HARKUBAI G SUNDECHAMUTHA Vs. SHANKAR DAULAT BENGANE

JUDGEMENT

(1.) This petition has been placed before the Division Bench by an order of the learned single Judge dated November 27, 1979. for the learned single Judge felt that there was a conflict of decisions in two Division Bench cases being Zadba Sadashiv Balpande v. The Maharashtra Revenue Tribunal and Special Civil Appln. No. 160 of 1969 decided on June 24, 1971. Few facts may be stated to decide the present controversy.

(2.) The present petitioner relying on her right to inherit the property of Jamanabai who died on February 6, 1965, after giving notice applied for resumption of land for personal cultivation under Section 31 read with Section 29 of the Bombay Tenancy and Agricultural Lands Act. 1948. In the inquiry held by the Mamlatdar the application was rejected while the Special Deputy Collector in appeal held on merits that the petitioner was entitled to resume the land to the extent of 1/2 of the tenanted area. The matter was taken up before the Revenue Tribunal. By the impugned order made by the Revenue Tribunal on July 8, 1970 the Tribunal allowed the revision only on the ground that the notice did not comply with the provisions of Section 106 of the Transfer of Property Act; as to the bona fides to resume the land as well as the requirement of the land standing in the Record of Rights in the name of the landlady or her ancestor on January 1, 1952 the Tribunal found that the judgment under appeal was sustainable. It may be observed that the Tribunal recorded a finding that there was no reason to differ from the view taken by the Appellate Court in the matter of bona fide need of the landlady. Accepting the defect of notice, the application was rejected. That order is questioned in the writ petition. The narrow question as is set out by the learned single Judge is: Whether the notice under Section 106 of the Transfer of Property Act is necessary for terminating the tenancy under Section 31 of the Bombay Tenancy Act

(3.) As far as the provisions of the Tenancy Act are concerned, Section 3 makes the provisions of Chapter V of the Transfer of property Act, 1882 applicable to the tenancies and leases of land to which the Tenancy Act applies in so far as they are not inconsistent with the provisions of the Tenancy Act. It follows that if there be a special provision with regard to tenancies and leases including their termination, the provisions of Chapter V of the Transfer of Property Act would not be attracted. Section 31 is a part of Chapter III which deals with special rights and privileges of tenants and provisions of resumption of land for personal cultivation, under which there is a part relating to termination of tenancy for personal cultivation and non-agricultural use. Section 31, therefore, is a specific provision with regard to termination of tenancies for two purposes, that is, for cultivating personally and for any non-agricultural purpose. In other words, the provisions of Section 31 are not general in character nor are the matters governed by the general law. Furthermore, Sub-section (1) of Section 31 specifies a modality of seeking possession of tenanted land and it requires two things to be done by the person so seeking possession. Firstly, such a person is required to give notice, which is not enough, but it must be followed by an application for possession as is provided in Sub-section (2) of Section 31. The purpose of giving notice and making of an application is to terminate the tenancy. Sub-section (2) clearly lays down that it has to be a specific notice as contemplated by Sub-section (1). It states that such a notice shall be in writing and it will state the purpose for which the landlord requires the land, and lastly it has to be served on the tenant on or before 31st December 1956. This embargo with regard to time is further extended in the case of landlords of specific categories by Sub-section (3), where the landlord is a minor, or a widow or a person subject to mental or physical disability the time within which a notice and an application has to be made is governed by Clauses (i), (ii) and (iii) of Sub-section (3) as is provided in Sub-section (2). Sub-section (2) also provides for a time when an application has to be made before the Mamlatdar subject to extension available to specified categories under Sub-section (3). Reading plainly the provisions of Section 31, therefore, it does not admit any doubt that this is a specific provision with regard to termination of tenancies for the purposes specified in Clauses (a) and (b) of Sub-section (1) of Section 31. If such a person were to base his right on Section 31, he will have to comply with the provisions of Section 31 itself and none else. It is significant that by notice or by an application the termination of tenancy does not take effect so as to entitle a landlord to enter upon the land. Under Section 31A such a landlord has to be a landlord who is not within the prohibition of Section 31B. Even with regard to land to the extent of which the tenancy can be terminated by recourse to Section 31, pro-visions are made under Sections 31C and 31-D. It follows, therefore, in the integrated scheme of Section 31 there is neither possibility of ipso facto termination of tenancy or mere recourse of notice for such termination as is contemplated under Section 106 of the Transfer of Property Act nor as a result of notice assuming it can be given the tenancy comes to an end. Section 3 of the Act, therefore, does not subserve to attract the provisions of Section 106 so as to terminate the tenancy under Section 31 of the Act. Both because the notice has to be before specified time and has to be for the purposes mentioned, the general provision of Section 106 of the Transfer of Property Act which does not admit such restrictions is inconsistent with the provisions of notice contemplated under Section 31 (1) of the Act. In our view, the plain reading of the section itself indicates that to the notice contemplated under it, Section 106 of the Transfer of property Act is not intended to be applied.