BAPALALBHAI GODABHAI KOTHARI Vs. MALI KARSANBHAI PITAMBERBHAI PADHIAR

JUDGEMENT

(1.) THIS Special Civil Application raises a question of some importance on the construction of Section 31 and Section 43D of the Bombay Tenancy and Agricultural Lands Act, 1948.

(2.) THE petitioner is the owner of Survey No. 1244/1 admeasuring 9 acres and 13 gunthas situate within the limits of the Municipal Borough of Palanpur. At all material times, opponent No. 1 was cultivating this land as a, tenant. The petitioner's son is a surgeon. In 1956 he was practising as a surgeon in Baroda and was also working as a honorary surgeon in the Government Hospital at Baroda. He, however, wanted to settle down and start his practice as a surgeon in Palanpur, and for that reason he and his father, the petitioner, wanted to construct a private hospital in the land in question. The hospital building would have occupied a part of the land while the rest of the land was proposed to be utilised for agricultural purposes, viz., a garden attached to the hospital. On November 19, 1956, the petitioner served a notice under Section 31 of the Act stating therein that he required the land partly for personal cultivation and partly for non -agricultural use. The petitioner did not expressly state in that notice that the non -agricultural purpose for which he required the land was for construction of a hospital. In his evidence before the Mamlatdar, however, the petitioner's son clearly stated that, that was the non -agricultural purpose referred to in the notice. As opponent No. 1 failed to hand over possession of the 'land, the petitioner filed the Tenancy Application dated March 29, 1957, before the Mamlatdar of Palanpur. The Mamlatdar, in his order dated April 25, 1958, found that whereas the petitioner's requirement for non -agricultural use had been proved to be a bona fide one, his other requirement viz. for personal cultivation was not established. He, therefore, held that the tenancy so far as the requirement fornon -agricultural purpose was concerned, was rightly terminated and directed that possession of land admeasuring 4 acres and 26 gunthas should be handed over by opponent No. 1 to the petitioner. Aggrieved by this order of the Mamlatdar, opponent No. 1 filed an appeal before the District Deputy Collector, Palanpur. The learned District Deputy Collector, amongst the various issues raised by him, raised the issue, viz., whether the notice issued by the petitioner was bad in law in view of the fact that the land was situated in municipal limits. It was contended before him that the provisions contained in Section 43D of the Tenancy Act were exclusive and independent provisions in respect of lands situate within the municipal limits and, therefore, the notice served by the petitioner being one under Section 31 was not a valid notice. The learned District Deputy Collector, after examining the provisions of Section 31 and Section 43D of the Act, repelled the contention raised on behalf of the tenant and holding that the notice was a valid one, confirmed the order passed by the Mamlatdar. Opponent No. 1, thereupon filed aRevision Application before the Bombay Revenue Tribunal, where also he raised the same contention with regard to the notice as he had done before the District Deputy Collector. The Tribunal, finding that the Revision Application before it could be disposed of on the single issue as to the validity of the notice, did not go into the other issues decided by the Mamlatdar and the District Deputy Collector. The Tribunal came to the conclusion that as the notice was given under Section 31 and not under Section 43D of the Act, that notice was bad and did not, therefore, have the effect of terminating the tenancy of opponent No. 1. On this ground, the Tribunal set aside the order passed by the Mamlatdar and the District Deputy Collector and dismissed the application of the petitioner. The Tribunal, in deciding thequestion as to the validity of the notice, relied upon a Full Bench Decision of the Bombay Revenue Tribunal in Chunilal Padamshibhai v. Patel Purshottam Ambaram, No. T. E.N.B.A. 730 of1958, decided on March 30, 1959, where the same question had arisen and where the Full Bench of the Tribunal had held that where lands are situate within the municipal limits and are required by the landlord for non -agricultural purposes, a notice terminating the tenancy must be given under s.43D(1), the three months' period referred to therein expiring before May 31 of such year. On this reasoning the Tribunal dismissed the application of the petitioner.

(3.) MR . Kamat, who appears for respondent No. 1, has also relied upon the Full Bench decision of the Tribunal and has submitted that Section 31 and Section 43D are mutually exclusive, and therefore, the words 'notwithstanding anything contained in Sections 31 to 31D (both inclusive) ', in Section 43D should be construed to mean that Section 43D and not Section 31 applied to a notice given for termination of the agricultural lands situated within the municipal limits and which are required for non -agricultural use. In the Full Bench decision, the Tribunal has observed that the provisions of Chapter III -B containing Sections 43C and 43D are sui generis in terms and are self -contained and special provisions made in respect of lands within municipal and cantonment limits. They referred to their own decision in Keshurdas Dhanji v. Kanbi Mohan where also they had come to the conclusion that Section 31 was a provision of a general nature covering all lands, while Section 43D dealt only with lands within municipal or cantonment limits and that, therefore, it overrode the former on the principle of generalia specialibus non derogant. The Tribunal also held that the words 'notwithstanding anything contained' constituted a non obstant clause, which, according to its literal meaning, amounted to an exception to the rule provided in the provisions connected with that clause, that is, Sections 31 to 31D of the Act. Their conclusion was that the application of Section 31 was excluded by the express provision of Section 43D which lays down that three months' notice of the termination of a tenancy given under the section must expire before May 31 of that year, that the termination of the tenancy must take effect from May 31 in that year, and that in view of this provision in Section 43D which had the effect of overriding Section 31, the notice, if given under Section 31, would not be a valid notice.