# PATEL CHUNIBHAI DAJIBHAI ETC v. NARA YANRAO KHANDERAO JAMBEKAR AND ANOTHER

- **Citation:** [1965] 2 S.C.R. 328
- **Court:** Supreme Court of India
- **Decided:** 1964-12-03
- **Case number:** Civil Appeals Nos. 791· 798 of 1964
- **Bench:** A. K. Sarkar, N. Rajagopala Ayyangar, R. S. Bachawat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/patel-chunibhai-dajibhai-etc-v-nara-yanrao-khanderao-jambekar-and-another-3411
- **Pages:** 22

## Headnote

Bombay Tenancy and Agricultural Lands Act (67 o/ 1948), as a111~naed
by Act 38 of 1957, ss. 32 and 76A-Scope of.
In May 1956, the respondent ga·;e a notice under s. 14 of the llombay
Tenancy and Agricultural Lands Act, 1948, to the appellants, who were
his tenants, terminating the tenancy on the grounds of non-paymeut of
rent. In December 1956, he gave another notice to the appellants, under
a. 31, terminating the tenancy on the ground that be wanted to personally
cultivate the lands.
In March 1957, be filed an application before the
Mamlatdar, on the basis of the notice under s. 31 for recovery of posses·
aion of the land.
In July 1957,
he filed another application for
the same relief on the basis of the notice under s. 14. On Septembor 28,
1957, s. 32 of the Act was amended by Act 38 of 1957 as a result of
which, in certain circumstances, a tenant would be deemed to have purchased, on 1st April 1957, the lands held by him, from the landlord. In
December 1957, the Mamlatdar allowed the respondent's application based
on s. 14. In March 1958, he withdrew his application based on s. 31.
The appellants did not tile an appeal against the order of the Marnlatdar
of December 1957, but applied to the Collector in August 1958, for
revision of that order under s. 76A. The Collector called for the records,
but before the receipt of the records, rejected the application. The appellants again applied and the Collector again rejected the application. The
orders of rejection were passed in October 1958.
In November 1958,
the appellants once again applied to the Collector. In December 1958,
the Collector received the records. He gave notice to the parties, heard
them and on 17th February 1959 passed an order setting a<ide the
Mamlatdar's order of December 1957. The respondent moved the Ro\·enue
Tribunal but without success.
He then applied to the High Court under
Art. 227 of tho Constitution. The High Court held that the Collector had
power to make the order of 17th February 1959, but that the amended s.
32 gave no rights to the appellants, as it could not affect the eviction
application filed in July 1957 and pending when the Amending Act came
into force, and therefore decided in favour of the respondent-landlord.
_ In appeal to the Supreme Court by the tenants, the appellants contended
that the High C<>urt's view as to the applicability of s. 32 was erroneous.
The respondent, while supporting the High Court's decision on s. 32,
contended that the High Court's view of s. 76A was wrong and that the
Collector had no power to review his earlier orders of October 1958 by
his order of February 1959.
HELD (Per Ayyangar and llachawat, JJ.) : The provisions in s.
32(l)(b)(i), (ill and (iii) do not lay down alternative conditions on the
satisfaction of any one of which, the appellant could be deemed to have
purchased the land on 1st Aoril 1957. The word "or" between sub-ss. (ii)
and (iii), in conjunction with the succeeding negatives is equivalent to,
and should be read as "nor". Therefore, under the section, the appellants, who were not permanent tenants but were cultivating the land
personally, could become purchasers of the lands on ht April 1957, if
A
B
c
D
I
E
F
G
H
A.
B
c
CHUNmHAI v. NAllAYANllAO (Sarkar, I.)
329
on that date, neither an application based on a. 31, nor an application
based on 1. 14 waa pending. If an application of either type was pending
on that date, the tenants could not become purchasers on that date,
though, if the application were rejected later, they could become purchasers on such postponed date under the proviso to. the section. Since,
on 31st March 1957, the respondent's application baaed on s. 31 waa
pending, the appellants could not be deemed to have purchased the land.
on ~pril 1, 1957. [343 F-0, H; 344 A]
But the respondent's application based on s. 14 was not maintainable
as it was filed after 31st March 1957.
Section 32, as amended, saves
all application pending on 31st March 1957 and by necessary implication

## Text

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328
PATEL CHUNIBHAI DAJIBHAI ETC.
v.
NARA YANRAO KHANDERAO JAMBEKAR AND
ANOTHER
December 3, 1964
(A. K. SARKAR, N. RAJAGOPALA AYYANGAR AND
R. S. BACHAWAT, JJ.]
Bombay Tenancy and Agricultural Lands Act (67 o/ 1948), as a111~naed
by Act 38 of 1957, ss. 32 and 76A-Scope of.
In May 1956, the respondent ga·;e a notice under s. 14 of the llombay
Tenancy and Agricultural Lands Act, 1948, to the appellants, who were
his tenants, terminating the tenancy on the grounds of non-paymeut of
rent. In December 1956, he gave another notice to the appellants, under
a. 31, terminating the tenancy on the ground that be wanted to personally
cultivate the lands.
In March 1957, be filed an application before the
Mamlatdar, on the basis of the notice under s. 31 for recovery of posses·
aion of the land.
In July 1957,
he filed another application for
the same relief on the basis of the notice under s. 14. On Septembor 28,
1957, s. 32 of the Act was amended by Act 38 of 1957 as a result of
which, in certain circumstances, a tenant would be deemed to have purchased, on 1st April 1957, the lands held by him, from the landlord. In
December 1957, the Mamlatdar allowed the respondent's application based
on s. 14. In March 1958, he withdrew his application based on s. 31.
The appellants did not tile an appeal against the order of the Marnlatdar
of December 1957, but applied to the Collector in August 1958, for
revision of that order under s. 76A. The Collector called for the records,
but before the receipt of the records, rejected the application. The appellants again applied and the Collector again rejected the application. The
orders of rejection were passed in October 1958.
In November 1958,
the appellants once again applied to the Collector. In December 1958,
the Collector received the records. He gave notice to the parties, heard
them and on 17th February 1959 passed an order setting a<ide the
Mamlatdar's order of December 1957. The respondent moved the Ro\·enue
Tribunal but without success.
He then applied to the High Court under
Art. 227 of tho Constitution. The High Court held that the Collector had
power to make the order of 17th February 1959, but that the amended s.
32 gave no rights to the appellants, as it could not affect the eviction
application filed in July 1957 and pending when the Amending Act came
into force, and therefore decided in favour of the respondent-landlord.
_ In appeal to the Supreme Court by the tenants, the appellants contended
that the High C<>urt's view as to the applicability of s. 32 was erroneous.
The respondent, while supporting the High Court's decision on s. 32,
contended that the High Court's view of s. 76A was wrong and that the
Collector had no power to review his earlier orders of October 1958 by
his order of February 1959.
HELD (Per Ayyangar and llachawat, JJ.) : The provisions in s.
32(l)(b)(i), (ill and (iii) do not lay down alternative conditions on the
satisfaction of any one of which, the appellant could be deemed to have
purchased the land on 1st Aoril 1957. The word "or" between sub-ss. (ii)
and (iii), in conjunction with the succeeding negatives is equivalent to,
and should be read as "nor". Therefore, under the section, the appellants, who were not permanent tenants but were cultivating the land
personally, could become purchasers of the lands on ht April 1957, if
A
B
c
D
I
E
F
G
H
A.
B
c
CHUNmHAI v. NAllAYANllAO (Sarkar, I.)
329
on that date, neither an application based on a. 31, nor an application
based on 1. 14 waa pending. If an application of either type was pending
on that date, the tenants could not become purchasers on that date,
though, if the application were rejected later, they could become purchasers on such postponed date under the proviso to. the section. Since,
on 31st March 1957, the respondent's application baaed on s. 31 waa
pending, the appellants could not be deemed to have purchased the land.
on ~pril 1, 1957. [343 F-0, H; 344 A]
But the respondent's application based on s. 14 was not maintainable
as it was filed after 31st March 1957.
Section 32, as amended, saves
all application pending on 31st March 1957 and by necessary implication
it bars all applications filed after that date. The fact that the application
under s. 31 was pending, and the appellants continued to be tenanta
would not make any difference. The High Court was therefore jn error
in quashing the Collector's order on the ground that the amended s. 3 2
had no effect on pending applications for eviction.
However, since the
Mamlatdar allowed the application, the appellants had ceased to be tenants
and so, even ·though the respondent withdrew bis application under s. 31,
and such withdrawal amounted to rejection in law, the appellants could
not claim the benefit of the proviso to s. 32 and become purchasers of the
lands on the postponed date. [344 B; 345 B, D-B, H; 349 CJ
The Collector's order of February 1959 under s. 76A, reversing the
D
Mamlatdar's order, did not affect the position because, that order was
illegal, ultra virts and without jurisdiction.
The Collector could pass
the earlier orders rejecting the applications for rO\ision in October 1958
on the materials before him and without calling for the record. Having
called for the record, be should have waited for its arrival, but bis orders
passed before such arrival were not without jurisdiction. The mere fact
that be called for the record is no ground for saying that be C011ld not
thereafter examine the materials before him and pass an order refusing to
E
interfere with the Mamlatdar's order, without notice to the parties. Those
orders passed by the Collector in the exercise of bis revisional powers were
quasi-judicial and final.
Even if the order calling for the record is not
of a quasi-judicial nature, the Collector having called for the record
and then determined that there was no ground for interference, his order
would be quasi-judicial.
Since the Act does not empower the Collector
to review such an order passed by him, bis earlier orders dismissing the
applications for revision were final and could not be reopened by him
I' sobsequently. [346 B.C; 347 F-H; 348 D-H]
G
H
Per Sarkar, J. (dissenting) : The conditions laid down ins. 32(!)(b)(i).
(ii) and (iii) are not in the alternative and fulfihnent of any one of them
would not entitle a tenant to claim to be a purchaser. In order to become
a purchaser a tenant has to satisfy all the conditions laid down in els. ( i),
(ii) and (iii). Therefore, when an application for ejectment filed before
3 lst March 1957 on the basis of a notice under s. 31 was pending when
the Amending Act came into force, the tenant had not become a purchaser
on the specified date. This bowe.-er does not lead to the conclusion that
in such a case an application for ejectment on the basis of a dotice under
s. 14, filed after 31st March 1957 remained maintainable after the Amending Act and that an order for ejectment could properlv be made on it. OD
the coming into force of the Amending Act, the landlord's application for
ejectment filed in July 1957 on the strength of a notice under s. 14
became incompetent arid ·bad to be reiected. The order of eiectment pas.•-
ed by the Mamlatdar would be wholly ille~al, and the order of the Collector of 19th February 1959, setting aside that order was valid and
proper
Under s. 76A sending. for the record is a preliminary sten to
Ille judicial act concerning the right of the parties which is to follow
330
SUPllBMB OOtmT JlEPOl.TS
(1965] 2 S.C.ll.
upon the perusal of the record when it. arrives.
By send~g for !he
A
record, the Collector decided that the. men ts of tbc case reqwrC!' loo~g
into.
Having sent for the record his only ~er was to. wait for its
arrival and decide the merits of the case on 1t. The section 4oes n,ot
contemplate that an order can be made before the Collector had receiyed
the record and looked into it. As the record had not arrived by the time
he rejected the applications in October 1958, he had not made any order
under the section. It follows that the only order made by the Collector
B
under the section was that of 19th February 1959. [333 C-D, O; 334 C,
E; 336 G-H; 337 D; 339 B-D; 340 B-D]
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos.
791·
798 of 1964.
Appeal by special leave from the judgment and orders dated
November 4/5, 1963 of the Gujarat High Court in Special Civil c
Applications Nos. 428 to 430 and 432 to 436 of 1961.
I. N. Shroff, for ~e appellants (in all the appeals) S. G.
Patwardhan and A. G. Ratnaparkhi, for the respondents (in all
the appeals).
SARKAR J. delivered a dissenting Opinion. The Judgment of
0
RA.JAGOPALA AYYANGAR and BACHAWAT JJ. was delivered by
.
BACHAWAT J.
Sarkar J. The appellants are tenants against whom orders
for ejectment had been passed at the instance of the landlord.
They contend that in view of a certain amendment of s. 32 of the
Bombay Tenancy and Agricultural Lands Act, 1948, these O(ders
E
were illegal and had rightly been set aside by the Collector under
s. 7 6A of that Act. The questions that arise in these appeals
depend on the interpretation of these two sections.
There were eight tenants and each of them has filed an appeal.
We have thus eight appeals before us. As the landlord was the F
same person, the respondent in each appeal is the same. The
landlord took steps under ss. 14, 31 and 29 of the Act against
each tenant and these have led to the present proceedings. Section
14 gives a landlord power to terminate a tenancy on the ground
inter a/ia of the tenant's· failure to pay rent by giving the tenant
a notice informing him of his intention to terminate the tenancy.
G
Section 31 provides that notwithstanding anything eontained in
s. 14, a landlord may after giving notice to the tenant terminate
the tenancy if he bona fide requires the land for cultivating . it
personally.
Section 29 of the Act states that a landlord shall
not obtain possession of land from a tenant except under an
order made by the Mamlatdar on the application mentioned in it.
H
On May 1, 1956, the landlord had given a notice to the
tenants under s. 14. On December 25, 1956, the landlord had
'
CHUNIBHAI v. NARAYANRAO (Sarkar, /.)
331
A given a fresh notice to the tenants under s. 31. On March 28,
1957 the landlord filed applications against the tenants before
the Mamlatdar for ejectment under s. 29 on the strength of the
notice under s. 31 and thereafter on July 10, 1957, he filed
another set of applications for their ejectment on the strength
of the notice under s. 14.
By various orders made between
B December 20 and 25, 1957, the Mamlatdar allowed the landlord's applications for ejectment on the basis of the notice under
s. 14. Thereafter on March 1, 1958, the landlord withdrew his
applications for ejectment pursuant to the notice under s. 31.
The tenants did not file any appeal aguinst 'the Mamlatdar's
c orders of ejectment but moved the Collector under s. 7 6A of the
Act for setting them aside. Three successive sets of such applications had been made by the tenants. The first set of applications
was made on August 4, 1958. On August 14, 1958, the Collector
acting under s. 7 6A called for the record of the ejectment proceedings .before ths Mamlatdar.
111e record did not arrive till
n
December 24, 1958. In the meantinle however, on August 26,
1958 the tenants made the second set of applications under s.
76A. On October 3 and 4, 1958, the Collector appears to have
made orders purporting to reject both sets of the tenants' 'applications under s. 76A. On or about October 6, 1958, the tenants
preferred a joint application under s. 7 6A and this was also
F.
rejected by the Coliector on October 17, 1958. On November
7, 1958, the local Congress Committee passed a resolution stating that the tenants were being subjected to harassment and
demanding that justice be done to them. A copy of the resolution
was sent to the Collector. Subsequently on December 24, 1958,
the record of the proceedings called for was received by the
F
Collector.
The Collector thereafter gave notice to the parties,
heard them and made an order on February 17, 1959 setting
aside the Mamlatdar's orders of ejectment on the ground that in
view of the provisions of s. 32 as amended by Act XXXVIII of
1957 the tenants could not be evicted. The landlord then moved
the Revenue Tribunal in revision to set aside the Collector's
G order of February 17, 1959 but his applications were dismissed.
He, thereafter, applied to the High Court under Art. 227 of the
Comtitution to set aside the orders of the Tribunal and the
Collector. The High Court allowed these applications and hence
the present appeals by the tenants. As there was a
~eparate
H application to the High Court by the landlord against each of the
~ight tenants, we have now eight appeals before us.
The landlord had contended in the High Court that the
332
SUPREME COURT REPORTS
[1965) 2 S.C.R.
Collector having once rejected the tenants' applications by tho
A
order of October 3 or of October 4 or lastly of October 17, 1958
had no power under s. 76A to reconsider the matter and pass his
order of February 17, 1959 setting aside the Mamlatdar's order
and that the Tribunal also was wrong in holding that the Collector had the power. On the merits, the landlord had contended in
the High Court thats. 32 as amended by Act XXXVIII of 1957, B
which came into force on September 28, 1957, was not applicable to the ejectment proceedings. The High Court held that the ·
Collector had the power to make the order of February 17, 1959
but it took the view that the amended s. 32 did not govern the
ejectment proceedings on the ground that that section could not C
affect applications which were pending on the date the amending
Act came into force. It was for this reason that the High Court
set aside the orders of the Tribunal and th() Collector. It has
been contended in these appeals, by the respondent landlord, that
the High Court's view of s. 76A was wrong, and by the appellant
tenants that its view as to the applicability of s. 32 was erroneous. 0
These are the two questions that arise in these appeals.
I will first take up the question of the interpretation of s. 7EA.
That section so far as material is in these terms :
S. 16A. Where no appeal has been filed within the
period provided for it, the Collector may, suo moiu or
E
on a reference made in this behalf by the Divisional
Officer or the State Government, at any time,-
( a) call for the record of any inquiry or the proceedings
of any Mamlatdar or Tribunal for the purpose of
satisfying himself as to the legality or propriety of
F
any order passed· by, and as to the regularity of ·the
proceedings of such Mamlatdar or Tribunal. as the
case may be, and
(b) pass such order thereon as he deems fit;
Provided that no such record shall be called for
after the expiry of one year from the date of such order
and no order of such Mamlatdar or Tribunal shali be
modified, annulled or reversed unless opportunity has
been given to the interested parties to appear and be
heard.
The contention of the landlord is that power under s. 7 6A
can be exercised only once and that was done by one of tho
orders of October 1958 earlier mentioned and, therefore, the
G
H
CHUNIBHAI v. NARAYANRAO (Sarkar, J.)
333
A Collector's order of February 17, 1959 was wholly incompetent
and a nullity. I do not think it necessary to decide the correctness of the contention that power under the section can be exercised only once and will proceed on the assumption that ii is
right.
The question still remains, was an order under s. 76A
made by the Collector prior to February 17, 1959? It seems to
B me that the order contemplated by the section is provided for in
cl. ( ~) and that order , is to be made after the record has been
called for and perused by the Collector.
That clause says the
Collector may "pass such order thereon" as he deems fit, meaning
that the order is to be made on the record. The section does not
contemplate that the order can be made before the Collector has
c received the· record and looked into it.
As the record had not
arrived by the time that the Collector rejected the applications,
namely, on October 3, or 4 or 17, 1958, it can be said that he
had not made any order under s. 76A on those dates. It would
follow that the only order made by the Collector under the secD tion was the order of February 17, 1959.
It was however said on behalf of the landlord that the Collector had by the earlier orders of October 1958 refused to call for
the record and had thereby fully exercised his powers under the
section and could not make the order of February 17, 1959. The
E
High Court held that a refusal to send for the record was an administrative act and it was not an order made under the section
in a judicial capacity and such an order did not exhaust the
Collector's power under the section. I am unable to say that this
view is entirely devoid of force. The section does not create any
right in any party to move the Collector under it. Under it the
F
Collector is either to act suo motu or at the instance of the
Divisional Officer or the State Government.
The act contemplated by the section is to send for the record and make an order
as to the rights of the parties after perusing it. Therefore, sending for the record would appear to be a preliminary step to the
judicial act concerning the rights of the parties which is
to
G follow upon the perusal of the
record when it arrives.
The
Collector sends for the record to get the materials on which alone
he is under the section to base his judicial act. His only real
power under the section is to do the judicial act. He cannot be
said to have exhausted that power before he has looked into the
record. The proviso to the section would lend support to this
H view, for it says that the judicial power can be exercised at any
point of time if he has sent for the record within the period
mentioned.
:134
SUPREMF.
COURT
REPORTS
(1965] 2 S.C.R.
There is however another aspect of the case. Let me assume
A
that if the Collector had refused to send for the record, he would
have exhausted his power under the section. This would be only
on the basis that he had formed the opinion that it was not a fit
ca~e for going into the merits and, therefore, refused to send for
the record.
In the present case however he did not refuse to
send for the record. By his earliest order, which was of August
B
J 4, 1958, he had called for the record. If he could not review
his order refusing to call for the record because his power under
the section was thereby exhausted, he could not review the order
calling for the record either. If any of his orders ·of October 3,
4 aml 17, 1958 was to be an effective order under the section,
C
the result of that would have been to review, and thereupon to
s..:t aside, the order sending for the record. By sending for the
record he did decide that the merits of the c:a~e required looking
into it. If that was not the effect of the order sending for the
record, that act would be only a meaningless act and I am unable
to think that such an act of the Collector could be within the D
contemplation of the section. The order of October 3, or 4, or
17, 1958 must be held to have decided that the merits of the case
did not deserve to be looked into. This would be reviewing the
earlier order and this, ex hypothesi, the Collector had no power
to do. Having sent for the record his only power was to wait for
its arrival and decide the merits of the case on it. The order of E
October 3, or 4 or 17, 1958 which had been made before the
arrival of the record was, therefore, wholly incompetent and ineffective.
None of them could affect the Collector's power to
pass a proper order after the record had arrived. In mv view,
therefore, the order of February 17, 1959 had been
properly
1nade and was a valid order.
•·
[ now take up the question of the interpretation of 's. 32 as
it stood in December 1957 when the ejectment orders were made
by the 'Mamlatdar and its applicability to pending ej.ectment PI?"
ceeclings.
Section 32 was amended from time to ume but 1~ JS
necessary to refer only to two of the amendments. That secuon G
wa~ first amended by Act XIII of 1956 which was enacted on
March 16, 1956 but came into force on August l, 1956. As
so amended, it for the first time provided that in certain circumstances a tenant would be deemed to have purchased on April I,
1957 from his landlord the land held by him. The section was
again amended by Act XXXVIII of 1957 which came into force
on September 28, 1957 and it is with this amendment that we
are really concerned.
Section 12 of this amending Act inserted
H
CHUNIBHAI v. NARAYANRAO (Sarkar, J.)
335
A cl. (iii) in sub-s. (1) of s. 32 ands. 34 of the amending Act gave
effect to the amendment made bys. 12 from August l, 1956
retrospectively. It is of some interest to point out that August l,
1956 is the date on which the amendment of s. 32 by Act XIII
of 1956 was brought into force. lt will be noticed that amending Act XXXVlll of 1957 was in force at the date of the MamB
latdar's orders of ejectment.
Now s. 32 as it stood after the
amendment by Act XXXVIII of 1957 is in these terms :
D
G
II
"On the first day of April 1957 .... every
tenant
shall .... he <le~med to have purchased from his landlord .... th~ land held by him ~·s tenant, if-
( a) such tenant is a perm:in~nt tenant ther~Pf and cultivates land personally;
( b) such tenant is not a permanent tenant but cultivates
the l~nd leased !Jersonally; and
( i) the landlord has not given notice of termination of his tenancy under section 31; or
(ii) notice ha' been given under section 31, but the
landlord has not applied to the Mamlatdar on
or before- the 31st day of March 1957 under
section 29 for obtaining possession <lf the land;
or
(iii) th~ land[oc.l has not terminated this
tenancy
on any of the grounds specified in section 14,
or has so terminated the tenancy hut has not
applied to thJ Mamlatdar on or before the 31st
day of March 1957 under 'cction 29 for obtaining possession of the lands :
Provided that if an application made by the landlord under section 29 for obtaining possession of the
land has been rejected by the Mamlatdar or by the
Collector in appeal or in revision by the
Bombay
Revenue Tribunal under the provisions of this Act, the
tenant shall be deemed to have purcha,;ed the land on
the date on which the final order of rejection is passed.
The date on which the final order of rejection i~ p1ssed
is hereafter referred to as 'the rostponed ch1te'."
The High Court, as I have stated, said that s. 32 though
made retrospective did not affect pending applications for ·ejectment which the applications of the landlord
resulting in
the
336
SUPREME COURT REPORTS
[1965] 2 S.C.R.
orders of ejectment were.
The matter was put in this way. "A
A
retrospective provision cannot, in my view, have any effect to
pending proceedings where such retrospective provision provides
that an application or proceeding shall be started not later than
a part'cular date when proceedings have already been filed by the
time that the said amending Act comes into force." I am unable
lo say that I have fully understood this observation but learned
B
advocate for the landlord assures us that it can only mean that
the amendment made does not affect pending
proceedings.
Learned advocate for the landlord, was however, unable to support the view taken by the High Court.
I also think that the
High Court fell into an error. Now, there is, of course, no doubt
.
c
thut the legislature can validly make a law so retrospective as to
affect a pending proceeding. The question is, did it do so in the
present case ? I think it clearly did. Section 32 after the amendment provided that a tenant personally cultivating land would
on the date of the amending :Act be entitled to claim to have
become a purchaser of :he land held by him with effect from
D
April I, l 957, if no application for his ejectment on the strength
of a notice under s. 14 or under s. 3 I had been filed on or before
March 31, 1957.
Any such application made after that date
and pending when the amending Act came into force, therefore,
could not ~!feet the right of the' tenant under the amended section
to claim to be' a purchaser; such application would, therefore, on
E
the passing of the amending Act become infructuous for
the
tenant having been made the owner of the land was no longer a
tenant who .could be evicted. The amended section, therefore,
necessarily affected 'pending proceedings.
The Act could
not
be read in the way the High Court did without refusing to give
full effect to the language used.
An interpretation doing
so · I'
would be unsupportable. Hence I am unable to agree with the
view taken by the High Court.
I pass on to consider whether the amended s. 32 made the
Mamlatdar's order of ejectment illegal.
In order that a tenant
may claim to have become a purchaser under the section, he
G
has to satisfy the conditions mentioned in it.
Those conditions
are set out in two sets. The first set of conditions is in els. (a)
and (b). These two conditions are obviously in the alternative
though between them the word "or" does not occur, for it is not
possible for a tenant to fulfil both the conditions; he cannot be
both a permanent tenant and not a permanent tenant at the same
H
time. It is not in dispute that the tenants in the present case per-
·sonally cultivated the lands held by them on the date mentione<!
' '
1~
CHUNIBHAI v. NARAYANRAO (Sarkar, J.)
337
A ,in the section. So one of the conditions in the first set can be
said to have been fulfilled.
The arguments in this case have turned on the second set of
conditions which are contained in els. (i), (ii) and (iii). I think
cl. (iii) really contains two conditions, namely, first a failure to
8
terminate the tenancy by notice under s. 14 and secondly, if ther~
has been such a termination, failure to apply for ejectment on the
basis of such termination on or before March 31, 1957. So this set
really contains four conditions.
Now, Mr. Shroff appearing for
the tenants contended that the conditions in these clauses in the
second set are alternative conditions and that it is enough for a
c tenant to satisfy any one of them. If this contention is well founded, then it cannot be disputed that the tenants in the present case
had become purchasers because the last condition had been fulfilled as the landlord had not applied to the Mamlatdar for ejectment
before March 31, 1957 on the strength of a notice under s. 14.
0
I am however unable to agree that the conditions are in the
alternative and fulfilment of any one of them would entitle a
tenant to claim to be a purchaser. The fallacy of Mr. Shroff's
contention can be shown by an illustration. Suppose cl. (iii) is
fulfilled but at the same time it appears that the landlord had before March 31, 1957, both given a notice under s. 31 and made
E an application for ejectment under s. 29 on the basis of that notice
which was pending when the amending Act came into force. That
is what happened in the present case. If Mr. Shroff is right, then
the tenant must be held to have become a purchaser on the passing
of the amending Act with effect from April l, 1957 notwithstanding the pending application. Such a reading of the section would
F however make the proviso ineffective. The application mentioned
in the proviso must be of one of the kinds mentioned in els. (ii)
and (iii) for under the section in the absence of such an application, the tenant becomes a purchaser. Now the proviso says that
when such an application is pending when the amending Act
comes into force, the tenant would not become a purchaser unless
G that application is rejected and then only on the date when it is
rejected. According to Mr. Shroff's contention, the tenant in the
case supposed has become a purchaser on the enactment of the
amending Act. But the proviso obviously contemplates that the
application contemplated in it might succeed for it says "if an
application .... has been rejected". By ..contemplating that the
H application may succeed, the proviso is laying down that the
tenant against whom it is made may be evicted. This could not
be done if the tenant had already become the purchaser as he
338
SUPREME OOURT REPORTS
[1965] 2 S.C.R.
would be if Mr. Shroff is right.
Neither ~.ould it for the same A
reason be, as the proviso also contemplates, that if the application
fails the tenant wo~ld become the purchaser on the date when the
application is rejected. The plain effect of the section obviously
is that a tenant fulfilling its conditions is to be deemed to have
beconie a purchaser on the passing of the amending Act, with
effect from an earlier date and where an application for his ejectB
ment on the'i:>asis of a notice either under s. 14 or s. 31 had been
made on or before March 31, 1957 and was pending when the ·
amending Act came into force, the teniint was to become a purchaser only if that application was rejected and then on the date
of the rejection. . It follows that where there is such a pending C
application, the tenant does not become a purchaser on the passing
of the amending Act though another condition of the section is
found to have been fulfilled. Hence the conditions set out cannot
be in the alternative.
In the present case the tenants relied principally on the second 0
condition contained in cl.' (iii) for their contention that the
Mamlatdar's order for ejectment was illegal. The applications on
which that order was made had been filed after March 31, 1957.
In fact they had been filed on July 10, 1957 and were pending
when the amending Act came· into force. If these applications
constitute the only step that the landlord had taken for ejectment E
of the tenants then obviously the conditions'in els. (i), (ii) and
(iii) had all been fulfilled and in that case the tenants must be
deemed to have become purchasers of the lands on April 1, 1957
and this wa~ the position which existed on September 28, 1957
when Act XXXVIII of 1957 had come into force. The Mamlatdar's order of ejectment had been made subsequent to the coming F
into force of that Act. These orders, as I have earlier stated, were
made between December 20, and 25, 1957. Before these dates
the tenants, on the assumption that I have made, having become
purchasers had ceased to be tenants and there was no question
therefore of evicting them as such.
The Mamlatdar should on
this supposition have dismissed those applications and his orders
G
of ejectment were therefore illegal.
But the facts here are different. The landlord had made an
:tnplication for ejectment before March 31, 1957 on the strength
of a notice under s. 31 and that application was pending when the
amending Act came into operation. It was then said that it
H
followed from this t.'iat the condition in cl. (ii) had not been
satisfied and so the tenants had not become purchasers under the
CHUNIBHAI v. NARAYANRAO (Sarkar, J.)
339
A section. It was contended that that being so, the Mamlatdar could
treat them as tenants and make an order of ejectment on the landlord's applications pursuant to the notices under s. 14 even though
they were made after March 31, 1957. In my opinion, this contention is ill founded. It is true that in order to become a purchaser a tenant has to satisfy all the conditions laid down in els.
B (i), (ii) and (iii). Therefore when an application for ejectment
filed before March 31, 1957 ou the basis of a notice under s. 31
was pending when the amending Act XXXVIII of 1957 came.into
force, as happened in this case, the tenant had not become a purchaser on the date of the enactment if the amending Act. This
however does not lead to the conclusion that in such a case an
C
application for ejectment on the basis of a notice under s. 14
filed after March 31, 1957 remained maintainable after the
amending Act and an order for ejectment could properly be made
on it. In my view, such an application became incompetent on
the passing of that Act. The reason is that if it remained mainD tainable, then the situation would be anomalous.
Assume that
the application filed prior to March 31, 1957 was rejected after
the amending Act came into force, as happened in this case, for
the withdrawal of the application in law amounts to its rejection,
then by virtue of the proviso the tenant would become purchaser
on the date of the rejection. If in such a case the application filed
.E
after March 31, 1957 had remained competent after the amending
Act had come into force and had succeeded, the position would be
curious. If the the application filed prior to March 31, 19 57 had
failed before the application filed after that date came up for
hearing, then the tenant having become the owner under the proviso on the failure of the earlier application, the later application
F could not thereafter be decided in favour of the landlord giving
him a right to eject the tenant for there was then no tenant to eject.
If, on the other hand, the application filed after March 31, 1957
had succeeded before the earlier application came to be heard,
then the earlier application would become infructuous for the
proviso contemplates a pending application for ejectment and,
G
therefore, against one who is still a tenant. In either case the
proviso would become ineffective. An interpretation of the section
producing such a result would be most unnatural. The proviso
clearly intends that if an application filed before March 31, 1957
is pending when the amending Act comes into force, the tenant
who could not in such a case have become a purchaser when the
H
amending Act came into force can do so if that application fails,
and then only on the date of the rejection. The tenant's right w
become a purchaser in the case of such a pending application is
340
SUPllBMB COUllT llBPORTS
[1965) 2 S.C.R.
not intended to depend on anything but the result of that applicaA
tion.
That right cannot be affected in any way except by the
success of that application; it cannot be affected by an order
made on an application for ejectment filed subsequent to March
31, 1957.
No application for ejectment either pursuant to a
notice under s. 14 ors. 31 filed after March 31, 1957 can effect
the tenant's right under s. 32 at all. That application, therefore,
if not disposed of prior to the coming into force of Act XXXVIII
of 1957 becomes thereafter dead and infructuous.
For these
reasons, I think that on the coming into force of Act XXXVIII
B
of 1957 the landlord's applications for ejectment filed on July 10,
1957 on the strength of notice under s. 14 became incompetent
C
and had to be rejected. An order of ejectment made on such an
application after the coming into force of the amending Act
would be wholly illegal. The Mamlatdar in the present case was
in error in passing orders of ejectment on those' applications. They
were rightly set aside by the Collector and the Tribunal.
It might be somewhat unfortunate that the landlord withdrew D
the applications filed before March 31, 1957 pursuant to the
notice under s. 31.
It might be that the landlord would have
succeeded on merits in them. As they were withdrawn, they must
in law be deemed to have been rejected. It does not appear why
the lanllord withdrew these applications which he did on March
l, 1958. Neither does it appear that the tenants had in any way
E
induced him to do so. The landlord might have made a mistake;
he might have thought that the orders of ejectment by the
Mamlatdar earlier made were legal and sufficiently protected his
rights. For that mistake however he alone is responsible. That
the applications had been withdrawn by the landlord and had not
F .
been rejected on merits does not improve the landlord's position
under s. 32.
I, therefore, think that the High Court was wrong in setting
aside the order of the Tribunal. In my view, the order of the
Tribunal upholding the Collector's order setting aside the orders
of ejectment passed by the Mamlatdar was in all respects correct G
and should in my view be maintained. I would, therefore, allow
the appeals and restore the orders of the Tribunal.
Bachawat, J. These appeals raise questions of construction of
ss. 32( 1) and 76-A of the Bombay Tenancy and Agricultural
lands Act, 1948 (Bombay Act LXVII of 1948). The facts in
all the appeals are similar,
In this judgment, we will refer to H
the relevant facts in Civil Appeal No. 791 of 1964. Respondent
No. 1 was the landlord and the appellant was the tenant of the
CHUNIBHAI v. NARAYANRAO (Bachawat, J.)
341
A disputed lands.
On May 1, 1956, respondent No. l gave a
notice to the appellant under s. 14 terminating the tenancy. On
December 25, 1956 respondent No. l gave another notice to the
appellant under s. 31 terminating the tenancy. On March 28,
1957 respondent No. l filed an application under s. 29 read with
s. 31 for recovery of possession of the lands. On July 10, 1957,
B respondent No. l filed another application under s. 29 read with
s. 14 for the same relief. By an order dated December 25, 1957
the Mahalkari allowed respondent No 1 's application under s. 29
read with s: 14 filed on July 10, 1957, and directed that the
tenancy be terminated and po,session of the lands be delivered to
c respondent No. 1. On March 1, 1958, respondent No. 1 withdrew the application under s. 29 read with s. 31 filed on March
28, 1957. The appellant applied to the Collector of Baroda on
August 9, 1958 and again on August 26, 1958 under s. 76-A
for revision of the Mahalkari's order dated December 25, 1957.
On or about August 14, 1958 the Collector called for the records
D from the Mahalkari, but the records did not reach the office of
the Collector until December 24, 1958. On or about October 3,
1958 the Collector rejected these revision applications.
On
October 6, 1958 the appellant again applied to the Collector for
revision of the Mahalkari's order, but this application also was
disposed of by the Collector on October 17, 19 5 8.
It is said
E that the letter of the Collector dated October 17, 1958 was only
an intimation of the previous rejection, but we think, though the
point is not important, it amounted to an order of rejection of the
application made on Octoher 6, 1958. On November 7, 1958,
the local Congress Manda! Samiti pas'ed a resolution requesting
F the Collector to reconsider his previous orders.
A copy of this
resolution was sent to the Collector on November 10, 1958. On
November 14, 1958, the appellant again applied to the Collector
under s. 76-A for revision of the Mahalkari's order. On February
17, 1959, the Collector acting under s. 76-A reversed the Mahalkari's order, and directed that possession of the disputed lands be
G restored to the appellant. An application for revision preferred
by respondent No. l on March 24, 1959 was dismissed by the
Tribunal on February 23, 1961. An application under Art. 227
of the Const'tution preferred by respondent No. I on June 15,
1961 was allowed by the High Court on November 5, 1963. The
H
appellant now appeals to this Court by special leave.
The contention of the appellant is that in view of s. 32 (1),
as amended retrospectively by Bombay Act XXXVTII of 1957,
he must be deemed to have purchased the land on April I, 1957,
• 342
SUPltJ!MB COURT ltJ!PORTS
[1965] 2 S.C.R.
and consequently the application of respondent No. 1 fifod under
A
s. 29 read with s. 14 was not maintainable, and alternatively, the
aforesaid application being filed after April 1, 1957 was not
maintainable and should have been dismissed by the Mahalkari
on that ground, and subsequently on March 1, 1958, the appellant
must be deemed to have purchased the land> in view of the withdrawal and consequential rejection of the previous application
8
filed under s. 2 9 read with s.