Dattatraya Vasudev Kulkarni and Others vs Ghama Chavadas Bendale and Others

Gavai B.R., J.—By way of present petition, the petitioner challenges the orders passed by the learned Sub-Divisional Officer, Jalgaon dated 15.1.1986, thereby allowing the revision application filed by the respondent and setting aside the order passed by the Tahsildar, Yaval dated 10.11.1982 and the order passed by the learned Member, Maharashtra Revenue Tribunal dated 17th October, 1989, thereby dismissing the revision filed by the petitioner.

Facts in brief, leading to the present petition are as under:

That, one Dattatraya Kulkarni, the father of the present petitioners was the landlord and the respondents were tenants of the land Gat No. 682 of Nhavi, Taluka Yawal, District Jalgaon, to the extent of land admeasuring 26 R. It is the contention of the petitioners that the respondents have not paid rent from the year 1961 and 62. It is further the contention of the petitioners that the petitioners have given intimation terminating the tenancy of the respondents orally as well as in writing for more than 3 years and lastly, the petitioners served upon the respondents, notice u/s 14 of the Bombay Tenancy and Agricultural Lands Act. (Hereinafter referred to as "the said Act").

The petitioners thereafter filed an application for possession u/s 29 r/ w. 14 of the said Act in the Court of Tahsildar, Yaval. The said application was allowed vide order dated 10th November, 1982 vide order passed in Tenancy Case No. 12/1979. Vide the said order, the Tahsildar had directed the respondents to pay arrears of rent within a period of 3 months from the date of the said order.

Being aggrieved by the said order, the present respondents preferred a Revision u/s 76-A of the said Act before the Assistant Collector, Jalgaon. The said authority vide order dated 15.1.1986 allowed the revision application and remanded the case to the lower Court for afresh decision according to law. The petitioners, being aggrieved thereby, filed a Revision Application bearing No. 64/1986 before the Maharashtra Revenue Tribunal. The same was rejected vide order dated 17th October, 1989. Being aggrieved thereby, the present petition.

2-A. Shri Dixit, learned Senior Counsel appearing on behalf of the petitioners submits that both the learned Assistant Collector, so also, the Maharashtra Revenue Tribunal, have grossly erred in reversing the order passed by the Tahsildar. It is submitted that as a matter of fact, the revision itself was not tenable inasmuch as, specific remedy of appeal by way of Section 74 is provided. It is further submitted that the learned member of the MRT also has not taken into consideration the provisions of law and has passed an order dismissing the revision. He has relied upon the judgment of the Apex Court in the matter of Raja Ram Mahadev Paranjype and Others Vs. Aba Maruti Mali and Others, .

Shri Chaudhari, learned Counsel for the respondents, on the contrary submits that the learned Assistant Collector, has rightly remanded the matter to the Tahsildar and the Revisional Court has rightly dismissed the revision of the present petitioner. He submits that the present case would not fall u/s 25(1) but it would fall u/s 25(2). He further submits that in view of the amended provisions unless intimation of each default has been given to the tenant within a period of 3 months, eviction is not permissible. He submits that admittedly, intimation for each default has not been given and as such, the landlord is not entitled for possession. He relies on the judgment of the Apex Court in the matter of Dhan Singh Ramkrishna Chaudhari and Others Vs. Laxminarayan Ramkishan and Another, . He also relies on the judgment of the learned Single Judge of this Court in the case of (Smt. Sajarbai Narkhedkar v. Dnyanoba Namdeo Gade) reported in 2003(Supp.) Bom.C.R. 190 : 2003(1) All.M.R. 794.

For deciding the controversy in question, it will be necessary to refer to the provisions of Sections 14 and 25 of the said Act, which reads thus:

SECTION 14. (1) Notwithstanding any law, agreement or usage, or the decree or order of a Court, the tenancy of any land shall not be terminated:

(a) unless the tenant:

(i) has failed to pay the rent for any revenue year, before 31st day of May thereof;

(ii) has done any act which is destructive or permanently injurious to the land;

(iii) has sub-divided, sub-let or assigned the land in contravention of Section 27;

(iv) has failed to cultivate it personally,

(v) has used such land for a purpose other than agriculture or allied pursuits; and

(b) unless the landlord has given three months'' notice in writing informing the tenant of his decision to terminate the tenancy and the ground for such termination, and within that period the tenant has failed to remedy the breach for which tenancy is liable to be terminated.

(2) Nothing in Sub-section (1) shall apply to the tenancy of any land held by a permanent tenant unless by the conditions of such tenancy the tenancy is liable to be terminated on any of the grounds mentioned in the said subsection.

SECTION 25. (1) where any tenancy of any land held by any tenant is terminated for nonpayment of rent and the landlord files any proceeding to eject the tenant, the Mamlatdar shall call upon the tenant to tender to the landlord the rent in arrears together with cost of the proceedings within three months from the date of order, and if the tenant complies with such order, the Mamlatdar shall, in lieu of making an order for ejectment, pass an order directing that the tenancy had not been terminated and thereupon the tenant shall hold the land as if the tenancy had not been terminated:

Provided that if the Mamlatdar is satisfied that in consequence of total or partial failure of crops or similar calamity the tenant has been unable to pay the rent due, the Mamlatdar may, for reasons to be recorded in writing, direct that the arrears of rent together with the costs of the proceedings if awarded, shall be paid within one year from the date of the order and that if before the expiry of the said period the tenant fails to pay the said arrears of rent and costs, the tenancy shall be deemed to be terminated and the tenant shall be liable to be evicted. [2] Nothing in this section shall apply to any tenant whose tenancy is terminated for nonpayment of rent if he has failed for any three years to pay rent and the landlord has given intimation to the tenant to that effect within a period of three months on each default.

Perusal of the order of the Tahsildar would reveal that the said authority has come to a conclusion that the tenant has, in fact, received one notice for one default. The learned Tahsildar has relied on the acknowledgement for the same produced by the petitioners dated 3rd August, 1978. In that view of the matter, the learned Tahsildar has held that the respondent/tenant was in default and as such, the tenancy was terminated by the petitioner.

Perusal of Sub-section (1) of Section 25 would reveal that the landlord is entitled to terminate the tenancy if the tenant has failed to pay the rent for any revenue year before 31st day of May thereof. However, prior to the termination of the said tenancy, it is necessary that the landlord has to give 3 month''s notice in writing informing the tenant of his decision to terminate the tenancy and grounds for such termination, if any; under which the tenancy is liable to be terminated.

From the perusal of the record, it would reveal that the notice has been issued by the present petitioners on 26th July, 1978, stating therein that the tenant has not paid rent from the year 1962 to 1969. It has been stated in the notice that the tenant is in default for a period of more than 3 years and in spite of oral as well written communication, the rent has not been paid. Vide the said notice, the tenancy has been terminated and the tenant has been called upon to give possession of the land in question to the petitioner within a period of 3 months. The said notice is duly received by the respondents. An acknowledgement in token of the receipt of notice by RPAD is also placed on record. It can thus be seen that the respondent/tenant had 3 months period to remedy the breach for which his tenancy was liable to be terminated. The notice is received by respondents on 3rd August, 1978. As such, on failure to deposit the arrears of rent within a period of 3 months from the date of the receipt, the tenancy was liable to be terminated.

Admittedly, the arrears of rent have not been paid within the aforesaid period of 3 months, which necessitated the filing of the application by the petitioner under the provision of Section 14 of the said Act, for eviction. The Tahsildar, after perusal of the evidence found that the tenancy was terminated in view of the provisions of Section 14 of the said Act and as such, passed an order directing the tenants/respondents to pay the amount of arrears of rent of Rs. 3492/- to the landlord within a period of 3 months from the date of the said order u/s 25(1) of the Act. The order further states that in case of failure the tenancy will be terminated u/s 14 and the possession of the said land will be handed over to the landlord.

The Appellate Authority, i.e. the Assistant Collector, while allowing the revision has observed that the tenants were willing to pay the arrears of rent. However, the lower Court had not given them proper opportunity to pay arrears before passing order u/s 25(1). He has further observed that the period of default is not properly proved and fixed. The Maharashtra Revenue Tribunal on a very innocuous reasoning has dismissed the revision of the petitioners. The Revisional Court finds that the trial Court ought to have given proper opportunity to the tenants by calling upon them to tender the amount on a particular date and that the trial Court ought to have passed the order in case the tenants failed to comply with the said direction. Only on the said reasoning, the revision of the present petitioner has been allowed.

Perusal of Sub-section (1) of Section 25 would reveal that the said provision is for granting relief against termination of tenancy for non payment of rent. The plain reading of the said section provides that the Mamlatdar is required to call upon the tenant to tender to the landlord the rent in arrears together with the cost of the proceeding within a period of 3 months from the date of the order. It can further be seen that if the tenant complies with such order, then the consequences are self operative. The effect would be that the tenancy is not terminated and thereupon the tenant shall also hold the land as if the tenancy had not been terminated. It would thus be clear that if the tenant fails to make the payment of rent within a period of 3 months from the date of the order, the tenancy shall stand terminated and the landlord would be entitled to possession of the land in accordance with law.

I am unable to accept the contention of" the learned Counsel for the respondent that the present case would fall under Sub-section (2) of the said Act. Perusal of the said provision would reveal that the relief which is available to a tenant under Sub-section (1) of Section 25 would not be available to a tenant whose tenancy is terminated for nonpayment of rent, if he has failed for any three years to pay rent and the landlord has given intimation to the tenant to that effect within a period of three months on each default.

Admittedly, in the present case, tenancy has been terminated by notice issued u/s 14. The tenant has failed to remedy the breach by making payment of arrears of rent and as such, I find that the present case would squarely fall under Sub-section (1) of Section 25. As a matter of fact, I find that if the contention of the respondent has to be accepted that his case would fall under Sub-section (2) of Section 25, then he cannot claim a relief which is available to a tenant under Sub-section (1) of Section 25.

Reliance placed by the learned Counsel for the respondent on the case of Sajarbai Narkhedkar (supra) in my view, is not well placed. From the facts of the said case, it can be gathered that, in fact, tenancy of the tenants in that case was not terminated by invoking the provisions of Section 14 of the said Act.

Reliance on the judgment of the Apex Court in case of "Dhan Singh Chaudhary" {supra) in my view also is not of much assistance to the case of the respondents. On the contrary, in my view, the said judgment would be contrary to the contentions of the respondents inasmuch as, in that case it has been held that even if a tenant makes a part payment within a period of 3 years, he would still be considered as a persistent defaulter.

The Apex Court, in the case of Rajaram Mahadeo Paranjape v. Aba Maruti Mali" (supra) has observed thus. (para 13)

We turn now to Section 25. Under Sub-section (1) of this section the tenant has a right to an order continuing the tenancy in spite of its termination by notice u/s 14 for non-payment of rent. Sub-section (2) however provides that Sub-section (1) shall not be available to a tenant if he has failed for any three years to pay rent. The result is that the statute itself provides for relief to a tenant where such a termination has taken place and prescribes the conditions on which relief would be available. It would follow that the statute indicates that the tenant would not have the relief in any other circumstances. The result of this would inevitably be that the statute confers a right on the landlord to recover possession where the right u/s 25(1) is not available to the tenant, which right he can enforce in the manner indicated. That being so, Section 29(3) cannot be read as conferring on the authorities a power to annul this intendment of the Act. The words " in lieu of making an order for ejectment" in Sub-section (1) of Section 25 support the view that the Act intends that except in the circumstances mentioned in it, the landlord is entitled as of right to get an order for possession from the Mamlatdar. This view is further strengthened by the proviso to Section 25(1) which says that if the default in payment of rent had been caused by failure of crops or similar reasons, the Mamalatdar may given the tenant a year''s time to pay up and shall then provide in the order to be made by him that on the tenant''s failure to pay within that year, "the tenancy shall be deemed to be terminated and the tenant shall be liable to be evicted." In such a case, the Mamlatdar could not by virtue of his supposed powers u/s 29(3) give further relief if the tenant who failed to pay as directed, for the Act makes it incumbent on him to pass the conditional order of ejectment. There, of course, is no reason for the Act to have treated the cases under Sub-section (1) and the proviso to it, differently. This again is another reason for saying that the Act provides that apart from the circumstances mentioned in Sub-section (1) of Section 25 and the proviso to it, the landlord has on a termination of the tenancy, a right to obtain an order for possession in his favour. It would be anomalous if the general words in Section 29(3) were to be construed as conferring power on the authorities to deprive him of the right which the other provisions in the Act give him.

It can thus clearly be seen that the Apex Court has in an unequivocal words has held that, the Act provides that apart from the circumstances mentioned in Sub-section (1) of Section 25 and the proviso to it, the landlord has on a termination of the tenancy a right to obtain an order for possession in his favour.

As already discussed hereinabove, if the tenant makes payment of rent in arrears together with cost of the proceeding within a period of 3 months from the date of the order of the Mamlatdar, the tenancy continues and the tenant holds the land, as if the tenancy has not been terminated. If the tenant fails to make payment within a period of 3 months, the consequences follow and the order of termination of tenancy u/s 14 takes effect and the landlord is entitled to possession.

One another aspect that needs to be taken into consideration is that the tenant has himself admitted in his evidence that he has not sent money orders towards rent from the year 1962. In view of this clear admission on the part of the tenant regarding non payment of rent right either from 1962, the learned Tahsildar was totally justified tenancy in passing the order u/s 25(1).

In my view, the Maharashtra Revenue Tribunal has taken a hypertechnical view of the matter. The provisions of the section are very clear. There is no necessity that the Tahsildar has to fix a date within which payment is to be made and then only an order of either termination of tenancy or continuation of tenancy has to be made. The section provides for the consequences on payment or nonpayment of rent. In that view of the matter, I find that the view of the learned Assistant Collector, so also, the learned member of the Maharashtra Revenue Tribunal is unsustainable in law. The petition, therefore, deserves to be allowed.

Rule is made absolute in terms of prayer Clause (A).