RAMCHANDRA HARISCHANDRA Vs. TUKARAM KARU

JUDGEMENT

(1.) THE petitioner is the manager of a joint Hindu family, which owns two lands, Survey Nos. 31 and 32 of mouza Karankhed, taluq Chikhali, district Buldana. These two lands were held by opponent No. 1, hereinafter referred to as the opponent, as a protected lessee under the provisions of the Berar Regulation of Agricultural Leases Act, 1951. (XXIV of 1951), hereinafter referred to as the B.E.A.L. Act. A notice was given to the opponent terminating his tenancy under Sub -section (1) of Section 9 of the B.E.A.L. Act, on the ground that the landholder wanted the lands for personal cultivation. Thereafter, an application was made to the Revenue Officer under Section 8(1)(gr) of this Act for obtaining an order for the termination of the lease. On July 2, 1957, an order was made by the Revenue Officer terminating the lease of the opponent with effect from April 1, 1958. Before then, the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, 1958 (No. XCIX of 1958), hereinafter referred to as the Tenancy Act, had come into force. Sub -section (2) of Section 36 of this Act provides that no landlord shall obtain possession of any land held by a tenant except under an order of the Tahsildar, and that for obtaining such order, he shall make an application in the prescribed form and within a period of two years from the date on which the right to obtain possession of the land is deemed to have accrued to him. On May 15, 1959, an application was made to the Tahsildar for possession of the land under Sub -section (2) of Section 36 of the Act. It was stated in the application that an order terminating the tenancy had been made by the Sub -Divisional Officer on July 2, 1957, but that the landholder could not get possession of the lands in view of the provisions of the Bombay Vidarbha Region Agricultural Tenants (Protection from Eviction and Amendment of Tenancy Laws) Act, 1957 (No. IX of 1958). On this application the Tahsildar made an order for possession of the lands being given to the landholder. The order was set aside in appeal by the Sub -Divisional Officer, on the ground that no notice as required by Sub -section (1) of Section 36 of the Tenancy Act had been given to the opponent -tenant. The order made by the Sub -Divisional Officer was confirmed by the Revenue Tribunal. Thereafter, the present special civil application was filed.

(2.) A Full Bench of this Court in Jayantraj v. Hari (1961) 64 Bom. L.R. 57 has held that a proceeding under Section 8 or 9 of the B.R.A.L. Act should be regarded as pending until an application has been made under Sub -section (1) of Section 19 of this Act, or until an order has been made on such application. On May 15, 1959, when the petitioner made the application to the Tahsildar, he claimed relief on the ground that an order terminating the Lease of the opponent had been made by the Sub -Divisional Officer under Section 8(1)(g) read with Section 9(1) of the B.R.A.L. Act. His application was, therefore, really an application under Section 19 of this Act. In view of the decision of the Full Bench, this application would be regarded as having been made in the proceeding commenced under Section 8 of the B.R.A.L. Act, and as this was pending or should be regarded as having been pending on the date of the commencement of the Tenancy Act, Section 132(3)(a) of the Tenancy Act would apply to it. The application would, therefore, be deemed to have been made under the corresponding provision viz. Section 36(2) of. the Tenancy Act and it has to be disposed of in accordance with the provisions of the Tenancy Act.

(3.) SUB -section (I) of Section 38 provides that a landlord may, after giving to the tenant one year's notice in writing at any time within two years from the commencement of the Act and making an application for possession as provided in Sub -section (2) of Section 36, terminate the tenancy of the land held by a tenant other than an occupancy tenant if he liana fide requires the land for cultivating it personally. Sub -section (3) provides that the right of a landlord to terminate a .tenancy under Sub -section (I) shall be subject to the following conditions, namely: -