Full Judgment Text
2007:BHC-AS:14231
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4595 OF 1984
Shripad Yeshwant Kulkarni, )
Occupation service, Modern )
College of Arts, Science and )
Commerce, Shivaji Nagar, Pune )
411005. ) .....Petitioner.
V/s
Shri Mahadeo Shankar Jadhav )
(Since deceased, through his LRs )
1(i) Kuber Mahdeo Jadhav, )
Age60 Years, Occ: Agriculture, )
R/o. Yenki, Taluka Mohol, )
District Solapur. )
Presently r/o Telgaon, Taluka )
Uttar, Solapur. )
)
1(ii) Smt. Bhagirathi Mahadev )
Jadhav, (widow) Age 79 Years, )
Occ. Agriculture, R/o. Telgaon )
Taluka Uttar, Solapur, District )
Solapur, Maharashtra )
)
2. The Maharashtra Revenue )
Tribunal, Pune. ) .....Respondents.
Mr. T.D. Deshmukh for the Petitioner.
Mr. S.M. Sabrad for Respondent Nos 1(i) & 1(ii).
CORAM: V.M. KANADE, J.
nd
DATE : 2 August, 2007
ORAL JUDGMENT:
1. Heard the learned Counsel appearing on behalf of the petitioner
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and the learned Counsel appearing on behalf of respondents.
2. The petitioner is challenging order passed by the authorities
below whereby the petitioner’s application for possession of the land
which he has filed under section 29 read with section 14 and section
25 of the Bombay Tenancy and Agricultural Lands Act, 1948
(hereinafter referred to as “B.T. & A.L. Act”) was rejected.
3. Brief facts which are relevant for the purpose of deciding this
Petition are as under:
4. The Petitioner is a landlord of the suit land and respondents are
tenants. The disputed property pertains to land bearing Survey No.12
admeasuring 34 Acres 25 Gunthas and it was renumbered after
consolidation as Gat No.28/1. The original landlord Shri Yeshwant
Kulkarni died in 1940, leaving behind his wife Annapurnabai Y.
Kulkarni who became the absolute owner of the said property. The
landlord did not have any issue from the said wife. On 07/10/1947,
Annapurnabai adopted Shripad, son of Narsinha Pralhad Kulkarni i.e
the petitioner herein. In 1948, original respondent was put in
possession of the suit property as a tenant by Annapurnabai by
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executing registered rent note at agreed rent of Rs 300/ per month.
At that time, the petitioner herein was a minor. It is the case of the
petitioner that on 24/08/1959, notice was issued to the original
respondent by natural brother of the petitioner viz. Shamrao Kulkarni
and rent was demanded for the period 195859. It is the case of the
Petitioner that, again, by notice dated 05/08/1961, Shamrao, natural
brother of the petitioner demanded rent for the period of 196061. In
the meantime, on 02/06/1962, petitioner attained the age of
majority. On 15/08/1962, again, notice was issued by Shamrao to
the original respondent, demanding rent for the period of 196162.
Thereafter, again, notice of termination was issued on 20/11/1962 by
Shamrao to the original respondent for and on behalf of the petitoner
as a power of attorney holder of the petitioner. Thereafter, on
01/06/1963, application was filed by the petitioner under section 14
of the B.T. & A.L. Act before the Mamlatdar, Taluka North Solapur for
recovery of possession of the said land. In the said application,
statement of Annapurnabai, mother of the petitioner, was recorded in
which it is stated that she has received rent from the respondent and
that she had issued rent receipts for the same. Both parties adduced
other evidence on record. The Mamlatdar was pleased to reject the
application of the petitioner by judgment and order dated
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17/06/1966.
5. Being aggrieved by the aforesaid order, petitioner preferred an
appeal on 24/06/1968 vide Tenancy Appeal No.342 of 1967 and the
Collector was pleased to remand the matter back to Mamlatdar.
Thereafter, the matter was heard again and the Mamlatdar directed
the original respondent to deposit the arrears of rent, if any, and
accordingly the original respondent deposited an amount of Rs
3,800/ towards the rent from 1963 onwards. Thereafter, again, by
order dated 22/07/1975, Mamlatdar was pleased to reject the
application of the petitioner. The petitioner preferred an appeal
being Tenancy Appeal No.11 of 1976 which was also dismissed by the
Assistant Collector, Solapur by order dated 09/03/1977. Against this
order, petitioner preferred a revision before the MRT, Pune which
was also dismissed by order dated 02/02/1984. Against the said
orders, petitioner has preferred this writ petition.
6. This writ petition was heard by S.S. Nijjar, J. when the Counsel
for the original respondent did not appear and the matter was heard
and by order dated 21/09/1986, the Court was pleased to allow the
writ petition. Review application filed by the original respondent was
also rejected. The SLP was preferred by respondents in the Apex
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Court which was allowed and the judgment and order passed by this
Court was set aside by the order dated 06/04/2004 passed in Civil
Appeal Nos. 17521753 of 1999. The Apex Court directed this Court
to decide the matter afresh. The Apex Court passed the following
order:
“ O R D E R
The tenant is in appeal questioning the
th
validity and correctness of the judgment dated 12
September, 1997 and order made in review
st
application dated 21 September, 1998 by the High
Court reversing the order passed by the
nd
Maharashtra Revenue Tribunal dated 2 February,
1984.
Before the High Court, the appellant
remained unrepresented. The High Court, after
narrating the facts of the case, allowed the writ
petition holding that the claim of the minor
landlord could not be defeated on a technical
ground that notice was not issued by proper person
to the tenant. The question, whether the tenant
was in default for three years, namely, 195960,
196061 and 196162 was not considered.
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The learned counsel for the appellants urged
several contentions before us. The learned counsel
for the first respondent made submissions
supporting the impugned judgment.
In our view, having regard to the concurrent
finding of fact recorded by the Tahsildar, sub
divisional Officer and the Maharashtra Tribunal,
the High Court ought to have examined the merits
of the contentions having regard to the facts of the
case and the evidence placed on record, including
the question of law that arose for consideration
between the parties, whether issuing of notice by
the natural brother of the landlord after adoption of
the landlord was merely a technicality or it affected
the very validity of the notice. Unfortunately, the
appellant remained unrepresented. Thus, looking
to all aspects, we are of the view that the High
Court has to consider the writ petition afresh on
merits dealing with all the contentions raised by the
parties. In this view, the impugned judgment and
the order made in the review application are set
aside. The writ petition is remitted to the High
Court for disposal afresh in accordance with law, in
the light of what is stated above.
The civil appeals are, accordingly allowed.
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No costs.”
7. Mr. Deshmukh, the learned Counsel appearing on behalf of the
petitioner submitted that all the authorities below had erred in
holding that notices were illegal being issued by the natural brother of
the petitioner and not by the natural guardian i.e. Annapurnabai. He
submitted that perusal of section 14 clearly indicated that merely
intimation was to be given by the landlord about the default which
was committed by the tenant. He submitted that, therefore, it was
immaterial whether the intimation was given by the landlord or by
any one on his behalf. He submitted that there was no dispute that
the intimation was, in fact, given within three months from the date
of default, consecutively for a period of three year and, therefore,
requirement of section 14 of the said Act had been complied with. He
submitted that after compliance of the requirement under section 14
(1), the petitioner had given notice of termination of the tenancy
under subsection (2) of section 14 and this was admittedly given by
the power of attorney holder of the petitioner. Since, by the time this
notice of termination was given, petitioner had attained majority and
had executed power of attorney in favour of Shripad, his natural
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brother. The learned Counsel for the petitioner submitted that once
the notice of termination having been issued under subclause (2) of
section 14, benefit under section 25(1) was not available to the tenant
in view of the express provision of subclause (2) of section 25. He
submitted that since it was an admitted position that the intimation
was received by the tenant within the prescribed period and he,
having failed to deposit the said amount within the requisite period,
the benefit under section 25(1) could not have been given to the
respondent. He submitted that the lower authorities had erred in
granting benefit to the respondent under section 25(2).
In support of the said submission, the learned Counsel for the
Petitioner relied upon the judgment of this Court in the case of Smt.
Josephine Mathew Concessio Vs.Sowr Langdya Kini reported in 1964
(Vol.LXVI)194. He also relied upon the judgment of the learned
Single Judge of this Court in the case of Shaniwar Dhondu Dharnekar
Vs. Prabhavati Chandrakant Patange reported in 1979 Mh.L.J. 836 .
He submitted that, therefore, restricted meaning should not be given
to the word ‘intimation’. He submitted that dictionary meaning of
the said word means to make known or communicate by means
however indirect. He submitted that, therefore, the section
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contemplated intimation to the tenant about default which was
committed by the tenant. He submitted that, thus, in this case, there
is a clear case of default which was admitted by the respondents
tenants herein. He submitted that it was not open for the
respondents tenants now to recede from the earlier statement and
claim that they had paid the rent.
8. Mr. Sabrad, the learned Counsel appearing on behalf of
respondents tenants, however, submitted that the intimation given
by the brother of the petitioner could not be said to be legally proper
and correct. He invited my attention to section 7 of the Hindu
Minority and Guardianship Act, 1956 and submitted that adoptive
mother became the natural guardian of adopted son and, as such,
Annapurnabai could have given intimation on his behalf. He further
submitted that, in fact, it had come on record that the rent had been
paid to Annapurnabai regularly from time to time who had issued
receipts for the payment of the rent. He submitted that, initially,
though the rent was Rs 300/, after the said B.T. & A.L. Act was
amended, the rent was reduced and was fixed at 5 times the
assessment. He submitted that, therefore, there is no default
committed by the respondents herein. He submitted that tenancy
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cannot be terminated on the ground of default unless the landlord has
given three months’ notice in writing, informing the tenant of his
decision to terminate the tenancy and, provided, within that time, the
tenant has failed to make the payment of rent as demanded. Section
25 lays down the relief which could be claimed by the tenant for
termination of tenancy on the ground of nonpayment of rent. Sub
clause (1) of section 25 states that though there is nonpayment of
rent by the tenant and on that ground application is filed by the
landlord for eviction of the tenant, even then, Mamlatdar can call
upon the tenant to tender to the landlord rent in arrears together with
the cost of proceedings within three months from the date of the
order and if this order is complied with then the order of termination
can be set aside by Mamlatdar. Subclause (2) of section 25,
however, states that this concession which is given to the tenant shall
not be available to him if the tenant has failed to pay rent for any
three years and that the landlord has given intimation to the tenant to
that effect.
9. The B.T. & A.L. Act is a comprehensive piece of legislation
which provides security of tenure to all classes of tenants and it also
fixed a minimum level of rent payable. It is therefore essentially a
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beneficial piece of legislation intended to give protection to the actual
tiller of the land. Section 14 & section 25 read with section 29 of the
B.T. & A.L. Act is therefore an exception to the general rule and the
said section 14 lays down the grounds on which tenancy of tenant can
be terminated. In respect of the nonpayment of rent, again, there is a
further provision provided under subsection (1) of section 25 which
gives further protection and opportunity to the tenant to make
payment, though he has committed default after the order to that
effect is passed by Mamlatdar and if the said order is complied with
then effect of termination of tenancy ceases and the tenant can
continue to cultivate the land as tenant. However, subclause (2) of
section 25 lays down that the benefit under subsection (1) of section
25 shall not be available to such tenant who fails to pay rent for any
three years and further, provided, that the landlord has given
intimation to the tenant to that effect. In this context, therefore, the
word ‘intimation’ which is used in section 14 subclause (1)(a) and
which is similarly used in section 25 subclause (2) will have to be
construed to mean intimation given by the landlord or a person who
is lawfully authorized to give such intimation. If such an
interpretation is not given to the said word, it would mean that the
benefit which the legislature had sought to give to the tenant under
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section 25 subclause (1) would be rendered nugatory if intimation by
unauthorized person is permitted to be given. It is no doubt true that
the word ‘intimation’ has been defined in dictionary to mean
communication either directly or indirectly. This, however, cannot
mean that the legal effect which will follow pursuant to such indirect
communication would be the same legal effect as is intended by
section 14 and section 25 of the said Act. Therefore, in my view,
submission made by the learned Counsel appearing on behalf of the
petitioner that the intimation given by natural brother of the
petitioner should be construed as an intimation within the meaning of
section 14(1)(a) and section 25 subclause (2) of the said Act cannot
be accepted. The judgment on which the reliance is placed by the
petitioner in the case of Smt. Josephine Mathew Concessio (supra)
would not apply to the fact of the present case. In the said case,
Division Bench of this Court was called upon to construe the meaning
of the words “to that effect” which are found in section 25(2) of the
said Act and, while doing so, the Division Bench held that it was not
necessary for the landlord to state in the intimation that he had
intended to or had decided to terminate the tenancy and that it was
sufficient if the landlord had intimated to the tenant that he had
failed to pay the rent. The ratio of the said judgment, therefore, will
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not apply to the facts of the present case as, in the present case, the
point which is sought to be argued on behalf of the petitioner is that
the intimation by natural guardian of the petitioner was proper
intimation within the meaning of section 14(1)(a). So far as the
other judgment on which reliance is placed by the learned counsel
appearing on behalf of the petitioner viz in the case of Shaniwar
Dhondu Dharnekar (supra) is concerned, even the ratio of the said
judgment would not apply to the facts of the present case. The
learned Counsel appearing on behalf of the petitioner has relied upon
the following observations made by the learned Single Judge in para
6 of the judgment in the case of Shaniwar Dhondu Dharnekar (supra)
which reads as under:
“6.....................What is contemplated by sub
section (2) of section 25 is that it is obligatory
on the part of the landlord to give intimation to
the tenant of his default within the period of
three months on each default. The dictionary
meaning of the word ‘intimation’ is “to make
known, announce, notify by legal process, to
make known or communicate by any means
however indirect, to signify, to indicate, to
imply, to suggest, to hint at”. From this
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dictionary meaning, it does not appear that the
service is necessary of such intimation on the
person concerned. By the Legislature, the
landlord is directed to signify, to notify, to
announce that the tenant has committed
defaults in payment of rent or
compensation.............” (emphasis supplied).
The said observation also will not be of any assistance to the
Petitioner since, in the said case, what has been observed by the
learned Single Judge is that as per the meaning of the word
‘intimation’ as defined in the dictionary, it was not necessary that
such an intimation should be on the person concerned. In the present
case, there is no dispute that the said intimation was communicated
to the tenants respondents herein. The principal issue is: whether
the intimation could have been issued by the brother of the petitioner
who was his natural brother. In my view, therefore, the ratio of the
aforesaid two judgments would not apply to the facts of the present
case. In the present case, it is an admitted position that the natural
guardian of the petitioner viz his mother who had taken him in
adoption had given the land on rent to the respondents tenants. She
had, in turn, issued receipts in respect of the payment of the rent from
time to time to the tenants which have been produced on record and
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were exhibited. In the face of the receipts being issued by the natural
guardian, a mere intimation by third party not connected with the suit
property can never be construed to be an intimation within the
meaning of section 14(1)(a) or section 25(2) of the said B.T. & A.L.
Act. The natural mother of the petitioner during the period when the
petitioner was a minor having issued the rent receipts and having
given evidence before authorities that she had received rent, there
was no occasion for the tenants respondents herein to have taken
any cognizance of such notices being issued by the natural brother of
the petitioner. Consequently, in view of the aforesaid, notices which
were issued by the natural brother of the petitioner were illegal and
could not be construed to be notices under the aforesaid sections and,
therefore, the petitioner, could not, on the basis of these notices
which were per se illegal, would have taken out proceedings for
recovery of possession under section 29 of the B.T. & A.L. Act. In my
view, therefore, all the authorities below were justified in dismissing
the application of the petitioner for recovery of possession on the
ground of default in payment of rent for a period of three years.
10. Further, since it has been held that notices issued by the brother
of the petitioner were illegal, no action could have been taken by the
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authorities for evicting the respondents from the suit land. There is
no reason, even otherwise, to interfere with the concurrent finding by
all the three authorities below. In the result, there is no merit in the
submissions made by the learned Counsel for the petitioner.
11. Petition is accordingly dismissed. Rule is discharged. Under the
circumstances, there shall be no order as to costs. I am informed that
during the pendency of this Petition, proceedings initiated under
section 32G by respondents tenants after the petitioner attained
majority have remained pending. Tenancy authorities are directed to
proceed with the said proceedings and decide the same as
expeditiously as possible.
(V.M. KANADE, J.)
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4595 OF 1984
Shripad Yeshwant Kulkarni, )
Occupation service, Modern )
College of Arts, Science and )
Commerce, Shivaji Nagar, Pune )
411005. ) .....Petitioner.
V/s
Shri Mahadeo Shankar Jadhav )
(Since deceased, through his LRs )
1(i) Kuber Mahdeo Jadhav, )
Age60 Years, Occ: Agriculture, )
R/o. Yenki, Taluka Mohol, )
District Solapur. )
Presently r/o Telgaon, Taluka )
Uttar, Solapur. )
)
1(ii) Smt. Bhagirathi Mahadev )
Jadhav, (widow) Age 79 Years, )
Occ. Agriculture, R/o. Telgaon )
Taluka Uttar, Solapur, District )
Solapur, Maharashtra )
)
2. The Maharashtra Revenue )
Tribunal, Pune. ) .....Respondents.
Mr. T.D. Deshmukh for the Petitioner.
Mr. S.M. Sabrad for Respondent Nos 1(i) & 1(ii).
CORAM: V.M. KANADE, J.
nd
DATE : 2 August, 2007
ORAL JUDGMENT:
1. Heard the learned Counsel appearing on behalf of the petitioner
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and the learned Counsel appearing on behalf of respondents.
2. The petitioner is challenging order passed by the authorities
below whereby the petitioner’s application for possession of the land
which he has filed under section 29 read with section 14 and section
25 of the Bombay Tenancy and Agricultural Lands Act, 1948
(hereinafter referred to as “B.T. & A.L. Act”) was rejected.
3. Brief facts which are relevant for the purpose of deciding this
Petition are as under:
4. The Petitioner is a landlord of the suit land and respondents are
tenants. The disputed property pertains to land bearing Survey No.12
admeasuring 34 Acres 25 Gunthas and it was renumbered after
consolidation as Gat No.28/1. The original landlord Shri Yeshwant
Kulkarni died in 1940, leaving behind his wife Annapurnabai Y.
Kulkarni who became the absolute owner of the said property. The
landlord did not have any issue from the said wife. On 07/10/1947,
Annapurnabai adopted Shripad, son of Narsinha Pralhad Kulkarni i.e
the petitioner herein. In 1948, original respondent was put in
possession of the suit property as a tenant by Annapurnabai by
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executing registered rent note at agreed rent of Rs 300/ per month.
At that time, the petitioner herein was a minor. It is the case of the
petitioner that on 24/08/1959, notice was issued to the original
respondent by natural brother of the petitioner viz. Shamrao Kulkarni
and rent was demanded for the period 195859. It is the case of the
Petitioner that, again, by notice dated 05/08/1961, Shamrao, natural
brother of the petitioner demanded rent for the period of 196061. In
the meantime, on 02/06/1962, petitioner attained the age of
majority. On 15/08/1962, again, notice was issued by Shamrao to
the original respondent, demanding rent for the period of 196162.
Thereafter, again, notice of termination was issued on 20/11/1962 by
Shamrao to the original respondent for and on behalf of the petitoner
as a power of attorney holder of the petitioner. Thereafter, on
01/06/1963, application was filed by the petitioner under section 14
of the B.T. & A.L. Act before the Mamlatdar, Taluka North Solapur for
recovery of possession of the said land. In the said application,
statement of Annapurnabai, mother of the petitioner, was recorded in
which it is stated that she has received rent from the respondent and
that she had issued rent receipts for the same. Both parties adduced
other evidence on record. The Mamlatdar was pleased to reject the
application of the petitioner by judgment and order dated
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17/06/1966.
5. Being aggrieved by the aforesaid order, petitioner preferred an
appeal on 24/06/1968 vide Tenancy Appeal No.342 of 1967 and the
Collector was pleased to remand the matter back to Mamlatdar.
Thereafter, the matter was heard again and the Mamlatdar directed
the original respondent to deposit the arrears of rent, if any, and
accordingly the original respondent deposited an amount of Rs
3,800/ towards the rent from 1963 onwards. Thereafter, again, by
order dated 22/07/1975, Mamlatdar was pleased to reject the
application of the petitioner. The petitioner preferred an appeal
being Tenancy Appeal No.11 of 1976 which was also dismissed by the
Assistant Collector, Solapur by order dated 09/03/1977. Against this
order, petitioner preferred a revision before the MRT, Pune which
was also dismissed by order dated 02/02/1984. Against the said
orders, petitioner has preferred this writ petition.
6. This writ petition was heard by S.S. Nijjar, J. when the Counsel
for the original respondent did not appear and the matter was heard
and by order dated 21/09/1986, the Court was pleased to allow the
writ petition. Review application filed by the original respondent was
also rejected. The SLP was preferred by respondents in the Apex
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Court which was allowed and the judgment and order passed by this
Court was set aside by the order dated 06/04/2004 passed in Civil
Appeal Nos. 17521753 of 1999. The Apex Court directed this Court
to decide the matter afresh. The Apex Court passed the following
order:
“ O R D E R
The tenant is in appeal questioning the
th
validity and correctness of the judgment dated 12
September, 1997 and order made in review
st
application dated 21 September, 1998 by the High
Court reversing the order passed by the
nd
Maharashtra Revenue Tribunal dated 2 February,
1984.
Before the High Court, the appellant
remained unrepresented. The High Court, after
narrating the facts of the case, allowed the writ
petition holding that the claim of the minor
landlord could not be defeated on a technical
ground that notice was not issued by proper person
to the tenant. The question, whether the tenant
was in default for three years, namely, 195960,
196061 and 196162 was not considered.
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The learned counsel for the appellants urged
several contentions before us. The learned counsel
for the first respondent made submissions
supporting the impugned judgment.
In our view, having regard to the concurrent
finding of fact recorded by the Tahsildar, sub
divisional Officer and the Maharashtra Tribunal,
the High Court ought to have examined the merits
of the contentions having regard to the facts of the
case and the evidence placed on record, including
the question of law that arose for consideration
between the parties, whether issuing of notice by
the natural brother of the landlord after adoption of
the landlord was merely a technicality or it affected
the very validity of the notice. Unfortunately, the
appellant remained unrepresented. Thus, looking
to all aspects, we are of the view that the High
Court has to consider the writ petition afresh on
merits dealing with all the contentions raised by the
parties. In this view, the impugned judgment and
the order made in the review application are set
aside. The writ petition is remitted to the High
Court for disposal afresh in accordance with law, in
the light of what is stated above.
The civil appeals are, accordingly allowed.
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No costs.”
7. Mr. Deshmukh, the learned Counsel appearing on behalf of the
petitioner submitted that all the authorities below had erred in
holding that notices were illegal being issued by the natural brother of
the petitioner and not by the natural guardian i.e. Annapurnabai. He
submitted that perusal of section 14 clearly indicated that merely
intimation was to be given by the landlord about the default which
was committed by the tenant. He submitted that, therefore, it was
immaterial whether the intimation was given by the landlord or by
any one on his behalf. He submitted that there was no dispute that
the intimation was, in fact, given within three months from the date
of default, consecutively for a period of three year and, therefore,
requirement of section 14 of the said Act had been complied with. He
submitted that after compliance of the requirement under section 14
(1), the petitioner had given notice of termination of the tenancy
under subsection (2) of section 14 and this was admittedly given by
the power of attorney holder of the petitioner. Since, by the time this
notice of termination was given, petitioner had attained majority and
had executed power of attorney in favour of Shripad, his natural
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brother. The learned Counsel for the petitioner submitted that once
the notice of termination having been issued under subclause (2) of
section 14, benefit under section 25(1) was not available to the tenant
in view of the express provision of subclause (2) of section 25. He
submitted that since it was an admitted position that the intimation
was received by the tenant within the prescribed period and he,
having failed to deposit the said amount within the requisite period,
the benefit under section 25(1) could not have been given to the
respondent. He submitted that the lower authorities had erred in
granting benefit to the respondent under section 25(2).
In support of the said submission, the learned Counsel for the
Petitioner relied upon the judgment of this Court in the case of Smt.
Josephine Mathew Concessio Vs.Sowr Langdya Kini reported in 1964
(Vol.LXVI)194. He also relied upon the judgment of the learned
Single Judge of this Court in the case of Shaniwar Dhondu Dharnekar
Vs. Prabhavati Chandrakant Patange reported in 1979 Mh.L.J. 836 .
He submitted that, therefore, restricted meaning should not be given
to the word ‘intimation’. He submitted that dictionary meaning of
the said word means to make known or communicate by means
however indirect. He submitted that, therefore, the section
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contemplated intimation to the tenant about default which was
committed by the tenant. He submitted that, thus, in this case, there
is a clear case of default which was admitted by the respondents
tenants herein. He submitted that it was not open for the
respondents tenants now to recede from the earlier statement and
claim that they had paid the rent.
8. Mr. Sabrad, the learned Counsel appearing on behalf of
respondents tenants, however, submitted that the intimation given
by the brother of the petitioner could not be said to be legally proper
and correct. He invited my attention to section 7 of the Hindu
Minority and Guardianship Act, 1956 and submitted that adoptive
mother became the natural guardian of adopted son and, as such,
Annapurnabai could have given intimation on his behalf. He further
submitted that, in fact, it had come on record that the rent had been
paid to Annapurnabai regularly from time to time who had issued
receipts for the payment of the rent. He submitted that, initially,
though the rent was Rs 300/, after the said B.T. & A.L. Act was
amended, the rent was reduced and was fixed at 5 times the
assessment. He submitted that, therefore, there is no default
committed by the respondents herein. He submitted that tenancy
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cannot be terminated on the ground of default unless the landlord has
given three months’ notice in writing, informing the tenant of his
decision to terminate the tenancy and, provided, within that time, the
tenant has failed to make the payment of rent as demanded. Section
25 lays down the relief which could be claimed by the tenant for
termination of tenancy on the ground of nonpayment of rent. Sub
clause (1) of section 25 states that though there is nonpayment of
rent by the tenant and on that ground application is filed by the
landlord for eviction of the tenant, even then, Mamlatdar can call
upon the tenant to tender to the landlord rent in arrears together with
the cost of proceedings within three months from the date of the
order and if this order is complied with then the order of termination
can be set aside by Mamlatdar. Subclause (2) of section 25,
however, states that this concession which is given to the tenant shall
not be available to him if the tenant has failed to pay rent for any
three years and that the landlord has given intimation to the tenant to
that effect.
9. The B.T. & A.L. Act is a comprehensive piece of legislation
which provides security of tenure to all classes of tenants and it also
fixed a minimum level of rent payable. It is therefore essentially a
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beneficial piece of legislation intended to give protection to the actual
tiller of the land. Section 14 & section 25 read with section 29 of the
B.T. & A.L. Act is therefore an exception to the general rule and the
said section 14 lays down the grounds on which tenancy of tenant can
be terminated. In respect of the nonpayment of rent, again, there is a
further provision provided under subsection (1) of section 25 which
gives further protection and opportunity to the tenant to make
payment, though he has committed default after the order to that
effect is passed by Mamlatdar and if the said order is complied with
then effect of termination of tenancy ceases and the tenant can
continue to cultivate the land as tenant. However, subclause (2) of
section 25 lays down that the benefit under subsection (1) of section
25 shall not be available to such tenant who fails to pay rent for any
three years and further, provided, that the landlord has given
intimation to the tenant to that effect. In this context, therefore, the
word ‘intimation’ which is used in section 14 subclause (1)(a) and
which is similarly used in section 25 subclause (2) will have to be
construed to mean intimation given by the landlord or a person who
is lawfully authorized to give such intimation. If such an
interpretation is not given to the said word, it would mean that the
benefit which the legislature had sought to give to the tenant under
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section 25 subclause (1) would be rendered nugatory if intimation by
unauthorized person is permitted to be given. It is no doubt true that
the word ‘intimation’ has been defined in dictionary to mean
communication either directly or indirectly. This, however, cannot
mean that the legal effect which will follow pursuant to such indirect
communication would be the same legal effect as is intended by
section 14 and section 25 of the said Act. Therefore, in my view,
submission made by the learned Counsel appearing on behalf of the
petitioner that the intimation given by natural brother of the
petitioner should be construed as an intimation within the meaning of
section 14(1)(a) and section 25 subclause (2) of the said Act cannot
be accepted. The judgment on which the reliance is placed by the
petitioner in the case of Smt. Josephine Mathew Concessio (supra)
would not apply to the fact of the present case. In the said case,
Division Bench of this Court was called upon to construe the meaning
of the words “to that effect” which are found in section 25(2) of the
said Act and, while doing so, the Division Bench held that it was not
necessary for the landlord to state in the intimation that he had
intended to or had decided to terminate the tenancy and that it was
sufficient if the landlord had intimated to the tenant that he had
failed to pay the rent. The ratio of the said judgment, therefore, will
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not apply to the facts of the present case as, in the present case, the
point which is sought to be argued on behalf of the petitioner is that
the intimation by natural guardian of the petitioner was proper
intimation within the meaning of section 14(1)(a). So far as the
other judgment on which reliance is placed by the learned counsel
appearing on behalf of the petitioner viz in the case of Shaniwar
Dhondu Dharnekar (supra) is concerned, even the ratio of the said
judgment would not apply to the facts of the present case. The
learned Counsel appearing on behalf of the petitioner has relied upon
the following observations made by the learned Single Judge in para
6 of the judgment in the case of Shaniwar Dhondu Dharnekar (supra)
which reads as under:
“6.....................What is contemplated by sub
section (2) of section 25 is that it is obligatory
on the part of the landlord to give intimation to
the tenant of his default within the period of
three months on each default. The dictionary
meaning of the word ‘intimation’ is “to make
known, announce, notify by legal process, to
make known or communicate by any means
however indirect, to signify, to indicate, to
imply, to suggest, to hint at”. From this
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dictionary meaning, it does not appear that the
service is necessary of such intimation on the
person concerned. By the Legislature, the
landlord is directed to signify, to notify, to
announce that the tenant has committed
defaults in payment of rent or
compensation.............” (emphasis supplied).
The said observation also will not be of any assistance to the
Petitioner since, in the said case, what has been observed by the
learned Single Judge is that as per the meaning of the word
‘intimation’ as defined in the dictionary, it was not necessary that
such an intimation should be on the person concerned. In the present
case, there is no dispute that the said intimation was communicated
to the tenants respondents herein. The principal issue is: whether
the intimation could have been issued by the brother of the petitioner
who was his natural brother. In my view, therefore, the ratio of the
aforesaid two judgments would not apply to the facts of the present
case. In the present case, it is an admitted position that the natural
guardian of the petitioner viz his mother who had taken him in
adoption had given the land on rent to the respondents tenants. She
had, in turn, issued receipts in respect of the payment of the rent from
time to time to the tenants which have been produced on record and
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were exhibited. In the face of the receipts being issued by the natural
guardian, a mere intimation by third party not connected with the suit
property can never be construed to be an intimation within the
meaning of section 14(1)(a) or section 25(2) of the said B.T. & A.L.
Act. The natural mother of the petitioner during the period when the
petitioner was a minor having issued the rent receipts and having
given evidence before authorities that she had received rent, there
was no occasion for the tenants respondents herein to have taken
any cognizance of such notices being issued by the natural brother of
the petitioner. Consequently, in view of the aforesaid, notices which
were issued by the natural brother of the petitioner were illegal and
could not be construed to be notices under the aforesaid sections and,
therefore, the petitioner, could not, on the basis of these notices
which were per se illegal, would have taken out proceedings for
recovery of possession under section 29 of the B.T. & A.L. Act. In my
view, therefore, all the authorities below were justified in dismissing
the application of the petitioner for recovery of possession on the
ground of default in payment of rent for a period of three years.
10. Further, since it has been held that notices issued by the brother
of the petitioner were illegal, no action could have been taken by the
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authorities for evicting the respondents from the suit land. There is
no reason, even otherwise, to interfere with the concurrent finding by
all the three authorities below. In the result, there is no merit in the
submissions made by the learned Counsel for the petitioner.
11. Petition is accordingly dismissed. Rule is discharged. Under the
circumstances, there shall be no order as to costs. I am informed that
during the pendency of this Petition, proceedings initiated under
section 32G by respondents tenants after the petitioner attained
majority have remained pending. Tenancy authorities are directed to
proceed with the said proceedings and decide the same as
expeditiously as possible.
(V.M. KANADE, J.)
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