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PETITIONER: GANPATI BAYAJI PATIL

       Vs.

RESPONDENT: SHRIDHAR BABAJI VIBHUTE [D] BY LRS. & ORS.

DATE OF JUDGMENT:       22/08/1996

BENCH: PUNCHHI, M.M. BENCH: PUNCHHI, M.M. MANOHAR SUJATA V. (J)

CITATION:  1996 SCALE  (6)191

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      The appellant  is the  tenant of  the land  in  dispute which is  situated in  Taluka Walwa,  district Sangli in the State of  Maharashtra. On  the Tillers’ Day, i.e., 1.4.1957, the appellant  was the  tenant in occupation of the lands in question. The  landlord as of 1.4.1957 was a joint family of which the  original respondent  was a member. On 31.3.1958 a partition took  place of  the joint  family and the lands in question came to the share of the original respondent.      Thereafter,  the  original  respondent  applied  for  a certificate under  Section 88C  of the  Bombay  Tenancy  and Agricultural Lands  Act, 1948  [the Act].  It is the case of the appellant  that no  notice was  given  to  him  of  this application  under  Section  88C  nor  was  he  aware  of  a certificate being granted under Section 88C in favour of the original respondent, on 14.4.1959.      In 1962,  the original  respondent made  an application under Sec.  33B for  obtaining possession  of the  land.  In these proceedings  under Sec.  33B, the appellant challenged the bona  fide requirements  of the  original respondent for cultivating these  lands personally.  During the pendency of these proceedings the original respondent died and his heirs were brought  on record;  as a  result a  fresh enquiry  was required to  be made about the bona fide requirements of the heirs  of   the  respondent   under  Sec.  33B.  Before  the Maharashtra Revenue  Tribunal, the  appellant contended that there was  no valid  certificate under Sec. 88C on the basis of which  the respondent(s)  could make an application under Sec. 33B  because, on  the relevant  date, namely, 1 4.1957, the original  respondent was not the landlord of the land in question. Only  the joint  family which  was the landlord on the relevant  date, could  have applied  for  a  certificate under Sec.  88C. In  the absence  of any such application by the joint  family, the  appellant’s rights  as  on  1.4.1957 under Section  32-G cannot  be now  defeated by a subsequent certificate under Section 88C-  obtained by a person who was

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only a  member of  the joint family on the relevant date and who had  subsequently acquired these lands under a partition which  took  place  after  the  Tillers’  Day.  The  Revenue Tribunal  has   upheld  this  contention.  The  High  Court, however,  in  a  writ  petition  filed  by  the  respondents findings of  the Revenue Tribunal, held that the certificate under sec.  88C cannot  be examined.  On the  basis of  this certificate, the  respondents are  entitled  to  succeed  in their application  under Sec.  33-B  in  the  light  of  the findings given by the revenue authorities in their favour.      The  High  Court  was  not  right  in  coming  to  this conclusion. Under  the scheme  of the  Act, a tenant becomes the deemed  purchaser of  the land  on 1.4.1957.  Under Sec. 88C, however,  an exemption  is granted  to the  lands of  a small landlord  whose  land  does  not  exceed  an  economic holding as  defined under  the Act  and whose  total  annual income does not exceed Rs. 1,500/-. The landlord must fulfil these criteria  on the date [1.4.1957] when the tenant would have become the deemed owner of the land, under Section 32-G in order to save his lands from the operation of Section 32- G. Any  subsequent change  in ownership  will not confer any right on  the subsequent  "owner" to get the benefit of Sec. 88C. Unless the person who is the landlord on 1.4.1957 makes an application under Sec. 88C, the rights of a tenant cannot be defeated.  [See in this connection Chanchalben v. Gujarat Revenue Tribunal 12 Gujarat Law Reporter 428].      It is contended on behalf of the respondents that since the original  respondent was a member of the joint family on 1.4.1957, he  was entitled  to apply for a certificate under Sec. 88C.  The requirements  of Sec.88C, however, have to be complied with  by the joint family looking to the holding of all the  members of  the joint  family as also the income of the joint  family, because it was the joint family which was the owner  of the  land on 1.4.1957. [See in this connection Jainabai v.  Bakeji Bhan  63  Bom.  Law  Reporter  653.  The Revenue Tribunal  was, therefore,  right in  coming  to  the conclusion that  the original  respondent who obtained these lands on  partition of the joint family on 31.3.1958 was not entitled to  apply for  a certificate  under Sec.  88C.  The rights of  the appellant  could not  be defeated  by such  a certificate.      It  is  also  submitted  by  the  respondents  that  in proceedings under  Sec. 33B,  there cannot be any collateral challenge to  a certificate  under Sec. 88C. The respondents have relied  upon a  decision of  this Court  in  Krishnabai Ghule v.  Nivruthe Ramchandra  1983 3  SCR 822 in support of this submission.  In that  case,  however,  there  had  been previous proceedings  between the tenant and the landlord in connection with  the certificate issued under Sec. 88C which had culminated  against the  tenant. In  this context,  this Court observed  that the  same challenge  cannot be repeated collaterally in  proceedings under Sec. 33-B. In the present case a  certificate under  Sec. 88-C was obtained behind the back of the tenant and without any notice to him. Moreover? in the  present case, there is no certificate under Sec.88-C in favour  of the landlord who held the land on 1.4.1957 and this fact is not in dispute. It is, therefore, open to us in the light of undisputed facts to examine the validity of the certificate on the basis of which proceedings under Sec. 33B have taken  place. Since  the certificate is void ab initio, the appellant is entitled to succeed. The appeal is allowed, the  order   of  the   Maharashtra  Revenue  Tribunal  dated 19.8.1992 is restored and the order of the High Court is set aside.      There will, however, be no order as to costs.

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