Navinchandra Ramanlal Vs. Kalidas
Bhudarbhai & ANR [1979] INSC 48 (21 February 1979)
DESAI, D.A.
DESAI, D.A.
SHINGAL, P.N.
CITATION: 1979 AIR 1055 1979 SCR (3) 329 1979
SCC (4) 75
CITATOR INFO :
RF 1991 SC1538 (9)
ACT:
Bombay Tenancy & Agricultural Lands Act,
1956-Ss. 43C and 88(1)(b)-Scope of.
HEADNOTE:
Sections 43C and 88 of the Bombay Tenancy and
Agricultural Lands Act, 1948 exempted certain lands from the operation of the
Act. Section 43C provided that nothing in s. 32 to s. 32R (both inclusive) and
s. 43 shall apply to lands in the "area within the limits" of a
Municipal Corporation constituted under the Bombay Provincial Municipal
Corporations Act, 1948. The Gujarat Amendment Act, 1965 substituted the words
"areas which on the date of coming into force of the Amending Act, 1956
and within the limits of" for the words "areas within the limits
of" occurring in the original section. Similarly s. 88(1) (b) conferred
power on the State Government to exempt land from the operation of the
provision of the Act which the State Government may, from time to 1 time, by
notification in the official Gazette, specify as being reserved for non-
agricultural or industrial development. The Amendment Act, 36 of 1965 engrafted
a proviso to cl. (b) of s. 88(1), providing that if after a notification in
respect of any area specified in the notification is issued under the said
clause, whether before or after the commencement of the Bombay Tenancy and
Agricultural Lands Act, 1965 the limits of the area so specified are enlarged
on account of the addition of any other area thereto, then, merely by reason of
such addition the reservation as made by the notification so issued shall not
apply and shall be deemed never to have applied to the area so added.
The appellant was the owner of survey No. 165
situated within the revenue limits of village Acher near Ahmedabad.
For sometime prior to 1946 the respondent had
been a tenant of this land. By virtue of the provisions of the Bombay Tenancy
Act, 1939 the respondent became a protected tenant and continued to be so under
the Tenancy Act, 1948. The Amendment Act of 1956 provided for the transfer of
ownership of the land from the landlord to the tenant by operation of law. The
day was styled as tillers' day. Under this section every tenant was deemed to
have purchased from his landlord free from all encumbrances subsisting thereon
on the tillers' day the land held by him as tenant. By virtue of this provision
the tenant claimed himself to be the owner of the land On August 9, 1956 the
Government issued a notification specifying the area within the limits of the
Municipal Corporation of Ahmedabad as being reserved for urban non-
agricultural and industrial development. This notification was superseded by
another notification dated the 14th February, 1957 by which the Government
specified, amongst others, the areas within the limits of the Municipal
Corporation of the city of Ahmedabad as being reserved for the above mentioned
purpose. Subsequently the Government extended the limits of the Ahmedabad
Municipal Corporation by reason of which survey 330 No. 165 which was formerly
outside the Municipal limits, was included within the area of the Municipal
Corporation of Ahmedabad as from May 30, 1959.
In an inquiry by the Agricultural Lands
Tribunal for determining the purchase price of the land the appellant- landlord
contended before the Tribunal that in view of s.88(1)(b) read with the
notification of February 14, 1957 the land (survey No. 165) was exempt from the
operation of the 1948 Act and that the inquiry should be dropped. This
contention was negatived and the appeal by the landlord failed. In revision
preferred by the landlord, the Revenue Tribunal was of the opinion that not
merely the lands which were in the Ahmedabad Municipal Corporation area at the
date of the notification would be exempted from the operation of the Tenancy
Act but the exemption would also extend to the lands brought within the
Corporation area from time to time without any fresh notification for
reservation.
In the respondents-tenants' writ petition the
High Court held that the exemption would apply only to the lands included
within the limits of the Municipal Corporation as on the date of the
notification and in the absence of fresh reservation by a fresh notification
the land included in the Municipal area on extension of the limits of the
Municipal Corporation subsequent to the notification would not enjoy the
exemption from the operation of the Tenancy Act.
Dismissing the appeal, ^
HELD: 1 (a) From the language of the
amendments made in s. 43C and s.88(1)(b) it is clear that both the amendments
are retroactive from August 1, 1956 i.e. from the date the Bombay Tenancy and
Agricultural Lands (Amendment) Act 1956 came into force. In other words the
amended s.43C and s.
88(1)(b) with its proviso will have to be
read as if they have been introduced in their amended form from August 1, 1956.
[336 A-B] (b) The land of survey No. 165 would be governed by the Tenancy Act,
1948. The land which was originally within the revenue limits of the village
was included in the area of the Ahmedabad Municipal Corporation from May 30,
1959. When the amended s. 43C and s. 88(1) (b) with its proviso came into force
on August 1, 1956, the land not being in the Municipal Corporation area, would
not enjoy the exemption as conferred on the land within the Municipal
Corporation area by the notification issued on August 9, 1956 superseded by the
subsequent notification of February 14, 1957. [336D-E] 2(a) The respondent was
a tenant on the tillers' day and has by operation of law become the owner and a
deemed purchaser. [338 F] (b) The land (Survey No. 165) was not within the
Municipal Corporation area either on February 14, 1957, the date on which the
exemption was granted or on August 1, 1956 when Bombay Act XIII of 1956 was put
into operation or on April 1, 1957 the tillers' day when title to land would
stand transferred to the tenant by sheer operation of law without anything
more. Therefore the Notification dated February 14, 1957 would not cover the
land which was at the date of the issue of the Notification not included in
Ahmedabad Municipal Corporation area. Subsequent extension of the area of
Municipal Corporation would not ipso facto qualify the lands falling within the
extended area for exemption in view of the proviso to s.88(1)(b) and the
opening word of s. 43C, both of which clearly recite that the exemp- 331 tion
would apply to the land included in the Municipal Corporation area on August 1,
1956, the date on which the Bombay Act 13, 1956 came into force and not to any
subsequently added area to the area of Municipal Corporation. Since the land
was brought within the Municipal Corporation area after August 1, 1956 the
Notification dated February 14, 1957 would not cover such added or extended
area and there would be no exemption under that Notification for the land in
the extended area. [338B-E] (c) The ratio in the decisions in Mohanlal Chunilal
Kothari v. Tribhovan Haribhai Tamboli [1963] 2 S.C.R. 707 and Sidram Narasappa Kamble
v. Sholapur Borough Municipality [1966] 1 S.C.R. 618 would not apply because
those cases turned upon the construction of s.88(1)(b) as it stood at the
relevant time. Presumably in order to combat the effect of some judgments which
purported to lay down that the exemption once granted would apply to any area
that may be included in the Corporation area at a date much later to the date
of the issue of the Notification, the amendment of s. 88(1)(b) was made. The
law having undergone substantive amendment bearing on the subject, the earlier
decision would be of no assistance. [339 A-D] Mohanlal Chunilal Kothari v.
Tribhovan Haribhai Tamboli [1963] 2 S.C.R. 707 and Sidram Narasappa Kamble v.
Sholapur Borough Municipality [1966] 1 S.C.R. 618 held inapplicable.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 2200 of 1969.
Appeal by Special Leave from the Judgment and
Decree dated 26/28th March, 1969 of the Gujarat High Court in S.C.A. No. 543 of
1964.
J. N. Shroff, R. P. Kapur and H. S. Parihar
for the Appellant.
J. C. Shah and Vineet Kumar for the
Respondents.
The Judgment of the Court was delivered by
DESAI, J.-This appeal by special leave arises from a judgment rendered by the
Gujarat High Court in Special Civil Application No. 542 of 1964 filed by the present
respondent No. 1 against the present appellant contending that the land
involved in the dispute is not exempt from the operation of the Bombay Tenancy
and Agricultural Lands Act, 1948 (`Tenancy Act' for short).
A brief recital of the facts will put the
point of law raised herein in proper perspective. Appellant is the owner of
Survey No. 165 measuring 2 acres 21 gunthas situated in Village Acher, City
Taluka, District Ahmedabad. Respondent is and has been the tenant of this land
since before 1946.
He became a protected tenant under the Bombay
Tenancy Act 1939 and his name appeared in the Register to protected tenants
maintained under that Act. On the introduction. Of the Tenancy Act of 1948 the
respondent continued to be the protected tenant under it. A very comprehensive
amendment was made the Tenancy Act of 1948 by the Bombay Tenancy and
Agricultural Lands (Amendment) Act, 1956 (Bombay Act XIII of 1956) (`1956 332
Act' for short). Section 32 as amended by 1956 Act provided for transfer of
ownership of the land from a landlord to the tenant of the land by operation of
law. The day was styled as `tiller's day' and section 32 provided that subject
to the other provisions of the section and provisions of the next succeeding
section every tenant shall be deemed to have purchased from this landlord free
from all encumbrances subsisting thereon on the said day, the land held by him
as tenant. The land involved in this appeal was one to which the Tenancy Act of
1948 as amended by the Amending Act of 1956 applied and by the operation of law
the tenant-the respondent claimed to be the owner of the land.
Section 88 of the Tenancy Act of 1948 as it
stood at the relevant time provided for exemption of certain lands from its
provisions, one such exemption being in respect of any area which the State
Government may, by notification in the official Gazette, specify as being
reserved for urban non-agricultural or industrial development. Armed with this
power the Government issued Notification No.
TNC/5156/101955-F dated 9th August, 1956
whereby amongst others the Government specified the area within the limits of
the Municipal Corporations of the cities of Poona and Ahmedabad as being
reserved for urban non-agricultural and industrial development. This
Notification was superseded by another Notification No. TNC/5156/169426-M dated
14th February 1957 whereby the Government specified amongst others the areas
within the limits of the Municipal Corporations of the cities of Poona and
Ahmedabad as being reserved for the above-mentioned purpose. Neither of the
Notifications at the date of issue had any relevance to the land involved in
this appeal because it was not situated within the area of the Municipal
Corporation of Ahmedabad.
Subsequently the Government extended the limits
of Ahmedabad Municipal Corporation whereby Acher Village in which Survey No.
165 is situated was included in the area of Municipal Corporation of Ahmedabad
on and from 30th May, 1959.
In January 1960 Agricultural Lands Tribunal
having jurisdiction over the area wherein the Survey No. 165 is situated,
commenced an enquiry under s. 32G of the Tenancy Act of 1948 for determining
the purchase price of the land on the footing that under s. 32
respondent/tenant has become the deemed purchaser of it. In the course of this
enquiry the appellant landlord gave an application that the land in respect of
which the enquiry is being held is now included within the limits of Municipal
Corporation at Ahmedabad and hence in view of s. 88(1) (b) read with the Notification
dated 14th February, 333 1957, it was exempted from the operation of ss. 1 to
87 of the Tenancy Act of 1948 and, therefore, the enquiry should be dropped.
The Agricultural Lands Tribunal rejected the application of the
appellant-land-landlord and proceeded further with the enquiry. The
appellant-landlord appealed to the Collector which mer with the same fate.
Appellant - carried the matter to the Gujarat Revenue Tribunal. The Revenue
Tribunal was of the opinion that on a true and correct interpretation of s.
88(1)(b) read with the relevant notification, not merely the lands which were
in Ahmedabad Municipal Corporation area at the date of the Notification would
be exempted from the operation of the Tenancy Act but the exemption would also
extend to the lands brought within the Corporation area from time to time
without any fresh C N Notification for reservation and accordingly allowed the
Revision Application of the appellant-landlord and directed that the enquiry
under s. 32G be dropped. The respondent no.
1-tenant approached the High Court of Gujarat
under Article 227 of the Constitution. The High Court held that the exemption
would apply only to the lands included within the limits of the Municipal
Corporation of Ahmedabad as on the date of Notification and in the absence of
the fresh reservation by a fresh notification the lands included in the
Municipal area on extension of the limits of the Municipal Corporation
Subsequent to the Notification would not be exempted from the operation of the
Tenancy Act. In reaching this conclusion one aspect that impressed the High
Court was that while power to exempt the land from the operation of the Tenancy
Act vests in the Government, the area of the Municipal Corporation may be
extended by the Corporation authority and if to such extended area the
exemption were to apply, the power of granting exemption would be enjoyed by
Municipal Corporation which was not the legislative delegate and on which the
power to exempt was not concerned and simultaneously, the legislative delegate,
namely, State Government would completely abdicate its function. This aspect is
specifically referred to as it proceeds on an erroneous assumption that
Municipal Corporation can extend its own area. A reference to section 3 of the
Bombay Provincial Municipal Corporation Act would show that unless the State
Government in exercise of the power conferred upon it, extends the limits, the
Municipal Corporation on its own cannot extend the limit. The assumption being
incorrect, it cannot be called in aid of the conclusion reached by the High
Court. Mr. J. C. Shah for the respondent, however, frankly stated that he could
not support the aforementioned reason of the High Court and, therefore, the
Court should ignore it. We would say no more about it. In accordance with its
opinion that 334 the land falling in the subsequently extended limit would not
enjoy the benefit of exemption, the High Court quashed the order of the Gujarat
Revenue Tribunal and directed the authority under the Tenancy Act to proceed
further with the enquiry under s. 32G.
Mr. I. N. Shroff, learned counsel who
appeared for the appellant urged that the High Court was in error in putting a
narrow construction on s. 88(1) (b) because the power to exempt an area situate
within the Municipal Corporation limit was to be exercised for urban
non-agricultural or industrial development and that once such power is
exercised, it should cover the entire area situate within the limits of
Municipal Corporation at any given point of time, and this construction adopted
by Gujarat Revenue Tribunal deserves acceptance by this Court as it effectuates
the purpose for which power is conferred. It was further contended that once a
Notification exempting the land from the operation of the Tenancy Act is issued
under s. 88(1) (b), the exemption would become operative retrospectively and no
vested right could thereafter be claimed.
The contention raised by Mr. Shroff would
have necessitated examination of the scheme of the various provisions of the
Tenancy Act as has been done by the High Court but in our opinion the High
Court unnecessarily undertook this exercise wholly overlooking and by passing
two important amendments introduced in the relevant provisions of the Tenancy
Act of 1948, viz., 43C and 88(1) both of which were in force at the time when
the petition was heard and upon proper construction both amendments being
retroactive in their operation from the commencement of the Amendment Act of
1956 which came into force on 1st August, 1956 would have clinched the issue.
Therefore, it is not necessary to examine the contention from the angle from
which the High Court has done but the contention of Mr. Shroff can be disposed
of by a mere reference to the two relevant provisions.
The two sections relevant for considering the
exemption from the operation of the Tenancy Act of 1948 are 43C and
88. Section 43C as it stood before its
amendment by Gujarat Act 36 of 1965 read as under:
"43C. Nothing in ss. 32 to 32R, both
inclusive, and 43 shall apply to lands in the areas within the limits of- (a)
xxx xxx xxx xxx (b) Municipal Corporation constituted under Bombay Provincial
Municipal Corporations Act, 1948".
Section 88(1)(b) as it stood prior to the
introduction of a proviso by Gujarat Act 36 of 1965 reads as under:
335 "88.(1) Save as otherwise expressly
provided in sub-s. (2) nothing in the foregoing provisions of this Act shall
apply- (a). x x x x (b) to any area which the State Government may from time to
time by Notification in the official gazette specify as being reserved for
non-agricultural or industrial development".
The Tenancy Act of 1948 was amended by the
Bombay Tenancy and Agricultural Lands (Gujarat Amendment) Act, 1965, (Gujarat
Act 36 of 1965). Section 7 of the Amendment Act of 1965 reads as under:-
"7. Amendment of section 43C of Bom. LXVII of 1948-In section 43C of the
principal Act, for the word `areas within the limits of', the words `areas
which on the date of the coming into force of the Amending Act, 1955 are within
the limits of' shall be substituted and shall be deemed to have been
substituted with effect on and from 1st August, 1956".
Section 18 of the Amending Act reads as
under:
"18. Amendment of section 88 of Bom.
LXVII of 1948-In section 88 of the principal Act,- (1) in sub-section (1), (i)
x x x x x x x x x (ii) to clause (b) the following provision shall be added,
namely:- Provided that if after a notification in respect of any area specified
in the notification is issued under this clause, whether before or after the
commencement of the Bombay Tenancy and Agricultural Lands (Gujarat Amendment)
Act, 1965 (Guj. 36 of 1965), the limits of the area so specified are enlarged
on account of the addition of any other area thereto, then merely by reason of
such addition, the reservation as made by the notification so issued shall not
apply and shall be deemed never to have applied to the area so added,
notwithstanding anything to the contrary contained in any judgment, decree, or
order of any court, tribunal or any other authority".
336 Both these amendments to the Principal
Act were introduced by Gujarat Act 36 of 1965 which came into force from 29th
December, 1965. However, looking to the language of the amendments made in s.
43C and s. 88(1)(b), both the amendments are retroactive from 1st August 1956,
i.e. from the date Bombay Act 13 of 1956 came into force. In other words,
amended s.43C and s.88(1)(b) with its proviso will have to be read as if they
were introduced in that very form from 1st August, 1956.
Having noticed the amendments let us look to
its impact on the question of application of the Tenancy Act of 1948 to the
lands included in the Municipal Corporation area of Ahmedabad after 1st August,
1956.
Indisputably, Survey No. 165, the land
involved in this appeal, being situated within the revenue limits of Acher
Village, was included in the area of Ahmedabad Municipal Corporation from 30th
May, 1959. Therefore, on 1st August 1956 when the amended sections 43C and
88(1)(b) with its proviso as amended by Act 36 of 1965 came into force, the
land being not in Municipal Corporation area, would not enjoy the exemption as
conferred on the land within the Municipal Corporation area by the Notification
issued on 9th August, 1956, superseded by the subsequent Notification dated
14th February, 1957 in exercise of the power conferred by s. 88(1) (b).
Accordingly, this land Survey No. 165 would be governed by the Tenancy Act of
1948. The consequences of the application of the Tenancy Act of 1948 to land
Survey No. 165 may now be examined.
By Bombay Act 13 of 1956 a revolutionary
amendment of far reaching consequence was made in the Tenancy Act of 1948 and
the amended Act came into force with effect from 1st August, 1956.
The most important provision of the Amending
Act was s. 32 as amended by the Amending Act which provided for transfer of the
ownership of land by operation of law from the landlord to the tenant. The
title to the land which vested in the landlord on 1st April, 1957, the tiller's
day, passed to the tenant by operation of law. What is the effect of this
transfer of title was examined by this Court in Sri Ram Ram Narain Medhi v.
State of Bombay.(1) The Court held as under.
"The title of the landlord to the land
passes immediately to the tenant on the tiller's day and there is a completed
purchase or sale thereof as between the landlord and the tenant. The tenant is
no doubt given a locus penitentiae and an option of declaring whether he is or
is not willing to 337 purchase the land held by him as a tenant. If he fails to
appear or makes a statement that he is not willing to purchase the land, the
Tribunal shall by an order in writing declare that such tenant is not willing
to purchase the land and that the purchase is ineffective.
It is only by such a declaration by the
Tribunal that the purchase becomes ineffective. If no such declaration is made
by the Tribunal the purchase would stand as statutorily effected on the
tiller's day and will continue to be operative, the only obligation on the
tenant then being the payment of price in the mode determined by the Tribunal.
If the tenant commits default in the payment of such price either in lump or by
instalments as determined by the Tribunal, s. 32M declares the purchase to be
ineffective but in that event the land shall then be at the disposal of the
Collector to be disposed of by him in the manner provided therein. Here also
the purchase continues to be effective as from the tiller's day until such
default is committed and there is no question of a conditional purchase or sale
taking place between the landlord and tenant. The title to the land which was
vested originally in the landlord passes to the tenant on the tiller's day or
the alternative period prescribed in that behalf. This title is defeasible only
in the event of the tenant failing to appear or making a statement that he is
not willing to purchase the land or committing default in payment of the price
thereof as determined by the Tribunal. The tenant gets a vested interest in the
land defeasible only in either of those cases and it cannot therefore be said
that the title of land lord to the land is suspended for any period definite or
indefinite".
If the effect of the land being governed by
s. 32 on tiller's day is to transfer the title of the landlord to the tenant by
operation of law, defeasible only in the event of tenant declining to purchase
the land or committing default in payment of price as determined by the
Tribunal, the next question is: if the land is subsequently brought within the
Municipal Corporation area which area enjoys the exemption under s. 88(1)(b),
would the vested title be vested:
This question can be answered shortly by
referring to the amended s. 43C and s. 88(1) (b) with its proviso. both of
which clearly assert that the exemption granted under s.
88(1)(b) by a Notification 338 issued by the
Government would enure for the benefit of the land which was within the
Municipal Corporation area on 1st August, 1956 and in no case the additional
area which may be included within the Municipal Corporation area after 1st
August, 1956 would enjoy the exemption granted by the Notification unless a
fresh Notification is issued.
Admittedly, since 14th February, 1957 no
fresh Notification is issued. The land bearing Survey No. 165 was not within
the Municipal Corporation area either on 14th February, 1957, the day on which
exemption was granted, or on 1st August, 1956 when Bombay Act VIII of 1956 was
put into operation or on 1st April, 1957, the tiller's day, when title to land
would stand transferred to the tenant by sheer operation of law without
anything more. Therefore, the Notification dated 14th February, 1957 would not
cover the land which was at the date of the issue of the Notification not
included in Ahmadabad Municipal Corporation area.
Subsequent extension of the area of Municipal
Corporation would not enjoy the benefit of exemption in view of the proviso to
s. 88(1) (b) and the opening words of s. 43C both of which clearly recite that
the exemption would apply to the land included in the Municipal Corporation
area on 1st August, 1956, the day on which Bombay Act 13 of 1956 came into
force, and not to any subsequently added area to the area of Municipal
Corporation. Land bearing Survey No. 165 was brought within the Municipal
Corporation area after 1st August, 1956 and, therefore, the Notification dated
14th February, 1957 would not cover such added or extended area and there would
be no exemption under that Notification for the land in the extended area.
If the land bearing Survey No. 165 does not
enjoy the benefit of exemption under s. 88(1) (b) and it being agricultural
land in respect of which the respondent was tenant on the tiller's day, the
respondent has, by operation of law, become the owner and is a deemed
purchaser. The Agricultural Lands Tribunal would have to proceed with the
enquiry to determine the price as required by s. 32G.
Mr. Shroff, however, contended that the
decisions of this Court in Mohanlal Chunilal Kothari v. Tribhovan Haribhai
Tamboli,(1) and Stdram Narsappa Kamble v. Sholapur Borough Municipality,(2)
would clearly indicate that whenever a Notification under s. 88(1) (b) is
issued by the appropriate Government granting exemption to any area from the
operation of the Tenancy Act for the purposes mentioned in the sub-section, such
exemption will apply retrospectively.
339 and no vested right under the Tenancy Act
1948 or even one under the Bombay Tenancy Act, 1939, could be claimed by any
one. It is not necessary to examine this contention because subsequent to the
later decision in Sidram Narsappa Kamble (supra) the Tenancy Act of 1948 was
amended by Gujarat Act 36 of 1965 making it abundantly clear that if there is
any Notification exempting any area from the operation of the Tenancy Act
issued by the appropriate Government under s.
88(1) (b), the exemption would enure for the
benefit of that area included in the Municipal Corporation as on 1st August,
1956 and in the absence of a fresh Notification such exemption would not be
available to the extended or area added to the area of Municipal Corporation
and this amendment is made effective notwithstanding any judgment, order or
decision of the Court or Tribunal to the contrary.
Presumably, in order to combat the effect of
some judgments which purported to lay down that the exemption once granted
would apply to any area that may be included in the Corporation area at a date
much later to the date of issue of the Notification, the amendment was made.
Accordingly, law having undergone a substantive amendment bearing on the
subject, the ratio in the decision of Mohonlal Chunilal Kothari and Sidram
Narsappa Kamble (supra) which turned upon the construction of s. 88(1) (b) as
it stood at the relevant time, would not be of any assistance.
Therefore, for the reasons herein stated,
this appeal fails and is dismissed with costs.
N.K.A. Appeal dismissed.
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