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Bapalalbhai Godabhai Kothari Vs. Mali Karsanbhai Pitamberbhai Padhiar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 1008 of 1959
Judge
Reported in(1960)62BOMLR230
AppellantBapalalbhai Godabhai Kothari
RespondentMali Karsanbhai Pitamberbhai Padhiar
Excerpt:
.....notice-whether notice to be given under section 43d(1).; whereas under section 31 of the bombay tenancy and agricultural lands act, 1948, a notice to terminate tenancy for a bona fide requirement of non-agricultural use can be given upto december 31, 1956, in respect of agricultural lands situate within or without the limits of a municipality, after december 31, 1956, such a notice can only be served upon a tenant under section 43d of the act, in respect of lands covered by section 43c of the act.; sections 31 to 31d and section 43d of the act deal with different situations and different time periods. whereas under section 31 a landlord could terminate a tenancy provided he had given a notice under that section on or before december 31, 1956, on the ground of bona fide requirements..........such termination possession of only one half of the land in suit can be awarded to the landlord, a tenancy of land situate within the limits of a municipality can be terminated even after december 31, 1956, provided that the landlord proves his bona fide requirement for a non-agricultural use and provided also that a notice is given which terminates such a tenancy with effect from may 31 of any year and on such termination, notwithstanding section 31b, such a landlord would be entitled to get possession of the entire land. it is true that in a sense sections 31 to 31d are of a general nature in the sense that they deal with all agricultural lands but in contending that section 43d excludes section 31 in so far as lands situate within the municipal limits are concerned, what is lost sight.....
Judgment:

Shelat, J.

1. This Special Civil Application raises a question of some importance on the construction of Section 31 and Section 43D of the Bombay Tenancy and Agricultural Lands Act, 1948.

2. The petitioner is the owner of Survey No. 1244/1 admeasuring 9 acres and 13 gunthas situate within the limits of the Municipal Borough of Palanpur. At all material times, opponent No. 1 was cultivating this land as a, tenant. The petitioner's son is a surgeon. In 1956 he was practising as a surgeon in Baroda and was also working as a honorary surgeon in the Government Hospital at Baroda. He, however, wanted to settle down and start his practice as a surgeon in Palanpur, and for that reason he and his father, the petitioner, wanted to construct a private hospital in the land in question. The hospital building would have occupied a part of the land while the rest of the land was proposed to be utilised for agricultural purposes, viz., a garden attached to the hospital. On November 19, 1956, the petitioner served a notice under Section 31 of the Act stating therein that he required the land partly for personal cultivation and partly for non-agricultural use. The petitioner did not expressly state in that notice that the non-agricultural purpose for which he required the land was for construction of a hospital. In his evidence before the Mamlatdar, however, the petitioner's son clearly stated that, that was the non-agricultural purpose referred to in the notice. As opponent No. 1 failed to hand over possession of the 'land, the petitioner filed the Tenancy Application dated March 29, 1957, before the Mamlatdar of Palanpur. The Mamlatdar, in his order dated April 25, 1958, found that whereas the petitioner's requirement for non-agricultural use had been proved to be a bona fide one, his other requirement viz. for personal cultivation was not established. He, therefore, held that the tenancy so far as the requirement fornon-agricultural purpose was concerned, was rightly terminated and directed that possession of land admeasuring 4 acres and 26 gunthas should be handed over by opponent No. 1 to the petitioner. Aggrieved by this order of the Mamlatdar, opponent No. 1 filed an appeal before the District Deputy Collector, Palanpur. The learned District Deputy Collector, amongst the various issues raised by him, raised the issue, viz., whether the notice issued by the petitioner was bad in law in view of the fact that the land was situated in municipal limits. It was contended before him that the provisions contained in Section 43D of the Tenancy Act were exclusive and independent provisions in respect of lands situate within the municipal limits and, therefore, the notice served by the petitioner being one under Section 31 was not a valid notice. The learned District Deputy Collector, after examining the provisions of Section 31 and Section 43D of the Act, repelled the contention raised on behalf of the tenant and holding that the notice was a valid one, confirmed the order passed by the Mamlatdar. Opponent No. 1, thereupon filed aRevision Application before the Bombay Revenue Tribunal, where also he raised the same contention with regard to the notice as he had done before the District Deputy Collector. The Tribunal, finding that the Revision Application before it could be disposed of on the single issue as to the validity of the notice, did not go into the other issues decided by the Mamlatdar and the District Deputy Collector. The Tribunal came to the conclusion that as the notice was given under Section 31 and not under Section 43D of the Act, that notice was bad and did not, therefore, have the effect of terminating the tenancy of opponent No. 1. On this ground, the Tribunal set aside the order passed by the Mamlatdar and the District Deputy Collector and dismissed the application of the petitioner. The Tribunal, in deciding thequestion as to the validity of the notice, relied upon a Full Bench Decision of the Bombay Revenue Tribunal in Chunilal Padamshibhai v. Patel Purshottam Ambaram, No. T. E.N.B.A. 730 of1958, decided on March 30, 1959, where the same question had arisen and where the Full Bench of the Tribunal had held that where lands are situate within the municipal limits and are required by the landlord for non-agricultural purposes, a notice terminating the tenancy must be given under s.43D(1), the three months' period referred to therein expiring before May 31 of such year. On this reasoning the Tribunal dismissed the application of the petitioner.

3. Mr. Kamat, who appears for respondent No. 1, has also relied upon the Full Bench decision of the Tribunal and has submitted that Section 31 and Section 43D are mutually exclusive, and therefore, the words 'notwithstanding anything contained in Sections 31 to 31D (both inclusive) ', in Section 43D should be construed to mean that Section 43D and not Section 31 applied to a notice given for termination of the agricultural lands situated within the municipal limits and which are required for non-agricultural use. In the Full Bench decision, the Tribunal has observed that the provisions of Chapter III-B containing Sections 43C and 43D are sui generis in terms and are self-contained and special provisions made in respect of lands within municipal and cantonment limits. They referred to their own decision in Keshurdas Dhanji v. Kanbi Mohan where also they had come to the conclusion that Section 31 was a provision of a general nature covering all lands, while Section 43D dealt only with lands within municipal or cantonment limits and that, therefore, it overrode the former on the principle of generalia specialibus non derogant. The Tribunal also held that the words 'notwithstanding anything contained' constituted a non obstant clause, which, according to its literal meaning, amounted to an exception to the rule provided in the provisions connected with that clause, that is, Sections 31 to 31D of the Act. Their conclusion was that the application of Section 31 was excluded by the express provision of Section 43D which lays down that three months' notice of the termination of a tenancy given under the section must expire before May 31 of that year, that the termination of the tenancy must take effect from May 31 in that year, and that in view of this provision in Section 43D which had the effect of overriding Section 31, the notice, if given under Section 31, would not be a valid notice.

4. Mr. Kotwal, who appears on behalf of the petitioner, has on an analysis of Sections 31, 43C and 43D of the Act, challenged the correctness of the Full Bench decision of the Bombay Revenue Tribunal. Mr. Kotwal's contention was that on a proper construction of Section 31 and Section 43D, it is clear that a notice terminating the tenancy, even in respect of lands situate within the municipal limits and for a bona fide requirement fornon-agricultural use, given before December 31, 1956, was a valid notice and that it would be only under Section 31 of the Act that such a notice could be given. He also contended that the conclusion of the Tribunal in this case as also in the case decided by the Full Bench that the notice should be under Section 43D in respect of this class of lands, was not a correct conclusion and was not consistent with the language used by the Legislature in Sections 31 and 43D of the Act.

5. In order to appreciate the contention of Mr. Kotwal, it is necessary to turn to some of the provisions of the Act as they stood prior to the amendments. Under Section 34 of the 1948 Act, a landlord had the right to terminate the tenancy by giving the tenant one year's notice in writing stating therein the reasons for such termination, if the landlord bona fide required the land either for personal cultivation or for a non-agricultural use. Section 88C in that Act, however, excluded the operation of the Act to areas within the limits of Greater Bombay, the Municipal Boroughs of the Poona City and Suburbs, Ahmedabad, Sholapur, Surat and Hubli and also to areas within a distance of two miles of the said municipal boroughs. Under the 1948 Act, therefore, owing to the exclusion of the operation of the Tenancy Act to the areas set out in Section 880, a landlord's right to terminate the tenancy in respect of lands situate in these areas was not restricted as it was in the case of landlords of other lands. His right to terminate the tenancy was an untrammelled right governed by the Transfer of Property Act. It was not necessary for such a landlord to establish the requirements set out in Section 34 of that Act. Then came the Amendment Act (Bombay Act No. XXXIII of 1952) whereunder the areas from which the operation of the Tenancy Act was excluded, were extended. Under the amended Section 88C, the operation of the Tenancy Act was excluded to all areas within the limits of Greater Bombay, the Municipal Corporations constituted under the Bombay Provincial Municipal Corporations Act of 1949, all Municipal Boroughs constituted under the Bombay Municipal Boroughs Act, 1935, as also the limits of cantonments. The result again was that by extending the areas to which the Tenancy Act did not apply, the landlords of lands in those areas had an unrestricted right to terminate the tenancy of their tenants. The Tenancy Act was again amended by Bombay Act No. XIII of 1956. This time Section 88 limited the areas previously excluded from the operation of the Tenancy Act by dropping therefrom lands within the limits of the Municipal Boroughs as also lands used by industrial and commercial undertakings. The consequence of the areas being thus limited was that the lands situate within the limits of the Municipal Boroughs came under the operation of the Tenancy Act and the owners of such lands, if they desired to terminate. the tenancies in respect of these lands had to conform to the requirements laid down in the provisions of the Tenancy Act.

6. The question that arises for our determination is, whether after the Amendment Act No. XIII of 1956 was passed, the lands situate within the limits of the Municipal Boroughs would still be governed by the provisions of Section 31 or not. Sub-section (7) of Section 31 provides that:

Notwithstanding anything contained in Sections 14 and 30 but subject to Sections 31A to 31D (both inclusive), a landlord may, after giving notice and making an application for possession as provided in Sub-section (2), terminate the tenancy of any land (except a permanent tenancy), if the landlord bona fide requires the land for any of the following purposes:-

(a) for cultivating personally, or

(b) for any non-agricultural purpose.

Section 31 thus lays down certain conditions for the termination of tenancy. Section 31B provides that no tenancy shall be terminated in such a manner as would result in leaving with the tenant, after termination, less than half the area of the land leased to him. Section 31C provides that the tenancy of any land left with the tenant after the termination of the tenancy shall not at any time afterwards be liable to termination again on the ground that the landlord bona fide requires that land for personal cultivation. Section 31D provides for an apportionment of rent after the termination of tenancy for land left with the tenant. It will be clear from the provisions of Section 31 that they do not make any distinction with regard to agricultural lands situate within the limits of the Municipal Boroughs and lands situate outside such limits. The section deals thus generally with all agricultural lands wherever situate and provides that a tenancy in respect of such agricultural land can be terminated by a landlord on the two specific grounds set out therein. Sub-section (2) of Section 31 then provides that the notice terminating such tenancy must be in writing, must state the purpose for which the landlord requires the land and must be served upon the tenant on or before December 31, 1956. It also provides that a copy of such notice must be sent to the Mamlatdar, and an application for possession under Section 29 must be made to the Mamlatdar on or before March 31, 1957. These provisions, therefore, make it clear that a landlord has the right to terminate the tenancy provided that he does so by a proper notice as required by this section. The effect of these provisions is also that if he were to fail to give such a notice by December 31, 1956, or to file an application before the Mamlatdar on or before March 31, 1957, the right of such a landlord to terminate the tenancy would come to an end. Sections 32 to 32R contain provisions for the statutory purchase of lands held under a protected tenancy by the tenants. The effect of those provisions is the transfer of rights of ownership of such lands from the landlords to the tenants on certain conditions set out therein. The result, therefore, is that unless a landlord has given a proper notice as required under Section 31 and has filed an application before the Mamlatdar by the prescribed date, the ownership of the lands which were subject to the protected tenancy of a tenant, would shift on to the tenant.

7. It would, however, appear that although the Legislature had limited the areas from which the operation of the Act was excluded under the previous Acts, it was anxious at the same time to see that the ownership of certain lands did not under the Amendment Act XIII of 1956 pass on to the tenants, With that end in view the Legislature inducted into the Tenancy Act as amended in 1956 Chapters III-A and III-B. Chapter III-A containing Sections 43A and 43B contains special provisions for lands held on lease by industrial or commercial undertakings and by certain persons for the cultivation of sugarcane and other notified agricultural produce. Section 43A provides that amongst other sections of the Act, Sections 14, 31 to 31D (both inclusive) and Sections 32 to 32R (both inclusive) are not to apply to the categories of lands specified in that Chapter. The effect of the exclusion of these sections to the lands described in Chapter III-A would mean that a landlord of such lands has the right to terminate the tenancy in respect of such lands and the scheme of the statutory purchase provided for in Sections 32 to 32R does not apply to such lands.

8. Whereas Chapter III-A, containing Sections 43A and 43B, applies to lands held on lease by industrial or commercial undertakings and by certain persons for the cultivation of sugarcane and other notified agricultural produce, Chapter III-B, containing Sections 43C and 43D, deals with lands situate within the limits of a municipality or a cantonment. Section 43C expressly excludes the application of Sections 32 to 32R (both inclusive) and Section 43, that is the new sections, under which protected tenants are deemed to have purchased the lands of which on the tillers' day they were the tenants. It is important to observe that Sections 31 to 31D are not excluded and, therefore, would he still applicable to lands dealt with in Chapter III-B. Similarly, Section 14 also is not excluded. The effect, therefore, is that a landlord of lands falling under Section 43C would still have the Tight to terminate the tenancy on the grounds set out in Sections 14 and 31, as by the exclusion of Sections 32 to 32R, the tenants thereof are not deemed to have purchased these lands as from the tillers' day. Since that is the position with regard to lands covered by Section 43C, the Legislature had to make provision for termination of tenancies with respect to them. Under Section 31, a landlordsubject to the provisions of Sections 31A to 31D, (both inclusive), has the right to terminate the tenancy on the ground of requirement for personal cultivation and for non-agricultural use. But under Section 31, such a notice can only terminate the tenancy provided it is given on or before December 31, 1956, and an application, after such termination, for possession is filed under Section 29 on or before March 31, 1957. It should he observed that Section 31 does not, in terms, exclude from its operation lands which are situate within the limits of a municipality as contended by Mr. Kamat. Therefore, tenancies of all agricultural lands situate within or without the municipal limits can be terminated under Section 31 provided that the requirements of that section are complied with and the notice for termination of tenancy was given on or before December 31, 1956. After December 31, 1956, these lands would be affected by the provisions of Sections 32 to 32R. The lands would thereafter be deemed to have been purchased by the tenants and, therefore, there would be no question of their tenancies being terminated by the landlords. Up to December 31, 1956, therefore, the tenancy of an agricultural land wheresoever situate could be terminated by a notice under Section 31.

9. The question then is what is to happen to tenancies of lands which are not terminated under Section 31 on or before December 31, 1956? The Legislature, by enacting Chapters III-A and I1I-B, has made a distinction between agricultural lands in general and agricultural lands specified in Chapters III-A and III-B. In the case of the former, Section 32 to Section 32R would apply; thetenants are deemed to have purchased them and there is an end to the right to terminate the tenancy in respect of them. But for lands covered by Section 43C in respect of which the applicability of Sections 32 to 32R and 43 is excluded, the Legislature introduced Section 43D which provides that notwithstanding anything contained in Sections 31 to 31D (both inclusive) a landlord may terminate the tenancy of a tenant (other than a permanent tenant) with effect from May 31, of a year by giving the tenant three months' notice in writing, if the landlord bona fide requires the land for a non-agricultural purpose. Thus, notwithstanding the provisions of Sections 31 to 31D whereunder a tenancy could be terminated upto December 31, 1956, only, and where by reason of Section 31B, a landlord could get only one half of the land leased to the tenant, Section 43D gives the right of termination to a landlord even after December 31, 1956, in respect of lands situate within the municipal limits and without the restrictions of Section 31B, though such termination can be made only on one ground, viz., bona fide requirement for a non-agricultural use. It would thus appear that whereas a notice to terminate tenancy for bona fide requirement for a non-agricultural use can he given upto December 31, 1956 under Section 31 in respect of agricultural lands situate within or without the limits of a municipality, after December 31, 1956, such a notice can only be served upon a tenant under Section 43D, in respect of lands covered by Section 43C.

10. Mr. Kamat, however, argued that the words 'notwithstanding anything contained in Sections 31 to 31D'' mean that the two Sections 31 and 43D are mutually exclusive of each other. He relied for this proposition on the dictionary meaning, of the word 'notwithstanding' as in respect of 'despite' or as implying an obstruction etc. He argued that if this meaning were to be given to the word 'notwithstanding' occurring in Section 43D, it would be clear that the two sections would exclude each other and, therefore, a tenancy in respect of lands situate within the limits of a municipality can only be terminated by a notice under Section 43D and not under Section 31 as has been done in this case. Mr. Kamat relied upon the Full Bench decision of the Bombay Revenue Tribunal in Chunilal Padamsibhai v. Patel Purshottam Ambaram, where as stated above the Tribunal held that the words 'notwithstanding anything contained' etc. in Section 43D constitute a non obstante clause which amounts to an exception to the rule provided in Sections 31 to 31D and, therefore, had the effect of overriding Sections 31 to 31D on the principle of generalia specialibus non derogant. Relying on the reasoning in this decision, Mr. Kamat also argued that whereas Sections 31 to 31D contain general provisions, Section 43D deals with specific lands and that, therefore, the latter must prevail.

11. Now, the words 'notwithstanding anything contained in Sections 31 to 31D' occurring in Section 43D would in their dictionary meaning mean 'inspite of what is contained in Sections 31 to 31D.' If that meaning were to be attached to these words, it would mean that in spite of Section 31 having enacted that a tenancy of an agricultural land can be terminated thereunder only if a notice is given on or before December 31, 1956, and an application for possession under Section 29 is filed on or before March 31, 1957, and on such termination possession of only one half of the land in suit can be awarded to the landlord, a tenancy of land situate within the limits of a municipality can be terminated even after December 31, 1956, provided that the landlord proves his bona fide requirement for a non-agricultural use and provided also that a notice is given which terminates such a tenancy with effect from May 31 of any year and on such termination, notwithstanding Section 31B, such a landlord would be entitled to get possession of the entire land. It is true that in a sense Sections 31 to 31D are of a general nature in the sense that they deal with all agricultural lands but in contending that Section 43D excludes Section 31 in so far as lands situate within the municipal limits are concerned, what is lost sight of is that whereas Section 31 deals with the termination of tenancies upto December 31, 1956, Section 43D deals with such termination, though of lands covered by Section 43C only at any time after the Act came into force, that is on and from August 1, 1956. Sections 31 to 31D and Section 43D deal, in our view, with different situations and different time periods. Whereas under Section 31 a landlord could terminate a tenancy provided he had given a notice under that section on or before December 31, 1956, on the ground of bona fide requirement for personal cultivation and for non-agricultural use, he can do so under Section 43D even after December 31, 1956, but only in respect of lands situate within the limits of a municipality and only on the ground of bona fide requirement for non-agricultural use. Section 43D, therefore, does not exclude Section 31 where a notice under Section 31 could be given upto December 31, 1956. In our view, the two sections are not competing with each other nor does Section 31 create any obstacle in the way of the working of Section 43D, for these sections deal with different situations, different time periods and have different consequences. With respect to the learned Tribunal, the view taken by them that the two sections exclude each other, that Section 43D overrides Section 31 and, therefore, a notice given under Section 31 in respect of land situate within the limits of a municipality even prior to December 31, 1956, is not a valid notice, but must be one under Section 43D, is not correct. In our view, the notice given by the petitioners on November 19, 1956, under Section 31 for the reasons aforesaid was a valid notice.

12. The result, therefore, is that we set aside the order passed by the learned Tribunal and remand the case back to it to decide and dispose of the rest of the questions arising in this application according to law and in the light of the observations contained in this judgment. Since the point raised in this application was one of some doubt, the proper order of costs would be that each party should bear his own costs.


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