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Hiraben D/O Ranchhodbhai Odhavbhai Vs. Pragjibhai Shankerbhai, by His Heir and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtGujarat High Court
Decided On
Judge
Reported in(1978)19GLR24
AppellantHiraben D/O Ranchhodbhai Odhavbhai
RespondentPragjibhai Shankerbhai, by His Heir and ors.
Cases ReferredKing v. Chandra Dharma
Excerpt:
.....such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing act or regulation bad not been passed. in the instant case, the plaintiff bad filed the aforesaid suit in the year 1955, and hence i direct that at every stage, the matter should be decided by the concerned forums as expeditiously as possible, and that no delay on any flimsy ground should be caused so as to hamper the cause of justice......in this revision application is: whether the mamlatdar has jurisdiction to decide the question of past tenancy after gujarat amendment act 5 of 1973 came into force on march 8, 1973, particularly when before coming into operation of the said act, the high court had directed the civil court to decide the question of past tenancy following the judgment of the supreme court in musamia lmarn v. rabari govindbhai a.i.r. 1969 supreme court, 439.2. a few relevant facts giving rise to the present revision application may be stated in brief.3. the applicant had filed a suit being special civil suit no. 12 of 1955 for recovering possession of agricultural properties, houses and building sites from original defendant no. i on the ground that the applicant and opponent no. 2 being the full sisters.....
Judgment:

A.N. Surti, J.

1. The question of jurisdiction which I am required to decide in this revision application is: Whether the Mamlatdar has jurisdiction to decide the question of past tenancy after Gujarat Amendment Act 5 of 1973 came into force on March 8, 1973, particularly when before coming into operation of the said Act, the High Court had directed the Civil Court to decide the question of past tenancy following the judgment of the Supreme Court in Musamia lmarn v. Rabari Govindbhai A.I.R. 1969 Supreme Court, 439.

2. A few relevant facts giving rise to the present revision application may be stated in brief.

3. The applicant had filed a suit being Special Civil Suit No. 12 of 1955 for recovering possession of agricultural properties, houses and building sites from original defendant No. I on the ground that the applicant and opponent No. 2 being the full sisters were the owners and became entitled to the possession of the said properties on the remarriage of opponent No. 3 on June 19, 1954, who was originally the widow of their deceased brother Bhagwanbhai Ranchhodbhai, who died intestate on May 22, 1946, leaving behind him the suit properties in the hands of his heir defendant No. 3 who inherited the same as widow's estate. On her remarriage she lost all her rights to the properties, and the applicant and opponent No. 2 became fully entitled to possession of the same as reversionary heirs of the deceased Bhagwanbhai Ranchhodbhai. It was the case of the applicant that the original deceased defendant No. 1 Paragbhai Shankerbhai in collusion with defendant No. 3 dealt with the suit properties adversely to the interests of the applicant and defendant No. 2 and got in wrongful possession of the same. In substance, the said suit for possession was, therefore, directed against original defendant No. 1 as a trespasser.

4. The original deceased defendant No. 1 resisted the suit on various grounds, one of the grounds being that he claimed the possession of the suit property as a tenant thereof. The learned trial Judge raised the various issues and the relevant issues in regard to the tenancy rights are Issues Nos. 11 and 12, and he answered them against original defendant No. 1.

5. The trial Court ultimately disposed of the suit by its judgment and decree dated July 7, 1968 declaring the applicant's half share in the suit properties and gave a decree of partition of the said half share with original defendant No. 1.

6. Both the contesting parties were aggrieved by the judgment and decree given by the trial Court and two different appeals being First Appeal No. 551 of 1958 and 597 of 1958 were filed in the High Court of Bombay at Bombay. The said appeals were ultimately transferred to this Court on bifurcation of the State, and they came up for hearing and disposal before V.B. Raju, J. who by his judgment and decree dated 28th November, 1962 held that the lower Court was in error in considering the issue regarding the tenancy, and, therefore, reversed the judgment and decree of the trial Court, and directed the trial Court to follow the procedure under Section 85A of the Bombay Tenancy and Agricultural Land Act, 1948. On remand, the trial Court as per the judgment of this Court made the reference to the Mamlatdar, Wagra, district Broach, on the following issue:

Whether the defendant No. 1 proves that on the date of the filing of the suit that is on 18th October, 1955 he was a tenant of the suit lands as mentioned in paragraph 20 of the written statement Ex. 18?

7. The Mamlatdar, Wagra, the District Deputy Collector, Broach and the Gujarat Revenue Tribunal consistently held that the original defendant No. 1 was not a tenant in Tenancy Case No. 39 of 1964, Tenancy Appeal No. 111 of 1965 and TEN. A. 904 of 1967.

8. The heirs of original defendant No. 1 (i.e. opponents Nos. 1/1 to 1/5) filed an application being Special Civil Application No. 954 of 1968 as they were aggrieved by the orders passed by the revenue forums as stated above. On the strength of Musamia's case (Supra) reported in 1969 S.C. 439, opponents Nos. 1/1 to 1/5 challenged the jurisdiction and the orders of the aforesaid revenue forums on the ground that they could not decide the question of past tenancy. This Court accepted the said contention of opponents, and by the judgment and order dated 8th September 1972, held that as it was the ease of past tenancy, and the aforesaid issue Should not have been referred to the Mamlatdar under the Tenancy Act, and the said issue regarding the tenancy should be decided by the Civil Court, and accordingly this Court directed the Civil Court to decide the said issue.

9. By Gujarat Act 5 of 1973, which came into force on March 3, 1973, Section 70(b) of the Tenancy Act was amended. By the amending Act, specific jurisdiction is conferred on the Mamlatdar to decide the issue even in regard to the past tenancy.

10. In view of the aforesaid amending Act opponents Nos. 1/1 to 1/5 gave an application Ex. 260 to the trial Court to make a fresh reference to the Tenancy Court. The trial Court by its judgment dated November. 29, 1975 granted the application and ordered the reference of the issue of tenancy to the A.L.T. and Mamlatdar, Wagra, district Broach.

11. The petitioner-plaintiff was aggrieved by the impugned order passed by the learned trial Judge on 29th November, 1975 on Ex. 260 and has filed the present revision application in this Court.

12. It is under these circumstances, that I am required to decide in this revision application, whether the Mamlatdar has jurisdiction to decide the question of past tenancy after the Gujarat Amending Act No. 5 of 1973 Game into force on March 8, 1973 particularly when before the passing of the said Act the High Court had directed the Civil Court to decide the question of past tenancy following the judgment in Musamia's case (supra).

13. At the very outset of the hearing of the application, the learned advocate appearing for the petitioner-plaintiff conceded before me that the aforesaid amending Act 5 of 1973 is retrospective in its operation (vide Alimlya Mirumiya v. Mohmedhusen 16. G.L.R. 999). Mr. Vin also conceded before me that the aforesaid amending Act No. 5 of 1973 is an Act affecting the procedural law and not the substantive law. But Mr. Vin contended that in the instant case, and more particularly having regard to the facts of the present case, when this Court had directed the Civil Court to decide the question of past tenancy, it will not now be open to the learned trial Judge to refer the said issue of past tenancy to the Mamlatdar.

14. In order to justify the submission, Mr. Vin invited my attention to Section 7 of the Bombay General clauses Act, 1904 which provides as follows:

7. Where this Act, or any Bombay Act (or Gujarat Act) made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, than, unless a different intention appears, the repeal shall not-

(a) ... ... ... ... ... ... ... ... (b) ... ... ... ... ... ... ... ... (c) ... ... ... ... ... ... ... ... (d) ... ... ... ... ... ... ... ...(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing Act had not been passed.

15. In order to justify the submission, Mr. Vin also invited my attention to the reported decision in N.G. Mitra v. State of Bihar : 1970CriLJ1396 . Mr. Vin read out before me the following observations of the Supreme Court in paragraphs 5 and 6 of the aforesaid judgment:

It is true that as a general rule alternations in the form of procedure are retrospective in character unless there is some good reason or other why they should not be in James Gardner v. Edward A. Lucas (1878) 3 A.C. 582 at p. 603, Lord Black-burn stated:

Now the general rule, not merely of England and Scotland, but, I believe of every civilized nation, is expressed in the maxim, 'Nova constitution futur-is formam imponere debt, non practeritist'-prima facie, any new law that is made affects future transactions, not past ones Nevertheless, it is quite clear that the subject-matter of an Act might be such that, though there were not any express words to show it, it might be retrospective. For instance, I think it is perfectly settled that if the Legislature intended to frame a new procedure, that instead of proceeding in this form or that, you should proceed in another and a different way; clearly there bygone transactions are to be sued for and enforced according to the new form of procedure. Alterations in the form of procedure are always retrospective, unless there is some good reason or other why they should not be. Then, again, I think that where alterations are made in matters of evidence, certainly upon the reasons of the thing, and I think upon the authorities also, those are retrospective, whether civil or criminal'. In the King v. Chandra Dharma (1905) 2 KB 335, Lord Alverstone, C.J., observed as follows:

The rule is clearly established that, apart from any special circumstances appearing on the face of the statute in question, statutes which make alterations in procedure are retrospective. It has been held that a statute shortening the time within which proceedings can be taken is retrospective (The Ydun, 1899 P. 236), and it seems to me that it is impossible to give any good reason why a statute extending the time within which proceedings may be taken should not also be held to be retrospective. If the case could have been brought within the principle that unless the language is clear a statute ought not to be construed so as to create new disabilities or obligations, or impose new duties in respect of transactions which were complete at the time when the Act came into force, Mr. Compton Smith would have been entitled to succeed; but when no new disability or obligation has been created by the statute, but it only alters the time within which proceedings may be taken may be held to apply to offences completed before the statute was passed. That is the case here.' It is therefore clear that as a general rule the amended law relating to procedure operates retrospectively. Bat there is another equally important principle viz. that a statute should not be so construed as to create new disabilities or obligations or impose new duties in respect of transactions which were complete at the time the amending Act came into force (See in re a Debtor, 1936 Ch. 237 and in re Vernazza, 1960, AC 985). The same principle is embodied in Section 6 of the General clauses Act which is to the following effect.

6. Effect of repeal.-Where this Act or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not-

x x x x x x(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or

x x x x x x(c) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid: and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation bad not been passed.

16. In para 6 the Supreme Court observed as follows:

The effect of the application of this principle is that pending cases, although instituted under the old Act but still pending, are governed by the new procedure under the amended law, but whatever procedure was currently adopted and concluded under the Old law cannot be opened again for the purpose of applying the new procedure.

17. In the light of the aforesaid observations of the Supreme Court, Mr. Vin emphasised that in the instant case, as this High Court had correctly directed the trial Court to try the issue in question in accordance with the judgment delivered by the Supreme Court in 'Musamia's case (supra), I should set aside the impugned order passed by learned trial Judge.

18. It is not possible for me to agree or accept the submission made by Mr. Vin for the simple reason, that in the instant case, no new or any future transaction was entered into by the parties as observed by Lord Blackburn in James Gardner's case (supra). It is equally clear to my mind, that as a general rule, the amended law relating to procedure operates retrospectively. In the instant case, the amending Act cannot be construed so as to create any new disability or obligation or impose new duties in respect of transactions which were already complete and concluded at the time when the amending Act came into force. In this view of the matter, it is not possible for me to agree or accept the submission made by Sir. Vin.

19. Section 17 of Gujarat Act No. 5 of 1973 amended Section 70 of the Tenancy Act of 1948 and that is in the following words:

(i) In Section 70 of the principal Act in Clause (b), for the words 'is a tenant' the words 'is or was a tenant' shall be substituted;

20. Section 22 of the Gujarat Amending Act No. 5 of 1973 amended Section 85A of the Principal Act (Tenancy Act) and the same is in the following words.

In Section 85A of the principal Act, in Sub-section (1) for the words 'instituted in any Civil court' the words, 'instituted, whether before or after the specified date, in any civil Court' shall be substituted.

21. In view of the aforesaid clear provisions contained in the Gujarat Amending Act No. 5 of 1973, it is clear to my mind that the legislative intent is clear and certain and consequently, I must necessarily come to a conclusion that the Mamlatdar is the only proper forum who is now having he jurisdiction to decide the question of past tenancy after the Gujarat Amending Act, 1973 came into force in spite of the fact that this Court did direct the Civil Court to decide the question of past tenancy following the judgment of the Supreme Court in Musamia's case (supra).

22. No other submission was made by Mr. Vin in course of the hearing of this revision application. As a result of the aforesaid discussion, it is not possible for me to disturb the impugned order passed by the learned trial Judge, and hence, the revision application fails and the rule is discharged with no order as to costs. In the instant case, the plaintiff bad filed the aforesaid suit in the year 1955, and hence I direct that at every stage, the matter should be decided by the concerned forums as expeditiously as possible, and that no delay on any flimsy ground should be caused so as to hamper the cause of justice.


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