ADAMBHAI HASANBHAI Vs. ADAM MALKA

JUDGEMENT

(1.) This is a writ petition under Articles 226 and 227 of the Constitution of India. Petitioners are the legal representatives of one Hasanbhai Adambhai who will be called the landlord hereafter. Respondent No. 1 is one Adam Malka who will be called the tenant in the rest of this judgment. Respondent No. 2 is the Gujarat Revenue Tribunal whose order dated 16th April 1962 is being challenged in this petition. The landlord was the owner of survey No. 2038 situated in Dhandhuka district Ahmedabad from out of which we are concerned with an area measuring twenty acres only in this petition. Respondent No. 1 (hereafter called respondent simpliciter) was the tenant of survey No. 2038. The landlord terminated the tenancy by a notice dated 15th November 1956 on the ground that he required the demised premises for his reasonable and bona fide requirements. The landlord thereafter filed on 18th March 1956 a tenancy suit bearing No. 3/1957 for possession of the demised premises on the ground that he required the premises reasonably and bona fide for his personal need and also on the ground that respondent had in his possession an area more than the ceiling area as then prescribed by the law. It is common ground that the law permitted a landholder to possess only forty-eight acres of jirayat land. It is also common ground that respondent possessed other lands also. The total area which was in possession of the tenant was sixty-four acres and thirtyfour gunthas of jirayat land including the demised premises. Thus it is common ground that the tenant was at the relevant time in possession of an excess area of sixteen acres and thirty-four gunthas. This litigation has had a chequered history and in order to understand the final point on which the petition is to be disposed of it is necessary to mention briefly the history of the orders passed in this litigation. On 5th August 1957 the Tenancy Mahalkari dismissed the suit holding that the landlord had failed to prove that he required the demised premises for a reasonable and bona fide need. But he did not consider question of ceiling area at all. The landlord preferred an appeal No. 52/57-58 which was disposed of by the Assistant Collector Dholka by his order dated 9th December 1957 The appeal was dismissed on the ground that the landlord had not established a reasonable and bona fide need and that the question of the possession of the excess area was irrelevant. The landlord thereupon filed a revision application bearing No. 88/58 to the then Bombay Revenue Tribunal. That Tribunal by its order dated 25th March 1958 confirmed the finding of the tenancy authorities that the landlord did not require the demised premises for a reasonable and bona fide need but remanded the proceeding to the Mahalkari to decide two issues which arose from the pleadings. The first issue was whether the tenant held the land in excess of ceiling area. The second issue was whether if that was so the landlord was entitled to the possession of the excess area. The landlord was aggrieved by this order of the Bombay Revenue Tribunal and filed a writ petition to the then Bombay High Court. This writ petition was decided by that High Court on 31st of July 1958 and has since been reported in 61 B. L. R. page 415. The petition was dismissed. However the Bombay High Court upheld the finding of the Bombay Revenue Tribunal that sec. 34 sub-sec. (1) of the Bombay Tenancy and Agricultural Lands Act 1948 (hereafter called the Tenancy Act) under which the landlord claimed possession of the excess area conferred an independent right which was not dependent upon the right arising under sec. 31 of the Tenancy Act. The Bombay High Court therefore upheld the order of remand passed by the Bombay Revenue Tribunal. The matter then went back to the Tenancy Aval Karkun who dismissed the application of the landlord by his order dated 26th June 1958. The landlord preferred an appeal bearing No. 78/59 which was disposed of by the District Deputy Collector. That officer by his order dated 9th March 1959 set aside the order of the Tenancy Aval Karkun and remanded the matter to that officer for disposal according to law on the second remand the Tenancy Aval Karkun found by his order dated 19th October 1959 that the tenant was holding excess area of land and that he was unlawfully holding it. But he dismissed it on the ground that it was not possible to demarcate the excess area which could be done only by undergoing the procedure laid down in sec. 32G of the Tenancy Act. From this order the landlord preferred an appeal bearing No. 112/59-60 which was disposed of by the District Deputy Collector by his order dated 11th February 1961. However before this date and after the completion of the arguments the landlord died on 27th June 1960. The District Deputy Collector allowed the aforesaid appeal and passed an order under sec. 34 sub-sec. (1) read with sec. 29 of the Tenancy Act for possession of the excess area measuring sixteen acres and thirty-four gunthas. The tenant thereupon filed a revision application on 27th April 1951 joining the heirs of the landlord as parties to the revision application to the Gujarat Revenue Tribunal (hereafter called the Tribunal simplicter). The Tribunal decided the matter by its impugned order dated 16th April 1962. The Tribunal agreed with all the findings recorded by the District Deputy Collector but reversed the order of that officer on a new ground. During the pendency of the revision application before the Tribunal the Gujarat Agricultural Lands Ceiling Act 1961 (hereafter called the Ceiling Act) which was passed on 15th June 1961 come into operation on 1st September 1961. That Act fixed the ceiling area in respect of jirayat land in the region from which this case arises as ninety-six acres thereby doubling the ceiling area which was fixed under the Tenancy Act at forty-eight acres so far as that region was concerned. Therefore the argument which was advanced on behalf of the tenants was that whatever might have been the position under the old law the tenant was entitled to hold under the Ceiling Act an area admeasuring ninety-six acres of jirayat land. On that reasoning the tenant contended before the Tribunal that on the date on which the Tribunal was being called upon to answer the question as to whether the tenant was or was not in possession of an excess area the answer should be that the tenant was not in such possession. That raised the question as to whether the Ceiling Act had or had not retrospective action. That question was decided by the Tribunal in favour of the tenant. The Tribunal held that sec. 6 of the Ceiling Act gave the Ceiling Act retrospective action and therefore allowed the revision petition of the tenant and set aside the order of the District Deputy Collector and dismissed the original application of the landlord made on 18th March 1957.

(2.) Petitioners contend that the decision of the Tribunal that the Ceiling Act has retrospective operation is an error of law apparent on the face of the record and deserves to be quashed by this Court.

(3.) Before we consider the aforesaid question it is necessary to mention some of the sections of the Tenancy Act and the Ceiling Act. It is necessary to do so because it is in the context of those sections that the question as to whether the Ceiling Act has retrospective action can be decided. By the Bombay Amending Act XIII of 1956 which came into operation on 1st August 1956 a series of important and far-reaching amendments were introduced into the Tenancy Act. The most important and revolutionary amendment which was introduced in the Tenancy Act was sec. 32 by which a majority of the tenants in the Bombay State were deemed to have purchased the demised lands on the first day of the April 1957 called the tillers day and some others on certain other dates called the postponed dates in the Tenancy Act. The right given to the tenants under sec. 32 was however subject to certain conditions mentioned in sec. 32A. The condition with which we are concerned in the present petition is that in case a tenant did not hold any land as owner but held land as tenant in excess of the ceiling area then he was deemed to have purchased on the tillers or the postponed date land only upto the ceiling area. The ceiling area was fixed under sec. 5 of the Tenancy Act which came to be substituted for the old sec. 5 of the Bombay Amending Act XIII of 1956. The section fixed for the purposes of this Act the ceiling area to be forty-eight acres of jirayat land. The Tenancy Act however preserved the right of the landlord to terminate the tenancy under some of the sections of that Act including sec. 31 under which as already stated the landlord purported to take action by filing the application on 5th March 1957. This right of the landlord to recover possession was also subject to some conditions mentioned in sec. 31A and the condition which may be mentioned for the disposal of this petition is that the landlord does not possess an area more than the ceiling area or if he possesses land more than that area then he will be entitled to possession of such of the demised land a will complete the ceiling area. Sec. 34 sub-sec. (1) enacted that it was not lawful with effect from the appointed day which meant 15th June 1955 for any person to hold whether as owner or tenant or partly as owner and partly as tenant land in excess of the ceiling area. The landlords case in the present litigation was based upon this sub-sec. (1) of sec. 34 under which if the tenant was in possession of more than ceiling area his possession of excessive land would be unlawful. At the time when the application for possession was made under sec. 29 of the Tenancy Act by the landlord sub-sec (5) of sec. 34 was not on the statute book. It was introduced for the first time by the Amending Bombay Act XXXVIII of 1957 which came into operation on 28th September 1957. This sub- sec. (5) was therefore not in operation on the date on which the Tenancy Mahalkari disposed of the petition first on 5th August 1957 but it was in existence at the date when the Assistant Collector passed his order in the first appeal on 9th December 1957.