Case: Shankar Madhoji Nemade Vs. Chisuji Janaji Bhadke & Ors

Vaidialingam, J.1. The appellant was a protected lessee within the meaning of the expression contained in the Berar Regulation of Agricultural Leases Act, 1951 (Act 24 of 1951) (hereinafter called the Berar Act) in respect of the suit lands bearing survey No. 23 of an extent of 7 acres and 4 gunthas under the 5th respondent herein who was then the original owner of the lands. The 5th respondent served on the appellant (hereinafter called the tenant) a notice dated December 28, 1955 under Section 9 (1) of the Berar Act terminating the tenancy of the appellant on the ground that he required the lands for personal cultivation: and he also submitted an application to the Revenue Officer under Section 8 (1) (g) of the Berar Act for an order determining the tenancy. The 5th respondent obtained an order from the Revenue Officer on May 15, 1956 directing the tenant to surrender possession of the lands. The 5th respondent in pursuance of the order of the Revenue Officer obtained possession of the lands on April 4, 1957 and continued in such possession till June 21, 1961 on which date he transferred the suit lands to the first respondent (hereinafter to be referred as the landlord) and got in exchange 8 acres in survey No. 33 plus an amount of Rs. 13,000/-. In the meanwhile on Dec. 30, 1958 the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act of 1958 (Act No. XCIX of 1958) (hereinafter called the Bombay Act) came into force.2. The tenant filed an application under Sec. 52 of the Bombay Act before the Naib Tahsildar, Achalpur against respondents Nos. 1 and 5 for restoration of the possession of the suit lands on the ground that the original owner, the 5th respondent, had ceased to cultivate the lands personally within the period of 12 years after obtaining possession of the lands on April 4, 1957. The Naib Tahsildar by his order dated November 14, 1962 dismissed the application on the ground that Section 52 does not apply and hence the application was not maintainable. On appeal by the tenant the Special Deputy Collector, Amravati by his order June 30, 1964 reversed the decision of the Naib Tahsildar and directed the landlord to restore possession of the lands as prayed for by the tenant. The first respondents revision challenging the order of the Special Deputy Collector was dismissed on August 5, 1965 by the Maharashtra Revenue Tribunal. The Revenue Tribunal while dismissing the revision petition, inter alia, held that the tenant was a protected lessee and that in pursuance of the proceedings taken by the 5th respondent in terms of the notice under Section 9 (1) of the Berar Act, the tenant was deprived of the lands and his tenancy rights on the ground of personal cultivation by the then owner of the lands. The Tribunal further held that as the 5th respondent had transferred the suit lands in favour of the first respondent on June 21, 1961, the former must be considered to have failed to use the lands for the purposes specified in his notice within 12 years from the date on which he took possession and in consequence the tenant was entitled to be restored to possession under Section 52 of the Bombay Act. On this reasoning the Revenue Tribunal confirmed the order of restoration passed by the Special Deputy Collector in favour of the tenant.3. The first respondent filed a writ petition under Article 227 of the Constitution, being Special Civil Application No. 831 of 1965, in the High Court of Bombay (Nagpur Bench) challenging the orders for restoration passed against him by the Special Deputy Collector and the Maharashtra Revenue Tribunal. The High Court by its judgment and order dated August 19, 1966 has set the orders of the Special Deputy Collector and the Revenue Tribunal thus restoring the order of the Naib Tahsildar and has dismissed the application for restoration filed by the tenant. The tenant challenges the decision of the High Court in this appeal by special leave.4. The High Court in its order under appeal has recorded the following findings: The original owner, the 5th respondent, was entitled to terminate the lease of the tenant by giving a notice under Section 9 (1) of the Berar Act. He accordingly terminated the tenancy by giving notice dated December 23, 1955. After initial proceedings under Section 8 (1) (g) read with Section 19 (1) of the Berar Act, the owner also obtained-Possession of the lands on April 4, 1957. Under the Berar Act there was a duty cast on the landlord to cultivate the lands personally for a period of 2 years and in this case the 5th respondent has complied with this requirement. As possession was taken from the tenant by the 5th respondent when the Berar Act was in operation and as the latter had cultivated the lands for a period of 2 years, as required by Section 9 (6) of the Berar Act, the tenant had ceased to have any rights after the expiry of the period of 2 years and hence Section 52 of- the Bombay Act was not applicable and it follows that the application for restoration under that section filed by the tenant was not maintainable. The position is concluded against the tenant by an earlier Full Bench decision of the High Court reported in Saraswatibai v. Bhikamchand Premsukhdas, (1966) 68 Bom LR 954 = (AIR 1967 Bom 158 ) (FB) wherein it had been held that when possession of the lands had been taken before coming into force of the Bombay Act, the rights and liabilities of the parties are governed by the Berar Act and that Section 52 of the Bombay Act has no retrospective operation. On these findings the High Court by its order allowed the writ petition of the first respondent.5. Dr. Barlingay, learned counsel for the appellant, has urged that having due regard to the scheme of the Berar and Bombay Acts, the High Courts view that Section 52 of the Bombay Act has no application, is erroneous. In this case, he pointed out that Bombay Act has come into force on December 30, 1958 even before the expiry of the period of two years from April 4, 1957. on which date the original owner, the 5th respondent, had re-entered into possession after terminating the lease. Section 52 of the Bombay Act contains provisions substantially similar to Section 9 (6) of the Berar Act which was repealed and the only change was that the Bombay Act enlarged the period for which the landlord was required to continue to cultivate land personally from two years to 12 years. As the enlarged period under the Bombay Act has come into operation before the expiry of the shorter period under the Berar Act, which was repealed, the landlord was bound to conform to the requirements of the larger period provided under - the Bombay Act. In this case the 5th respondent had transferred the suit lands to the first respondent on June 21, 1961 and hence there has been a failure in law on the part of the 5th respondent to utilise the lands for the purpose of personal cultivation for the period mentioned in S. 52 of the Bombay Act and so the said section fully applies and the dismissal of the tenants application for restoration by the High Court is opposed to the mandatory provisions of the Bombay Act. The counsel, further pointed out that in the Full Bench decision, on which the present judgment of the High Court is rested is not applicable for the reason that the Full Bench was dealing with a case where the period provided under Section 9 (6) of the Berar Act had already expired before the coming into force of the Bombay Act, whereas in the case on hand even before the expiry of that two years period the Bombay Act has come into force. This material difference has not been noted in the present order by the High Court. He further urged that if the Full Bench decision applies, as held by the High Court, it should be held by this Court that the Full Bench decision is not correct.6. Mr. M. S. Gupta, learned counsel for the first respondent landlord raised a preliminary objection to the hearing of the appeal and prayed for cancellation of the special leave granted by this Court on January 11, 1967. According to him the appellant has made deliberately certain false statements in his application for grant of special leave. We will revert to this aspect a little later. On merits Mr. Gupta contended that the obligation of his clients transferor, the 5th respondent, after obtaining possession of the lands from the tenant under the Berar Act was only to cultivate the lands for two years. Admittedly in this case the 5th respondent had cultivated the lands for the said period of two years and the obligation incurred by him under Section 9 (6) of the Berar Act having been duly complied with, Section 132 (2) of the Bombay Act stands attracted. The counsel pointed out that Sec. 132 deals with repeals and savings. Sub-section (1) had repealed the enactments specified in Schedule I to the extent specified in column No. 4 of the said Schedule. Schedule I shows that the Berar Act has been repealed in its entirety. Notwithstanding the repeal sub-section (2) has saved certain matters and one of the matters so saved is the obligation or liability already incurred before the commencement of the Bombay Act. The 5th respondent, who had incurred the obligation or liability to cultivate the lands for two ~ ears under the Berar Act before the commencement of the Bombay Act, has discharged the said obligation or liability and hence the tenant has no further rights which he can enforce. He also urged that S. 52 protects even cases where possession has been taken after the coming into force of the Bombay Act on the basis of an order for restoration obtained under the Berar Act. In support of this contention he relied on the decision in Ramchandra v. Tukaram, (1966) 1 SCR 594 = (AIR 1966 SC 557).7. Before we deal with the merits we will now dispose of the preliminary objection raised by Mr. Gupta and praying for cancellation of special leave granted by this Court. According to the learned counsel the appellant has deliberately made certain false statements in the application for grant of special leave and has misguided the Court. He also drew our attention to the statements made in paragraph 6 of the application wherein the appellant has stated that the 5th respondent had transferred the suit lands in favour of the first respondent on June 21, 1961 by taking in exchange 8 acres of land plus a sum of Rs. 30,000/-. Again in paragraph 10 of the petition the appellant has stated that his claim in these proceedings is for restoration of possession of the lands measuring 7 acres and 4 gunthas, the market value of which happens to be more than Rs. 20,000/-, and that this fact is further strengthened because of the 5th respondent exchanging his lands with the first respondent for a sum of Rs. 30,000/- plus 8 acres of land. The appellant has filed an affidavit stating that the statements contained in the special leave petition are true and correct to the best of my personal knowledge. From these statements Mr. Gupta pointed out that it is clear that the appellant has categorically stated that the value of the lands concerned in this appeal is over Rs. 20,000/- and he has also specifically stated that the suit lands were exchanged for Rs. 30,000/- plus 8 acres of lands and these statements have been affirmed to be true to the personal knowledge of the appellant.8. Mr. Gupta pointed out that these statements regarding valuation are absolutely false to the knowledge of the appellant as will be clear from the value given in the writ petition filed by the respondent in the High Court. In para I of the writ petition the first respondent has stated that the 5th respondent after transferring the suit lands of 7 acres and 4 gunthas has taken in exchange from him acres of land and a sum of Rs. 13,000/-. Thus making a total of Rs. 19,000/-. In the affidavit filed along with the writ petition the first respondent has again stated that the amount received from him along with 8 acres of land was Rs. 13,000 and the total value of the lands being only Rs. 19,000/-. He also drew our attention to the recitals in the judgment printed in the appeal records wherein the exchange has been stated as being of 8 acres of land plus a sum of Rs. 13,000. In view of these circumstances, the counsel points out that the statements made by the appellant, which have been affirmed to be true to his knowledge about valuation of the suit lands being over Rs. 20,000/and the exchange having been obtained of 8 acres and Rs. 30,000/- are false and have been deliberately made to mislead the Court so as to obtain special leave making it appear that the requirement regarding valuation is satisfied. Mr. Gupta drew our attention to the decisions of this Court, namely, Hari Narain v. Badri Das, 1964-2 SCR 203 (AIR 1963 SC 1558 ), Sita Bai v. Soni Vanji Wani, Civil Appeal No. 982 of 1965 D/- 25-4-1968 (SC) and S. R. Shetty v. Phirozeshah Nusserwanji Civil Appeal No. 155 of 1963, D/- 5-4-1963 (SC). Mr. Gupta pointed out that in all these decisions when there has been false statements made on material particulars or matters of importance either on facts or about valuation, this Court had cancelled special leave already granted.The proposition enunciated by Mr. Gupta that the statements in the special leave application should not contain any untrue or false statements either in material particulars or on matters of importance or about valuation is certainly laid down in those decisions and the requirement in this regard cannot be over emphasised.In (1964) 2 SCR 203 = (AIR 1963 SC 1558 ) this Court held that the special leave petition contained inaccurate, untrue and misleading statements and cancelled special leave already granted. This Court observed at p. 209 (of SCR) = (at p. 1560 of AIR) as follows:"It is of utmost importance that in making material statements and setting forth grounds in applications for special leave, care must be taken not to make any statements which are inaccurate untrue or misleading. In dealing with applications for special leave, the Court naturally takes statements of fact and grounds of fact contained in the petitions at their face value and it would be unfair to betray the confidence of the Court by making statements which are untrue and misleading."9. From the facts in that case it will be seen that the material statements made in the special leave petition were false.

Decision reasoning: 1[ds]9. From the facts in that case it will be seen that the material statements made in the special leave petition were false.We have given due consideration to all these aspects presented before us by both the learned counsel and we are of the view that in the particular circumstances of this case it cannot be said that the appellant is guilty of making any false or untrue statement on any material particulars or matters of importance or regarding valuation. The mistake committed by the appellant regarding valuation was the result of the mistaken value given by the High Court itself in its judgment, which was corrected only long afterwards. No doubt, the appellant who is a party to the proceedings should have been a little more careful, but that does not disclose any deliberate attempt on his part to mislead this Court. Further the statement regarding valuation is not of much consequence in this case because the questions arising for decision are really points of law regarding applicability of either the Berar or Bombay Acts. Therefore, Mr. Gupta has not been able to make out a case for cancelling the special leave already granted.In our opinion, the Full Bench has too broadly stated the principles regarding the circumstances under which S. 52 of the Bombay Act will apply. If taking possession of the land by the landlord after December 30, 1958, is the sole test for the applicability of S. 52, the position, in our view, will be very anomalous. For instance if a landlord had taken possession on December 29, 1958, S. 52 will not apply and the requirement of two years personal cultivation may not also become necessary as the Berar Act stands repealed as on December 30, 1958. Similarly if the landlord had taken possession and had also complied with the requirement of two years personal cultivation long before December 30, 1958, but nevertheless if he is in possession of the land on December 30, 1958, according to the Full Bench, Section 52 will stand attracted. No doubt the Full Bench has not answered the second question posed before it but the reasoning of the decision will be to that effect if the test of possession on December 30, 1958 is the only criteria.31. We are of the opinion that the question of S. 52 being retrospective or not has no material bearing in interpreting that section. That section had necessarily to refer Sections 38, 39 and 39A as they were also provisions enabling a landlord to get possession from a lessee. It is in the light of these matters that the expressions occurring therein have to be given their natural meaning. The Full Bench has misinterpreted that section.32. In interpreting S. 52,in our opinion, S. 132 (2) (i) will be helpful. The obligation of the landlord when he takes possession of the land from the tenant under the Berar Act is to cultivate it personally for two years and once the landlord complies with that requirement before the Bombay Act came into force, the tenants right to get restoration stands extinguished as the landlord has discharged hisdue regard to the provisions of the two statutes and what has been stated by us earlier the position is that if the landlord on December 30, 1958 had completed the two years period of personal cultivation, his right not to be disturbed is continued and preserved under Section 132 (2) (i) of the Bombay Act. Again if the landlord in pursuance of an order obtained under the Berar Act, takes possession, after the commencement of the Bombay Act, Section 52 applies to him and his original obligation to cultivate personally for two years under the Berar Act gets extended by the 12 years period provided under that section. If he ceases to so cultivate within the period of 12 years from his taking possession, the tenant gets a right to apply for restoration of the land.34. The several aspects enumerated above have not been considered by the Full Bench of the Bombay High Court and it has rested its decision for applying Section 52 by applying the sole test whether the landlord has taken possession before or after December 30, 1958. Such a test is not warranted by the provisions of both the statutes read together. A fair reading of Section 52 also, in our opinion, leads to the same conclusion. Section 52 providesthe tenancy being terminated under Section 9 of the Berar Act;(ii) the landlord taking Possession of such land on the basis of such termination of the tenancy;(iii) the landlord failing to use the land for the purpose specified in the notice under Section 9 of the Berar Act;(iv) failure to use the land for the purpose mentioned in the notice within one year from the date on which he took possession;(v) the landlord ceasing to use the land for the purpose for which he obtains possession within 12 years of his takingTo the case of a landlord who had already completed two years personal cultivation before Dec. 30, 1958, the requirement of his failing to use the land for the purpose specified in the notice under Section 9 within one year from the date of his taking possession, will have no application whatsoever. The normal and reasonable construction to be placed upon Section 52 is that it will apply only to cases of lands, the possession of which was obtained by the landlord under Section 9 of the Berar Act, but in respect of which the period of two years disability imposed under Section 9 (6) read with Rule 9 of the Rules was not over before the coming into force of the Bombay Act. In respect of such landlords, Section 52 enlarges the period for which he is required to personally cultivate the lands. In this respect we are inclined to agree with the view of Mr. Justice Wagle.36. To conclude Section 52 applies to all cases where possession is taken by the landlord on or after December 30, 1958 on the basis of an order obtained under the Berar Act. It applies to cases where possession had been taken by a landlord under the Berar Act but the two years period of personal cultivation had not been completed when the Bombay Act came into force. The instances of obtaining possession under Ss. 38, 39 or 39-A of the Bombay Act have not been considered by us in this appeal.37. It follows that Section 52 of the Bombay Act applies to the case before us, as the landlord has not completed two years personal cultivation on December 30, 1958, the date on which the Bombay Act came into force. He had taken possession on April 4, 1957, and the two years period will expire only on April 4, 1959. In the meanwhile the Bombay Act had come into force on December 30, 1958. Under Section 52 the period of personal cultivation had been extended to 12 years from the date of taking possession. But as the 5th respondent. who obtained possession for personal cultivation had transferred the suit lands to the 1st respondent on June 21, 1961, on which date the 12 years period had not expired, the appellant tenant was entitled to apply for restoration on the ground that the said landlord had ceased to cultivate the lands for the required period as provided under Section 52.