SHANKAR MADHOJI NEMADE versus CHISUJI JANAJI BHADKE & ORS.

SHANKAR MADHOJI NEMADE

CHISUJI JANAJI BHADKE & ORS. September 8, 1970 [J. M. SHELAT AND C. A. VA!DJAI.;JNGAM, JJ.J

Bombay Tenancy and Agricultural Lands ( Vldarhha Region and Kutch area) Act (99 of 1958), s. 52r-Scope of.

Section 9(6) of the Berar Regulation of Agrieultura1 Leases Act, 1951, read with rule 9 of the Rules made thereunder required land holder, who terrnhiated the tenancy of his protected lease on the ground that the land was required by him for his personal· cultivation, to cultivate the land per-sonally for period of 2 years. If the land holder failed to do so then the section conferred right on the former protected lessee to apply to the Revenue Officer for being restored to possession. On December 30, 1958, the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act of 1958 came into force. Under s. 132 of the Bombay Act, the Berar Act was repealed but certain rights acquired or accrued before the commencement of the Bombay Act were saved. Under s. 52 of the Bombay Act, if the landlord had cea..M to cultivate the land within period df 12 years from the date of taking possession, the tenant can apply for restoration, that is, the period of 2 years under the Berar Act was enlarged to 12 years.

Tue appellant was protected lessee within the meaning of the CXPJ'.OS-sion in the Berar Act, in respect of certain lands. The lanillord obtained possession of the lands on April 4, 1~57 on the ground that he required the lands for personal cultivation. He continued in possession of the lands till June 21, 1961, on which date he transferred the lands to the first res-pondent. The tenant thereupon filed an application under s. 52 of the Bombay, Act. The application was dismissed but the tenant's app<;al was 11Dowed. The appellate order was confirmed in revision by the Revenue Tribunal. The first respondent filed writ petition and the High Court set aside the order of the Revenue Tribunal. The certified copy of the r l'udplellt of the ands at very much High higher value than the value Court, by mistake, showed given the valuation by the appellant of the i.n the writ petition. The appellant obtained special leave from this Court mentioning the enhanced valuation in bis application for special leave.

On the questions : ( 1) Whether the special leave granted by this Court ~hould be cancelled on the ground \bat the appellant made fahe state-ment in regard to valuation; and (2) whether s. 52 of the llombay Act applll!e,

HELD : ( 1) Jn the particular circumst.ances of this c~se. though the appellant should have bee11 more careful, 1t cannot be said. that ~e was guilty of making any false or untrue statement on any matenal l,'artrculars deliberately to mislead the court. : Further, the statement regar~mg va!u•-tion was not of much consequence in this case because the questions rar9Cd are points of law regarding the applicability of s. 52 of the Bombay Act. [81 D·Fl

Harl Narain v. Badri Das, f19641 2 S~C.R. 203, Sita Bai v; Sonu Vanji Wani & Ors., C.A. No. 982/65 dt. 25-4'68 and S. R. Shelly v. Phirozes/rah Nusrerwanji 'Go/abawal/a & Anr., C:A. No. 155/63 dt. 5-4-63, referred to. 6--L23SSup.CICP)71

(2) Section 52 of the Bombay Act applies to the facts of this case. [91 BJ

If landlord, in pursuance of an order obtained under the Berar Act, takes possession after the commencement of the Bombay Act, s. 52 applies to him and his obligation to cultivate personally for two years under the Berar Act gets extended to 12 years period provide<l under that section. [90 A-Bl ·

If the landlord had taken possession o'f the land under the Berar Act before the commencement of the Bombay Act, there was an obligation on him to cultivate personally for two years and if he had not so cultivated, the tenant would have acquired right to be 'rll!ltored to possession. That right, so acquired by the tenant or accrued to him, before the commonce-ment of the Bombay Act, is ·saved under s. 132(2) (i) of the Bombay Act. · Similiarly, If the landlord had cultivated the land personally for the re-quired period before .the Bombay Act ·came into force the landlord would have acquired right not .to be disturbed from his possession thereafter. That right ngain, which had been· acquired by the landlord or accrued to him is saved under s. !32(2(i). [89 E-H]

Therefore, s. 52 applies to cases in which possession was obtained by the landlord under s. 9 of the Berar Act but in respect of which the period of two years disability imposed under s. 9(6) read with r. 9 df the rules was.not over before the coming lillfo force of the Bombay Act. [90 F-Hl

The decision of this Court in Ram Chandra v. Tukaram, [1966] I S.C.R. 594 does not lay down that s. 52 of the Bombay Act rioes not apply to cases \vhere possession has been taken after the Bombay Act had come into force in pursuance of an order 'for restoration ob.rained by the landlor~ under the Berar Act. '[85 A-BJ ·

In the· Full Bench decision of the Bombay High Court in .":uraswatihai Rabji Tukaranz Umarkar v. ~hikamchand Premsukhdas, (1966) Born. L.R. 954, the possession of the land was taken by the landlord from the tenant under the Berar Act and the two years period as required under s. 9(6) of that Act had also expired before the coming into force of the Bombay Act. The principle, that applicability df· s. 52 of the Bombay Act depends solely upon the date on which the landlord takes possession, that is, whether before or after the Bombay Act came into force, was to b,roadly stated in the decision. [86 H; 88 G-H]

C1v1L APPELLATE JURISDICTION: 1967.

Civil Appeal No. 85 of

Appeal by special leave from the judgment and decree dated August 19, 1966 of the Bombay High Court, Nagpur Ber.ch in Special Civil Application No. 831 of 1965.

W. S. Barlingay and A. G. Ratnaparkhi, for the appellant.

M. S. Gupta and S. K. Dhingra, for respondent No. 1.

The Judgment of the Court was delivered by

Vnidialingam, J. The appellant was ·a 'protected lessee· within the meaning of that expression contained in the · Berar Regulation of Agricultural Leases Act, 1951 (Act 24 of 1951)

(hereinafter cailed the Berar Act) in respect of the suit lands bearing survey No. 23 of an extent of 7 acres and 4 g~';has under the 5th respondent herein, who was then the ongmal owner of the lands. The 5th respondent served on the appellant (hereinafter called the tenant) notice dated December 28, 1955 under s. 9(1) of the Berar Act terminating the tenancy of the appellar.t on the ground that he required the lands for personal cultivation; and he also submitted an application to the Re~~ue Officer under s. 8(1)(g) of the Berar Act for an order detemurung the tenancy. The 5th -respondent obtained an order from the Revenue OIIicer on May 15, 1956 directing the tenant to surren-der possession of the lands. The 5th respondent in pursu84¥:0 of the order of the Revenue Officer obtained possession of the lands on April 4, 1957 and continued in such possession till June 21,. 1961, on which date he transferred the suit lands to the first. :respondent (h.:reinafter to be referred a~ the landlord) and got in exchange 8 acres in survey No. 33 plus an amount o{ Rs. 13,000/-. ln the meanwhile on December 30, 1958 the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch area) Act of 1958 (Act No. XCIX of 1958) (hereinafter called the Bombay Act) came into force.

The tenant filed an application under s. 52 of the Bombay Act before the Naib Tahsildar, Achalpur, against respondent Nos. 1 and 5 for restoration of the possession of the suit lands on the ground that the original owner, the 5th rest>Ondent, had leased to cultivate the lands personally within the period of 12 years after obtaining possession of the lands on April 4, 1957. The Naib Tahsildar by his order dated Novem-ber 14, 1962 dismissed the application on the ground that s. 52 docs not apply and hence the application was not maintainable. On appeal by the tenant, the Special Deputy Collector, Amravati by hi; order June 30, 1964 reversed the decision of the Naib Tahsildar and directed the landlord to restore possession of the lands as prayed for by the tenant. The first respondent's revi-sion challenging the order of the Special Deputy Collector was dismissed on August 5, 1965 by the Maharashtra RevenUe Tri bunal. Tile Revenue Tribunal while dismissing the revision petition, inter alia, held that the teinant was protected lessee and that in pursuance of the proceedings taken by the 5th respondent in terms of the notice under s. 9(1) of the Berar Act, -die tenant was deprived of the lands and his tenancy rights on the ground of personal cultivation by the then owner of the lands. The Tribunal further held that as the 5th respondent had transferred the suit lands in fa~11ur of the first respondent on June 21, 1961, ff the former must bo considered to have failed to use the lands for the purpose,; specified in his notice within 12 years from the date on which he took possession and in consequence the tenant

·was entitlc<l :o be restored to possession under · s. 52 of the Bombay Act. On this reasoning the Revenue Tribunal confirm-·ed the order of restcration passed by the Special Deputy Collector in favour of the tenant.

of the

The first respondent filed writ petition under Art. 227 of the Constitutio11, being Special Civil Application No. 831 ot 1965, in the High Court of Bombay (Nagpur Bench) challenging . the orders for restoration passed against him by the Special De-puty Collectur and the Maharashtra Revenue Tribunal. The High Court by its judgment and order dated August 19, 1966 has set aside the orders of the Special Deputy Collector and the Revenue Tribunal, tnus restoring the order of the Naib Tahsildar, and has d1sILissed the application for restoration filed by the tenant. The teuant challenges the decision of the High Court in this appeal ty special leave.

The High Court in its order under appeal has recorded the following iindings : fhe original owner, the 5th respondent, was entitled to terminate the lease of the tenant by giving notice under s. 9(1) of the Berar Act. He accordingly terminated the .tenancy by giving notice dated December 23, 1955. After ini-.tiating pro;:cedings under s. 8(1)(g) read with s. 19(1) of the 1Berar Act, the owner also obtained possession of the lands on April 4, 1957. Under the Berar Act there was duty cast on the landlord to cultivate the lands personally for period of 2 years and in this ~ase the 5th respondent has complied with this requirement. A~ possession was taken from the tenant by the 5th respondent when the Berar Act was in operation and as the latter had cultivated the lands for period of 2 years, as required by s. 9(6) of the Berar Act, the tenant had ceased to have any rights after the expiry of the period of 2 yea!'S and hence s. 52 of the Bombay Act was not apolicable and it follows that the application for restoration under - that section filed by the tenant was not maintainable. The position is concluded against the tenant by an earlier Full Bench decision of the High Court reported in Saraswatibai Babji Tukaram Umarkar v. Bhikamchand Ptemsukhdas, ( [1 ]) wherein it had been held that when posse~sion of the lands had been taken before coming into force of the Bombay A<:t, the rights and liabilities of the parties are governccl by the Berar Act and that s. 52 of the Bombay Act has no retrospective operation. On these findings the High Court allowed the writ petition of the first respondent.

Dr. Barlingay, learned counsel for the appellant, has urged that having due regard to the scheme of the Berar and Bombay Acts, the High Court's view that s. 52 of the Bombay Act has no ·application, is erroneous. In this case, he pointed out that the

(l) !966 Born. L. R. 954.

Bombay Act has come into force on December 30, 1958 even before the expiry of the period of two years from April 4, 1957, on which date the oriFPnal owner, the 5th res-pondent, had entered into possession ~fter te~!nating the l~ase. Section 52 of tile B0mbay Act contams prov1s1ons substantially similar to s. 9(6) of the Berar Act which was repealed and the only change was that the Bombay (\ct enlarged the period for 8 which the landlord was required to continue to cultivate land personally from t·vo years to 12 years. As the enlarged period under the Uombay Act has come into operation before the expiry of Ille &horter peri<.'1.l under the Berar Act, which was repealed, the landlord was bound to conform to the requirements of the larger period pr;:i,.ided under the Bombay Act. In this case the 5th respondent had transferred the suit lands to the first ·respon-dent on June 21, 1961 and hence there has been failure in law on the part of the 5th respondent to utilise the lands for the purpose of personal cultivation for the period mentioned in s. 52 of the Bombay Act and so the said section fully applies and the dis-missal of the tenant's application for restoration by the High Court is opposed to the mandatory provisions of the Bombay Act. The counsel, further pointed out that the Full Bench; decision, on which t!Je present judgment of the High Court is rested, is not applicable for the reason that the Full Bench was dealing with case where the period provided under s. 9(6) of the Berar Act had 01ready expired before the coming into force of the Bon1bay Act, whereas in the case on hand even before the expiry of that two years' period the Bombay Act has come in to force. This n1Jterial difference has not been noted in the present ordec by the High Court. He further urged that if the Full Bench decision applies, as held by the High Courl, it should be held by this Court that the Full Bench decision is not COrrC\Ct. Mr. M. S. Gupt~. karned counsel for the first respondent, landlord, raised preliminary objection to the hearing of the appeal antl prayed for cancellation of the special leave granted by this Court on January 11, 1967. According to him the appellant has made deliberately certain false statements in his applicatio;i. for grant of special leave. We will revert to this aspect little later. On merits Mr. Gupta contended that the obligation of his client's transferor, the 5th respondent, after obtaining possession of the lands from the tenant under the Berar Act was only to cultivate the lands for two years. Admit-H tedly in this case the 5th respondent had cultivated the lands for the said period of two years and the obligation incurred by him under s. 9\6) of the Berar Act having been duly complied with, s. 132(2) ot !he BoC11bay Act stands attracted. The counselpointed oat that s. 132 deals with repeals and savings. Sub-section (i) had repealed the enactments specified in Schedule 1 to the· extent specified in column No. 4 of the said Schedule. Schedule i shows th.JI the Berar Act has been repeale<l in its entirety. Notwithstanding the repeal sub-section (2) has saved certain mar;,•rs and one of the matters so saved is the obligation or liability already inwrred before the commencement of the Bombay Act. The 5th respondent, who had incurred the obliga-tion or liability to cultivate the lands for two years under the Berar Act before the commencement of the Bombay Act, has .discharged the said obli~ation or liability and hence the tenant has no further rights which he can enforce. He also urged that s. 52 protects even cases where possession h.is been taken aft~r the coming into force of the IJombay A.ct on ·the basis of an. order for restoration obtained under the Bei'ar Act. In s~pport of this contention he relied on the Jccision in Ramchandra v. Tukaram and others(!).

Before we deal with the merits we will now dispose of the ,preliminary objection raised by Mr, Gupta praying for cancella-tion of special leave granted by this Court. According · to the learned counsel the appellant has deliberately made certain false statements in the application for grant of special leave and has misguided the Court. . He drew our attention to the statements made in paragraph 6 of the application wherein the appeUant has stated that the 5th respondent had transferred the suit lands in favour of the first respondent on June 21, 1961 by taking ,i.n exchange 8 acres of land plus sum of Rs. 30,000/-.. Again 1h paragraph l 0 of the petition the appellant has stated that his claim in these proceedings is for restoration of possession of the . lands measuring 7 acres and 4 gunthas, the market value of which happens to be more than Rs. 20,000/,- and that this fact is fur-ther strengthened because of the 5th respondent exchanging his lands with the first respondent for sum of Rs. 30,000/- plus 8 acres of land. The appellant has filed an affidavit stating that the statements contained in the special leave petition 'are true .and correct to the best of my personal knowledge'. From these statements Mr. Gupta pointed out that it is clear that the appel11141t has categorically stated that the value of the lands concerned in this appeal is over Rs. 20,000/- and he has also specifically stat-ed that the suit land' were exchanged for Rs. 30,000/-plus 8 acres of lands and these statement' have been affirmed tq be true to the personal knowledge of the appellant.

Mr. Gupta pointed out that these statements regarding valua-1ion are absolutely false to the knowledge of the appellant as will

be clear from the value ·given in the writ petition filed by the first respondent in the High Court. In para I of the writ petition the first respondent has stated that the 5th respondent after trans-fering the suit lands of 7 acres and 4 gunthas has taken in exchange from him 8 acres of land and sum of Rs. 13,000/·, thus making total of Rs. 19,000/· In the affidavit filed along with the writ petition the first respondent has again stated that the amount received from him along with 8 acres of land as Rs. 13,000/- the total value of the lands being only Rs. 19,000/·. Ht: also drew our attention to the recitals in the judgment printed in the appeal records wherein the exchange has been stated as being of 8 acres of land plus sum -0f Rs. 13,000/-. In view of these circumstances, the counsel points out that the statements made by the appellant, which have been affirmed to be true to his knowledge about valuation of the suit lands being over Rs. 20,000/ · and the exchange having been obtained of 8 acres and Rs. 30,000/ · are false am! have been deliberately made to mislead the Court so as to obtain special leave making it appear that the requirement regarding valu.ation is satisfied. Mr. Gupta drew out attention to the decisions of this Court, namely, Hari Narain v. Badri Das([1]), Sita Bai v. Sonu Vanji Wani and ors(') and S. R. Shelly v. Phirozeshah Nusserwanji Go/abawalla ar.d another("). Mr. Gupta pointed out that in all these decisions when there has been false statements made on material particulars or matters of importance either on facts or about valuation, this Court had cancelled special leave already granted. The pro· position enunciated by Mr. Gupta that the statements in the special leave application should not contain any untrue or false statements either in material particulars or on matters of import-ance or about valuation is certainly laid down in those decisions and the requirement in this regard cannot be over-emphasised. In Hari Narain \{· Badri Das('), this Court held that the special leave petition contained inaccurate, untrue and misleading state-ments and cancelled special leave already granted. This Court observed at page 209 as follows :

"It is of utmost importance that in making material statements and setting forth grounds in applica-tions for special leave, care must be taken not to make any statements which are inaccurate, untrue or mis-leading. In dealing with applications for special leave, the Court naturally takes statements of fact and grounds of fact contained in the petitions at their face value and it would be unfair to betray the confidence of the Court by making statements which are untrue and mis-leading."

(l) [1964] 2 S.C.R. 203.

2 S.C.R. 203. (21 G.A. No. 982of1965 decided en 25-4-1968. 13) G.A. No. 155of1963 decided on 25-4-1963.

From the facts in that case it will be seen that the material statements made in the special leave petition were false .

• In Sita Bai v. Sonu Vanji Wani' and ors. ( [1]) this Court held that in the special leave petition there was misrepresentation of facts on matter of importance, though it was not possible to say that when granting special leave these untrue facts had misled the. Court. It has been further emphasised in this decisjs>n that the appellant had deliberately made untrue statements on matters of importance and that they were not the result of inadvertence: Similarly in S. R. Shelly v. Phirozeshah N11Ssenvanji Golabawal/a and another(") ·statement had beooi made regarding the value of the subject matter as being above Rs. 20,000/. though the suit had been valued only in the sum of Rs. 500/- and court fee paid on that valuation. This Court held that the statements of . valuation in the plaint, namely, Rs. 500/- cannot be reconciled with the statement regarding valuation in the special leave appli· cation and this Court took the view that the valuation has been deliberately inflated with view to getting over the preliminary hurdle as regards valuation. In this view special leave granted was revoked.

If it is held that there has been an untrue averment regarding material statements or false statement on matters of importance or deliberate untrue statement regarding valuation has been made to mislead this Court, it cannot be gainsaid that the special leave granted by this Court will have to be revoked.

Dr. Barlingay pointed out that there has been no untrue or · false statement made by his client on any material particular nor has any statement been deliberately made to mislead the Court so as to enable his client to obtain special leave. On the other hand, the counsel poiilted out, that the certified copy of the · f•' judgment of the High Court furnished to his client and which has been filed in this Court clearly shows that in the said ·copy the High Court has stated that the· 5th respondent obtained an ex-change from the first respondent 8 acres of land plus sum of Rs. 30,000/-. That mistaken value given in the High Court judgment has been adopted in the special leave peti~on. The points that have be~n raised in the special lel!ve petition are all questions of law relaoog to legal effect of possession under the Be!ar Act after coming into force of the Bombay Act. The valuation given in the certified copy of the High Court judgment was incor-porated in the special leave petition filed as early as January 1 ! , 1967 .• He further pointed out that on M~rch 28, .1967 ~ tr client had moved the High Court for correctmg the High Courts

(I) Civi) Appeal No. 982 of 1965 decided on 25-4-68'.

U} Civil Appeal No. 155 of 1963 decided on S-4-1961

judgment by deleting the valuation of Rs. 30,\lOO/- and substitute the same by correct figure of Rs. 13,000/-. The counsel for both the parties agreed before the High Court that the figure of Rs. 30,000/- contained in the judgment was an error and that the correct figure should be Rs. 13,000/-. The High Court ac-cordingly by its order dated April 17, 1967 corrected the judgment by stating that the valuation of Rs. 30;000/- should be corrected to Rs. 13,000/-. That order was passed nearly. three months after the special leave application was filed in this Court. In view of the fact that his client and the counsel acting for him at the time of drafting the petition for special leave adopted the valuation given in the certified copy of the High Court's judg-c ment, Dr. Barlingay pointed out that there has been no untrue or false statement given by his client so as to justif:1 revocation of the leave already granted.We have given due consideration to all these aspects presented before us by both the learned counsel and we are of the view that in the particular circumstances of this case it cannot be said that the appellant is guilty of making any false or untrue statement on any material particulars or matters of importance or regarding valuation. The mistake committed by the appellant regarding valuation was the result of the mistaken value given by the High Court itself in its judgment, which was corrected only long afterwards. No doubt, the appellant who is party to th.e proceedings should have been. little more careful, but that does not di[close any deliberate attempt on his part to mislead this Court. Further the statement regarding valuation is not of much. consequence in this case because the questions arising for decision are really points of law regardin& applicability of either the Berar or Bombay Acts. Therefore, Mr, Gupta has not been a~le to make out case for cancelling the special leave already granted.

We will now proceed to consider the appeal on merits. The suit land was originally in the Vidarbha Region, which before the. passing of Bombay Act of 1958 was part of the state of Madhya Pradesh and the tenancy of the appellant was governed by the Berar Act As proceedin~ had been taken by the 5th respon-dent for evicting the appellant and for possession of the land under the Berar Act, it is necessary to refer to some of the material provisions of that statute.

Section 2 (h) defines protected Jessee as 'a protected Jessee witbin the meaning of s. 3.' Section 3 enumerates various lessees who are protected lessees. There is no controversy that the appellant before us was protected lessee under the Berar Act. Section 8 (1 ) enumerates in els. \a) to ( g) the grounds on whick

the lease of land held by protected Jessee can be got tenninated under the orders of Revenue Officer. One of the groun~ for eviction is provided under cl.(g) of s. 8(1 ), namely, lessee having been served with the notice by landholder as provided in s. 9. Section 9 deals with the right of the landholder to tenninate the lease of protected lessee: Sub-sections (1). and ( 6) of the said section which are material for the present purpose are as follows :

"Right of landholder to tenninate lease of pro-tected lessee.

Section 9 ( 1 ) . Notwithstanding anything contained 'in section 8 . the landholder may tenninate the lease of protected Jessee by giving him notice in writing deli-vered not Jess than three months before the commence-ment of. the .next agricultural year stating therein the reasons for such termination and the description of the area in respect of which it is proposed to term'1iate the lease, if the landholder requires the lands for cultivating the land personally.

Section 9 ( 6). If on re-entering upon any land after termination of the lease of protected lessee in accor-. dance with this section, landholder fails at any time during such period as may be prescribed to utilise the land for the purpose for which the lease was tenninated, the dispossessed lessee may apply to the Revenue Offi-cer to put him in possession of the land from the · c0mmencement of the agricultural year. next following : and the Revenue Officer shall, after hearing the land-holder and making such enquiry as he deems fit, put the lessee in possession of the land if he is satisfied of the failure and also award him such sum by way of compen-sation as the Revenue Officer may consi<!e.r· sufficient.'". Section 19( I) provides for landholder 11pplying to the Revenue OlliCer to elect protected lessee against whom an order . for the termination of the lease had been passed under ss. 8 or 9. Section 22 gives power to the State Government to make rules ;is stated therein. Under cl. (3) of s. 22(2) rules can be made regarding 'the period under sub-section (6) of s. 9'. Rules have been framed under s. 22 and in particular r. 9 prescribes 'such period as that of two years'. Hence it will be seen that s. 9(6) read with r. 9 requires the landholder who terminates the tenancy of his protected lessee on the ground that the land was required

by him for his personal cultivation, to cultivate the land personally for period of two years. Under the Berar Act, after having entered upon the land, if the landholder fails to cultivate the land personally during the above period. then s. 9(6) confers right on the former protected lesset: to apply to the Revenue Officer for being restored to possession.

We have already indicated that the Bombay Act came into force on December 30, 1958. The material provisions to be re-ferred to in the said statute are ss. 52(1) and 132. Section 52(1) runs as follows : ·

''Landlord to restore possession if he fails to culti-vate within one year :

Section 52 ( 1) : Where after terminating the tenancy of any land under section 9 of the Berar Regulation of Agricultural Leases Act, 1951, or under sections 38, 39 or 39A of this Act, the landlord has taken possession of such land and he fails to use the land for the pur-pose specified in the notice given under the said sec-tion 9 or as the case may be within one year from the date on which he took possession or ceases to use it at any time for any of the aforesaid purposes within twelve years from the date on which he took such possession, the landlord shall forthwith restore p0ssession of the land to the tenant whose tenancy was tenninated by him. unless he has obtained from the tenant his refusal in writin~ to accept the tenancy on the same tem1s and conditions or has offered in writing to give possession of the land to the tenant on the same terms and condi-tions a11d the tenant has failetl to accept the offer with-in three months of the receipt thereof :

Provided that no refusal of the tenant shall be valid unless it has been verified before the Tahsildar in the prescrj,bed manner."

Section 132 relates to repeals and savings. Sub-section 1 states that the provisions of the enactments specified in Schedule I are repealed to the extent specified in column 4 of the said Bchedule. It may be stated at this stage that one of the enact-ments so repealed was the Berar Act in its entirety. Sub-section 3 is not relevant. Sub-section 2 of s. 132 on which reliance has been placed by both the parties is as follows :

"Repeals and Savings :

Section. 132(2) : Nothing in sub-section (I) shall. save as expressly provided in this Act, affect or be deemed to affect -

( i) any right, title, interest, obligation or liabiliiy already acquired,, accrued or incurred before the com-mencement of this Act, or

(ii) any legal proceeding or remedy in respect of any such right, title, interest, obligation or liability or anything done or suffered before the commencement of this Act,

and any such proceedings shall be instituted, continued and disposed of, as if this Act had not been passed."

We have already referred to the fact that the 5th respondent had issued the necessary notice terminating the tenancy of the appellant on December 28, 1955 under s. 9( 1) and after initiat-ing proceedings under s. 8 ( 1) ( g) read with s. 19 (1), he obtained an order for possession as against the appellant from the Revenue Officer on May 15, 1956, and had also obtained possession of the lands on April 4, 1957. All these proceedings were under the Berar Act before the coming into force of the Bombay Act. The 5th respondent continued in such possession of the lands till June 21, 19 61, on which date he transferred the suit lands to the first respondent in exchange for certain other lands. The appellant filed an application for restoration seeking relief on the ground that the 5th respondent had ceased ·to be in possession of the lands within twelve years from April 4, 1957.

Therefore the short question that arises for consideration is whether s. 52 of the Bombay Act applies to those lands the posses-sion of which was obtained by the landlord under s. 9 of the. Berar Act but in respect of which the period of two years' dis-ability as imposed under s. 9(6) read with rule 9 of the Rules was not over before the coming into operation of the Bombay Act.

From the scheme of the Berar and Bombay Acl6, it will be noted that while s. 52 of the Bombay Act enlarged the period of personal cultivation to 12 years, the Berar Act had provided for·personal cultivation only for period of 2 years. Under the Berar Act if the landlord does not personally cultivate for 2 years. the tenant can apply for restoration of possession from the land-lord. Similarly under the Bombay Act, if the landlord had ceased Ill cultivate the land within period of 12 years, from the date <ii' taking possession. the tenant can apply for restoration.

We have already referred to the fact that Mr. Gupta, learned counsel for the respondent, has relied on lhe decision of this Court in Ramachandrn v. Tukaram and others(!) in support of his -l I) [1966]1 S. C.. R. 594.

proposition that s. 52 of the Bombay Act applies, . even Ill cases where possession has been taken after the commg mto fo~cc .of the Bombay Act in pursuance of an order for restoratton obtained by the landlord under the Berar Act. We _have gon_c through the above decision and we are of the opIIllon that II does not lay down any such proposition. The question that arose for consideration therein was totally different one. In that case one X was protected lessee under the Berar Act UJld the land-. lord had terminated the tenancy under s. 9(1) on the ground of personal cultivation and had also submitted an application to the Revenue Officer under s. 8 (I)( g) for an order tenninating the tenancy. The Revenue Officer determined the tenancy by erder dated July 2, 1957 and made it effective from April I. 1958. But before the latter date, Ordinance No. 4 of 1957 was pro-mulgated, which in turn was replaced by the Bombay Act IX of 1958. The said Act had imposed ban on eviction of tenants and had also stayed all such proceedings pending on the date of commencement of the said Act. The landlord had applied on May 15, 1958 to the Naib Tahsildar for an order for restora-D tion of possession of the land by the tenant. The Bombay Act. which repealed the Berar Act and the Bombay Act No. IX of 1958, came into force on December 30, 1958, on which date the application filed by the landlord for restoration was pending before the Naib Tahsildar. There was controversy as to the nature of relief that could be granted to the landlord. Having due regard to s. 132(2) (ii) and (3) of the Bombay Act, this Court held that the application, filed by the landlord 'for restora: tion of possession on . the basis of the order obtained under s. 8(1 )(g) of the Berar Act, and which was pending when the Bombay Act came into force must be treated as an application under s. 19 of the Berar Act and had to be tried and disposed of by the appropriate authority. This Court further held that the application of the landlord being pending proceeding in respect of right 11cquired before the Bombay Act, it had to be continued and disposed of as if the Bombay Act had not been passed. Tt was further held that in so disposing of the applica-tion, treating it as one under s. 19 of the Berar Act, there was no scope for the application of the conditions and restrictions prescribed by sub-sections (3) and (4) of s. 38 of the Bombay Act as those Provisions do not apply to proceedings to enforce rights acquired when the Berar Act was in operation. This judg-ment, in our opinion, does. not support the landlord in the cose before us.

We have already referred to the fact that the Hi)!h Court, in i~s order under appeal. has held that s. 52 of the Bombay Act does not ~pp.Iv to the present case as the landlord had cultivated · the land for two years though part of that period was after the

commencement of the Bombay Act. The High Court has also :;tated that s. 52 of the said Act will have no application to the i:ase on hand inasmuch as the landlord had obtained possession on April 4, 1957 long before the coming into force of the Bombay Act. For this proposition, the High Court has relied on an earlier decision of Full Bench of the same Court in Sara1watibai Babji Tukaram Umarkar v. Bhikamchand Premsuklzdas(1). According to Dr. Barlingay. the High Court's view that even if landlord completes the period of two years personal cultiva-tion, as required under s. 9(6) of the Berar Act, after the coming into force of the Bombay Act. the larger period provided under s. 52 dqes not apply, is not correct. We have already stated that Dr. Barlingay has further urged that the Full Bench decision of the Bombay High Court does not apply and if that applies. the s.aid decision must be held to be erroneous.As the decision under a13peal is substantially rested on the

decision of the Full Bench. it is necessary to examine the scope of the Full Bench decision. But we may straightway say that the High Court's view that the Full Bench has held that s. 52 will not apply to cases where the two years' period is completed even after the Bombay Act came into force is not correct. because the Full Bench has not laid down any such proposition. The Full Bench has only held that s. 52 applies to cases where land· lord takes possession of the land on determination of tenancy either under s. 9 of ·the Berar Act or under ss. 38, 39 or 39A ,1F the. Bombay Act after the latter Act has come .into force. The facts in the Full Bench case were briefly as follows : X, landlord obtained possession on July 3. 1955 of certain lands from his tenant under the Berar Act on the grotind that he required the same for personal cultivation. After the death of X on October 28, 1955, his heirs inherited the property and conti-nued in possession of the same till February 9. 1959, on which date they sold the lands to one S. After purchase by S. the original tenant applied under s. 52 of the Bombay Act for restoration of possession on the ground that the landlord had ceased to use the property for period of 12 years as re41uired b~· the section. The heirs of X and the purchaser S. were both made parties to the said application and relief was asked for a!!ainst both of them. At this stage it may be mentioned that the Bombay Act came into force on December 3Q, 1958.

From the facts stated above. it will be seen that the landlord had obtained possession from the tenant on July 3, 1955 and he and his heirs had completed the requiremr-nt of s. 9 (6) of the Berar Act. namely. two years personal cultivation on July 3. 1957, long before the Bombay Act came into force. After -(i)[l966fifoni:-L.-R-:-954. .. -

having completed the said two years period, the heirs were in possession not only on the date of the coming into force of the Bombay Act, but also till the date of sale to S. (February 9. 1959). The question natura!ly arvse whether s. 52 of the Bombay Act will apply when the two years· period under the Berar Act had expired before December 12, 1958. There appears to have reen earlier single Judge's decisions of the Bombay High Court holding that s. 52 of the Bpmbay Act will apply to cases where possession has been taken after the Bombay Act . had come into force and also to cases where the period of 2 years' personal cultivation by the landlord had been complet-ed even before the coming into force of the Bombay Act. Mr. Justice Wagle, before whom the matter came in the first instance expressed doubt about the correctness of the earlier decisions. Mr. Justice Wagle was inclined to take the view that s. 52 of the Bombay Act would apply only to those lands, the possession of which was obtained by the landlord under s. 9 of the Berar Act. but in respect of which the period of two years· disability as imposed under s. 9 ( 6) read with r. 9 of the Rules was not ov1!r before the coming into force of the Bombay Act. As the learned Judge was inclined to take view. which was in conflict with the previous view of the Bombay High Court. he referred the matter to Division Bench. which in turn referred the matter to the Full Bench.

From what is stated above, it \\ill be seen that in that caw possess10n of the lands was taken by the landlord. from the' tenant und.er the Berar .Act and the two years' period as required !lnder s. 9\ 6.l of the said Act had also expired before the comin.: mto force o1 the Bombay Act. The transfer in favour of s nZ; doubt. was made .long after December 28. 1958. Tn the ~a>e before us th.e lanalord had obtained possession under the Berar Ac~ on Apnl 4. 1957 and he had not completed the two vc;m· period under s. 9(6) of the Berar Ac: on December ~O ·19~~ We .a.re on.ly refe1Ting to these dales .to show that the Full. Be~ch ~C?!Slon dtd no~ have. occasion to directly tackle the problem that .inst?~. for cons1~e~~t10n bi:fore us. But nevertheless there arc certam br~ad p~mciples laid down in that decision. the correct· ness of which wt.II have to be considered by u'. The Full Bcnc·i. posed the followmg two questions for consideration :

'· 1 • Whether the provisions of section 51 of th~ Bon~bay Tenancy and Agricultur;il Lands ( Vidarbha Region and Kutch Area) Act, 1958 arc attracted to · cases \~here the lease of proteckJ lcs-ee had been dctenmned by_ the landholder under section 9 of the Bcrar Rcgul_at10n of Agricultunt! Lenses Act. 1951 a'ld posscssmn thereof taken prior to the date the

new Tenancy Ad came into force and the landholder

.continued to personally cultivate the land on the date the new Act came into force.

2. If the answer to the first question is in the affir-

mative, whether the expiry of two years prior to the coming into force of the new Act would have any bear-ing on the application of section 52."

.The first question, it will be noted, refers to the effect of taking

possession by the landlord before December 30, 1958 and his still being in possession on the date of the coming into force of . the Bombay Act. The second question refers to the effect of the expiry of two years prior to the coming into force of the :Bombay Act.

So far as the first question is concerned, the learned Judges held that s. 52 of the Bombay Act would be attracted only to .such cases where landlord takes possession after determination -0f tenancy either under s. 9 of the Berar Act or under ss. 38, 39, <>r 39A of the Bombay Act, after the Bombay Act has come into force. So far as the second question is concerned, the learned Judges have not expressed any opinion on the ground that it does not survive on the view expressed by them on the first question.

lt will be noted from reading of the Full Bench judgment •that the learned Judges have placed considerable emphas~ ior the applicabi\ity of s. 52 of the Bombay Act about the landlord iaking possession after the Bombay Act has come into force. If possession had been taken before December 30, 1958, according to the Full Bench, s. 52 does not apply; whereas if possession is taken after the said date, the said section will apply. For coming to this conclusion the Full Bench has given considerable impor-tance to the fact that s. 52 refers also to ss. 38, 39 and 39A of the Bombay Act and that it uses the expression "landlord has taken possession of such land and he fails to use the land.", These expressions; according to the Full Bench, can refer only to cases of lands taken possession by landlord after the Bombay Act has come into force as s. 52 is not retrospective.

In our opinion, the Full Bench has too broadly stated the principles regarding the circumstances under which s. 52 of the Bombay Act will apply. .If taking possession of the land by the landlord after December 30, 1958, is the sole test for the appij_-cability of s. 52, the position, in our view, will be very anomalous. For instance if landlord had taken possession on December 29, 1958. s. 52 will not apply and the requirement of two years' personal cultivation may not also become necessary as the Berar

I J ' ) I i j \

Act stands repealed as on December 30, 1958. Similarly if the landlord had taken possession and had also complied with the requirement of two years' personal cultivation Jong before Decem· ber 30 1958, but nevertheless if he is in possession of the land on De~ember 30, 1958, according to the Full Bench, s. 52 will stand attracted. No doubt the Full Bench has not answered the second question posed before it, but the reasoning of the decision will be to that effect if the test of possession on December 30, 1958 is the only criteria.

We are of the opinion that the que;tion of s. 52 being retr06· pective or riot has no material bearing in interpreting that section. That section had necessarily to :~fer ss. 38, 39 and 39A as they were also provisions enabling landlord to get possession from Jessee. lt is in the light of these matters that the expressions occurring therein have to be given their naturnl meaning. The Full Bench has misinterpreted that section.

In interpreting s. 52, in our opinion, s. 132(2) (i) will be helpful. The obligation of the landlord when he takes possession of the land from the tenant under the Berar Act is to. cultivate it personally for two years and once the landlord complies with that requirement before the Bombay Act came into force, the tenant's right to get restoration stands extinguished as the land-lord has discharged his obligation. Section 52 of the Bombay Act extends the period of personal cultivation to 12 years to all cases to which it applies. If the landlord had taken possession under the Berar Act, there was an obligation on him 10 cultivate personally for two years and if he has not so cultivated. the tenant had acquired right to b~ restored to possession. That right which has been acquired by the tenant or accrued to him before the commencement of the Bombay Act is saved under s. 132(2) (i). Similarly, if the land-lord had cultivated the lands personally for the required period. before_ the Bombay Act came into force, the landlord had acquir-ed nµht not to be drsturbed from his possession thereafter. That r~µht •rµain. which has been acquired by landlord or accrued to him has been saved under s. 132(2) (i). Having due regard to the. provisioU;S. of .the statutes and what has been stated by us carlrer the posrtmn is that if the landlord on December 30, 195_8 .had c.ompl~ted the two years period of personal cultrvatmn, lllS nght not to be disturbed is continued an~ .. p:eserved u.nder. s. 132(2)(i) oi the Bombay Act. A,arn rf the landlord rn pursuance of an order obtained under the Berar Act. takes pmsession, after the commencement of the Bombay Act. s. 52 applies to him and his ori11inal obligation to ,. _ cultr1 ate personally for two years under the Berar Act geg T.-.[1]:-. S'.Jf'. C'U7!- 7

extended by the 12 years period provided under that section. If he ceases to so cultivate within the period of 12 years from his taking possession, the tenant gets right to apply for restora-tion of the land.

The several aspects enumerated above have not been consi-dered by the Full Bench of the Bombay High Court and it has rested its decision for applying s. 52 by applying the sole test whether the landlord has taken possession before or after Decem-ber 3{), 1958. Such test is not warranted by the provisions of both the statutes read together. fair reading of s. 52 also, in our opinion, leads to the same conclusion. Section 52 provides for:

(i) the tenancy being terminated under s. 9 of the Berar Act;

(ii) the landlord taking possession of such land on the basis of such termination of the tenancy;

(iii) the landlord failing to use the land for the pur-D pose specified in the notice under s. 9 of the Berar Act;

(iv) failure to use the land for the purpose mentioned in the notice within one year from· the date on which he took possession;

( v) the landlord ceasing to use the land for the purpose for which he obtains possession within 12 years of his taking possession.

To the case of landlord who had already completed two years personal cultivation before December 30, 1958, the require-ment of his failing to use the land for the purpose specified in the notice under s. 9 within one year from the date of his taking possession, will have no application whatsoever. The normal and reasonable construction to be placed upon s. 52 is that it will apply only to cases of lands, the possession of which was obtained by the landlord under s. 9 of the . Berar Act, but in respect of which the period of two years disability imposed under s. 9(6) read with r. 9 of the Rules was not over before the coming into force of the Bombay Act. In respect of such landlords, s. 52 enlarges the period for which be is required to personally culti-vate the lands. In this respect we are inclined to agree with the view of Mr. Justice Wagle.

To conclude s. 52 applies to all cases where possession is taken by the landlord on or after December 30, 1958 on the basis of an order obrnined under the Berar Act. It applies to

cases where possession had been taken by landlord under !he Berar Act but the two years period of personal cultivation had not been completed when the Bombay Act came into force. The instances of obtaining possessio.I). under ss. 38, 39 or 39A of the Bombay Act have not been considered by us in this appeal.

It follows that s. 52 of the Bombay Act applies to the cas~ before us, as the landlord had not completed two years' personal cultivation on December 30, 1958, tire date on which· the Bombay Act came into force. He had taken possession on April 4, 1957, and the two years' ptriod will expire only on April 4, 1959. In the meanwhile the Bombay Act had come into force on December 30, 1958. Under s. 52 the period of personal culti-vation had been extended to 12 years from the date of taking possession. But as the 5th respondent, who obtained possession for personal cultivation had transferred the suit lands to the 1st respondent on June 21, 1961, on which date the 12 years period had not expired, the appellant tenant was entitled to apply for restoration on the ground that the said landlord had ceased to cultivate the lands for the required period as provided under s. 52.

In the result the judgment and order of the High Court are .,et aside and the orders of the Special Deputy Collector and the Maharashtra Revenue Tribunal are restored and the appeal allowed.

Though normally costs should follow the event, in this case though the appe!lant succeeds, we decline to award him costs, as we are of the view that he should have been more careful in giving the valuation in the special leave petition.

Appeal allcrwed.