ATMARAM ONKAR TALELE Vs. ANANDA SHRAWAN KOLAMBE

JUDGEMENT

(1.) THESE two Special Civil Applications are connected matters and raise an interesting question as to the true scope and interpretation of Section 88D of the Bombay Tenancy and Agricultural Lands Act (hereinafter referred to as the Tenancy Act). The facts giving' rise to this litigation are simple and few. Ananda Shrawan Kolambe the petitioner in Special 'Civil Application No. 1746 of 1965 is the landlord and owner of survey No. 925/1B measuring two acres, six gunthas and assessed at Rs. 1.14 and situated at village Yawal, district Jalgaon, while respondent Atmaram Onkar Talele in the said Special Civil Application is admittedly the tenant thereof. The landlord made an application on May 6, 1959, for exemption certificate under Section 88C of the Bombay Tenancy Act. An enquiry was held in the presence of the tenant and order granting the said exemption and directing the issue of the said certificate was passed on July 7, 1959. On the strength of the said certificate the landlord terminated the tenancy by notice dated April 29, 1961 and made an application for possession of the suit land on February 5, 1962, under Section 33B and Section 29 of the Act. This application of the landlord was rejected by the Tenancy Awal Karkun on December 11, 1962. On appeal, however, by the landlord, the same was allowed on August 30, 1963. Tenant's revision to the Maharashtra Revenue Tribunal was dismissed on February 10, 1965. The tenant has filed Special Civil Application No. 862 of 1965 challenging the said order of possession in favour of the landlord.

(2.) THE only contention raised in this Special Civil Application by Mr. Sharad Manohar appearing for the tenant -petitioner is that the order for possession cannot be upheld as now the certificate under Section 88C itself has been revoked by the Commissioner by order dated April 28, 1965 passed in exercise of powers under Section 88D of the Tenancy Act.

(3.) THE principal contention of Mr. Bhokarikar, the learned advocate appearing for the landlord, is that the Commissioner could not have entertained any application from the tenant on October 1, 1963, after the proceedings under Section 33B were instituted on February 5, 1962, and the order passed by the Commissioner therefore is incompetent and invalid in law. Mr. Sharad Manohar, the learned advocate appearing for the tenant and Mr. S.C. Pratap, the learned Assistant Government Pleader appearing for the State, contend that the Commissioner's jurisdiction to hold enquiry under Section 88D(7) of the Tenancy Act, is not ousted merely because the landlord has started proceedings under Section 33B of the Tenancy Act on the strength of the certificate issued to him under Section 88C. According to them, it is open for the Commissioner to hold such enquiry at any time before the landlord succeeds in getting possession of the land from the tenant in proceedings under Section 33B, and revoke the certificate granted to the landlord, in the event of it being proved either that his income has exceeded Rs. 1,500 or that area of the leased lands belonging to the landlord has exceeded the economic holding.