High Court
Legal Reasoning
wp-13268 & 13265-2018 judg.odt(1)IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 13268 OF 2018Shankarrao Sakharam AdhavAge : 77 years, Occ : Agriculture,Through GPA Holder,Shivaji Sakharam Adhav,Age : 60 years, Occ : Agriculture,R/o. Adhav Vasti, Kopargaon,Dist. Ahmednagar..PetitionerVersus1.Prakash Nilkanth Joshi,Age : 65 years, Occ : Legal Practitioner,R/o. 4/Gangotri Society Indira Peth,Kopargaon, Tq. Kopargaon,Dist. Ahmednagar.2.Sub Divisional Officer,Shirdi Division, Shirdi,Dist. Ahmednagar.3.The Tahsildar,Kopargaon, Tq. Kopargaon,Dist. Ahmednagar..RespondentsWITHWRIT PETITION ON.13265 OF 20181.Madhav Kacheshwar Adhav(Since deceased through LR’s)1A.Jagannath Madhavrao Adhav,Age : 65 years, Occ : Agriculture,1B)Goraknath Madhavrao Adhav, (Since deceased through L.Rs.)1B-1. Vijay s/o. Gorakhnath Adhav Age 54 years, Occ. Business, R/o. Opposite Manjula Apartment Dharangaon Road, Kopargaon, Tq. Kopargaon Dist. Ahmednagar. wp-13268 & 13265-2018 judg.odt(2)1B-2. Ajay s/o. Gorakhnath Adhav Age 52 years, Occ. Service, R/o. Sainagar (Laxminagar) Kopargaon, Tq. Kopargaon Dist. Ahmednagar.1B-3.Vikram s/o. Gorakhnath Adhav Age 47 years, Occ. Business, R/o. Adhav Building, Juna Post Road, Kopargaon, Tq. Kopargaon Dist. Ahmednagar.1B-4. Lilabai w/o Gorakhnath Adhav Age 70 years, Occ. Household, R/o. Adhav Building, Juna Post Road, Kopargaon, Tq. Kopargaon Dist. Ahmednagar.1C.Raghunath Madhavrao Adhav,Age : 62 years, Occ : Agriculture1D.Ramesh Madhavrao Adhav,Age : 59 years, Occ : Agriculture,1E.Ravindra Madhavrao Adhav,Age : 56 years, Occ : Agriculture,1F.Satish Eknath Adhav,Age : 49 years, Occ : Agriculture,2.Ambadas Kacheshwar Adhav,(Since deceased through LR's)2-A. Hirabai Ambadas Adhav Age 75 years, Occ. Agri/Household,2-B. Arun Ambadas Adhav Age 53 years, Occ. Agri2-C .Kiran Ambadas Adhav Age 51 years, Occ. Agri Opponent No. 2A to 2C R/o. Adhav Vasti. Near Om Nagar, Old Takali Road, Tq. Kopargaon Dist. Ahmednagar
Legal Reasoning
wp-13268 & 13265-2018 judg.odt(3)2-D. Ujwala w/o Jalindar Kale, Age 57 years, Occ. Agri/Household, R/o. Kale Vasti, Chincholi, Tq. Rahuri, Dist. Ahmednagar.2-E.Sunanda w/o. Balasaheb Kharde. Age 55 years, Occ. Agri/Household, R/o. Aaswi (kh), Tq. Sangamner, Dist. Ahmednagar...PetitionersVersus1.Prakash Nilkanth Joshi,Age : 65 years, Occ : Legal Practitioner,R/o. 4/Gangotri Society Indira Peth,Kopargaon, Tq. Kopargaon,Dist. Ahmednagar.2.Sub Divisional Officer,Shirdi Division, Shirdi,Dist. Ahmednagar.3.The Tahsildar,Kopargaon, Tq. Kopargaon,Dist. Ahmednagar..Respondents...Advocate for the Petitioners : Mr. P.S. Dighe h/f Mr. V.R. DhordeAGP for Respondent/State : Mr. A.S. ShindeAdvocate for Respondent No.1 : Mr. A.P. Bhandari... CORAM : S.G. MEHARE, J. RESERVED ON : MARCH 04, 2024 PRONOUNCED ON : APRIL 29, 2024JUDGMENT :-1.Rule. Rule made returnable forthwith. Heard finallywith the consent of parties.2.Since in both petitions the common issue was involvedand the respondent is common; hence, taken up for disposal together. wp-13268 & 13265-2018 judg.odt(4)3.In Writ Petition No.13268 of 2018, the petitioner hasimpugned the order of the learned Member, Maharashtra RevenueTribunal, Aurangabad passed in Case No.17/B/2016/Ahmednagardated 24.09.2018. In Writ Petition No.13265 of 2018 has impugnedthe order of the Hon’ble Member, Maharashtra Revenue Tribunal,Aurangabad in Case No.16/B/2016/Ahmednagar dated 24.09.2018.The petitioners in both cases were tenant and respondent no.1 wasthe landlord. 4.The facts in Writ Petition No.13268 of 2018 were that thefather of respondent no.1 had leased the suit land by registered leasedeed dated 16.09.1967 for 16 years on yearly lease of Rs.60 p.a. Theland was leased for cultivating the sugarcane. It was a contractuallease. Since the petitioners/tenants failed to cultivate the land andviolated the terms of lease deed, the respondent issued him a noticeof determining the lease under Section 14 of the MaharashtraTenancy and Agricultural Lands Act, 1948 (‘Act of 1948’ for short) on17.12.2005. The petitioner replied the notice and denied the reasonsfor determining the tenancy. Respondent no.1 filed the proceedingbefore the tenancy Tahsildar under Section 29 of the Act of 1948. On08.03.2011, the Tahsildar dismissed his case. Respondent no.1 haspreferred the tenancy appeal before the Sub-Divisional Officer. TheSub-Divisional Officer allowed his appeal and directed the petitionersto handover the possession of the suit land. Against the said order, wp-13268 & 13265-2018 judg.odt(5)the petitioner had preferred the revision before the MaharashtraRevenue Tribunal. The learned Member dismissed the revision andmaintained the order of Sub-Divisional Officer.5.The facts of Writ Petition No.13265 of 2018 were that thevendor of respondent no.1 had leased the agreement on 16.09.1967in the name of deceased Madhavrao for 16 years at the rent of Rs.60p.a. However, deceased Madhavrao did not cultivate the land leasedfor sugarcane. Therefore, by notice dated 17.12.2005, respondentno.1 determined the tenancy. Then he preferred an application beforethe Tahsildar under Section 29 of the Act of 1948. The Tahsildardismissed the petition. Then the Sub-Divisional Officer allowed theappeal. Against that appeal, revision preferred by the petitioner wasdismissed. 6.The another argument in both cases for the petitionerswere that they could not cultivate the land as the lands were situatedout of town and there was no sufficient water to cultivate thesugarcane. The landlord/respondent no.1 has also a land adjoining tothe suit land. He also could not cultivate the land. The notice wasbarred by limitation. It was not issued from the date of the approvalof the right to terminate the tenancy. Therefore, there was no directcompliance of Section 14(1)(a)(iv) of the Act of 1948. In view of thenotification dated 14.02.1958 issued under Section 43-A (3) of theAct of 1948, no lease of land should be terminated on the ground that wp-13268 & 13265-2018 judg.odt(6)the period fixed by the agreement has been expired. The applicationunder Section 29(2) of the Act of 1948 was not in prescribed form.Therefore, it was liable to be dismissed. He also argued that the Sub-Divisional Officer as well as the Maharashtra Revenue Tribunal didnot consider the material admissions of respondent no.1 which provesthat it was beyond the control of the petitioners to cultivate the landand it was not a deliberate failure on their part. The petitioners werenot at fault in not cultivating the land. There was no water tocultivate the sugarcane. Respondent no.1 failed to provide the waterto cultivate the land as per the agreement. He prayed to allow bothpetitions.7.Per contra, learned counsel Mr. Bhandari for respondentno.1 has argued that the learned counsel for the petitioners hasmisinterpreted Section 29 of the Act of 1948. He would submit thatsub-section (1) of Section 43-A of the Act of 1948 did not apply tolease the land granted for cultivation of sugarcane. The leaseagreement was for a specific object. Hence, it was terminable bynotice as provided under the Act. The notification issued underSection 43-A of the Act of 1948 provides for termination of thetenancy for default of tenant. Sub-clause (4) covers the case of thepetitioners. To bolster his arguments, he relied on the case of GajananVasant Vijay and Another Vs. Valubai Bapu and Others, 1982 Mh.L.J.933. He advanced the arguments that Sections 14 and 27 are not wp-13268 & 13265-2018 judg.odt(7)applied to lease of land granted for the cultivation of the sugarcane.The notification issued under Section 43-A did not specificallymentioned applying it to the lands leased for the sugarcane.Therefore, in the absence of any such reference, it would not beproper for the Court to apply Section 27, just because the governmenthad referred Section 14(1)(a). He also argued that the notice wascorrectly served and tenancy was terminated for non-cultivating theland personally and the petition was within limitation. 8.It is not in dispute that the lands were leased for 16 yearsby a written agreement specifically for producing the sugarcane. Theterms of the lease which are identical reveal that the lease was for 15to 16 years. The lessee has accepted the responsibility to lift thewater for sugarcane and produce a short term agricultural produce.The landlord has a case that since 2001, the tenants did not cultivatethe land personally. Therefore, he was entitled to determine the leaseand seek the possession.9.The landlord issued a notice under Section 14 (1)(a)(iv)of the Act of 1948. He had a specific case that since 2001, the tenantsstopped cultivating the land. The parties are not at dispute that thelands were leased for producing the fruits and the sugarcane andmore particularly the sugarcane. The tenants had agreed to make thewatering arrangement for the crops. The notices were issued on17.12.2005. The tenants have replied it. The tenants after wp-13268 & 13265-2018 judg.odt(8)determining the tenancy did not hand over the possession of the suitland. Hence, an application under Section 29 of the Act of 1948 wassubmitted to the Mamlatdar for possession.10.The notice under Section 14 (1)(a)(iv) of the Act of 1948was in compliance with sub-clause (b). Three months notice wasserved upon the tenants. In the notice, reply was silent that withinthree months of notice, the tenants remedied the breach for which thetenancy was terminated. There appears to have no case that theywere cultivating the land after 2001. The reply notice is vague barelydenying the contents of the notice.11.The landlord filed an application before the Mamlatdarunder Section 29 of the Act of 1948 in 2007. The tenants contestedthe petition. It has been seriously objected for the tenants that theTahsildar could not have entertained the petition as it was not filedwithin two years from the date on which the right to obtainpossession of the land was deemed to have been accrued to thetenant. The vehement arguments of the petitioners were that the rightto obtain possession of the land to the landlord arose in the year2001. Therefore, the application under Section 29(2) of the Act of1948 ought to have been filed within two years from 2001.Therefore, the petition was barred by limitation. To bolster hisarguments, he relied on the case of Dattu Nikam Vs. VinayakraoPatwardhan, 1965 Mh.L.J. 625. The case was filed by the landlord on wp-13268 & 13265-2018 judg.odt(9)the ground of defaults in payment of rent. The revenue authority haddirected that the possession of the land should be restored to thelandlords. It has been observed that the right to obtain possession ofthe land and the tenants failure to pay the rent within prescribed timemust be deemed to have been accrued to the landlord from the datethere was default of payment of rent and limitation will run from thisdate. In the said case, the case of Ganpati Appa Vs. Maruti Bala, AIR1959 Bom. 425, in which it was held that the right to obtainpossession of a land accrues to the landlord on the expiry of theperiod of notice terminating the tenancy given by him. Under Section14 of the Tenancy Act a landlord has to give three months noticeinforming the tenant of his decision to terminate the tenancy, beforethe tenancy can be terminated on the ground that the tenant hasfailed to pay the rent due from him. The period of notice expired onMarch 29, 1955. The application for possession was made by theopponents on March 23, 1957 i.e. within two years from the date onwhich the notice terminating the tenancy expired. The Tribunal,therefore, held that the application was in time.12.The counter allegations of the learned counsel for therespondent/landlord would submits that the words of sub-section (2)of Section 29 are crystal clear that the period of two years begins torun after three months of the service of termination notice. To bolsterhis arguments, he relied on the case of Gajanan Vasant (supra). He wp-13268 & 13265-2018 judg.odt(10)vehemently argued that the right to seek possession accrued afterthree months of the notice. 13.In the case of lease of the land for producing sugarcane,Section 43-A of the Act of 1948 is relevant. The said section providesfor some of the provisions of Act of 1948 to the lease of land obtainedfor cultivation of sugarcane, fruits or flowers etc.14.Learned counsel for the petitioners referred to thenotification of Government of Maharashtra dated 14.02.1958. Hespecifically referred to clause (2) of the notification and vehementlyargued that such tenancy could be terminated subject to theconditions mentioned in Section 31A, 31B, 31C and 31D of the Act.For that purpose, one year notice should be served upon the tenant bythe landlord stating reasons for termination of the lease. Relying onthis notification, he has vehemently argued that the termination ofnotice under Section 14(1)(a)(iv) was not in consonance with therequirements of law. He also tried to argue that the lease granted forthe sugarcane is to be dealt with by the notification of thegovernment. The Government Notification dated 14.02.1958 protectsthe tenant from eviction on termination of the tenancy. However, sub-clause (3) of the above notification provides that lease of the landmay be terminated by the lessor by giving time to the lessee threemonths notice in writing stating therein the reasons for suchtermination if a lessee commits any of the defaults mentioned in wp-13268 & 13265-2018 judg.odt(11)clause (a) of sub-section (1) of Section 14. The right of the landlordto terminate the tenancy for committing default as provided underSection 14(1)(a) were not disturbed by the said notification. In thecase of Gajanan Vasant (supra), the Hon’ble Supreme Court in para 5has observed that “so far as the leases of lands for the cultivation ofsugar-cane are concerned, the Government of Maharashtra has issueda notification dated February 14, 1958, under subsection (3) ofsection 43A. The said notification was amended by anothernotification dated October 8, 1969. The relevant provisions of the saidnotification as so amended are as follows :"In exercise of the powers conferred by sub-section (3) of section 43Aof the Bombay Tenancy and Agricultural Lands Act, 1948 (Bom. LXVIIof 1948), the Government of Bombay hereby directs that the leases ofland referred to in clause (b) of sub-section (1) of the said section43A and to which the provisions of sub- section (1) of the said section43A apply shall be subject to the following conditions, namely :-Conditions as to the duration and termination of lease : 3. If a lessee commits any of the defaults mentioned in clause (a) ofsub-section (1) of section 14 in relation to such lease of land, thelease may be terminated by the lessor by giving the lessee threemonths' notice in writing stating therein the reasons for suchtermination.” wp-13268 & 13265-2018 judg.odt(12)15.It has been further held that “thus under the saidnotification a lease for cultivation of sugar-cane can be terminated bythe lessor by giving the lessee three months' notice in writing statingtherein the reason for such termination if the lessee commits any ofthe defaults mentioned in clause (a) of sub-section (I) of section 14.”16.Section 14(1)(b) provides for saving the terminationafter the notice by remedied the breach for which the tenancy wasterminated. The notice of termination was served for failing tocultivate the suit land personally by the tenant. After the notice, theydid not started cultivating personally. Therefore, they had lost theremedy to avoid the termination.17.So far as accrual of right to seek remedy under Section29(2) of the Act of 1948 to obtain the possession, the Full Bench inthe case of Ganpati (supra) has laid down the law in clear words thatthe right to obtain possession of the land accrues to the landlord onthe expiry of period of notice terminating the tenancy given by him.Therefore, there is no water in the arguments of the learned counselfor the petitioners that the right to obtain possession of land accruedwhen the tenants stopped cultivating the land personally.18.The another limb of argument of the learned counsel forthe petitioners/tenants was that since there was no water to producethe sugarcane, the lands could not be used for producing thesugarcane. The water sources available at the time of creating the wp-13268 & 13265-2018 judg.odt(13)lease were disappeared by passage of time. Therefore, the tenantswould not be held defaulter. The situation was beyond the control ofthe tenants. Besides this, the land was surrounded by the local area.Therefore also, they could not cultivate the land for producing thesugarcane. The arguments of the petitioners indirectly were that itwas a frustration of contract or act of god for which they could not beheld liable to be evicted. Section 56 of the Indian Contract Actprovides for frustration of contract. The frustration occurs wheneverthe law recognizes that without default of either party, a contractualobligation has become incapable of being performed because thecircumstances in which the performance is called for would render itradically different from that which was undertaken by the contract.In simple words, whenever the situation occurs, either party hasbecome incapable of being performed, their part of contract withoutdefault of either party, the contract will be frustrated and suchfrustration of contract is a void contract. However, the doctrine offrustration provided under Section 56 of the Indian Contract Act doesnot apply for the contract to sale of land or the lease of land. Suchfrustrations are governed under Section 108(e) of the Transfer ofProperty Act. Clause (e) of Section 108 of the Transfer of PropertyAct clearly indicates that where material part of the property has beendestroyed, it is the lessee’s option to treat the lease as void. This
Decision
wp-13268 & 13265-2018 judg.odt(14)clause is obviously based on the assumption that there is nofrustration for the things of lease automatically coming to an end. 19.The land in question was governed under the Act of1948. It is a complete code providing for the right to purchase,termination of the tenancy, recovery of possession etc. Therefore, thedispute would be governed and dealt with under the said Act.Therefore, this Court is of the view that the doctrine of frustration ofcontract or act of god would not be considered in this case.20.The learned Member has correctly observed that therecord of right clearly shows that the laws were fallow. The groundsfor incapability to cultivate the land being located in local area wasalso not proved. It was established before the Courts below that thetenants themselves were avoiding to cultivate the land given one orthe other reason. 21.On giving conscious consideration to the submissions ofthe respective counsels examining the facts and law, this Court is ofthe view that there is no error of law committed in the impugnedorders. There is no substance in the petitions. Hence, both petitionsstand dismissed. No order as to costs.22.Rule stands discharged. (S.G. MEHARE, J.) wp-13268 & 13265-2018 judg.odt(15)23.Learned counsel for the petitioners submits that therewas interim stay running in favour of the petitioners. He wouldsubmit that he want to challenge the decision of this Court in theHon’ble Supreme Court and prays that the stay granted earlier may becontinued for further eight weeks.24.Learned counsel for the respondent opposed the prayer.He would submit that the interim stay is running against him since2005.25.Considering the issue involved in this case and the spanof litigation, this Court is of the view that it will not be appropriate tostay the order. Hence, the prayer is rejected.(S.G. MEHARE, J.)Mujaheed//