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CASE NO.: Appeal (civil)  2564 of 2005

PETITIONER: Dinkar Maruti Jadhav

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

DATE OF JUDGMENT: 18/01/2008

BENCH: Dr. ARIJIT PASAYAT, TARUN CHATTERJEE & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1.      A two judge Bench doubted the correctness of some of the  observations made in Moreshwar Balkrishna Pandare & Ors. v.  Vithal Vyanku Chavan and Ors. [2001(5) SCC 551] and  therefore referred the matter to a larger Bench and that is how  the matter was posted before us.  The essence of the judgment  in Moreshwar\022s case (supra) was that once an action in Section  31-B is taken, Section 88C of the Bombay Tenancy and  Agricultural Lands Act, 1948 (in short the \021Act\022) has no  relevance.   

2.      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\022s 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\022s 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.  

3.      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  Section 33-B income and/or economic holding concept is not  there.

4.      The decision in Moreshwar\022s case (supra) is accordingly  clarified.  We remit the matter to the High Court to hear the writ

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petitions afresh in the light of the position of law delineated  above.  

5.      The appeal is allowed to the aforesaid extent without any  order as to costs.