Bhima Balu Madigar v. Basngouda Nemgouda Patil

Chagla, C.J:—

This is a second appeal referred to a Full Bench and the question that arises for our decision is whether a sale effected after the Tenancy Act came into force which was not in accordance with the provisions of that Act is valid by reason of the fact that an agreement of sale had been entered into before the Act came into force. The few facts which are necessary may be stated.

The agreement of sale was entered into on October 12, 1948 under which one Krishnarao agreed to sell the land in suit to the plaintiff. The sale deed was executed on January 6, 1949. In the meanwhile the Tenancy Act came into force on December 28, 1948. The plaintiff sued the defendant who claimed to be a protected tenant for rent. The defendant's contention was that the plaintiff was not his landlord but Krishnarao and, therefore, the plaintiff was not entitled to recover rent. The trial Court upheld the contention of the defendant and dismissed the suit. The learned District Judge allowed the appeal and passed a decree for rent in favour of the plaintiff. The defendant came in second appeal to this Court and the question is whether on these facts the sale in favour of the plaintiff can be upheld.

Now, when the matter came before Mr. Justice Gajendragadkar and Mr. Justice Vyas, they felt that in view of two conflicting decisions of two different Division Benches of this Court it was necessary that the doubt should be settled by a larger Bench and, therefore, this second appeal was referred to us.

Now, there is a judgment in Shivabhai Ckhaganlal Amin v. State of Bombay(5) which was delivered by my brother Gajendragadkar and myself. It is clear from that judgment that we refused to give any relief to the petitioner who came to this Court under art. 227 on the ground of delay and before we dismissed the petition, we made a suggestion to the Government that Government should sympathetically consider the contention of the petitioner that he had entered into an agreement of sale prior to the coming into force of the Act. Therefore, that judgment does not represent any considered view formed by that Bench as to the true position arising in law with regard to a sale which was effected after the Act came into force. Then we have a direct decision where the matter has been fully considered in Appa Ganpat v. K.B Wassoodew.(6) The Bench consisted of my brother Shah and myself and we considered every aspect of the matter and we came to the conclusion that the sale which was effected after the coming into force of the Act was rendered void by s. 64(3) and that it was not saved by s. 89(2) notwithstanding the fact that the agreement of sale was entered into prior to the coming into force of the Act. We pointed out in this judgment that whatever rights the parties had under the agreement of sale were saved, but we refused to pronounce upon what those rights were. In our opinion, this is the correct view of the law and we think it unnecessary to reproduce the arguments which find a place in that judgment delivered in that judgment. We accept both the decision and reasoning contained in that judgment.

But there is a difficulty which has been pointed out to us by Mr. Datar on the facts of this case. Now, when we turn to s. 64 it provides for the mode of effecting a sale after the Act comes into force. Under sub-s. (1) the landlord has to apply to the Tribunal for determining the reasonable price. Under sub-s. (2) after the Tribunal has determined the reasonable price, the landlord has to make an offer to the various persons mentioned in that sub-section. It is pointed out by Mr. Datar that the Tribunal contemplated under s. 64 has not been set up and reliance was placed on Crawford's Statutory Construction and the statement of the law by the author at page 151:

“Of course, the enactment of a statute is not the same as its taking effect as law. As will be seen hereafter, statutes do not always take effect upon their enactment but the effective date may be postponed either by virtue of their own provisions, or by the terms of a general law or a constitutional requirement upon the subject”.

Therefore, it is urged that if sub-s. (3) which makes the sale in contravention of the section void is prospective, as we have held it is, then the sub-section is prospective not in the sense merely that it should come into force when the Act comes into operation but it is prospective in the sense that it should come into force only when s. 64 really becomes effective and Mr. Datar rightly points out that the provisions of s. 64 make it clear that these provisions were only to come into force when the various conditions laid down in s. 64 became applicable and the most important provision of s. 64 is the setting up of the Tribunal. Therefore, till the Tribunal is set up the landlord cannot apply for fixing up a reasonable price and the Tribunal cannot determine a reasonable price. In this connection we may look at s. 67(3) and that provides:

“For any area for which the Tribunal has not been constituted, the Mamlatdar or any officer authorised in this behalf by the State Government shall exercise the powers and perform the duties and functions of the Tribunal”.

Now, in this case a notification was issued by the Government on January 18, 1949 appointing the Mamlatdar of Athani, the taluka with which we are concerned in this second appeal, to exercise the powers and perform the duties and functions of the Tribunal. Therefore, it is clear that till January 18, 1949 not only was there no Tribunal set up but no authority was appointed to perform the functions of the Tribunal. Therefore as far as s. 64 is concerned, it only became effective on January 18, 1949 and any sale effected prior to January 18, 1949 would not be touched by s. 64(3). As in this case the sale was effected on January 6, 1949, we are of the opinion that it does not come within the ambit of s. 64(3). We might mention that we are not prepared to accept the wider contention put forward by Mr. Datar that under s. 64(1) if the landlord shows his intention to sell the land prior to the coming into force of the Act, then the provisions of s. 64(1) cannot be carried out and, therefore, in that case the sale effected would not fall within the ambit of sub-s. (3). Mr. Datar says that if there is an agreement of sale prior to the coming into force of the Act, that crystallizes the intention of the landlord and as sub-s. (1) requires that he shall apply to the Tribunal as soon as he intends to sell the land, he cannot comply with that provision and, therefore, in every case where there is an agreement to sell prior to the coming into force of the Act, we must hold that sub-s. (1) cannot be complied with and therefore the sale would not fall under sub-s. (3). In our opinion, the intention contemplated by sub-s. (1) is a continuing intention. Even though the agreement of sale may have been entered into prior to the coming into force of the Act, the intention to sell continues till the sale is effected and if the owner wants to sell the land in conformity with the provisions of s. 64, although he may have entered into an agreement to sell prior to the coming into force of the Act and although thereby he may have expressed his intention to sell the land, he must still apply to the Tribunal for determining the reasonable price as soon as the Act comes into force. But for the fact that the Mamlatdar was not appointed till January 18, 1949 we would have rejected Mr. Datar's contention based upon s. 64(1). As in this case even though the landlord might have wanted to apply to the Tribunal for determining the reasonable price of the land under s. 64(1), he could not do so because neither was there a Tribunal nor was there a Mamlatdar. It is clear that section had not become effective as far as this particular case is concerned and it is for this reason and on this narrow ground we uphold the contention of the plaintiff.

The result is that we agree with the view, taken by the learned District Judge. The appeal will, therefore, be dismissed with costs.

Appeal dismissed.

K.B.S