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1970 DIGILAW 64 (KAR)

MAHABALESHWAR NAGAPPA v. GOPAL VENKAPPA HEGDE

1970-06-03

CHANDRASHEKHAR, HONNAIH

body1970
( 1 ) IN this petition under Arts. 226 and 227 of the Constitution, the petitioner has prayed for issue of a Writ in the nature of Certiorari quashing the order of the Mysore Revenue Appellate Tribunal (hereinafter referred to as the MRAT.) so as to restore the orders of the Assistant Commissioner and of the Tahsildar, which orders were set aside by the MRAT. ( 2 ) THE petitioner herein is the landlord and respondent 1 herein is the tenant. The petitioner made an application before the Mamlatdar under the provisions of the Bombay Tenancy and Agricultural Lands Act for eviction of the tenant on the ground of default in payment of rent. The mamlatdar passed an order evicting the tenant. His order was affirmed in appeal before the Prant Officer and the Bombay Revenue Appellate tribunal. Threafter the tenant filed before the Bombay High Court a petition which stood transferred to this Court on Reorganisation of States. By its order dated 30-3-1959 this Court set aside the orders of the Mamlatdar, prant Officer and the Revenue Appellate Tribunal and sent back the matter to the Mamlatdar for a fresh disposal after considering the question whether the petitioner was a mulgeni tenant. As the landlord had already obtained possession of the demised land, this Court directed that he might remain in possession till the final determination of the matter by the Mamlatdar. ( 3 ) AFTER remand, the Tahsildar made an order evicting the tenant on the ground of default in payment of rent. That order was affirmed by the assistant Commissioner in appeal. The tenant took up the matter is revision before the MRAT. During the pendency of this revision petition, the mysore Land Reforms Act, 1961, (hereinafter referred to as the Act) came into force on 2-10-1965. The MRAT. held that in view of the provisions of the Act the landlord's petition for eviction was no longer maintainable. In that view it (the MRAT.) set aside the orders of the Tahsildar and the assistant Commissioner and dismissed the landlord's petition for eviction as not being competent. Feeling aggrieved, the landlord has come up before us. ( 4 ) MR. T. S. Ramachandra, learned Counsel for the petitioner, contended that the dismissal by the MRAT. of the petitioner's application for eviction of his tenant, is unsustainable and has to be set aside. Feeling aggrieved, the landlord has come up before us. ( 4 ) MR. T. S. Ramachandra, learned Counsel for the petitioner, contended that the dismissal by the MRAT. of the petitioner's application for eviction of his tenant, is unsustainable and has to be set aside. ( 5 ) IN Krishna Narasimha Hegde v. Venkataraman Thimayya Hegde, (1969) 1 Mys. LJ. 516. a similar order made by the MRAT. came up for consideration before this court. While seating aside the order of the MRAT. , this is what Tukol, J. who spoke for the Court, eaid at page 517:"the Mysore Revenue Appellate Tribunal was clearly in error in holding that the application for eviction pending before it became 'dead and gone' and that the only order it could pass was to dismiss the application after setting aside the order passed by the Tahsildar and confirmed by the Assistant Commissioner. Ss. 22 and 23 of the Land reforms Act embody the new law as regards eviction and confer a further right on the tenant who is otherwise liable to be evicted. Under sub-sec. (2) of S. 23 of the Act, what is laid down is that before an order of eviction could be passed against the tenant on the ground of his default in payment of rent, such Court, officer or authority passing an order of eviction shall not order eviction if the tenant pays to the landlord the arrears of rent together with the cost of proceedings as decided bv such Court, officer or authority within such period as such Court, officer or authority might fix. " ( 6 ) HIS Lordship further said:"it was therefore obligatory on the tribunal to have modified the order of eviction in conformity with the provisions contained in sub- sec. (2) of Section 23 of the Act. " ( 7 ) A similar question arose before the Supreme Court in an unreported decision, Akubai v. Appaji Krishnaji Kulkarni, C. A. 618|65, S. C. There also, there was an order of eviction of a tenant by the Assistant Commissioner on the ground of default in payment of rent. That order was reversed by the mrat. In a Writ petition from that order, this Court restored the order of eviction made by the Assistant Commissioner. That order was reversed by the mrat. In a Writ petition from that order, this Court restored the order of eviction made by the Assistant Commissioner. The tenant took up the matter in appeal to the Supreme Court During the pendency of that appeal the Act came into force. After referring to S. 23 (2) of the Act, this is what Shah, J who spoke for the Court, said:"it is a blanket provision prohibiting a Court, Officer or authority from evicting a tenant in a proceeding for his eviction on the ground of default in payment of rent if the tenant pays to the landlord the arrears of rent together with the costs of the proceedings as may be decided by the Court, Officer or authority within the period fixed by such Court, Officer or authority. " ( 8 ) HIS Lordship added:"this proceeding before the Supreme Court questioning the validity of an order declaring that the tenancy of the appellant was determined because of the non-payment of rent is a proceeding for eviction of a tenant on the ground of default in paying rent. "the Supreme Court set aside the order of this Court and remanded the proceedings to the Tahsildar with a direction to determine under S. 23 (2) the amount of rent due and the costs of the proceedings and to fix such time as he (the Tahsildar) thought might properly be given to the tenant, to pay the amount of rent and costs. ( 9 ) HOWEVER, Mr. Ramachandra contended that while the decision of this court in Krishna Narasimha Hegde's case, should be followed in the present case to the extent of setting aside the order of MRAT. , the pronouncement of this Court that it was obligatory on the tribunal to have modified the order of eviction in conformity with the provisions contained in sub-sec. (2) of S. 23 of the Act, has no application to the present case. The ground on which Mr. Ramachandra sought to distinguish the aforesaid two cases of this Court and the Supreme Court from the present case, was that in those two cases the respective tenants had continued in possession of the demised lands inspite of the orders of eviction, whereas in the present case the order of eviction had been executed, the tenant was dispossessed and the landlord had taken possession of the demised land. From the facts narrated in Krishna Narasimha Hegde's case, and in Smt. Akubai's case, it cannot be ascertained whether the respective tenants had continued in possession or had been dispossessed of the demised lands in pursuance of the orders of the Assistant Commissioner. The question is whether for the purpose of applying the provisions of sub- sec. (2)of S. 23 of the Act to pending proceedings relating to eviction of a tenant, it would make any difference whether the tenant is continuing in cossession of the land or has been dispossessed in pursuance of the order of any authority, officer or Court. ( 10 ) MR. Ramachandra contended that S. 23 (2) has no application to a case where a tenant has already been dispossessed in pursuance of an order of eviction, before the Act came into force. Sub-sec. (2) of Section 23 reads:"23. Eviction not to be ordered if rent paid during pendency of proceedings: (2) Notwithstanding anything contained in any enactment or provision of law repealed by Section 142 or in any other law, in any proceedings pending on the appointed day or instituted on or after that day in pursuance of any such repealed enactment or law before any Court, Officer or authority for eviction of a tenant on the ground of default in paying rent, such Court, officer or authority shall not order eviction of the tenant, if the tenant pays to the landlord the arrears of rent together with tne costs of the proceedings as decided by such Court, officer or authority within such period as such court, officer or authority may fix. " ( 11 ) IT was argued by Mr. Ramachandra that the words, " such Court, officer or authority shall not order eviction of the tenant ", merely prohibit an order of eviction of the tenant being made by any Court, officer or authority for default of rent after the coming into force of the Act and that there is nothing in this sub-section which invalidates an order of eviction made before the Act came into force, or requires the landlord who has already taken possession of the land in pursuance of such order of eviction to redeliver possession to the tenant. ( 12 ) THE contention that sub-sec. ( 12 ) THE contention that sub-sec. (2) merely bars an order of eviction being made after the coming into force of the Act, for past default, and does not affect an order of eviction already made before the coming into force of the Act, is no longer available in view of the aforesaid decision of the supreme Court. As stated earlier, in the case before the Supreme Court, an order of eviction had been made by the Assistant Commissioner, and affirmed by this Court before the Act came into force; yet, the Supreme court set aside that Order of eviction. ( 13 ) MR. Ramachandra was not able to state any principle on which a distinction can be made between a case in which the tenant has already been dispossessed in pursuance of an order of eviction and a case in which he has continued in possession by virtue of an order of stay or otherwise, during the pendency of appeal or revision or other proceedings against such order of eviction. So long as an appeal, revision or other proceedings against such order is pending, it does not become final and any dispossession of the tenant in pursuance of such order, is also subject to the ultimate result of such appeal, revision or other proceedings. ( 14 ) IN our opinion, the circumstances that the tenant had alreadv been evicted and the landlord had obtained possession of the land pending the appeal or revision, cannot, be ground for distinguishing this case from krishna Narasimha Hegde's case, and Smt. Akubai' case, In our opinion, the provisions of sub-sec. (2) of S. 23 are equally applicable to the present case. ( 15 ) SINCE this petition is not only under Art. 226 but also under Art. 227 of the Constitution, it is open to us not merely to quash the order of the mrat. , but also make appropriate further directions. Accordingly, we set aside the order of eviction made bv the Tahsildar, the order of the Assistant Commissioner affirming that order and the order of the MRAT. , but also make appropriate further directions. Accordingly, we set aside the order of eviction made bv the Tahsildar, the order of the Assistant Commissioner affirming that order and the order of the MRAT. dismissing the application for eviction, and we remand the case to the Court of the Munsiff at Haliyal and direct that Court to determine under S. 23 (2) of the Act the amount of rent due, if any, from responden 1, and the costs, if any, of the proceedings (not including the costs of this Court) and to fix such time as that Court may properly think fit to be given to the tenant (respondent 1) to pay the amount of rent and costs, if any. ( 16 ) IN this petition, there will be no order as to costs. The Court of the Munsiff at Haliyal is directed to proceed with the matter expeditiously. Let the records of the Tahsildar and the Assistant Commissioner be sent to the Court of the Munsiff at Haliyal very early. --- *** --- .