Bombay High Court
Shri Kashinath Baba Asbe & Ors. vs The State Of Maharashtra & Anr. on 8 December, 2000
Equivalent citations: 2001 A I H C 1271, (2001) 2 MAH LJ 372, 2001 BOM LR 2 390, (2001) 2 BOM CR 506
Author: V.C. Daga
Bench: V.C. Daga
JUDGMENT V.C. Daga, J.
The important question of law raised in these petitions is as under:
Whether Section 32P of the Bombay Tenancy & Agricultural Lands Act, 1948 ["Tenancy Act", for short] is applicable to the lands after exclusion thereof from the area of Municipal limits?
FACTS IN NUTSHELL The facts, necessary to appreciate the above question of Law are taken from Writ Petition No. 1203/1986, in nutshell, are as under:-
1. The petitioners are the legal heirs of the original tenant. The respondent Nos. 2 to 8 are the landlords of the lands in question bearing Survey Nos. 38/1, 39 and 43, situated at village Gopalpur, Taluka -Pandharpur. District Solapur (hereinafter referred as "suit lands", for short). There is no dispute about relationship of landlord and tenant inter se. The original respondent No. 2 Late Krlshnaji Patwardhan, purchased suit lands in Court auction held on 13th November, 1963. He obtained symbolical possession thereof. He got his name mutated in the revenue records, afjer acquiring title to the suit lands.
2. The original Vespondent No. 2. after acquiring title to the suit lands, approached the Additional Tahslldar and Agricultural Lands Tribunal, Pandharpur (hereinafter referred as "A.L.T.", for short), and prayed for an enquiry under Section 32-O of the Tenancy Act, The A.L.T.. initiated enquiry under Section 32-O, and by an Order, dated 16th April. 1966. declared the purchase ineffective.
3. Being aggrieved by the aforesaid Order, the original tenant - late Shri Annappa Baba As be filed appeal before the Appellate Authority, the Special Deputy Collector (Tenancy Appeals), Solapur. The said Appellate Authority set aside the impugned order vide Its Order, dated 23.11.1966. and remanded the case to A.L.T., for fixing purchase price as required under Section 32G of the Tenancy Act.
4. Being aggrieved by the aforesaid order, the original landlord invoked revislonal jurisdiction of Maharashtra Revenue Tribunal. Pune ("Revenue Tribunal", for short). However, said Revision came to be dismissed by an order, dated 30th December. 1968. with the result, the order, dated 23.11.1966, passed by Special Deputy Collector (Tenancy Appeals), Solapur. In absence of any further challenge to it, became final and binding on the parties. In view of this order, the A.L.T., Pandharpur, initiated enquiry under Section 32G of the Act. In the said enquiry, A.L.T. declared the purchase of the suit lands by the tenant effective under Section 32G of the Act and fixed the purchase price vide its Order, dated 24th January, 1974.
5. The original landlord challenged the aforesaid order in appeal bearing Tenancy Appeal No. 34 of 1979. The Appellate Authority, after considering the rival contentions, vide its Order, dated 24th December. 1980, allowed appeal and set aside the Order of A.L.T., and held that since the suit lands were falling in the Municipallimits on the tiller's day, as such provisions of Section 43C of the Act were attracted. The applicant-tenant was therefore, not entitled to purchase the suits lands.
6. Being aggrieved by the aforesaid order, tenant invoked the revisional jurisdiction of Revenue Tribunal, Pune. The Revenue Tribunal dismissed Revision by an Order, dated 31st March, 1983. The Revenue Tribunal held that the lands, In question, were included in the limits of Municipal Council, Pandharpur, in the year 1884. and continued to be the part thereof till it was excluded therefrom in the year 1961. Thus the suit lands were found to be part of the Municipal area on the tiller's day- Consequently. Tribunal found that in view of the provision of Section 43C, the provision of Section 32G could not have been applied to the facts of the present case. On this premise, the Revenue Tribunal confirmed the order of the lower Appellate Authority.
7. Being aggrieved by the aforesaid Judgment of the RevenueTribunal, the present petitioners preferred Writ Petition No. 5844 of 1983 before this Court. The same was dismissed on limine on 16th July, 1983. The original tenant carried Special Leave Petition to the Apex Court under Article 136 of the Constitution. The Apex Court, vide its Order, dated 23.7.1984, dismissed the Special Leave Petition, and endorsed the view of the Revenue Tribunal, holding that the provisions of Section 32G of the Act were inapplicable to the lands in question in view of applicability of provision of Section 43C of the Tenancy Act. Thus, the said question attained finality.
8. After the aforesaid first round of litigation, the respondent-landlords initiated fresh proceedings under Section 32P of the Act to resume possession of the suit lands. On being noticed, the legal heirs of the original tenant appeared and raised objection to the maintainability of the proceedings under Section 32P of the Act. on the premises that the amongst other provisions from Sections 31 to 31R (both inclusive) were inapplicable to the lands in question in view of applicability of Section 43-C of the Tenancy Act. However, the Additional Tahsildar. Pandharpur, vide its Order, dated 25th September, 1984, overruled the said objection and held that the purchase of suit lands, by tenant, became ineffective under Section 32G consequently the proceedings under Section 32P were maintainable aiid also found that the petitioner-tenants have no locus standi to appear and contest the said proceedings.
9. Being aggrieved by the aforesaid order, the heirs of the original tenant preferred an appeal before the Assistant Collector. Pandharpur. who concurred with the findings recorded by theAdditionalTahsiMar, and confirmed the said Order, vide its Order dated 26th October. 1984.
10. Being aggrieved by the aforesaid orders of the authorities below, the heirs of the original tenant invoked revisional Jurisdiction of Revenue Tribunal and contended that in the teeth of provision of Section 43C the applicability of Section 32P ought to have been ruled out by both the authorities below and the proceedings for resumption of possession- of suit lands initiated by the landlord ought to have been dismissed. The said contention did not find favour with the Revenue Tribunal, with the result, revision was dismissed.
11. Being aggrieved by the aforesaid Judgment of the Revenue Tribunal, writ jurisdiction of this Court under Article 227 of the Constitution was invoked by the heirs of the original tenant.
12. The second petition being Writ Petition bearing No. 1204/1986 has been preferred by another tenant who is also agitating for protection of his tenancy rights in the lands bearing Survey No. 148/1 of village Gopalpur. Taluka Pandharpur. admeasuring 19 acres and 14 Gunthas.
13. The tenants are different but landlords are same in both the petitions. The issue involved is common, as such both the petitions were heard together, and are being disposed of by this common Judgment.
CONTENTIONS OF THE PARTIES
14. The learned counsel appearing for the petitioners contended that the suit lands were included in the limits of Municipal Council. Pandharpur. in the year 1884, and continued to be so till its exclusion therefrom in the year 1961. The lands being part of the Municipal area of Pandharpur. It were within the sweep of Section 43C of the Act. He further urged that in view of Section 43C. the applicability of Sections 31 to 32R were taken away by statute and. therefore. Section 32P of the Act for resumption of lands was not available to the landlord. In other words, the landlord could not have been allowed to initiate proceedings under Section 32P of the Act, as the said Section was not at all applicable to the suit lands.
15. The learned Counsel for petitioners further contended that in the first round of litigation, the issue as to non-applicability of Section 32G was concluded right upto the Apex Court on the touchstone of Section 43-C of the Act, as the suit lands were in the limits of Municipal Council, Pandharpur on the tiller's day. According to him. the contentions raised In the earlier round of litigation and the sweep of the findings recorded therein went to the extent of holding that even after exclusion of the lands from Municipal limits, the provisions of Section 32G were not revived. He, therefore, submitted that applying the same analogy Revenue Tribunal ought to have held that the provision of Section 32Pwas not revived, even after exclusion of the suit lands from Municipal area of Pandharpur. Thus, the assistance of Section 32-P ought not to have been made available to the landlords for resumption of suit lands.
16. The learned counsel appearing for the petitioners further urged that omission to provide for provision under the Tenancy Act permitting the landlords to resume possession is deliberate and the same should not have been supplied by the Courts below by resorting to the process of interpretation. In his submission it is a firmly established rule that the Court is not at liberty to read words in a statute unless clear reason for it is found within the four corners of the Act itself or unless it is necessary to do so to give the language sense and meaning in Us context. He further contended that Tenancy Act is a beneficial legislation meant for the benefit of tenants. As such it should have been construed while keeping the purpose of the Act in mind. In his submission, omission to provide remedy in favour of landlords to resume possession is deliberate and, therefore, the same should not be supplied by the Courts.
17. The learned Counsel, in order to buttress his submission, took me through the scheme of the Act. and brought to my notice deletion of Section 43D of the Act by virtue of Section 6 of Maharashtra Act No. 10 of 1977, which reads thus :-
"6. Notwithstanding the deletion of Section 43D of the Bombay Tenancy Act and of Section 61 of the Vidarbha Tenancy Act, where proceedings for termination of tenancies are pending before the appropriate authority under any such Act and the landlord has taken possession of the land on or before the date of introduction of the Maharashtra Tenancy Laws, and the Maharashtra Regional and Town Planning (Amendment) Bill. 1976, in the Maharashtra Legislative Assembly, then such proceedings shall be continued and disposed of by such authority, as if, this Act had not been passed, in all other cases, notwithstanding any judgment, decree or order of any Court, Tribunal or Authority, such pending proceedings, shall abate, and the tenant shall continue to hold the land in accordance with the provisions of the Bombay Tenancy Act, or as the case may be, the Vidarbha Tenancy Act."
In his submission, reading of the aforesaid Section 6 as a whole unequivocally makes it clear that proceedings initiated at the instance of the tenants and which were pending before the appropriate authority under the Act on the date of introduction of Maharashtra Tenancy Laws and the Maharastra Regional and Town Planning (Amendment) Bill, 1976 in the Maharashtra Legislative Assembly, were allowed to be continued and mandated disposal thereof, as if. this Act had not been passed, and in all other cases where the proceedings were initiated by the landlords were declared as abated notwithstanding any judgment, decree or order of any Court, Tribunal or Authority. The learned counsel for the petitioner on the dissection of Section 6. went on to spell out the legislative intent, and contended that by virtue of Section 6 of Maharashtra Act No. 10 of 1977, the proceedings initiated by tenant for claiming possession from the landlord have been saved, whereas the proceedings initiated by the landlords against the tenants have been declared as abated. Consequently. In his submission, deletion of Section 43-D in view of Section 6 of Maharashtra Act 10 of 1977, is one of the pointers to show that the Legislature in their wisdom intended not to provide any remedy to the landlords for resumption of possession of tenanted lands falling within the limit of Municipalities or Cantonments. The learned Counsel for the petitioners, as a extended limb of the same submission, contended that there is no provision under the Act for claiming possession of the lands from the tenant if the lands are within the sweep of Section 43C of the Act.
18. The learned counsel. In order to emphasise his submission, also tried to unfold the Scheme of the Act, and tried to rely upon provisions of Chapter Vlll in general and provision of Section 88 of the Tenancy Act, in particular. He pointed out that Section 88 gives power to the State Government to exempt certain lands referred to therein from the operation of the Act. Similarly, he brought to my notice Section 88B which provides for exemption from the applicability of certain provisions of the Act to the lands owned by Local Authorities, Universities and Trusts. He also read Section 88C which grants exemption from the operation of the Act to the lands leased by the persons with the annual income not exceeding Rs. 1500/-. He also pointed out that the Tenancy Act, has given powers to the State Government via Section 88-D to withdraw exemption and has simultaneously made a provision vide sub-section (2) of Section 88-D, so as to provide consequences of withdrawal of such exemption. Therefore, in his submission wherever Legislature wanted to provide consequences of withdrawing exemption, a specific provisions has been made in that behalf. No such similar provisions is to be found In Chapter III-B of the Act so as to provide for consequences after exclusion of the land from the Municipal limits. Therefore, in his submission, omission to provide such specific provisions on the part of Legislature is deliberate and the same should not be supplied by the Courts.
19. In reply to the aforesaid contentions, the learned counsel appearing for the respondents (landlords) contended that the intention of the Act Is to confer ownership on the tenant, and not to allow the tenant to continue to be an ordinary tenant in perpetuity. He. therefore, contended that there is no other provision other than Section 32P of the Act to resume possession of the lands in question. He further contended that after exclusion of the area from the Municipal limits Section 32P will get revived, and it would come to the aid of the respondents-landlords, so as to enable them to claim possession of the suit lands. He tried to place emphasis on the words 'in case other than those" appearing in Section 32P of the Act, and contended that Section 32P has been enacted and phrased in a wide manner so as to take care of the cases in hand. He, therefore, tried to support the impugned orders passed by the authorities below, and prayed for dismissal of the petition.
POINT FOR DETERMINATION
20. In the above backdrop, the question, which needs consideration, at the cost of repetition, is as under :-
Whether Section 32P of the Tenancy Act providing for resumption of possession of the lands from tenant Is applicable to the lands after exclusion thereof from the areas of Municipal Limits?
CONSIDERATION OF RIVAL CONTENTIONS
21. Having heard the rival submissions, it will be profitable to turn to the provision of Section 43C of the Act, the relevant part of which reads as under :-
"43C Certain provisions not to apply to municipal of cantonment areas. Nothing in Sections 31 to 32R (both inclusive) 33A, 33B, 33C and 43 shall apply to lands in the areas within the limits of -
(a) ... ... ... (b) ... ... ... (c) ... ... ... (d) ... ... ... (e) ... ... ...
(f) any area included in a Town Planning Scheme under the Bombay Town Planning Act, 1954 :
Provided that, if any person has acquired anyrightas atenant underthis Act on or after the 28th December, 1948, the said right shall not be deemed to have been affected by the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1952, or by the Amending Act, 1955. notwithstanding the fact that either of the said Acts has been made applicable to the area in which such lands is situate."
The reading of the aforesaid provision unequivocally makes it clear that wherever Section 43C gets attracted. Sections 31 to 32R (both inclusive) together with Sections 33A, 33B, 33C and 43 are not to apply to the lands falling within the limits of Municipal Councils. The said Section 43-C falls in Chapter III-B of the Act. The said Chapter does not provide for any provision for the lands which ceases to be so exempted. In other words, there is no provision in the Act to deal with the situation arising from the exclusion of the lands from the purview of the municipal limits.
22. In order to find out the legislative intent and the scheme of the Tenancy Act, it will be useful to refer to Clause (2) of Section 88-D of the Act, which thus reads :-
"88D. (1) Notwithstanding anything contained in Sections 88, 88A. 88B and 88C, if the State Government is satisfied -
(i) ...
(ii) ...
(iii) ...
(iv) ...
(2) Where any such land or area ceases to be so exempted then In the case of a tenancy subsisting on the date specified ip the order issued under sub-section (1), the landlord shall be entitled to terminate such tenancy under section 31, within one year from such date and the tenant, unless his tenancy is so terminated, shall have aright to purchase the land within one year from the expiry of the period during which such landlord is entitled to terminate the tenancy. The provisions of Sections 31 to 31D (both inclusive) and Sections 32 to 32-R (both inclusive) shall, so far as may be applicable, apply to such termination of tenancy and to the right of the tenant to purchase the land."
In contrast to the aforesaid scheme engrafted in the aforesaid Sections. If one turns to the scheme of Chapter 1I1-B of the said Act. it will be clear that there is a specific provision under Section 43C. which provides that certain provisions referred to therein are not to be applied to the lands in the areas falling within the limits, amongst others, the Municipal areas. But no such similar provisions akin to Section 88(2) extracted (supra) Is to be found in Chapter III-B of the Act.
Therefore, omission on the part of the Legislatures to provide for such contingency appears to be deliberate. The scheme of the Act shows that no provision has been made by the Legislature to provide for consequences after removal ofthelands from the areas of the Municipal Council or the Cantonment. Had the Legislature wanted to provide for any remedy for taking possession or had it been intented by the Legislature that after removal of the lands from the areas of the Municipal Councils, the same should be allowed to be resumed by the landlords, then, in that event, a specific provision in that behalf would have been made as Is made by the Legislature under Chapter VIII via Section 88D(2) of the Tenancy Act. The said omission on the part of the Legislature to provide for such provision appears to be deliberate and cannot be said to be an accidental one.
23. In the above backdrop it will be necessary to take note that a matter, which should have been, but has not been, provided for in a statute or in statutory rules cannot, as a general rule, be supplied by construction, as that will amount to legislation. No doubt, it is the duty of the Court to try and harmonise the various provisions of an Act passed by the Legislature. But it is certainly not the duty of the Court to stretch the word used by the Legislature to fill in gaps or omissions in the provisions of an Act, as has been ruled by the Apex Court in Hira Devi v. District Board, Shahjahanpur,. In construing a statute the legislative intention must be sought In the language used therein contained with such helps as the canons of interpretation allow. But new language, or an entirely new provision cannot be imported Into a statute giving it a meaning not otherwise found therein. It is now a fairly well-accepted principle of construction of statutes that the Court must proceed on the footing that the Legislature intended what it has said. Even if there is any defect in the phraseology used by the Legislature the Court cannot make up the deficiency. Even where there is casus omissus it is for the Legislature, and certainly not for the Court, to remedy the defect. The Court cannot supply omission by Implication or analogy unless the existing provisions of a statute expressly or by necessary intendment compel Court to so construe.
24. There is no dispute to the settled legal position that the Courts only interpret the law and do not legislate it. Where the Legislature's Intention is clear, there Is no scope of reading in between the lines or putting an interpretation contrary to the intention of the Legislature. Adding to or providing for ancillary measures can be resorted to by the Courts only in grey areas and not in the covered fields. If on its true construction statute leads to anomalous results, the Courts have no option but to give effect to it and leave it to the Legislature to amend or alter the law. Any other view, even based on howsoever, high, cherished or pious desire cannot be the substitute of specific Legislature indictment.
25. The Apex Court in Anandji Haridas and Co. v. Engg. Mazdoor Sangh, held in Para 9, as under :-
"As a general principle of interpretation where the words of a statute are plain, precise and unambiguous, the intention of the Legislature is to be gathered from the language of the statute itself and no external evidence such as parliamentary debates, reports of the committees of the Legislature or even the statement made by the Minister on the introduction of a measure or by the framers of the Act is admissible to construe those words. It is only where a statute is not exhaustive or where its language is ambiguous, uncertain, clouded or susceptible of more than one meaning or shades of meaning that external evidence as to the evils, if any, which the statute was intended to remedy, or of the circumstances which led to the passing of the statute may be looked into for the purpose of ascertaining the object which the Legislature had in view in using the words in question."
In Commissioner of Sales Tax v. Parson Tools and Plants, it was held in Paras 11 and 12 as under :
"An enactment being the will of the Legislature, the paramount rule of interpretation which overrides all others, is that a statute is to be expounded "according to the intent of them that made it". "The will of the Legislature is the supreme law of the land and demands perfect obedience" "Judicial power is never exercised" said Marshall, C.J.. ofthe United States, "for the purpose of giving effect to the will of the Judges; always for the purpose of giving effect to the will of the Legislature ; or in other words to the will of the law".
"If the Legislature wilfully omits to incorporate something of an analogous law in a subsequent statute, or even if there is a casus omissus in a statute, the language of which is otherwise plain and unambiguous the Court is not competent to supply the omission by engrafting on it or introducing in it. under the guise of interpretation by anology or implication, something what it thinks to be a general principle of justice and equity. To do so "would be entrenching upon the preserves of Legislature" the primary function of a Court of law beingjus dicere and not Jus dare,
26. I am, therefore, convinced that the omission on the part of the Legislature appears to be deliberate and, therefore, it cannot be held that provision of Section 32P of the Act is available to the respondents-landlords to resume possession of the lands in question. The said conclusion reached bymealsogets support from the provisions of Section 6 of Maharashtra Act No. 10 of 1977, whereby the proceedings initiated at the instance of the tenant and pending on the date of Bill were kept alive, whereas proceedings initiated at the instance of the landlord and pending on the said date were declared as abated.
27. The learned counsel appearing for the petitioners, also challenged the findings of the Revenue Tribunal to the effect that the holding of the tenants is in excess of the ceiling area and therefore, they are not entitled to hold the same. In his submission Section 34 has now been deleted with effect from 1961 with the commencement of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act and, therefore, there is no bar to hold the land in excess of the ceiling area under the Act. In view of this, the findings recorded by the Revenue Tribunal cannot be held to be good. Under these circumstances, the findings recorded by the Revenue Tribunal, in this behalf, on the face of deletion of Section 34 of the Act are set aside including the impugned order passed by the Revenue Tribunal, dated 10th February, 1984 for the reasons stated hereinabove. I, therefore hold and held that the proceedings initiated under Section 32P of the Act are invalid and without jurisdiction as the assistance of the said Section 32-P of the Tenancy Act is not available to the landlords for resuming or claiming possession of the lands from the tenant in the facts and circumstances of the present case.
28. In the result, both the petitions are allowed. Rule is made absolute in terms of prayer clause (b) with no order as to costs.