V.R. Datar, J.
1. What is the material date for comparing the holdings of the landlord and tenant in a proceeding under section 33-B(5)(b) of the Bombay Tenancy and Agricultural Lands Act, 1948 ? (hereinafter referred to as the Tenancy Act) is a short but important question involved in this writ petition.
2. It arises as follows: The petitioner is the landlord of land bearing Survey No. 420/4 admeasuring 3 Acres 38 Gunthas of Village Rethare-Harnax, Taluka Walwa, District Sangli. The petitioner also owned other lands, Survey Nos. 300 and 374/1 of Village Rethare, which were held by the other tenants. The petitioner applied for and obtained exemption certificate under section 88-C of the Tenancy Act on 10-10-1968 from Tenancy Aval Karkun in respect of these three lands separately. The petitioner then issued notice terminating the tenancy of the respondent, herein, on 7-11-1968 which was duly received by the tenant-respondent. Thereafter, on 29-11-1968, he filed application under section 33-B(5)(b) read with section 29 of the Tenancy Act for possession of the land. It appears that the order granting exemption certificate under section 88-C was challenged by the tenant before the appellate authority and also the Maharashtra Revenue Tribunal at Kolhapur and also in the High Court and all these proceedings were decided in favour of the petitioner-landlord; High Court ultimately dismissing the writ petition on 3rd April 1974. It also appears from the judgment of the Tenancy Courts that, meanwhile, the papers of the case filed by the petitioner for possession were not traceable and, therefore, the record was directed to be reconstructed. Thereafter, evidence was recorded.
2A. On 28th April 1980 Tenancy Aval Karkun decided the application numbered as Tenancy Case No. 134 of 1968 holding that the petitioner bona fide required the land for cultivation and, therefore, after comparing the respective holdings of the petitioner and the respondent as on 29-11-1968, when the application for possession was filed, came to the conclusion that there was no land held by the petitioner-landlord and was, therefore, entitled to restoration of the possession of entire land of 3 Acres 38 Gunthas.
3. Appeal was preferred against this decision before the Leave Reserve Deputy Collector, Sangli, being Appeal No. 198 of 1980. The appellate authority disagreed with the Tenancy Aval Karkun in regard to the date on which the holding of the landlord and tenant is to be taken into consideration and held that the respective holding on the date of the order which is passed on 28-4-1980 by the Tenancy Aval Karkun is to be taken into consideration and on that day the petitioner was in possession of 3 Acres 34 Gunthas of land. Thus, in case possession of 4 Gunthas land out of the suit land was to be given it would create a fragment which was prohibited. That is how, the Leave Reserve Deputy Collector set aside the order of Tenancy Aval Karkun by allowing the appeal by his judgment and order dated 8th September 1981.
4. Against that decision, the present petitioner-landlord filed Revision Application being No. MRT-SS-297/81, The learned Member of the Tribunal, on consideration of the matter, came to the conclusion that 88-C proceedings were finally decided by the High Court on 3rd April 1974 and, therefore, the notice of termination could be issued within three months thereafter and the application could be filed after such notice. Thus, according to Maharashtra Revenue Tribunal, the year 1974 is the crucial time when holding of the landlord and tenant will have to be considered. On consideration of such holding, it was found that the total holdings of landlord and tenant was 14 Acres 3 Gunthas and if divided by two, the same would come to 7 Acres 1 1/2 Gunthas. The actual holding of the petitioner was found to be 5 Acres 31 Gunthas and, therefore, the petitioner was found entitled to restoration of 1 Acre 10 1/2 Gunthas of land out of the suit land. Accordingly, the Maharashtra Revenue Tribunal, partly allowed the revision application, set aside the orders of the courts below and directed restoration of 1 Acre 10 1/2 Gunthas land to the petitioner-landlord and this order is challenged in the present writ petition.
5. Mr. Agrawal, for the petitioner, submitted that the question of bona fide requirement of the petitioner-landlord is consistently held proved by all the courts below and the only question was the material date to be taken into consideration for the purpose of determining the holdings of the landlord and tenant. In that behalf, Mr. Agrawal submitted that the date of filing of the application in this case viz., 29-11-1968 is the date which is to be taken for the purpose of determining the comparative holdings of the landlord and the tenant and the Tenancy Aval Karkun has rightly decided the matter. Mr. Agrawal submitted that if 29-11-1968, the date of the filing of the application, is taken to be the date on which the respective holdings are to be seen, admittedly the petitioner had no land in his possession on that day as the other two proceedings in respect of similar provisions claiming possession from other tenants were found pending and no final orders were passed. That way, the holding of the landlord was nil on 29-11-1968 and, therefore, the petitioner was entitled to resumption of entire suit land viz., 3 Acres 38 Gunthas as held by the Tenancy Aval Karkun, Mr. Agrawal, therefore, submitted that both the Leave Reserve Deputy Collector as well as the Maharashtra. Revenue Tribunal took into consideration wrgng dates for determining such holdings and erroneously awarded possession of part of the land to the petitioner. In support of his submissions, Mr. Agrawal has placed reliance upon certain decisions to which a reference would be made just hereinafter.
6. Mr. Patil, appearing for the respondent-tenant, strongly supported the judgment of the Maharashtra Revenue Tribunal. He contended that the material date for comparing the respective holdings would be the date on which the original tenancy Court passed order for resumption of possession under section 33-8(5)(b) of the Tenancy Act or the date on which 88-C exemption certificate proceedings were finally terminated by the High Court on 3rd April 1974. Thus, according to Mr. Patil, if either of these two dates is considered, the order of the Revenue Tribunal is quite justified and requires no interference by this Court.
7. It is not disputed that on 29-11-1968, the petitioner-landlord owned only three lands which were tenanted one and which are referred to above and he was not in possession of either of these lands. That way, the Tenancy Aval Karkun held that the holding of the petitioner was nil on 29-11-1968. It was then found that the respondent besides the suit land was in possession of Survey No. 368/1 (Block No. 1704). That way, the Tenancy Aval Karkun held that the holding of the respondent-tenant was 3 hectares 36 ares including the suit land. It was also found that the respondent-Tenant
had gifted away lands bearing Survey Nos. 4000/1-8 and 416 to his minor son, Rajaram, by Mutation Entry No. 8466 on 10-9-1968. That was before the filing of the application for possession by the petitioner on 29-11-1968. Thus, excluding that gift in favour of minor son by the respondent, the Tenancy Aval Karkun found that the holding of the petitioner was nil while that of the respondent was 3 hectares 36 ares. The suit land was 3 Acres 38 Gunthas converted into Gat No. 1891 and in terms of hectares and ares it was 1 hectare 60 ares. Relying upon the decision of this Court in Madhav V. Wani v. D.B. Banaji, 1966 T.L.R. 3, the Tenancy Aval Karkun held that the petitioner was entitled to possession of the entire land. This factual position found by the Tenancy Aval Karkun is not disputed by either side though, having regard to the different dates as contended by Mr. Patil for the respondents, the holdings of the petitioner and the respondent would differ. If, therefore, the material date is found to be 29-11-1968 as held by the Tenancy Aval Karkun it is not disputed that the petitioner would be entitled to resumption of entire suit land. Let us therefore, proceed to consider the various decisions and find out the material date in this behalf.
8. Reliance is first placed upon the decision reported as Notes of Cases in 1972 Mah.L.J. 6, Note No. 10, Damu Sakharam Fulzadar v. Bhaskar Pralhad Patil, decided by Wagle, J., on 17-8-1971. In that case, the landlord filed application under section 33-B(5)(b) of the Tenancy Act for restoration of possession of the land for personal cultivation. During the pendency of that application, the landlord died and his heirs were brought on record. Tenancy Aval Karkun, in that case, directed restoration of possession of half the suit lands but in appeal the possession of the entire land was awarded and Maharashtra Revenue Tribunal confirmed that appellate decision. When the matter was taken to this Court, a contention was raised that the question of bona fide requirement of the landlord had to be considered differently by considering the requirement of the heirs. For that purpose, reliance was placed upon the decision in 72 Bom.L.R. 695. In these facts, this Court held that circumstances as they existed at the time when the application under section 33-B was made should alone be taken into consideration and what was inherited by the heirs included the right to proceed with the proceedings since it affected property which was capable of inheritance. That is how the decision of the Revenue Tribunal was confirmed and the decision in 72 Bom. L. R. 695 was dissented. However, it appears that the question involved in this decision was regarding ascertainment of bona fide requirement of the landlord and with reference to the same, the date of the application for possession is alone to be taken into consideration.
9. It appears that before the Maharashtra Revenue Tribunal two decisions of this
Court were cited and one of them has been referred to by the learned Member and the
same is reported in 1966 T.L.R. 3. In regard to that the Revenue Tribunal observed :
“From that decision, it will be seen that the facts appearing before the Hon’ble
High Court in that case and the facts appearing in the present enquiry
are standing on the different footing. The certificate issued in favour of
the landlord was not challenged by actual filing of any proceeding. What
was argued relying on certain previous decisions of the Hon’ble High
Court by the advocate concerned is that under section 88-D of the Act,
there is a provision for challenging the certificate on the ground of
increased income of the landlord and there is no time-limit. That was a
single argument and, therefore, the Hon’ble High Court Judges have not
given much weight to that provision of law. Here, in the present enquiry,
it will be seen that the certificate has been challenged by filing appeal
and the proceedings upto the Hon’ble High Court and ….. the Hon’ble
High Court lastly on 3-4-74 confirmed the certificate in favour of the landlord. Here, it will be seen that no doubt the landlord has filed application in the year 1968, after getting the certificate, there is a distinction in ….. the above referred Division Bench case and in the present enquiry to the effect that the certificate itself was actually challenged by the tenants when the matter was carried upto Hon’ble High Court. ….. as the certificate was challenged, he could have filed application under section 33-B of the Act, after confirmation of the certificate by the Hon’ble High Court i.e. on 3-4-74, within three months thereafter. This being the position the decision noted in the above referred Division Bench case cannot mutatis mutandis made applicable to the facts of the present enquiry.”
10. With very great respect to the learned Member of the Tribunal, he has not correctly appreciated the ratio laid down in the decision of this Court in 1966 T.L.R. 3, Madhav V. Wani v. D.B. Banaji, Special C.A. No. 862 of 1964 decided on 17-1-1966. In this very decision, the Court indicated that the principle that a Court can mould its decree according to the circumstances prevailing at the time of the decree can apply only in those cases where the rights of the parties to a litigation have suffered an alteration during the course of the litigation as a result of intervening circumstances. The principle can have no application where the intervening circumstances do not effect any alteration in the rights of the parties as they existed at the commencement of the litigation. Then this Court posed a question whether in deciding the area of the leased land to which a certificated landlord is entitled under sub-section (5)(b) of section 33-B, the legislature intended that the Court should be guided by the circumstances prevailing at the time of the certificated landlord’s application for possession or by the circumstances prevailing at the time of the final order. Thereafter, this Court clearly held.
"There can be no doubt that the area of the land to the possession of which
a certificated landlord is entitled must depend on the circumstances
prevailing at the time of the filing of his application for possession and not
on subsequent events." & nbsp;
& nbsp;
It is explained that the right of the certificated landlord to apply for possession under
section 33-B is not a recurring right. This Court further held :
“It is clear that the terms of Cl. (b) of sub-section (5) operate as a condition on the termination of the tenancy by a certificated landlord. Where a certificated landlord purports to terminate the tenancy of an excluded tenant under sub-section (1) of section 33-B, the termination is operative with regard to such area of the leased land as is specified in Cl. (b) of sub-section (5) of section 33-B. It follows that the extent to which the tenancy was lawfully terminated by the certificated landlord must be decided in the light of the circumstances which prevailed at the time of the termination, that is to say at the time when the certificated landlord applied for possession of the land.”
11. Thus, the learned Member of the Tribunal has not properly appreciated the decision of this Court which directly governs the point which fell for his consideration.
12. The Maharashtra Revenue Tribunal appears to be of the view that the application of the petitioner-landlord for grant of exemption certificate under section 88-C of the Tenancy Act being finally decided by the High Court on 3-4-1974, that should be the date to be taken into consideration for the purposes of section 33-B(5)(b) of the
Tenancy Act for determining the holdings of the landlord and tenant. This view appears to be not correct having regard to the provisions of section 33-B(3) of the Tenancy Act as well as certain decisions to which a reference would be made just hereinafter. Section 33-B, to the extent it is material, reads as follows:-
“Section 33-B. (1) Notwithstanding anything contained in section 31, 31-A or 31-B a certificated landlord may, after giving notice and making an application for possession as provided in sub-section (3), terminate the tenancy of an excluded tenant, if the landlord bona-fide requires such land for cultivating it personally.
(2) …..
(3) The notice required to be given under sub-section (1) shall be in writing,
and shall be served on the tenant-
(a) before the first day of January 1962, but
(b) if an application under section 88-C is undisposed of and pending on that date then within three months of his receiving such certificate.
and a copy of the notice shall, at the same time, be sent to the Mamiatdar. An application for possession of the land shall be made thereafter under section 29 to the Mamiatdar before the 1st day of April 1962, in the case falling under (a) and within three months of his receiving the certificate in the case falling under (b).”
13. In terms of this provision, therefore, after obtaining the exemption certificate, the landlord has to issue notice terminating the tenancy with in three months of his receiving such certificate. In this case, the petitioner obtained exemption certificate under section 88-C on 10-10-1968 and made application for possession on 29-11-1968.
14. The words “finally decided” which has been used by the Revenue Tribunal in regard to the decision of the High Court on 3rd April 1974 can be explained with the assistance of the decision of this Court in Special Civil Application No. 831 of 1968 decided on 26-8-1968, Sitaram Nathu Kotwal v. Nathu Laxman Kotwal. In that case, the question of date of deemed purchase with reference to section 32(1-A)(a) of the Tenancy Act where tenant had made an application for restoration of possession came for consideration and Bal, J., as he then was, explained the expression “Finally” and held where an application is allowed by the Mamiatdar and his order is merely confirmed in appeal or revision, it is the date of the order of the Mamiatdar which is the date of deemed purchase. An argument was advanced in that case that the date of deemed purchase contemplated by section 32 (1-A)(a) of the Act is the date on which the application of the tenant for restoration is “finally” “allowed”. In this connection, the Court observed:
“The word “finally” has evidently been used to provide for cases where the application after being allowed by one authority is thereafter rejected by a higher authority under the Act but the original order allowing the application is again restored in further proceedings. That is not the case here. The order allowing the petitioner’s application was passed only once and the challenge to that order by the landlords in further proceedings failed at every stage. The order allowing the application was never disturbed and the date of it viz…. is therefore the date contemplated by the section.”
15. Here in this case also the prder granting exemption certificate under section 88-C of the Tenancy Act to the petitioner passed by the Mamiatdar was merely confirmed in appeal and also in revision application by the Maharashtra Revenue Tribunal and by
the High Court on 3rd April 1974. Thus applying the ratio of this decision, it is quite clear that it is the date of order on the application that is to be taken as the date when the application is finally decided.
16. There is one more decision of this Court in this regard which would provide a key to the question for consideration in this case. In Maruti Vishnu Girme v. Gangubai Eknath Borawake, 1992 Mh.L.J. 702, Dhanuka, J., had occasion to consider service of notice under sub-section (3) of section 33-B and, in that behalf, it was held that the application filed by the landlord in that case after expiry of period of three months after receipt of exemption certificate was non est in the absence of service of notice of termination within three months from the date of certificate. Thus, it would be seen that the certificated landlord is required under sub-section (3) of section 33-B to issue notice terminating the tenancy within three months from the date of receiving the certificate and that date cannot be postponed until final decision in the matter of certificate which in this particular case was merely orders confirming the decision of the original Court. Therefore, the view of the Maharashtra Revenue Tribunal that the petitioner could have filed application under section 33-B of the Act within three months from the date of decision of the High Court on 3rd April 1974 does not appear to be correct.
17. As against this, Mr. Patil for the respondent has relied upon unreported decision of this Court in Special Civil Application No. 1212 of 1975 decided on 21st February 1980, Appa Ravaji Belikatti v. Anant Shripad Joshi. No doubt similar question arose in that case but Justice Pratap who delivered the judgment in this case in paragraph 6 observed :
“In this petition, it is not necessary to decide the further question viz., which of the two dates viz., date of the application for possession or date of the first order of the Tahsildar is more appropriately the relevant date because, in this case, taking either of these two dates, the facts and circumstances qua bona fide requirement are virtually the same and, therefore, finding thereon with reference to either of these dates would also be the same and uniform in favour of the landlord.”
18. This decision would not, therefore, help Mr. Patil in support of his submission that at least the date of the decision of application under section 33-B of the Tenancy Act by the landlord would be the material date for determining the respective holdings of landlord and tenant.
19. In view of the aforesaid position, I am of the opinion that the material date for the purpose of determining the respective holdings of landlord and tenant for the purpose of section 33-B(5)(b) of the Tenancy Act would be the date of the application filed by the landlord for that purpose which in this case would be 29-11-1968. If that is the date material, as discussed above, there is no dispute that the petitioner-landlord had no land in his holding and was, therefore, entitled to restoration of possession of the entire land. I, therefore, find that the order passed by the Tenancy Aval Karkun is quite correct and the Leave Reserve Deputy Collector and the Maharashtra Revenue Tribunal wrongly interfered with his order and petition will, therefore, have to be allowed.
20. Accordingly, writ petition is allowed. Orders of Maharashtra Revenue Tribunal and Leave Reserve Deputy Collector dated 23-12-1982 and 8-9-1981 respectively are quashed and set aside and that of Tenancy Aval Karkun dated 28-4-1980 is restored. Rule is made absolute accordingly. No order as to costs.
21. Petition allowed.
