Chainani, C.J:— The question, which has been referred to the Full Bench, is as follows:
“Whether, for the purpose of section 88C of the Bombay Tenancy and Agricultural Lands Act, the material date for ascertaining who is the landlord entitled to apply, whether the lands leased by him do not exceed an economic holding, and whether his total annual income does not exceed Rs. 1,500/-, is the 1st of April 1957 or the ‘postponed date’ specified in the first proviso to sub-section (1) of section 32?”
2. In order to answer this question, it is necessary to consider the relevant provisions of the Bombay Tenancy and Agricultural Lands Act Sub-section (1) of s. 14 states that notwithstanding any law, agreement or usage, or the decree or order of a Court, the tenancy of any land shall not be terminated except on the grounds mentioned in sub-cls. (i) to (v) of cl. (a) of this sub-section. This sub-section, therefore, curtails the ordinary right of a landlord to terminate the tenancy of his tenant. He can do so only on one of the grounds mentioned in this sub-section. Section 31 enables a landlord to terminate the tenancy of his tenant on two other grounds and these are that he requires the land for cultivating it personally or for using it for a non-agricultural purpose. sub-section (1) of this section provides that notwithstanding anything contained in s. 14 a landlord may, after giving notice and making an application for possession as provided in sub-s. (2), terminate the tenancy of any land, if the landlord bona fide requires the land for cultivating it personally, or for any non-agricultural purpose. Sub-section (2) of s. 31 states that the notice required to be given under sub-s. (1) shall be served on the tenant on or before December 31, 1956, and that an application for possession under s. 29 shall be made to the Mamlatdar on or before March 31, 1957. Sub-section (3) enlarges the period for giving a notice under sub-s. (1) and for making an application to the Mamlatdar, where the landlord is a minor or a widow or a person subject to mental or physical disability or a serving member of the armed forces. The proviso to this sub-section is as follows:
“Provided that where a person of such category is a member of the joint family, the provisions of this sub-section shall not apply if at least one member of the joint family is outside the categories mentioned in this sub-section unless before the 31st day of March 1958 the share of such person in the joint family has been separated by metes and bounds and the Mamlatdar on inquiry, is satisfied that the share of such person in the land is separated, having regard to the area, assessment, classification and value of the land in the same proportion as the share of that person in the entire joint family property, and not in a larger proportion.”
3. This section, therefore, lays down March 31, 1957, as the date, on or before which an application for possession on the grounds mentioned in sub-s. (1) could be made by a landlord, unless he belonged to one of the categories referred to in sub-s. (3). Section 32 makes the tenants the owners of the lands in their possession, with effect from April 1, 1957, except in certain cases. sub-section (1) of this section is in the following terms:
“On the first day of April 1957 (hereinafter referred to as ‘the tillers day’) every tenant shall, subject to the other provisions of this section and the provisions of the next succeeding sections, be deemed to have purchased from his landlord, free of all encumbrances subsisting thereon on the said day, the land held by him as tenant, if—
(a) such tenant is a permanent tenant thereof and cultivates land personally;
(b) such tenant is not a permanent tenant but cultivates the land leased personally; and
(i) the landlord has not given notice of termination of his tenancy under section 31; or
(ii) notice has been given under section 31, but the landlord has not applied to the Mamlatdar on or before the 31st day of March 1957 under section 29 for obtaining possession of the land; or
(iii) the landlord has not terminated this tenancy on any of the grounds specified in section 14, or has so terminated the tenancy but has not applied to the Mamlatdar on or before the 31st day of March 1957 under section 29 for obtaining possession of the lands:
Provided that if an application made by the landlord under section 29 for obtaining possession of the land has been rejected by the Mamlatdar or by the Collector in appeal or in revision by the Maharashtra Revenue Tribunal under the provisions of this Act, the tenant shall be deemed to have purchased the land on the date on which the final order of rejection is passed. The date on which the final order of rejection is passed is hereinafter referred to as ‘the postponed date’:
Provided further that the tenant of a landlord who is entitled to the benefit of the proviso to sub-section (3) of section 31 shall be deemed to have purchased the land on the 1st day of April 1958, if no separation of his share has been effected before the date mentioned in that proviso.”
4. Under this section, therefore, every tenant is deemed to have purchased the land held by him as a tenant on April 1, 1957, referred to as the tillers' day, unless before this date an application for obtaining possession of the land had been made by the landlord under s. 29 read with s. 14 or s. 31 of the Act. If the landlord had made such an application, then the date on which the tenant will become the owner of the land (which for the sake of convenience, I will, refer to hereafter as the date of vesting), is the date on which the application is finally rejected. In the case of a landlord, who is entitled to the benefit of sub-s. (3) of s. 31, and whose share in the joint family property has not been separated by metes and bounds before March 31, 1958, the tenant will be deemed to have purchased the land on April 1, 1958. The effect of this section is, as observed by the Supreme Court in Sri Ram Ram Narain v. State . 1958 61 Bom. L.R 811, at p. 825, S.C that the title to the land, which was vested originally in the landlord, passes to the tenant on the tillers' day or the alternative date prescribed in that behalf.
5. Clause (a) in sub-s. (1) of s. 32-F states that notwithstanding anything contained in the preceding sections, including s. 32, where the landlord is a minor, or a widow, or a person subject to any mental or physical disability or a serving member of the armed forces, the tenant shall have the right to purchase such land under s. 32 within one year from the expiry of the period during which such landlord is entitled to terminate the tenancy under s. 31. There is a proviso to this clause, which is in the same terms as the proviso to sub-s. (3) of s. 31 referred to above. Section 32-0 confers the right of purchasing the land on a tenant, whose tenancy had been created after the tillers day. Sections 33A, 33B, and 33C were inserted in the act in 1961. section 33a defines the term “certificated landlord” to mean a person who holds a certificate issued to him under sub-s. (4) of s. 88C. The expression “excluded tenant” is defined as meaning a tenant of the land to which ss. 32 to 32R do not apply by virtue of sub-s. (1) of s. 88C. Sub-section (1) of s. 33B states that notwithstanding anything contained in s. 31, a certificated landlord may, after giving notice and making an application for possession as provided in sub-s. (3), terminate the tenancy of an excluded tenant, if the landlord bona fide requires such land for cultivating it personally. sub-section (2) of this section provides that the notice may be given and an application made by a certificated landlord under sub-s. (3), notwithstanding that in respect of the same tenancy an application of the landlord made in accordance with sub-s. (2) of s. 31 is pending on the date of the commencement of the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1960, that is, February 9, 1961, or has been rejected by any authority before this date. Section 33C provides that notwithstanding anything contained in sub-s. (i) of s. 88C, every excluded tenant shall be deemed to have purchased the land on April 1, 1962, subject to the conditions mentioned in this section. Where a certificated landlord has made an application for possession under sub-s. (3) of s. 33B, the tenant shall be deemed to have purchased the land, which he is entitled to retain in his possession, on the date on which the application is finally decided.
6. Sub-section (1) of s. 88-C provides that save as otherwise provided by ss. 33A, 33B and 33C, nothing in ss. 32 to 32R shall apply to lands leased by any person if such land does not exceed an economic holding and the total annual income of such person including the rent of such land does not exceed Rs. 1,500. Sub-Section (2) states that every person eligible to the exemption provided in sub-s. (1) shall make an application in the prescribed form to the Mamlatdar within the prescribed period for a certificate that he is entitled to such exemption. Sub-section (3) lays down that the Mamlatdar shall hold an inquiry and decide whether the land leased by such person is exempt from the provisions of ss. 32 to 32R. Sub-section (4) states that if the Mamlatdar decides that the land is so exempt, he shall issue a certificate in the prescribed form to such person. An application under this section has, therefore, to be made within the prescribed period. Rule 53 of the Bombay Tenancy and Agricultural Lands Rules, 1956, prescribes the date before which an application under s. 88-C must be made. This date has been changed from time to time and the rule as amended now states that such an application shall be made on or before December 31, 1961. The time for making an application has, however, been extended 111 the case of landlords. The belong to the categories specified in sub-s. (3) of s. 31. Thus where the landlord is a minor, the application under s. 88C may be made by him within six months from the date on which he attains majority. Similarly where the landlord is a widow, her successor in title may make an application within six months from the date on which the widow's interest in the land ceases to exist.
7. The object of this s. 88C read with s. 33B is to give relief to small landlords and enable them to obtain possession of their lands and increase their income by cultivating them personally. If a landlord satisfies the conditions laid down in s. 88C, ss, 32, 32P and 32-0, which confer the right to purchase the land on the tenant, will not apply and the tenant will not become the owner of the land, except as provided in s. 33C.
8. The question, which arises for consideration, is what is the date, on which the landlord must fulfil the conditions prescribed by s. 88C, in order to be eligible for obtaining a certificate under this section, that is, in order that his tenant may not become the owner of the land. For the sake of convenience, I will refer to this date as the material date. The section itself is silent on this point, nor is there anything in the section to indicate what the material date should be. Three different answers have been suggested, Mr. Shrikhande, who appears for the landlord, has contended that the material date should be the date of vesting and that where an application has been made before April 1, 1957, on the grounds mentioned in s. 14 or s. 31, the material date should be the postponed date on which the tenant will be deemed to have purchased the land. Mr. Pratap, who appears for the tenant, has on the other hand urged that the material date in all cases should be the tillers' day, April 1, 1957. The learned Government Pleader, whom we have requested to assist us in this case, has argued that the material date should he the date on which the application is made by the landlord under s. 88C of the Act. It seems to us that the correct answer to the question is that in cases in which the title to the land had passed to the tenant before the disposal of the application under s. 88-C, the material-date will be the date on which the title became vested in the tenant and that in other cases it should be the date of the application.
9. The right of purchase conferred on a tenant by ss. 32, 32F and 32-0 is made subject to the right conferred upon the landlord by s. 88C to obtain an exemption in respect of his lands. If the landlord satisfies the requirements of this section, that is, if his income is less than Rs. 1,500 or if the area of the lands leased by him is less than the area of an economic holding, the tenant loses the right of purchasing the land. There is no provision in s. 88C or in any other part of the Act that the tenant shall not be deemed to have purchased the land until the application under s. 88C has been disposed of. If, therefore, the landlord does not belong to one of the categories specified in sub-s. (3) of s. 31 and if he has not made an application for possession before April 1, 1957, his tenant will under s. 32 be deemed to have purchased the land held by him on the tillers' day. If the landlord subsequently obtains a certificate under s. 880, the tenant will be divested of the right, which he had previously acquired under s. 32, If, however, an application for possession had been made by the landlord before April 1, 1957, then the tenant will be deemed to have purchased the land only on the date on which such application is finally rejected. The consequence of a certificate being granted under s. 88C, therefore, is that the tenant is debarred from becoming the owner of the land on the date on which he would otherwise be deemed to have purchased it. Logically, therefore, the question whether any landlord is eligible to obtain a certificate under s. 88C must be decided by reference to the date, on which the tenant would otherwise become its owner. It is on this date that the position of the landlord must be examined in order to decide whether the tenant can or cannot be deemed to have purchased the land; The material date should, therefore, be the date on which the title to the land passes to the tenant. This would be April 1, 1957, or the postponed date. We would have been inclined to hold accordingly, but for the fact that sub-s. (2) of s. 88C provides that an application under this section must be made within the prescribed period. Except in the case of landlords belonging to the categories specified in sub-s. (3) of s. 31, the last date for making an application under s. 88C was December 31, 1961. On this date several applications for possession made on the grounds referred to in s. 14 or s. 31 before April 1, 1957, were still pending. In such cases the postponed date had not yet arrived. It would be difficult for a landlord to prove, or for the Tenancy Court to find, that on some uncertain date in the future, on which the application for possession might be disposed of, the landlord's income will be less than Rs. 1,500 or that on that date the land leased by him will be in area less than an economic holding. Mr. Shrikhande has urged that all applications under s. 88C should be kept pending and should not be disposed of until the applications made under s. 29 read with s. 14 or s. 31 have been decided. This argument must be rejected, because sub-s. (2) of s. 33B gives a right to a certificated landlord to make an application for obtaining possession of the land on the ground that lie requires it for personal cultivation, even though his previous application made in accordance with s. 31 was pending on February 9, 1961. A certificated landlord is a person, to whom a certificate has been granted under s. 88C. The Legislature hag, therefore, clearly contemplated that applications under s. 88C may be disposed of, even before the applications for possession made on the grounds mentioned in s. 14 or s. 31 are decided. It necessarily follows that the material date may be earlier than the postponed date.
10. There are also several difficulties in accepting the argument that the tillers' day April 1, 1957, should be the material date in all cases. It will be seen from the provisions of the Act, to which reference has been made above, that all tenants do not become the purchasers of the lands held by them on the same date. The Legislature has prescribed different dates for different classes of landlords. There is, therefore, no reason why in all cases the position of the landlord as on April 1, 1957, should be the deciding factor.
11. It has been argued that if a date subsequent to April 1, 1957, is held to be the material date, a landlord might deliberately alter his position and create such circumstances as would entitle him to obtain a certificate under s. 88C. This argument is not without force. But while in some cases a landlord may manipulate his position, there may be other cases in which his position may deteriorate for no fault of his own. For instance, if he was himself a tenant of another landlord, he might lose the land held by him as a tenant. There may also be cases in which a landlord's position may improve in the intervening period. He may come in possession of other properties by inheritance or otherwise. If he was a minor on April 1, 1957, he may attain majority and begin to earn. It may also be noted that s. 32 and s. 88C came into force on August 1, 1956. The tillers' day was April 1, 1957. The landlords had, therefore, several months, in which they could have effected a change in their position. The proviso to sub-s. (3) of s. 31 and the second proviso to sub-s. (1) of s. 32 gave to the landlords belonging to the categories specified in sub-s. (3) of s. 31 time till March 31, 1958, to alter their position by getting their shares in the joint family properties separated. Under r. 53 of the Bombay Tenancy and Agricultural Lands Rules, 1956, the landlords have been given time till December 31, 1961, to make applications under s. 88C. It has been argued by the learned Government Pleader, and we think there is considerable substance in this argument, that if it was intended that April 1, 1957, should be the material date in every case, it is not likely that the landlords would have been given over four and a half years' time after the tillers' day to apply for exemption under s. 88C. This time has been further extended in the case of landlords belonging to the categories mentioned in sub-s. (3) of s. 31. For instance, the successor in title of a widow may make an application for exemption under s. 88C within six months from the date on which the widow's interest in the land ceases to exist. If, therefore, a widow lives for another 40 yeas, her successor in title will be entitled to make an application after 40 years. During this time the circumstances might have radically changed. It will, therefore, be unreasonable to hold that the material date should be April 1, 1957, in every case.
12. In our opinion, therefore, the material date cannot be the same in all cases. It seems to us that a distinction must be drawn between cases in which the title to the land had passed to the tenant before the decision of the application under k. 88C. and those in which the tenant might acquire the right of purchasing the land after such application has been decided. Where the landlord does not belong to one of the categories specified in sub-s. (3) of s. 31 and where no application for possession was made under s. 29 read with s. 14 or s. 31 before April 1, 1957, the tenant will be deemed to have purchased the land on April 1, 1957. Where an application for possession was made before April 1, 1957 and has been rejected before the decision of the application made by the landlord under s. 88C, the tenant is to be deemed to have become the owner on the date on which the application for possession was decided. In both these class of cases, the date on which the title became vested in the tenant is a known and a certain date. The circumstances of the landlord as on this date should, therefore, be considered in order to determine whether he is entitled to claim exemption under s. 88C. Consequently in such cases the material date would be the date on which the tenant is deemed to have purchased the land. If it is found that on this date the landlord fulfilled the condition laid down in s. 88C, the tenant will lose the right of purchase previously acquired by him. In other cases, in which the applications under s. 88C are decided before the tenants can be deemed to have purchased the lands held by them, the material date cannot obviously be the postponed date. It will also not be April 1, 1957, for the reasons which have been already mentioned. In such cases, as it cannot be ascertained at the time the application under s. 88C is decided, on what date, if any, the tenant will be deemed to have purchased the land, the conditions as obtaining on the date on which the landlord seeks exemption, that is the date on which he makes an application under s. 88C, should be considered. Consequently, in cases in which the application under s. 88C is decided before the postponed date, that is before the date on which the tenant might acquire the right to purchase the land, the date on which the landlord's position, in regard to his income and the extent of lands leased by him, should be ascertained for the purposes of s. 88C, should be the date, on which he bad made the application under this section.
13. I will now refer to the previous decisions of this Court. As pointed out by Mr. Justice Tarkunde in the referring judgment, it has been held in several eases that the circumstances obtaining on April 1, 1957, must be considered for the purpose of deciding whether the landlord is entitled to a certificate under s. 88C. In most of these cases either no application for possession had been made on the grounds mentioned in s. 14 or s. 31 before April 1, 1957, or the fact of such an application having been made was not brought to the notice of this Court. Consequently it was rightly held that the material date was April 1, 1957. In Shree Shankar Chatru Patil v. Narayan Mahasing Patil . 1961 Special Civil Application No. 204 of 1961, decided by Chainani C.J and Shah J., on November 14, 1961 Unrep.., which has been referred to by Mr. Justice Tarkunde, the facts were that both the applications, which had been made by the landlord for obtaining possession of the lands, had been dismissed on September 12, 1957, whereas the application for obtaining a certificate under s. 88C was made a long time thereafter in 1959. Before then the tenant had already acquired the right to purchase the lands. It was, therefore, held that the material date for the purposes of s. 88C was September 12, 1957. The view taken in that case is, therefore, in accordance with the view, which we are now taking.
14. Reference has been made to the decision of a Full Bench of the Gujarat High Court in Madhaji v. Mashrubhai . 1962 III G.L.R 438, F.B. It was held in that case that the landlord, who claims exemption under s. 88C of the Bombay Tenancy and Agricultural Lands Act, must fulfil the condition of annual income mentioned therein with reference to the year preceding the tillers' day, i.e from April 1, 1956, to March 31, 1957, and not the postponed date or any other date. The learned Judges have given two main reasons for taking this view. The first is that the condition imposed by s. 32 on a tenant that he must cultivate the land personally, before he can be deemed to have purchased the land, must be fulfilled by him on April 1, 1957. The second reason, which weighed with the learned Judges, was that if April 1, 1957, is not taken as the material date, it would.
“be tantamount to putting a premium upon the course of action of a landlord and of permitting him to alter the rights of his tenant by resort to a proceeding which” was “ultimately found to be unjustified by a competent authority” and during the pendency of which proceeding, “a landlord could devise means to alter his position in such a way as to fulfil the conditions laid down in section 88C, though he might not have fulfilled the same on the tillers' day.”
15. With regard to the first reason, it seems to us, with great respect to the learned Judges, that for reasons, similar to those which we have given why April 1, 1957, should not be the material date in all eases, it may be reasonable to hold that the tenant must satisfy the requirement about the land being cultivated by him personally on the day on which he would otherwise be deemed to have purchased the land. We do not also think that the second reason mentioned above would be a sufficient ground for holding that the material date should be April 1, 1957, in every case. In our opinion, therefore, the reply to the question referred to the Full Bench will be that in cases, in which a tenant is deemed to have purchased the land held by him as a tenant before the application made by the landlord under s. 88C of the Act is decided, the date on which the landlord should satisfy the requirements of s. 88C, in order to be eligible to obtain a certificate under this section, is the date on which the tenant is deemed to have purchased the land. In other cases the material date, by reference to which it should be decided whether the landlord is entitled to a certificate under s. 88C, will be the date on which the landlord had made an application under this section.
16. Answer accordingly.