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Phirdosh Sarosh Kothawalla Vs. the State of Bombay - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 75 of 1959
Judge
Reported in(1959)61BOMLR1559
AppellantPhirdosh Sarosh Kothawalla
RespondentThe State of Bombay
Excerpt:
bombay tenancy and agricultural lands act (bom. lxvh of 1948), section 76a-bombay tenancy and agricultural lands (second amendment) act (bom. xxxviii of 1957), sections 23, 34-orders made by mamlatdar or tribunal before coming into force of section 76a whether can be revised under that section.;orders made by a mamlatdar or tribunal before the coming into force of section 76a of the bombay tenancy and agricultural lands act, 1948, cannot be revised under this section. - - in his orders he has stated that he was satisfied that the surrenders of tenancy rights had been made voluntarily and that the petitioner's attorney had deposed that the lands would be taken under personal cultivation. the well settled rule of construction is that unless the legislature has manifested a clear intention..........rights. he also found that the petitioner did not own lands in excess of the ceiling area. he then passed orders for possession of the lands being handed over to the petitioner. in his orders he has stated that he was satisfied that the surrenders of tenancy rights had been made voluntarily and that the petitioner's attorney had deposed that the lands would be taken under personal cultivation. these orders were passed by the tenancy avval karkun in march-april 1957, except in one case, in which it was passed on august 5, 1957. the petitioner subsequently obtained possession of the lands. on november 22, 1957, the assistant collector, purporting to act under section 76a of the act, passed an order, by which he remanded the above cases to the tenancy avval karkun for deciding them 'after.....
Judgment:

H.K. Chainani, C.J.

1. The petitioner is the owner of several lands situate at Changodar. These lands had been leased by him to eleven tenants. On March 19, 1957, the petitioner made 11 applications to the Tenancy Avval Karkun, Sanand, in which he stated that his tenants were willing to surrender their tenancy rights and that orders for possession should be passed in his favour. The Tenancy Avval Karkun inquired into the applications made by the petitioner. He examined the tenants and came to the conclusion that the tenants had voluntarily surrendered their tenancy rights. He also found that the petitioner did not own lands in excess of the ceiling area. He then passed orders for possession of the lands being handed over to the petitioner. In his orders he has stated that he was satisfied that the surrenders of tenancy rights had been made voluntarily and that the petitioner's attorney had deposed that the lands would be taken under personal cultivation. These orders were passed by the Tenancy Avval Karkun in March-April 1957, except in one case, in which it was passed on August 5, 1957. The petitioner subsequently obtained possession of the lands. On November 22, 1957, the Assistant Collector, purporting to act under Section 76A of the Act, passed an order, by which he remanded the above cases to the Tenancy Avval Karkun for deciding them 'after taking into consideration the conditions for termination of tenancies mentioned in Section 31A of the Bombay Tenancy and Agricultural Lands Act'. This order was challenged by the petitioner before the Bombay Revenue Tribunal. The Revenue Tribunal set aside the order passed by the Assistant Collector on the ground that the petitioner had not been heard and remanded the cases to the Assistant Collector for issuing notices to the parties and thereafter passing final orders in them. Against this order passed by the Revenue Tribunal, the present Special Civil Application has been filed.

2. The first question, which arises for consideration, is whether Section 76A can be used so as to revise orders, which were passed before this section was enacted. The section is in the following terms:-

Where no appeal has been filed within the period provided for it, the Collector may, suo motu or on a reference made in this behalf by the Divisional Officer or the State Government, at any time,-

(a) call for the record of any inquiry or the proceedings of any Mamlatdar or Tribunal for the purpose of satisfying himself as to the legality or propriety of any order passed by, and as to the regularity of the proceedings of such Mamlatdar or Tribunal, as the case may be, and

(b) pass such order thereon as he deems fit:

A proviso was added to this section in 1958, but we are not concerned with it in this case. The well settled rule of construction is that unless the Legislature has manifested a clear intention to the contrary, every statute is presumed to be prospective in its effect and is to be so construed as to respect vested rights (see Nilkanth, Ramchandra v. Rasiklal. (1948) 51 Bom. L.R. 280, F.B. In Sudkya Ramji v. Mohammed Isak (1948) 52 Bom L.R. 123 which was a ease under the Bombay Tenancy Act, 1939, it was observed that no statute should be construed so as to have a retrospective operation unless its language is such as plainly to require that construction, and that when the effect of the adoption of what may be called the literal construction would be to take away a Tested right, the Court will be slow to accept such a construction and insist upon its being satisfied that that was the intention of the Legislature. Section 76A was inserted in the Act by Section 25 of the Bombay Tenancy and Agricultural Lands (Second Amendment) Act, Bombay Act XXXVIII of 1957. Section 34 of the amending Act provides that the amendments made in the principal Act by certain sections of the amending Act shall be deemed to have been made and to have come into force on the date on which the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1955, came into force. This section, therefore, gave retrospective effect to certain amendments made in the principal Act by the amending Act of 1957. Section 25 of the amending Act, by which Section 76A was inserted in the principal Act, was, however, not given retrospective effect. It is, therefore, clear that the Legislature did not intend that this section should operate retrospectively. There are also no words in the section, which would indicate an intention on the part of the Legislature to give retrospective operation to this section.

3. Mr. Rane, who appears on behalf of the State, has relied on the words 'order passed by' used in Clause (a). These words are capable of meaning 'an order passed after the section came into force'. The words are not such as would justify an inference that the Legislature intended to reopen cases in which final orders had been already made. On the other hand, as I have pointed out, the fact that Section 25 is not included amongst the sections, which were given retrospective effect by Section 34 of the Amending Act of 1957, would indicate that the section was intended to provide for the future. It cannot, therefore, be used in respect of orders made before the enactment of this section.

4. We are accordingly of the opinion that orders made before the coming into force of Section 76A cannot be revised under this section.

5. In ten applications made by the petitioner, the orders of the Tenancy Awal Karkun were passed in March/April, 1957. In the remaining case it was made in August 1957. All the cases had been disposed of before Section 76A came into force on September 28, 1957. By virtue of these orders, the petitioner had acquired vested rights to the possession of the lands, before Section 76A was enacted. Consequently no action could be taken in respect of these orders under this section.

6. [The rest of the judgment is not material to the report.]


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