N.K. Vakil, J.
1. These three Special Civil Applications relate to agricultural lands belonging to a religious trust claimed to be a public religious trust under the Bombay Public Trust Act, 1950. Most of the facts in these three petitions are common. As the points of law that may arise were also accepted to be common, they were fixed to be heard together. At the hearing, however, we found that the main points of law arising in the Civil Application No. 475 of 1961, the first of the three, would not arise in the latter two and some of the facts also differ. But all the same it will be convenient to deal with them together and dispose them of by one common judgment. We shall, however, set out the special facts and features of the latter two as and when necessary for coming to the conclusion in respect thereof. We had also allowed the learned advocates appearing for the respondents in the latter two petitions to intervene and argue the law points.
2. The petitioner in all the three Writ Petitions claims to be the present Sajjadanashin of Hazarat Pir Shahe Alam Roza Estate being a direct descendent in the 19th degree from Hazarat Pir Mahmad Shahe Alam. We may mention that this claim of the petitioner is disputed by the respondents in this as well as other proceedings between the parties. We are, however not called upon in these petitions to decide this point and the decision in these petitions will be reached without prejudice to the rights of the respondents to challenge the said claim. The petitioner further claims that the said ancestor of the Petitioner was accepted as a saint and had a large following of disciples and was greatly respected. Petitioner's case is that after his death, a Roza or mousoleum was constructed on his grave and a mosque was built adjacent to the Roza for public religious worship in about the year 1475 A.D. The disciples used to collect in large numbers on the death anniversary (Uras) of the saint. In the year 1670, Emperor Aurengazeb made an absolute grant of six villages including the villages of Isanpur, Vasna and Sarasa to the Roza of Shahe Alam to meet the expenses of the mosque and for the maintenance of the descendants. A Sanad was also given by Emperor Aurengazeb in respect of this grant. The office of Sajjadanashin is governed by the rule of primogeniture. After the Mogal rule, the Marathas ruled this part of the country for a few years and during their regime also the grant was recognised and Sanads were granted. These Sanads, however, are lost. Annexture 1/A to the Petition is claimed to be the Sanad given by Emperor Aurengzeb. During the British rule also the grants of these villages were recognised and Sanads were issued. Annexture 'A' purports to be the Sanad in respect of the village Isanpur. Entries as regards these grants are also made in the alienation register as Devasthan Inam Class III. These entries were made on the 24th of November 1863. Certified copies from the Alienation Register have also been produced in the three petitions. Out of the six villages, management of village Buzarg Vasna in the District of Kaira, Taluka Mitar, was taken over by Government for the maintenance and repairs of the Roza and the mosque, and two other villages were lost to this religious trust during the centuries. Now therefore, the above stated three villages only remain with the trust.
3. On the night of 9th March 1948, Sajjadanashin Imam Haidar Bux, father of the petitioner died. The present petitioner succeeded him as Sajjadanashin when he was aged 12. During his minority, the Collector was appointed as the guardian under the Guardian and Wards Act. However, in 1953 the management of the trust properties was taken over by the Court of Wards. The petitioner attained majority in 1957 and on the 11th of May 1958 the management was handed over to him by the Court of Wards.
4. During the minority of the petitioner in 1953 the Collector had filed an application under protest to have the said trust registered under the Bombay Public Trusts Act, 1950. The proceedings were given No. 68 of 1953. However, on the 22nd of February 1956, the Collector applied to withdraw the said application. On the 6th of March 1956, Deputy Charity Commissioner allowed the withdrawal but by his order dated 7th March 1956 under his powers under Section 19 of the said Act, directed the inquiry to continue as suo motu inquiry. The said proceeding was numbered as 176 of 1956. On the 29th of November 1960, the Petitioner applied for registration of the trust. He was, however, directed to give an application on the prescribed form which the petitioner did on the 5th January 1961. It appears, however, that no fresh number was given after the application was given by the petitioner and the inquiry continued as No. 176 of 1956. On the 10th of August, 1962, the Deputy Charity Comissioner directed the trust to be registered as a Public Religious Trust under the Bombay Public Trusts Act, 1950 (hereinafter referred to as 'the Trust Act) and held that the lands at Isanpur, Vasna and Sarsa belonged to the public Trust of Hazarat Pir Shahe Alam Roza Trust. Some of the rela tions of the petitioner, however, appealed to the Charity Commissioner against this decision. The said appeal was dismissed on the 20th of January 1966.
5. While the proceedings were pending before the Deputy Charity Commissioner, proceedings were started by the Agricultural Lands Tribunal under Section 32G of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as 'the Tenancy Act') for determination of the purchase price of lands of village Isanpur in the first instance on the footing that several t enants were deemed to have purchased the lands. The second, third and the fourth respondents are three of such tenants, in the petition No 475 of 1961. On the 19th of June 1961 notice was issued by the Tribunal under Section 32G calling upon the petitioner and respondent No. 2 as the tenant to appear on the 26th June 1961 for the determination of the purchase price of land. Similar notices in respect of other tenants of village Isanpur were also given.
6. On the 26th of June 1961, the Petitioner gave an application to the Agricultural Lands Tribunal (hereinafter referred to as 'the Lands Tribunal') stating that this matter was highly disputed and the entire village of Isanpur was a Devasthan Inam village in respect whereof an inquiry was proceeding under the Trusts Act before the Deputy Charity Commis sioner and a decision in the said matter was likely to be given shortly. He further mentioned in the said application that the Tenancy Act, under these circumstances, did not apply to the said village and the question of determining the value of the lands did not arise and the matter would thus be beyond the jurisdiction of the Lands Tribunal. He, therefore, prayed that the said matter be filed or the matter be adjourned sine die till the decision was given in the inquiry before the Deputy Charity Commissioner or in any case to grant him a long adjournment to enable him to engage a lawyer and submit his statement in the matter. The application was rejected on the same date by the Lands Tribunal on the grounds that (i) no written and registered trust deed of the property in question was in existence; (ii) the trust was not got registered under the Bombay Public Trusts Act; (iii) no certificate from the Collector was obtained under Section 88B of the Tenancy Act and (iv) as the land in question were deemed to have been purchased by its tenants, since the day it came into the hands of Mamlatdar under Section 32 of the Tenancy Act, even if the trust were got registered under the Bombay Public Trusts Act after that date, it would not affect the rights of the tenants as deemed purchasers. The petitioner again applied for time to enable him to bring a stay order but the application was rejected. The petitioner has averred in his petition that thereafter he applied to the Collector on the 29th of June 1961 and also to the Secretary, Agriculture and Lands Department on the 10th of July 1961 for redress but the petitioner was informed to approach the proper authority. The record further discloses that on the 10th of July 1961, the Lands Tribunal passed the order fixing the price of lands.
7. On the 2nd of August, 1961, the Petitioner filed the present Special Civil Application No. 475 of 1951 and inter alia made the following prayer: To issue a writ of or in the nature of certiorari and/or prohibition or any other appopriate writ, direction or order quashing the proceeding taken by the first respondent under Section 32G of the Tenancy Act in respect of the lands of village Isanpur and restraining the Lands Tribunal from proceeding further with the said proceedings.
8. The respondents in Petition No. 475 of 1961 are:
(1) The Agricultural Lands Tribunal, City Taluka, Ahmedabad.
(2) Babaji Ranchhodji,
(3) Madhavlal Lallubhai Patel,
(4) Motibhai Pragjibhai Patel,
(5) Charity Commissioner for Gujarat. Respondents Nos. 2, 3 and 4 are tenants.
9. On the main point of the challenge made in the Petition to the order of respondent No. 1, the case of the respondent as disclosed in their affidavit is that the interpretation put by the respondent No. 1 on Section 88B of the Tenancy Act was correct and that no ground is made out for issuing any writ or order quashing the said order of the Lands Tribunal dated 26th June 1961. We shall refer to the details of their stand as and when found necessary while considering the submission of the learned Advocate on behalf of the Petitioner.
10. Here we may shortly refer to some special facts of the other two petitions being Nos. 1107 of 1962 and 957 of 1963. Petition No. 1107 of 1962 refers to the lands in the village Vasna, City Taluka, Ahmedabad wherein Respondent No. 1 in the said petition is the Agricultural Lands Tribunal, respondent No. 2 is the Collector of Ahmedabad and respondent No. 3 Ashabhai Prabhudas is the tenant and respondent No. 4 the Charity Commissioner, Ahmedabad. In this matter, the notice was issued by the Lands Tribunal on the 11th of August 1961 informing the parties that as the land was within the municipal limits, no inquiry was required to be conducted and therefore the inquiry in respect of the said land was discontinued under order dated 29th July 1961. It appears, however, that being aggrieved by this order, respondent No. 3 approached the Collector and the Collector remanded the matter for being heard again as the said order was passed by the Lands Tribunal without hewing the parties. Thereupon, on the 5th September 1962, fresh notices were issued by the Lands Tribunal and the matter was fixed on the 17th of September 1962 for hearing the parties and fixing the purchase price of lands. On that day Petitioner filed an application before the Lands Tribunal stating that on the 10th of August 1962, the Deputy Commissioner had held the lands concerned to belong to the Estate of Shahe Alam Roza and that the Shahe Alam Roza Estate has been registered as a public trust. It was also stated that a wit petition had already been filed in the High Court of Gujarat in respect of Isanpur lands belonging to the said Shahe Alam Roza Estate and the Court had been pleased to grant the stay of proceedings pending before the Lands Tribunal. It was therefore requested that the proceedings may be stayed till the decision of the Special Civil Application No. 475 of 1961 filed before the High Court. Alternatively it was prayed that adjournment may be given to enable him to bring a stay order from the High Court. On this application, the Lands Tribunal passed the order: 'Stay of High Court may be obtained for this particular land' and the matter was adjourned up to the 1st of January 1963. The petitioner filed Civil Application No. 1107 of 1962 on the 19th of December 1962 and obtained the stay order.
11. In the third Writ Petition No. 957 of 1963, the notice was given by the Lands Tribunal on 16th October 1962 for fixing the price of lands belonging to the second respondent in the village Vasna. Similar notices were also issued in respect of other tenants on the 26th of November 1962, the Petitioner applied to the Lands Tribunal to withhold the proceeding on the grounds similar to those mentioned in his application given in the other proceeding. The Lands Tribunal passed the following order 'Stay of High Court may be obtained for this particular land' and the case was adjourned to the 1st of January 1963. The Petitioner, therefore, approached this High Court and filed Special Civil Application No. 957 of 1963. The High Court granted the interim stay.
12. On behalf of the Petitioner, his learned Advocate Mr. I.M. Nanavati made the following broad submissions in support of all the three petitions:
I. Lands of villages Isanpur and Vasna are exempt under Section 88B of the Tenancy Act, 1948 from the application of many of the provisions of the said Act, more particularly Chapter III (Sections 33 to 43) and the order of the Tribunal dated 26th June 1961 rejecting the application of the petitioner without making an inquiry as to whether the conditions of Section 88B were satisfied or not, is patently erroneous and requires to be quashed.
II. The lands are exempt as Devasthan Inam Lands under Section 88CA from the application of provisions of Sections 32 to 22R and consequently the Tribunal had no jurisdiction to determine the purchase price.
III. On the tillers day the lands were under management of the Court of Wards and were therefore exempt under Section 88(1)(c) from the provisions of the Tenancy Act and consequently the Lands Tribunal had no jurisdiction to determine the purchase price.
IV. The lands are held as Devasthan Inam Lands and were alienated lands in respect of which the petitioner is only liable to pay quit-rent or judi as Inamdar. Such lands do not fall within the ambit of the scheme of the Tenancy Act and provisions of Sections 32 to 32R have no application.
We prefer to consider submission No. 1 after we have dealt with the other three submissions.
13. The second broad contention of Mr. Nanavati is that the lands concerned of the Roza fall within the purview of Section 88CA and as such are exempt from the application of the provisions of Sections 32 to 32R. It was urged that the lands in question are Devasthan Inam and Devasthan Inam have not been abolished. According to Mr. Nanavati, under Section 88CA lands belonging to all Inams are exempt from the application of Sections 32 to 32 R. and therefore no question arises for any determination of the purchase price for any deemed purchase. The section reads as under:
88CA. Nothing in Sections 32 to 32R (both inclusive) shall apply to land held as inam or watan for service useful to Government but not assigned as remuneration to the person actually perfoming such-service for the time being under Section 23 of the Bombay Hereditary Offices Act, 1874, or any other law for the time being in fores.
Mr. Nanavaty's contention is that the words 'for service useful to Government' do not apply to the expression 'Inam' and it only controls the expression 'watan'. It was argued that 'watan' is a kind of grant which Is made for service useful to Government or to community. In Section 83CA, the Legislature only dealt with the former because those useful to the community were abolished before Section 88CA came to be enacted. Inam is a kind of grant which is of various types and not only such as were useful to Government or useful to community. Certain kinds of Inams were abolished before Section 88CA was inserted in the Tenancy Act and none of the Inams that have remained in existence are such as can fall within the category of 'Inam useful to Government'. Therefore that expression used in the said section is meant only to apply to watans. The Legislature when it inserted Section 88CA knew what kinds of Inams were abolished and which remained in existence, and therefore the provision must, be taken to have been inserted to affect only such of them that existed. We are not impressed with this argument. On the plain reading of the section, and on its grammatical construction there is nothing to show that the words 'for service useful to Government' are only intended to qualify the word 'watan' and not the word 'Inam', The language is unambiguous and clearly expresses the Legislature's intention which admits of one meaning and there is no justification whatever for taking aid of any outside factors to gather the legislative intent. Besides, there is nothing on the record to show that no Inams 'for service useful to Government' ever existed or that by the time Section 88CA came to be inserted in the Tenancy Act, they were all abolished. In order to show that several Inams have been abolished, Mr. Nanavati referred to some Inams Abolishing Acts and also referred to the commentaries in Gupte's Land Revenue Code, 1962 Edition, We do not think it necessary to make any detailed reference to them. Such general reference without any specific averment in the petition or any other conclusive basis before us cannot entitle the petitioner to make it the basis of his contention as raised at the stage of argument. We may, however, mention that the very passage on which the learned Advocate relied in the commentaries by Gupte shows that the word 'Inam' was used in wider sense to denote any alienation in cash or land with or without service. We do not accept this second broad submission made on behalf of the petitioner.
14. The third submission was not pressed by Mr. Nanavati.
15. On the fourth submission, Mr. Nanavati argued that unless the Inam was abolished, application of Section 32 would create an anomaly because on the tillers' day or the postponed date, lands are deemed to vest in the tenants as occupants but as the Inam continued to exist, they would not become occupants within the meaning of the Bombay Land Revenue Code, 1879 because the lands concerned were alienated lands. On the other hand, the Inamdar would continue to be liable for payment of judi or quit rent. We see on good reason to accept this submission also. On the tillers day or postponed date, the tenant is deemed to have purchased from the landlord, free of all encumbrances subsisting thereon on the said day the land held by him as tenant and whatever the right, title and interest were of the landlord or Inamdar, would vest in the tenant. So, no responsibility would continue to pay quit rent or judi on the Inamdar. May be that various tenants who step into the shoes of the Inamdar become liable to pay only the judi to Government. But the fact that instead of the Inamdar, many tenants would become liable to pay judi and would themselves become Inamdars, cannot be the criterion to hold that an anomaly arises. Even in the case of the Inamdars, there may be many sharers who become liable to pay judi according to their shares. We, therefore, see no substance in this submission.
16. That brings us to the consideration of the first submission which raises a number of substantial questions for our consideration. Mr. Nanavati explained that it was not his attempt to make this Court to eater into any questions of fact which may be disputed and his contention is only this that while deciding his application annexture 'G', the respondent No. 1 had expressed its opinion on an erroneous construction put by it on Section 88B and has thereby, without giving the Petitioner an opportunity to prove that the lands of this trust would fall within the purview of Section 88B, on a wrong premises came to the conclusion that Section 88B can have no application to the lands in question. The petitioner contends that the four grounds on which the order was based are all erroneous and though his application was given with a view to secure an adjournment or stay, as it was rejected after adopting a reasoning that is faulty and as it is likely to prejudice his interest, the order required to be quashed.
17. The four grounds on which the respondent No. 1 came to the conclusion that Section 88B would not apply to petitioner's lands, we have stated herein-above, and we shall now examine them in the light of the submission made by the parties. But before we do so, it becomes necessary to deal with an objection raised by Mr. B.R. Shah, the learned Assistant Government Pleader appearing on behalf of the respondents Nos. 1 and 4, almost in the nature of a preliminary objection. Mr. Shah contends that the order of 26th of June 1961 was an appealable order under Section 74 of the Tenancy Act and therefore the Court should not exercise its jurisdiction in favour of the petitioner as he had an equally efficient alternative remedy available and he did not avail of it. Section 74(1)(mb) provides that an appeal would lie against an order under Section 32G. The question that arises for determination is whether the impugned order can be said to be an order under Section 32G. It was contended on behalf of the respondents that the order passed by the Lands Tribunal is not only an order refusing to adjourn the case but also an order rejecting his plea that the lands are exempted. In the application, the petitioner had given reasons in the last but one para for the reliefs that he had sought. In the last para, he asked for three prayers; (a) to file the proceedings, (b) or to adjourn the matter sine die, (c) to give a long adjournment to enable him to get a stay order. Therefore having regard to the contents of the application and the prayers asked for, the rejection of that application does not amount merely to a refusal to grant adjournment and must be taken to be a decision 01 merits of the contentions raised and the refusal of all the prayers that were asked for. He said that an order merely rejecting an application for adjournment would not be appealable but here the petitioner had almost contended that the Lands Tribunal had no jurisdiction and therefore this proceeding should be filed and the Tribunal, after giving reasons, had passed an order rejecting the application and while doing so had also to consider the point whether the lands were exempted from the application of the provisions of the Tenancy Act or not and therefore it must be construed to be an order under Section 32G which is appealable under the aforesaid provisions. To support the argument that Clause (mb) of Section 74(1) contemplates various kinds of orders under Section 32G, Mr. Shah relied on the decision of this Court in Abdul v. State VI G.L.R. 730. It is true that this decision lays down that Section 32G contemplates several orders and not only an order fixing the the price or an order that the tenant is unwilling to be a purchaser. All the same, the question remains as to whether the impugned order is one of such orders which would fall within the ambit of Clause (mb) of Section 74(1) of the Tenancy Act. Having given our full consideration raised, we are not able to agree with Mr. Shah that the impugned order should be taken to be an order on merits on the important and complex question as to whether the examination contemplated by Section 88B could apply to the petitioner's lands or not. The main purport and intent of the application was to have an adjournment or a stay up to the decision of the Deputy Charity Commissioner who was seized of the matter to decide the question as to whether the lands concerned were properties of a public religious trust or not. As this was the main ground on which the exemption could be chimed under Section 88B, the petitioner put that fact in his application as a ground of his prayer to grant an adjournment or stay the matter till the decision was arrived at by the Deputy Charity Commissioner which, it was stated, was likely to be given shortly. It is true that the petitioner also loosely mentioned that determination of the price under Section 32G would be beyond the jurisdiction of the lands Tribunal and the proceedings should therefore be filed, In our view, however, what was meant was that if once it was held that the properties were of a public trust, the exemption under Section 88B would arise and the question for determining the price will not remain to be decided by the Lands Tribunal. But this cannot be construed to mean that the petitioner had by that application raised a sort of a preliminary point challenging the jurisdiction of the Lands Tribunal and requested it to decide it as a preliminary point on merits. As the petitioner had mentioned that his lands are entitled to the benefit of the exemption under Section 88B and therefore the case should not be taken up or be filed, the Lands Tribunal cursorily expressed its view while rejecting the application that Section 83B applied and therefore the petitioner's application was rejected. In our view, therefore, the order passed by the Lands Tribunal in substance was a mere order refusing the prayer to adjourn stay or file the proceeding only because the proceedings were pending before the Deputy Charity Commissioner under the Trusts Act. This order could not be taken to be an order which finally decided that the exemption did not apply to the petitioner's lands under Section 88B and therefore under the facts and circumstances of this case, in our judgment, it was not one of such orders which can be said to fall within the ambit of Clause (mb) of Section 74(1) of the Tenancy Act.
18. Apart from that, it appears that the petitioner did approach the Collector on 29th of June 1961 and the Secretary, Agricultural and Lands Department on the 10th of July 1961. Both the authorities refused to decide the matter and directed him to approach the proper authority for redress. It is true that the petitioner had not used the nomenclature 'appeal' while approaching either of these authorities but the fact remains that being aggrieved by the order of the Tribunal, he had approached the authorities to whom appeal lay under Section 74 of the Tenancy Act. Be that what it may, in any event we do not think that this is a fit case, even if by some stretch of argument it can be said that the impugned order was an appealable order, to refuse to grant an appropriate writ if the petitioner satisfies us that Section 88B would apply and thus the properties could not be deemed to have been purchased by the tenants. Here, there is not the case of a private individual trying to deprive the tenants of their legitimate rights arising under the Tenancy Act under some excuses. The Charity Commissioner has held that the properties are properties belonging to a public religious trust and the petitioner claims that that fact helps the contention that the exemption under Section 88B would apply to the lands. Under these circumstances, we are not accepting the contention raised on behalf of the respondents that we should not exercise our jurisdiction to grant any of the writs under article 226 of the Constitution of India.
19. That takes us now to the consideration of the submission of the petitioner on merits. We would first deal with the first and the third grounds made use of by the Tribunal to hold that Section 88B would not apply. Before we proceed further, it will be convenient to reproduce Section 88 B of the Tenancy Act at this stage:
88B. (1) Nothing in the foregoing provisions except Sections 3, 4B, 8, 9, 9A, 9B, 9C, 10, 10A, 11, 13 and 27 and the provisions of Chapters VI and VIII in so far as the provisions of the said Chapters are applicable to any of the matters referred to in the sections mentioned above, shall apply-
(a) to lands held or leased by a local authority, or University established by law in the Bombay area of the State of Gujarat; and
(b) to lands which are the property of a trust for an educational purpose, a Hospital, panjarapole, Gaushala or an institution for public religious worship;
(c) to lands assigned or donated by any person before the 1st day of August 1956 for the purpose of rendering any of the following services useful to the community, namely; -maintenance of water works, lighting or filling of water troughs for cattle: Provided that-
(1)such trust is or is deemed to be registered under the Bombay Public Trusts Act, 1950, and
(ii) the entire income of such lands in appropriated for the purposes of such trust.
(2) For the purposes of this section, a certificate granted by the Collector, after holding an enquiry, that the conditions in me proviso to Sub-section (1) are satisfied by any trust shall be conclusive evidence in that behalf.
The first ground, as we have seen, on which the order was passed by the Lands Tribunal is that the petitioner had not created a trust in writing and got it registered. Now, it is obvious that Section 88B does not contemplate any written trust being created and got registered under the Indian Registration Act. Therefore, this ground ex facie cannot stand. Then the third ground mentioned in the Lands Tribunal's order is that the Collector's certificate had not been obtained under Sub-section (2) of Section 88B and there fore the exemption would not apply. In our view this is also an extraneous consideration. Sub-section (2) only embodies a rule of evidence and absence thereof could not be made the ground to hold that the exemption would not apply. Sub-section (2) only provides that if such a certificate is obtained, it would bar the jurisdiction of the Lands Tribunal to itself interfere into the matter as to whether the trust is or is deemed to be registered under the Bombay Public Trusts Act, 1950 and that the entire income of such land is appropriated for the purposes of such trust because the certificate would be conclusive evidence. The Lands Tribunal has however given a reverse effect to Sub-section (2) by holding that its jurisdiction is barred to make the inquiry because die certificate is not produced. What was meant only to be a rule of evidence, has been treated as a clog on its jurisdiction. In our view, the non-production of the certificate cannot either bar the jurisdiction of the Lands Tribunal to inquire, nor bar the right of the landlord to produce evidence to prove that facts existed which would entitle him to claim the exemption under that section.
20. Mr. B.R. Shah and the learned Advocates of the respondents in all the petitions except Mr. N.R. Oza appearing for respondent No. 4 in the third petition, conceded that the Lands Tribunal was in error in basing its construction of Section 88B on the aforesaid two grounds. Mr. Oza however, contended that the Lands Tribunal was not wrong when it held that as the petitioner had not obtained the certificate from the Collector under Sub-section (2) of Section 883, the properties could not be exempted from the application of Section 32 or 32G of the Tenancy Act. It was argued that the Lands Tribunal is a statutory tribunal created under the provisions of the Tenancy Act and it can exercise only such powers and discharge such duties as are vested or cast under the Statute and principles applicable to Courts of law in the exercise of its jurisdiction cannot apply to statutory tribunals. We certainly cannot have any quarrel with the principle of law enunciated by Mr. Oza. Mr. Oza further urged that the Lands Tribunal has no power to decide the question contemplated by the proviso to Section 88B that is to say whether any given trust is registered under the Bombay Public Trusts Act and whether the entire income of the land is appropriated for the purposes of the trusts. To support this submission Mr. Oza's argument was two-fold: (i) that Section 68 is the only section which lays down the duties of the Lands Tribunal and there is nothing provided therein which would entitle the Lands Tribunal to decide the aforesaid two questions, (ii) that Sub-section (2) of Section 88B does not merely provide a rule of evidence, but the said Sub-section (2.) read with rule 52 vests an exclusive jurisdiction in the Collector to decide those questions.
21. As regards the latter argument advanced by Mr. Oza, it is pointed out by him that rules are made under Section 82 and looking to the pro cedure to be followed for making those rules and putting them into force, publishing them and laying them before the State Legislature for approval, they should be considered to have the force of law. The combined effect therefore of sub Section (2) of Section 88B read with rule 52 which provides the procedure of inquiry and giving a certificate by the Collector, would be that it vests exclusive jurisdiction in the Collector to decide relevant questions.
22. The language used in Sub-section (2) of Section 88B, in our judgment, does not warrant a conclusion that the Legislature intended thereby to vest an exclusive jurisdiction in the Collector to decide the matters con cerned. It only lays down that whenever such a question may arise in any proceeding, a certificate granted by the Collector that the trust is registered under the Bombay Public Trusts Act and the entire income of the lands belonging to the Trust is used for the purposes of such trust will be conclusive evidence. There is nothing in the language to indicate that it shall exclude the jurisdiction of all other authorities under the Tenancy Act to decide these questions if no such certificate had been obtained by the trust from the Collector, nor does it say that whenever such questions arise for determination, the Collector and no other authority shall have power to decide the questions. The fact that, rule 52 is framed to prescribe the procedure only and it cannot carry the matter further. The substantive provision of any statute cannot be interpreted with reference to the rules framed under the Statute. In any case, having regard to, the language used in Sub-section (2) which to our mind is clear and unambiguous, we find it difficult to accept Mr. Oza's submission that the Collector has exclusive jurisdiction to decide the matter referred therein.
23. As regards the other leg of the contention of Mr. Oza that Section 68 does not vest the Lands Tribunal with the power to decide these questions, Clause (a) of Section 68 is material. It is as follows:
68. It shall be the duty of the Tribunal-
XX XX XX XX XV XX XX XX(c) to decide any dispute under Sections 32 to 32R (both inclusive),XX XX XX XX
In our view, it is wide enough to include the dispute as regards the fact as to whether the land belonging to a trust falling in Clause (b) of Section 88B is exempted from the application of Section 32G of the Tenancy Act. In our view, it is not so much a jurisdictional question. The question in substance is whethar the expression attaches to the land in question and as such it can or cannot be said to have vested in the tenant on the tillers' day or the postponed date. Such a dispute can arise when the Lands Tribunal issues notice to determine the purchase price. We, therefore, reject the contention raised by Mr. Oza on this score.
24. We shall now deal with the second and the fourth grounds mentioned by the Lands Tribunal and which have been challenged by the petitioner to be also erroneous. The two can properly be dealt with together. The combined effect of the two is that the Lands Tribunal held that in order to invoke the bar of exemption provided by Section 88B, the petitioner had first to prove that the trust is registered under the Trusts Act and farther that if the trust was got registered, it had to be got registered before the day the tenants became the deemed purchasers under Section 32 and the lands came in the hands of the Mamlatdar. If the trust is got registered after that day, it cannot affect adversely the right of the tenants-purchasers. As the trust was not so registered, the petitioner could not claim that the concerned lands were entitled to be exempted from the application of Chapter III including Sections 32 and 32G of the Tenancy Act. These grounds would lead us directly to the consideration of the effect of Clause (i) of the proviso on Clause (b) of Sub-section (I) of Section 88 B of the Tenancy Act.
25. But Mr. Nanavati raised a wider question for our consideration by contending that one may not have to go to the proviso, and yet for The lands concerned, the exemption provided by Section 88B can be claimed. The contention was based on the construction of Clause (b) of Sub-section (1) of Section 88B. The argument was that the words 'a trust' only control the expression 'for an educational purpose' and not to the rest of the matters mentioned in Sub-clause (b) that is to say the prerequisite of there being a trust applied only in case where the lands are the property of an institution for the advance of an educational purpose and not when the lands are the property of a hospital, Panjarapole, Gaushala or an institution for public religious worship. As the concerned properties are of the institution for public religious worship, existence of a trust is not necessary at all. Therefore, the question of such trust being registered under the Bombay Public Trusts Act did not arise and the proviso would not come into play at all.
26. In order to support the contention, it was urged that in Clause (a) and in Clause (c) of the said section there was no legislative insistence of there being a trust as a prerequisite to the applying of the exemption. In Clause (c) even if lands were donated or assigned for rendering services useful to the community, like maintenance of water-works, lighting or filling of water-troughs for cattle, the existence of trust was not insisted upon. The legislature has not intended that there should always be a trust in order to give the benefit of the exemption to lands which fall within the purview of Section 88B. This would, therefore, show that the legislature did not intend to insist upon a trust being there even as regards the property of the institution for public religious workship. We find it difficult to agree with this reasoning advanced by Mr. Nanavati. On the contrary, the very fact that the matters mentioned in Clauses (a) and (c) are separated from Clause (b) where only the requisite of trust is mentioned, would indicate that those matters put separately in Clauses (a) and (c) were intended to be treated differently from those which were mentioned in Clause (b) and that those which were lumped together in Clause (b) were intended to be treated alike and on the same footing unless there is some definite indication in the said Clause (b) which would make us come to the conclusion that amongst the matters so lumped together, a different treatment was contemplated. Looking at the clear language used and the fact that all these purposes or matters are put in the same clause, prima facie there appears no reason to accept the construction tried to be put by Mr. Nanavati on Clause (b). There is no reasonable ground to believe as to why the legislature would intend to treat only lands for the benefit of an educational purpose on a different footing than lands for the other purposes such as a hospital, which exist for the purpose of relief to ailing human beings, Panjrapole, or Gaushala which exist for the relief of animals and an institution of public religious worship.
27. It was, however, urged on behalf of the petitioner that the legis lature would be inclined to put the 'educational purpose' on a different footing and insist upon a trust because a large number of educational institutions were found to be run on commercial basis rather than on charitable basis. We have no data to come to such a conclusion and it cannot only be imagined. If this be the criterian, then it would also be equally applicable to hospitals because a large number of hospitals are also run on commercial basis and do not cater to the needs of the poor and the ailing on charitable basis. It was then argued that the purpose which a hospital serves or a Panjarapole or a Gaushala serves may have been found by the legislature to be more useful to the public than education and therefore may not have insisted on the strictness of the existence of a trust. This also does not appeal to us as providing any good basis. Education is certainly a much more crying need of the country than to provide a Panjarapole or Gaushala, in any case, leaving aside the question of hospitals. Then Mr. Nanavati tried to persuade us to accept his submission on the ground that the legislature at least would not be expected to use language which is clumsy or would create an oddity on the face of it. If the word 'trust' is interpreted to govern all the matters, it would create a prima facie oddity particularly when the word 'trust' is read in conjunction with the words 'of an institution for public religious worship'. According to the learned Advocate, the words 'trust for an institution' do not go well together and create an oddity. If the word 'trust' was intended to control the land of the last mentioned purpose also, they would not have used the word 'institution' and would have said only 'for public religious worship'. We, however, fail to see any oddity or absurdity whatever in the use of the word 'trust' in con junction with the words' for an institution for public religious worship'. On the contrary, if the word 'trust' is not used to go with the words 'hospital, Panjarapole or Gaushala' the oddity would arise, for then it would mean that the clause will have to be read as 'lands which are the property of a hospital, Panjarapole, or Gaushala'. Neither of these are any judicial entity that can hold property. If the legislature intended to apply the word 'trust' only to educational purpose, they would have separated the other organisations that is to say hospital, Panjarapole and Gaushala and added as a separate clause as they have done in the case of other two Clauses (a) and (c). But Mr. Nanavati pleaded that this reasoning would imply that the various sections of the Tenancy Act have scientific arrangement at its basis but this reasoning of scientific arrangement cannot be stressed so far as this Act is concerned. On the contrary, it is known for its most inartistic arrangement. As an instance he pointed out that when they added Clause (c) to Section 88B, the proviso which undisputedly applies to Clause (b) was taken away from its original place where it stood and has been placed after Clause (c). This may be true but all the same we are not able to ascertain with reasonableness any grounds as to why the legislature should be inclined to discriminate between these various purposes like education and the rest. The intention of the Legislature is manifested clearly by the language used and it admits of no other construction or meaning than the one that appears on the face of it. We are, therefore, unable to accept the submission of Mr. Nanavati. 28. That brings us to the contention based on the construction of Clause (b) of Sub-section (1) read with the proviso, of Section 88B. Mr. B.R. Shah, the learned Assistant Government Pleader, supporting the stand taken by the Lands Tribunal submitted that in order to claim exemption under Section 88B, it is not enough to prove that a trust for an institution for public religious worship exists as contemplated by Clause (b) but it has to be further established that the requirements of the two clauses of the proviso are also satisfied. We are concerned with Clause (i) of the said proviso in the present case. The petitioner in this case, therefore, has to prove that 'the trust is registered under the Bombay Public Trusts Act, 1950' on the relevant date. It is a position conceded on both sides that the expression 'the trust Is deemed to be registered' in the said Clause (i) has no application to the facts of the present case. The exemption claimed attaches to the land and not to the landlord. The person claiming such an exemption has therefore to prove that the date on which the tenants of the land under law would be deemed to have purchased the lands, the land was exempt from those provisions whereby the tenants become such deemed purchasers. According to Mr. Shah and the other learned Advocates supporting him, the datum line or the relevant date for claiming the exemption in this case is Uth May 1959, which is the postponed date on which the tenants of the trust land become the deemed purchasers, having regard to the provisions of Section 88(1)(c) of the Tenancy Act and in view of the fact that on the 'tillers' day' (1st of April 1957) the trust estate was under the management of the Court of wards and the estate was released from mangement on 11th May 1958. The trust concerning these lands admittedly was registered under the Trust Act by the order of the Deputy Charity Commissioner on 10th of August 1962. The language of Clause (i) of the proviso is unambiguous and is capable of having only one construction and meaning that on the relevant date the trust is proved to be registered under the public Trusts Act, 1950. Under the Trusts Act, the trust is said to be registered when the Deputy or Assistant Charity Commissioner, after an Inquiry made under Section 19, makes the entry under Section 21 of the Trusts Act. In view of these facts and position of law the requirement of proviso Clause (i) was not complied with inasmuch as on the date the petitioner had to claim the exemption for the lands of the trust, it was not registered under the Trusts Act. The consequence is that though the trust lands may have been declared to be lands belonging to the public trust of the Shahe Alam Roza by the Deputy Charity Commissioner, as it was not registered under Section 21 of the Trusts Act before 11th May 1959, the petitioner is not entitled to claim the exemption for the lands under Section 88B and there is no case for issuance of any writ by this Court as prayed for.
29. On behalf of the petitioner, Mr. Nanavati conceding the position that in order to claim the exemption under Clause (b) of Sub-section (I) of Section 88B, the petitioner has not only to prove that the lands belong to the trust for an institution for public religious worship under Clause (b) but also that 'it is registered under the Bombay Public Trusts Act of 1950', under Clause (i) of the proviso and that literally speaking, registration of the trust under the Trusts Act means the physical act of making the entry under Section 21 of the Trusts Act. He further agreed that in law the exemption attaches to the land and not to the landowner and therefore in order to claim the exemption under Section 88B, Sub-section (1). Clause (b), the person claiming the exemption for the land will have to show that it is exempted on the 'tillers' day or the 'postponed date when the tenants would become the deemed purchasers. It was also conceded by him that in the present case, that relevant date is 11th May 1959 and that the entry in the Register of trusts regarding the concerned land was made by the Deputy Registrar under Section 21 of the Trusts Act on 10th August 1962. Mr. Nanavati however contended that it was not correct to say that the language of Clause (i) of the proviso is unambiguous and that it is capable of only one construction and meaning. He urged that on behalf of the respondents a literal construction was tried to be placed on Clause (i) of the proviso when it was contended that the trust claiming the exemption for its land must prove that the trust was registered before the relevant date, that is to say, the entry under Section 21 of the Trusts Act must be shown to have been made before the relevant date, irrespective of the fact whether steps were taken by the Manager or Trustees of the Trust to get the trust registered before the relevant date and that the trust is actually registered some time after the relevant date. It was urged that having regard to the fact that the proviso has to be read with Clause (b) of Section 88B and the fact that the proviso introduces by incorporation the provisions of another statute and further that in each case the question would arise as to which is the relevant date, it cannot be said that the language is unambiguous and that it is capable of a literal meaning only. According to Mr. Nanavati, Clause (i) of the proviso is not capable of a literal meaning as the Court has to find in every case the relevant date with reference to which the fact whether the trust is registered or not is to be determined. Mr. Nanavati submitted that in any case the placing of a literal construction would cause hardship and defeat the very purpose of the provision enacted by Section 88B and therefore if another reasonable construction Is possible which would avoid such a result, such other construction should be put by the Court. It was urged that a literal construction, as is tried to be placed on behalf of the respondents, would cause hardship and defeat the very purpose of giving the advantage to the trusts of the categories mentioned in Clause (b) of Sub-section (1) of Section 88B and in some cases, it would even cause hardship to the tenant and defeat to the tenant and defeat the main purpose of the Tenancy ActSuch cannot be the intention of the Legislature in enacting the proviso. It was submitted that the other reasonable construction to be placed on the proviso, which would avoid causing any hardship or defeating of the purpose of the enactment, is to hold that what the proviso contemplates is that the trust must be registered with reference to or in relation to the relevant date. What the Tribunal has therefore to see is not whether the entry is made in the Register of Trust under Section 21 of the Trusts Act before the relevant date but whether the trust is registered in relation to or with reference to the relevant date. Such a construction is legally possible and would avoid hardship either to the trust or to the tenant and would also not result in the defeating of the purpose of the provision of the Act. It can be seen that the respective submissions of the parties have a large portion of common ground but all the same before we proceed to consider them, it will be expedient to bring out all the facts of the common ground to enable us to fully appreciate the implications of the respective submissions of the parties when they bifurcate. This takes us first to the examination of the relevant provisions of the Tenancy Act and then to the Public Trusts Act.
30. Section 88B read with other provisions of the Tenancy Act discloses the legislative intent to exempt certain land belonging to certain categories of landlords from the application of various provisions of the Tenancy Act. Broadly speaking, the only provisions of the Act that apply and which control the rights of the landlord are as regards the fixing of maximum and minimum rent, the quantum to be received and nontermina-tion of tenancy on mere efflux of time. Over and above that Chapter VI which contains Sections 67 to 80A which deal with procedure and jurisdiction of Tribunal and Mamlatdar and appeals remains applicable. The only other provisions that apply are those miscellaneous provisions contained in Chapter VIII (Sections 82 to 90). The most material and revolutionary provisions whereby lands are deemed to have been purchased by the tenants on the tillers' day (1st April 1957) or the postponed day and the consequential provisions of fixing the purchase price etc. contained in Chapter III (Sections 31 to 43) do not apply. The land-owners who are intended to be given the benefit by exempting their lands from all those provisions are mentioned in Clauses (a), (b) and (c) of Sub-Section 88B was introduced by Amending Act XIII of 1956. By this amending Act as pointed out Sections 31 to 32R were also introduced for the first time. The proviso in Section 88B however came to be introduced in 1957 by the same amending Act but it appears it stood then immediately after Clause (b), it is obvious that the proviso can only apply to Clause (b). But when Clause (c) was introduced in 1958 instead of allowing it to stand under Clause (b) its place is shifted below Clause (c). But that does not make any difference to the point in hand. As stated, Section 32 and 32G with which we are particularly concerned also came to be introduced in the Tenancy Act for the first time by the Amending Act and Section 32 specifically mentioned that the tenant shall be deemed to have purchased from his landlord the land held by him on the 1st April 1957, but subject to the provisions of the next succeeding sections. Therefore reading Section 32 and Section 88B Section (1)(b) together excluding the proviso for the moment from consideration, the effect is that as soon tat these provisions came on the statute book, lands which were the property of the trusts mentioned in Clause (b) would stand exempted from the provisions of all the sections in Chapter HI including Section 32 and 32G. In Clause (b) the word 'are' is used which definitely signifies the present tense. Therefore if the trust existed on 1-8-1956 when these sections came on the statute book, the lands of such trust stood exempted on that very day. But then Clause (b) does not stand alone, it has to be read together with the proviso, and that creates a complex situation giving rise to many problems to be solved.
31. It is now obvious that the question as to whether land which though admittedly the property of a trust of the nature described in Clause (b) of Sub-section (1) of Section 88B, is registered or not would arise in respect of various provisions of the Tenancy Act. For instance in the case as the present one when the dispute arises as to whether the land concerned is exempt or not before the Tribunal when notice is issued for determining the purchase price under Section 32G, the question arises to determine what is the date on which the trust should have been registered to satisfy the requirement of Clause (1) of the proviso. Should it be the tillers' day or the postponed date or the date on which the amendment came into existence. There can be no dispute that the exemption attaches to the land and not to the landowner. The Full Bench decision of this Court in Madhaji v. Mashrubhai III G.L.R. 438 has put that question to rest. Therefore, when the question arises as to whether the land is exempt or not, the exemption must be shown to be attachable with reference to the date on which, but for the exemption attaching to the land, the tenant would be deemed to have purchased the land, under Section 32. Therefore while construing the proviso, which enacts the exemption the question whether 'the trust is registered' has to be decided with reference to that datum line. With regard to the question arising under Section 32 or 32G that relevant date may be either the tillers' day or the postponed date if the case of the landlord falls within one of these provisions where the date gets postponed. For instance in the present case the date got postponed for the deemed purchase under Section 88 (1)(c), the estate of the landlord being managed by the Court of Wards. The property was handed over on 11-5-1958 and therefore the postponed date would be one year thereafter during which the landlord had the right to terminate the tenancy. So the postponed date so far as Section 32 and 32G are concerned, was the 12th of May 1959. There is no dispute about this. Now take the instance of a dispute arising when the Trustee of a Trust falling within the purview of Clause (b) who wanted to terminate the tenancy of tenants who were not actually the tenants on either the tillers day or the postponed date but came on the land thereafter and has to be evicted from the dwelling house and the tenant claims the right given to him under Section 16 which bars the right to evict him unless the exemption under Section 88B can be proved to apply. The question would arise what is the relevant date to be taken into account for the purposes of determining the question of whether the trust is registered. There, no question of vesting of the ownership of land would arise. So the relevant date cannot be the tillers day or the postponed date but it would be some other date, possibly the date of the notice. Similarly say a neighbouring holder wants to construct a water course through the land of the trust, under Section 66A, and applies to the Mamlatdar to enforce the right given therein. The trust claiming the benefit of Section 88B desiring to dispute the right would have to show under the proviso that 'it is registered', which will be the relevant date? It will be a date to be arrived at on some different basis altogether from those in the aforesaid instances. Possibly it may be the date on which the application is filed to enforce the right. Section 63 prohibits transfer of land to non-agriculturist except with permission of the Collector. A trust falling within the categories of the trusts mentioned in Clause (b) sells without permission and the question arises whether the transfer Is invalid. The trust will have to prove that it is a registered trust, to claim exemption from the application of Section 63. What will be the relevant date in reference to which the fact of the trust being registered will have to be proved? It will certainly be some other date than the tillers day or the postponed date, presumably it will be the date of sale. All this discussion would show that Mr. Nanavaty is right when he submitted that the relevant date with reference to which, a trust claiming the exemption for its lands under Clause (b) of Section 88B would have to claim such exemption would not be the same date but would vary from case to case depending on the provision from the application whereof the trust claims that its lands are exempt. So every time a question arises as to whether the trust concerned is a trust registered under the Bombay Public Trusts Act, to enable it to claim the exemption a judicial probe will have to be applied and the question determined from the facts and the relevant provisions of the Tenancy Act. It has, therefore, to be accepted that it cannot be said that the mere reading of Clause (b) with the proviso would admit of only one meaning. The concept of the relevant date has to be imported in the construction of these provisions and relevant date would have to be ascertained by the authority called upon to determine the question of whether the trust can claim the exemption or not and this search would yield different results. Before we switch over to the next topic, one more thing need be noted. We have already seen that the purpose of enacting Section 88B is to give an advantage to some trusts as would fall within the purview of Clause (b) subject to the qualifications prescribed by the proviso. It is obvious that therefore all trusts are not intended to be given that advantage nor are the trusts which are of the categories mentioned in Clause (b) intended to enjoy the advantage, unless they fulfil the requirements of the proviso. Section 88B, Clause (b) therefore carves out an exemption to the general purpose of the Act to give advantage to the tillers of the land by making them the owners of the land. We shall turn to this aspect again a little later.
32. We may now see the relevant provisions of the Bombay Public Trusts Act of 1950. It was put into force in January 1952. Chapter IV deals with Registration of Public Trusts which consists of Sections 14 to 31. Section 14 provides for formations of regions for the purposes of this Act and Section 15 provides for establishing of Public Trusts Registration Office for every region or sub-region. Section 16 authorises the Government to appoint Deputy or Assistant Charity Commissioners to be in charge of such Public Trusts Registration Offices. Section 17 requires the keeping of books, indices and registers, as may be prescribed in every such Registration Office. Section 18 casts a duty on the Trustees of every public trust to to which the Act is made applicable to make an application in the form prescribed for the registration of public trusts, to the appropriate Deputy or Assistant Charity Commissioner giving the particulars inter alia, as mentioned in the section. Section 19 provides for the inquiry to be held for registration by the Deputy or Assistant Charity Commissioner on the receipt of the application under Section 18 or upon an application made by any person interested in a public trust, or on his own motion. Such inquiry is to be held in the manner prescribed for ascertaining the various purposes mentioned in the said section. Some of the purposes need be noted: (1) whether the trust exists and whether such trust is a public trust, (ii) whether any property is the property of the trust, (iii)... (iv) the names and addresses of the trustees and manner of trust, (v)... (vi) the origin, nature and object of the trust, (vii)... (viii)... Section 20 requires the Deputy or Assistant Charity Commissioner to record his finding on the completion of the inquiry under Section 19 with reasons. Section 21 then provides that the Deputy or Assistant Charity Commissioner shall make entries in the register kept under Section 17 in accordance with the findings recorded under Section 20. It further provides that if appeals or applications are made as provided by this Act, then the entries shall be made in accordance with the final decision of the competent authority provided by this Act. Sub-section (2) of the said section provides that the entries so made shall, subject to the provisions of this Act and subject to any change recorded under the following provisions, be final and conclusive. It may be noted that under Section 70 an appeal would lie to the Charity Commissioner over the order or findings made under Section 20 and an application has to be preferred under Section 72 by the person aggrieved by the order made by the Charity Commissioner under Section 70 to the District Court or the City Civil Court as the case may be. Sub-section (4) provides for an appeal to the High Court against the District Court or the City Civil Court. It may be mentioned that some doubt had arisen in our mind having regard to the language used in Section 21, as to whether the entries are to be made in the register, only after the matter was finally decided or soon after the findings are recorded by the Deputy or Assistant Charity Commissioner under Section 20. But after having considered various other provisions, which we do not find necessary to mention.we are satisfied that it is intended by the Legislature that, the entries are to be made soon after the findings are made by the Deputy or Assistant Charity Commissioner and that such entries are to be changed in case the higher authorities make any change in the findings arrived at by the Deputy or Assistant Charity Commissioner. One more section may be referred to. Section 28 provides that public trusts previously registered under prior statutes specified in Schedule A, shall be deemed to have been registered under this Act. Rules are framed under the Act and we may with advantage refer to some of them, Rule 5 provides for maintaining Register of Public Trusts in accordance with the form prescribed. Rule 6 provides the form for application under Section 18. Rule 7 prescribes the manner in which inquiry under Section 19 shall be made. Rule 8 reads as under:
8 When a public trust is enrolled in the Register of Public Trusts a certificate in following form shall be issued to the trustees in token of the registration. Such certificate shall be signed by the Deputy or Assistant Charity Commissioner in charge of the Public Trusts Registration Office and shall bear the official seal.
The form of certificate prescribed states inter alia:
It is hereby certified that the Public Trust described below has this day been registered under the Bombay Public Trusts Act, 1950 (Bom XXIX of 1950) at the Public Trusts Registration Office.
Having had a look at these relevant provisions of the Trusts Act, there can be no manner of doubt that the public trust under this Act would be said to be registered when the entries are made by the requisite authority under Section 21 in the Register of Trusts. The parties are at one on this point. Such entry was made admittedly in the present case on 10th August 1962.
33. We now proceed to deal with the rival submissions made by the parties on the contentions raised by them. On behalf of the respondents in order to support the contention that the exemption can only apply to the lands concerned if the public trust was registered by making the entries under Section 21 of the Trusts Act before the relevant date of 11th May 1959, it was argued that the language of Clause (i) of the proviso is clear and unambiguous and is capable of yielding only one meaning that the trust can be said to be registered only if it is entered into the Register of Trusts kept under Section 21 of the Trusts Act and as it was not registered on the relevant date, the petitioner is not entitled to claim the exemption. It was submitted that the language being unambiguous a literal construction must be placed and there was no scope for the Court for other liberal interpretation to be made. As we have seen, there is no doubt that so far as the Public Trusts Act it concerned, 'registered' means when the entry is made in the Register of Public Trusts under Section 21 of that Act and the proviso if were to be seen only in the light of the Trusts Act, it may be that the submission can be said to have substance in it. But that is not so. It was rightly pointed out on behalf of the petitioner that even on the construction put by Mr. Shah and the supporting advocates, the concept of the relevant date has to be imported while arriving at the meaning of the said provision and as already noted that factor is not a matter of certainty or apparent on the face thereof and a judicial probe is necessary to determine the question as to whether the trust is to be held to be registered or not in a given case depending upon the facts and relevant provisions applicable thereto. Mr. Shah and other learned Advocates supporting him cited a number of decisions and quoted from 'Maxwel' on Interpretation of Statutes and Craies on Statute Law to support their contention that when the language of the given provision of law in question is not only plain but admits of one meaning, the task of interpretation can hardly be said to arise. But we do not find it necessary to mention them here as there cannot be any dispute that it is one of the principles of law of interpretation that when the meaning of the language of the enactment or provision is plain, there really arises no need for construction as the legislative intent is revealed by the meaning and clearly expressed by the language of the said provision. In such cases the provision has to be given a literal interpretation but at the same time as will be pointed out, it is not the only principle or even an invariable principle. Again as indicated the case with which we are dealing is not such a case where that principle of literal construction or no construction would apply. Here we have to resort to construction as we have to go beyond the language of the provision and have to seek assistance of extrinsic aids in order to determine whether this case falls or does not fall within the provision.
34. Mr. Shah also urged that there are decisions that lay down that if the wordings are clear the Court need not be deterred by the consequence of its enforcement, as it is the legislative will that is being enforced. The idea of hardship or inconvenience cannot be allowed to alter the meaning of the language employed by the legislature if such meaning is clear on the face of the statute. Reliance was specially placed on the following two decisions of the Supreme Court (1) The New Piece Goods Bazar Co. v. Commissioner of Income Tax Bombay reported in A.I.R. 1950 S.C. 165. This was an appeal under the Income Tax Act wherein the following observations are made:-
In the concluding part of his judgment the learned Chief Justice said that it was not necessary for him to consider what the exact meaning of the words was and that it was sufficient for him to say that it did not cover municipal taxes which are made a charge on the property under Section 212, Bombay Municipal Act. Without determining the exact meaning of the words used by the statute, it seems to us it was not possible to arrive at the conclusion that the taxes were not within the ambit of the clause. It is elementary that the primary duty of a Court is to give effect to the intention of the Legislature as exorcised in the words used by it and no outside consideration can be called in aid to find that intention.
These are general observations and that it is one of the principles of construction, there can be no dispute. The object or purpose of all construction or interpretation is to ascertain the intention of the law givers and to make it effective. The basic principle indeed is that if the language is plain and certain the bare reading suffices. But situations do arise when the other rules of construction have to be resorted to. In the present case the provisions concerned, themselves make the Court to travel beyond the bare language thereof, to seek the aid of the other provisions of law, as discussed hereinabove.
35. The second case is of Commissioner of Agricultural Income-Tax, West Bengal v. Keshab Chandra Mandal : 18ITR569(SC) . This was also a matter under die Income Tax Act and while meeting the argument raised it was observed:
There is an argument based on hardship or inconvenience. Hardship or inconvenience cannot alter the meaning of the language employed by the Legislature if such meaning is clear on the fact of the statute or the rules.
This also can be of no help to the respondents in the present case for reasons we have already stated.
36. Mr. Shah men relied upon the case of Mohanlal v. Grain Chamber Ltd. reported in : AIR1959All276 wherein the following observations are made:
The well-recognised principles for interpretation of statutes are that the Courts must give first precedence to the plain meaning of the language used in the Statute and if the meaning is clear and quite unambiguous, that meaning must be accepted by the Courts irrespective of other considerations even through the purpose of the Legislature might be defeated by that interpretation.
On the other hand, if the language is such that it is either ambiguous or capable of more than one meaning, the Courts must seek aid from the other provisions of the statute itself, in order to arrive at the proper meaning of the word used in that statute; and that interpretation should be accepted which would result in properly carrying out the intention of the Legislature in enacting that statute. In no case are Courts justified in stretching the language for filling up gaps or omissions or for the purpose of doing justice in individual cases.
Even assuming, these general principles referred to therein as quoting the correct law, in the light of the discussion made hereinbefore, this cannot go to support as such the effort of Mr. Shah to drive us to the conclusion as suggested by him. No one suggests in our case that, individual hardship in a particular case can be the basis for preferring an alternative interpretation if it is available. On the contrary, this case accepts the principle that the language of a statutory provision may be capable of more than one meaning and the one that would result in properly carrying out the intention of the Legislature enacting the statute must be accepted. That is the principle on which the petitioner also wants to rely.
37. It is another well known principle of construction that is well enunciated by the wellknown author Crawford in bis work 'Statutory Construction' at page 292 (1940 Edition) and it is as under:
Since the intention of the legislature constitutes the law of its enactments it is the intention rather than the literal meaning of the statute which controls; or as is generally said, the spirit of the Statute will prevail over the strict letter. Consequently, cases which do not come within the strict letter of the statue, if within the spirit, will fall within the scope of the statute, and cases within the letter of the statute, if without its spirit, will not come within its operation. But this principle is not applicable if the statute is clear and unambiguous, so that there is no doubt concerning the legislative intent. Numerous factors may however, raise such a doubt. It may be raised where a literal meaning leads to absurdity, contradiction, or any other effect which is contrary to the legitimate objects of legislation. As a result, the Court may consider the spirit and reason of a statute where a literal meaning would lead to absurdity, contradiction, injustice, or would defeat the clear purpose of the law-makers.
Mr. Nanavati for the Petitioner who relied upon the above stated principle further relied upon the decision in Tirth Singh v. Bachittar Singh : 2SCR457 . It was decided that where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence. In the said case therefore, though no ambiguity as such existed and literal interpretation was possible still other principles of interpretation were applied.
38.The next decision relied upon by Mr. Nanavati is State of Uttar Pradesh v. C. Tobit and Ors. A.I.R. 1958 S.C. 415. In the said case only question that arose was whether when Section 419 of the Criminal Procedure Code requires 'a copy' of the judgment to be filed along with the petition of appeal, it means simple copy or a certified copy. It was conceded that there can be no doubt that the ordinary dictionary meaning of the word 'copy' is a reproduction or a transcription of an original writing. It was urged there that as the word 'certified' is not prefixed, the word 'copy' has only one meaning and that there being nothing uncertain or ambiguous about the word 'copy', no question of construction or inter pretation of the section can at all arise. Their Lordships negativing the submission held as follows:
It is well settled that the word of a statute, when there is no doubt about their meaning, are to be understood in the sense in which they best harmonise with the subject of the enactment and the object which the Legislature has in view. Their meaning is found not so much in a strictly grammatical or etymological propriety of language, nor even in its popular use, as in the subject or in the occasion on which they are used, and the object to be attached In order, therefore to come to a decision as to the true meaning of a word used in a statute one has to enquire as to the subject-matter of the enactment and the object which the Legislature had in view.
In the case of R.L. Arora v. State of Uttar Pradesh : 6SCR784 (the second Arora Case) on which also reliance was placed by Mr. Nanavaty, it was observed that a literal interpretation is not the only interpretation of a provision in a statute and the Court 'has to look at the setting in which words are used and the circumstances in which the law came to be passed to decide whether there is anything implicit behind the words actually used which would control the literal meaning of the word used in a provision of the statute, This array of decisions would show that in certain circumstances other principles of construction may have to be given preference over the principle of literal construction.
39. eeping these principles of construction in mind we now turn to tackle the problem before us. In our judgment, Clause (b) of Sub-section (1) of Section 88B read with Clause (i) of the proviso is a statutory provision which cannot be said to be such which has only one meaning or such as admits of only one construction and it is therefore permissible to ascertain the intention of the legislature with the help of other rules of construction. It was urged by Mr. Nanavati that the literal construction if made would result in hardship and injustice being caused to the trust for whose benefit Section 88B(1)(b) was introduced and would defect the very purpose for which it was introduced. Not only that but it would also sometimes even work hardship and injustice to the tenants also and thus defeat even the larger purpose of the statute itself. Therefore according to Mr. Nanavati, the other reasonable construction of which the provision is capable of should be adopted and that is that what the legislature has intended is that the authority has to see whether the trust is registered in relation to or with reference to the relevant date and not in the literal sense that the entry itself has been made in the Register of Trusts under sec, 21 of the Trust Act before the relevant date. We shall have to carefully examine this submission in two parts (i) whether the literal interpretation is likely to cause hardship or injustice to the trust and thus defeat the purpose of the provision of Section 88(b) and (ii), whether it is likely to cause any injustice or hardship to the tenant and thus defeat the very purpose of the Act.
40. he submission on behalf of the petitioner on the first part was that the intention in enacting Section (1)(b) was to carve out an exception to the general purpose of the Act. The legislature intended that lands of certain religious and charitable trusts should be exempt from those provisions of the Tenancy Act that would make the tenants the deemed purchasers of the respective lands in their possession on the appointed day or the postponed dates as the case may be. That being the purpose, the literal construction, which would defeat that purpose or cause injustice to these very trusts must be avoided. In the instant case, for example, great hardship and injustice would be caused to the trust if such literal construction, is placed. While the petitioner was even a minor as far back as 1953 the Collector as the guardian had applied under Section 18 to have the trust registered under the Trusts Act. He of course then sought permission to withdraw the application on 22-2-1955 and though such permission was granted on 6-3-1956, the Deputy Charity Commissioner under the powers vested in him in Section 19 of the Trust Act continued suo motu the inquiry being No. 176 of 1956. Then even the petitioner had applied on 29-11-1960 for such registration. The inquiry, however having already been afoot, no new number was given to his application and the inquiry continued. As already noticed the Tenancy Act was amended and Section 88B and Chapter III containing the material Sections 32 to 43 were brought on the statute book on 1st August 1956 whereby the tenants were made deemed purchasers on the relevant dates. Due to there being a large number of complicated nature of the questions, arising in the case, it took years for the Deputy Charity Commissioner to arrive at the necessary findings and give his decision under Section 20 of the Public Trusts Act and the entry under Section 21 therefore came to be made on 10th August 1962. Without any fault, delay or neglect on the part of the Trust, and though proceedings were started about three years prior to the relevant date, due to circumstances and factors beyond the control of the Trustee or Manager of this Trust, it came actually to be physically registered beyond the relevant date. Could it be said that the Legislature intended, by enacting Clause (i) of the proviso to create such an effect, resulting in injustice and defeating the very purpose of giving an advantage to the trust? Mr. Nanavaty submitted, it could not be so.
41. In order to emphasise bis point he further reasoned that supposing, the trust claiming to be within the purview of Clause (b) of Section 88B, were to apply in time and the decision is arrived at by the Deputy Charity Commissioner before the relevant date but the decision is that it is not a Public Charitable or religious trust and therefore cannot be registered under Section 21 of the Trust Act. The trust goes in appeal and the final authority decides in favour of the trust, but much after the datum line or the relevant date, would the trust then lose for all times the advantage, merely because the Deputy Charity Commissioner took a wrong view of the matter and the correct decision was arrived at by the highest authority subsequent to the relevant date? Once again Mr. Nanavati submitted, the answer must be in the negative.
42. On other hand, on behalf of the respondents it was contended that merely because in some stray and exceptional cases some hardship results to the trust, that cannot be the criterian to decide how the proviso should be construed. It was urged that it may be that by Section 88B(1)(b), legislature intended to give some advantage but what is to be noted is that neither all trusts generally nor even all trusts falling within the categories given in Clause (b) are intended to be given the benefit by the legislature. The legislature has further to get the benefit by enacting the proviso and it being a proviso it zmust be strictly construed, and even if in some stray case some hardship or injustice is caused, it would be no good ground to adopt a liberal construction as suggested on behalf of the petitioner. In order to stress this point Mr. Shah argued that the Public Trusts Act came into force as far back as January 1952 and the Tenancy Amendment Act in August 1956 and the tillers day was fixed on 1-4-1957 and the postponed dates were still further apart, and the legislature may in its wisdom decide that as a long period of more than five years would elapse, only such trusts as were already registered on the 'relevant date' or the datum line should only get the benefit, and if some trusts either due to negligence or want of promptness are not so registered or in very exceptional cases like the one on hand remain to be registered beyond the relevant date, they should be ignored even if any injustice or hardship is caused. Afterall when such provisions fixing a time limit or datum line for coming into effect of certain benefits, restrictions or creation or extinguishment of rights are enacted some cases are bound to arise where such provisions would work hardship or injustice. Besides no date or evidence is furnished on the record of this case which would show that any other trust has suffered any such injustice or hardship as pointed out by the petitioner and the court would not be justified in stretching the language for the purpose of doing justice in an individual case. Mr. Nanavaty tried to counter the latter argument by saying that the fact of about five years having elapsed cannot be of much use to the respondents because the provision of Clause (b), Section 88B(1) is not meant to give advantage to only those old trusts which existed prior to the Public Trusts Act but also to those which may come into existence much later say in 1955 or even 1956, therefore such a basis cannot be a relevant factor to be taken into account in finding the intention of the Legislature. In our view even assuming what Mr. Nanavaty says is true, we find force in what Mr. Shah has to submit that there is no data before us to come to the conclusion that there are any substantial number of trusts so adversely affected. It would have been possible from the records of the Charity Commissioner to produce such data on the record of this case. Court would not be justified in putting a construction on a vital provision like this on a mere hypothesis or for an individual case or may be even a few stray cases. We must say, on this part of the submission of Mr. Nanavaty that if it were the only consideration then we would hesitate to put the wide or liberal construction suggested by him.
43. We now take for consideration the second part of Mr. Nanavaty's submission. It was argued that the construction canvassed for by the respondents would also cause definite Injustice to the Tenants also in some cases and defeat the very purpose of the whole Act. To illustrate his point, he submitted that a case where on an application or a suo motu inquiry by the Deputy Charity Commissioner, it is decided that the trust which answers the description mentioned in Clause (b) of Section 88B(1) is a public religious trust and entry in the Register of Trusts is made under Section 21 of the Trusts Act before the relevant date and the certificate of registration as detailed herein above is also issued but years thereafter, the final authority reverses the decision and decides in favour of the tenants. As according to the respondents, the Lands Tribunal will have only to see when the notice comes up before him soon after the tillers day or the postponed date whether the trust is entered in the Register of Trusts or not and if it is, then the exemption must be held to apply and the tenants will be held not to have purchased the lands. The lands would then remain the property of the trust. There will be no restrictions on transfer of such property under the Tenancy Act as there would otherwise be, as we have already seen and may be, the rights of third persons may have come into existence by the time the final decision is taken. Under such a situation great hardship and injustice would be done to the tenants for whose benefit and uplift the Tenancy Act and particularly Chapter III was added to it to make them the owners of the lands they till. If such is the situation then in our view, it would require very serious consideration by the Court. But Mr. Shah, in order to minimise the rigour of the submission contended that such a situation would never arise. Mr. Shah nor any other learned Advocate supporting him did not for a moment contend that if such a situation were to arise even then the Court should adopt the construction canvassed for by them. It was argued that it is true that if the Deputy Charity Commissioner were to decide wrongly before the relevant date the entry would be made in the Register of Trusts before the datum line also but that entry becomes final subject to the decision of the final authority and as soon as the final authority decides the matter in favour of the tenants the entries made in the Register of Trusts will be knocked out and therefore the tenants would never suffer any injustice or hardship. We find it rather difficult to accept this train of reasoning of Mr. Shah. It obviously suffers from various infirmities. The first and foremost is that it almost supports the position that Mr. Nanavaty is canvassing for. If the existence or nonexistence of the entry of such trust in the Register of Trusts as it stands on or before the relevant date is not to decide the fate of the controversy for all times but the entry in accordance with the final decision made years after the relevant dates is to be taken into account, how can the construction canvassed for by the respondents stand. The very basis of that construction is that the lands Tribunal has when the question arises under Section 32G of the Tenancy Act, to merely see whether the Trust is registered on the 'relevant date' or not. If it is registered then the matter ends and it will have to be held that the trust is registered and therefore the exemption applies and the tenants are not deemed to have purchased the lands and they as mere ordinary tenants with no more protection than that indicated by us in the earlier part of our judgment. The construction canvassed for by Mr. Shah prohibits the taking into account of such facts as the application before the Deputy Charity Commissioner being pending or the proceedings before the higher authorities pending or any subsequent change taking place in the Register of Trusts. Secondly, if what Mr. Shah says were to be accepted, it would mean that though the correct decision may be arrived at much after the datum line, it could be taken into account and the wrong entry made in the Register before the relevant date can be subsequently corrected and the tenant may not be nude to suffer and things can be put right. This implies that the Lands Tribunal can take factors other than the one and only one whether the trust is registered or not i. e. to say it stands entered in the Register of Trims on the 'relevant date' Again if this could be taken into account when it affects the interest of the tenants why not in the case of Trusts? Further more it is a moot question as to whether after years when the matter is decided finally and as stated above, rights of third persons may have come into force and may be in some cases, the tenants may have been even evicted under the ordinary law of the land, they having lost all extra-ordinary protection of the Tenancy Act, any amendments ace possible to be made under law. We feel therefore that the reasoning Mr. Shah is forced to adopt, would in a way support the construction canvassed for by Mr. Nanavaty. It impliedly accepts the position that the Lands Tribunal must not take the sole fact of the trust being entered in the Register of Trusts on or before the datum line but other factors too as pointed out herein. We do see therefore that there is a lot of substance in the submission made by Mr. Nanavaty that the literal or the construction canvassed for on behalf of the respondents is put on the proviso, substantial injustice to the tenants or the defeating of the very purpose of the Tenancy Act is likely to be caused. The case of the tenants stand on a different footing in a way than that of the trusts, as there is the larger or the overriding interest intended to be protected by the Legislature. The Court must therefore be most reluctant to put any construction on the provisions under consideration as would defeat the purpose of the Act. That such is the purpose of the Tenancy Act is not in dispute and that Legislative purpose is the reason why this enactment was passed. The ascertainment of the purpose naturally strongly irdicates the legislative intention. Again, the reasoning that could be adopted in the case of Trusts that stray cases of hardship to some trusts cannot be allowed to dictate the decision what construction to adopt, for in the case of adverse effect to tenants the very basis of the Tenancy Act is adversely affected. Again, as far as tenants are concerned, even in a matter of one trust, a large number of tenants may be done injustice. For instance even one or two trusts that hold very large estates may have hundreds of tenants on their lands. Numerical conside-ation also, therefore, does not stand on the same footing. In our judgment, therefore, Mr. Nanavaty's submission is correct that the construction as put by the respondents may in the case of tenants also cause injustice or hardship and we, therefore, prefer to accept the other construction suggested by him which is a reasonable one. The result is that when the question arises for determination as to whether Section 88B applies to a trust mentioned in Clause (b) thereof it has to be seen under Clause (i) of the proviso whether the Trust is registered in relation to the relevant date. In the present case, the Deputy Charity Commissioner has held that the trust of of the nature contemplated by Clause (b) of Section 88B(1) is in existence since before the datum line, it is also an undisputed fact that the proceedings to get the Trust registered bad started years before the 'relevant date', but the entry in the register of trusts was ordered to be made about three years thereafter and the matter is still pending in appeal. In the light of the view we have taken, it cannot be said that the trust in question does not fall within the ambit of proviso (i) to Clause (b) of Section 88B(i) and therefore is not entitled to the benefit of Clause (b) of Sub-section (1) of Section 88B. Consequently, all the grounds of the order passed by the Lands Tribunal have to be held to be erroneous and on that score the petitioner in Special Civil Application No. 475 of 1961 must succeed to that extent, subject to the observations made hereinafter. We would like to make it clear that while coming to this conclusion we may not be taken to have decided any distputed questions of fact. We have based our conclusions regards the existence of the instant Trust as a trust for an institution for public religious worship on the finding and order of the Deputy Charity Commissioner dated 10th August 1962 under Section 20 of the Bombay Public Trusts Act, 1950, and we keep the question open as to what can be the effect on the rights of the parties, in case the final authority were to come to a contrary decision than that of the Deputy Charity Commissioner.
44. We hold that the trust in question would fall within the ambit of Clause (b) of Sub-section (1) of Section 88B of the Tenancy Act, read with proviso (i) to the said Clause (b), so long as the entry in regard to the trust in question stands in the Register of Trusts. If and when any competent authority under the public Trusts Act holds that the Trust is not a public trust for an institution for public religious worship or that it was not a trust existing on the datum line, it will be open to the Lands Tribunal to deal with the matter in the light of the finding, according to law. The impugned order is therefore quashed.
45. That takes us to the two other Special Civil Application Nos. 1107 of 1962 and 957 of 1963. We have stated in the earlier part of our judg ment the relevant facts of these two petitions. They clearly show that the Lands Tribunal has not taken any decision whatever nor passed any order which is likely to prejudice the petitioner in any way. Both the matters out of which these two petitions have arisen are before the Land Tribunal. There are no facts or circumstances in respect thereof which would require or justify grant of writ of prohibition or any other writ or even any order of declaration. In Special Civil Application No. 957 of 1963 anumber of contentions other than those we have dealt with are raised, but we are not entering into the merits of these two petitions at all and having regard to the facts stated hereinabove, they will have to be dismissed in limine without prejudice to the rights of the parties in respect of contentions raised and countered in the said petitions.
The Special Civil Application No. 475 of 1961 is allowed to the extent stated hereinabove and Rule made absolute to that extent.The Special Civil Applications Nos. 1107 of 1962 and 957 of T^63 are rejected. Rule discharged. In all the Civil Applications each party to bear its own cost.