PHIRDOSH SAROSH KOTHAWALLA Vs. STATE OF BOMBAY

JUDGEMENT

(1.) THE petitioner is the owner of several lands situate at Changodar. These lands had been leased by him to eleven tenants. On March 19, 1957, the petitioner made 11 applications to the Tenancy Avval Karkun, Sanand, in which he stated that his tenants were willing to surrender their tenancy rights and that orders for possession should be passed in his favour. The Tenancy Avval Karkun inquired into the applications made by the petitioner. He examined the tenants and came to the conclusion that the tenants had voluntarily surrendered their tenancy rights. He also found that the petitioner did not own lands in excess of the ceiling area. He then passed orders for possession of the lands being handed over to the petitioner. In his orders he has stated that he was satisfied that the surrenders of tenancy rights had been made voluntarily and that the petitioner's attorney had deposed that the lands would be taken under personal cultivation. These orders were passed by the Tenancy Avval Karkun in March -April 1957, except in one case, in which it was passed on August 5, 1957. The petitioner subsequently obtained possession of the lands. On November 22, 1957, the Assistant Collector, purporting to act under Section 76A of the Act, passed an order, by which he remanded the above cases to the Tenancy Avval Karkun for deciding them 'after taking into consideration the conditions for termination of tenancies mentioned in Section 31A of the Bombay Tenancy and Agricultural Lands Act'. This order was challenged by the petitioner before the Bombay Revenue Tribunal. The Revenue Tribunal set aside the order passed by the Assistant Collector on the ground that the petitioner had not been heard and remanded the cases to the Assistant Collector for issuing notices to the parties and thereafter passing final orders in them. Against this order passed by the Revenue Tribunal, the present Special Civil Application has been filed.

(2.) THE first question, which arises for consideration, is whether Section 76A can be used so as to revise orders, which were passed before this section was enacted. The section is in the following terms: -

(3.) MR . Rane, who appears on behalf of the State, has relied on the words 'order passed by' used in Clause (a). These words are capable of meaning 'an order passed after the section came into force'. The words are not such as would justify an inference that the Legislature intended to reopen cases in which final orders had been already made. On the other hand, as I have pointed out, the fact that Section 25 is not included amongst the sections, which were given retrospective effect by Section 34 of the Amending Act of 1957, would indicate that the section was intended to provide for the future. It cannot, therefore, be used in respect of orders made before the enactment of this section.