Skip to content


Bapubhai Lunvir Vs. R.B. Mehta, President, Guj. Revenue Tribunal and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Judge
Reported in(1967)8GLR110
AppellantBapubhai Lunvir
RespondentR.B. Mehta, President, Guj. Revenue Tribunal and ors.
Excerpt:
- - it is well-known that, when an authority has been given power to decide or determine something, it has an implied power to decide, not only that something, but also incidental and subsidiary matters which will enable it to decide the principal matter in regard to which authority-is conferred. but, apart from this, in our judgment, there are a number of good reasons why it is not possible to hold that section 6 has any bearing on the question of the determination of the land deemed to have been purchased by the tenant under the tenancy act. subject to this, the rest of the order passed by the collector remanding the question about the status of the tenants as to whether, they are permanent or protected tenants, stands and the lands tribunal will proceed to determine that question.....n.m. miabhoy, c.j.1. petitioner, bapubhai lunvir, first filed special civil application no. 472 of 1962 against ten respondents. the first respondent is the gujarat revenue tribunal (hereafter called the revenue tribunal). the second respondent is the state of gujarat. respondents nos. 3 to 10 were, at the material time, the tenants of petitioner. subsequently, petitioner filed special civil applications nos. 618 to 624 of 1962, one against each of respondents nos. 4 to 10 and joining the first two respondents also in each of those petitions as respondents nos. 1 and 2. as a result of the filing of the eight writ petitions, petitioner has not paid the process fee for service on respondents nos. 4 to 10 in the first writ petition. therefore, the names of respondents nos. 4 to 10 will have.....
Judgment:

N.M. Miabhoy, C.J.

1. Petitioner, Bapubhai Lunvir, first filed Special Civil Application No. 472 of 1962 against ten respondents. The first respondent is the Gujarat Revenue Tribunal (hereafter called the Revenue Tribunal). The second respondent is the State of Gujarat. Respondents Nos. 3 to 10 were, at the material time, the tenants of petitioner. Subsequently, petitioner filed Special Civil Applications Nos. 618 to 624 of 1962, one against each of respondents Nos. 4 to 10 and joining the first two respondents also in each of those petitions as respondents Nos. 1 and 2. As a result of the filing of the eight writ petitions, petitioner has not paid the process fee for service on respondents Nos. 4 to 10 in the first writ petition. Therefore, the names of respondents Nos. 4 to 10 will have to be struck off in Special Civil Application No. 472 of 1962. The result is that, we have now a group of eight petitions in which petitioner Bapubhai Lunvir is the common petitioner and respondents Nos. 1 and 2 in the first writ petition will also figure as common respondents in the rest of the petitions. Each of respondents Nos. 4 to 10 figures as respondent No. 3 in each of the aforesaid other petitions respectively. All these petitions arise from a common order passed by the Revenue Tribunal on 23rd April 1962. The facts of each of the petitions are similar, and the questions of law which arise for determination in all the petitions are the same. Therefore, with the consent of learned advocates on both sides, we have beard a common argument and this common judgment will dispose of all the eight petitions.

2. Petitioner was the owner, before 1st April 1957, of lands situated in the village Dungri, Taluka Mithapur, District Amreli. Respondent No. 3 in each of the petitions was a tenant of petitioner in respect of some of those lands. Petitioner will be described as the landlord and all respondents Nos. 3 in all the petitions will be described as tenants in the rest of this judgment. After 1st April 1957, (hereafter called the tillers' day), the Agricultural Lands Tribunal (hereafter called the Lands Tribunal) issued notices to the landlord and tenants under Section 32G of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereafter called the Tenancy Act). The tenants appeared before the Lands Tribunal and expressed willingness to purchase the lands deemed to have been purchased by them under Section 32 of the Tenancy Act. However, there was a dispute between the landlord and the tenants regarding the tenants' actual status. The tenants contended that, they were permanent tenants, whereas the landlord contended that they were only protected tenants. Before the Lands Tribunal, a question also arose about the quantum of the lands which the tenants were to be deemed to have purchased. The Lands Tribunal entered into a determination of both those questions. It came to the conclusion that, the tenants were only protected tenants. It also came to the conclusion that, the tenants were holding lands on the tillers' day more than the ceiling area prescribed by the Tenancy Act and, therefore, each of them was in possession of surplus land which he was not entitled to purchase and which land was to be disposed of as directed in Section 32R of the Tenancy Act. After determining the aforesaid two questions, the Lands Tribunal addressed itself to the question of determination of the purchase price of the land, and fixed the same. A common order was passed by the Lands Tribunal on 5th June 1960, incorporating all the aforesaid decisions. The landlord acquiesced in the order of the Lands Tribunal, but the tenants felt aggrieved and they preferred separate appeals under Section 74 of the Tenancy Act to the Collector. The Collector recorded his findings on 31st December 1960. He came to the conclusion that, the tenants had not been given a proper opportunity to prove their case that they were permanent tenants and, therefore, the cases of tenants required to be remanded for determination of that question. The tenants also challenged the order of the Lands Tribunal declaring certain areas to be surplus land in their hands. The Lands Tribunal had not merely held that the tenants were deemed to have been the owners of certain specified areas, but, it also specified the areas which were surplus in their hands The Collector, however, held that, no appeal lay to him from the aforesaid decision of the Lands Tribunal in regard to the order which it had made in regard to the surplus land. The Collector treated that part of the order of the Lands Tribunal as an order made by that Tribunal under Section 32P of the Tenancy Act. On the aforesaid findings, the Collector remanded the cases of the tenants to the Lands Tribunal for decision according to law. The landlord again acquiesced in this order of the Collector, but the tenants, however, preferred separate revision applications to the Revenue Tribunal and as already stated, that Tribunal disposed of the tenants' revision applications by a common judgment dated 23rd of April 1962. After the Collector's decision and whilst the revision applications were pending before the Revenue Tribunal, the Legislature had enacted the Gujarat Agricultural Lands Ceiling Act, 1960 (hereafter called the Ceiling Act). That Act came into operation on 1st September 1961 whilst the matters were still pending before the Revenue Tribunal. Before the Revenue Tribunal, the tenants raised a point based upon the provisions contained in the Ceiling Act. It is common ground that, the ceiling area, as prescribed by the Tenancy Act, differs from the ceiling area prescribed by the Ceiling Act. The tenants probably felt that, under the provisions of the Ceiling Act, they were entitled to hold a higher ceiling area than what they were entitled to under the Tenancy Act. Therefore, the tenants contended that, the question as to the quantum of land which they were deemed to have purchased under the Tenancy Act should be determined with reference to the ceiling area prescribed by the Ceiling Act and not with reference to the Tenancy Act. The tenants also challenged that part of the appellate order of the Collector by which he had held that no appeal lay from that part of the order of the Lands Tribunal by which it had held that the tenants were in possession of surplus land. The landlord resisted both the aforesaid contentions raised before the Revenue Tribunal. By the judgment aforesaid, the Revenue Tribunal came to the conclusion that, an appeal lay to the Collector from the aforesaid part of the order of the Lands Tribunal, by which, it had held that the tenants were holding excess area, and reversed the finding of the Collector on that subject. The Revenue Tribunal upheld the contention of the tenants that the Ceiling Act had a restrospective operation in regard to the question of the deemed ownership, and held that the question as to the quantum of land which the tenants should be deemed to have purchased must be determined with reference to the ceiling area prescribed by the Ceiling Act. Therefore, the Revenue Tribunal, whilst upholding the remand for the purpose of determining the question of the status of the tenants, in regard to which remand there was no dispute, directed the Lands Tribunal to reshuffle the ceiling area available to the tenants with reference to the provisions contained in the Ceiling Act. The landlord has filed the present writ petitions for challenging both the aforesaid decisions recorded by the Revenue Tribunal. The landlord has prayed that a writ of, or in the nature of, certiorari or any other appropriate writ or direction be issued against the Revenue Tribunal and an order be passed quashing or setting aside the impugned orders of the Revenue Tribunal, the Collector and the Lands Tribunal.

3. Mr. K.S. Nanavati appearing for the landlord has formulated the following two submissions for the decision of this Court:

(1) that the order of the Lands Tribunal declaring excess land under the Tenancy Act and directing it to be disposed of under Section 32P is not appealable to the Collector;

(2) the second submission is in two parts. The first part is that, the area of the lands deemed to have been purchased by the tenants has to be decided with reference to the ceiling area prescribed by the Tenancy Act and not by that prescribed by the Ceiling Act. The second part of the second submission is that the Ceiling Act is not retrospective.

4. Before we deal with the first submission, we may point out that, a part of the submission is based upon a mis-conception of the order of the Lands Tribunal. Both the Collector and the Revenue Tribunal have also laboured under the same mis-conception. The first submission, and the orders of the Collector and the Revenue Tribunal, all proceed on the basis that the Lands Tribunal has made an order for disposal of the surplus land under Section 32P of the Tenancy Act. After the relevant parts of the orders of the Collector and the. Revenue Tribunal were read, Mr. Nanavati had to admit that there was such a mis-conception. The Lands Tribunal has not made any order for disposal of the surplus land under Section 32P. In fact, as we shall presently point out, that section has no direct application to the facts of the present case. What the Lands Tribunal has done is to determine whether, the tenants were in possession of excess areas, to specify those excess areas by reference to the survey numbers and/or parts thereof and given a declaration that those areas were to be disposed of in accordance with the provisions contained in Section 32E of the Tenancy Act. It is quite clear that it does not refer directly to Section 32P at all. Section 32E of the Tenancy Act says that, the surplus land 'shall be disposed of in the manner laid down in Section 15 as if it were land surrendered by the tenant'. Section 15, Sub-section (2), confers a right upon a landlord to retain the land surrendered by a tenant. Sub-section (2)(a) thereof confers power upon the Mamlatdar to hold an enquiry and decide whether the landlord is entitled to retain 'the whole or any portion of the land so surrendered and specify the extent and particulars in that behalf. ' Sub-section (3) of Section 15 thereafter says that, if there is any land or any portion thereof which the landlord is not entitled to retain under Sub-section (2), such land or the portion thereof shall be disposed of in the manner provided under Clause (c) of sub Section (2) of Section 32P, The order under Section 32P is to be made by the Collector. Even proceeding on the basis that the power of the Collector had been delegated to the Lands Tribunal, there is not the slightest doubt that the Lands Tribunal has not exercised any such power. Therefore, the question as to whether the impugned part of the Lands Tribunal's order is or is not appealable is not to be decided on the basis that the Lands Tribunal has made an order under Section 32P of the Tenancy Act, but, it has to be decided with reference to and in the context of the Lands Tribunal having passed an order determining the question that the tenants were in possession of Land beyond the ceiling determining or specifying the lands which were deemed to have been purchased by the tenants and declaring the lands which were surplus or available for disposal under Section 32E of the Tenancy Act.

5. In order to understand the significance of the first submission, it is necessary to read a few provisions of the Tenancy Act. Section 2, Sub-section (2d) defines a 'ceiling area' to mean, in relation to land held by a person, whether as owner or tenant or partly as owner and partly as tenant, the area of land fixed as ceiling area under Section 5 or 7. Section 7 is not relevant for our purposes and need not be quoted. Section 5 of the Tenancy Act has not been expressly repealed by the Ceiling Act. Section 5 fixes the ceiling area for the purposes of the Act according as the land is (1) jirayat land, or (2) seasonally irrigated land or paddy or rice land, or (3) perennially irrigated land It also fixes the basis for converting one kind of land into another if a landlord possesses more than one kind of land. It is not necessary to mention, for the purposes of the present cases, the details regarding the ceiling area. Section 32 enacts that, on the first day of April, 1957, every tenant shall, subject to the other provisions of 'the Tenancy Act, 'be deemed to have purchased from his landlord, free of all encumbrances subsisting thereon on the said day, the land held by him as tenant.' This deemed purchase is subject to a number of conditions, some of which have been embodied in Section 32 and the others in the next succeeding sections. We are concerned with the conditions which have been imposed by Sections 32A and 32B. Section 32A states that, a tenant shall be deemed to have purchased land under Section 32, (1) in the case of a tenant who does not hold any land as owner but holds land as tenant in excess of the ceiling area, upto the ceiling area; (2) in the case of a tenant who holds land as owner below the ceiling area, such part of the land only as will raise his holding to the extent of the ceiling area. Section 32B enacts that, if a tenant holds land partly as owner and partly as tenant but the area of the land held as owner is equal to or exceeds the ceiling area, he shall not be deemed to have purchased the land held by him as a tenant under Section 32. Section 32C confers a right upon a tenant, who holds land separately from more than one landlord, but possesses , an area beyond the ceiling area, to choose, subject to the rules made by the State Government, the area and the location of the land to be purchased from each of such landlords, provided, however that the area so chosen shall not, as far as may be practicable, be other than a survey number or subdivision of a survey number. Section 32D says that, the surplus land 'shall be disposed of in the manner laid down in Section 15 as if it were land surrendered by the tenants ' We have already summarised the relevant provisions contained on this subject in Section 15. Section 320 is enacted to enable the Lands Tribunal to determine the price of the land to be paid by the ex-tenant who are deemed to have purchased the land. Sub-section (1) therefore casts a duty upon the Lands Tribunal to publish a notice calling upon tenants and landlords and other interested persons to appear before it on a date specified in the notice. Sub-section (2) casts a duty upon that Tribunal to record the statement of the tenant as to whether the tenant is or is not willing to purchase the land held by him as a tenant. If the tenant fails to appear or expresses his unwillingness to purchase the land, then, Sub-section (3) casts a duty upon the Lands Tribunal to make an order declaring that the tenant Was not willing to purchase the land and that the purchase was ineffective. If, however, the tenant expresses his willingness to purchase, then, the Lands Tribunal is required to give an opportunity to him and the landlord and all other interested persons to be heard and to hold an enquiry Sub-section (4) further casts a duty upon the Lands Tribunal to determine the purchase price of the land in accordance with the provisions of Section 32H and Sub-section (3) of Section 63A. Section 32P says that, where the purchase of any land by tenant under Section 32 becomes ineffective under the foregoing provisions of Part II of Chapter III, the Collector may, after holding a formal enquiry, direct that the land shall be disposed of in the manner provided in Sub-section (2). Section 68 enumerates the duties of the Lands Tribunal and, amongst the duties, is the duty 'to decide any dispute under Sections 32 to 32R, both inclusive. ' Then comes Section 74 which provides for appeals from the orders, inter alia, of the Lands Tribunal. One of the cases, which is relevant in which an appeal lies from the order of the Lands Tribunal to the Collector, is mentioned in Clause (mb) which reads as follows:

a decision under Section 31 or 32F, or an order under Section 32G.

6. From the aforesaid resume of the relevant provisions of the Tenancy Act, it is quite clear that, the question as to whether an appeal lies from the impugned order of the Lands Tribunal must be answered with reference to Clause (mb) aforesaid of Section 74. In order that an appeal may lie under that clause, the impugned order must be 'an order under Section 32G. ' Therefore, the short question, which requires consideration in order to answer the first submission of Mr. Nanavati, is, whether the impugned part of the order is or is not an order under Section 320. Mr. Nanavati at first contended that, the impugned part of the order was an order either under Section 32P or Section 32E and, therefore, it was not an order under Section 32G at all. We have already stated that Mr. Nana vati, after the relevant orders were read, conceded that no order under Section 32P was passed. That leaves Section 32E for consideration. Now, if we turn to Section 32E, we find that, no order is to be passed under Section 32E at all. That section enacts that, the surplus land shall be disposed of in a certain manner. The section embodies a legislative fiat. It does not priprio vigore pass any order, much less does it contemplate the passing of any order by any authority. That section refers to Section 15. The latter section confers a right upon the landlord to retain the whole or a part of the surplus land, subject to the provisions of that section. It is true that, whether the landlord is so entitled to retain or not is to be ordered by the Mamlatdar. It is true that, if any order happens to be passed by the Mamlatdar under Section 15 in favour or against a landlord, then, the order will not be under Section 32G and it will not be appeal-able under Clause (mb) of Section 74, though, we may point out that such an order will be appealable under Clause (ga) of Section 74. But, though this is the legal position, the question cannot be answered only by reference to the provisions of Section 32E. The question still for consideration is whether, any order has been passed, though it may not be justified, by the Lands Tribunal under Section 32E or Section 15. We have come to the con-elusion that, no such order has been passed either under Section 32E or Section 15, disposing of the land in favour of anybody. All that has been done, by the Lands Tribunal is to determine whether the tenants hold land beyond the ceiling area. The Lands Tribunal having determined that this was so, then, has specified the areas of surplus land not deemed to have been purchased by the tenants. In our judgment, none of these two determinations can be said to have been done under Section 32E or Section 15.

7. However, we agree that the above negative decision does not Solve the problem. Still, the problem for consideration is whether, any order at all has been passed under Section 32G. It is only if an order has been passed under the latter section that it will be appealable. The alternative argument of Mr. Nanavati is that, the order is passed under Section 68, Clause (c), which we have already reproduced. Before we deal with this argument of Mr. Nanavati, it is necessary to examine the scheme of Section 32G. We have already reproduced the material parts of that section. From those parts, it appears that the section has been designed with a view to enable the Lands Tribunal to determine the price which is payable by the tenant to the landlord for the land deemed to have been purchased by the former. It is now settled law that, the ownership in the land deemed to have been purchased vests in the tenant on the tillers' day or the postponed date, as the case may be. The vesting of ownership itself is not postponed to any posterior date and it is not contingent upon either the determination of the purchase price or its payment. Keeping this central fact in mind, it is clear that the scheme of Section 32G is not, and cannot be. to determine the date on which a deemed purchase took place. The scheme is only to determine the purchase price. With this end in view, the Legislature has conferred certain powers and imposed certain duties on the Lands Tribunal. In the performance of those functions, the first step, which the Lands Tribunal is required to take is to issue a notice to the parties concerned to appear before it. On the day so fixed, the next step which the Lands Tribunal is required to take is to ascertain from the tenant whether he is willing or not willing to purchase the land. If the tenant fails to appear or expresses unwillingness to purchase, then, the Lands Tribunal is required to make a formal order. That formal order is to declare that the tenant is unwilling to purchase and that the purchase is ineffective. If, however, the tenant expresses his willingness to purchase, then, further proceedings have to be taken by the Lands Tribunal for determining the purchase price. If the tenant holds lands below the ceiling area, then, nothing further is required to be done, except to hold such proceedings because, in that contingency, all the lands held by the tenant are deemed to have been purchased by him. It is quite obvious that, in order to determine the price of land, the Lands Tribunal must know not only the quality, the productivity and such other factors as determine the price, but, also the quantum of the land of which the tenant has become the owner. The latter is as important as any other factor for the determination of the price. In a case where the tenant does not hold any land beyond the ceiling area, the quantum of the land of which the tenant has become the owner is definitely known, and straight off the Lands Tribunal can take up the question for the determination of the price. But, in a case where the tenant holds land beyond the ceiling area, it is quite clear that having regard to the provisions contained in Sections 32A and 32B, before the Lands Tribunal can undertake a determination of the price, it will have to find out which are the lands of which the tenant has become the owner. If a tenant holds beyond the ceiling, area and if there is more than one landlord, then, the Legislature itself has provided as to how the land deemed to have been purchased is to be ascertained, by enacting Section 38C. The Legislature has conferred that choice on the landlord. But, if the tenant happens to hold lands beyond the ceiling area and all the lands belong to a single landlord, then, the Tenancy Act does not provide as to who and how the lands deemed to have been purchased are to be determined, separated and specified. We do not propose to say anything as to whether the tenant has or has not any such right which can be exercised by him under Sub-section (2) of Section 32G by expressing his willingness to purchase the land upto the ceiling area and refusing to purchase the balance of the land. The records of the present cases do not disclose that any such willingness was expressed by the tenants. We are willing to proceed on the basis that, in the present cases, a dispute did arise between the landlord and the tenants as to whether the tenants were or were not in possession of excess areas and if so, which were the lands and what were the areas which were deemed to have been purchased by them and which were the lands and what areas were the surplus lands. Now, it is quite clear that, in case such a dispute arises, there must be some authority to resolve the dispute, otherwise there will be a stalemate in the process of determination of the purchase price. Mr. Nanavati concedes that, having regard to the provisions contained in Section 68, Clause (c), the Lands Tribunal will be the proper authority to resolve the dispute. But, Mr. Nanavati's contention is that, the resolution of this dispute would be under Clause (C) of Section 68 and Cannot be under Section 32G. We are unable to agree with this latter contention of Mr. Nanavati. In our judgment, Section 68(c) only enumerates the duties to be performed by the Lands Tribunal. But, after the dispute is resolved and when a final order is to be passed, that particular section is not the section to be looked to. If, after the dispute is resolved, any order requires to be passed, that order must necessarily be under Section 32G. It is true that, Section 32F enumerates expressly certain orders which the Lands Tribunal is required to pass. As for example, if the tenant fails to appear, or expressses his unwillingness to purchase, the section says in express terms that, an order is to be passed declaring that the tenant has expressed unwillingness to purchase and that the purchase has become ineffective. If an agreement is arrived at between the parties relating to the price, then also, Section 32G requires the Lands Tribunal to pass an order declaring the price, after ascertaining that the agreement on the part of tenant was voluntary. The section also expressly states that, the Lands Tribunal shall determine the purchase price in accordance with the provisions of certain sections of the Act. It is true that, the order determining the quantum of the land deemed to be purchased or determining surplus land, does not come directly within these express provisions of the section. But, that does not mean that the orders or the determination of the aforesaid questions would not come under Section 32G. It is well-known that, when an authority has been given power to decide or determine something, it has an implied power to decide, not only that something, but also incidental and subsidiary matters which will enable it to decide the principal matter in regard to which authority-is conferred. We have already indicated that, in a case where there is a dispute between a landlord and tenant as to which particular land the tenant must be deemed to have purchased, the Lands Tribunal will not be in a position to determine the price payable by the ex-tenant to the ex-landlord. We have said that, unless this matter is so decided, there will be a stalemate. Therefore, in our judgment, the whole of the scheme of Section 32G inevitably leads to the conclusion that the Lands Tribunal must necessarily have the power to determine the aforesaid questions and to pass a suitable order in order to enable it to perform the duties cast upon it by Section 32G to determine or fix the purchase price. The determination of the quantum of land, under the circumstances would be a step and, in our judgment, a vital step, which it is necessary for the Lands Tribunal to take in order to discharge the duty cast upon it by law. In that view of the matter, in our judgment, the order passed by the Lands Tribunal in the instant case must be regarded to be an order passed under Section 32G and, in that view of the matter, in our judgment, the finding recorded by the Revenue Tribunal that an appeal lay from the aforesaid part of the impugned order of the Lands Tribunal to the Collector is correct and must be upheld. For the aforesaid reasons, we must reject the first submission of Mr. Nanavati.

8. That takes us to the first part of the second submission of Mr. Nanavati. The tenants resist that submission, and contend that, the ceiling area in the instant case must not be fixed with reference to the Tenancy Act, but, must be fixed with reference to the Ceiling Act. The provision in the Ceiling Act, on which the tenants rely, is Section 6. Before we reproduce that section, we may notice briefly a few other relevant facts and provisions. The heading of the Ceiling Act is that, it is an Act to fix a ceiling on holding agricultural land. The first preamble recites that, the Tenancy Act imposes a restriction upon holding agricultural land in excess of certain limits in the Bombay area of the State of Gujarat. After noting this fact, the second preamble states that, it is expedient in the public interest to make a uniform provision for the whole of the State of Gujarat in respect of restrictions upon holding agricultural land in excess of certain limits. The Ceiling Act was passed on 15th June 1961, but, it was to come into force on such date as the State Government might by notification appoint. It is not disputed that, the Ceiling Act was brought into force by such notification with effect from 1st September 1961. This date has been defined as the 'appointed day' in Section 2. Clause (4), of the Ceiling Act. In Clause (5) of Section 2. the 'ceiling area' has been defined as meaning 'the extent of land determined under Section 5 to be the ceiling area. ' Section 5 of the Ceiling Act Jays down provisions for determining the ceiling area, and it is so determined with reference to the locality in which a land is situated and the class of land to which it belongs. As already stated, it is not necessary for us to notice the details of this provision. Then comes Section 6, Sub-section (1) of which is material and on the basis of which the contention of the tenants is based. That sub-section reads as follows:

6. (1) Notwithstanding anything contained in any law for the time being in force or in any agreement, usage or decree or order of a Court, with effect from the appointed day no person shall, subject to the provisions of Sub-sections (2) and (3) be entitled to hold whether as owner or tenant or partly as owner and partly as tenant land in excess of the ceiling area.

Reading this section, it is quite clear that, the section puts an embargo upon any person from holding land in excess of the ceiling area 'with effect from the appointed day, ' and this embargo is placed notwithstanding anything contained, inter alia, in any law for the time being in force. Now, the first point which has got to be noticed is that, the embargo is placed with reference to the appointed day. This appointed day must, having regard to the aforesaid provisions, mean 1st September 1961. The Revenue Tribunal, however, has held that the 'appointed day' was 15th June 19S5. This is the date on which the Tenancy Act came into force. Mr. Mehta appearing for Mr. Shukla does not dispute that the Revenue Tribunal has gone wrong in taking 15th of June 1955 as the appointed day. One of the considerations which has weighed with the Revenue Tribunal in holding that the aforesaid provision is retrospective, is this error in noting the appointed day. Under the circumstances, the judgment delivered by the Revenue Tribunal is not of much assistance in determining the question in hand. On the contrary, one feels that, if, probably the Revenue Tribunal had not committed the above error, it is probable that it might not have taken the view that it has actually done. But, apart from this, in our judgment, there are a number of good reasons why it is not possible to hold that Section 6 has any bearing on the question of the determination of the land deemed to have been purchased by the tenant under the Tenancy Act. We have to read Section 6 with a view to discover whether there is any intention expressed by the Legislature in it that a tenant, who was deemed to have purchased, on the tillers' day or the postponed date, land to the extent mentioned in Section 32A and 32B with reference to the ceiling area as defined in the Tenancy Act, was to get on the enactment of the Ceiling Act more land upto the ceiling area defined in the latter Act. Now, in our judgment, there is no doubt whatsoever that the Ceiling Act is not dealing with the problem of the ownership of any land with reference to any previous date, nor is it intended to confer any rights of ownership on any person who otherwise did not possess such rights on the appointed day as defined in the Ceiling Act. The sub-section itself shows that it places only an embargo on the holding of land. It does not say that, if a person does not hold land upto the ceiling area on the appointed day, then, he may be given under that sub-section some more land other than what he possesses on that day. This conclusion is emphasized by the preamble and the whole scheme of the Ceiling Act. The Ceiling Act is intended to place a restriction upon the holding of land by an individual with reference to the appointed day. Therefore, when the Ceiling Act came into force, the question in regard to the present tenants, which would come up for consideration, would be whether, any of the tenants did or did not possess land in excess of the ceiling area fixed by the Ceiling Act. If any one of them did, then, under the Ceiling Act, he would have to part with the surplus land. But, if any of them did not hold land above the ceiling area, then, neither Section 6, nor any other section to which our attention was drawn, confers a right upon the tenant to have more land so as to bring the extent of his land upto the ceiling area. Such a problem is not dealt with by Section 6 of the Ceiling Act at all. The question which is raised by the tenants in the present cases is that, though under the Tenancy Act, they must be deemed to be owners of a certain extent of the land, after the passing of the Ceiling Act, they must be deemed to have become owners of some more extent of land. Now, the question at to of what lands the tenants became owners and as to what was to become of their surplus land has necessarily to be answered with reference to the Tenancy Act, and turning to the provisions, some of which we have summarized, it is crystal clear that, that question has got to be answered with reference to the tillers' day or the postponed date. The rights of the tenants, landlords and the other interested parties, all become crystallized with reference to the demised land with reference to the tillers' day or the postponed date. If, on the tillers' day or the postponed date, a tenant held land in excess of the ceiling area as defined in Section 5 of the Tenancy Act, then, the tenant became the owner only of land upto the ceiling area and, as regards the balance of the land, the same is deemed to have been surrendered by the tenant to the landlord. This deemed surrender also becomes effective with reference to the tillers' day or the postponed date. Therefore on the tillers' day or the postponed date, the land having been deemed to have been surrendered to the landlord, the landlord has the right of retaining such of the land as he can under Sub-section (2) of Section 15, and as regards the rest of the land, the same becomes disposable under Sub-section (2) of Section 32P. Therefore, the rights of all these parties become crystallized with reference to the tillers' day or the postponed date. There is nothing in Section 6 of the Ceiling Act which even remotely indicates that these rights were intended to be disturbed by the Legislature by the enactment of that sub-section. For ought we know, the surplus lands, other than those which were retainable by the landlord, might have, in a given case, been disposed of under Sub-section (2) of Section 32P. There is nothing in the Ceiling Act to indicate that those lands were to be recovered from those other persons and given back to the original tenant. In our judgment, in so far as the question in hand is concerned, the Tenancy Act and the Ceiling Act do not appear to be in pari materia. Both of them deal with different situations all together. The Ceiling Act is designed only to prevent a person from retaining more than the ceiling area defined by the Ceiling Act. In so far as there is a reference to the ceiling area in Sections 32A and 32B, the definitions were intended to be applied, nos with a view to determine which particular land shall be held by a particular individual at a given time but which particular land shall or shall rot become deemed to have been purchased by the tenant in question. It is from that narrow angle that Sections 32A. and 32B have been enacted. And once the question has been determined or can be determined with reference to the tillers' day or the postponed date, then, the tenant becomes the owner with reference to the latter date of the land concerned and the balance of the land goes out of the hands of the tenant and becomes disposable in the manner laid down in Section 15.

9, Mr. Mehta, however, relies upon an alternative argument. His contention is that, even if the tenant is not regarded to be the owner of the land, he must be regarded to be the tenant of the surplus land and, for the purpose of determining the ceiling area under the Ceiling Act, the surplus land must be considered on the basis of the ceiling area as defined in the Ceiling Act. In our judgment, there is no merit in this contention either. From the discussion which we have already had, it is crystal clear that on the tillers' day or the postponed date, the tenants would cease to be the tenants of the surplus lands. With reference to such of the day as may be applicable, the surplus land must be deemed, under Section 32E, to have been surrendered to the landlord and, therefore, the tenant having lost his status with reference to the surplus land, he cannot have the benefit of Section 6, Sub-section (1), of the Ceiling Act.

10. The non-obstante clause in Sub-section (1) of Section 6 of the Ceiling Act does not help the construction for which the tenants contend. As the main clause relates only to the holding of land and is not intended to confer a right of ownership of land which did not belong to a holder on the appointed day. it is obvious that the non-obstante clause, which nullifies the previous law, must necessarily refer to a law which has reference to the holding of land on the appointed day and not to any law which has already conferred rights of ownership on one or other party.

11. For the aforesaid reasons, we have come to the conclusion that, that part of the finding of the Tribunal which held that the ceiling area of the tenants should be determined with reference to the provisions contained in the Ceiling Act, is erroneous and requires to be set aside.

In the above view of the matter, it is not necessary for us to undertake a discussion of the larger submission contained in the second part of the second submission as to whether the whole of the Ceiling Act is or is not retrospective.

12. For the aforesaid reasons, the petitions deserve to be allowed in part. We quash and set aside that part of the order of the Revenue Tribunal which directs that the Lands Tribunal shall consider the question as to which area of land each respective tenant was deemed to be a purchaser under Section 32 vis-a-vis the Ceiling Act XXVII of 1961. We hold that the determination of the Lands Tribunal about the question of the land of which the tenants become deemed purchasers with reference to the Tenancy Act was correct and does not require to be altered on account of the coming into effect of the Ceiling Act. Subject to this, the rest of the order passed by the Collector remanding the question about the status of the tenants as to whether, they are permanent or protected tenants, stands and the Lands Tribunal will proceed to determine that question and the other related questions in accordance with law As success is divided, each party will bear its own costs. Rules absolute to the extent mentioned above. Each party to bear its own costs in each petition.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //