J.B. Mehta, J.
1. The Petitioners tenants who were in actual possession of the land in question have filed this Petition as their application under S. 32-PP of the Bombay Tenancy and Agricultural Lands Act. 1948. hereinafter referred to as 'the Act' which was made an May 29. 1971 along with the stay application against the order of surrender in landlord's favour under Section 32-P(2) was held to be incompetent and the stay application had been rejected on that ground.
2.The short facts which have given rise to this petition are as under :-
The petitioners tenants' purchase of the land in question was declared ineffective by the order of the A. L. T. on March 8. 1964. Thereafter the order of disposal of this land under Section 32-P(2) was made by surrendering to the landlord on August 20.1969. and that order was finally confirmed by this Court. Meanwhile Section 32-PP having been enacted with effect from December 29. 1965. the petitioners exercised their option to purchase this land by making an application under Section 32-PP on May 29. 1971. and in the same application asking for stay of the order of handing over possession to the landlord. The Mamlatdar without giving any hearing to the petitioners by a mere letter at Annexure A rejected this application on the ground that the petitioners had no rights to purchase the land under Section 32-PP and, therefore. no stay order could be granted. In appeal. the Dy. Collector by the order. dated September 23. 1971. at Annexure B held that such a reply of the Mamlatdar was clearly in contravention of the principles of natural justice. He however. confirmed this order on the sole ground that in view of the settled legal position as laid down by this Court in Sp. C. A. No. 1441/1970 decided on March 3. 1971. once the order of disposal was passed under Section 32-P(2). even though actual possession may not have been taken. the land must be considered to have been disposed of. In view of that settled level position. Meanwhile under Section 32-PP was clearly incompetent. Thereafter the Revenue Tribunal by the order at Annexure C dated June 29. 1972. has confirmed these orders on the very same ground. Therefore. the petitioners have filed this present petition. The stay order which had been obtained by the petitioners has been continued even by this Court by granting interim relief on November 10. 1972. Therefore. the petitioners have remained in possession of the land in question. No affidavit in reply has been filed by the landlord. This matter has been referred to the Division Bench by Divan. J. (as he then was) as he was unable to agree with my decision in Sp. C. A. Nos. 324-325/67 decided on July 31. 1970. where I had taken the view as regards the second condition in Section 32-PP(1) as covering cases of actual disposal by one of the two alternatives: (1) by surrendering to landlord; or (2) by sale to the priority holder distinguishing the earlier decision on facts. The question of resolution of this conflict no longer survives because the legislature has now retrospectively given an explanation to Section 32-PP after sub-section (5) as under :-
'Explanation:- Notwithstanding any thing contained in any judgment. decree or order of any Court tribunal or other authority for the purpose of clause (ii) of sub-section (1) the land shall not be deemed to have been disposed of till the person entitled to take possession of the land in pursuance of any direction issued under sub-section (2) of Section 32-P takes actual possession of such land in accordance with law.'
This amendment was introduced by Gujarat Act No. 5 of 1973 and it came into force on the specified date March 3. 1973 So far as this explanation is concerned. the legislature has given retrospective effect by adding that the explanation 'shall be and shall be deemed always have been added.' The legal effect of these words is well settled after their Lordships' decision in M. K. Venkatachalam v. Bombay Dyeing and Mfg. Co. Ltd. AIR 1958 SC 875. where an identical question had arisen before their Lordships as to whether an assessment which had been as per the law in force could be said to be vitiated by mistake apparent on the record merely because the law was retrospectively changed by the legislature. At page 880 their Lordships pointed out that prima facie it would appear somewhat strange that an order which was good and valid when it was made should be treated as patently invalid and wrong by virtue of the retrospective operation of the Amendment Act. Their Lordships however held that such a result is necessarily involved in the legal fiction about the retrospective operation of the Amendment Act. If as a result of the said fiction we must read the subsequently inserted proviso as forming part of the principal Act on the relevant date. The conclusion is inescapable that the order in question is inconsistent with the provisions of the said provision and must be deemed to suffer from a mistake on the record. Therefore when the legislature stated that the explanation shall always be deemed to have been added to the relevant law and the effect is given to the explanation. notwithstanding anything contained in any judgment of any Court it is obvious that this must be treated as the state of law at the date, when the authorities erroneously decided that question as to whether the land was disposed of merely by an order under Section 32-P(2). In view of this settled legal position it must be held that the authorities' orders suffer from an error Patent on the record because of this retrospective change of the law and this question could only be decided in the light of the explanation now added by the legislature. Such a retrospective amendment of law would immediately disclose Patent error in the decision of the authorities in view of the aforesaid settled legal Position.
3. The next question which is urged by Mr. Vakharia is as to the extent of this retrospective operation of this explanation. In order to consider this question we would have to analyse the relevant scheme of this benevolent amendment which has been enacted to see that such tenants' rights were restored in cases where the deemed Purchase on the tillers' day April 1. 1957. was declared to be ineffective under Section 32-G(3) by reason of the tenant failing to appear before the Tribunal or machine a statement expression his unwillingness to purchase the land and the land had not been disposed of in the manner specified: Section 32-PP(1) runs as under: -
'Notwithstanding anything contained in Sections 32-G and 32-P where before the date of the coming into force of the Bombay Tenancy and Agricultural Lands (Gujarat Amendment) Act. 1965. (hereinafter referred to in this section as 'the said date')-
(i) any land has been at the disposal of the Collector under Section 32-P on account of the Purchase of the land by the tenant thereof having become ineffective under sub-section (3) of Section 32-G by reason of the tenant failing to appear before the Tribunal or making a statement expressing his unwillingness to purchase the land. and.
(ii) the land so at the disposal of the Collector has not been disposed of in the manner Provided in sub-section (2) of Section 32-P.
the tenant if he is willing to Purchase the land may make an application in writing to the Tribunal within a Period of one year from the said date for a declaration that the purchase has not become ineffective'.
Under clause (2) on receipt of such an application under sub-section (1) the Tribunal had to issue a notice to the tenant and the landlord calling upon them to appear before it on the date specified in the notice Under sub-clause (3) if the tenant appeared and made a statement that he was willing to purchase the land the land shall cease to be at the disposal of the Collector under Section 32-P and the Tribunal shall determine the Purchase price of the land in the manner provided in Section 32-G as if the purchase had not been ineffective. Under sub-clause (4) the provisions of Sections 32 to 32-P and Sections 32-Q and 32-R shall so far an may be applicable app1y to the purchase of the land by a tenant. Sub-clause (5) which is material provides as under:-
'In the case of land to which this section applies no action shall be taken under S. 32-P unless the tenant entitled to make an application under this section fails to make such application within the period specified in sub-section (1).'
4. Therefore. Section 32-PP operated notwithstanding anything contained in Sections 32-G and 32-P. if Section 32-PP application was made by the tenant within the period of one year from the date of coming into force of the Bombay Tenancy and Agricultural Lands (Gujarat Amendment) Act. 1965. which came into force on December 29. 1965. provided two statutory conditions were fulfilled:- (1) that before the said date 29-12-1965. the land had been at the disposal of the Collector under Section 32-P on account of the purchase of the land by the tenant having become ineffective under sub-section (3) of Section 32-G by reason of the tenant failing to appear before the Tribunal or making a statement expression his unwillingness to purchase the land. and (2) the .land so at the disposal of the Collector had not been disposed of in the manner Provided in sub-section (2) of Section 32-P. As this benefit was given only for a period of one year from December 29. 1965. the legislature by further amendment by Bombay Tenancy and Agricultural Lands (Gujarat Amendment) Act. 1965 which came into force on April 18 1971. substituted this 1970 Amendment for the 1965 Amendment Act in sub-section (1). by enacting sub-section (1-A) Permitting this right to be exercised within one year from the said date April 18. 1971. if on account of Purchase becoming ineffective under Section 32-G(3). such land had been before 29-12-1965. at the disposal and had not been so disposed of under S. 32-P(2). Sub-section (1-B) was also added providing that where an application for a declaration that the purchase had not become ineffective made by a tenant under sub-section (1) before this Amendment Act of 1970 was not admitted by the Tribunal on the ground that the Period for making it had expired such tenant shall also be entitled to exercise the right conferred under sub-section (1) by making an application within the period specified i.e.. April 18. 1971. and on receipt of an application from any such tenant the Tribunal had to admit it. as if it had been an application made within the specified Period. Thereafter sub-clause (1-C) was added by Gujarat Amendment Act No. 5 of 1973 which came into force from March 3. 1973. It enacted that notwithstanding the expiry of the period specified in sub-section (1) read with sub-section (1-A). the right confer red under sub-section (1) may be exercised at any time before 31st December. 1973: and the amendment Act No. 7 of 191A has further extended this Period upto December 31. 1974. That is why sub-clause (1-D) was also added on a line with sub-clause (1-B) by providing that where an application for a declaration that the Purchase had not become ineffective was made under sub-section (1) by the tenant before the specified date but was not admitted by the Tribunal on the ground that the Period had expired. such tenant shall also be entitled to exercise the right conferred under sub-section (1) by making an application at any time be fore December 31. 1973. which is now extended to December 31. 1974. and on receipt of such an application the Tribunal shall admit it as if it were an application made within the period specified for making it. Therefore even though the tenants have been given a fresh opportunity even upto December 31. 1974 by this amendment in cases of those tenants who had applied to the Tribunal under sub section (1) but their application was not admitted on the ground that the period had expired they have got the whole period retrospectively extended by the deeming fictions in sub-sections (1-B) and (1-D) that the application made upto December 31. 1974. shall be treated as if it were made within the Period specified for making it under sub-section (1). No such fiction exists in the case of other tenants who had not made any such application but who are given only a concession to exercise this option at any time before 31st December. 1974. Similarly. new Section 32-PP has been added which is on the same lines as Section 32-PP. but which covers even those cases where on account of such Purchase having become ineffective under Section 32-G(3) the land had been at the disposal of the Collector and was not so disposed of under Section 32-P(2) on or after the date of the coming into force of the Bombay Tenancy and Agricultural Lands (Gujarat Amendment) Act. 1965. i. e. December 29. 1965. Therefore in all cases where the purchase had become ineffective under Section 32-G(3) and land was at disposal of the Collector under Section 32-P before December 29. 1965. or after December. 29. 1965. these two sections (Ss. 32-PP and 32-PPP) have given a further opportunity to the tenants to Purchase the land by exercising their right at any time be fore December 31. 1974. by applying to the Tribunal. if it had rot been disposed of. As earlier Pointed out. the only difference in cases of those applicants who had already gone to the Tribunal but whose ai3vlications were rejected on the around that the Period had expired. their right is revived without any hiatus by the deeming fiction in sub-sections (1-B) and (1-D). that their applications shall be deemed to have been made within the Period Prescribed in Section 32-PP(1). Such a Provision was not necessary in the scheme of Section 32-PPP as the right to apply was from the commencement given and extended till December 31. 1972 for lands which came for disposal under Section 32-P on or after 29-12-1965. The other salient feature of the scheme is that in the case of a land to which this Section 32-PP or 32-PPP applies no action of disposal could be taken under Section 32-P unless the tenant entitled to make an application failed to make the same within the Period specified in subsection (1). So far as the original Section 32-PP was concerned this Period specified had changed from time to time and due to the gar) which had been from December 29. 1965 to April 18. 1971. between the two Amendment Acts. of 1965 and 1970. the retrospectively had been given only in cases where the application had been made and was rejected on the ground that time had expired by enacting the necessary fiction in sub-sections (1-B) and (1-D) of Section 32-PP. Therefore the Prohibition in Section 32-PP(5) would apply where that necessary fiction as to original Period specified in Section 32-PP(1) applies and not in other cases of fresh applicants till 31-12-1974. even if the disposal action was already taken under Section 32-P.
5. The further explanation has now been added. The second relevant condition in the scheme of these two Sections 32-PP and 32-PPP was that the land so at the disposal of the Collector had not been disposed of in the manner Provided in Section 32-P(2). The legislature had therefore made the retrospective amendment in Section 32-PP by declaring in this explanation that till actual possession was according to law taken the land shall not be deemed to have been disposed of notwithstanding anything contained in any judgment decree or order of any Court. Tribunal or other authority for the purposes of exercise of this right of Purchase under Sections 32-PP(1)(ii) or 32-PPP (1) (ii). Therefore mere order of disposal by surrendering to the landlord or by sale to the priority holder would not be deemed to be disposal in view of this explanation. The legislature has. however while amending the law retrospectively by this explanation further provided a limit on this fiction by enacting that the land would not be deemed to have been disposed of only till the Person entitled to take possession of the land in Pursuance of any contract under Section 32-P(2) takes actual possession of land in accordance with law.
6. It is this fetter on the fiction which has been the subject of serious controversy between the parties. Mr. Vakharia vehemently argued that the legislature has not only got over the effect of the decision of this Court holding that the land must be considered to have been disposed of when the order was passed under S. 32-P(2) even though actual possession may not have been taken but the explanation goes much further by fully restoring the lost rights because it contemplates the point of time when actual possession is taken in accordance with law by the person entitled to take possession. Mr. Vakharia. therefore pointed out that as S. 32-PP(5) or S. 32-PPP (5) enacts a prohibition that no action shall be taken under Section 32-P unless the tenant entitled to make an application fails to make the same within the period specified in sub-section (1). it is obvious that during this entire extended period till December 31. 1974. the land could not be deemed to have been disposed of even though after the order of disposal even actual possession had been taken in execution of that order because taking of such possession was plainly in violation of this statutory fetter created by sub-section (5). Mr. Shah on the other hand rightly pointed out that the legislature would never have unsettled those cases where actual possession was taken in accordance with law while living fresh opportunity by extending the period even upto December 31. 1974 to such tenants for fresh purchase. The key to the resolution of this conflict lies in the proper appreciation of the relevant scheme which has been adopted by amending this provision from time to time. As earlier pointed out the legislature itself has given retrospective effect to the extension of this specified period by covering the time gap between the two amendments of 1965 and 1970 by providing sub-section (1-B), and similarly. sub-section (1-D) when 1973 amendment came into force. These cases have been confined by the legislature to those tenants who had applied under Section 32-PP but whose application was not admitted by the Tribunal on the ground that the period for making the application had expired and. therefore the benefit of the extended period was given retrospectively to such applicants by the deeming fiction that the application made as per sub-section (1-B) or subsection (1-D) shall be treated as if it was made within the specified period. If fresh application was deemed to have been made within the original specified period by such retrospective fiction. it is obvious that the prohibition created by sub-section (5) would apply to these cases even when action was already taken under Section 32-P(2) by making the order or by executing the order by handing over actual possession. on the aforesaid settled legal position in the Bombay Dyeing case. Therefore in such cases. only the legal fiction created by the explanation. as supplemented by the other fiction would mean that the land could not be deemed to have been disposed of by the purported fiction under Section 32-P which was not in accordance with law. even if it attempted to deprive the tenant of his actual possession. Therefore. in such cases application under Section 32-PP would be clear1y competent as the second condition would be clearly deemed to be fulfilled by resort to -these two fictions enacted by sub-sections (1-B) and (I-D) and by the explanation. notwithstanding any purported action under Section 32-P(2).
7. In other cases however where the benefit of a mere concession accrued and got extended because of the further amendment under sub-section (1-C) and by the amendment Act No. 7 of 1974 extending this right up to December 31. 1974 the legislature has not given further retrospectives by creating a fiction that such later application was also deemed to be an application made within the period specified for making it. Therefore. in these cases if the tenants had not made any such prior application but had applied for the first time so that their cases did not come under sub-sections (1-B) or (1-D) they would get only benefit of the legal fiction enacted by the explanation. In this case the land would not be deemed to have been disposed of only till the person entitled to take possession takes actual possession of the suit land in accordance with law. Therefore they would have benefit only of this salutary fiction that even though the order may have been made or paper possession may have been sought to be taken away if actual possession has remained with the tenant in spite of the order under Section 32-P(2) or if the possession has not been taken in accordance with law the second condition would be deemed to be fulfilled notwithstanding the passing of the order under See. 32-P(2) of disposal of the land and notwithstanding anytime contained in any judgment decree or order of any Court. Tribunal or any other authority.
8. Mr. Shah in that context further relied on Section 32-P(7)(a) which provides that where before the specified date any land has been surrendered to a landlord under sub-section (2) of this section as in force immediately before such date and the landlord has taken possession of the land the landlord shall be liable to cultivate the land personally and shall be entitled to the use and occupation of the land so long as he cultivates the land personally and (b) if he fails to so cultivate the land he shall be evicted from the land and the land shall be disposed of in accordance with the Provisions of S. 84-C. That Section 32-P(7) merely enacts that where the landlord had taken possession of the land lawfully before this specified dais March 3. 1973. under a surrender under sub-section (2) of Section 32-P as it was in force before that date the landlord has a liability to put that land on1y to personal cultivation and he is entitled to suck use so long as he fulfils that condition as otherwise he would be liable to be evicted under Section 84-C. That Section 32-P(7) so provides because before this Section 32-P(2)(b) provided surrender of land to the landlord as one of the modes of disposal was deleted by 1973 amendment such surrender was a lawful surrender as per law in force but the landlord had to use that land on the condition of personal cultivation as provided therein. Such lawful surrender would be only in those eases where them was no prohibition under Section 32-PP(5) i.e.. cases where person' rights were mot retrospectively restored by treating their application as if made within the original period specified in Section 32-PP or where the application under Section 32-PP or under Section 32-PPP was not made before actual disposal was made by delivery of possession to the person entitled as per law within the meaning of the examination so as to attract the Prohibition in Section 32-PP(5) or Section 32-PPP (5), Besides Section 2 (18) (d) now includes in the definition of a tenant a Person who after the surrender of tenanted in reaped of any land at any time after the anointed day June 15. 1955. or before the secured date i.e. March 3. 1973 has continued or is deemed to have been in actual possession with or without the consent of the landlord. It is such tenant who is also given under Section 32-FF the right to be a deemed purchaser. That is why Section 84-CC (1) further provided that where any person who had surrendered his tenancy in respect of any land or part thereof at any time after Mardi 31. 1957. but before December 5. 1972 when this Bill of 1972 was Published. and had continued to remain in actual possession with or without the consent of the landlord had been dispossessed by the landlord at any time during the period between December 5. 1972 and March 3. 1973. he can apply to the Mamlatdar and even the Mamlatdar can suo motu restore his possession if he finds that the possession was effected in anticipation in order to defeat the right purchase section 32-FF. Therefore the whole scheme of 1973 Amendment is to. give this right purchase to the tenant who had remained in actual possession notwithstanding that there had been some order under Section 32-P or an attempt to disposes him by taking only paper possession. The whole test treated by the legislature in this explanation that land is not deemed to be disposed of till actual possession is taken under the lawful direction issued, under Section 32-P(2) by the person entitled in accordance with law. Therefore. if dispossession was not in accordance with law by ignoring of fetter of sub-clause (5). either because of retrospectively created by the supplementary fiction in sub-sections (1-B) and (1-D) of Section 32-PP which restored the rights without any hiatus, or because the said mandate was violated by any further action purporting to give actual possession after the person entitled had actually applied under Section 32-PP or 32-PPP within the extended period during the pendency of such applications. or for any other reason or if the actual possession had continued with the tenant the second condition by rewording to this explanation would be deemed to be fulfilled notwithstanding the passing of the order under Section 32-P(2). and the application under Section 32-PP would be maintainable.
9. In that view of the matter applying the aforesaid test to the Primary facts of the present case that the purchase had become ineffective on March 8, 1964 and that the right under See. 32-PP was sought to be exercised by making application in question to the Mamlatdar on May 29. 1971. where a further praver was made in the application in, stay the order of possession. once that application was made by the tenant. the prohibition in Section 32-PP(5) clearly got attract and thereafter the aforesaid order of disposal under Section 32,P (2) dated August 20. 1969. could never be executed by further action on the part of the Mamlatdar. Therefore even if we were to assume that an attempt was made to dispossess the petitioners after their application under Section 32-PP on May 20. 1971. it would be in violation of the mandate of Section 32-PP(5) and the petitioners would be deemed to will the second condition as land continued to remain at disposal of the Collector and was not actually disposed of by delivery of possession in accordance with law to the Person entitled. In fact in the order of the Deputy Collector. it is in tarnish stated that even the Special Secretary who was first moved had given stay on June 2. 1971. Even this Court has watched the petitioners by granting complete interim relief by restraining the respondent from taking or recovering possession of the suit land from the petitioners or in any manner disturbing the possession of the petitioners. Therefore, the Prohibition of sub-clause (5) of Section 32-PP being in operation no question could arise of dispossession of the petitioner. Therefore the petitioners being in actual possession their application under Section 32-PP. in view of the retrospective amendment in law by the explanation added to Section 32-PP was clearly competent.
10. Mr. Shah. however raised a technical contention that the Revenue Tribunal had no jurisdiction because the order under Section 32-P was sought to be stayed and the stay application having been rejected appeal could have been filed before the State Government Mr Shah ignores the relevant fact that the question of stay was only an incident question while the substantial praver was the application under Section 32-PP for exercising the right as deemed purchaser by availing of the fresh opportunity after the first Purchase was declared ineffective on March 8. 1964. Therefore. the Revenue Tribunal alone had the jurisdiction and not the State Government. Therefore even if infructuous proceeding before the State Government was withdrawn by availing of this remedy before the Revenue Tribunal is could never be urged that the Revenue Tribunal had no jurisdiction. That is why no such plea of want of jurisdiction was ever raised. In fact. no affidavit has been filed by Mr. Shah and he on1y wanted to produce evidence showing that the proceeding before the Government was ultimately withdrawn. That would be wholly immaterial because it was on1y he Revenue Tribunal which had the jurisdiction to decide whether See. 32-PP application was maintainable and the question of stay was only consequential.
11. Mr. Shah next wanted to rely on the fact that there was a paper Panchnama of delivery of possession by the Tualatin on June 1. 1971 and he wanted an opportunity to produce that document. In fact at no stage any affidavit has been filed and even interim relief was never opposed. Besides as earlier pointed out by us. the application having been filed an May 29. 1971. under Section 32-PP. prohibition under clause (5) of See. 32-PP was fully attracted and thereafter it would never be open to the Mamlatdar to take further action to enforce the order dated August 20. 1969. under Section 32-P(2) in any manner.
12. Mr. Shah however. vehemently argued that he had not filed any affidavit because the lower authorities had decided the whole question on the basis as of the existing legal position. The existing legal position was changed by retrospective amendment by the present explanation. Therefore the respondent landlord must be given fresh opportunity for showing whether he had dispossessed the petitioners by that paper Panchnama on June 1. 1971. In this case no such question of remand would arise because the petitioner contention that possession all along continued was never challenged. This averment in para. 3 of the petition has remained uncontroversial and even the interim relief has not been opposed. Even before the authorities this position was never challenged as it is amole borne out from the various statements made in the relevant order. Besides. in any event, as pointed out by us. once the application was made on May 29. 1971. categorical prohibition of sub-clause (5) of Section 32-PP was clearly attracted. and thereafter even if the Mamlatdar purported to implement the order under Section 32-P(2). the alleged dispossession would not be dispossession in accordance with law. Therefore. even in that case. the explanation would clearly protect the petitioners. Therefore we have not allowed Mr. Shah any opportunity to Produce the allured document of the Panchnama of June 1. 1971. or the withdrawal pursis of the proceedings before the Special Secretary on August 20. 1971. and we do not think that any useful amuse would he served by a remand in view of the aforesaid legal position and when in fact. all along the petitioners have continued in actual possession. Therefore. the petitioners having fulfilled the necessary statutory conditions. their application under Section 32-PP was Cleary maintainable. In that view of the matter. all the three impugned orders must be set aside and the matter shall now go back to the A. L. T. for expeditious disposal of this application under Section 32-PP dated May 19. 1971. and the landlord shall be restrained from interfering in any manner. with the possession of the petitioners of the land in question by reason of the aforesaid direction under Section 32-P(2). Rule is according made absolute with no order as to costs in the circumstances of the case.
13. Rule made absolute.