Bombay High Court
Bhima Balu vs Basangouda Mamgouda on 9 February, 1954
Equivalent citations: AIR1954BOM513, (1954)56BOMLR520, ILR1953BOM1080, AIR 1954 BOMBAY 513, 56 BOM LR 520
Author: Chief Justice
Bench: Chief Justice
ORDER Gajendragadkar, J.
1. This second appeal raises a short but important question of law under the Bombay Tenancy Agricultural Lands Act, No. 67 of 1948. The facts leading to this point of law are few and they are not in dispute. Krishnarao, who was the owner of s. No. 372, agreed to sell the said property to the plaintiff on October 12, 1948, for Rs. 5,925. In pursuance of this agreement, Rs. 100 were paid as earnest money and a period of three months was fixed for the performance of the contract. On 28-12-1948, the Tenancy Act came into operation. Thereafter, on 6-1-1949, a sale-deed was effected by Krishnarao in favour of the plaintiff. In the present suit filed on September 9, 1949, the plaintiff claimed a declaration that the sale-deed passed in his favour was valid and he asked for recovery of the rent due in respect of the land conveyed to him. The defence substantially was that the sale-deed was void under the provisions of Section 64 of the Tenancy Act and so the plaintiff was not entitled either to the declaration or to the consequential claim for the recovery of rent made in the plaint. The trial Court upheld the defendant's plea and dismissed the plaintiff's suit. On appeal, it has been held that the sale-deed is not affected by the provisions of Section 64 and so the plaintiff's claim has been decreed. That is how the question which falls to be considered in the present appeal is whether the provisions of Section 64 of the Tenancy Act affect the sale in favour of the plaintiff.
2. At the hearing of this appeal, our attention has been invited to the fact that on this point there are two conflicting judgments delivered by Division Benches of this Court. In -- 'Shivabhai Chhaganlal v. State of Bombay', Civil Appln. No. 255 of 1951, D/- 17-12-1951 (Bom) (A), the learned Chief Justice and I took the view that an agreement for sale made before the Tenancy Act came into operation was not affected by the provisions of Section 64 and the right accruing to the party under such an agreement to obtain specific performance of the agreement remained unimpaired. It must be added, however, that this point has not been elaborately considered, though the position that Section 64 of the Tenancy Act was prospective and could not affect the rights accrued to the parties under agreements of sale made before the Act came into force was treated as obvious and clear.
3. On the other hand in -- 'Appa Ganpat v. K. B. Wassoodew', , the learned Chief Justice and Shah J. appear to have taken a contrary view. Here again, the question which the Court had to consider in the first Instance was whether the petitioner was entitled to a writ, and the learned Chief Justice, who delivered the judgment of the Bench, commenced his judgment by observing that even if the view taken by the Revenue Tribunal on the question as to whether the provisions of Section 64 were retrospective or not was erroneous, that would not justify the issue of a writ, because the said erroneous decision could not be said to involve any question of jurisdiction at all. Even so, the learned Chief Justice proceeded to consider the arguments which were urged before the Bench and in the end he has observed that on the merits they agreed with the view taken by the Revenue Tribunal. In other words, the learned Judges accepted the argument that Section 64(3) would affect agreements made even before the commencement of the Act and Section 89, Sub-section (2), would not save those rights. In view of these conflicting judgments, it seems to us that this point should better be decided, authoritatively by a larger Bench. Both the learned advocates agree and indeed it is obvious that this point is likely to arise in many cases and it is undesirable that such conflicting expression of opinion should be allowed to create confusion in the minds of the litigants or the Judges who are bound by our decisions.
4. Mr. Datar for the plaintiff was prepared to-put his case on a narrower ground under Section 64 and he suggested at one stage of his arguments that it would be possible to decide this case without necessarily having to consider the larger question as to the retrospective character or otherwise of the provisions of Section 64 and as to the effect of the provisions of Section 89, Sub-section (2). He contends that since no Tribunal had been established at the time when the agreement to sell was made in the present case and in fact the same position continued even on the date when the sale-deed was executed, there is no scope for applying Section 64 to the sale-deed at all. This argument Mr. Datar is prepared to make on the assumption that Section 64 is retrospective, though his contention on the merits is that Section 64 is not retrospective, but is clearly prospective. We are not certain whether, even while deciding this narrower point in all its aspects, it would not be necessary to consider the provisions of Section 89, Sub-section (2). But, apart from that, as both the learned advocates agree that the larger question is of considerable importance and is likely to arise in several cases which may be pending in the Courts below or even in appeals which may be pending for decision in this Court, it is necessary that the conflict in the two unreported judgments should be resolved and the point finally disposed of so far as this Court is concerned.
5. We would, therefore, direct that the papers in this second appeal should be placed before the learned Chief Justice to enable him to direct that this second appeal should be placed for final disposal before a larger Bench. In view of the fact that this point may have arisen in a larger number of cases pending in the subordinate Courts, we would suggest that this second appeal should be placed for final disposal before a larger Bench at an early date.
ORDER Chagla, C.J.
6. This is a second appeal referred to a Full Bench and the question that arises for our decision is whether a sale effected after the Tenancy Act came into force which was not in accordance with the provisions of that Act is valid by reason of the fact that an agreement of sale had been entered into before the Act came into force. The few facts which are necessary may be stated.
7. The agreement of sale was entered into on 12-10-1948, under which one Krishnarao agreed to sell the land in suit to the plaintiff. The sale-deed was executed on 6-1-1949. In the meanwhile the Tenancy Act came into force on 28-12-1948. The plaintiff sued the defendant who claimed to be a protected tenant for rent. The defendant's contention was that the plaintiff was not his landlord but Krishnarao and, therefore, the plaintiff was not entitled to recover rent. The trial Court upheld the contention of the defendant and dismissed the suit. The learned District Judge allowed the appeal and passed a decree for rent in favour of the plaintiff. The defendant came in second appeal to this Court, and the question is whether on these facts the sale in favour of the plaintiff can be upheld.
8. Now, when the matter came before Mr. Justice Gajendragadkar and Mr. Justice Vyas, they felt that in view of two conflicting decisions of two different Division Benches of this Court it was necessary that the doubt should be settled by a larger Bench and, therefore, this second appeal was referred to us.
9. Now, there is a judgment in -- 'Civil Appln. No. 255 of 1951, D/- 17-12-1951 (Bom) (A)', which was delivered by my brother Gajendragadkar and myself. It is clear from that judgment that we refused to give any relief to the petitioner who came to this Court under Article 227 on the ground of delay, and before we dismissed the petition, we made a suggestion to the Government that Government should sympathetically consider the contention of the petitioner that he had entered Into an agreement of sale prior to the coming into force of the Act. Therefore, that judgment does not represent any considered view formed by that bench as to the true position arising in law with regard to a sale which was effected after the Act came into force.
Then we have a direct decision where the matter has been fully considered in -- ''. The bench consisted of my brother Shah and myself and we considered every aspect of the matter and we came to the conclusion that the sale which was effected after the coming into force of the Act was rendered void by Section 64 (3) and that it was not saved by Section 89 (2) notwithstanding the fact that the agreement of sale was entered into prior to the coming into force of the Act. We pointed out in this judgment that whatever rights the parties had under the agreement of sale were saved, but we refused to pronounce upon what those rights were. In our opinion, this is the correct view of the law, and we think it unnecessary to reproduce the arguments which find a place in that judgment. We accept both the decision and reasoning contained in that judgment.
10. But there is a difficulty which has beea pointed out to us by Mr. Datar on the facts of this case. Now, when we turn to Section 64, it provides for the mode of effecting a sale after the Act comes into force. Under Sub-section (1) the landlord has to apply to the Tribunal for determining the reasonable price. Under Sub-section (2) after the-Tribunal has determined the reasonable price, the landlord has to make an offer to the various persons mentioned in that Sub-section. It is pointed out by Mr. Datar that the Tribunal contemplated under Section 64 has not been set up and reliance was placed on Crawford's Statutory Construction and the statement of the law by the author at p. 151:
"Of course, the enactment of a statute is not the same as its taking effect as law. As will be seen hereafter, statutes do not always take effect upon their enactment but the effective date may be postponed either by virtue of their own provisions, or by the terms of a general law or a constitutional requirement upon the subject."
Therefore, it is urged that if Sub-section (3) which makes the sale in contravention of the section void is prospective, as we have held it is, then the Sub-section is prospective not in the sense merely that it should come into force when the Act comes into operation but it is prospective in the sense that it should come into force- only when Section 64 really becomes effective, and Mr. Datar rightly points out that the provisions of Section 64 make it clear that these provisions were only to come into force when the various conditions laid down in Section 64 became applicable and the most important provision of Section 64 is the setting up of the Tribunal. Therefore, till the Tribunal is set up the landlord cannot apply for fixing up a reasonable price and the Tribunal cannot determine a reasonable price. In this connection we may look at Section 67 (3) and that provides:
"For any area for which the Tribunal has not been constituted, the Mamlatdar or any officer authorised in this behalf by the State Government shall exercise the powers and perform the duties and functions of the Tribunal."
11. Now, in this case a notification was issued by the Government on 18-1-1949, appointing the Mamlatdar of Athni, the taluka with which we are concerned in this second appeal, to exercise the powers and perform the duties and functions of the Tribunal. Therefore, it is clear that tilt 18-1-1949, not only was there no Tribunal set up but no authority was appointed to perform the functions of the Tribunal. Therefore, as far as Section 64 is concerned, it only became effective on January 18, 1949, and any sale effected prior to 18-1-1949, would not be touched by Section 64 (3). As in this case the sale was effected on January 6, 1949, we are of the opinion that it does not come within the ambit of Section 64 (3). We might mention that we are not prepared to accept the wider contention put forward by Mr. Datar that under Section 64 (1) if the landlord shows his intention to sell the land prior to the coming into force of the Act, then the provisions of Section 64 (1) cannot be carried out and, therefore, in that case the sale ellected would not fall within the ambit of Sub-section (3). Mr. Datar says that if there is an agreement of sale prior to the coming into force of the Act, that crystallizes the intention of the landlord and as Sub-section (1) requires that he shall apply to the Tribunal as soon as he intends to sell the land, he cannot comply with that provision and, therefore, in every case where there is an agreement to sen prior to the coming into force of the Act, we must hold that Sub-section (1) cannot be complied with and therefore the sale would not fall under Sub-section (3).
In our opinion the intention contemplated by Sub-section (1) is a continuing intention. Even though the agreement of sale may have been entered into prior to the coming into force of the Act, the intention to sell continues till the sale is effected, and if the owner wants to sell the land in conformity with the provisions of Section 64, although he may have entered into an agreement to sell prior to the coming into force of the Act and although thereby he may have expressed his intention to sell the land, he must still apply to the Tribunal for determining the reasonable price as soon as the Act comes into force; but for the fact that the Mamlatdar was not appointed till 18-1-1949, we would have rejected Mr. Datar's contention based upon Section 64 (1). As in this case even though the landlord might have wanted to apply to the Tribunal for determining the reasonable price of the land under Section 64 (1), he could not do so because neither was there a Tribunal nor was there a Mamlatdar. It is clear that that section had not become effective as far as this particular case is concerned and it is for this reason and on this narrow ground we uphold the contention of the plaintiff.
12. The result is that we agree with the view taken by the learned District Judge. The appeal will, therefore, be dismissed with costs.
13. Appeal dismissed.