PETITIONER:
NAVINCHANDRA RAMANLAL
Vs.
RESPONDENT:
KALIDAS BHUDARBHAI AND ANR.
DATE OF JUDGMENT21/02/1979
BENCH:
DESAI, D.A.
BENCH:
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.
JUDGMENT:
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.
340