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TMI Blog1964 (12) TMI 47X X X X Extracts X X X X X X X X Extracts X X X X ..... terminate a tenancy on the ground inter alia of the tenant s failure to pay rent by giving the tenant a notice informing him of his intention to terminate the tenancy. Section 31 provides that notwithstanding anything contained in s. 14, a landlord may after giving notice to the tenant terminate the tenancy if he bona fide requires the land for cultivating it personally. Section 29 of the Act states that a landlord shall not obtain possession of land from a tenant except under an order made by the Mamlatdar on the application mentioned in it. On May 1, 1956, the landlord had given a notice to the tenants under s. 14. On December 25, 1956, the landlord had given a fresh notice to the tenants under s. 31. On March 28, 1957 the landlord filed applications against the tenants before the Mamlatdar for ejectment under s. 29 on the strength of the notice under s. 31 and thereafter on July 10, 1957, he filed another set of applications for their ejectment on the strength of the notice under s. 14. By various orders made between December 20 and 25, 1957, the Mamlatdar allowed the landlord s applications for ejectment on the basis of the notice under s. 14. Thereafter on March 1, 1958, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal also was wrong in holding that the Collector had the power. On the merits, the landlord had contended in the High Court that s. 32 as amended by Act XXXVIII of 1957, which came into force on September 28, 1957, was not applicable to the ejectment proceedings. The High Court held that the Collector had the power to make the order of February 17, 1959 but it took the view that the amended s. 32 did not govern the ejectment proceedings on the ground that that section could not affect applications which were pending on the date the amending Act came into force. It was for this reason that the High Court set aside the orders of the Tribunal and the Collector. It has been contended in these appeals, by the respondent landlord, that the High Court s view of s. 76A was wrong, and by the appellant tenants that its view as to the applicability of S. 32 was erroneous. These are the two questions that arise in these appeals. I will first take up the question of the interpretation of s. 76A. That section so far as material is in these terms : S. 76A. Where no appeal has been filed within the period provided for it, the Collector may, suo motu or on a reference made in this behalf by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st the Collector s power under the section. I am unable to say that this view is entirely devoid of force. The section does not create any right in any party to move the Collector under it. Under it the Collector is either to act suo motu or at the instance of the Divisional Officer or the State Government. The act contemplated by the section is to send for the record and make an order as to the rights of the parties after perusing it. Therefore, sending for the record would appear to be a preliminary step to the judicial act concerning the rights of the parties which is to follow upon the perusal of the record when it arrives. The Collector sends for the record to get the materials on which alone he is under the section to base his judicial act. His only real power under the section is to do the judicial act. He cannot be said to have exhausted that power before he has looked into the record. The proviso to the section would lend support to this view, for it says that the judicial power can be exercised at any point of time if he has sent for the record within the period mentioned. There is however another aspect of the case. Let me assume that if the Collector had refused to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain amended by Act XXXVIII of 1957 which came into force on September 28, 1957 and it is with this amendment that we are really concerned. Section 12 of this amending Act inserted cl.(iii) in sub-s.(1) of s. 32 and s. 34 of the amending Act gave effect to the amendment made by s. 12 from August 1, 1956 retrospectively. It is of some interest to point out that August 1, 1956 is the date on which the amendment of s. 32 by Act XIII of 1956 was brought into force. It will be noticed that amending Act XXXVIII of 1957 was in force at the date of the Mamlatdar s orders of ejectment.Now s. 32 as it stood after the, amendment by Act XXXVIII of 1957 is in these terms : On the first day of April 1957 .... every tenant shall..be deemed to have purchased from his landlord... theland held by him as tenant, if(a) such tenant is a permanent tenant thereof and cultivates land personally; (b) such tenant is not a permanent tenant but cultivates, the land leased personally; and (i) the landlord has not given notice of termination of his tenancy under section 31; or (ii) notice has been given under section 31, but the landlord has not applied to the Mamlatdar on or before the 31st d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, could not affect the right of the tenant under the amended section to claim to be a purchaser; such application would, therefore, on the passing of the amending Act become in fructuous for the tenant having been made the owner of the land was no longer a tenant who could be evicted. The amended section, therefore,, necessarily affected pending proceedings. The Act could not be read in the way the High Court did without refusing to give full effect to the language used. An interpretation doing so would be unsupportable. Hence I am unable to agree with the view taken by the High Court. I pass on to consider whether the amended s. 32 made the Mamlatdar s order of ejectment illegal. In order that a tenant may claim to have become a purchaser under the section, he has to satisfy the conditions mentioned in it. Those conditions are set out in two sets. The first set of conditions is in cls. (a) and (b). These two conditions are obviously in the alternative though between them the word or does not occur, for it is not possible for a tenant to fulfil both the conditions; he cannot be both a permanent tenant and not a permanent tenant at the same -time. It is not in dispute that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case supposed has become a purchaser on the enactment of the amending Act. But the proviso obviously contemplates that the application contemplated in it might succeed for it says if an application .... has been rejected . By contemplating that the application may succeed, the proviso is laying down that the tenant against whom it is made may be evicted. This could not be done if the tenant had already become the purchaser as he would be if Mr. Shroff is right. Neither could it for the same reason be, as the proviso also contemplates, that if the application fails the tenant would become the purchaser on the date when the application is rejected. The plain effect of the section obviously is that a tenant fulfilling its conditions is to be deemed to have become a purchaser on the passing of the amending Act, with effect from an earlier date and where an application for his ejectment on the basis of a notice either under S. 14 or S. 31 had been made on or before March 31, 1957 and was pending when the amending Act came into force, the tenant was to become a purchaser only if that application was rejected and then on the date of the rejection. It follows that where there is such a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Act XXXVIII of 1957 came into force, as happened in this case, the tenant had not become a purchaser on the date of the enactment if the amending Act. This however does not lead to the conclusion that in such a case an application for ejectment on the basis of a notice under s. 14 filed after March 31, 1957 remained maintainable after the amending Act and an order for ejectment could properly be made on it. In my view, such an application became incompetent on the passing of that Act. The reason is that if it remained maintainable, then the situation would be anomalous. Assume that the application filed prior to March 31, 1957 was rejected after the amending Act came into force, as happened in this case, for the withdrawal of the application in law amounts to its rejection, then by virtue of the proviso the tenant would become purchaser on the date of the rejection. If in such a case the application filed after March 31, 1957 had remained competent after the amending Act had come into force and had succeeded, the position would be curious. If the the application filed prior to March 31, 1957 had failed before the application filed after that date came up for hearing, then th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st in law be deemed to have been rejected. It does not appear why the landlord withdrew these applications which he did on March 1, 1958. Neither does it appear that the tenants had in any way induced him to do so. The landlord might have made a mistake; he might have thought that the orders of ejectment by the Mamlatdar earlier made were legal and sufficiently protected his rights. For that mistake however he alone is responsible. That the applications had been withdrawn by the landlord and had not been rejected on merits does not improve the landlord s position under s. 32. I, therefore, think that the High Court was wrong in setting aside the order of the Tribunal. In my view. the order of the Tribunal upholding the Collector s order setting aside the orders of ejectment passed by the Mamlatdar was in all respects correct and should in my view be maintained. I would, therefore, allow the appeals and restore the orders of the Tribunal. Bachawat, J These appeals raise questions of construction of ss. 32(1) and 76-A of the Bombay Tenancy and Agricultural lands Act, 1948 (Bombay Act LXVII of 1948). The facts in all the appeals are similar, In this judgment, we will refer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by the Tribunal on February 23, 1961. An application under Art. 227 of the Constuitution preferred by respondent No. 1 on June 15, 1961 was allowed by the High Court on November 5, 1963. The appellant now appeals to this Court by special leave. The contention of the appellant is that in view of s. 32(1), -is amended retrospectively by Bombay Act XXXVIII of 1957. he must be deemed to have purchased the land on April 1, 1957, and consequently the application of respondent No. 1 filed under s. 29 read with s. 14 was not maintainable, and alternatively, the aforesaid application being filed after April 1, 1957 was not maintainable and should have been dismissed by the Mahalkari on that ground, and subsequently on March 1, 1958, the appellant must be deemed to have purchased the lands in view of the withdrawal and consequential rejection of the previous application filed under s. 29 read with s. 14 and in the circumstances, the Collector rightly set aside the order of the Mahalkari. Section 32(1), as amended by Bombay Act XXXVIII of 1957, reads thus : 32(1). On the first day of April 1957 (hereinafter referred to as the tillers day ) every tenant shall, subject to the other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leased personally, and therefore satisfies the first part of the condition specified in sub-s ( 1 ) (b). The appellant s contention is that sub-ss. ( 1 ) (b) (i), ( 1 ) (b) (ii) and ( 1 ) (b) (iii) lay down alternative conditions, and as he satisfies the condition mentioned is sub-s ( 1 ) (b) (iii), he must be deemed to have purchased the land on April 1, 1957. Colour is lent to this argument by the word or appearing be, tween sub-s (1) (b) (ii) and sub-s (1) (b) (iii). But, we think that the word or between sub-ss ( 1 ) (b) (ii) and ( 1 ) (b) (iii) in conjunction with the succeeding negatives is equivalent to and should be read as nor . In other words, a tenant (other than a permanent tenant) cultivating the lands personally would become the purchaser of the lands on April 1, 1957, if on that date neither an application under s. 29 read s. 31 nor an application under s. 29 read with s. 14 was pending. If an application either under s. 29 read with s. 31 or under s. 29 read with s. 14 was pending on April 1, 1957, the tenant would become the purchaser on the postponed date , that is to say, when the application would be finally rejected. But if the application be finally allo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplated that no such application should be made after April 1, 1957. (1) [1962] 64 B.L.R. 635. On this construction of s. 32(1) it would appear that the application under s. 29 read with s. 14 filed on July 10, 1957 was not maintainable since September 22. 1957. when the amending Bombay Act XXXVIII of 1957 came into force. It is true that on July 10, 1957 the other application under s. 29 read with s. 31 was pending, and consequently the appellant was still a tenant and had not become the purchaser. But s. 32 bars all applications filed after April 1, 1957, and it matters not that the application is made against a person who is still the tenant. But respondent No. 1 contends that the Bombay Act XXXVIII of 1957 could not retrospectively amend s. 32 so as to affect pending applications. Though this contention found favour with the High Court, we are unable to accept it. Section 34 of Bombay Act XXXVIII of 1957 provided that the aforesaid amendment of s. 32 shall be deemed to have been made and should have come into force on the date on which the Bombay Tenancy and Agricultural lands (Amendment) Act, 1955 came into force. Now, the Bombay Tenancy and Agricultural Lands (Amendment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny time,- (a) call for the record of any enquiry or the proceedings of any Mamlatdar or Tribunal for the purpose of any order passed by, and as to the regularity of the proceedings of such Mamlatdar or Tribunal, as the case may be, and (b) pass such order thereon as he deems fit Provided that no such record shall be called for after the expiry of one year from the date of such order and no order of such Mamlatdar or Tribunal shall be modified, annulled or reversed unless opportunity has been given to the interested parties to appear and be heard. The order of the Mahalkari under S. 29 was passed on December 25, 1957 and was appealable under S. 74. By S. 79, the appeal could be filed within 60 days from the date of the order. No appeal was filed within the period provided for by it. The Collector could at any time thereafter exercise his revisional powers under S. 76-A either suo motu, i.e., of his own motion or on a reference made by the Divisional Officer or the State Government. In the exercise of his revisional powers, the Collector could call for the record of the proceedings of the Mahalkari and pass such order as he deemed fit. There were two limitations on this po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any power of review, the Collector could not subsequently reconsider his previous decisions and hold that there were grounds for annulling or reversing the Mahalkari s order. The subsequent order dated February 17, 1959 reopening the matter was illegal, ultra vires and without jurisdiction. The High Court ought to have quashed the order of the Collector dated February 17, 1959 on this ground. The High Court was of the opinion that the Collector could exercise his revisional power under s. 76-A only after looking into the record of the impugned order of the Mahalkari. We have come to the opposite conclusion. In exercise of his revisional powers under S. 76-A, the Collector may or may not call for the record. Without calling for the record and without looking into them, the Collector may, on a perusal of the order, along with the representation to him by the aggrieved party or the reference by the Divisional Officer or the State Government, as the case may be, with such other documents as may be submitted to him, come to the conclusion that there is no ground for interference with the impugned order and that, therefore, the order should be confirmed. The contention of the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1, 1958, when the application filed on March 28, 1957 stood rejected. The High Court set aside the Collector s order on the ground that the amended s. 32 could not affect the application for eviction filed on July 10, 1957 and pending when the amending Bombay Act XXXVIII of 1957 came into force; and the application was rightly allowed by the Mahalkari. We have already pointed out that the High Court was in error in quashing the Collector s order on this ground. But the High Court should have set aside the Collector s order on the ground that having already decided that there was no ground for interference with the Mahalkari s order, the Collector could not subsequently revise that order. We, therefore, hold that the Collector s order was liable to be quashed, though on grounds different from those on which the High Court proceeded. On this ground, in all these appeals the order of the High Court setting aside the order of the Collector and restoring that of the Mahalkari should be affirmed. In the result, the appeals are dismissed with costs. There will be one hearing fee. ORDER In accordance with the Opinion of the majority, the appeals are dismissed with costs. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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