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Ramchandra Anant Joshi v. Janardan Tulshiram Ghuge
Factual and Procedural Background
The petitioners, landlords, issued a notice to their tenant (opponent No. 1) before December 31, 1956, under section 31 of the Bombay Tenancy and Agricultural Lands Act, terminating the tenancy on the ground of bona fide requirement for personal cultivation. Before March 31, 1957, they applied to the Mamlatdar for possession on the same ground; this application remains pending and is under appeal before the Deputy Collector. During this pendency, on July 17, 1958, the landlords served another notice under section 14 terminating tenancy due to rent defaults. Subsequently, on December 11, 1958, they applied under section 29 read with section 14 for possession based on rent defaults from 1953-1954 to 1957-1958. Possession was initially restored to the landlords by the Tenancy Aval Karkun but was set aside by the Deputy Collector who held the second application not maintainable. This order was confirmed by the Revenue Tribunal. The landlords have filed the present special civil application challenging the Tribunal's decision.
Legal Issues Presented
- Whether the landlords' application for possession under section 29 read with section 14 was untenable because the tenancy had already been terminated under section 31, thus precluding a second termination under section 14.
- Whether the landlords' application under section 29 read with section 14 was untenable because it was filed after March 31, 1957.
Arguments of the Parties
Tenant's Arguments
- The tenancy was already terminated by a notice under section 31, so no tenancy existed thereafter to be terminated again under section 14.
- Consequently, the second application for possession based on termination under section 14 was not maintainable.
Landlords' Arguments
- The notice under section 31 does not necessarily terminate the tenancy if defective or waived; thus, tenancy may continue.
- A second notice terminating tenancy under section 14 is permissible, especially during pendency of the first application for possession.
- The provisions of the Transfer of Property Act, particularly sections 111(h) and 113, support the validity of a second notice to quit.
- Section 3 of the Tenancy Act incorporates relevant provisions of the Transfer of Property Act, allowing such notices.
- No provision bars making an application under section 29 read with section 14 after March 31, 1957, except for landlords not belonging to special categories.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Dagdulal Hirachand Marwadi v. Dattatraya Nam Sonar (1957 Special Civil Application No. 3584 of 1956) | Tenancy termination under section 34 results in no tenancy remaining to be surrendered. | Referred to illustrate prior judicial views on tenancy termination but distinguished as the question of second notice was not argued there. |
| Prahlad Ganpati Pawar v. Bhimashankar Apparao Nalavade (1957 Special Civil Application No. 16 of 1957) | Once tenancy is validly terminated, no tenancy survives to be surrendered. | Referred to support the principle on tenancy termination but noted that the issue of multiple notices was not considered. |
| Janardhan Damodar Dindore v. Rupchand Revchand Gujar (1961 Special Civil Application No. 667 of 1961) | Application under section 29 read with section 14 after March 31, 1957, may be maintainable. | Distinguished; the present court opined that this question was not fully argued previously and likely would have been decided differently. |
Court's Reasoning and Analysis
The Court analyzed the validity of a second notice terminating tenancy after a prior notice under section 31. It rejected the tenant's argument that a prior notice under section 31 conclusively ends the tenancy, emphasizing that a notice may be defective or waived, thus maintaining the tenancy. The Court relied on the Transfer of Property Act (sections 111(h) and 113) and its illustrations to establish that a second notice to quit is permissible and not invalid merely because a prior notice was given. The Tenancy Act's section 3 incorporates these principles, permitting the landlord to give multiple notices and apply for possession on different grounds.
Regarding the timing of the application under section 29 read with section 14, the Court examined the statutory framework. Section 31 prescribes deadlines (December 31, 1956, for notice and March 31, 1957, for application) for certain grounds of termination, with extensions for special categories of landlords. However, no specific deadline is prescribed for applications under section 14. Section 32 deems tenants to have purchased the land on April 1, 1957, unless the landlord had applied for possession before that date. The Court interpreted this scheme as intending to transfer ownership to tenants by April 1, 1957, except where timely applications had been made. It concluded that allowing applications under section 29 read with section 14 after April 1, 1957, would conflict with this intention, as it could affect the tenant's right to purchase the land.
Consequently, the Court held that landlords not belonging to special categories (minor, widow, disabled, serving armed forces personnel, or certificated landlords) cannot maintain applications under section 29 read with section 14 after April 1, 1957. The Court distinguished a prior decision (Janardhan Damodar Dindore) on this point, noting it was not fully argued there.
In the present case, since the landlords do not belong to special categories, the maintainability of their application depends on whether they have been granted a certificate under section 88C. If so, the application is maintainable despite being filed after March 31, 1957; if not, it is not maintainable.
Holding and Implications
The Court held that the landlords' application for possession under section 29 read with section 14 was not untenable merely because they had previously terminated the tenancy under section 31. A second notice terminating tenancy is valid and may be given.
However, the Court held that landlords who do not belong to the special categories specified in subsection (3) of section 31 or who are not certificated landlords cannot make an application under section 29 read with section 14 after April 1, 1957. This restricts the landlords' ability to file such applications beyond that date unless they qualify under the exceptions.
The direct consequence is that the landlords' application filed after March 31, 1957, will be maintainable only if they hold a certificate under section 88C; otherwise, it is not maintainable. The Court did not establish any new precedent but clarified the interpretation of statutory provisions concerning timing and grounds for termination and possession applications under the Bombay Tenancy and Agricultural Lands Act.
Chainani, C.J:— The petitioners landlords had given a notice to their tenant opponent No. 1 before December 31, 1956, under s. 31 of the Bombay Tenancy and Agricultural Lands Act terminating the tenancy on the ground that they required the lands bona fide for personal cultivation. Subsequently, before March 31, 1957, they made an application to the Mamlatdar for obtaining possession of the lands on the ground that they required them for personal cultivation. That application has not yet been finally disposed of and the matter is pending in appeal before the Deputy Collector. During the pendency of that application on July 17, 1958, the petitioners gave another notice to opponent No. 1 under s. 14 of the Act terminating the tenancy on the ground of defaults in the payment of rent. On December 11, 1958, the petitioners made an application under s. 29 read with s. 14 to the Mamlatdar for obtaining possession of the lands on the ground that there were defaults in the payment of rent for the years 1953-1954 to 1957-1958. The Tenancy Aval Karkun directed that possession of the lands should be restored to the petitioners. His order was set aside in appeal by the Deputy Collector, as according to the Deputy Collector the second application made for possession by the petitioners on December 11, 1958, was not maintainable. The order of the Deputy Collector has been confirmed in revision by the Revenue Tribunal. Against that order, the present special civil application has been filed.
2. The Division Bench, before which this application came up for hearing, has referred the following two questions to the Full Bench:
“Whether the landlords' application for possession under section 29 read with section 14 was not tenable on the ground that the landlords, having once terminated the tenancy under section 31 of the Act, were not entitled to terminate the tenancy again on any of the grounds mentioned in section 14 of the Act; and
Whether the landlords' application under section 29 read with section 14 was not tenable on the ground that it was filed after the 31st of March 1957.”
3. In regard to the first question, the principal argument, which has been advanced on behalf of the tenant, is that the tenancy having been already terminated by a notice given under s. 31, there was no tenancy in existence thereafter, which could be terminated by the second notice and that consequently the second application, in which possession was claimed on the basis of termination of a tenancy, which did not exist, was not maintainable. There does not appear to be much force in this argument. It assumes that a notice given by the landlord always results in determination of the tenancy. If the notice is for any reason defective, it will Have no effect and the tenancy will continue. The landlord may also waive the notice, in some cases with assent of the tenant and in others, like those involving forfeiture, without such assent. For instance, if after giving a notice under s. 31, the landlord does not follow it up with an application for possession to the Mamlatdar, the notice will be deemed to have been waived. The consequence of waiver is to revive or restore the old tenancy: see Mulla's Transfer of Property Act, p. 696, fourth edition. The giving of a notice determining the tenancy will not, therefore, preclude the landlord from giving another notice. It is also clear from the provisions of s. 113 of the Transfer of Property Act and Illustration (b) to this section that under the ordinary law a second notice for terminating the tenancy can be given. Clause (h) in s. 111 of the Transfer of Property Act provides that a lease of immoveable property determines on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other. Section 113 states that a notice given under s. 111, cl. (h), is waived, with the express or implied consent of the person to whom it is given, by any act on the part of the person giving it showing an intention to treat the lease as subsisting. Illustration (b) to this section is as follows:
“A, the lessor, gives B, the lessee, notice to quit the property leased. The notice expires, and B remains in possession. A gives to B as lessee a second notice to quit. The first notice is waived.”
4. This illustration makes it clear that a second notice to quit the property leased may be given, even though a similar notice has been given previously. It is not necessary for us to consider in this case what the consequences of the second notice will be. These will depend upon the facts and circumstances of each case. The second notice may in certain circumstances result in a waiver of the first notice. If it is given without prejudice to the rights created by the first notice, it may furnish to the landlord an alternative ground for obtaining possession of the property leased. If there is no waiver and if the lease came to an end by reason of the first notice, the second notice may become ineffective. On the other hand, the first notice may for some reason not he effective in terminating the tenancy and the second may be. But whatever may be the effect of the second notice, it is not invalid, merely because another notice terminating the tenancy had been already given. This is the position under the ordinary law and the position under the Tenancy Act cannot be different. In fact s. 3 of the Tenancy Act states that the provisions of Chapter V of the Transfer of Property Act shall, in so far as they are not inconsistent with the provisions of the tenancy act, apply to the tenancies and leases of land to which the Tenancy Act applies. Section 29 of the Tenancy Act states that no landlord shall take possession of any land held by a tenant except under an order of the Mamlatdar. A landlord cannot, therefore, obtain possession of the land from his tenant, even if the tenant is willing to hand over possession to him. He has to approach the Mamlatdar for the purpose. Under the ordinary law, if a tenant continues in possession after his tenancy has been determined, his possession is protected by law and he cannot be ousted except in due course of law, but he has no right to possession after the termination of tenancy. Under the Tenancy Act, however, even after his tenancy has been determined by a notice given by his landlord, the tenant has a legal right to continue in possession, until the Mamlatdar has made an order for possession being restored to the landlord. During the intervening period, the tenant has an estate in possession, of which he can only be deprived by an order of the Mamlatdar. A landlord cannot say for certain whether his application for possession based on the termination of the tenancy by him will be granted by the Mamlatdar. Consequently, if during the above period, i.e the period between the termination of the tenancy by a notice given by the landlord and the disposal of the application for possession made to the Mamlatdar by the landlord, another ground for taking back possession of the land under the provisions of the tenancy act becomes available to the landlord, there is no reason why he should not be able to terminate the tenancy and apply for possession on that ground also. It seems to us, therefore, that even after the landlord has terminated the tenancy by giving a notice under s. 31, it is open to him to give another notice intimating to the tenant his intention to terminate the tenancy under s. 14 and to approach the Tenancy Court for possession on the grounds mentioned in this s. 14.
5. We have been referred to the decision of Dixit and Tendolkar, JJ. in Dagdulal Hirachand Marwadi v. Dattatraya Nam Sonar . 1957 Special Civil Application No. 3584 of 1956, decided by Dixit and Tendolkar, JJ., on March 8, 1957 Unrep.., In the course of his judgment in that case, Dixit, J. observed:
“In the first place, the landlords did terminate the tenancy under section 34. If the tenancy was terminated, then there could be no other tenancy remaining which the tenant could validly surrender under section 5.”
6. These observations were referred to by Tendolkar, J. in judgment in Prahlad Ganpati Pawar v. Bhimashankar Apparao Nalavade . 1957 Special Civil Application No. 16 of 1957, decided by Tendolkar and Shelat, JJ., on July 17, 1967 Unrep.., in which he observed: “…and once tenancy has been validly terminated there survives no tenancy which can be surrendered.”
7. It is possible to take the view that where a landlord claims possession on the basis of a surrender by the tenant of his tenancy rights, made after the landlord had previously given a notice terminating the tenancy, he waives the notice given by him and that consequently the surrender is valid. It is not necessary for us to consider this matter further, because in neither of these two cases the question, whether a second notice terminating the tenancy can be given by the landlord, was argued or considered.
8. The reply to the first question, therefore, will be that the application for possession made by the landlords under s. 29 read with s. 14, was not untenable merely on the ground that they had previously terminated the tenancy by a notice given by them under s. 31 of the Act.
9. The next question, which has been referred to the Full Bench, is more difficult and not easy to decide. In this connection it is necessary to refer to certain relevant provisions of the 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 specified in this section. This section, therefore, curtails the right of a landlord to terminate the tenancy of his tenant and he can do so only on one or the other ground specified in this section. Section 31 enables a landlord to terminate the tenancy on two more grounds and these are that he requires the land bona fide for cultivating it personally or for any non-agricultural purpose. Sub-section (1) of s. 31 states that if the landlord requires the land for any of the these purposes, then notwithstanding anything contained in s. 14 he may, after giving notice and making an application for possession as provided in sub-s. (2), terminate the tenancy. Sub-section (2) 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) extends the time for giving a notice and making an application under sub-s. (2), 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. Section 33B enables a certificated landlord, that is, a landlord to whom a certificate has been issued under s. 88C, to make an application for possession, if he requires the land bona fide for cultivating it personally, till April 1, 1962, or within three months of his receiving a certificate under s. 88C, unless the landlord belongs to one of the categories mentioned in sub-s. (3) of s. 31, in which ease, subject to certain conditions, the time for making an application is further extended. But apart from the landlords belonging to the categories mentioned in sub-s. (3) of s. 31 and certificated landlords, the last date for making an application under s. 31 in the case of other landlords was March 31, 1957. After this date no application for possession, on the grounds mentioned in s. 31, could be made by any such landlord. No similar date has been prescribed in respect of an application for possession on the grounds referred to in s. 14. There is no provision in s. 14 or in any other part of the Act, which debars a landlord, who does not belong to one of the special categories mentioned above, from making an application for possession under s. 29 read with s. 14 after April 1, 1957.
10. The other material section to be referred to is s. 32. Sub-section (1) of this section states that on the first day of April 1957, referred to as the tillers' day, every tenant shall, subject to the provisions of this section and the provisions of the nest 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—(i) the landlord has not given notice of termination of his tenancy under s. 31; or (ii) notice has been given under s. 31, but the landlord has not applied to the Mamlatdar on or before March 31, 1957, under s. 29 for obtaining possession of the land; or (iii) the landlord has not terminated this tenancy on any of the grounds specified in s. 14, or has so terminated the tenancy but has not applied to the Mamlatdar on or before March 31, 1957, under s. 29 for obtaining possession of the lands. The first proviso to this sub-section is as follows:
“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’:”
11. This section does not apply to the tenants of landlords belonging to the categories specified in sub-s. (3) of s. 31, in regard to whom separate provision has been made in s. 32F. Similarly, s. 330 and not s. 32 applies to tenants of certificated landlords. But barring these special cases, under s. 32, subject to other conditions, with which we are not concerned, a tenant shall be deemed to have purchased from his landlord the land held by him as a tenant on April 1, 1957, provided no application for possession had been made by the landlord on or before March 31, 1957. If such an application had been made before April 1, 1957, then the tenant lost his right to become the owner on April 1, 1957. But in that case he shall be deemed to have purchased the land on the postponed date, that is, on the date on which the final order rejecting such application is passed. Where, therefore, an application for possession had been made by the landlord before April 1, 1957, the tenant did not acquire the right of purchase under s. 32 on April 1, 1957. He acquires this right on the postponed date, provided the application for possession is rejected.
12. The question, which arises for determination now, is whether a landlord can make an application for possession on the grounds mentioned in s. 14, while an application for possession made by him before April 1, 1957, is pending, or whether this right is impliedly taken away by s. 32, under which the tenant shall be deemed to have purchased the land, if the first application is ultimately rejected. The application for possession referred to in the proviso to sub-s. (1) of s. 32 is the application referred to in cls. (ii) and (iii) of this sub-section, that is, the application made before April 1, 1957. The right of purchase conferred on the tenant is postponed only till the date on which such, application is finally rejected. There is no similar provision in regard to applications made after April 1, 1957. It is, therefore, obvious that the postponed date cannot be further postponed. If, therefore, the application made by the landlord under s. 29 read with s. 14 after April 1, 1957, is not disposed of before the earlier application for possession made prior to April 1, 1957, is decided, it will become infructuous, for after the tenant has become the owner on the postponed date, the relationship of landlord and tenant will cease and no application for possession by the landlord can be entertained thereafter. If, however, the application made by the landlord after April 1, 1957, is decided before the previous application made prior to April 1, 1957, is disposed of, it might, if this application is decided in favour of the landlord, affect the right conferred on the tenant to become the purchaser of the land on the date on which the first application is rejected. The question to be considered, therefore, is whether such an application can be entertained. It has been contended that as there is no provision in the Act that an application on the grounds mentioned in s. 14 cannot be made after April 1, 1957, such an application is maintainable, for since the Legislature has preserved the right to make such an application, it could not have intended that it should not be availed of in any case. There is undoubtedly force in this argument, but it seems to us that the intention of the Legislature in enacting s. 32 clearly was to transfer the ownership of the lands to the tenants on April 1, 1957, except in cases where applications for possession had been made by the landlords before April 1, 1957. Where such an application had been made, the right of purchase given to the tenant is postponed until that application is rejected. It is clear from this section that the Legislature did not intend that the right given to a tenant by this section should be destroyed or affected by any application made after April 1, 1957. If an application for possession made under s. 29 read with s. 14 after April 1, 1957, is decided in favour of the landlord before the application made by him prior to April 1, 1957, is disposed of, it will affect the right of the tenant to become the owner of the land on the postponed date. It seems to us that this was not intended by the Legislature. The fact that the Legislature has provided that only an application made prior to April 1, 1957, should affect the right of the tenant to become the purchaser of the land on April 1, 1957, clearly indicates that the Legislature contemplated that no such application should be made after April 1, 1957.
13. In our opinion, therefore, where the landlord does not belong to one of the categories specified in sub-s. (3) of s. 31 or is not a certificated landlord, he cannot make an application under s. 29 read with s. 14 after April 1, 1957. This view is not in accordance with that taken in Janardhan Damodar Dindore v. Rupchand Revchand Gujar . 1961 Special Civil Application No. 667 of 1961, decided by Chainani, C.J and Mody, J., on October 21, 1961 Unrep... The question does not then appear to have been fully argued. If full arguments had been advanced in that case, it is quite likely that a different view would have been taken.
14. In the present case it does not appear that the landlords belonged to the categories mentioned in sub-s. (5) of s. 31. The reply to the second question will, therefore, depend upon whether the landlords had made an application under s. 88C of the Act and whether that application has been granted or rejected. If the landlords have been granted a certificate under s. 88C of the Act, s. 32 will not apply and the application made by the landlords for possession of the lands will be maintainable, even though it had been made after March 31, 1957. If, on the other hand, no application had been made by landlords under s. 88C of the Act or if such application had been made and has been rejected, the application for possession under s. 29 read with s. 14 would not be maintainable on the ground that it had been made after March 31, 1957. The matter will now be placed before the Division Bench for further disposal in accordance with law.
15. Answers accordingly.
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