CHANCHALBEN WD O DAHYABHAI DESAIBHAI Vs. GUJARAT REVENUE TRIBUNAL

JUDGEMENT

(1.) These three petitions raise an important question as to the true interpretation and the scope of sec. 88C of the Tenancy Act as to whether the landlords successor or assignee after 1-4-57 is entitled to get exemption certificate. Sec. 88C(1) provides that save as otherwise provided by the Bombay Tenancy and Agricultural Lands (Gujarat Amendment) Act 1960 nothing in sec. 32 to 32R (both inclusive) shall apply to lands leased by any person if such land does not exceed an economic holding and the total annual income of such person including the rent of such land does not exceed Rs. 1500.00. Under sec. 88C(2) every person eligible to the exemption provided in sub-sec. (1) shall make an application in the prescribed form to the Mamlatdar within whose jurisdiction all or most of the pieces of land leased by him are situate within the prescribed period for a certificate that he is entitled to such exemption. The proviso has been introduced by the Amendment Act 16 of 1960 on December 13 1960 that where such person is a widow she may make such application before the 1st day of July 1961 not with standing that the period prescribed under this section has expired. Rule 53 provides for the period during which an application under sec. 88C(2) shall be made. The date prescribed was December 31 1959 which in case of a widow-landlord was extended till the successor-in-title availed of this benefit within six months from the date on which the widows interest in the land ceased to exist. That is why this proviso has extended this time limit upto July 1 1961 in case of a widow notwithstanding that the period had expired. Under sec 88C(4) if the Mamlatdar decides that the land is so exempt he shall issue a certificate in the prescribed form to such person. This section has been interpreted by our Full Bench in Madhaji v. Mashrubhai III G. L. R. 438 by K. T. Desai C.J. Miabhoy J. and Modi J. At page 455 Their Lordships pointed out that reading sec. 88C as a whole it was clear that although exemption is made dependent upon the landlords fulfilling the two conditions as to the land not exceeding the economic holding and the total annual income of the landlord including the rent not exceeding Rs. 1500/the result of the fulfillment of the two conditions was that the land of the landlord became exempt from the provisions of the section mentioned therein. In other words the exemption attaches to the land and not to the landlord although it is the landlord who in the ultimate analysis gets the benefit of exemption. Thereafter the Full Bench considered at page 459 the material question as to the date on which these two relevant conditions for exemption must be fulfilled. Their Lordships held that even though sec. 32(1) had introduced the concept of postponed date the postponement of the date of ownership has no relevance on the question of the date on which the exemption is to be claimed by the landlord from the operation of sec. 32(1). Their Lordships held that they would require strong reasons to construe sec. 88C in such a way as to putting a premium upon the fraud or refractoriness of the landlord. Any other view would be tantamount to putting a premium upon the course of action of a landlord and of permitting him to alter the rights of his tenant by resort to a proceeding which is ultimately found to be unjustified by a competent authority. During the pendency of a proceeding a landlord can devise means to alter his position in such a way as to fulfill the conditions laid down in sec. 88C though he might not have fulfilled the same on the tillers day. At page 461 their Lordships further considered the question as to whether the same date must be taken as the relevant date for the entire scheme of sec. 32 to 32R. On that question their Lordships observed at page 462 that even though a different date is obtained as the relevant date when reading sec. 88C with other sec. 32A to 320 it does not offend any recognised cannon of interpretation. The disparity if any would be the result of the different language used in those other sections and arise out of different situations dealt with by those sections. That is why their Lordship did not think it fit to undertake the risk involved in construing sec. 88C in so far as the rights of the parties mentioned in sec. 32F and 320 are involved. Their Lordships merely pointed out that 320 and 32F dealt with entirely different situations and the concepts underlying these two sections are different from the concepts underlying sec. 32(1). Whereas under sec. 32(1) the tenant becomes the owner by fiction of law under sec. 32F and 320 the tenant had the option to purchase. Therefore the law has been clearly settled by the Full Bench of this Court that the exemption applies to the land in whose case the landlord fulfils the two relevant conditions on the relevant date viz. the tillers day i.e. April 1 1957 as provided in sec. 88C(1). The said relevant date may not apply in all cases of such purchase by the tenants and that question their Lordships had kept open as to what would be the relevant date when there is only a right to purchase as envisaged under sec. 32F and 320 as they then existed. This narrow construction or the strict construction was adopted by Their Lordships so that the landlord may not be able to alter the position to the detriment of the tenant who was intended to be the deemed purchaser on the tillers day by this benevolent legislation. If we treat this exemption as relating to the land and not to the landlord. there would be no force in the contention raised by the learned advocates Mr. Patel and Mr. Chhatrapati that the successor should be included within the definition of the landlord for the purposes of determination of the right of such successor to file an application under sec. 88C for exemption. Both the learned advocates rely upon the definition of term landlord in sec.2(18) which requires to be construed in the light of the tenants definition. Tenancy means the relationship of landlord and tenant as given in sec. 2(17). Therefore both the learned advocates argued that the normal rule of construction must apply that the landlord must take within its ambit the successor of the landlord especially when the context is of property rights. Ordinary notions of Transfer of Property Act could not be departed from unless something to the contrary was provided under any of the provisions or there was something compelling in the context which justified departure from this normal principle of construction. Even in cases under sec. 31 and 32T where the landlord was given the right to terminate the tenancy and to evict the tenant after giving certain notice the learned advocates argued that the successor could always pursue the proceedings and could get benefit of that order which would be passed in favour of the deceased landlord who might have expired during the pendency of the proceeding. In such a case the right test which the learned advocates formulated was as to whether the relief could be availed of by the successor. The learned advocates also pointed out that the section would work greater hardship in particular cases. The landlord might die on April 2 1957 and if his widow could not get the benefit of this statutory provision the whole purpose of the said section for the benefit of small holders would be frustrated. The arguments of the learned advocates ignore the basic scheme of sec. 88C which clearly exempts the land even though the benefit of exemption ultimately goes to the particular landlord whose land satisfies these two conditions. Therefore if this interpretation as put by the Full Bench is properly understood it would be obvious that it is only that landlord who fulfils the relevant conditions on the tillers day and not on the postponed date or any other date who would get the benefit. If that landlord expires or if that landlord transferred the property to others the successors or transferees could never claim benefit of this provision. The tenant is made deemed purchaser on this tillers day and the entire scheme would be frustrated if after the tenant became deemed purchaser the landlord would be assumed to have any heritable or transferable interest with him. Therefore looking to the whole scheme of sec. 88C the wider construction suggested by the learned advocates cannot be accepted.

(2.) The learned Advocates next argued that even the proviso to sec. 88C(2) makes it clear that widows are contemplated by the Legislature as entitled to avail of this benefit for the extended period of limitation is provided in case of a widow landlord upto July 1 1961 Under Rule 53 where the landlord is a widow even the successor-in-title could avail of this benefit within six months when the interest of the widow ceased. Therefore the learned advocates argued that the successor-in-title is envisaged by the rule making authority. While appreciating this argument we should keep in mind the provision of sec. 32F. Under the original scheme of sec. 32F(1) notwithstanding anything contained in the preceding section where the landlord was a minor or a widow or a person subject to mental or physical disability or serving member of the armed forces the tenant had a right to purchase this land under sec. 32 within one year from the expiry of the period during which such landlord was entitled to terminate the tenancy under sec. 37. Therefore sec. 32F has slightly different scheme as was hinted at even by the Full Bench. What was initially provided was the right to purchase or option to purchase to the concerned tenant. There was a compulsory purchase only under the amendment which was made by introducing sec. 32F(IA) by Gujarat Act No. 16 of 1960 on December 13 1960 That sec. 32F(1A) provides that on and after the date of the commencement of the Bombay Tenancy an Agricultural Lands (Gujarat Amendment Act No. 16 of 1960) hereinafter referred to in this sub-section as the said date every tenant who has not exercised his right of purchase within the period of one year within which it may be exercised under sub-sec. (1) shall if the said period has commenced be deemed to have purchased the land on the said date? whether the period has expired or not and if the period has not commenced he shall be deemed to have purchased the land on the date on which the period would have commenced but for the provisions of this sub-section. Therefore the concept of deemed purchase was introduced even in case of such a disabled landlord and that is why this proviso was introduced in sec. 88C that a widow landlord in such a case could apply in the extended time upto July 1 1961 notwithstanding that the period prescribed by rule 53 had expired. The provisions of sec. 32F(I) would apply where the landlord is a minor or a widow or a disabled person on the tillers day. In such a case the tenant had only a right to purchase as the section was initially enacted. There being no question of a deemed purchase but only an option to the tenant to purchase a different date may be relevant for that purpose as indicated even by the Full Bench as the whole purchase was depending initially on the choice of the tenant. It is only when he sought to exercise the right that he would become deemed purchaser of the land. Therefore the same consideration would not apply in case of sec. 32F. After the amended sec. 32F(IA) even in such a case the concept of a deemed purchase has now been introduced and at the same time in case of a widow landlord the extended period is provided in the proviso to sec. 88C. Therefore this special scheme of sec. 32F would not justify and different interpretation even in those cases where sec. 32F does not apply because the original landlord was alive on the tillers day i.e. April 1 1957 Similarly sec. 320 originally provided only a right of purchase and as now amended it provides compulsory purchase on the day of expiry of one year in case of new tenant whose tenancy has been created after the tillers day. The context of this provision would require the different relevant date from April 1 1957 because of the special scheme of that section. Therefore this special provision would not .justify a different construction being given than the one which was accepted by the Full Bench so far as those cases are concerned where the landlord was not a disabled landlord and the tenant was entitled to become a deemed purchaser on April 1 1957 In such a normal case which is not governed by any special scheme of sec. 32F or 32o where a different consideration might prevail there would be no scope of applying any other date than the relevant date of tillers day for finding out whether the land in question attracts the exemption. If the landlord on that day did not fulfill the two conditions the tenant would automatically become a deemed purchaser without his rights in any manner being divested by an application of the subsequent successor of the landlord or his transferee. In fact such a landlord would have no heritable or transferable interest once his tenant became a deemed purchaser because he could not fulfill the two relevant conditions and he had non applied for getting a certificate under sec. 88C.

(3.) Mr. Patel and Mr. Chhatrapati relied upon my decision in Special C. A. No. 927 of 1961 decided on January 12 1968 I need not dilate any more on that decision as it proceeds on the special provision in sec. 32F. The landlord was a widow in whose case the tenant had an option to purchase. Therefore the tenant did not become a deemed purchaser on April 1 1957 so that that would have to be treated as the relevant date as laid down by the Full Bench decision. In that case I considered the question as it was left open by the Full Bench. The learned Advocate relied upon the decision of the Maharashtra High Court Full Bench in Anna Balkanda v. Vasant 64 Bom.L.R. 591. That decision has differed from the Gujarat Full Bench view only on the question as to whether in cases where the deemed purchase is postponed by the postponed date whether the relevant date on which the conditions under sec. 88C must be satisfied must be a different date viz. the date of the application. Therefore that decision would have no bearing on the present question. In view of this discussion. the position clearly emerges that if the landlord is not exempted but the land in question is exempt whose landlord satisfies the two conditions on the relevant date April 1 1957 the benefit of sec. 88C could be availed of only by the particular landlord whose tenant had become a deemed purchaser on April 1 1957 The benefit of this section could not be availed of by the subsequent transferee or the successor of the landlord who existed on April 1 1957