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Cites 15 docs - [View All]
The Central Agricultural University Act, 1992
Section 31 in The Central Agricultural University Act, 1992
Section 1 in The Central Agricultural University Act, 1992
The Guardians and Wards Act, 1890
Section 30 in The Central Agricultural University Act, 1992

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Gujarat High Court
The Collector, Court Of Wards, ... vs Sonaben, W/O. Lallubhai ...
Equivalent citations: (1978) 19 GLR 78
Author: A Desai
Bench: A Desai, M Trivedi

JUDGMENT

A.D. Desai, J.

1. Briefly stated the facts leading to this litigation are that the agricultural lands in dispute are situated in village Husepur taluka Padra, district Baroda. Ratilal Mithabhai is the owner of the suit lands. As he was a minor, his estate was taken into management by the Court of Wards in the year 1947. At the time the suit property was under the management of the Court of Wards, Raojibhai Lallubhai, the son of plaintiff-respondent No. 1 took the lands on rent for cultivation since before the year 1948-49 and an entry to that effect had been made in the record of rights. Raojibhai continued to be the tenant of the lands till his death in the year 1968. The rent of the tends was fixed under the Bombay Tenancy and Agricultural Lands Act, 1948. Raojibbai Lallubhai died on 30th August 1968 and on his death, the suit lands came into possession of the plaintiff-respondent No. 1 and the paid the rent thereof. The Bombay Tenancy and Agricultural Lands Act, 1948 was applied to the Baroda State with certain modification on July 30, 1949. The said Act was thus not in force in the agricultural years 1947-48 and 1948-49. The plaintiff-respondent No. 1 claims to be a protected tenant under Section 3A of the Bombay Tenancy Act, 1939 which was applied to the Baroda State in view of the extension of the Bombay Tenancy and Agricultural Lands Act, 1948 to the area. The plaintiff-respondent No. l's son Raojibbai became the protected tenant as he was in possession on August 1, 1950 and under Section 4A of the Bombay Tenancy and Agricultural Lands Act, 1948, he became a protected tenant and acquired rights as such a tenant under the said Act. On his death, the plaintiff inherited the said status and rights and acquired the status of irremovability from the lands in her possession as a protected tenant. In spite of the statutory right and status which the plaintiff acquired under the Act, appellant No. 2, that is, the Mamlatdar, Padra, the manager of the Court of Wards, gave a notice on January 14, 1969 to the plaintiff-respondent No. 1 under Section 84 of the Bombay Land Revenue Code terminating the tenancy and demanding possession of the suit lands. The plaintiff came to know that the defendants-appellants, that is-the Collector of court of Wards and the Mamlatdar, the manager of the Court of Wards, were to take possession of the lands from her on April 18, 1969 and therefore, she filed special civil suit No. 50 of 1969 in the Court of the Civil Judge (Senior Division), Baroda for a declaration that she was a protected tenant as an heir of deceased Raojibhai and for a permanent injunction restraining the appellants from obstructing and/or interfering with her possession of the lands. Many contentions were raised by the appellants-defendants in the written statement, but the suit was mainly resisted by the defendants-appellants on the ground that they had a right to take possession of the lands under the law and the plaintiff-respondent No. 1 could not claim the status of irremovability from the lands in view of Section 88 of the Act. The question that arose before the trial court was whether the plaintiff respondent no. 1 was entitled to protection under the Bombay Tenancy and Agricultural Lands Act, 1948 or not. The trial court held that the plaintiff was a tenant and as she was entitled to rights of a protected tenant on the day when the Bombay Tenancy and Agricultural Lands Act came into force, the rights so acquired were not destroyed when in the year 1966, when the legislature by Act No. XIII of 1956 exempted the lands under the management of Court of Wards from the operation of Sections 1 to 87 of the Bombay Tenancy and Agricultural Lands Act. The trial court in deciding as above, followed the decision of the Supreme Court in Sakharam Narayan Sanas v. Manikchand Motichand Shah 64 B.LR. 403. The trial court, therefore, decreed the suit of the plaintiff holding that it had jurisdiction to entertain the suit. It is this decree which is challenged in this appeal.

2. The question is what is the effect of Section 88 as amended by Act XIII of 1956 on the protected tenancy rights of plaintiff-respondent No. 1 which she acquired under the Bombay Tenancy and Agricultural Lands Act, 1948 on its application to the lands in dispute. The contention of the appellants and respondent No. 3 is that the said statutory rights were abolished or came to an end when Section 88 as amended in the year 1956 came into operation. The contention of the plaintiff-respondent No. 1 is that her protected tenancy rights remained protected even after operation of Section 88 as amended and this was also so because of provisions of Section 89(2) of the Bombay Tenancy and Agricultural Lands Act, 1948. To put in short, the contentions centre round the point whether the provisions of Section 88(1)(c) of the Bombay Tenancy and Agricultural Lands Act, 1948, on its application, destroyed or not the rights of the plaintiff-respondent No. 1 as a protected tenant.

3. There is no dispute that the Bombay Tenancy and Agricultural Lands Act, 1948 when it was originally enacted, did not exempt from the provisions of Sections 1 to 87 thereof, the lands under the management of court of Wards and this position continued till the enactment of Act No. XIII of 1958 by which the original Bombay Tenancy Act, 1948 was amended. By Act No. XIII of 1956, Section 88 was enacted as under:

88. Exemption to Government lands and certain other lands-Nothing in the foregoing provisions of this Act shall apply-

(a) to lands belonging to, or held on lease from, the Government;

(b) to any area which the State Government may, from time to time by notification in the Official Gazette, specify as being reserved for non-agricultural or industrial development:

(c) to an estate or land taken under management by the State Government under Chapter IV or Section 65 or under the management of the court of Wards or to the lands taken under management temporarily by the Civil, Revenue or Criminal courts by themselves or through the receivers appointed by them till the decision of the title of the rightful holders.

Provided that with effect from the date on which such estate or land is released from such management, the foregoing provisions of this Act shall apply thereto and in the case of a tenancy (other than a permanent tenancy) subsisting on such date in respect of any land in such estate or such land, the landlord shall be entitled to terminate such tenancy under Section 31 within one year from such date and the tenant shall have the right to purchase the land under Section 32 within one year from the expiry of the period during which such landlord is entitled to terminate the tenancy under Section 31. The provisions of Sections 31 to 31D (both inclusive) and 32 to 32R (both inclusive) shall, so far as may be applicable, apply to such termination of tenancy and to the right of the tenant to purchase the land.

Section 88 as enacted above, was amended by Act. No. XV of 1957 which came into force on April 3, 1957. Section 15 of 1957 Act provided as under:

15. Amendment of Section 88 of Born. LXVII of 1948. In Section 88 of the said Act (I) in Clause (c)-

(a) the words and figures "under management of the State Government under Chapter IV or Section 65 or" shall be deleted; and

(b) after the words "Court of Wards" the words and figures "or of a Government Officer appointed in his official capacity as a guardian under the Guardians and Wards Act, 1890 (VIII of 1890)" shall be inserted;

(2) after Clause (c), the following clause shall be inserted, namely:

(d) to an estate or land taken under management by the State Government under Chapter IV or Section 65 except as provided in the said Chapter IV or Section 65, as the case may be, and in Sections 66, 80A 82, 83, 84, 85, 86 and 87.

The effect of this amendment was that original Clause (c) was divided into two parts viz. Clauses (c) and (d) and both these clauses were introduced before the proviso to Clause (c) of Section 88 as amended by Act No. XIII of 1956. The amended Clause (c) of Section 88 exempts lands from the operation of Sections 1 to 87 of the Act under the management of Court of Wards or of a Government officer appointed in his official capacity as a guardian under the Guardians and Wards Act, 1890 or to the lands taken under the management temporarily by Civil, Revenue or Criminal courts by themselves or through receivers appointed by them till the decision of the title of the rightful holders. Amended Clause (d) of Section 88 provides for non-applicability of Sections 1 to 87 of the Act to lands or estate taken under the management by the State Government under Chapter IV or Section 65 except as provided in the said Chapter IV or Section 65 as the case may be and in Sections 66, 80A, 82, 84, 85, 86 and 87. The provisions of Clauses (c) and (d) of Section 88 are governed by the provisos which we find to have been enacted after Clause (d). The provisos govern both the Clauses (c) and (d) of amended Section 88. Having thus noticed the legislative history of the amendment of Section 88, we shall again revert to the facts of the case. There is no dispute that Section 34 of the Bombay Tenancy Act, 1939 was made applicable to the Baroda area by provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 and the finding of the trial court that the plaintiff-respondent No. 1 was a protected tenant is rightly not challenged before us. Section 4A of the Bombay Tenancy and Agricultural Lands Act, 1948 was introduced by Act No. XIII of 1956 and it provided that for the purposes of this Act a person shall be recognized to be a protected tenant, if such person has been deemed to be a protected tenant under Sections 3, 3A and 4 of the Bombay Tenancy Act, 1938 referred to in schedule I to this Act. There is again no dispute that till Act No. XIII of 1956 came into force, the plaintiff-respondent No. 1 got protection under the provisions of the Bombay Tenancy Act, 1948 as it stood at that time. It may be noticed that even under Section 25 of the Bombay Tenancy Act, 1939, the lands held on lease from the Crown or a Co-operative Society or held on lease for the benefit of an industrial or commercial undertaking were alone exempted from provisions of the said Act. The provisions of Section 88 came for consideration before the Supreme Court in various cases. Now, the last decision on the point is to be found in S.N. Kamble v. The Sholapur Borough Municipality and Another . The facts were that one Kamble had taken lands on rent from the local authority viz. Sholapur Borough Municipality on April 1, 1946 for a period of three years. The lands taken on lease were situated within the municipal limits. The Bombay Tenancy Act, 1939 was applied to this area and, Kamble became a protected tenant under the said Act. The Bombay Tenancy Act, 1939 was repealed by the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as 'Act of 1948'). Section 31 of the Act of 1948 recognised protected tenancy of Kamble with the consequence that he also became a protected tenant under the Act of 1948. Section 88 of the Act of 1948 inter alia provided that Section 1 to 87 of the Act shall not apply to lands taken on tease from the local authority. In view of the opening words of Section 88, the provisions of the said section prevailed lover the provisions of Section 31 with result that Kamble would not be entitled to benefit of Section 31 of the Act and could not claim to be a protected tenant under the said section. Having determined as aforesaid, the court further considered the contention on behalf of Kamble that he was entitled to benefit of Section 89(2) of the Act of 1948. The court observed to under: Now there is no doubt that Section 88 when it lays down Inter alia, that nothing in the foregoing provision of the 1948 Act shall apply to lands held on lease from a local authority, it is an express provision which takes out such lease from the purview of Section 1 to 87 of the 948 Act. One of the provisions therefore which must be treated as non-existent where lands are given on lease by a local authority is in Section 31. The only provision in the 1948 Act which recognised protected tenants is Section 31 and if that section is to be treated as non-existent so far as lands held on lease from a local authority are concerned, it follows that there can be no protected tenants of lands held on lease from a local authority are concerned and in effect of the express provision contained in Section 88(1)(a) clearly is that Section 31 must 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. It was not necessary that the express provision should in so manu words say that there will be no protected tenants after the 1948 Act which lays down that there will be no produced tenant of lands held on lease from a local authority. In view of this express provision contained in Section 88(l)(a) the appellant cannot claim the benefit of Section 31; nor can it be said that his interest as protected tenant is saved by Section 89(2)(b). This in our opinion is the plain effect of the provision contained in Section 31, Section 83 and Section 89(2)(b) of the 1948 Act.

It is no doubt true that the Supreme Court has interpreted the provisions to Section 88(1)(a), but in interpreting the provisions, the court laid emphasis on the words "nothing in the foregoing provisions shall apply" and took the view that the said expression took out lands mentioned in Section 88(1)(a) from the operation of Section 1 to 87 of the Act of 1948. The net effect of the application of Section 88(1)(a) according to the Court, was that the statutory status which was conferred by the Act of 1939 was taken aways by the provisions of Section 88 of the act of 1948. The legislature which conferred the status of irremovability on the tenants could remove the said status and did so by enacting Section 88(1)(a) of the Act. A division Bench of this Court had again to consider the question of interpretation of Section 88 in case of Vasanji Kevalbhai and Ors. v. Dahiben 15, G.L.R. 780. The facts in this case were that the then Acharya of Swaminarayan temple, Vadtal was the owner of lands indispute and he had leased them Vasanji Keval and Ranchhod Morar. Ultimately, Vasanji Keval alone became the tenant of the lands. The Acharya sold the land to Dahiben subject to the tenancy rights of Vasanji Keval. The lands were situated within two miles of the Surat municipality and therefore stood exempted under the provisions of Section 88(1)(c) as is then stood from the provisions of Sections 1 to 87. This exemption was removed and Sections 1 to 87 became applicable from January 12, 1953. Before this amendment, the purchaser had filed a suit for possession in the civil court against the tenant after terminating his tenancy. The trial court decreed the suit for possession. On appeal, the learned Assistant Judge dismissed the suit. The second appeal was allowed by a single Judge of this Court and ultimately, the case came before a Division Bench in a Letters Patent Appeal. The Court considered the provisions of Section 88(1) (a) to (d) and Section 89(2)(b) and following the decision in Kamble's case (supra) came to the conclusion that on a true construction of the said two provisions, the effect was that the rights which and accrued to the tenant under the Act of 1939 were subsequently destroyed with retrospective effect and, therefore, the civil court had jurisdiction and the suit of the plaintiff was dismissed. In the present case, we are concerned with the provisions of Section 88(1)(c) of the Act of 1948 which so far as relevant provides-

88(1) Save as otherwise provided in Sub-section (2), nothing in the foregoing provisions of this Act shall apply-

x x x x x

(c) to an estate or land taken under the management of the Court of Ward of a Government officer appointed in his official capacity as a guardian under the Guardians and Wards Act, 1890 or to the lands taken under management temporarily by the Civil, Revenue or Criminal courts by themselves or criminal courts by them selves or through the receivers appointed by them till the decision of the title of the rightful holders.

There are two provisos to this section. The first proviso provides what is the happen to a tenancy subsisting on the day on which the management by court of Wards is withdrawn and how the rights of the landlord or the tenant are to be regulated. The second proviso provides for rights of a permanent tenant on the withdrawal of management. It is clear that generally, the estates managed by the court of Wards belong to minors and hence unless specific protection had been given to the land under the management of the Court of Wards, they would be deemed to have been purchased by the tenant. The legislature was aware that when the lands are under the management of the court of Wards, personal cultivation was not possible and the lands have to be cultivated through others and if the Tenancy Act applied, the minor would be obviously adversely affected. The legislature, therefore, took a policy decision to giant exemption from operation of Sections 1 to 87 of the 1948 Act to lands under the management of the court of Wards. But the exemption which is granted is limited to the period during which the estate is under the management of the Court of Wards. As soon as the management is withdrawn, the land or estate becomes subject to the provisions of the Act in respect of existing tenancies with modification that the landlords are given one year's time from the date of withdrawal of management for terminating the tenancy under Section 31 and for the purpose purchasing land, the tenants are given one year's time on the expiry of the period allowed to the landlords. Thus, a policy decision was taken by the Government not to burden the lands of a minor when they are under the management of the Court of Wards by a tenancy which had been created by a manager of the estate due to his inability to cultivate the lands personally. The plaintiff-respondent No. 1 claims protection as a protected tenant under Section 3A of the 1939 Act read with Section 4A of the 1948 Act. It is thus obvious that the protected tenancy which the plaintiff-respondent No. 1 claims was a result of the statutory provision. The legislature while amending Section 88 as it stood earlier, took into consideration cases of minors whose lands could be taken under management of the Court of Wards Act and for the reasons already given, took a policy decision to exempt the lands to the extent aforesaid from the operation of the provisions of Sections 1 to 87 of the 1948 Act. The legislature which gave a status of irremovability to the plaintiff had a right to take it away and it did so by enacting Section 88(1)(c) as mended in the year 1956 as it considered protection of the minor as one of its essential duty. It must be noted that when the lands are under the management of Court of Wards, its management is usually done by a Collector or his subordinates, that is a Government officer who will be under control of the Government. The clear effect of Section 88 is to take away the benefits which are granted to a tenant under the provisions of Section 1 to 87 of the Act in cases of lands taken under the management of the Court of Wards and obviously if the protection is taken away, ordinary law will apply with the result that a suit for possession could be filed by a landlord against a tenant in a civil court, of course, after terminating the tenancy in accordance with the provisions of law. The consequence is that in view of the facts of the present case, the plaintiff-respondent No. 1 cannot take the benefit of the provisions of Sections I to 87 of the 1948 Act and the Mamlatdar as the Manager of the suit lands under the management of the Court of Wards could terminate his tenancy by giving a valid notice. Therefore, the plaintiff cannot file the suit for permanent injunction against the defendants-appellants.

4. It was argued by Mr. Thakar that, in the present case, before filing the suit, the plaintiff-respondent No. 1 had not given any notice as required by Section 30 of the Gujarat Court of Wards Act, 1963 which provides that "no suit relating to the person or property of any Government ward shall be brought in any civil court until the expiration of two months after notice in writing stating the name and place of abode of the intending plaintiff, the cause of action and the relief claimed, has been delivered to, or left at the office of the court of Wards; and the plaint shall contain a statement that such notice has been so delivered or left". Now, this point was not argued in the trial court. In the written statement, the only defence which was taken by the appellants was that the statutory notice was not given to the defendants. Because of this contention, an issue was raised by the trial court as to whether the suit was bad and net maintainable in the absence of any statutory notice. At the time of argument on the said issue the only contention which was raised on behalf of the appellants was that notice under Section 80 of the Civil Procedure Code was not given. It is thus clear that the defence of the defendants-appellants was that the statutory notice under Section 80 was essential and without it, the suit was not maintainable. It was not the contention of the defendants-appellants that no notice under Section 30 of the Gujarat Court of Wards Act, 1963 was given and, therefore, the suit was not maintainable. The argument about non-maintainability of the suit because of want of a notice under Section 30 of the Gujarat Court of Wards Act, 1963 is sought to be argued for the first time in this appeal and such a contention cannot be allowed to be raised for the first time because obviously the plaintiff will be deprived of her defence that such a notice had been given by her.

The result is that the appeal is allowed and the decree passed by the trial court decreeing the plaintiff's suit is set aside and the suit of the plaintiff is dismissed with no order as to costs.