# SHANKAR MADHOJI NEMADE v. CHISUJI JANAJI BHADKE & ORS

- **Citation:** [1971] 2 S.C.R. 73
- **Court:** Supreme Court of India
- **Decided:** 1970-09-08
- **Bench:** J. M. Shelat, C. A. Va!Djai.;Jngam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shankar-madhoji-nemade-v-chisuji-janaji-bhadke-ors-5237
- **Pages:** 19

## Headnote

Bombay Tenancy and Agricultural Lands ( Vldarhha Region and Kutch
area) Act (99 of 1958), s. 52r-Scope of.
D
Section 9(6) of the Berar Regulation of Agrieultura1 Leases Act, 1951,
read with rule 9 of the Rules made thereunder required a land holder, who
terrnhiated the tenancy of his protected lease on the ground that the land
was required by him for his personal· cultivation, to cultivate the land personally for a period of 2 years. If the land holder failed to do so then the
section conferred a right on the former protected lessee to apply to the
Revenue Officer for being restored to possession. On December 30, 1958,
the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch
Area) Act of 1958 came into force.
Under s. 132 of the Bombay Act,
the Berar Act was repealed but certain rights acquired or accrued before
the commencement of the Bombay Act were saved. Under s. 52 of the
Bombay Act, if the landlord had cea..M to cultivate the land within a
period df 12 years from the date of taking possession, the tenant can
apply for restoration, that is, the period of 2 years under the Berar Act
was enlarged to 12 years.
E
Tue appellant was a protected lessee within the meaning of the CXPJ'.OSsion in the Berar Act, in respect of certain lands. The lanillord obtained
possession of the lands on April 4, 1~57 on the ground that he required
the lands for personal cultivation. He continued in possession of the lands
till June 21, 1961, on which date he transferred the lands to the first respondent.
The tenant thereupon filed an application under s. 52 of the
Bombay, Act. The application was dismissed but the tenant's app<;al was
11Dowed. The appellate order was confirmed in revision by the Revenue
Tribunal. The first respondent filed a writ petition and the High Court
set aside the order of the Revenue Tribunal.
The certified copy of the
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'udplellt of the High Court, by mistake, showed the valuation of the
ands at a very much higher value than the value given by the appellant
i.n the writ petition. The appellant obtained special leave from this Court
mentioning the enhanced valuation in bis application for special leave.
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On the questions : ( 1) Whether the special leave granted by this Court
~hould be cancelled on the ground \bat the appellant made a fahe statement in regard to valuation; and (2) whether s. 52 of the llombay Act
applll!e,
HELD : ( 1) Jn the particular circumst.ances of this c~se. though the
appellant should have bee11 more careful, 1t cannot be said. that ~e was
guilty of making any false or untrue statement on any matenal l,'artrculars
deliberately to mislead the court. : Further, the statement regar~mg va!u•-
tion was not of much consequence in this case because the questions rar9Cd
are points of law regarding the applicability of s. 52 of the Bombay Act.
[81 D·Fl
H
Harl Narain v. Badri Das, f19641 2 S~C.R. 203, Sita Bai v; Sonu Vanji
Wani & Ors., C.A. No. 982/65 dt. 25-4'68 and S. R. Shelly v. Phirozes/rah
Nusrerwanji 'Go/abawal/a & Anr., C:A. No. 155/63 dt. 5-4-63, referred to.
6--L23SSup.CICP)71
74
SUPREME COURT REPORTS
(1971 J2 S.C.R.
(2) Section 52 of the Bombay Act applies to the facts of this case.
[91 BJ
If a landlord, in pursuance of an order obtained under the Berar Act,
takes possession after the commencement of the
Bombay
Act, s. 52
applies to him and his obligation to cultivate personally for two years under
the Berar Act gets
extended to 12 years period provide<l
under that
section. [90 A-Bl
·
If the landlord had taken possession o'f the land under the Berar Act
before the commencement of the Bombay Act, there was an obligation on
him to cultivate personally for two years and if he had not so cultivated,
the tenant would have acquired a right to be 'rll!ltored to possession. That
right, so acquired by the tenant or accrued to him, before the commoncement of the Bombay Act, is ·saved under s. 132(2) (i) of the Bombay Act.
· Similiarly, If the landlord had cultivated the land personally for t

## Text

_Characters 0–39,960 of 51,750. This is a partial read: ask again with offset=39960 for what follows._

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73
SHANKAR MADHOJI NEMADE
v.
CHISUJI JANAJI BHADKE & ORS.
September 8, 1970
[J. M. SHELAT AND C. A. VA!DJAI.;JNGAM, JJ.J
Bombay Tenancy and Agricultural Lands ( Vldarhha Region and Kutch
area) Act (99 of 1958), s. 52r-Scope of.
D
Section 9(6) of the Berar Regulation of Agrieultura1 Leases Act, 1951,
read with rule 9 of the Rules made thereunder required a land holder, who
terrnhiated the tenancy of his protected lease on the ground that the land
was required by him for his personal· cultivation, to cultivate the land personally for a period of 2 years. If the land holder failed to do so then the
section conferred a right on the former protected lessee to apply to the
Revenue Officer for being restored to possession. On December 30, 1958,
the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch
Area) Act of 1958 came into force.
Under s. 132 of the Bombay Act,
the Berar Act was repealed but certain rights acquired or accrued before
the commencement of the Bombay Act were saved. Under s. 52 of the
Bombay Act, if the landlord had cea..M to cultivate the land within a
period df 12 years from the date of taking possession, the tenant can
apply for restoration, that is, the period of 2 years under the Berar Act
was enlarged to 12 years.
E
Tue appellant was a protected lessee within the meaning of the CXPJ'.OSsion in the Berar Act, in respect of certain lands. The lanillord obtained
possession of the lands on April 4, 1~57 on the ground that he required
the lands for personal cultivation. He continued in possession of the lands
till June 21, 1961, on which date he transferred the lands to the first respondent.
The tenant thereupon filed an application under s. 52 of the
Bombay, Act. The application was dismissed but the tenant's app<;al was
11Dowed. The appellate order was confirmed in revision by the Revenue
Tribunal. The first respondent filed a writ petition and the High Court
set aside the order of the Revenue Tribunal.
The certified copy of the
r l
'udplellt of the High Court, by mistake, showed the valuation of the
ands at a very much higher value than the value given by the appellant
i.n the writ petition. The appellant obtained special leave from this Court
mentioning the enhanced valuation in bis application for special leave.
G
On the questions : ( 1) Whether the special leave granted by this Court
~hould be cancelled on the ground \bat the appellant made a fahe statement in regard to valuation; and (2) whether s. 52 of the llombay Act
applll!e,
HELD : ( 1) Jn the particular circumst.ances of this c~se. though the
appellant should have bee11 more careful, 1t cannot be said. that ~e was
guilty of making any false or untrue statement on any matenal l,'artrculars
deliberately to mislead the court. : Further, the statement regar~mg va!u•-
tion was not of much consequence in this case because the questions rar9Cd
are points of law regarding the applicability of s. 52 of the Bombay Act.
[81 D·Fl
H
Harl Narain v. Badri Das, f19641 2 S~C.R. 203, Sita Bai v; Sonu Vanji
Wani & Ors., C.A. No. 982/65 dt. 25-4'68 and S. R. Shelly v. Phirozes/rah
Nusrerwanji 'Go/abawal/a & Anr., C:A. No. 155/63 dt. 5-4-63, referred to.
6--L23SSup.CICP)71
74
SUPREME COURT REPORTS
(1971 J2 S.C.R.
(2) Section 52 of the Bombay Act applies to the facts of this case.
[91 BJ
If a landlord, in pursuance of an order obtained under the Berar Act,
takes possession after the commencement of the
Bombay
Act, s. 52
applies to him and his obligation to cultivate personally for two years under
the Berar Act gets
extended to 12 years period provide<l
under that
section. [90 A-Bl
·
If the landlord had taken possession o'f the land under the Berar Act
before the commencement of the Bombay Act, there was an obligation on
him to cultivate personally for two years and if he had not so cultivated,
the tenant would have acquired a right to be 'rll!ltored to possession. That
right, so acquired by the tenant or accrued to him, before the commoncement of the Bombay Act, is ·saved under s. 132(2) (i) of the Bombay Act.
· Similiarly, If the landlord had cultivated the land personally for the required period before .the Bombay Act ·came into force the landlord would
have acquired a right not .to be disturbed from his possession thereafter.
That right ngain, which had been· acquired by the landlord or accrued to
him is saved under s. !32(2(i). [89 E-H]
Therefore, s. 52 applies to cases in which possession was obtained by
the landlord under s. 9 of the Berar Act but in respect of which the period
of two years disability imposed under s. 9(6) read with r. 9 df the rules
was.not over before the coming lillfo force of the Bombay Act. [90 F-Hl
The decision of this Court in Ram Chandra v. Tukaram, [1966] I
S.C.R. 594 does not lay down that s. 52 of the Bombay Act rioes not
apply to cases \vhere possession has been taken after the Bombay Act
had come into force in pursuance of an order 'for restoration ob.rained by
the landlor~ under the Berar Act. '[85 A-BJ
·
In the· Full Bench decision of the Bombay High Court in .":uraswatihai
Rabji Tukaranz Umarkar v. ~hikamchand Premsukhdas, (1966) Born.
L.R. 954, the possession of the land was taken by the landlord from the
tenant under the Berar Act and the two years period as required under
s. 9(6) of that Act had also expired before the coming into force of the
Bombay Act. The principle, that applicability df· s. 52 of the Bombay Act
depends solely upon the date on which the landlord takes possession, that
is, whether before or after the Bombay Act came into force, was to b,roadly
stated in the decision. [86 H; 88 G-H]
C1v1L APPELLATE JURISDICTION:
Civil Appeal No. 85 of
1967.
Appeal by special leave from the judgment and decree dated
August 19, 1966 of the Bombay High Court, Nagpur Ber.ch in
Special Civil Application No. 831 of 1965.
W. S. Barlingay and A. G. Ratnaparkhi, for the appellant.
M. S. Gupta and S. K. Dhingra, for respondent No. 1.
The Judgment of the Court was delivered by
Vnidialingam, J. The appellant was ·a 'protected lessee·
within the meaning of that expression contained in the · Berar
Regulation of Agricultural Leases Act, 1951 (Act 24 of 1951)
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s. M. NEMADE v. c. j. HHADKE ( Vaidialingam, J.)
7 5
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(hereinafter cailed the Berar Act) in respect of the suit lands
bearing survey No. 23 of an extent of 7 acres and 4 g~';has
under the 5th respondent herein, who was then
the ongmal
owner of the lands.
The 5th respondent served on the appellant
(hereinafter called the tenant) a notice dated December 28, 1955
under s. 9(1) of the Berar Act terminating the tenancy of the
appellar.t on the ground that he required the lands for personal
cultivation; and he also submitted an application to the Re~~ue
Officer under s. 8(1)(g) of the Berar Act for an order detemurung
the tenancy.
The 5th -respondent obtained an order from the
Revenue OIIicer on May 15, 1956 directing the tenant to surrender possession of the lands. The 5th respondent in pursu84¥:0 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 (h.:reinafter to be referred a~ the landlord) and got
in exchange 8 acres in survey No. 33
plus
an
amount o{
Rs. 13,000/-. ln the meanwhile on December 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.
The tenant filed an application under s. 52 of the Bombay
Act before the Naib Tahsildar, Achalpur, against respondent
Nos. 1 and 5 for restoration of the possession of the suit lands on
the ground that the original owner, the 5th rest>Ondent,
had
leased 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 s. 52
docs not apply and hence the application was not maintainable.
On appeal by the tenant, the Special Deputy Collector, Amravati
by hi; 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 respondent's revision challenging the order of the Special Deputy Collector was
dismissed on August 5, 1965 by the Maharashtra RevenUe Tri
bunal.
Tile Revenue Tribunal while dismissing
the
revision
petition, inter alia, held that the teinant was a protected lessee and
that in pursuance of the proceedings taken by the 5th respondent
in terms of the notice under s. 9(1) of the Berar Act, -die 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 fa~11ur of the first respondent on June 21, 1961,
the former must bo considered to have failed to use the lands
for the purpose,; specified in his notice within 12 years from the
date on which he took possession and in consequence the tenant
"76
SUPREME COURT REPORTS
(l971J2 S.C.R.
·was entitlc<l :o be restored to possession under · s. 52
of the
Bombay Act.
On this reasoning the Revenue Tribunal confirm-
·ed the order of restcration passed by the Special Deputy Collector
in favour of the tenant.
The first respondent filed a writ petition under Art. 227 of
the Constitutio11, being Special Civil Application
No. 831
ot
1965, in the High Court of Bombay (Nagpur Bench) challenging
. the orders for restoration passed against him by the Special Deputy Collectur and the Maharashtra Revenue
Tribunal.
The
High Court by its judgment and order dated August 19, 1966
has set aside the orders of the Special Deputy Collector and the
Revenue Tribunal, tnus restoring the order of the Naib Tahsildar,
and has d1sILissed the application for restoration filed by the
tenant.
The teuant challenges the decision of the High Court in
this appeal ty special leave.
The High Court in its order under appeal has recorded the
following iindings : fhe original owner, the 5th respondent, was
entitled to terminate the lease of the tenant by giving a notice
under s. 9(1) of the Berar Act.
He accordingly terminated the
.tenancy by giving notice dated December 23, 1955. After ini-
.tiating pro;:cedings under s. 8(1)(g) read with s. 19(1) of the
1Berar 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 ~ase the 5th respondent has complied with
this requirement.
A~ 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 s. 9(6) of the Berar Act, the tenant had ceased
to have any rights after the expiry of the period of 2 yea!'S and
hence s. 52 of the Bombay Act was not apolicable 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 Babji Tukaram Umarkar v.
Bhikamchand Ptemsukhdas, ( 1 ) wherein it had been held that
when posse~sion of the lands had been taken before coming into
force of the Bombay A<:t, the rights and liabilities of the parties
are governccl by the Berar Act and that s. 52 of the Bombay Act
has no retrospective operation. On these findings the High Court
allowed the writ petition of the first respondent.
Dr. Barlingay, learned counsel for the appellant, has urged
that having due regard to the scheme of the Berar and Bombay
Acts, the High Court's view that s. 52 of the Bombay Act has no
·application, is erroneous. In this case, he pointed out that the
(l) !966 Born. L. R. 954.
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s. M. ~EMADE v. c. J, BJIADKE (Vaidia/ingam, J.)
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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 oriFPnal owner, the 5th respondent, had entered into possession ~fter te~!nating the l~ase.
Section 52 of tile B0mbay Act contams prov1s1ons substantially
similar to s. 9(6) of the Berar Act which was repealed and the
only change was that the Bombay (\ct enlarged the period for
which the landlord was required to continue to cultivate land
personally from t·vo years to 12 years.
As the enlarged period
under the Uombay Act has come into operation before the expiry
of Ille &horter peri<.'1.l under the Berar Act, which was repealed,
the landlord was bound to conform to the requirements of the
larger period pr;:i,.ided 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 tenant's application for restoration by the High
Court is opposed to the mandatory provisions of the Bombay
Act. The counsel, further pointed out that the Full Bench;
decision, on which t!Je 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 s. 9(6) of
the Berar Act had 01ready expired before the coming into force
of the Bon1bay Act, whereas in the case on hand even before
the expiry of that two years' period the Bombay Act has come
in to force.
This n1Jterial difference has not been noted in the
present ordec by the High Court.
He further urged that if the
Full Bench decision applies, as held by the High Courl, it should
be held by this Court that the Full Bench decision is not
COrrC\Ct.
Mr. M. S. Gupt~. karned counsel for the first respondent,
landlord, raised a preliminary objection to the hearing of the
appeal antl 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
applicatio;i. for grant of special leave.
We will revert to this
aspect a little later.
On merits Mr. Gupta contended that the
obligation of his client's 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 s. 9\6) of the Berar Act having been duly complied with,
s. 132(2) ot !he BoC11bay Act
stands
attracted.
The counsel
78
SUPREME COURT RE!'ORTS
[1971) 2 S.C.R.
pointed oat that s. 132 deals with repeals and savings.
Subsection (i) had repealed the enactments specified in Schedule 1
to the· extent specified in column No. 4 of the said Schedule.
Schedule i shows th.JI the Berar Act has been repeale<l in its
entirety.
Notwithstanding the repeal sub-section (2) has saved
certain mar;,•rs and one of the matters so saved is the obligation
or liability already inwrred before the commencement of
the
Bombay Act.
The 5th respondent, who had incurred the obligation or liability to cultivate the lands for two years under the
Berar Act before the commencement of the Bombay Act, has
.discharged the said obli~ation 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 h.is been
taken
aft~r the coming into force of the IJombay A.ct
on ·the basis of an. order for restoration obtained under the Bei'ar
Act.
In s~pport of this contention he relied on the Jccision in
Ramchandra v. Tukaram and others(!).
Before we deal with the merits we will now dispose of the
,preliminary objection raised by Mr, Gupta 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 drew our attention to the statements
made in paragraph 6 of the application wherein the appeUant has
stated that the 5th respondent had transferred the suit lands in
favour of the first respondent on June 21, 1961 by taking ,i.n
exchange 8 acres of land plus a sum of Rs. 30,000/-.. Again 1h
paragraph l 0 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 appel11141t
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 land' were exchanged for Rs. 30,000/-
plus
8 acres of lands and these statement' have been affirmed tq be
true to the personal knowledge of the appellant.
Mr. Gupta pointed out that these statements regarding valua1ion are absolutely false to the knowledge of the appellant as will
(I) (1966) 1.S.C.R. 594
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s. M. NBMADE v. c. J. BHADKE (Vaidialingam, J.)
79
be clear from the value ·given in the writ petition filed by the
first respondent in the High Court. In para I of the writ petition
the first respondent has stated that the 5th respondent after transfering the suit lands of 7 acres and 4 gunthas has taken in
exchange from him 8 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 as
Rs. 13,000/- the total value of the lands being only Rs. 19,000/·.
Ht: 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 -0f 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 am! have been deliberately made to
mislead the Court so as to obtain special leave making it appear
that the requirement regarding valu.ation is satisfied.
Mr. Gupta
drew out attention to the decisions of this Court, namely, Hari
Narain v. Badri Das( 1), Sita Bai v. Sonu Vanji Wani and ors(')
and S. R. Shelly v.
Phirozeshah Nusserwanji Go/abawalla
ar.d another(").
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 pro·
position 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 Hari Narain \{· Badri Das('), this Court held that the special
leave petition contained inaccurate, untrue and misleading statements and cancelled special leave already granted. This Court
observed at page 209 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
mis-leading."
(l) [1964] 2 S.C.R. 203.
(21 G.A. No. 982of1965 decided en 25-4-1968.
13) G.A. No. 155of1963 decided on 25-4-1963.
so
SUPREME COURT REPORTS
[1971] 2 s.c.R: ·
From the facts in that case it will be seen that the material
A
statements made in the special leave petition were false .
•
In Sita Bai v. Sonu Vanji Wani' and ors. ( 1) this Court held
that in the special leave petition there was a misrepresentation of
facts on a matter of importance, though it was not possible to
say that when granting special leave these untrue facts had misled
Ii
the. Court.
It has been further emphasised in this decisjs>n that
the appellant had deliberately made untrue statements on matters
of importance and that they were not the result of inadvertence:
Similarly in S. R. Shelly v. Phirozeshah N11Ssenvanji Golabawal/a
and another(") a ·statement had beooi made regarding the value
of the subject matter as being above Rs. 20,000/. though the
suit had been valued only in the sum of Rs. 500/- and court fee
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paid on that valuation.
This Court held that the statements of
. valuation in the plaint, namely, Rs. 500/- cannot be reconciled
with the statement regarding valuation in the special leave appli·
cation and this Court took the view that the valuation has been
deliberately inflated with a view to getting over the preliminary
hurdle as regards valuation. In this view special leave granted
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was revoked.
If it is held that there has been an untrue averment regarding
material statements or a false statement on matters of importance
or a deliberate untrue statement regarding valuation has been
made to mislead this Court, it cannot be gainsaid that the special
leave granted by this Court will have to be revoked.
Dr. Barlingay pointed out that there has been no untrue or
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· false statement made by his client on any material particular
nor has any statement been deliberately made to mislead the
Court so as to enable his client to obtain special leave.
On the
other hand, the counsel poiilted out, that the certified copy of the · f•'
judgment of the High Court furnished to his client and which
has been filed in this Court clearly shows that in the said ·copy the
High Court has stated that the· 5th respondent obtained an exchange from the first respondent 8 acres of land plus a sum of
Rs. 30,000/-.
That mistaken value given in the High Court
judgment has been adopted in the special leave
peti~on. The
points that have be~n raised in the special lel!ve petition are all
questions of law relaoog to legal effect of possession under the Be!ar
Act after coming into force of the Bombay Act.
The valuation
given in the certified copy of the High Court judgment was incorporated in the special leave petition filed as early as January 1 ! ,
1967 .• He further pointed out that on M~rch 28, .1967
~
client had moved the High Court for correctmg the High Courts
(I) Civi) Appeal No. 982 of 1965 decided on 25-4-68'.
U} Civil Appeal No. 155 of 1963 decided on S-4-1961
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s. M. NEMADE v. c. J. BHADKE (Vaidialingam, I.)
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judgment by deleting the valuation of Rs. 30,\lOO/- and substitute
the same by correct figure of Rs. 13,000/-. The counsel for both
the parties agreed before the High Court that the figure of
Rs. 30,000/- contained in the judgment was an error and that
the correct figure should be Rs. 13,000/-. The High Court accordingly by its order dated April 17, 1967 corrected the judgment
by stating that the valuation of Rs. 30;000/- should be corrected
to Rs. 13,000/-. That order was passed nearly. three months
after the special leave application was filed in this Court.
In
view of the fact that his client and the counsel acting for him
at the time of drafting the petition for special leave adopted the
valuation given in the certified copy of the High Court's judgment, Dr. Barlingay pointed out that there has been no untrue
or false statement given by his client so as to justif:1 revocation
of the leave already granted.
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
th.e proceedings should have been. a little more careful, but that
does not di[close 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 regardin& applicability of either
the Berar or Bombay Acts. Therefore, Mr, Gupta has not been
a~le to make out a case for cancelling the special leave already
granted.
We will now proceed to consider the appeal on merits. The
suit land was originally in the Vidarbha Region, which before the.
passing of Bombay Act of 1958 was part of the state of Madhya
Pradesh and the tenancy of the appellant was governed by the
G
Berar Act As proceedin~ had been taken by the 5th respondent for evicting the appellant and for possession of the land under
the Berar Act, it is necessary to refer to some of the material
provisions of that statute.
Section 2 (h) defines a protected Jessee as 'a protected Jessee
H
witbin the meaning of s. 3.' Section 3 enumerates various lessees
who are protected lessees. There is no controversy that the
appellant before us was a protected lessee under the Berar Act.
Section 8 (1 ) enumerates in els. \a) to ( g) the grounds on whick
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SUPREME COURT REPORTS
[1971) 2 S.C.R.
the lease of a land held by a protected Jessee can be got tenninated
A
under the orders of a Revenue Officer. One of the groun~ for
eviction is provided under cl.(g) of
s. 8(1 ), namely,
lessee
having been served with the notice by a landholder as provided
in s. 9.
Section 9 deals with the right of the landholder to
tenninate the lease of a protected lessee: Sub-sections (1). and
( 6) of the said section which are material for the present purpose
B
are as follows :
"Right of landholder to tenninate lease of a protected lessee.
Section 9 ( 1 ) . Notwithstanding anything contained
'in section 8 . the landholder may tenninate the lease of
a protected Jessee by giving him notice in writing delivered not Jess than three months before the commencement of. the .next agricultural year stating therein the
reasons for such termination and the description of the
area in respect of which it is proposed to term'1iate the
lease, if the landholder requires the lands for cultivating
the land personally.
Section 9 ( 6). If on re-entering upon any land after
termination of the lease of a protected lessee in accor-
. dance with this section, a landholder fails at any time
during such period as may be prescribed to utilise the
land for the purpose for which the lease was tenninated,
the dispossessed lessee may apply to the Revenue Officer to put him in possession of the land from the
· c0mmencement of the agricultural year. next following :
and the Revenue Officer shall, after hearing the landholder and making such enquiry as he deems fit, put the
lessee in possession of the land if he is satisfied of the
failure and also award him such sum by way of compensation as the Revenue Officer may consi<!e.r· sufficient.'"
.
Section 19( I) provides for a landholder 11pplying to the
Revenue OlliCer to elect a protected lessee against whom an order
. for the termination of the lease had been passed under ss. 8 or 9.
Section 22 gives power to the State Government to make rules
;is stated therein.
Under cl. (3) of s. 22(2) rules can be made
regarding 'the period under sub-section (6) of s. 9'.
Rules have
been framed under s. 22 and in particular r. 9 prescribes 'such
period as that of two years'.
Hence it will be seen that s. 9(6)
read with r. 9 requires the landholder who terminates the tenancy
of his protected lessee on the ground that the land was required
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by him for his personal cultivation, to cultivate the land personally
for a period of two years.
Under the Berar Act, after having
entered upon the land, if the landholder fails to cultivate the land
personally during the above period. then s. 9(6) confers a right
on the former protected lesset: to apply to the Revenue Officer
for being restored to possession.
We have already indicated that the Bombay Act came into
force on December 30, 1958.
The material provisions to be referred to in the said statute are ss. 52(1) and 132. Section 52(1)
runs as follows :
·
''Landlord to restore possession if he fails to cultivate within one year :
Section 52 ( 1) : Where after terminating the tenancy
of any land under section 9 of the Berar Regulation of
Agricultural Leases Act, 1951, or under sections 38, 39
or 39A of this Act, the landlord has taken possession of
such land and he fails to use the land for the purpose specified in the notice given under the said section 9 or as the case may be within one year from the
date on which he took possession or ceases to use it at
any time for any of the aforesaid purposes within twelve
years from the date on which he took such possession,
the landlord shall forthwith restore p0ssession of the
land to the tenant whose tenancy was tenninated by
him. unless he has obtained from the tenant his refusal
in writin~ to accept the tenancy on the same tem1s and
conditions or has offered in writing to give possession of
the land to the tenant on the same terms and conditions a11d the tenant has failetl to accept the offer within three months of the receipt thereof :
Provided that no refusal of the tenant shall be valid
unless it has been verified before the Tahsildar in the
prescrj,bed manner."
Section 132 relates to repeals and
savings.
Sub-section 1
states that the provisions of the enactments specified in Schedule I
are repealed to the extent specified in column 4 of the said
Bchedule.
It may be stated at this stage that one of the enactments so repealed was the Berar Act in its entirety.
Sub-section 3
is not relevant.
Sub-section 2 of s. 132 on which reliance has
been placed by both the parties is as follows :
"Repeals and Savings :
Section. 132(2) : Nothing in sub-section (I) shall.
save as expressly provided in this Act, affect or be
deemed to affect -
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SUPREME COURT REPORTS
{1971] 2 S.C.R.
( i) any right, title, interest, obligation or liabiliiy
already acquired,, accrued or incurred before the commencement of this Act, or
(ii) any legal proceeding or remedy in respect of
any such right, title, interest, obligation or liability or
anything done or suffered before the commencement of
this Act,
and any such proceedings shall be instituted,
continued and disposed of, as if this Act had not been
passed."
We have already referred to the fact that the 5th respondent
had issued the necessary notice terminating the tenancy of the
appellant on December 28, 1955 under s. 9( 1) and after initiating proceedings under s. 8 ( 1) ( g) read with s. 19 (1), he obtained
an order for possession as against the appellant from the Revenue
Officer on May 15, 1956, and had also obtained possession of
the lands on April 4, 1957. All these proceedings were under
the Berar Act before the coming into force of the Bombay Act.
The 5th respondent continued in such possession of the lands till
June 21, 19 61, on which date he transferred the suit lands to
the first respondent in exchange for certain other lands.
The
appellant filed an application for restoration seeking relief on the
ground that the 5th respondent had ceased ·to be in possession
of the lands within twelve years from April 4, 1957.
Therefore the short question that arises for consideration is
whether s. 52 of the Bombay Act applies to those lands the possession of which was obtained by the landlord under s. 9 of the.
Berar Act but in respect of which the period of two years' disability as imposed under s. 9(6) read with rule 9 of the Rules
was not over before the coming into operation of the Bombay
Act.
From the scheme of the Berar and Bombay Acl6, it will be
noted that while s. 52 of the Bombay Act enlarged the period
of personal cultivation to 12 years, the Berar Act had provided
for·personal cultivation only for a period of 2 years.
Under the
Berar Act if the landlord does not personally cultivate for 2 years.
the tenant can apply for restoration of possession from the landlord. Similarly under the Bombay Act, if the landlord had ceased
Ill cultivate the land within a period of 12 years, from the date
<ii' taking possession. the tenant can apply for restoration.
We have already referred to the fact that Mr. Gupta, learned
counsel for the respondent, has relied on lhe decision of this Court
in Ramachandrn v. Tukaram and others(!) in support of his
-l I) [1966]1 S. C.. R. 594.
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proposition that s. 52 of the Bombay Act applies, . even Ill
cases where possession has been taken after the commg mto fo~cc
.of the Bombay Act in pursuance of an order for restoratton
obtained by the landlord under the Berar Act.
We _have gon_c
through the above decision and we are of the opIIllon that II
does not lay down any such proposition.
The question that arose
for consideration therein was a totally different one.
In that case
one X was a protected lessee under the Berar Act UJld the land-.
lord had terminated the tenancy under s. 9(1) on the ground of
personal cultivation and had also submitted an application to
the Revenue Officer under s. 8 (I)( g) for an order tenninating
the tenancy.
The Revenue Officer determined the tenancy by
erder dated July 2, 1957 and made it effective from April I.
1958. But before the latter date, Ordinance No. 4 of 1957 was promulgated, which in turn was replaced by the Bombay Act IX of
1958. The said Act had imposed a ban on eviction of tenants
and had also stayed all such proceedings pending on the date
of commencement of the said Act.
The landlord had applied
on May 15, 1958 to the Naib Tahsildar for an order for restoration of possession of the land by the tenant. The Bombay Act.
which repealed the Berar Act and the Bombay Act No. IX of
1958, came into force on December 30, 1958, on which date the
application filed by the landlord for restoration was pending
before the Naib Tahsildar.
There was a controversy as to the
nature of relief that could be granted to the landlord. Having
due regard to s. 132(2) (ii) and (3) of the Bombay Act, this
Court held that the application, filed by the landlord 'for restora:
tion of possession on . the basis of the
order obtained under
s. 8(1 )(g) of the Berar Act, and which was pending when the
Bombay Act came into force must be treated as an application
under s. 19 of the Berar Act and had to be tried and disposed
of by the appropriate authority.
This Court further held that
the application of the landlord being a pending proceeding in
respect of a right 11cquired before the Bombay Act, it had to be
continued and disposed of as if the Bombay Act had not been
passed.
Tt was further held that in so disposing of the application, treating it as one under s. 19 of the Berar Act, there was
no scope for the application of the conditions and restrictions
prescribed by sub-sections (3) and (4) of s. 38 of the Bombay
Act as those Provisions do not apply to proceedings to enforce
rights acquired when the Berar Act was in operation. This judgment, in our opinion, does. not support the landlord in the cose
before us.
H
We have already referred to the fact that the Hi)!h Court, in
i~s order under appeal. has held that s. 52 of the Bombay Act
does not ~pp.Iv to the present case as the landlord had cultivated ·
the land for two years though a part of that period was after the
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SUPP.EME COURT REPORTS
i.197 j j2 ~.C.R.
commencement of the Bombay Act.
The High Court has also
:;tated that s. 52 of the said Act will have no application to the
i:ase on hand inasmuch as the landlord had obtained possession
on April 4, 1957 long before the coming into force of the Bombay
Act.
For this proposition, the High Court has
relied on an
earlier decision of a Full Bench of the same Court in Sara1watibai
Babji Tukaram Umarkar v.
Bhikamchand Premsuklzdas(1).
According to Dr. Barlingay. the High Court's view that even if
a landlord completes the period of two years personal cultivation, as required under s. 9(6) of the Berar Act, after the coming
into force of the Bombay Act. the larger period provided under
s. 52 dqes not apply, is not correct.
We have already stated
that Dr. Barlingay has further urged that the Full Bench decision
of the Bombay High Court does not apply and if that applies.
the s.aid decision must be held to be erroneous.
As the decision under a13peal is substantially rested on the
decision of the Full Bench. it is necessary to examine the scope
of the Full Bench decision.
But we may straightway say that
the High Court's view that the Full Bench has held that s. 52
will not apply to cases where the two years' period is completed
even after the Bombay Act came into force is not correct. because
the Full Bench has not laid down any such proposition.
The
Full Bench has only held that s. 52 applies to cases where a land·
lord takes possession of the land on determination of a tenancy
either under s. 9 of ·the Berar Act or under ss. 38, 39 or 39A
,1F the. Bombay Act after the latter Act has come .into force.
The facts in the Full Bench case were briefly as follows : X,
a landlord obtained possession on July 3. 1955 of certain lands
from his tenant under the Berar Act on the grotind
that he
required the same for personal cultivation.
After the death of X
on October 28, 1955, his heirs inherited the property and continued in possession of the same till February 9. 1959, on which
date they sold the lands to one S.
After purchase by
S. the original tenant applied under s. 52 of the Bombay Act
for restoration of possession on the ground that the landlord had
ceased to use the property for a period of 12 years as re41uired
b~· the section.
The heirs of X and the purchaser S. were both
made parties to the said application and relief was
asked for
a!!ainst both of them.
At this stage it may be mentioned that
the Bombay Act came into force on December 3Q, 1958.
From the facts stated above. it will be seen that the landlord
had obtained possession from the tenant on July 3, 1955 and
he and his heirs had completed the requiremr-nt of s. 9 (6) of the
Berar Act. namely. two years personal cultivation
on
July 3.
1957, long before the Bombay Act
came into force.
After
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having completed the said two years period, the heirs were in
possession not only on the date of the coming into force of the
Bombay Act, but also till the date of sale to S. (February 9.
1959).
The question natura!ly arvse whether
s. 52
of
the
Bombay Act will apply when the two years· period under the
Berar Act had expired
before December
12,
1958.
There
appears to have reen earlier single Judge's
decisions
of the
Bombay High Court holding that s.