Vishnupant Alias Dhondopant Wamanrao Jamkar Vs. Mahadev Santuka and ors. - Court Judgment

Excerpt:
- code of criminal procedure, 1973 [c.a. no. 2/1974]. section 41: [ swatanter kumar, cj, smt ranjana desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power under section 44 of the code, then there could be no reason for such a power not to be specified under the provisions of chapter xii of the code. in terms of section 41, a police officer may arrest a person without a warrant or order from the magistrate for any or all of the conditions specified in that provision. language of this provision clearly suggested that the police officer can arrest a person without an order from the magistrate. thus, there appears to be no reason why on the strength of section 156(3) of the code, any restriction should be read into the power specifically granted by the legislature to the police officer. of course, freedom of investigation is the essence of these provisions but in order to suppress the mischief it is sufficiently indicated under different provisions of the code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. some kind of inbuilt safeguard is available to the accused in the cases where the magistrate directs investigation under section 156 (3) of the code by taking recourse to the provisions of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not remediless and that would further buttress the above view. [jagannath singh v dr. ajay upadyay & anr 2006 cri lj 4274; 2006 (5) air bom r held per incuriam]. - 3/1960 and the suit land fell to his share and as such he became owner of the property, hence it was incumbent on santuka to pay rent of the suit land to him but he failed to pay rent, the petitioner approached the tahsildar by filing application. therefore, he contended that he is entitled to possession of suit land as the respondents without any cause, have failed to pay the rent. he submitted that the matter is required to be remanded to the tahsildar to make appropriate enquiry by affording ample opportunity to the petitioner and respondents as well. section 19(2) reads thus :19(2). the landholder may terminate a tenancy on the ground that the tenant- (a)(i) has failed to pay in any year, within fifteen days from the day fixed under the land revenue act for the payment of the last instalment of (land revenue due for the land concerned in that year): the rent of such land for that year :or (ii) if an application for the determination of reasonable rent is pending before the tribunal or the collector under section 17 has failed to deposit within fifteen days from the aforesaid date with the tribunal or the collector, as the case may be, a sum equal to the amount of rent which he would have been liable to pay for that year if no such application had been made; or (iii) in case the reasonable rent determined under section 17 is higher that the sum deposited by him has failed to pay the balance due from him within two months from the date of the decision of the tribunal or the collector as the case may be; or (c) has sub-divided the land ;or (d) has sub-let the land or failed to cultivate the land personally or has assigned any interest therein; provided that, nothing in this section shall apply to any tenant whose, tenancy is terminated for non-payment of rent if he has failed for any three years to pay rent within the period specified in sub-clause (2) of section 19 and the landholder had given intimation to the tenant of the default within a period of six months of each default. the tahsildar in passing an order shall allow the tenant set off the sum, if any, paid by him to the landholder within the period of three years immediately proceeding the date of application made under sub-section (1) in excess of the rent due from him :provided that if the tahsildar is satisfied that in consequence of a total or partial failure of crops or similar calamity the tenant has been unable to pay the rent due the tahsildar may, for reasons to be recorded in writing, direct that the arrears of rent together with costs of the proceedings, if awarded, shall be paid within one year from the date of the order and that if before the expiry of the said period the tenant fails to pay the said arrears of rent and costs, the tenancy shall be deemed to be terminated and the tenant shall be liable to be evicted. the application which is filed by petitioner on record, on which shri vaishnav placed strong reliance on the averments made in the application required to be noted. this contention is well supported by the judgement of this court in the case of samba alone v. therefore, in my judgment, as the petitioner has failed to establish this important aspect of the matter, the petitioner's application for possession has to be rejected. 58. in the case of johra bai, the apex court was considering the effect of failure to intimation of default by the landlord of three years to the tenant. 21. in my judgment, therefore, the petitioner who failed to give intimation to the respondents, is not at all entitled for any relief, though the tahsildar and deputy collector proceeded to consider the case of the petitioner as if the petitioner was challenging the declaration under section 38-e of the act. as the petitioner's application for possession filed before the tahsildar lacks all details, in my judgment, even if accepting the grievance of shri godhamgaonkar that tahsildar and the deputy collector proceeded on wrong assumption, no relief can be granted to the petitioner as the petitioner has failed to establish that he has complied with statutory requirement as contemplated under section 19 sub-section (2), section 28(1) proviso.naik a.b., j.1. the present proceedings arise out of an application filed by the petitioner under section 28 read with sub-section (2) of section 19 and section 32 of the hyderabad tenancy and agricultural lands act, 1950 (hereinafter 'the act' for short).2. the petitioner, by moving the additional tahsildar, degloor, by that application sought recovery of possession from the respondents herein, of land survey no. 29, admeasuring 20 a : 2 g: to the extent of 10 a 6 g situated at village jamb (bk). tq, mulched district. nanded (hereinafter 'suit land' for short). the petitioner, inter alia, contended that he is the owner of the suit land; he acquired ownership of the suit land on the basis of civil court decree. though survey no. 29 admeasuring 20 a, but this proceedings relate to possession of 10 a 6 g only. the rest of the land out of survey no. 29 came to be declared in favour of one santuka, the predecessor of the respondent under section 38-e of the act, hence this proceedings are confined only to the extent of 10-a 6 g of the suit land. it is the contention of the petitioner that respondents are heirs and legal representatives of deceased santuka. according to the petitioner, santuka, claimed that he was the protected tenant of the land. it is contended by the petitioner that as he became owner on the basis of compromise decree passed by the learned civil judge, s.d., nanded in r.c.r no. 3/1960 and the suit land fell to his share and as such he became owner of the property, hence it was incumbent on santuka to pay rent of the suit land to him but he failed to pay rent, the petitioner approached the tahsildar by filing application.3. it is contended by the petitioner that inspite of service of notice of termination of tenancy and demanding rent, the tenant/respondents did not bother to pay the rent. therefore, he contended that he is entitled to possession of suit land as the respondents without any cause, have failed to pay the rent. it is contended that the petitioner has filed s. c. s no. 43/1966 against the defendant no. 3- late santuka was party to the suit and the respondents being his heirs and successors, the decree/findings recorded in that suit, is binding on them.4. little deviation to the narration of facts. it will be proper to refer to few aspects of spl. civil suit no. 43/1966.that suit was filed by the petitioner to recover possession of land. survey no. 29 admeasuring 20 a 12 g and some other lands (in present proceedings this court is not concerned with the other lands). the said suit was filed for possession on the basis of the title of the petitioner. the petitioner, who was plaintiff in that suit contended that defendant no. 3 ('santuka') was not a tenant of the land survey no. 29/a i.e. (suit land in the proceeding) and, therefore, he has no right whatsoever to be in possession of the land. it was contended in the suit that the defendant no. 1 has sold 10 acres 6 g land to defendant no. 3 i.e. santuka by registered sale deed dated 5th august, 1966. the vendee of santuka has no saleable title; he contended that possession of santuka being unauthorised. he, therefore, contended that possession be delivered to him. that suit was resisted by santuka by filling written statement (exh. 5.). he contended that he has no knowledge about s. c. s no. 3/ 1960 which was filed by one nagorao against the petitioner- plaintiff. he contended that he was the protected tenant of land survey no. 29 to the extent of 10 a 6 g. he denied ownership of the plaintiff. he contended that he is a tenant of the suit land and, therefore, in view of the provisions of section 99 of the act, the civil court has no jurisdiction to decide the suit. he further contended that he being protected tenant, he purchased the land which is in his possession from defendant no. 1, that too for valuable consideration, defendant no. 1 has executed sale deed in his favour on 5th august, 1996. thus, he contended that he was in possession legally. he contended that the plaintiff was never in possession of the suit land. he contended that his possession is protected by the provisions of section 32 of the act and, therefore, the civil court has no jurisdiction to entertain the petition.5. the learned civil judge framed issues on the basis of pleadings of the parties and recorded finding that the defendant no. 1 has no title to sell the land in favour of the defendant. however, the learned civil judge dismissed the suit in respect of survey no. 29-a by the judgment and decree dated 13th september, 1969.6. the petitioner/plaintiff, feeling aggrieved by the judgment and decree passed by the learned civil judge s. d. nanded in s.c.s no. 43/66 preferred an appeal to this court being first appeal no. 99/1970. that appeal came to be dismissed by the division bench of this court on 24th september, 1977. the division bench in its judgment in that appeal was concerned with the dismissal of the suit regarding survey no. 29. the division bench has made the following observations :-'so far as survey no. 29 is concerned, it was urged by mr. godhamgaonkar that as defendant no. 3 had purchased survey no. 29 from defendant no. 1, under a sale deed exh. 105, dated august 5, 1966, defendant no. 3 could not claim to be the tenant of the land. the contention must be rejected because it is not open to the plaintiff to contend, in one breath, that the sale deed in invalid, because the land was allotted to the share of the plaintiff, in the consent decree dated march 24, 1962 and, in the another breath, to contend that the sale deed conferred the rights of ownership on defendant no. 3 and destroyed the statutory protection given to him under the provisions of the hyderabad tenancy and agricultural lands act, 1950.12. it is not disputed that defendant no. 3 was the tenant of the land before the sale deed and be continued to cultivate the land after the sale deed. in these circumstances he is entitled to the full protection of the hyderabad tenancy and agricultural lands act, 1950 and hence the civil court had no jurisdiction to pass a decree of eviction against defendant no. 3, from the said survey no. 29. the learned civil judge, was, therefore, quite right in dismissing the plaintiff's suit, in respect of survey no. 29.'hence with these observations the appeal came to be dismissed, confirming the judgment and decree passed by the learned civil judge, s.d., nanded.7. reverting back to the facts leading to the proceeding concerning the present petition, the petitioner contended that deceased santuka and, for that purpose, the respondents are not entitled to remain in possession of the suit land as they have not paid the rent.8. the tahsildar noticed the parties. before the tahsildar, the petitioner produced evidence. the respondents in response to the notice issued by the tahsildar, filed their written statement on 9th may, 1983, thereby denying all adverse contentions raised by the petitioner. it is specifically contended that the tenancy is not properly terminated. it is also contended that they have paid the rent to the earlier owner and they showed their ignorance about the suit i.e. r.c.r. no. 3/1960. after filing of the written statement the tahsildar framed issues. the petitioner recorded his statement and also examined one witness datta vishwanath gadhave. the tahsildar, after considering the evidence of the parties and taking into consideration the contention of the respondents that they have paid the tent to the earlier owner, the tahsildar dismissed the application filed by the petitioner by his judgment and order dated 30th march, 1985.9. feeling aggrieved by the judgment and order passed by the additional tahsildar, degloor the petitioner filed an appeal before the deputy collector (lr), nanded. it was contended by the petitioner before the dy. collector that the tahsildar has erroneously proceeded on the footing that deceased santuka was declared owner under section 38-e of the act in respect of the suit land and wrongly considered that the application so filed under section 32(2) of the act. it was contended that the application which was filed by the petitioner seeking possession of the land which is not declared in favour of the respondents under section 38-e of the act and the application is filed on the basis of default committed by the respondents in paying the rent. however, the dy. collector did not accept this contention of the petitioner. the dy. collector proceeded to consider the fact that when section 38-e declaration was made, nagorao was the owner of the land and the alleged partition took place in the year 1962 i.e. after 25th may, 1957 i.e. notified date and, therefore, it was observed by dy. collector that nagorao cannot include the land in the partition suit and, therefore, he observed that the petitioner cannot file an application under section 28 read with section 32 of the act, with these observations, the learned dy. collector dismissed the appeal by the judgment and order dated 31st july, 1985.10. feeling aggrieved by the judgment and order dated 31st july, 1985, passed by the dy. collector (lr), nanded, the petitioner filed revision application before the maharashtra revenue tribunal (for short 'the tribunal') being tenancy revision no. 1590/b/85, nanded. the learned member of the tribunal, on hearing the petitioner and the respondents dismissed the revision. the learned member of the tribunal has considered the fact about termination of tenancy. the tribunal observed that though there was change of ownership of the suit land but that change was not legal. he also observed that the notice of termination of tenancy under section 19 sub-section (2) was not given within the prescribed time i.e. within six months, in writing, intimating the decision to terminate tenancy. the learned member of the tribunal has not accepted the claim of the petitioner that the petitioner has issued notice to the respondents terminating tenancy. the tribunal found that the date of default in the notice was not stated in the notice; such notice of termination of tenancy is not legal as the petitioner has not led any evidence in respect of intimation to the respondents. therefore he came to the conclusion that as the tenancy was no terminated legally, the petitioner is not entitled to seek possession. with these observation the revision came to be dismissed.11. feeling aggrieved by the judgment and order passed by the tribunal confirming the judgment and orders passed by the additional tahsildar and the deputy collector, the petitioner approached this court by filing the instant petition under article 227 of the constitution of india.12. before noticing the contentions of the learned counsel, one aspect cannot be ignored. in suit no. 3/1960, a compromise decree was passed to which deceased santuka was not a party. in spl. c.s no. 43/1966. santuka was party, a finding in that suit came to be recorded that nagorao has no title to sell the land, still this court held that santuka's possession is protected by the act. after judgment of this court, the petitioner issued notice treating santuka as his tenant. in view of this aspect, the claim of the petitioner that santuka was not the tenant, loose its importance. the petitioner by his own act, accepted the status of santuka as tenant of the suit land.13. shri godhamgaonkar, submitted that all the three authorities below have proceeded on total wrong assumption that the petitioner is challenging the declaration of ownership under section 38-e of the act. he contended that the application which is filed by the petitioner is under section 28(2) read with sections 19 and 32 of the act, seeking possession of the suit land from the respondents for non-payment of rent. he submitted that inspite of notice being served on the respondents, the respondents neither replied nor complied with the payment of rent. therefore, he submitted that the respondents have committed default and, as such, the petitioner is entitled to seek possession of the land as the rightly terminated tenancy as the respondents have not paid the rent. he submitted that all the three authorities below have not considered the fact that there is ample evidence on record to show that the notices were served on the respondents and, that tenancy was legally terminated there was no ground or reason to reject the claim of the petitioner. he further submitted that in view of the judgment of the civil court which was confirmed by this court, it is accepted that the claim put forth by deceased santuka about his acquisition for title from nagorao, was negatived. therefore, he contended that in view of the judgment of the civil court in s.c.s. no. 43/66 which is confirmed by this court, established that the petitioner's ownership is accepted and this findings were not challenged by santuka in any proceedings. therefore, he submitted that the tenancy authorities have exceeded their jurisdiction, in either ignoring or not considering the judgment of the civil court in proper perspective, i.e. in respect of the ownership of the petitioner. he, therefore, submitted that all the three authorities below have proceeded totally on wrong assumption, in as much as they have not addressed themselves to the real issue involved in proceeding. he submitted that the matter is required to be remanded to the tahsildar to make appropriate enquiry by affording ample opportunity to the petitioner and respondents as well.14. per contra, shri a.h. vaishnav, learned advocate for respondents 1 to 6, supported the judgment of all the three authorities. he contended that it is not disputed that santuka was protected tenant of entire survey no. 29; admittedly half of the land to the extent of 10 a 6 g was declared in favour of santuka under section 38-e of the act. he submitted that even assuming that the ownership of the petitioner has been accepted by the high court and the civil court, still the main question arises for consideration is whether the tenancy was properly terminated and whether the petitioner has given intimation of each default, as required by the statute. shri vaishnav, brought to my notice the averments made by the petitioner in his application filed under section 28 before the tahsildar. he submitted that there is no whisper in the application that the petitioner has given notice as required by provisions of section 28 read with section 19 sub-section (2) of the act. therefore, he submitted that the burden is on the petitioner to establish that the tenancy was legally terminated. he submitted that the averments made by the petitioner in the application itself, does establish that there is full compliance of the statutory provisions, thus for non-compliance of mandate of the statute, the tenancy of the respondents is not legally terminated. he submitted that the orders passed by all the three authorities below requires no interference at the hands of this court. he pointed out that the tribunal has, in fact, considered this aspect of termination of tenancy, issue of notice etc. and the tribunal has accepted that the possession of the suit land can be obtained only if there is default of payment of rent for three years and land-holder has given intimation to the tenant of default within six months of each default. he, therefore, submitted that this finding has been recorded by the tribunal on the basis of the record. he submitted that even if tahsildar of deputy collector has not considered this aspect but the tribunal has, in fact, addressed itself to this fact of termination of tenancy and intimation of default by the land-holder. he therefore, submitted that the petition is liable to be dismissed.15. in order to appreciate the contentions of the respective learned advocates, it will be appropriate to refer to the relevant statutory provision contained in the act.section 19(2) reads thus :'19(2). the landholder may terminate a tenancy on the ground that the tenant-(a)(i) has failed to pay in any year, within fifteen days from the day fixed under the land revenue act for the payment of the last instalment of (land revenue due for the land concerned in that year): the rent of such land for that year : or(ii) if an application for the determination of reasonable rent is pending before the tribunal or the collector under section 17 has failed to deposit within fifteen days from the aforesaid date with the tribunal or the collector, as the case may be, a sum equal to the amount of rent which he would have been liable to pay for that year if no such application had been made; or(iii) in case the reasonable rent determined under section 17 is higher that the sum deposited by him has failed to pay the balance due from him within two months from the date of the decision of the tribunal or the collector as the case may be; or(b) has done any act which is destructive or permanently injurious to the land; or(c) has sub-divided the land ; or(d) has sub-let the land or failed to cultivate the land personally or has assigned any interest therein; or(e) has used such land for a purpose other than agriculture;(provided that no tenancy or any land held by a tenant shall be terminated on any of the ground mentioned in this sub-section unless the landholder gives six months notice in writing intimating his decision to terminate the tenancy and the grounds for such termination) :(rest of the provisions are not relevant hence not taken)section 28 reads thus :'28(1). whereas a tenancy of any land held by a tenant is terminated for nonpayment of rent and the landholder files any proceeding to reject the tenant, the tahsildar shall call upon the tenant to render, the landholder the rent in arrears together with the cost of proceeding, within ninety days from the date of the order, and if the tenant complies with such order, the tahsildar shall, in lieu of making an order of ejectment pass an order directing that the tenancy has not been terminated, and thereupon the tenant shall hold the land as if the tenancy had not been terminated:provided that, nothing in this section shall apply to any tenant whose, tenancy is terminated for non-payment of rent if he has failed for any three years to pay rent within the period specified in sub-clause (2) of section 19 and the landholder had given intimation to the tenant of the default within a period of six months of each default.(2) the landholder may apply to the tahsildar in the prescribed form for recovery of arrears of rent for any period not exceeding three years. the tahsildar may, a after such enquiry as he considers necessary pass such order as he deems fit. the tahsildar in passing an order shall allow the tenant set off the sum, if any, paid by him to the landholder within the period of three years immediately proceeding the date of application made under sub-section (1) in excess of the rent due from him :provided that if the tahsildar is satisfied that in consequence of a total or partial failure of crops or similar calamity the tenant has been unable to pay the rent due the tahsildar may, for reasons to be recorded in writing, direct that the arrears of rent together with costs of the proceedings, if awarded, shall be paid within one year from the date of the order and that if before the expiry of the said period the tenant fails to pay the said arrears of rent and costs, the tenancy shall be deemed to be terminated and the tenant shall be liable to be evicted.(3) when a tenant tenders an amount on account of rent to the landholder for any period and if the landholder refuses to receive it or refuses to grant a receipt for it, the tenant may present to the tahsildar an application in writing for permission to deposit in his office the full amount of rent. tahsildar may receive the amount in deposit and give a receipt for it, which shall constitute a discharge of the tenant's liability in respect of rent for such period and no claim or application by a landholder for rent shall be maintainable in respect of the period for which the rent has been so deposited by the tenant. notice of the amount so deposited shall be given to the landholder and the amount will, on his application, be paid to him.'(underline by me)16. if one considers the above quoted statutory provisions which cast a duty on the tenancy authorities to enquire into all aspect. even if there is a default in payment of rent by the tenant, the tahsildar straightway cannot order eviction of tenant, but he has to pass an order and call upon the tenant to deposit the rent of the default covered by section 28(1). then the proviso also protect termination of tenancy and required the landholder to intimate the tenant about the default. thus, there is full protection given by the statue against unwanted and illegal termination of tenancy, while considering the case of the petitioner, 1 have to keep in mind this aspect.17. sine quo non for termination of tenancy for non-payment, the landholder has to intimate the tenant and intimate to the tenant about each default within a period of six months of such default and also make an application to tahsildar for appropriate relief. the application which is filed by petitioner on record, on which shri vaishnav placed strong reliance on the averments made in the application required to be noted. in the application the petitioner has made following statements which is relevant to consider whether there is any averment in respect of statutory compliance:'6. that the petitioner has sent a registered notice to the respondents for termination of tenancy on 29th september 1980 and after that period the respondents neither replied nor deposited the rent amount in the competent court; as such, the tenancy of the respondent is terminated after lapse of six months period from notice to the respondents and the petitioner is entitled to get possession of the suit land as the tenancy of late santuka and their legal heir is terminated.'18. from the above said contentions in the application, it is apparent there is no whisper as to whether the petitioner has complied with statutory requirement referred to under section 28 read with section 19(2) of the act. the grievance made by shri godhamgaonkar that no finding has been recorded on this aspect, nor the respondents have stepped in the witness box to state that they have nor received any intimation. therefore, he submitted that adverse inference should have been drawn by the all the three authorities. in my opinion, the grievance of shri godhamgaonkar is ill-founded. it is to be noted that when the landlord files an application for possession of the suit land for non-payment of rent, the landlord has to prove and establish that all requirements have been complied with and followed by him. in such cases, it is the duty of the tahsildar to consider the validity of termination of tenancy even though the question of validity was not raised by the parties as the statute imposes an obligation on the landholder to give intimation of each default to the tenant and if the landholder approaches the tahsildar with an application for termination of tenancy and seeking possession, in such case, it is the burdened duty of the tahsildar to embark upon the said enquiry and record a finding whether the tenancy has been properly terminated or not by following the statutory requirements. in my judgment, the contention of shri vaishnav that the tenancy was not properly terminated by following the procedure as contemplated under section 28 read with section 19 of the act, has to be accepted. this contention is well supported by the judgement of this court in the case of samba alone v. tukaram chandakar, reported in 1980 m.l.j. 213. the relevant observations made by the learned single judge find place in para nos. 11, 12, 13 which read thus :'11. reliance was also placed by mr. ghate on the observations of the maharashtra revenue tribunal in sarubai v. pandurang. there the revenue tribunal was dealing with a notice required to be given under section 38(1) of the bombay tenancy and agricultural lands (vidarbha region and kutch area) act, 1958. the provisions of the section 38(1) of that act are of an entirely different nature. the said section is as follows :'38(1) notwithstanding anything contained in section 9 or 19 but subject to the provisions of sub-sections (2) to (5), a landlord may after giving to the tenant one year's notice in writing at any time within two years from the commencement of this act and making an application for possession as provided in sub-section (2) of section 36 terminate the tenancy of the land held by a tenant other than an occupancy tenant if he bona fide requires the land for cultivation if personally.'the tribunal in that case observed very correctly that it was clear from the wording of section 38(1) that if a landlord bona fide requires his land for cultivating it personally, he may after giving to the tenant one year's notice in writing, and after making an application for possession as provided in sub-section (2) of section 36 terminate the tenancy, i.e. the termination of the tenancy followed automatically after the two steps are taken. it was observed that the provisions of section 38(1) produced above nowhere require that the intention to terminate tenancy should be specified in the notice itself. in that respect that provision stood on entirely different footing from the provisions of the proviso below section 19(2) of the tenancy act which specifically requires the landholder to mention in the notice his decision to terminate the tenancy and the ground for such termination. here the termination is not automatic or by making an application to the tahsildar under section 28(1) but by the landlord on giving the require notice under section 19(2) of the tenancy act.12. mr. ghate for the respondent contended that this was a new point being taken up now in the petition. no objection to the validity of the notices had been raised by the petitioner in the trial court. it is true, in the trial court, no such contention was taken. the validity of the notice as a proper notice terminating the tenancy, was the very basis on which the tahsildar could not under section 28(1) of the tenancy act, and, therefore, it was for the tahsildar to decide, irrespective of whether an objection was taken or not by the tenant, whether the tenancy had been properly terminated on a valid notice. as observed earlier, the naib tahsildar, rajura did actually notice this point and he did hold that the notices were not valid and the tenancies were not properly terminated, though he again committed an error by passing a condition order of possession. from the revision petition of the petitioner to the revenue tribunal, it does appear that this ground was specifically taken an ground no. (iv) in the said revision application to the maharashtra revenue tribunal, but it appears the revenue tribunal has not taken cognizance of this point. this ground has also been specifically taken in the present petition as ground no. (iv) in fact a proper termination of the tenancy by a proper notice under section 19(2)(a)(i) of the tenancy act, read with the proviso below section 19(2) of the tenancy act would be the very basis of an action under section 28(1) of the tenancy act and an invalidity of such a notice would go to the root of the whole matter and can be considered properly even in a writ petition.19. therefore even the question of termination of tenancy was not properly considered by the tahsildar/deputy collector. the tribunal rightly addressed itself to this point. as observed by this court in the case of samba alone (supra) the question of termination of tenancy goes to the root of the matter, it can be considered even in writ petition. thereafter the learned member of the tribunal was justified in considering this aspect. if the landholder decides to terminate the tenancy, it has to be terminated by adopting the procedure as required under section 19 sub-section (2) read with section 28 and if the tenancy is terminated by following the procedure as required then only the landholder can seek possession from the tenant by making application under section 28(1). shri vaishnav brought to my notice the judgment of the learned single judge of this court in special civil application no. 658/1965 decided on 15th november, 1966 by chandrachud, j., (as then his lordship was, since reported in 1969 (17) t.l.r. 41 in the case of raghu bhivsan v. dattatraya. this court was considering somewhat similar situation in the case of raghu (supra). the petitioner before this court was a tenant who admittedly was in arrears of rent for the years 1958-1959, 1959-1960 and 1960-1961, the landlord terminated the tenancy of the tenant on the ground of default by notice dated 3rd october, 1961. after issuance of notice, the landlord initiated the proceedings on 23rd april, 1962 under section 32(2) of the hyderabad tenancy and agricultural lands act. the naib tahsildar allowed the application and directed the tenant to hand over possession to the landlord. on appeal, the deputy collector set aside the decision of tahsildar holding that the tenant was not a wilful defaulter. on revision, the revenue tribunal set aside the judgment of the deputy collector and confirmed the order of naib tahsildar. the petitioner approached this court. the only question which was considered by this court is as to whether in the absence of intimation contemplated by proviso to section 28(1) of the tenancy act, whether the landlord can obtain possession from the tenant. the learned single judge while accepting the petition has made the following observations :'i cannot accept this contention for simple reason that what entitled a landlord to an order of possession is not a mere fact that the tenant has committed three defaults : the landlord has also got to prove that the intimations contemplated by proviso to section 28 of the hyderabad tenancy act have been given to the tenant. as such, the intimations were not given. the circumstance that the petitioner was held to be a defaulter in earlier proceeding cannot assist the landlord.'20. in the present case also, there is nothing on record produced by the petitioner to show that he has intimated the respondents about each default committed by them in payment of rent. therefore, in my judgment, as the petitioner has failed to establish this important aspect of the matter, the petitioner's application for possession has to be rejected. it is true that this contention was not specifically dealt with by the authorities below but considering the ratio laid down by this court in the case of samba maruti (supra) this court can consider that aspect. having noticed the averments made by the petitioner in para no. 6 of his application (supra) there is nothing to suggest that the petitioner has given intimation to the respondents about the default, as required by section 19(2) read with section 28(1) proviso. this aspect can be considered by applying the judgment of the apex court in the case of johra bai v. arjuna, reported in 1980 m.l.j. 58. in the case of johra bai, the apex court was considering the effect of failure to intimation of default by the landlord of three years to the tenant. though that case arose before the amendment of section 21(1) by amending act 21/1960, still the apex court held that intimation of default is to be given. the apex court has ruled that the landlord has to give three month's notice intimating default and failing which the landlord will not succeed. the apex court made the following observations :'3. the only point urged on behalf of the appellant is that the amended section 28 requiring the landholder to give notice to the tenant within a period of six months of each default was not applicable to the case because the tenant having defaulted in payment of rent for three years before the amended proviso to section 28(1) came into force on 29th december, 1960, the landlord had acquired a right to institute a preceding for the eviction of the tenants that could not he taken away by the amendment which was not given a retrospective operation either by the express words or by necessary implication. we are unable to agree. it has been held ever since abbot v. minister of land, that a mere right to take advantage of the provisions of the act is not an accrued right. abbot's case (supra) was followed by this court in a number of cases : sakharam v. mankichand, : [1962]2scr59 , hunderford investment trust ltd. v. haridas mundra, and lalji raja and sons v. firm hansra nutharam, : [1971]3scr815 . in the present case the application for possession was made long after the amendment came into force: even the right to institute a proceeding does not appear to have accrued before the amendment because the notice terminating the tenancy was also issued after the proviso was amended. there is no substance in the appeals which are dismissed with costs.'in the case before the apex court, the landlady has not given intimation (notice) of default committed by the tenant. thus the apex court held that the landlady cannot get possession on the ground of non-payment of rent. applying the law to the facts of this case, in my judgment, the landlord cannot succeed in getting possession of the land.21. in my judgment, therefore, the petitioner who failed to give intimation to the respondents, is not at all entitled for any relief, though the tahsildar and deputy collector proceeded to consider the case of the petitioner as if the petitioner was challenging the declaration under section 38-e of the act. but the tribunal did consider the aspect of giving intimation and termination of tenancy. in my judgment, the tribunal was justified in dismissing the revision. it is to be noted that in the application filed by the petitioner, he has not stated about default of any particular year. it was necessary for the landlord to state as to of which years the tenant/respondents have committed default. having considered the application filed by the petitioner before tahsildar which runs into 7 paragraphs, but there is no reference to the years the tenant committed defaults. in my judgment, it is necessary to establish that the tenant has committed default of three years and has to give intimation within six months of each default : then only the application filed under section 28(2) is required to be considered and the claim of the landlord for possession of the land in absence of all these aspect being pleaded and proved, the petitioner is not entitled for any relief. as the petitioner's application for possession filed before the tahsildar lacks all details, in my judgment, even if accepting the grievance of shri godhamgaonkar that tahsildar and the deputy collector proceeded on wrong assumption, no relief can be granted to the petitioner as the petitioner has failed to establish that he has complied with statutory requirement as contemplated under section 19 sub-section (2), section 28(1) proviso. there is no substance in the petition. accordingly, the judgments and order passed by all the three revenue authorities are required to be confirmed and the same are confirmed, for the reasons stated hereinabove.22. petition is dismissed. rule discharged. no orders as to costs.