http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 2  

CASE NO.: Appeal (civil)  2564 of 2005

PETITIONER: Dinkar Maruti Jadhav

RESPONDENT: Nivrutti Gangaram Pawar (dead) by Lrs. And Ors

DATE OF JUDGMENT: 09/05/2007

BENCH: Dr. ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T

Dr. ARIJIT PASAYAT, J.

       The scope and ambit of Sections 33-B and 88-C of the  Bombay Tenancy and Agricultural Lands Act, 1948 (in short the  ’Act’) fall for determination in the present appeal.  

       During the course of hearing learned counsel for the  appellant placed strong reliance on the observations made by  this Court in Moreshwar Balkrishna Pandare and Ors. v. Vithal  Vyenku Chavan and Ors. (2001 (5) SCC 551) to the effect that  the High Court’s view is unsustainable.  The essence of that  judgment is that once action in terms of Section 33-B is taken  Section 88-C has no relevance. In the instant case, the original  owner had expired. Undoubtedly, the certificate had been  issued to him under Section 88-C with reference to the  qualification possessed by the landlord as on 1st April, 1957.  The question which fell for consideration before the High Court  was the effect of the death of the original landlord who had  either applied for issuance of certificate under Section 88-C  which is pending or was the certificate already granted in his  favour.  In Paragraph 27 of Moreshwar’s case (supra) it is held  that once certificate under Section 88-C is issued and the  landlord has issued notice in exercise of the rights under  Section 33-B of the Act and proceeds to file an application for  possession under Section 33-B read with Section 29 of the Act,   the relief  under Section 88-C gets exhausted. Moreshwar’s case  (supra) related to rights under Section 88D of the Act. The  question which may arise is that when death has taken place  whether the income or the extent of land of the legal heirs have  to be reckoned.  

       Sections 33-B and 88-C operate in different fields. Bona  fide requirement and personal cultivation concepts are  applicable only under Section 88-C because it refers to Section  33-B. Section 33-B refers to bona fide requirement and personal  cultivation. Section 88D(iv) comes into operation when the  annual income exceeds the limit fixed and/or economic  holdings exceeded. There are two separate stages. The tenant  can, in a given case, oppose the application in terms of Section  33-B on the ground that there is no bona fide requirement  and/or personal cultivation. It deals with enforcement of the  certificate. With the death of the original landlord, the question  of economic holding and the income also becomes relevant. In

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 2  

Section 33-B income and/or economic holding concept is not  there. It is only there in Section 88-C. In Moreshwar’s case  (supra) it was concluded as follows:

       "15.     A close reading of the section, quoted  above, shows that sub-section (1) enables a  certificated landlord who bona fide requires the  land, covered by the certificate for cultivating it  personally, to terminate the tenancy of the  possession, in the manner prescribed in sub-section  (3). The said sub-section requires the certificated  landlord to give notice in writing which shall be  served on the excluded tenant on or before  1.1.1962; however, in a case where the application  of such landlord under Section 88-C is not disposed  of and is pending on that date, he can do so within  three months of his receiving such certificate  sending simultaneously a copy of the notice to the  Mamlatdar. The application for possession of the  land has to be made under  Section 29 to the  Mamlatdar before 1.4.1962 in the case where notice  was served on him within three months of receiving  a certificate under Section 88-C, the application can  be made for possession under Section 29 within  three months of his receiving the certificate. The  right conferred on a certificated landlord to  terminate the tenancy of an excluded tenant is an  independent right and is not affected by the  provisions of Sections 31, 31-A and 31-B."                                   As noted above, Section 33-B and Section 88D (iv) operate  in different fields. The former refers to landlord’s right and the  other refers to tenant’s right and the Moreshwar’s case (supra)  did not deal with the case of the death of the landlord.  

       There is no dispute that once the tenancy is determined  under Section 33-B, the question of action in terms of Section  88D(iv) does not arise but making of an order would be  necessary. Mere making an application in terms of Section 33-B  does not have the effect of terminating the relationship between  the landlord and the tenant. Therefore, till the Mamlatdar  passes an order there is no severance of status. The contrary  view taken in Moreshwar’s case (supra) prima facie does not  appear to be correct.  Even when the landlord applies for  possession in terms of Section 33-B it may become conclusive  so far as it relates to the income and economic holding concepts  are concerned. But other requirements like bona fide  requirement and personal cultivation are to be decided by the  Mamlatdar. The certificate issued under Section 33-B is  crystalized only in respect of the income and the economic  holding concepts.  Therefore, there is need for clarifying this  aspect.  Accordingly, we refer the matter to the larger bench. Let  the matter be placed before Hon’ble the Chief Justice of India  for necessary orders to place the matter before an appropriate  bench.