J.B.MEHTA - (1.) The petitioner landlady has filed these two petitions against the two tenants as her application under sec. 32T on the basis of the certificate under sec. 88C has been dismissed by the order of the Revenue Tribunal dated February 22 1965 As both these petitions raise common questions they are disposed by this common order:- 42 As regards the common question in the two petitions as to the findings that the petitioner landlady did not bona fide require the lands in question for personal cultivation the Revenue Tribunal has mixed up the requirements of sec. 31 with sec32T. Under sec. 31(1)(a) the landlord is given a right to terminate the tenancy of lands if he bona fide required the same for personal cultivation. However further restriction was put on this right of termination for cultivating the land personally under sec. 31 and by reason of sec. 31A(c) which required that he must fulfill the following condition:- * * * * * * * * under sec. 88C(4) of the Act and whose tenant is therefore treated as an excluded tenant. Sec. 32T(I) provides that notwithstanding anything contained in secs. 31 and 31B both inclusive but subject to the provisions of this section a certified landlord may after giving notice and making an application for possession as provided in sub-sec. (3) terminate tenancy of any land leased to an excluded tenant if he bona fide required the land for cultivating it personally. In the entire sec. 32T even if the restriction in sub-clause (5) are considered there is no restriction similar to sec. 31A(c) and this right under sec. 32T(i) is notwithstanding anything contained in secs. 31 and 31B. It is obvious that the requirement of the land for bona fide and personal cultivation of the certified landlord has not to be examined by an application of the test laid down under sec. 31A(c). Therefore that test of the income by cultivation of the land of which the landlord is entitled to take possession being the principal source of income for maintenance has no bearing in the context of sec. 32T(1). The Legislature duly made this distinction because the test of income by way of different test was already applied in case of a certified landlord when the certificate was granted under sec. 88C(4). Sec. 88C(1) in terms requires that this exemption certificate would be granted if the landlords annual income including the rent of such land did not exceed Rs. 1500/and his holding did not exceed the economic holding on the relevant date. It is to grant relief to these small holders whose annual income did not exceed Rs. 1500/that this exemption under sec. 88C was granted from the provisions of deemed purchase and a request was conferred under sec. 32T(1) for enabling such a small landholder to terminate the tenancy of the land leased to an excluded tenant if he bona fide requires such land for personal cultivation - The Revenue Tribunal has in terms held in both the cases that the landlady cannot succeed unless she was able to establish that her needs for maintenance could not be fulfilled without the lands in question being acquired by her. It is therefore obvious that the Revenue Tribunal had committed a patent error of law in applying a wrong test in judging the bona fide requirement of the landlady for personal cultivation. The Prant officer had come to a correct conclusion that the landlady required both the lands bona fide for her personal cultivation. There was no dispute that out of the three fields one field was in the personal cultivation of this landlady of 3 A 6 gunthas as through her daughters son and only two other rented fields. In fact the tenant contended that even these rented fields were under her personal cultivation while the authorities * * * * * * * * * tenancy. In that view of the matter the finding of the Prant Officer that the landlady established her bona fide requirement for personal cultivation in both the cases must be restored. On that finding Sp.C.A. No. 1166/65 must succeed as that is the sole question arising in that petition.
(2.) As regards the other Spl.C.A. 1167/65 there is an additional question as to whether the tenancy was duly required under the mandatory terms of sec. 32T(3) of the Act. Sec. 32T(3) provides that the notice required to be given under sub-sec. (1) shall be in writing and shall be served on the tenant on or before December 13 1961 and a copy thereof shall at the same time be sent to the Mamlatdar and an application for possession shall be made thereafter under sec. 29 to the Mamlatdar on or before March 31 1962 This section is similar to section 31 which is available to other landlords. Under sec. 31(2) the notice required to be given under sec. 31(1) shall also be in writing and shall be served on the tenant on or before December 31 1956 and a copy thereof shall at the same time be sent to the Mamlatdar and an application for possession shall be made thereafter under sec. 29 to the Mamlatdar on or before March 31 1957 In . the Division Bench consisting of S. T. Desai C. 1 and Miabhoy J. had interpreted this corresponding sec. 31(2) by holding that the plain ordinary and natural meaning of the expression shall be served on the tenant on or before December 31 1956 was that the notice shall not merely be issued or despatched but it shall be served on the tenant before the date mentioned therein. It was also held that even though the expression used in sec. 31(1) was giving of the notice sec. 31(2) in terms defines how the giving of the notice in sub-sec. (1) was required to be done. It was held that what was intended by the expression giving of the notice was actually service on the tenant and sending a copy at the same time to the Mamlatdar. The Division Bench further held that the provision of sec. 31(2) was mandatory in the context of the entire Act designed for the protection of the tenants and as sec. 31 was enacted to confer certain rights which formerly were not vested in the landlord. In that view of the matter the Division Bench refused to equate the expression under the issue of the notice on the tenant as that would make sec. 31(2) of the material part thereof nugatory. It is true that the Division Bench of the Maharashtra High Court in Spl.C.A No. 556 of 1959 decided on July 7 1960 construed sec. 31(2) as only directory in view of the fact that the Legislature has not considered it necessary to provide that the information should be lodged in the specified period even though necessary condition of making an application was that the previous notice should be given to the petitioner. The Maharashtra High Court therefore held that as this notice was made a condition for making an application to the Mamlatdar there must be only a substantial compliance with that provision that the notice should be given on or before the relevant date. It is true that in view of the binding decision of the Division Bench of this Court this Maharashtra High Court decision cannot be preferred in so far as it holds the provision in sec. 31(2) to be only directory provision and not a mandatory provision. It should however be noted that in the Maharashtra case this view was taken on the facts of that case as in the ordinary course the notice which was posted on December 24 would have reached the tenant long before December 31 and the landlord could not be blamed for the delay of the postal authorities for delivering at late. The conclusion was arrived at by treating the provision in sec. 31(2) as a directory provision. That conclusion cannot be arrived at on the reasoning by us in view of the aforesaid decision of the Division Bench which holds the provision of sec. 31(2) to be mandatory. But as we shall presently consider the said conclusion would be correct because of certain other provisions of law which could be applied on the facts of that case. At this stage it would be only material to note that sec. 32T(3) with which we are concerned is Pari materia in the same terms as sec. 31(2). Therefore in view of the aforesaid settled legal position we must hold that the notice under sec. 32T(I) which had to be given in the manner defined in sec. 32T(3) must be served on the tenant on or before December 31 1961 and it would not be sufficient to say that the notice must only be issued b4fore that date. The legislature itself has maintained that distinction between the words service on the tenant and the copy being sent to the Mamlatdar at the same time. Therefore so far as the sending of the copy to the Mamlatdar is concerned it is sufficient if it is sent at the same time while in the case of the tenant service must be on or before December 31 1961 as per the decision of the Division Bench that this provision must be held to be mandatory provision.
(3.) However in the present case the further question has arisen which was never considered as to whether sec. 32T(3) authorises the notice to be served by post so that sec. 28 of the Bombay General Clauses Act 1904 can be attracted to the facts of any such case. The Revenue Tribunal was unable to point out any provision in the Act which would authorise service of such notice by post. When we turn to sec. 3 of the Act it in terms provides as under:- The provisions of Chapter V of the Transfer of Property Act 1882 shall in so far as they are not inconsistent with the provisions of this Act apply to the tenancies and leases and land to which this Act applies. Sec. 106 of the Transfer of Property Act provides for the notice of termination of a lease by providing that in the absence of a contract or local law or usage to the contrary a lease of immoveable property for agricultural or manufacturing purposes shall be deemed to be lease from year to year terminable on the part of either lessor or lessee by six months notice expiring with the end of a year of the tenancy. The material several part of sec. 106. Every notice under this section must be in writing signed by or on behalf of the person giving it and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party or to be of his family or servants at his residence or if such tender or delivery is not practicable affixed to a conspicuous part of the property. It is true that the provision of the period of notice which is mentioned in sec. 106 would not apply in the present case where a specific inconsistent provision is made both in secs. 31(2) and 32T(3). However as regards the mode of service of this notice in writing before the date specified both the secs. 31(2) and 32T(3) are silent. There being no inconsistent manner of service provided there are in sec. 106 of the T.P.Act it is obvious that the present notice under sec. 32T(3) or sec. 31(2) for terminating lease could also be served in the manner laid down in sec. 106 of the T.P. Act before that provision is in terms incorporated in the Act because of sec. 3 which provides that the provision of Chapter V which includes sec. 106 of the T.P. Act which in so far as they are not inconsistent with the provisions of this Act apply to the tenancies and leases of land to which this Act applies. Therefore it is obvious that even under sec. 32T(3) so far as the manner of service of notice is concerned the legislature has authorised service by post. Once we come to t4at conclusion sec. 28 of the Bombay General Clauses Act 1904 provides for the meaning of service by post as under :- Where any Bombay Act or Gujarat Act made after the commencement of this Act authorises or required any document to be served by post whether the expression serve or either of the expression given or send or any other expression is used then unless a different intention appears the service shall be deemed to be effected by properly addressed prepaying and posting by registered post a letter containing the documents and unless the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post. This sec. 28 would in terms apply to a notice under sec. 32T(3) or sec. 31(2) which authorises the service by post in such a case where the notice is served on the tenant. In such a case a notice of termination of the letter has been properly addressed and posted by registered post after prepaying the post such letter containing the document in such a case unless the contrary is proved such service is deemed to be affected at the time at which the letter would be delivered in the ordinary course of post. It should also be kept in mind that unless a different intention appears it would rule out the application of sec. 28 of the Bombay General Clauses Act 1904 would not be ruled out. There is no question of a different intention for even sec. 32T(3) or sec. 31(2) do not provide that the application for taking possession to be made before the Mamlatdar should be within any specified period from the date of the service of the notice or that the tenant should be informed for any particular period in advance.;