BANDU KESU JAGADALE Vs. GOPINATH RAMCHANDRA INAMDAR

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India is directed against an order of the Commissioner, Poona Division, who is respondent No. 2 before us.

(2.) the facts necessary for appreciation of the points raised before us lie within a narrow compass: The petitioners are the tenants and respondent No. 1 is the landlord in respect of an agricultural land bearing Survey No. 44/1 and admeasuring 13 acres 21 gunthas situated at village Pimpari, taluka Khatav, District Satara. On 29th May, 1971, respondent No. 1 landlord obtained a certificate under Section 88-C of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as "the Bombay Tenancy Act") granting exemption to his said land from the provisions of Sections 32 to 32-R of the Bombay Tenancy Act on the ground that this total annual income including the rent thereof did not exceed Rs. 1500/- and that the suit land did not exceed an economic holding. The petitioners-tenants preferred an appeal against the grant of this certificate which was dismissed on 26th November, 1971. The tenants then preferred a Special Civil Application to this Court being Spl. C. A. No. 255 of 1972, which was summarily rejected by this Court on 14th March, 1972. It may be mentioned that after obtaining the certificate on 29th May, 1971, the landlord made an application on 15th November, 1971 for obtaining possession of the land under Section 33-B of the Bombay Tenancy Act. This application is still pending. On 29th July, 1972, the tenants made an application under Section 88-D (1) (iv) for revocation of the certificate granted to the landlord under Section 88-C of the Bombay Tenancy Act. This application came to be disposed of by respondent No. 2. Respondent No. 2 followed the decision of this Court in Atmaram Onkar v. Ananda, ((1970) 72 Bom LR 287) and held that the certificate granted to the landlord under Section 88-C of the Bombay Tenancy Act got exhausted and spent as soon as the landlord had instituted the proceedings under Section 33-B of that Act and that the question of revoking the certificate did not survive in cases where proceedings under Section 33-B had been started. In view of this respondent No. 2 dismissed the application of the tenants as not being ,maintainable. The present petition is directed against this decision of respondent No. 2.

(3.) the question which arises for consideration before us really is, whether the certificate granted to a landlord under Section 88-C of the Bombay Tenancy Act gets exhausted when the landlord makes an application for possession under Section 33-B or whether the said certificate gets exhausted only when the Mamlatdar makes the initial order disposing of the said application of the landlord. The submission of Mr. Gole, the learned counsel for the petitioners, is that such a certificate gets exhausted only when the Mamlatdar makes the initial order on the application of the landlord under Section 33-B of the Bombay Tenancy Act. In support of this submission Mr. Gole placed strong reliance on the decision of a Division Bench of this Court in Special Civil Applns. Nos. 868 of 1970 and 2085 of 1973 respectively (decided by Telzapurkar and Shah, JJ., on 6th September, 1974 (Bom)). In both those cases the landlords had obtained exemption certificates under Section 88-C of the Bombay Tenancy Act on the ground that they were small landholders and that the conditions laid down in Section 88-C of that Act were satisfied. After obtaining the exemption certificates the landlords, by their notices, terminated the tenancy of the tenants in respect of the lands in question and filed applications under Section 33-B of the Bombay Tenancy Act. Orders for possession in favour of the landlords were made by the Mamlatdar in both cases. It was after these order were made that applications under Section 88-D of the Act were made by the tenants for revocation of the exemption certificates granted under Section 88-C of the Act. In Special Civil Application No. 868 of 1970 the application preferred by the tenant before the Maharashtra Revenue Tribunal and in Special Civil Application No. 2085 of 1973 the application was made even after the order had been confirmed by this Court in Special Civil Application No. 3746 of 1969. A contention was raised by the tenants, placing reliance on the decision in Jamunabai Shivram .v Madhav, (1973) 75 Bom LR 264, to the effect that the mere fact that an order had been passed under Section 33-B in favour of the landlord did not deprive the Commissioner of his jurisdiction or powers to revoke the certificate under Section 88-D of the Bombay Tenancy Act. The question was referred to a Division bench in view of the conflict in the view taken by two single Judges in Atmaram Onkar's case (1970) 72 Bom LR 287 and Jamunabai Shivram's case (1973) 75 Bom LR 264. The question which arose for the consideration of the Division Bench was whether in the absence of express words of limitation being found in Section 88-D of the Bombay Tenancy Act itself, any time limit could be put on the powers of the State Government or the Commissioner to entertain an application for cancellation or revocation of the exemption certificate under that section or not. After examining the scheme of Sections 88-C and 88-D as well as the other relevant provisions, particularly those contained in Part II-A of Chapter III (Sections 33-A to 33-C) of the Bombay Tenancy Act, the Division Bench held as follows: