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Trimbak Balwant Kulkarni Vs. Chahala Bhikha Rajput - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case Number Special Civil Application No. 1782 of 1966
Judge
Reported in(1971)73BOMLR537; 1971MhLJ798
AppellantTrimbak Balwant Kulkarni
RespondentChahala Bhikha Rajput
Excerpt:
.....with a case in which three conditions arc to be satisfied. these two grounds clearly militate against the contention that the section is not retrospective. shah that the order passed by the revenue tribunal is bad and should be quashed......not affect that order.5. mr. shah's contention was that if the cause of action for declaring the sale as ineffective arose long before the amending act came into force, then no detriment can be effected by the amendment to the rights that were obtainable to the parties at the time this litigation first started. this litigation started in about 1963. mr. shah's contention was that in 1963 when the landlord's rights became crystallized the amendment was not there. and since an amendment is normally prospective, the said amendment made in 1965 could not affect rights which had crystallized in 1963.6. the two lower authorities held that since the price was fixed by agreement and not under section 32k, section 32m(1) as it was before amendment did not apply. the revenue tribunal, however,.....
Judgment:

Wagle, J.

1. The point that arises in this petition is whether the amendment effected in Section 82M of the Bombay Tenancy Act by Maharashtra Act No. XXXI of 1965 is retrospective in effect. The point arises upon the decisions of the three forums, the Mamlatdar, the Deputy Collector and the Maharashtra Revenue Tribunal who gave a declaration that the tenant's purchase is not ineffective. The facts which led to this litigation are the following :

The land in dispute was declared to be purchased by opponent No. 1 on August 6, 1959, by an order passed by the Agricultural Lands Tribunal. The purchase price was agreed to be Rs. 3,800 payable in 11 instalments and the first instalment of Rs. 521 was to be paid on January 15, 1960. That instalment was not paid but Rs. 400 were paid upto April 20,1962.

2. Thereafter on June 15, 1963, an application was made by the present petitioner for a declaration that the purchase made by the tenant, opponent No. 1, has become ineffective in view of the provisions of Section 32M(1) of the Bombay Tenancy Act. The application was decided on June 29, 1963 when the sale was declared to be ineffective. This was done when the tenant was absent. On November 20, 1968 the tenant made an application for setting aside the ex parte order and for restoring the application to file. Curiously enough, the Agricultural Lands Tribunal before whom the application for restoration was made, held that the declaration that the sale was ineffective was an order which was illegal and hence not operative. It was held by the authority that the provisions of Section 32M(1) would not apply to the circumstances of this case because the instalments were agreed to mutually between the parties and the same were not ordered under Section 32K of the Tenancy Act. Against this order an appeal was filed but the same was dismissed on July 31, 1964. The Deputy Collector in appeal supported the order passed by the Agricultural Lands Tribunal although the appellate authority was of the opinion that an error was committed by the Agricultural Lands Tribunal in condoning the delay in making the application for restoration. However, the appeal being dismissed, an application in revision was made before the Revenue Tribunal by the landlord.

3. Before the Revenue Tribunal it appears as if only one point was argued, namely whether an amendment which has been made during the pendency of this litigation would be operative to substantiate the order of the two lower authorities. The Tribunal held that in view of the provisions of the amended Section 32M(2), the order passed by the two lower authorities that the purchase was not ineffective was justified. The Revenue Tribunal did not consider the question whether the application for restoration was filed beyond time and whether the condonation of delay was erroneous. The Revenue Tribunal also did not consider the question whether in view of the fact that the instalments were to be paid by agreement between the parties, the provisions of Section 32M(2) did not apply to the circumstances. It held that the provisions of Section 32M(2) were retrospective and in view of those provisions, the tenant was entitled to continue in possession and that the only further thing to be done was that the Agricultural Lands Tribunal was to recover the amount of the instalments due under the provisions of Section 32K(3). Against this order upholding the orders passed by the two lower authorities the present petition has been filed.

4. Mr. Shah for the petitioner-landlord contended that the provisions of Section 32M(2) as amended would not act retrospectively. He referred me to the normal rule of construction of statutes that unless specifically laid down by the statute, an amendment acts prospectively and not retrospectively. He also referred me to a decision of Mr. J.R. Dhurandhar, the then President of the Tribunal dated November 5, 1965. In his judgment the President held that Section 32M(2) as amended does not act retrospectively. Mr. Shah therefore urged that since the order passed by the authority was passed as early as in 1964, the amendment which was brought on the statute book in 1965 would not affect that order.

5. Mr. Shah's contention was that if the cause of action for declaring the sale as ineffective arose long before the amending Act came into force, then no detriment can be effected by the amendment to the rights that were obtainable to the parties at the time this litigation first started. This litigation started in about 1963. Mr. Shah's contention was that in 1963 when the landlord's rights became crystallized the amendment was not there. And since an amendment is normally prospective, the said amendment made in 1965 could not affect rights which had crystallized in 1963.

6. The two lower authorities held that since the price was fixed by agreement and not under Section 32K, Section 32M(1) as it was before amendment did not apply. The Revenue Tribunal, however, did not deal with the point. If the provisions of Section 32M as amended by Act No. XXXI of 1965 are retrospective then this question would not arise. I therefore propose to deal with the retrospective nature of Section 32M.

7. Section 32M(2) as amended deals with a case in which three conditions arc to be satisfied. The first condition is that the sale in favour of the tenant must be declared ineffective. After the amendment of Section 32M(1) no sale could be declared ineffective for the only reason that the tenant was in arrears of payment of the instalments. Before the amendment, such a sale could be declared ineffective upon the default committed by tenant in payment of four instalments where the instalments were more than four in number. But this is not one of the consequences of default after the amendment of Section 32M(1). If therefore on the mere ground that there is a default committed by the tenant, no sale could be declared ineffective, then condition No. 1 mentioned in Section 32M(2) would not come into existence after the amendment of Section 32M(1). Therefore the provisions of Section 32M(2) would not obtain in respect of any cases in which action was to be taken after the amendment of Section 32M(1). Obviously therefore it must mean that Section 32M(2) was intended to operate in respect of orders of ineffectiveness passed before Section 32M(1) was amended.

8. The second ground which militates against the argument advanced by Mr. Shah is the expression in Section 32M(2) 'but the tenant-purchaser has nevertheless continued in possession at the commencement of the Bombay Tenancy and Agricultural Lands (Admendment) Act, 1964.' The word 'nevertheless' would correlate to the earlier clause of Section 32M(2) which refers to condition No. 1, viz, that the sale has been declared ineffective. Two conditions, therefore, must be in operation before Section 32M(2) could operate. The first condition is that the sale must be declared ineffective, and the second condition is that in spite of the declaration of sale as ineffective, the tenant must continue in possession on the date when the amendment came into force. These facts would only apply to orders which were passed before the amendment came into effect. These two grounds clearly militate against the contention that the section is not retrospective. In fact, if the sale cannot be declared ineffective by the mere fact that there was a default in payment of instalments under the provisions of Section 32M(1) as amended, then a fortiori it must follow that the conditions of Section 32M(2) could only obtain in respect of sales which were declared ineffective before the amendment of Section 32M(1) and (2) came into force. I also find that there is a judgment of Bhasme J. in Mukund Govind Gharat v. Gulam Ahmed Abdul Kadir Karkori (1970) Special Civil Application No. 2785 of 1907, decided by Bhasme J., on April 16, 1970 (Unrep.), in which the learned Judge took a similar view. There is, therefore, no substance in the contention advanced by Mr. Shah that the order passed by the Revenue Tribunal is bad and should be quashed.

9. In the result, the petition fails. Rule is discharged with costs.


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