1991 (5) TMI 252 - SC - Indian Laws

Tenant's vested rights as deemed purchaser cannot be divested retrospectively by invalid alienations

TRIBHUVANDAS HARIBHAI TAMBOLI Versus GUJARAT REVENUE TRIBUNAL

The SC held that the second proviso to Section 88(1)(b) of the Bombay Tenancy and Agricultural Lands Act does not apply retrospectively to invalid ... Retrospective effect of the second proviso to Section 88(1)(b) of the Bombay Tenancy and Agricultural Lands Act - Scope of the proviso - Statutory right of deemed purchaser and its exemption under section 88(1)(b) - HELD THAT:- Any alienation in violation of the Act would not attract the operation of the second proviso. The Act is an agrarian reform which created a vested right in the tenant as a deemed purchaser with effect from Tillers' day which cannot be divested retrospectively. The proviso should be construed to inhere in the tenant the vested rights created under the Act. The Withdrawal of the notification dated Oct. 29, 1964 renders the right of the appellant uneffected. The scope of the proviso, therefore, it to carve out an exception to the main enactment and it excludes something which otherwise would have been within the rule. It has to operate in the same field and it the language of the main enactment is clear, the proviso cannot be torn apart from the main enactment nor can it be used to nullify by implication what the enactment clearly says nor set at naught the real object of the main enactment, unless the words of the proviso are such that it is its necessary effect. The interpretation of the notification issued under the proviso to s. 88(1)(b) adding to the area reserved for non- agricultural or industrial development. Its effect is that notwithstanding any judgment or order of any court or Tribunal or any other authority, the provisions of Ss. 1 to 87 shall not apply and shall be deemed never to have applied to such added area as well. If any land in the newly added area has been transferred or acquired between the date of the notification issued under first proviso and October 9, 1964, such transfer or acquisition of land shall have the effect as if it was made in an area to which the main part of the proviso and s. 88(1)(b) would apply. The necessary consequence would be that the provisions of ss. 1 to 87 shall not apply and shall be deemed never to have applied to such added area. It is implicit that such transfer or acquisition made, to bring within the net of second proviso, must be valid and bona fide one and not colourable, fraudulent, fictitious or nominal. The Legislature appears to relieve hardship to the bona fide purchasers. The title acquired by such transfer is not effected by the provisions of the Act. The Legislature advisedly used the words `acquired or transferred'. Since Vasantrao did not obtain any order from the competent court under the Lunacy Act to have him appointed as Manager of the joint family to alienate the property, the sale is per se illegal. The sale, therefore, appears to be to defeat the statutory right of the appellant. The rigour of the second proviso to s. 88(1)(b) is thus inapplicable. Thereby the right and interest as a deemed purchaser acquired by the appellant has not been effected by a subsequent notification issued under s. 88(1)(b). The High Court, therefore, committed manifest error in holding that the appellant is not entitled to the relief. The appeal is accordingly allowed and the orders of the High court, The Tribunal and District Collector are set aside and that of the Mamlatdar is confirmed, but in the circumstances parties are directed to bear their own costs. Appeal Allowed. Issues Involved:1. Retrospective effect of the second proviso to Section 88(1)(b) of the Bombay Tenancy and Agricultural Lands Act.2. Validity of the sale by the son of the landlord during the landlord's lifetime and under disability.Summary:1. Retrospective Effect of the Second Proviso to Section 88(1)(b):The appellant became a deemed purchaser of the leased agricultural land by operation of Section 32(1) from April 1, 1957. The landlord's insanity deferred the right to purchase under Section 32-F. Notifications u/s 88(1)(b) exempted certain areas from the Act's provisions, including the appellant's land. The second proviso to Section 88(1)(b) was introduced by the Gujarat Amendment Act, 1965, and it specified that transfers or acquisitions of land in newly added areas between the notification and October 9, 1964, would be treated as if they were made in areas to which the clause applies. The Court held that the second proviso has retrospective effect, meaning the provisions of Sections 1 to 87 do not apply to the added areas and are deemed never to have applied. However, this does not divest the appellant's statutory right as a deemed purchaser, as the sale by the landlord's son was invalid.2. Validity of the Sale by the Son of the Landlord:The landlord, being the Karta of the Hindu Joint Family, was under disability due to lunacy, and his son sold the land to the respondent. The Court held that the son had no right to sell the property during the father's lifetime without a court order under the Indian Lunacy Act. The sale was deemed illegal and intended to defeat the appellant's statutory right. The appellant's right as a deemed purchaser was not affected by the subsequent notification u/s 88(1)(b). The Court set aside the orders of the High Court, Tribunal, and District Collector, confirming the Mamlatdar's decision in favor of the appellant.Conclusion:The appeal was allowed, and the appellant's statutory right as a deemed purchaser was upheld. The sale by the landlord's son was invalid, and the retrospective effect of the second proviso to Section 88(1)(b) did not divest the appellant's rights.