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Madhav Rao Gajaram Vs. Trimbak Bapu - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSecond Appeal Nos. 1650 and 1651 of 1957
Judge
Reported in(1960)62BOMLR422
AppellantMadhav Rao Gajaram
RespondentTrimbak Bapu
DispositionAppeal Allowed
Excerpt:
.....50, 98a-whether section 47 retrospective in operation.; section 47 of the hyderabad tenancy and agricultural lands act, 1950, is not retrospective. - indian evidence act, 1872 section 24: [v.s. sirpurkar & deepak verma,jj] dying declaration - multiple murders by accused - dying declaration not implicating one accused - evidence of eye witnesses however completely fixing his criminal liability ocular evidence found credible held, absence of his name in dying declaration would be of no help to accused. - it appears that plaintiffs failed to pay the purchase money as provided for by these preliminary decrees, and, thereon, final decrees were passed on khurdad 7, 1351 f. 4. now, it is well-settled that, if an act, if construed retrospectively, affects or impairs the validity of..........was that the decrees were not executable by reason of section 47 of the hyderabad tenancy and agricultural lands act, 1950. the darkhast court rejected all those contentions including the plea under section 47 aforesaid and passed an order for possession in favour of appellant and against respondents. from this, respondents preferred appeals to the district court. all the five pleas were repeated in that court. that court rejected four of those pleas but upheld the plea under section 47 of the hyderabad tenancy and agricultural lands act, 1950. that court held that the civil court was not competent to execute the decrees because the alienations in favour of appellant had become invalid by virtue of section 47 of the hyderabad tenancy and agricultural lands act, 1950. accordingly,.....
Judgment:

Miabhoy, J.

1. In these two second, appeals, the only question, which arises for determination, is whether the Darkhast of appellant-decree-holder is barred by Section 47 of the Hyderabad Tenancy and Agricultural Lands Act, 1950. The facts, which give rise to these two second appeals are almost the same, the only difference in the two appeals being that they refer to different fields. In one appeal, the field involved is survey No. 56 and, in the other, the field involved is Survey No.19.

2. In 1340 F., some persons executed sale-deeds in respect of these two survey numbers. The vendors are represented by respondents in these appeals and the vendee is the appellant. On Meher 4, 1340 F., Bapu, the predecessor-in-title of respondents Nos. 1 and 2 and some others, filed two separate suits to get the sale-deeds cancelled. The trial Court passed preliminary decrees in both the suits. The decrees disallowed the prayer for cancellation of the sale-deeds, but, decreed that, within ten years, plaintiffs were entitled to repay the purchase money and get the lands restored to them; but that, after ten years, the sales should be final. They also provided that during the ten years, plaintiffs should pay interest on the purchase money to defendant, that is, the appellant in this Court, at the rate of 8 annas per cent per month. It appears that plaintiffs failed to pay the purchase money as provided for by these preliminary decrees, and, thereon, final decrees were passed on Khurdad 7, 1351 F. The final decrees were in the following terms:-

Bapu and others, the plaintiffs, are ordered to hand over possession of land (Survey No. 56 in one case and S. No. 19 in the other) situated at Ghat Shenidura Jahagir, Taluka Kannad, to Madhavrao, the petitioner-defendant.

Appellant filed Darkhast applications on 17, Khurdad 1351 F., for possession of the lands. In the meantime, revision proceedings by plaintiffs and the Collector under Section 21 of the Hyderabad Land Alienation Act, had come to be started in respect of these two lands. Therefore, execution of the Darkhasts was stayed. These proceedings, ultimately, terminated on isfandar 3, 1358 f; by orders of the then Hyderabad High Court and the final decrees, dated Khurdad 7, 1351 P., were confirmed. After the termination of these proceedings, appellant filed applications on May 2, 1951 A.D., for recovering possession of the two lands. These applications were resisted by respondents or their predecessors on five grounds. It is not necessary to reproduce all the pleas except one which was that the decrees were not executable by reason of Section 47 of the Hyderabad Tenancy and Agricultural Lands Act, 1950. The Darkhast Court rejected all those contentions including the plea under Section 47 aforesaid and passed an order for possession in favour of appellant and against respondents. From this, respondents preferred appeals to the District Court. All the five pleas were repeated in that Court. That Court rejected four of those pleas but upheld the plea under Section 47 of the Hyderabad Tenancy and Agricultural Lands Act, 1950. That Court held that the civil Court was not competent to execute the decrees because the alienations in favour of appellant had become invalid by virtue of Section 47 of the Hyderabad Tenancy and Agricultural Lands Act, 1950. Accordingly, the learned District Judge dismissed the applications of the defendant-appellant. It is from these appellate orders that the present second appeals arise.

3. The short question for determination is whether the decrees for possession passed in favour of defendant-appellant have become invalid or infructuous on account of Section 47(1) of the Hyderabad Tenancy and Agricultural Lands Act,. 1950, which is as follows:-

(1) Notwithstanding anything contained in any other law for the time being in. force or in any decree or order of a Court, no permanent alienation and no other transfer of agricultural land shall be valid unless it has been made with the previous sanction, of the Collector:

Provided that the Collector may declare a permanent alienation or any other transfer of agricultural land to be valid if the permanent alienation or transfer took place before the commencement of the Hyderabad Tenancy and Agricultural Lands (Amendment) Act, 1954 and possession of the land transferred was given to the vendee before such commencement if application for sanction is made within one year after such commencement.

The proviso to Section 47 was added by the Amending Act (No. Ill) of 1954. Section 47 provides in express terms that no permanent alienation and no other transfer of agricultural land shall be valid unless it has been made with the previous sanction of the Collector. Therefore, the effect of the section is that, if a transfer of agricultural land takes place without previous sanction of the Collector, it is invalid, and this would be so notwithstanding anything contained in any other law for the time being in force or in any decree or order of a Court. Therefore, if the bar of Section 47 applies to the facts of the present case, the fact that civil Courts have passed decrees in favour of appellant will not prevent the bar from being effective. However, the alienations on the basis of which the decrees were passed and the decrees themselves were made long before the Hyderabad Tenancy and Agricultural Lands Act came to be enacted. Therefore, the bar would come into operation only if Section 47 is construed to be retrospective. Therefore, the question of consideration is whether Section 47 is retrospective in operation.

4. Now, it is well-settled that, if an Act, if construed retrospectively, affects or impairs the validity of transactions, which had taken place before it came into operation, the Court presumes, unless there are express or implied words in it showing a contrary intention, that the Legislature intended that the Act should be prospective. Confining one's attention to the main section, it is clear that not only there is nothing in that section, which makes the same retrospective, but, there is internal evidence in the section itself, which shows that the Legislature could not have intended to have given it a retrospective operation. In order that a transfer of agricultural land may validly take place, the Legislature has provided that there must be previous sanction of Collector. Now, in the case of transactions, which had taken place before the Act came into operation, compliance with this requirement of the section was altogether impossible. The transactions having taken place before the Act name into operation, it was impossible for the vendees to have obtained the previous sanction of Collector in respect of those previous transactions. Is there anything in the proviso which expresses a contrary intention? That proviso gives one year to vendees to obtain sanction of Collector in respect of past transactions. The words used in the proviso, at first sight, appear to include not only transactions, which had taken place between June 10, 1950 when the Act came into operation and the date on which the amending Act of 1954 came into operation, but also transactions which had taken place earlier than June 10, 1950. But there is a cogent reason for not construing the proviso in this wide manner. The usual function of a proviso is to take out something, which is provided for in the main section and which, but for the proviso, would have fallen within it. Without the proviso, all unsanctioned transactions, which had taken place between the commencement of the main Act and the commencement of the amending Act of 1954, were invalid. The object of the proviso appears to be to give an opportunity to vendees of such transactions to get them validated. The enactment of the proviso cannot be regarded as an expression of a posterior intention that the main section shall be retrospective. The object appears to he only to provide for validating transactions which had taken place before 1954 and does not appear to be concerned with the question as to whether the main section should be retrospective. If the section had been intended to have a retrospective operation, a greater probability is that the Legislature would have provided for such an opportunity at the time of the enactment of the main Act itself. In my judgment, this proviso does not express an intention on the part of the Legislature that the main enactment should be given a retrospective effect.

5. When the Legislature enacted the proviso aforesaid, it also substituted the present Section 50 for the old Section 50. That Section 50 now reads as follows:-

The restrictions imposed by Sections 47, 48 and 49 shall not apply to-

(a) a permanent alienation or transfer of agricultural lands made with the previous permission of the Collector for any non-agricultural use;

(b) registered sales of agricultural lands before the commencement of this Act; (c) agreement to sell agricultural lands entered into before the commencement of this Act, if possession of the lands had been transferred to the vendees before such commencement in pursuance of such agreements.

Clause (6) in this section, at first sight, might be read as expressing by implication an intention of the Legislature that transactions other than registered sales were intended to be covered bys. 47. But Section 50 only takes away from the purview of the three sections mentioned therein the restrictions imposed by those sections. The section is intended to apply only to restrictions imposed by the three sections and not to anything else which is contained in them. Each of these three sections contains a restriction or a series of restrictions on the rights of vendees and the power of Collector. For example, by the proviso aforesaid in Section 47, the power of validating a transaction, which had taken place after the commencement of the Act and before the amending Act of 1954 came into operation, was circumscribed by a period of limitation: it having been laid down that such a power should be exercised only if an application comes to be made within one year from the latter commencement. It is this restriction, which has been dealt with by Section 50 and not any other part of the section. Similarly, Sections 48 and 49 contain certain restrictions on powers of Collector. For example, Section 48 states that Collector shall not sanction an alienation or transfer if the area of the land held by the alienor or transferor after the alienation or transfer would be less than a family holding as determined under Section 4 for the local area concerned. Section 49 also imposes similar and other restrictions on powers of Collector, Therefore, so far as Section 50 is concerned, in my judgment, it also does not, by implication, express an intention on the part of the Legislature to give retrospective effect to Section 47.

6. There is one section, which indicates the intention of the Legislature that Section 47 was not intended to be retrospective, and that is Section 98A, which was introduced by the Bombay Amending Act (No. XXXII) of 1958. This section validates all transactions, which had taken place betweenJune 10, 1950, and certain other dates, if certain conditions are fulfilled. The effect of the introduction of Section 98A was that transactions, which took place after the commencement of the Act, were validated if certain penalties were paid. If Section 47 was intended to be retrospective in operation, then, the Legislature would have also provided for validation of transactions which had taken place before the commencement of the Act, on payment of similar penalties.

7. For the above reasons, I am not in agreement with the view taken by the learned District Judge that Section 47 was retrospective in operation and that the decrees in the present case could not be executed on the ground that they offended Section 47 of the Act. In my judgment Section 47 is not retrospective.

8. Both the appeals succeed and are allowed. The orders of the first appellate Court are set aside and those of the Darkhast Court are restored. Respondents in each appeal shall pay the costs of the appellant.


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