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Laxman Chandrabhan Naktode and anr. Vs. Maharashtra Revenue Tribunal Nagpur and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. Nos. 1137 and 1188 of 1969
Judge
Reported inAIR1976Bom87; 1975MhLJ541
ActsBombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 - Sections 120-A(1)
AppellantLaxman Chandrabhan Naktode and anr.
RespondentMaharashtra Revenue Tribunal Nagpur and ors.
Appellant AdvocateV.D. Deshmukh and ;A.M. Deshmukh, Advs.
Respondent AdvocateA.M. Bapat, Adv.
Excerpt:
a) the case examined the last clause of second proviso to section 120- a (1) of the bombay tenancy and agricultural lands (vidarbha region) act, 1958 - it was held that the last clause controlled only the first clause and not the second clause of the proviso;b) the case debated on the validity of a transfer resulting in eviction within the framework of second proviso to section 120- a (1) of the bombay tenancy and agricultural lands (vidarbha region) act, 1958 - the court held that such a transfer should not be legalized and the motive of the transfer was irrelevant in this context - - the maharashtra revenue tribunal took the view that where the transfers like the present petitioners could apply under section 39 read with section 36 on the strength of the gift-deeds in their favour,.....deshmukh, j.1. these two writ petitions have been referred by the learned single judge of this court . the question involved the interpretation of the provisions of section 120-a of the bombay tenancy and agricultural lands (vidarbha region) act 1958 ( hereinafter referred to as the vidarbha tenancy act) . the point has been directly decided by the division bench of this court while interpreting the parallel provisions of section 84--a of the bombay tenancy and agricultural lands act. 1948 (hereinafter referred to as the bombay tenancy act). however, the learned single judge felt that a reconsideration of the view taken seems to be necessary for reasons stated by him and hence he referred the matter to the division bench.2. the few facts that must be noted for understanding the point of.....
Judgment:

Deshmukh, J.

1. These two writ petitions have been referred by the learned Single Judge of this Court . The question involved the interpretation of the provisions of Section 120-A of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act 1958 ( hereinafter referred to as the Vidarbha Tenancy Act) . The point has been directly decided by the Division Bench of this Court while interpreting the parallel provisions of Section 84--A of the Bombay Tenancy and Agricultural Lands Act. 1948 (hereinafter referred to as the Bombay Tenancy Act). However, the learned Single Judge felt that a reconsideration of the view taken seems to be necessary for reasons stated by him and hence he referred the matter to the Division Bench.

2. The few facts that must be noted for understanding the point of controversy are these. One Sitabai who was a widow inherited agricultural property from her mother Bahenabai, Sitabai had a daughter. Sushila, who was married to one Laxman Naktode. This Sushila also died. She is survived by two children from Laxman, namely, Arun and Usha, both minors, Sitabai executed two separate gift-deeds in favour of Usha and Arun in respect of Survey Nos. 21 and 23 of the villages Chandkapur and Rasulpur respectively, both from the district of Yeotmal. Usha was gifted survey No. 21 measuring 18 acres 26 gunthas and Arun was recipient of survey No. 23 measuring 9 acres 32 gunthas. Both these gift-deeds were executed on 24th January 1961. Admittedly for both these lands, there ere tenants who were holding the lands from Bahenabai long before the execution of the gift-deeds. Respondent No.4 Dambdu in Special Civil Application No. 1187 is the tenant of survey No,. 21 and respondent No. 4 Shyamrao in Special Civil Application No. 1188 of 1969 is a tenant of survey No. 23.

3. Immediately after the execution of the gift -deeds in favour of the two minors, both the minors through their guardian , the father served, notices on the tenants on 13th of February 1961 which were received by them on 17th February 1961. Soon thereafter on February 25, 1961 the two minors filed two separate applications under Section 39 read with Section 36 of the Vidarbha Tenancy Act for the purpose of claiming the possession of the entire lands from both the tenants after evicting them. Both the cases initially proceeded ex parte and were heard on 1st of April 1961. The Naib Tahsildar passed his order on April 12, 1961 and directed eviction of both the tenants from their respective lands. Not only the ex parte orders were so obtained, but the tenants were evicted on June 13, 1961. It is not clear from the record whether executions were taken out or the tenants were otherwise deprived of possession. However, becoming aware of the proceeding in this manner , the tenants filed appeals and obtained restoration order on July 6, 1981. The appellate authority set aside the eviction orders and remanded both the applications under Section 39 read with Section 36 to the Naib Tahsildar for enquiry and disposal according to laws.

4. While the litigation between the two new owners of the property, namely, the minors, and the tenants of the lands was thus pending in the Tenancy Court , the minors applied on September 11, 1962 for validation of the gift deed in their favour on payment of the appropriate amount of penalty under the provisions of Section 120-A of the Vidarbha Tenancy Act . Probably they became conscious after the tenants appeared in the tenancy cases and pleaded that the new landlords had no lawful title at all to claim possession and this precautionary measure was sought to be taken.

5. In those applications the tenants do not seem to have been joined as party respondents. The transfers were validated by the Naib Tahsildar on acceptance of Rs. 24 and Rs. 15 respectively as penalty by his order dated October 31, 1962. In the appeal filed by the tenants, the appellate authority by its order dated July 31, 1963 set aside the validation order and remanded the cases to the Naib Tahsildar for disposal according to law after issuing notices to the tenants in actual possession. The present petitioners the so-called owners, carried a revision to Maharashtra Revenue Tribunal refused to interfere.

6. After the cases were so remanded under Section 120-A of the Vidarbha Tenancy Act , the Naib Tahsildar found that the gifts would result in eviction of the tenants and he, therefore, held that the transfers could not be validated and rejected the applications. While passing this order he took into account the two proceeding started by the petitioners under Section 39 of the Vidarbha Tenancy Act which were then pending and found that by validating the gift-deeds, the petitioner intended to evict the tenants under Section 36. The Deputy Collector on appeals expressed his view that the eviction under Section 36 read with Section 39 could not be taken into account as the possible eviction under those provisions was not a direct result of the transfers which is the only requirement for refusing validation under the proviso of Section 120-A of the Vidarbha Tenancy Act. However, he felt that the appeals did not lie at all and on that technical ground rejected the appeals. The present petitioners therefore approached the Maharashtra Revenue Tribunal by revisions application. The Maharashtra Revenue Tribunal took the view that where the transfers like the present petitioners could apply under Section 39 read with Section 36 on the strength of the gift-deeds in their favour, the possible eviction of the tenants in those proceedings was a result of the gift-deeds in their favour. Such cases are covered by the proviso to sub-section (1) of Sec . 120-A of the Vidarbha Tenancy Act, and therefore, such transfers could not be validated. The Tribunal also relied upon a reported judgment of this Court in Vishnu Kondiba Sapte v. Nathu Mahadev Pradhan : (1958)60BOMLR1146 in support of the view taken by it. The revision application were thus rejected . Being aggrieved, the two minors have filed these two writ petitions in this Court.

7. The learned ?Single Judge in his reference order is aware that a Division Bench of this Court has already taken a certain view of the provisions of Section 84-A of the Bombay Tenancy Act, which is identical in all respects to the provisions of Section 120-A of the Vidarbha Tenancy Act. The learned Judge, however, felt that the ending clause of the second proviso in sub-section (1) of Section 120-A has not been specifically considered by the Division Bench and sufficient effect has not been given to that clause. According to him, all transfers from the date the Vidarbha Tenancy Act came into force upto 21st of November 1961 in breach of the provisions of Section 89 and 91 were required to be validated and that was the substantive provision which left no choice to the revenue officers. However, an exception was carved out where the validation certificate was not to be issued and that exception dealt with two types of cases. One was where a transfer is effected after unlawful eviction of the tenant, the validation certificate is not to be issued for a period of 3 years within which the unlawfully evicted tenant could apply for restoration of possession under Sub-sec (1) of Section 36. Once the period of limitation expires when the right of the former tenant in actual possession ceases to be effective in terms of the remedy available. perhaps validation was possible. That was one case. The other case according to the learned Single Judge is where the transfer results in the eviction of the tenant and this eviction again must be unlawful and not lawful. When a tenant is lawfully evicted under any of the provisions of the Vidarbha Tenancy Act by the landlord, an application for restoration of possession under Sub-section (1) of Section 36 of the Vidarbha Tenancy Act is impossible. When the Legislature asks the authorities to wait for three years during which the evicted tenant could apply under sub-section (1) of Section 36, according to the learned referring Judge, only cases of unlawful dispossession are taken into account and not lawful dispossession. The ending clause would not govern the dispossession under the provisions of the Vidarbha Tenancy Act through the machinery provided by that Act to the owners of the property of the landlord. The view has not been pointedly considered in the earlier Division Bench judgment and according to the learned Judge the reconsideration of the earlier view seems to be necessary. He has thus referred this matter to this Bench so that if we come to the conclusion that the earlier decision requires reconsideration, we might in turn place the matter before the learned Chief Justice for referring the point involved to a still larger Bench.

8. The relevant provisions of Section 120-A of the Vidarbha Tenancy Act which require interpretation are these :

'120-A (1). A transfer or acquisition of any land in contravention of the provisions of Section 89 or 91 made before the 21st day of November 1961, shall not be deemed or declared to be invalid merely on the ground that such transfer or acquisition was made in contravention of those provisions if the transferee pays to the State Government a penalty equal to one per cent of the consideration or one hundred rupees, whichever, is less:

Provided that , if such transfer is made by the landlord in favour of a tenant in actual possession, the penalty payable in respect thereof shall be one rupee:

Provided further that, if any such transfer is made by a landlord in favour of any person other than a tenant in actual possession, and such transfer is made either after the unlawful eviction of such tenant or results in the eviction of the tenants in actual possession, them , such transfer shall not be deemed to be validated, unless such tenant had failed to apply for possession of the land under sub-section (1) of Section 36 within three years from the date of his eviction from the land.

9. This is a section which validates certain transfers which were declared invalid by the Act if they contravene the provisions of Section 89 and 91 . A brief reference to these sections may be relevant. The intention of Section 89 is that even where the owner of the agricultural land is in physical possession and is capable of transferring title along with possession, the transfers in favour of a non-agriculturist obtains a certificate from the Collector or an officer authorised by the State Government in that behalf and on conditions prescribed. The primary intention of this section is to prohibit transfer of agricultural land from one owner of agricultural land is in cultivating possession himself. If there is a tenant on the agricultural land, the provisions of Section 91 operate. Where a landlord intends to sell any land leased laid down in Section 91. If there is a breach of either of these provisions, the sale is ineffective. If a person is in unlawful possession under an invalid transfer in this manner, an enquiry in that behalf and the consequence that should follow are incorporated in Section 122 of the Vidarbha Tenancy Act.

10. However, it appears to be a historical fact that several transfers were effected from the date Sections 89 and 91 came into force. The Legislature as a matter of policy decided that such unlawful transfers made before the 21st of November 1961 should be validated in the manner provided by the provisions of Sub-section (1) of Section 120-A quoted above. The substantive part of sub-section (1) above lays down that such transfers shall not be deemed or declared to be invalid merely on the ground that such transfers or acquisitions were made in contravention of the provisions of Section 89 and 91 if the transferee pays to the State Government a penalty equal to one per cent of the consideration or one hundred rupees, whichever is less. However, the Legislature made a distinction between a transfer in favour of an utter stranger and a transfer in favour of the tenant in possession. If the transferee was the tenant himself, who was in possession earlier, the transferee was made to pay a nominal penalty of one rupee. This is the first proviso. The substantive part of sub-section (1) together with the first proviso represents one single provision in the matter of validating transfers.

11. To be more correct, those provisions represent the new approach of the Legislature in giving directions of the Officers whose duty it was to make enquiries under Section 122 of the Vidarbha Tenancy Act , not to declare the transfers invalid by stating that they shall not be deemed to be invalid provided the penalty is paid.

12. However, the Legislature did not intend that every transfer in breach of Section 89 and 91 upto or before the 21st of November 1961 should be validated irrespective of any consideration. The second proviso added above again indicates a class of transfers from those which are not to be declared as invalid. The broad approach of the Legislature as can be now seen is that initially transfers in breach of Section 89 and 91 were all declared invalid and inoperative. Provisions were made under Section 122 for enquiry and declaration that the transfers are invalid and to take over lands in the possession of the State free of all encumbrances and to dispose of those lands as provided by that Section. This was the initial scheme. Every transfer in breach of Section 89 and 91 would lead to the consequence of forfeiture of that land to the State if the enquiry led to the conclusion that it was an invalid transfer in breach of those two sections. Finding that this was too hard a result in the case of every ignorant landlord and land owner and also to protect several purchasers who might be otherwise bona fide purchasers the provision of Section 120-A (1) was brought on the Statute book. However, it is not a sweeping provisions to validate every transfer or not to deem every such transfer as invalid. The Legislature has a distinct policy in enacting Section 120-A. Though the interest of the land owners and purchasers upto a degree were sought to be protected and legalised, the Legislature did intend that where there were tenants in actual possession, the transfers in breach of Section 89 and 91 should not have the effect of putting these tenants into a position which was worst than what it was a under the substantive provisions of the Act. In the other words, while legalising certain transfers, the existing rights of tenants in possession were sought to be protected and, therefore, some provision was made in the second proviso to the above section for protecting the rights of each tenants.

13 What the protection is and how it operates, is the only question that falls for our consideration in this litigation. The second proviso which we are now directly required to construe, undoubtedly carves out a class of cases from the operation of the substantive provisions of Section 20-A , sub-section (1). If a certain case falls under this proviso. which in other words, means does not fall under the substantive provisions of sub-section (1) of the above section, it is undoubtedly a case which is hit by the provisions of Section 89 and 91 . With this approach in mind when we read the second proviso, we find that only cases which are taken into account under this second proviso are those where the landlord is making a transfer in favour of a person other than a tenant in actual possession. In other words, this is a case falling under Section 91 where there is a tenant to the land and where there is a tenant to the land the word Landlord is to be construed accordingly under the provisions of the Vidarbha Tenancy Act. Having considered the proposition of a transfer by a landlord in favour of a person other than a tenant in actual possession, the Legislature has again imagined two types of cases. In the first place, there may be case where the tenant in actual possession is physically thrown out unlawfully and the situation is created that on the date of the transfer in favour of a stranger there is no tenant in actual possession on the land. The other obvious category consists of those e case where there is a tenant in physical possession and still a transfer in breach of Section 91 is made.

14. The clause describing the first types of cases consists of the following words name and such transfer is made either after the unlawful eviction of such tenant .........' . The other type of cases are described by the clause that follows, namely ' or results in the eviction of the tenant in actual possession then....... 'Having thus described the two types of cases where the invalid transfer is not to be validated, there follows a further clause which is the main bone of contention . That clause is as follows:

'unless such tenant has failed to apply for possession of the land under sub-section (1) of Section 36 within three years from the date of his eviction from the land'

The vie which is being canvassed before us on behalf of the petitioners, and which has found favour with the learned Single Judge who made this reference, is that the last clause quoted above, controls both the cases, namely, where a transfer has taken place after physical unlawful eviction of the tenant in possession and as also the cases where transfer has taken place even when the tenant is present on the land.

15. It is further argued that an application under sub-section (1) of Section 36 by a tenant can be made if only the tenant is entitled to possession of any land or has been evicted in contravention of the provisions of sub-section (2) of Section 36. This is a limited right given to the tenant under sub-section (1) of Section 36 apart from the provision of limitation, within which the right is to be exercised. A tenant who has been evicted by a landlord by following the procedure laid down in the Vidarbha Tenancy Act by an application under sub-section (2) of Section 36 read with some other provisions of the said Act, cannot have any right to apply under sub-section (1) of Section 36. The reason is obvious. He is neither a tenant who has been unlawfully evicted by a landlord in breach of Section 36(2) nor is he a tenant who is entitled to possession of the land, in view of the eviction order lawfully passed by the tenancy authorities. In other words, where the tenancy has been terminated under the provisions of this Act and that results in the eviction order, the tenant loses all rights to apply for possession. On the basis of this logic, it is argued that where the tenant was out of possession physically by an unlawful act on the date of the transfer, or where he was in possession on the date of the transfer and is subsequently evicted, unless he has a lawful right to apply under sub-section (1) of Section 36 of the Act his case does not fall under the second proviso. If the case does not fall under the second proviso, it is automatically a case of a transfer which was invalid under Section 89 or Section 91 and it is required to be validated under the substantive provisions of Sub-section (1) of Section 120-A.

16. As a further limb of the same argument, it is stated that the present petitioner as landlord are merely applying for eviction of the tenants under the provisions of Section 39 read with Section 36. Those proceedings may be pending and it may be assumed for arguments sake that ultimately they will succeed in obtaining the eviction order. Undoubtedly this is a case where the transfer might have resulted in the eviction. We might at once point out that Mr. Deshmukh the learned counsel for the petitioners. does not accept the proposition that even in the present case, it is the transfer that is resulting in eviction. What he argues is that the transfer merely gives title to the petitioner but what may result in eviction is the proof they offer before the tenancy authorities that their cases fall under Section 39 and therefore, they were entitled to the order of eviction. We are not impressed by this kind of logic. Unless there is a valid transfer, the petitioners are not entitled to apply at all for eviction. One has to be landlord before applying for eviction against a tenant. The petitioners being transferees would not be landlords unless their transfer is held to be valid. If at all they succeed in those applications under Section 39 read with Section 36 on the merits to be proved according to the provisions of Section 39, main reason why they are able to apply and obtain success is that there has been a valid transfer in their favour. In our view, therefore, it is the transfer which is resulting in the eviction if those applications were to succeed.

17. Even on the basis of this approach, what is argued is that is it every eviction that is contemplated by the types of cases which are covered by the clause 'or result in eviction of tenant in actual possession'? What is contemplated is that an eviction against which a remedy under Sub-section (1) of Section 36 should be available to the tenant, only those cases are excepted an not other cases falling under the general category under the substantive provisions of Sub-section (1) of Section 120-A . It is the validity of this logic that must be tested.

18. It would now be appropriate to point out that there seems to be a theme in the mind of the Legislature in enacting the tenancy laws of the State and amending them from time to time. The basic concept of this social piece of legislation has always been that agricultural land which is natural property is limited and in spite of best human effort this kind of property will always be limited. Agricultural production and its improvement is again a basic necessity for any economy and how best to improve agriculture was the anxiety of the Legislature. They felt that the insecure tenure led to no inducement at all for improved agriculture and it would be appropriate to create security of tenure in the first instance. After having made that experiment and tried it by passing the initial Act, it was then felt that the object of improving agriculture will be better served if the evil of absentee landlords is abolished altogether and the tiller of the soil is made the owner thereof. By amending the two tenancy laws now current in the State in appropriate manner, to tiller's day was envisaged in the western of the part of this State and an appointed day was enacted in the Vidarbha Tenancy Act so as to transfer compulsorily the title of agricultural lands to the tenants on that particular day. The legislative history of the Vidarbha Tenancy Act in that behalf shows that certain small holders of land were initially intended to be protected and their cases were saved from the operation of compulsory transfer of title under the provisions of clause (c) of Section 42. The first appointed day, therefore, was 1st April 1961 when the transfer of compulsory title took place in case of all other lands except those which were saved by the provisions of clause (c) of Section 42. By subsequent enactment even this protection was taken away and 1st of April,1963 was declared as the appointed day for transfer of title of all lands including the lands of the small holders subject to certain rights being given to the small holders to apply within a prescribed period for obtaining those lands or the portions thereof for personal cultivation. When this object was being so implemented, certain restrictions were enacted on the transfers of agricultural lands. Though transfers were not totally prohibited , primarily it was an agriculturist who was entitled to obtain a transfer inter vivos. If the Collector was satisfied that a person who is not an agriculturist desires to go in for agriculture, the Collector was authorised to grant permission for purchase of agricultural land to a non-agriculturist under the conditions which were prescribed. The other restriction that was introduced was that the price of the property must be pre-determined by the Tribunal when the sale is being made by the landlord of his land to the tenant or to other persons in the order of priority as laid down in Section 91. However, experience showed that due to ignorance or otherwise several transactions had taken place in spite of these statutory provisions and in many cases it appeared that agriculturists and tenants had themselves purchased or otherwise obtained transfers in their favour in order to quench their hunger for land.

19. The Legislature, therefore, though that these transactions must be saved. However while thinking in terms of giving of some kind of amnesty to those unlawful transactions, a reservation was enacted by which such of the transfers as would evict the tenant in physical possession or his right to possess and cultivate the land was not to be condoned. That seems to be the object of Section 120-A . The initial idea was to legalise all transactions and some payment of penalty was considered enough and an obligation was created upon the appropriate revenue officers to issue a certificate of validation. The proviso which we are called upon the construe falls under the excepted case where unlawful transaction is not to be legalised or condoned by acceptance of penalty and issuance of a validation certificate.

20. What precisely is , therefore, the scope of this proviso and what was intended by the Legislature in carving out a further exception from the general class of invalid transfers which were to be validated under the substantive part of sub-section (1)? Here again, to us it appears that the Legislature was countenancing a certain objective situation in relation to the land of the tenant. Undoubtedly the only case that was in contemplation was of lands on which there were tenants. Now these tenants could be on the date of the transfer either in physical possession or could be out of possession those the right to possess was still there. The Legislature felt that ordinarily a tenant in cultivating possession would be on the land unless he was unlawfully thrown out. Where the situation was that a tenant in actual possession was thrown out unlawfully and the transfer was being effected as if to pretend that there was no tenant on the land, the legislature provided that in such cases the transfer shall not be legalised. They however, pointed out that if a tenant is thrown out unlawfully, the Tenancy Act has made a provision for him to apply under Sub-section (1) of section 36 within a period of three years from the date of ouster and obtain possession. If a tenant did not choose to take the advantage of those provisions and as if abandoned the land though initially he was thrown out unlawfully, the Legislature did not think in terms of giving him any protection. If , however, the tenant was vigilant in exercising his rights o/c claiming possession under sub-section (1) of Section 36 by applying within the prescribed time, the transfer in the case of such land shall not be validated until after the remedy pursued by the tenant had ended in a certain manner,. If the tenant succeeded and obtained possession, the transfer was not to be validated at all

21. The other case was that the tenant may be in possession but the transfer has been effected as in the present case. We may assume that all cases of transfers may not necessarily b e induced by dishonest consideration. Thereby may be bona fide transfers. However, the intention of the person transferring and the intention of the person receiving benefit under the transfer has not been specifically made the basis of the second proviso. The Legislature thinks that if the transfer --with whatever motive made -- is going to result in the eviction of the tenant, then the very object of the Act being frustrated, the transfer is not to be legalised as it is initially undoubtedly unlawful under the provisions of Section 89 and 91 of the Vidharbha Tenancy Act. The expression used by the Draftsman in the proviso and the placement of the particular clause in this behalf in the second proviso under consideration has undoubtedly created some confusion and difficulty of interpretation. The proviso which we have quoted above, shows that the first case which is provided for is of a tenant who is unlawfully evicted and thereafter immediately there is a reference to the case of a transfer which results in the eviction of the tenant in actual possession. Having referred to both these cases, then follows a clause which requires the revenue officer to defer the validation certificate until after the remedy of sub-section (1) of Section 36 is pursued by the tenant.

22. Taking advantage of the placement of this last clause relating to the remedy to be pursued by the tenant at the end, what is being argued and what also found some favour with the learned Single Judge, is that this clause should be treated as controlling both the earlier cases. If that were to be done, as a next step in the logic it is argued that unless we have a case even under the second part which gives a right to a tenant to apply under sub-section (20 of Section 36, the transfer is not one which results in the eviction of the tenant and is liable to be validated. If a tenant is bin physical possession at the date of the transfer and that was the case which was being provided for, the Legislature did think undoubtedly in terms of eviction which would follow the transfer. If the subsequent eviction after the transfer was the result of that transfer, the Legislature intended to cover such a case and to refuse validation. What exactly is the meaning of the clause results in the eviction '? In the present case what is argued is that the minors who are donees under the gift-deeds have no other property and it is that fact which may lead to their success in the applications under Section 39 read with Section 36 of the Act >If at all eviction results, it is there results of the minors having no other property and it is not the result of the transfer by which the disputed lands have come to the minors. There is an obvious fallacy in this argument. Could minors have ever applied for eviction of these tenants but for the transfers are validated as they are clearly in breach of Section 91, have the minors any valid right under law to apply for eviction unless there is a transfer is legalised or validated the minor have nothing to do with the land in question. If at all they could apply and those applications could result in eviction, that eviction is the direct result of the transfer and nothing else. In our view, therefore, such transactions of transfers as are before us, are undoubtedly covered by those cases for which the Legislature says that the validation should be refused because these transfers may result in the eviction of the tenants. A future event of eviction is in contemplation and that event is the result of the transfer.

23. It is further argued that assuming that this was the meaning to be given to the second clause, how does the replacement of the last clause becomes relevant where the tenant has to apply under sub-section (1) of Section 36 if he is evicted. Where the tenant would be evicted in due course by an order of Tahsildar under Section 36 in an application under Section 39, the tenant would not have a right to apply for restoration of his possession. We think that a closer examination of the draft of this proviso will show that having pointed out the two excepted cases where validation is not to be given only in one case the order of validation is required to be deferred where the tenant is out of possession to enable him to apply under Sub-section (1) of Section 36, and this is the case covered by the first part and not by the second part.

24. It is true thereat all clauses having been put together the draft of this proviso has undoubtedly become clumsy but is certainly not unintelligible and a closer examination would show that the intention of the Legislature can be gathered fairly successfully. There is some inherent indication in the language of the proviso where the case of a tenant in actual possession who has been physically thrown out is alone being considered for the purposes of the last clause. Out of the two types of cases when the first type of case is described, the proviso describes the tenant as one ' in actual possession. Then the reference is that the transfer is made after his unlawful eviction, but while doing so, the expression used by the Legislature is that there is an unlawful eviction of such tenant. The tenant in actual possession, who was thrown out is now indicated by the section expressly as such tenant. Thereafter the second type of cases are described where the transfer may result in the eviction of the tenant in actual possession. Then follows the clause deferring the validation beyond certain time when an application under sub-section(1) of Section 36 is pending. When a reference to that remedy is made in the last clause, the Legislature again revert back to the old expression of such tenant and says that the validation is not to be made unless such tenant' has failed to apply within the time etc. The remedy which is to be pursued under Section 36(1) was confined to such tenant and such tenant is that tenant who has been unlawfully thrown out while he was in actual physical possession and the transfer has taken place subsequent to the event of unlawful eviction . In this manner, we think that if the last clause is meant to govern only the first type of cases and not the second , since the Draftsman had put all these concepts together and has merely uttered them on e after the other, making reference in the last clause applicable to the first type of cases by salient expression such tenant an argument such as is being addressed to us, has become possible . The Proviso or in fact the provisions of section 120-A of the Vidharbha Tenancy Act are identical in words with the provisions of Section 84-A of the Bombay Tenancy Act . A Division Bench of this Court has already construed the provisions of Section 84-A and it is not for the first time that we are called upon to construe these provisions.

25. While doing so in the case of Vishnu Kondiba v. Nathu Mahadev : (1958)60BOMLR1146 the learned Judges have already taken the view that the words result in eviction in the second proviso of Section 84-A of the Bombay Tenancy and Agricultural Lands Act, 1948 mean ' mayor is likely to result in eviction. That precisely is the view which we have taken by interpreting the provisions of Section 120-A of the Vidharbha Tenancy Act which are not only in pari materia but almost identical words to words with the provisions of Section 84-A. The main argument which has led to this reference is that the last clause which deals with the remedy under sub-section (1) of Section 36 available to the tenant is not expressly considered and discussed by the learned Judge while deciding Vishnu's case (cit supra) what is argued of that only those cases where a remedy be available to the tenant should alone be considered relevant for the purposes of neither the first part or the second part daring with the two types of cases where validation has to be refused. It is true that the learned Judges have not discussed the last clause in this perspective. Perhaps no such argument, seems to have been addressed to them. We have gone through the whole report and it appears that such an argument does not seem to have been addressed to the Court at that time. Even after considering the argument which we have above discussed, our view is that the last clause relating to the remedy under Section 36 only relates to that tenant who could take resort to it being unlawfully thrown out. The other case of a tenant who is in physical possession as a tenant on the date of the transfer and who may suffer the consequence of being thrown out because of the transfer is a distinct case which is specifically provided for and protected.

26. This being our view, we think that the judgment in Vishnu v. Nathu (cit supra) represents the correct law and there is not need to reconsider the view already taken by this Court. It would, therefore follow that the final order passed by the Naib Tahsildar, as confirmed by the appellate as well as the revisional authorities being the correct order must be upheld. Though the Collector ultimately rejected the appeals on technical grounds did observe that the transactions were required to be validated. In view of our discussion above, that was clearly an erroneous conclusion. In the view we taken, the petition fail and are dismissed. however, in the circumstances, though the rule is discharged, there will be no order as to costs.

27. Rule discharged.


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