Case: Navinchandra Ramanlal Vs. Kalidas Bhudarbhai And Anr

A brief recital of the facts will put the point of law raised herein in proper perspective. Appellant is the owner of Survey No. 165 measuring 2 acres 21 gunthas situated in Village Acher, City Taluka, District Ahmedabad. Respondent is and has been the tenant of this land since before 1946. He became a protected tenant under the Bombay Tenancy Act 1939 and his name appeared in the Register to protected tenants maintained under that Act. On the introduction. Of the Tenancy Act of 1948 the respondent continued to be the protected tenant under it. A very comprehensive amendment was made the Tenancy Act of 1948 by the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1956 (Bombay Act XIII of 1956) (`1956 Act for short). Section 3 2 as amended by 1956 Act provided for transfer of ownership of the land from a landlord to the tenant of the land by operation of law. The day was styled as `tillers day and section 32 provided that subject to the other provisions of the section and provisions of the next succeeding section every tenant shall be deemed to have purchased from this landlord free from all encumbrances subsisting thereon on the said day, the land held by him as tenant. The land involved in this appeal was one to which the Tenancy Act of 1948 as amended by the Amending Act of 1956 applied and by the operation of law the tenant-the respondent claimed to be the owner of the land.Section 88 of the Tenancy Act of 1948 as it stood at the relevant time provided for exemption of certain lands from its provisions, one such exemption being in respect of any area which the State Government may, by notification in the official Gazette, specify as being reserved for urban non-agricultural or industrial development. Armed with this power the Government issued Notification No. TNC/5156/101955-F dated 9th August, 1956 whereby amongst others the Government specified the area within the limits of the Municipal Corporations of the cities of Poona and Ahmedabad as being reserved for urban non-agricultural and industrial development. This Notification was superseded by another Notification No. TNC/5156/169426-M dated 14th February 1957 whereby the Government specified amongst others the areas within the limits of the Municipal Corporations of the cities of Poona and Ahmedabad as being reserved for the above-mentioned purpose. Neither of the Notifications at the date of issue had any relevance to t he land involved in this appeal because it was not situated within the area of the Municipal Corporation of AhmedabadSubsequently the Government extended the limits of Ahmedabad Municipal Corporation whereby Acher Village in which Survey No. 165 is situated was included in the area of Municipal Corporation of Ahmedabad on and from 30th May, 1959In January 1960 Agricultural Lands Tribunal having jurisdiction over the area wherein the Survey No. 165 is situated, commenced an enquiry under s. 32G of the Tenancy Act of 1948 for determining the purchase price of the land on the footing that under s. 32 respondent/tenant has become the deemed purchaser of it. In the course of this enquiry the appellant landlord gave an application that the land in respect of which the enquiry is being held is now included within the limits of Municipal Corporation at Ahmedabad and hence in view of s. 88(1) (b) read with the Notification dated 14th February, 1957, it was ex empted from the operation of ss. 1 to 87 of the Tenancy Act of 1948 and, therefore, the enquiry should be dropped. The Agricultural Lands Tribunal rejected the application of the appellant-land-landlord and proceeded further with the enquiry. The appellant-landlord appealed to the Collector which mer with the same fate. Appellant carried the matter to the Gujarat Revenue Tribunal. The Revenue Tribunal was of the opinion that on a true and correct interpretation of s. 88(1)(b) re ad with the relevant notification, not merely the lands which were in Ahmedabad Municipal Corporation area at the date of the Notification would be exempted from the operation of the Tenancy Act but the exemption would also extend to the lands brought within the Corporation area from time to time without any fresh C N Notification for reservation and accordingly allowed the Revision Application of the appellant-landlord and directed that the enquiry under s. 32G be dropped. The respondent no. 1-tenant approached the High Court of Gujarat under Article 227 of the Constitution. The High Court held that the exemption would apply only to the lands included within the limits of the Municipal Corporation of Ahmedabad as on the date of Notification and in the absence of the fresh reservation by a fresh notification the lands included in the Municipal area on extension of the limits of the Municipal Corporation Subsequent to the Notification would not be exempted from the operation of the Tenancy Act. In reaching this conclusion one aspect that impressed the High Court was that while power to exempt the land from the operation of the Tenancy Act vests in the Government, the area of the Municipal Corporation may be extended by the Corporation authority and if to such extended area the exemption were to apply, the power of granting exemption would be enjoyed by Municipal Corporation which was not the legislative delegate and on which the power to exempt was not concerned and simultaneously, the legislative delegate, namely, State Government would completely abdicate its function. This aspect is specifically referred to as it proceeds on an erroneous assumption that Municipal Corporation can extend its own area. A reference to section 3 of the Bombay Provincial Municipal Corporation Act would show that unless the State Government in exercise of the power conferred upon it, extends the limits, the Municipal Corporation o n its own cannot extend the limit. The assumption being incorrect, it cannot be called in aid of the conclusion reached by the High Court. Mr. J. C. Shah for the respondent, however, frankly stated that he could not support the aforementioned reason of the High Court and, therefore, the Court should ignore it. We would say no more about it. In accordance with its opinion that the land falling in the subsequently extended limit would not enjoy the benefit of exemption, the High Court quashed the order of the Gujarat Revenue Tribunal and directed the authority under the Tenancy Act to proceed further with the enquiry under s. 32G.

Reasoning:
The contention raised by Mr. Shroff would have necessitated examination of the scheme of the various provisions of the Tenancy Act as has been done by the High Court but in our opinion the High Court unnecessarily undertook this exercise wholly overlooking and by passing two important amendments introduced in the relevant provisions of the Tenancy Act of 1948, viz., 43C and 88(1) both of which were in force at the time when the petition was heard and upon proper construction both amendments being retroactive in their operation from the commencement of the Amendment Act of 1956 which came into force on 1st August, 1956 would have clinched the issue. Therefore, it is not necessary to examine the contention from the angle from which the High Court has done but the contention of Mr. Shroff can be disposed of by a mere reference to the two relevant provisionsThe land bearing Survey No. 165 was not within the Municipal Corporation area either on 14th February, 1957, the day on which exemption was granted, or on 1st August, 1956 when Bombay Act VIII of 1956 was put into operation or on 1st April, 1957, the tillers day, when title to land would stand transferred to the tenant by sheer operation of law without anything more. Therefore, the Notification dated 14th February, 1957 would not cover the land which was at the date of the issue of the Notification not included in Ahmadabad Municipal Corporation area. Subsequent extension of the area of Municipal Corporation would not enjoy the benefit of exemption in view of the proviso to s. 88(1) (b) and the opening words of s. 43C both of which clearly recite that the exemption would apply to the land included in the Municipal Corporation area on 1st August, 1956, the day on which Bombay Act 13 of 1956 came into force, and not to any subsequently added area to the area of Municipal Corporation. Land bearing Survey No. 165 was brought within the Municipal Corporation area after 1st August, 1956 and, therefore, the Notification dated 14th February, 1957 would not cover such added or extended area and there would be no exemption under that Notification for the land in the extended area.If the land bearing Survey No. 165 does not enjoy the benefit of exemption under s. 88(1) (b) and it being agricultural land in respect of which the respondent was tenant on the tillers day, the respondent has, by operation of law, become the owner and is a deemed purchaser. The Agricultural Lands Tribunal would have to proceed with the enquiry to determine the price as required by s. 32GIt is not necessary to examine this contention because subsequent to the later decision in Sidram Narsappa Kamble (supra) the Tenancy Act of 1948 was amended by Gujarat Act 36 of 1965 making it abundantly clear that if there is any Notification exempting any area from the operation of the Tenancy Act issued by the appropriate Government under s. 88(1) (b), the exemption would enure for the benefit of that area included in t he Municipal Corporation as on 1st August, 1956 and in the absence of a fresh Notification such exemption would not be available to the extended or area added to the area of Municipal Corporation and this amendment is made effective notwithstanding any judgment, order or decision of the Court or Tribunal to the contrary. Presumably, in order to combat the effect of some judgments which purported to lay down that the exemption once granted would apply to any area that may be included in the Corporation area at a date much later to the date of issue of the Notification, the amendment was made. Accordingly, law having undergone a substantive amendment bearing on the subject, the ratio in the decision of Mohonlal Chunilal Kothari and Sidram Narsappa Kamble (supra) which turned upon the construction of s. 88(1) (b) as it stood at the relevant time, would not be of any assistance.