Jamunabai Shivram Hirey vs Madhav Trimbak Muley

G.N. Vaidya, J.—This petition under article 227 of the Constitution of India was filed by a tenant of agricultural lands, bearing Gat No. 7 admeasuring 3 acres 8 gunthas situate at Maparwadi and 6 other pieces of lands situate at Sinnar, admeasuring totally 4 acres 11 gunthas belonging to the landlord-respondent No. I. The landlord obtained an exemption certificate u/s 88C of the Bombay Tenancy and Agricultural Lands Act, on July 29, 1960. He applied for possession of the lands for personal cultivation u/s 33-B of the Act. An order for possession was passed in the proceedings and was ultimately confirmed by the Maharashtra Revenue Tribunal on August 20, 1953.

The petitioner made an application on August 31, 1963 to the Commissioner, Bombay Division, for revocation of the certificate on the ground that the income of the landlord exceeded Rs, 1,500. After issuing show cause notice to the landlord, the Commissioner by his order dated July 6, 1964, revoked the certificate in exercise of the powers delegated to him u/s 83-D, as he found that the income of the landlord exceeded Rs. 1,500.

In the meanwhile, the Commissioner had stayed the execution of the orders u/s 33-B. The tenant continued in possession of the lands till the Commissioner revoked the certificate. The landlord never challenged the validity of the revocation of the certificate.

Proceedings were, thereafter, started by the Additional Mamlatdar and Agricultural Lands Tribunal, Sinnar, u/s 33-C read with sections 32-G to 32-R of the Act. The tenant relied on the order of the Commissioner revoking the certificate and contended that he had become the purchaser of the lands u/s 32 and that the price should be determined u/s 32-G. The Additional Mamlatdar upheld this contention and fixed the price and installments payable by the tenant. The landlord carried an appeal against the said decision. The Assistant Collector, Niphad Division, Nasik No. 2, who heard the said appeal, refused to interfere with the order passed by the Additional Mamlatdar relying on the order of the Commissioner revoking the certificate u/s 88-C of the Act. In a revision application filed by the landlord, the Tribunal set aside the said orders and remanded the case to the trial Court for further inquiry u/s 88-D (2) but only in respect of Maparwadi land.

The order passed by the Tribunal is patently illegal as it is difficult understand how section 88-D (2) is attracted to the case. Section 88-D (2) applies only where any land ceases to be exempted u/s 88-D (1) and further when the tenancy subsists on the date specified in the order issued u/s 88 D (1). Both the conditions must exist. There is no doubt that the exemption of the land u/s 88-C in the present case ended when the certificate was revoked. There was, however, in the facts and circumstances of the present case, no possibility of the tenancy subsisting on the date on which the Commissioner passed the order for revocation. Once a certificate u/s 88-C was revoked tenancy did not subsist because, in the facts of this case, the tenant immediately and automatically became in law the statutory purchaser of the land u/s 32. Again it is urged on behalf of the petitioners-tenants that the landlord, not having challenged the order of revocation of the certificate passed by the Commissioner on July 6, 1964, the Tribunal had no jurisdiction to sit in judgment over that order. It is also submitted that execution of the orders passed u/s 33-B having been stayed by the Commissioner, the orders became infructuous after the Commissioner revoked the certificate.

Mr. Limaye, who appears for the landlord-respondent No. 1, sought to support the order passed by the Revenue Tribunal on the ground that although the reference to section 88-D (2) and the order of remand passed by the Revenue Tribunal cannot be justified, the orders passed by the Assistant Collector and the Agricultural Lands Tribunal were not supportable, because the Commissioner had no jurisdiction to revoke the certificate after the Maharashtra Revenue Tribunal had finally decided the application u/s 33-B on August 20, 1963. In support of his argument, he relied on the decision of Deshpande, J. in Aimaram Onkar v. Ananda 1970 MhLJ 569 = (1969) 72 Bom. L R 287. Mr. Abhale who appears for the petitioners on the other hand relied on my unreported decisions in Shivnarayan Balasaheb Bhaulal Jakhete v. Ramdas Ramchandra Patil (1971) Special Civil Application No. 1811 of 1967, decided by Vaidya J., on April 26, 1971 (Unrep.) and in Vilas Dattatraya Joshi v. Ramdas Dagadu Choudhari (1971) Special Civil Application No. 1675 of 1967. decided by Vaidya J, on April 15, 1971 (Unrep.). Mr. Pratap, learned Assistant Government Pleader, supported Mr. Limaye''s argument and submitted that the said two cases decided by me are distinguishable on facts. He also submitted that the Commissioner had no power to revoke the certificate after the proceeding u/s 33-B had become final with the passing of the order of the Revenue Tribunal directing possession to be delivered to the landlord.

In view of these contentions, the first question which arises is as to whether the Commissioner could revoke the certificate granted to the landlord after the proceedings u/s 33-B instituted by him concluded with an order for possession confirmed finally by the Maharashtra Revenue Tribunal on August 20, 1963. I find nothing in section 88-D (I) (iv) which lays down any limitation on the powers of the Commissioner, exercising the powers of the State Government under that section to revoke the certificate. As a result of the revocation, all that happens is that certificated landlord ceases to be a ''certificated landlord'' and becomes an ordinary landlord; and the ''excluded tenant'' becomes a tenant to whom sections 32 to32-R will apply, in view of the definitions of these words contained in section 33-A. Once the certificate is revoked, section 32 would make the tenant the statutory purchaser with effect from the tillers'' day if the tenant was in possession of land on the tillers'' day. It is, therefore, difficult to appreciate the argument that merely because an order was passed u/s 33-B by the Revenue Tribunal, the State Government or the Commissioner exercising powers of the State Government u/s 88-D, were deprived of the powers to revoke the certificate,

In the two cases decided by me, I had to deal with a somewhat similar question and particularly the effect of the judgment of Deshpande, J in Atmaram Onkar v. Ananda. As observed by me in my judgment, in Shivnarayan Balasaheb Bhaulal Jakhete v. Ramdas Romchandra Patil, "in Atmaram Onkar v. Ananda the order passed in exercise of the power of the Commissioner to revoke the certificate u/s 88D was challenged simultaneously with the order refusing possession u/s 3313, before the High Court.

In a case like the present one where the landlord never challenged the order of revocation of the certificate u/s 88-G, passed by the Commissioner, the ratio of Atmaram1''s case will not apply.

As stated above, there are no limitations on the powers of the Commissioner to revoke the certificate. If the argument of Mr. Limaye and Mr. Pratap is accepted, we would be adding words in section 88-D which do not exist in the law. It would have been very easy for the Legislature to lay down that the powers of the Commissioner shall not be exercised if an order u/s 33-B is passed. In the absence of such specific words in the section, it is not open to this Court to add words in that section. The foundation of an application u/s 33-B is the right of the "certificated landlord" to terminate tenancy for personal cultivation. The application is liable to become infructuous whenever a certificate is revoked by the Commissioner or the State Government u/s 88-D. A somewhat similar view was taken by me in Vilas Dattatraya Joshi v. Ramdas Dagadu Choudhari, where also reliance was placed on Atmaram Onkar v. Ananda.

In making provisions for the exemption u/s 88-C, the Legislature intended that only genuine small landholders whose income was less than Rs. 1,500 and the land leased by whom did not exceed the economic holding, could claim that exemption. The Legislature, therefore, specifically laid down in section 88-D that any certificate granted u/s 88-C could be revoked if, inter alia, the income or the economic holding exceeded the limits. The intention of the Legislature in making this provision was to confine the benefit only to real small holders falling within section 88-C. The intention of the Legislature was not to enable a landlord to deprive his tenant of the right to purchase by reveling in technicalities relating to the sources of his income or in falsehood and by getter''s wrong orders u/s 88-C, which are liable to be revoked at any time by the Commissioner or the State Government. With very great respect to Deshpande, J. the somewhat different view expressed by him in Atmaram''s case cannot be applicable to the facts and circumstances of the present case where the landlord did not challenge the revocation of the certificate u/s 88 C. Atmaram''s case must be confined to a case where a landlord successfully challenges the order of revocation in this Court on merits.

In the present case, the landlord has not challenged the order revoking the certificate passed by the Commissioner on any ground, at any time, before any authority. It is thus clear that he had accepted the verdict of the Commissioner. He is not a person entitled to the benefit of section 88-C. The provisions of sections 88-C and 33-B were never intended to benefit such a, person.

For these reasons, the order passed by the Maharashtra Revenue Tribunal is quashed. The landlord has not challenged the price fixed by the Agricultural Lands Tribunal before the Maharashtra Revenue Tribunal. The Assistant Collector had recorded a finding in his order observing:

As regards the pride of the well and trees, it is seen from the papers that there were panchas on behalf of the landlord and tenant at the time of panchanama. The poaches, after seeing the condition of the well arrived at a particular price of the well. The price of the well fixed by the panchas on behalf of the landlord is ruler excessive. Farther, perusal of the lower Court''s judgment shows that the Agricultural Lands Tribunal has correctly fixed the price of the trees, taking into consideration the produce therefrom.

There is no error of law in the said finding. Hence the orders passed by the Agricultural Lands Tribunal and the Assistant Collector must be restored. Rule made absolute. No order as to costs.