DINKAR MARUTI JADHAV v. NIVRUTII GANGARAM PAWAR (DEAD)

From the final Judgment and Order dated 11.9.2003 of the High Court of Judicature at Bombay in Writ Petition.No. 1308 E of 1990. Varun Thakur and A.S. Bhasme for the Appellant. D.M. Nargolkar for the Respondents. The Judgment of the Court was delivered by F 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) sec 551] and therefore referred the matter to a larger Bench and that is how the matter was posted before us. The G essence of the judgment in Moreshwar's case (supra) was that once an action in Section 33-B is taken, Section 88C of the Bombay Tenancy and Agricultural Lands Act, 1948 (in short the 'Act') has no relevance.

#2. In the instant case, the original owner had expired. H • ~ ... ~ ... 1 866 SUPREME COURT REPORTS [2008] 1 S.C.R. A Undoubtedly, the certificate had been issued to him under Section 88-C with reference to the qualification possessed by the landlord as on 151 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 B 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 c 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 880 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. D E

#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. F 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's case (supra) is accordingly clarified. We remit the matter to the High Court to hear the writ petitions afresh in the light of the position of law delineated above. G

#5. The appeal is allowed to the aforesaid extent without any order as to costs. H K.K.T. Appeal partly allowed. +"'- ... ,,. r ....