Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8
PETITIONER:
TRIBHOVANDAS HARIBHAI TAMBOLI
Vs.
RESPONDENT:
GUJARAT REVENUE TRIBUNAL AND ORS.
DATE OF JUDGMENT10/05/1991
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
KULDIP SINGH (J)
CITATION:
1991 AIR 1538 1991 SCR (2) 802
1991 SCC (3) 442 JT 1991 (2) 604
1991 SCALE (1)958
ACT:
The Bombay Tenancy and Agricultural Lands Act, 1948-
Section 32(1), 88(1) (b)-Statutory right of ‘deemed
purchaser’-Whether arises.
HEADNOTE:
The appellant took on lease some agricultural lands
from one Viswas Rao and by operation of Section 32(1) of the
Bombay Tenancy and Agricultural Lands Act 67 of 1948, which
was applicable to the lease, he became a deemed purchaser
from tillers’ day i.e. 1.4.1957. Since the landlord was
insane, the right to purchase was statutorily deferred under
section 32-F till date of its cessation or one year after
death. Pursuant to the notification issued under Section
88(1)(b) of the Act, certain lands including those of the
appellant’s lease-hold lands were reserved for industrial
purpose; thereby making sections 1 to 87 of the Act
inapplicable to the exempted area. During the subsistence
of disability of the landlord, his son Vasant Rao sold the
land to the respondent under registered sale deed. Vishwas
Rao died in September 1965. The appellant became entitled
to purchase the land on and from August 19, 1966. He
therefore filed an application before Mamlatdar to fix the
price. He fixed on enquiry at Rs.4,95/65 P. which was paid
by the appellant. In the enquiry, the respondent contended
that he purchased the property from Vasantrao, son of the
landlord and by operation of the second proviso to Section
88(1)(b), the lands stood exempted from the operation of
Section 1 to 87 of the Act. So the Mamlatdar had no
jurisdiction to decide the price of the land. The
appellant’s contention was that Vasantrao had no right to
sell the lands during the life time of his father, the Karta
of the Hindu Joint Family. The sale was invalid and did not
bind him. He had acquired statutory right of ‘deemed
purchaser’ and its exemption under section 88(1)(b) did not
divest his statutory right. The Mamlatdar accepted the
appellant’s contention and allowed the petition. On appeal
to the Collector and revision to the Revenue Tribunal, the
decision of Mamlatdar was reversed. The Division Bench of
the High Court dismissed the writ petition. Hence this
appeal by the appellant, after obtaining special leave. On
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8
the question:-whether the operation of the second proviso to
Section 88(1)(b) of the tenancy Act, 1948 has retrospective
effect depriving the appellant of the statutory right?
803
Allowing the appeal, this Court
HELD: Section 88 of the Act empowers the government to
exempt certain other lands from the purview of Sections 1 to
87 of the Act. The State Governments exercised their power
from time to time under Section 88(1)(b) and issued
notification and punished in the official Gazette specifying
certain areas as being reserved for non-agricultural or
industrial development i.e., urban development. [806C-D]
It any land in the newly added area has been
transferred or acquired between the date of the notification
issued under first proviso and October 9, 1964, such
transfer or acquisition of land shall have the effect as if
it was made in an area to which the main part of the proviso
and Section 88(1)(b) would apply. The necessary consequence
would be that the provisions of Sections 1 to 87 shall not
apply and shall be deemed never to have applied to such
added area. It is implicit that such transfer or
acquisition made, to bring within the net of second proviso,
must be valid and bona fide one and not colourable,
fraudulent, fictitious or nominal. [809G-810B]
In the instant case, since Vasantrao did not obtain any
order from the competent court under the Lunacy Act to have
him appointed as Manager of the joint family to alienate the
property, the sale is per se illegal, The sale, therefore,
appears to be to defeat the statutory right of the
appellant. The rigour of the second proviso to Section
88(1)(b) is thus inapplicable. Thereby the right and
interest as deemed purchaser acquired by the appellant has
not been affected by subsequent notification issued under
section 88(1)(b). [811F-G]
Sukharam @ Bapusaheb Narayan Sanas & Anr. v. Manikchand
Motichand Shah & Anr., [196] 2 S.C.R. 59; Mohanlal Chunilal
Kothari v. Tribhovan Haribhai Tamboli, [1963] S.C.R. 707;
Sidram Narsappa Kamble v. Sholapur Borough Municipality &
Anr., [1966] 1 S.C.R. 618; Parvati & Ors v. Fatehsinhrao
Pratapsinghrao Gaekwad, [1986] 3 S.C.R. 793; Navinchandra
Ramanlal v. Kalidas Bhudarbai & Anr., [1979] 4 S.C.C. 75;
P.K. Gobindan Nair & Ors. v. P. Narayanan Nair & Ors.,
[1912] 23 M.L.J. 706=17 Indian Cases 743; and A. Ramacharlu
v. Archakan Ananthacharlu & Anr., A.I.R. 1955 A.P. 261,
referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2378 of
1977.
804
From the Judgment dated 3.2.1977 of the Gujarat High
Court in Special Civil Application No. 551 of 1972.
B. Datta, L.B. Kolekar, Ms. Chetna Anand and P.H.
Parekh (NP) for the Appellant.
S.K. Kholakia, R.B. Haribhakti and P.C. Kapoor (NP) for
the Respondents.
The Judgment of the Court was delivered by
K. RAMASWAMY, J. The facts relevant to the controversy
are as under:
The appellant had taken on lease, about 55 years ago,
an extent of 2 acres, 6 gunthas of agricultural lands
situated in Akote village from Vishwas Rao. The Bombay
Tenancy and Agricultural Lands Act 67 of 1948 for short ‘the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8
Act’ applies to the lease. By operation of s. 32(1) the
appellant became a deemed purchaser from tillers’ day i.e.,
April 1, 1957. Section 32-G provides the procedure to
determine purchase price. Since the landlord was insane,
the right to purchase was statutorily deferred under section
32-F till date of its cessation or one year after death.
Under section 88(1)(b) of the Act certain areas abutting
Baroda Municipality were notified as being reserved for non-
agricultural or industrial purpose with effect from May 2,
1958. By another notification published in the Gujarat
State Gazette dated July 2, 1964, certain lands including
those situated in Akote and of the appellant’s lease hold
lands were reserved for industrial purpose. Consequently
Ss. 1 to 87 of the Act do not apply to the exempted area.
While the landlord was continuing under disability, his son
Vasant Rao sold the land to the respondent under registered
sale deed dated August 19, 1964. By another notification
under Section 88(1)(b) published in the Gazette dated
October 29, 1964, the Government restricted the operation of
the exemption to the area originally notified on May , 1958
i.e., Ss. 1 to 87 do not apply to the lands in question.
This notification was rescinded by further notification
published in the Gazette dated August 23, 1976. The Bombay
Tenancy and Agricultural Lands(Gujarat) Amendment Act 36 of
1965, s. 18(1) and 18(2) thereof introduced two provisos to
s. 88(1)(b) of the Act which was published in the Gazette on
December 29, 1965 which are relevant for purpose of the
case. Section 88(1)(b) with amendments reads thus:
"(1) Save as otherwise provided in sub-section (2)
805
nothing in the following provisions of this Act
shall apply-
(a) to lands belonging to, or held on lease form
the Government;
(aa) to lands held or leased by a local authority;
(b) to any area which the State Government may,
from time to time, by notification in th official
Gazette, specify as being reserved for non-
agricultural or industrial development;
Provided that if after a notification in respect of
any area specified in the notification is issued
under this clause, whether before or after the
commencement of the Bombay Tenancy and Agricultural
Lands (Gujarat Amendment) Act, 1965, the limits of
the area so specified are enlarged on account of
the addition of any other area thereto, then merely
by reason of such addition, the reservation as made
by the notification so issued shall not apply and
shall be deemed never to have applied to the area
so added, notwithstanding anything to the contrary
contained in any judgment, or order of any court,
Tribunal or any other authority.
Provided further that if any land in the area so
added has been transferred or acquired after the
issue of notification referred to in the first
proviso but before the 9th day of October, 1964,
such transfer or acquisition of land shall have
effect as if it were made in an area to which this
clause applies".
Vishwash Rao died in September 1965. The appellant
became entitled to purchase the land on and from August 19,
1966. He filed an application before Mamlatdar to fix the
price. He fixed on enquiry at Rs.4,925.65 paise which was
paid by the appellant.
In the enquiry, the respondent contended that he
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8
purchased the property from Vasantrao, son of the landlord.
By operation of second proviso to s. 88(1)(b) the lands
stood exempted from operation of Ss. 1 to 87 of the Act. So
the Mamlatdar had no jurisdiction to decide the
806
price of the land. The appellant raised the contention that
Vasantrao has no right to sell during the life time of the
father, the Karta of the Hindu Joint Family. The sale is
invalid and does not bind him. He acquired statutory right
of deemed purchaser and its exemption under section 88(1)(b)
does not divest his statutory right. The Mamlatdar accepted
the appellant’s contention and allowed the petition. On
appeal to the Collector and revision to the Revenue Tribunal
the decision was reversed. The Division Bench of the High
Court by order dated February 3, 1977 dismissed the writ
petition. The appellant had leave of this Court by Art.
136. Thus this appeal.
From these admitted facts the question emerges whether
the operation of the second proviso to s. 88(1)(b) has
retrospective effect depriving the appellant of the
statutory right of ‘deemed purchaser’. S. 88 of the Act
empowers the government to exempt certain other lands from
the purview of Ss. 1 to 87 of the Act. The State Government
exercised their power from time to time under section
88(1)(b) and issued notification and published in the
official Gazette specifying certain areas as being reserved
for non-agricultural or industrial development i.e., urban
development. Consequently the first proviso gets attracted
which say that notwithstanding any judgment or order of any
court, tribunal or any other authority under the Act to the
contrary, once the notification was issued either before or
after commencement of the Amendment Act reserving the area
so added for non-agricultural or industrial development i.e.
expansion for urbanisation, to the extent of the area
covered under the first proviso, the provisions of Ss. 1 to
87 were not applied and shall be deemed never to have been
applied. The second proviso which is material for the
purpose of the case further postulates that:
"Provided further that if any land in the are so
added has been transferred or acquired after the
issue of the notification referred to in the first
proviso but before the 29th day of October, 1964,
such transfer or acquisition of the land shall have
effect as if it was made to an area to which this
clause applies".
(emphasis supplied)
What is the effect of the second proviso to the facts
is the question? Mr. Dutta, the learned counsel for the
appellant contended that the first proviso has the effect of
excluding Ss. 1 to 87 of the Act only to those areas which
were initially reserved for non-agricultural or industrial
development and has no application to the land added to it
by a
807
subsequent notification though it would become part thereof.
Any alienation in violation of the Act would not attract the
operation of the second proviso. The Act is an agrarian
reform which created a vested right in the tenant as a
deemed purchaser with effect from Tillers’ day which cannot
be divested retrospectively. The proviso should be
construed to inhere in the tenant the vested rights created
under the Act. The Withdrawal of the notification dated
Oct. 29, 1964 renders the right of the appellant uneffected.
It is a cardinal rule of interpretation that a proviso
to a particular provision of a statute only embraces the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8
filed, which is covered by the main provision. It carves
out an exception to the main provision to which it has been
enacted by the proviso and to no other. The proper function
of a proviso is to except and deal with a case which would
otherwise fall within the general language of the main
enactment, and its effect is to confine to that case. Where
the language of the main enactment is explicit and
unambiguous, the proviso can have no repercussion on the
interpretation of the main enactment, so as to exclude from
it, by implication what clearly falls within its express
terms. The scope of the proviso, therefore, it to carve out
an exception to the main enactment and it excludes something
which otherwise would have been within the rule. It has to
operate in the same field and it the language of the main
enactment is clear, the proviso cannot be torn apart from
the main enactment nor can it be used to nullify by
implication what the enactment clearly says nor set at
naught the real object of the main enactment, unless the
words of the proviso are such that it is its necessary
effect.
The effect of the notification issued under section
88(1)(b) was the subject of consideration in several
decisions of this Court. In Sukharam @ Bapusaheb Narayan
Sanas & Anr. v. Manikchand Motichand Shah and Anr., [196]
SCR 59 Sinha, CJ., held that the provisions of s. 88 are
entirely prospective and apply to such lands as are
described in clauses (a) to (d) of s. 88(1) from which the
Act came into operation, namely, December 28, 1948 and are
not a confiscatory in nature so as to take away from the
tenant the status of a protected tenant already accrued to
him. In Mohanlal Chunilal Kothari v. Tribhovan Haribhai
Tamboli, [1963] 2 SCR 707 a Constitution Bench speaking
through Sinha, CJ. held that Clauses (a) to (c) of s. 88(1)
applies to things as they were on the date of the
commencement of the Act of 1948 whereas clause (d)
authorised the State Govt. to specify certain areas as being
reserved for urban non-agricultural or industrial
development, by notification in the official Gazette, from
808
time to time. It was specifically provided in clauses (a)
to (c) that the Act, from its inception, did not certain
areas then identified, whereas clause (d) has reference to
the future. The State Govt, could take out of the operation
of the Act such areas as in its opinion should be reserved
for urban non-agricultural or industrial development. Clause
(d) would come into operation only upon such a notification
being issued by the State Govt. In Sukhram’s case, this
Court never intended to lay down that the provisions of
clause (d) are only prospective and have no retrospective
operation. Unlike clauses (a) to (c) which are clearly
prospective, clause (d) has retrospective operation in the
sense that it would apply to land which would be covered by
the notification to be issued by the government from time to
time so as to take that land out of the operation of the Act
of 1948, granting the protection.
(emphasis supplied)
So far as clauses (a) to (c) are concerned, the Act of 1948
would not apply at all to lands covered by them, but that
would not take away the rights covered by the Act of 1939
which was repealed by the Act of 1948. Therefore, it was
held that by operation of s. 89(2) the rights acquired under
the Act of 1939 would be available to the tenant.
When a doubt was expressed of the correctness of the
above views on reference, another Constitution Bench in
Sidram Narsappa Kamble v. Sholapur Borough Municipality &
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8
Anr., [1966] 1 SCR. 618, held at p. 65 thus:
"New there is no doubt that s. 88 when it lays down
inter alia that nothing in the foregoing provisions
of the 1948-Act shall apply to lands held on lease
from a local authority, it is an express provision
which takes out such leases from the purview of
sections 1 to 87 of the 1948-Act. One of the
provisions therefore which must be treated as non-
existent where lands given on lease by a local
authority is in s. 31.....but the effect of the
express provision contained in s. 88(1)(a) clearly
is that s. 31 must be treated as non-existent so
far as lands held on lease from a local authority
are concerned and in effect therefore s. 88(1)(a)
must be held to say that there will be no
protection under the 1948-Act for protected tenants
under the 1939-Act so far as lands held on lease
from a local authority are concerned .......
809
the appellant cannot claim the benefit of s. 31;
nor can it be said that his interest as protected
tenant is saved by s. 89(2)(b). This in our
opinion is a plain effect of the provisions
contained in s. 31, s. 88 and s. 89(2)(b) of the
1948-Act".
In Parvati & Ors. v. Fatehsinhrao Pratapsinhrao
Gaekwad, [1986] 3 SCR 793. the facts were that the
Government issued a notification on May 21, 1958 under
section 88(1)(b) of the 1948 Act reserving the land within
the municipal limits of the city of Baroda for non-
agricultural and industrial development. The appellant’s
husband had taken possession of certain lands situated in
the city of Baroda on lease from the respondent-trustee.
The respondent laid the suit against the appellant for
recovery of arrears of rent. The defence was that the suit
was not maintainable. Dealing with the effect of the
notification issued under section 88(1)(b), this Court held
that the notification had retrospective operation and
subject to certain exceptions provided in sub-section (2) of
s. 88 all rights, title, obligations etc. Accrued or
acquired under the said Act ceased to exist. Therefore, s.
89(2)(b) was inapplicable to protect such right, title or
interest, acquired under the Act except as provided in s 89A
owing to express provision made in s. 88 of the Act.
Accordingly it was held that the Civil Court was legally
competent to determine the reasonable rent payable by the
tenant. In Navinchandra Ramanlal v. Kalidas Bhudarbai &
Anr., [1979] 4 SCC 75 this court was to consider a case that
the notification under section 88(1)(b) was issued on May
30, 1959 by which date the tenant acquired the statutory
right of a deemed purchaser with effect from April 1, 1957.
This Court held that the tenant cannot be divested of his
deemed purchase by a subsequent notification issued
thereunder. It would be seen that the effect of the second
proviso was not considered therein.
The above interpretation would equally apply to the
interpretation of the notification issued under the proviso
to s. 88(1)(b) adding to the area reserved for non-
agricultural or industrial development. Its effect is that
notwithstanding any judgment or order of any court or
Tribunal or any other authority, the provisions of Ss. 1 to
87 shall not apply and shall be deemed never to have applied
to such added area as well. If any land in the newly added
area has been transferred or acquired between the date of
the notification issued under first proviso and October 9,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8
1964, such transfer or acquisition of land shall have the
effect as if it was made in an area to which the main part
of the proviso and s. 88(1)(b) would apply. The necessary
consequence would be that the provisions of ss. 1 to 87
shall not apply and shall be
810
deemed never to have applied to such added area. It is
implicit that such transfer or acquisition made, to bring
within the net of second proviso, must be valid and bona
fide one and not colourable, fraudulent, fictitious or
nominal. The Legislature appears to relieve hardship to the
bona fide purchasers. The title acquired by such transfer
is not effected by the provisions of the Act. The
Legislature advisedly used the words ‘acquired or
transferred’.
The respondent’s own case is that Vishwesh Rao, Karta
of the Hindu Joint Family was under disability due to
lunacy. The tenant acquired statutory right as deemed
purchaser under s. 32. The Act, by necessary implication,
divests the landlord of his right to alienate the land held
by the tenant. The statutory right topurchase the land
under s. 32 as deemed purchaser was postponed by operation
of s. 32-F of the Act till the cessation of the disability
or one year after the death of the landlord. In such
situation can the son during the life time of the father,
has right to sell the same property to the respondents, and
whether such a sale made on August 19, 1964 to the
respondents was valid and binds the appellant.
In Raghavachariar’s Hindu Law Principles and
Precedents, Eighth Ed., 1987 in s. 275 at p. 39 stated thus:
"So long as the joint family remains undivided, the
senior member of the family is entitled to manage
the family properties, and the father, and in his
absence, the next senior-most male member of the
family, as its manager provided he is not
incapacitated from acting as such by illness or
other sufficient cause. The father’s right to be
the manager of the family is a survival of the
patria potastas and he is in all cases, naturally,
and in the case of minor sons necessarily the
manager of the joint family property. In the
absence of the father, or if he resigns, the
management of the family property devolves upon the
eldest male member of the family provided he is not
wanting in the necessary capacity to manage it".
Regarding the management of the Joint Family Property
or business or other interests in a Hindu Joint Family, the
Karta of the Hindu Joint Family is a prima inter pares. The
managership of the Joint Family Property goes to a person
by birth and is regulated by seniority and the Karta or the
Manager occupies a position superior to that of the other
members. A junior member cannot, therefore, deal with the
joint family property as Manager so long as the Karta is
available except where the Karta relinquishes his right
expressly or by necessary impli-
811
cation or in the absence of the Manager in exceptional and
extra-ordinary circumstances such as distress or calamity
effecting the whole family and for supporting the family or
in the absence of the father whose whereabouts were not
known or who was away in remote place due to compelling
circumstances and that is return within the reasonable time
was unlikely or not anticipated. No such circumstances are
available here to attract the facts of the case.
Vasantrao, the vendor, son of the Karta of the Hindu
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8
Joint Family per se has no right to sell the property in
question as Manager so long as the father was alive. When
father was under disability due to lunancy, an order from
the Court under Indian Lunancy Act IV of 1912 was to be
obtained to manager the joint family property. No
proceedings were taken under ss. 39, 43 and 45 of the Indian
Lunacy Act to have the inquisition made by a competent
District Court to declare him as insane and to have him
appointed as Manager of the Joint Family. In P.K. Gobindan
Nair & Ors. v. P. Narayanan Nair & Ors., [1912] 23 M.L.J.
706=17 Indian Cases 473 a division Bench of the Madras High
Court held that a guardian cannot be appointed as Manager
under the Guardian and Wards Act on an adjudication of
Karnavan of an undivided Malabar Tarwad as a lunacy. In A.
Ramacharlu v. Archakan Ananthacharlu & Anr., A.I.R. 1955
A.P. 261 a division Bench consisting of Subba Rao, C.J. and
Satyanarayana Raju, J. (as they were) considered the
question of appointment of a son as the Manager of the
Mitakshara family whose father was alleged to be a lunatic.
Subba Rao, C.J. speaking for the Bench, held that in view of
the finding that the Karta, though was mentally not sound,
but was capable to manage the property, the application for
appointment of a son as manager of the joint family property
was not be ordered. Since Vasantrao did not obtain any
order from the competent court under the Lunacy Act to have
him appointed as Manager of the joint family to alienate the
property, the sale is per se illegal. The sale, therefore,
appears to be to defeat the statutory right of the
appellant. The rigour of the second proviso to s. 88(1)(b)
is thus inapplicable. Thereby the right and interest as a
deemed purchaser acquired by the appellant has not been
effected by a subsequent notification issued under s.
88(1)(b). The High Court, therefore, committed manifest
error in holding that the appellant is not entitled to the
relief. The appeal is accordingly allowed and the orders of
the High court, The Tribunal and District Collector are set
aside and that of the Mamlatdar is confirmed, but in the
circumstances parties are directed to bear their own costs.
Y.Lal. Appeal Allowed.
812