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Judgment
Arijit Pasayat, J.—A two judge Bench doubted the correctness of some of the observations made in Moreshwar Balkrishna Pandare and Others Vs. Vithal Vyanku Chavan and Others, and therefore referred the matter to a larger Bench and that is how the matter was posted before us. The essence of the judgment in Moreshwar's case (supra) was that once an action in Section 31B is taken, Section 88C of the Bombay Tenancy and Agricultural Lands Act, 1948 (in short the 'Act') has no relevance.
In the instant case, the original owner had expired. Undoubtedly, the certificate had been issued to him u/s 88C with reference to the qualification possessed by the landlord as on 1st April, 1957. The question which fell for consideration before the High Court was the effect of the death of the original landlord who had either applied for issuance of certificate u/s 88C, which is pending, or was the certificate already granted in his favour. In Paragraph 27 of Moreshwar's case (supra) it is held that once certificate u/s 88C is issued and the landlord has issued notice in exercise of the rights u/s 33B of the Act and proceeds to file an application for possession u/s 33B read with Section 29 of the Act, the relief u/s 88C gets exhausted. Moreshwar's case (supra) related to rights u/s 88D of the Act. The question which may arise is that when death has taken place whether the income or the extent of land of the legal heirs have to be reckoned.
Sections 33B and 88C operate in different fields. Bona fide requirement and personal cultivation concepts are applicable only u/s 88C because it refers to Section 33B. Section 33-B refers to bona fide requirement and personal cultivation. Section 88D(iv) comes into operation when the annual income exceeds the limit fixed and/or economic holdings exceeded. There are two separate stages. The tenant can, in a given case, oppose the application in terms of Section 33-B on the ground that there is no bona fide requirement and/or personal cultivation. It deals with enforcement of the certificate. With the death of the original landlord, the question of economic holding and the income also becomes relevant. In Section 33-B income and/or economic holding concept is not there.
The decision in Moreshwar's case (supra) is accordingly clarified. We remit the matter to the High Court to hear the writ petitions afresh in the light of the position of law delineated above.
The appeal is allowed to the aforesaid extent without any order as to costs.