.R. PATIL

Cases Cited:
Janrao Jairamji Vidhale Vs. Devidas Deorao Vyavhare and ors., 1980 Mh.L.J. 699 [Para 3,7]
Municipal Corporation of the City of Ahmedabad Vs. Ben Hiraben Manilal, 1983 SC 537 [Para 7]
Shriram Mandir Sansthan @ Shri Ram Sansthan Pusda Vs. Vatsalabai and ors., 1999(1) ALL MR 241 (S.C.)=1999(1) Mh.L.J. 321 [Para 9,11]

JUDGMENT

B. R. Gavai, J. :- The appeal takes exception to the judgment and order passed by the learned Single Judge of this Court in Writ Petition No.516 of 1992 dated 13th of January, 2005, thereby allowing the petition filed by the respondent and upholding the order passed by Tahsildar dated 9th of March, 1988 while setting aside the order passed by the first appellate authority i.e. Sub Divisional Officer dated 27th of June, 1988 and revisional authority i.e. learned Maharashtra Revenue Tribunal, Nagpur dated 19th of November, 1991.

2. The facts in brief giving rise to the present appeal are as under :-

The respondent is a Public Trust having registration No.A-250 (Bul) and the owner of land admeasuring 28 Acres 27 gunthas at mauza Lamkani, tahsil Akot, which is subject matter of the present proceedings. The respondent - Trust has got exemption under the provisions of Section 129(b) of the Maharashtra Tenancy and Agricultural Land (Vidarbha Region) Act. On 15th of June, 1962 alleging that the appellant tenant was in arrears of the lease amount, notice was issued on 12th of August, 1986 terminating the tenancy and seeking possession of the suit land. The said notice was received by tenant on 21st of August, 1986 and reply to the said notice was filed by tenant on 10th of September, 1986. In the reply it was admitted by the appellant - tenant that on account of drought in the year 1983-84 he could not forward rent though after notice he forwarded rent, however, same was refused by the respondent. After termination of tenancy, the proceedings were initiated for seeking possession. The Tahsildar vide order dated 9th of March, 1988 allowed the application and directed the appellant - tenant to pay the arrears of rent within a period of three months from the date of said order. Being aggrieved thereby an appeal was preferred to the appellate authority i.e. Sub Divisional Officer. The said appeal was allowed vide order dated 27th of June, 1988 and the order of Tahsildar was set aside. Being aggrieved thereby the respondent filed revision before the learned Member, Maharashtra Revenue Tribunal, Nagpur. The same was also dismissed vide order dated 19th of November, 1991. Being aggrieved thereby writ petition came to be filed before this Court. The learned Single Judge vide judgment and order dated 13th of January, 2005 allowed the petition. Being aggrieved thereby, the present appeal has been filed.

3. Shri S.R.Deshpande, learned counsel for the appellant submitted that the judgment of the learned Single Judge is erroneous and not sustainable on the following grounds.

(i) that the learned Single Judge has failed to take into consideration that the notice issued to the appellant was under Section 106 of the Transfer of Property Act and in view of judgment of this Court in the case of Janrao Jairamji Vidhale ..vs.. Devidas Deorao Vyavhare and ors. reported in 1980 Mh.L.J. 699, the provisions of Transfer of property Act were excluded from their operation to the tenancies which are governed under the said Act. He submitted that since the tenancy was not terminated by following the procedure prescribed under the said Act, the termination was illegal.

(ii) On combine reading of Section 19 read with Section 30 of the Tenancy Act unless there are three defaults, the tenancy cannot be terminated.

(iii) In view of the provisions of Section 46 of the Tenancy Act since the appellant was a tenant in possession of suit land on 1st of April, 1961, he had become deemed owner of the said land and as such the exemption granted under Section 129(b) of the Act subsequently was of no avail to the respondent.

4. We have perused the judgment and order of the learned Single Judge, the learned Member, Maharashtra Revenue Tribunal, the learned Sub Divisional Officer and learned Tahsildar. Perusal of the record would reveal that though the notice issued by the respondent mentions provisions of Section 106 of the Transfer of Property Act, it also makes reference to Section 19 of the said Act. Not only this but perusal of paragraph 9 of the order of the Tahsildar would reveal that he has directed the tenant to make the payment of arrears within a period of three months from the date of the order and has further held that on failure to make payment within a aforesaid period, the tenancy shall also stand terminated on the said ground and respondent herein will be entitled to possession thereof. It could thus clearly be seen that the Tahsildar has exercised the jurisdiction as vested in him under Section 30 Sub Section 1 of the said Act. Undisputedly, the appellant/tenant has not paid the arrears within a period prescribed by the Tahsildar.

5. Insofar as the contention of the appellant - tenant that unless there are three defaults, in respect of which an intimation is given to the respondent with regard to each default the tenancy cannot be terminated is concerned, in our view the said submission is without substance.

6. On conjoint reading of various Sub Sections of Section 30 of the Tenancy Act, it would reveal that the requirement of giving three months period for making payment of arrears of rent as per the direction of Tahsildar would not be applicable in case where the tenant has failed to make the payment of arrears of rent for three years and landlord has given intimation to tenant to that effect within a period of three months, on each default. In other words when a tenant has failed to make payment of arrears of rent for three years and landlord has given intimation to the tenant to that effect, within a period of three months on each default, the requirement of the Tahsildar directing to make payment of arrears within a period of three months from the date of the order would not be applicable. However, such is not the case here. In the present case, the Tahsildar has passed an order under Sub Section 1 of Section 30 directing the appellant to make payment of arras within a period of 30 days from the date of the order. Undisputedly, the appellant has not paid the arrears within the period as directed by the Tahsildar. As such, we find that contention is without substance.

7. Insofar as the contention of the learned counsel regrading non-applicability of provisions of Section 106 of the Transfer of Property Act is concerned, learned counsel Shri Deshpande has rightly relied on the decision in the case of Janrao Vidhale (supra) wherein it has been held that the applicability of provisions of Transfer of Property Act are excluded insofar as tenancy under the said Act is concerned. However, it has been observed by the learned Single Judge that notice was issued under Section 106 of the Transfer of Property Act as well as under Section 19 of the Tenancy Act. The Apex Court in the case of Municipal Corporation of the City of Ahmedabad ..vs.. Ben Hiraben Manilal reported in 1983 SC 537 has held that exercise of power is referable to that jurisdiction which violates the action and not the one which invalidates it. We do not find the view taken by the learned Single Judge insofar as that aspect of the matter is concerned, can be said to be erroneous.

8. Insofar as the contention of Shri Deshpande regarding nonapplicability of provisions of Section 129(b) of the Tenancy Act, since the certificate under explanation to Section 129 of the Act was granted on 15th of June, 1962, it will appropriate to refer the provisions of Section 129 of the said Act.

"129. Exemption from certain provisions to lands held by local authorities, Universities, trusts, etc. - Nothing in the foregoing provisions except Section 2, the provision of Chapter II (excluding Sections 21, 22, 23, 24 and 37) and Section 91 and the provisions of Chapters X and XII in so far as the provisions of the said Chapters are applicable to any of the matters referred to in sections mentioned above shall apply-

(a)...........

(b) to lands which are the property of a trust for an educational purpose, hospital, panjarpole, Gaushala, or an institution for public religious worship, provided the entire income of such lands is appropriated for the purposes of such trust; and

(c).....

(d)......

Explanation - For the purpose of clause (b), a certificate granted by the Collector after holding an inquiry, that the conditions mentioned in the said clause are satisfied by the trust shall be the conclusive evidence in that behalf.

9. The perusal of the aforesaid provisions would reveal that except what has been saved by Section 129 of the Act, nothing in the provisions of the said Act shall apply to the lands which are property of the Trust for an educational purpose, hospital, panjarpole, Gaushala or an institution for public religious worship, provided the entire income of such lands is appropriated for the purpose of such trust. The explanation to the said Section would show that for the purpose of clause (b), a certificate granted by the Collector after holding an inquiry, that the conditions mentioned in the said clause are satisfied by the trust shall be the conclusive evidence in that behalf.

It could thus be seen that the effect of the aforesaid provisions is that, once a certificate is granted by the Collector insofar as the lands which are the property of trust, in the present case an institution of public religious worship, that the entire income of the said lands is appropriated for the purposes of such trust, the applicability of said Act, except the provisions which are saved under the said provision, is itself made inapplicable. Therefore, the effect would be that insofar as the aforesaid lands are concerned, once a certificate is issued by the Collector, all other provisions of said Act shall not apply to such of the lands covered by said Section. We may gainfully refer the decision of the Apex Court in the case of Shriram Mandir Sansthan @ Shri Ram Sansthan Pusda ..vs.. Vatsalabai and ors. reported in 1999(1) Mh.L.J. 321 : [1999(1) ALL MR 241 (S.C.)]. In paragraph no.14 of the said judgment Hon'ble Apex Court has held as under -

14. Section 129 clearly seeks to protect certain lands from the provisions of the Tenancy Act of 1958. The section thus protects lands held or leased by a local authority or a university, lands which are the property of a trust for an educational purpose, hospital, Panjarpole, Gaushala or an institution for public religious worship, provided the entire income of such land is appropriated for the purposes of such trust. It also protects lands assigned or donated by any person before the commencement of the said Act for the purpose of rendering services useful to the community, namely, maintenance of water works, lighting or filling of water troughs for cattle. It also protects any land taken under management by a civil, revenue or criminal Court as set out therein. There is a further safeguard ensuring that the income from such land is appropriated for the purposes of a trust covered by Section 129(b). The explanation provides for the grant of a certifiable by the Collector after holding an inquiry. Thus, the clear intention of section 129 is to protect certain lands from tenancy legislation where the lands or income from such lands is being utilized for public purposes set out there. In this context, if the tenancy of such lands are not made heritable, this would clearly be in furtherance of the purpose of exempting such lands under section 129."

10. It could thus be seen that the Apex Court in clear terms observed that Section 129 is to protect certain lands from tenancy legislation where the lands or income from such lands is being utilized for public purposes set out therein. We, therefore, find that the contention as raised by learned counsel Shri Deshpande in that regard would not be sustainable.

11. There is an another angle. During the pendency of appeal the original appellant has expired. The legal heirs are brought on record. In view of the clear pronouncement of law by the Apex Court in the case of Shriram Mandir Sansthan, [1999(1) ALL MR 241 (S.C.)] (cited supra) in case of the lands belonging to a trust or an educational institution falling within Section 129(b) of the Bombay Tenancy Act, the tenancy is not heritable on the death of the tenant. We have made reference to this fact since the said subsequent event has taken place during the pendency of present appeal

12. In the totality of the circumstances, we find that the view taken by the learned Single Judge cannot be faulted with. Though a notice issued by the landlord also made a reference under Section 106 of the Transfer of Property Act, the Tahsildar while exercising the power under Section 30 Sub Section 1 of the Tenancy Act has granted three months period to appellant - tenant to clear the arrears of rent. However, the appellant failed to comply with the directions given by Tahsildar and as such the tenancy also stands automatically terminated after completion of three months period from the date on which the Tahsildar has passed an order.

13. We, therefore, find that the appeal is without merit and as such deserves to be dismissed. The same is accordingly dismissed.

14. At this stage, the learned counsel Shri Deshpande appearing for the appellant submits that this Court exercising the powers of Tahsildar under Section 30 sub Section 1 of the Tenancy Act would grant three months period to pay the arrears and protect the tenancy. We find that the request as made cannot be considered and hence rejected.

At this stage Shri S.R.Deshpande requests for stay to the judgment and order passed by this Court for a period of eight weeks from today.

The said request is vehemently opposed by Shri A.R.Patil, learned counsel for the respondent.

As already discussed herein above, the original tenant no more survives and appeal is prosecuted by his legal representatives. As held by Apex Court in the case of Shriram Mandir Sansthan, in view of provisions of Section 129(b) of the said Act, the tenancy is not heritable. Prayer is, therefore, rejected.

Ordered accordingly.