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PETITIONER: SHANKAR MADHOJI NEMADE

       Vs.

RESPONDENT: CHISUJI JANAJI BHADKE & ORS.

DATE OF JUDGMENT: 08/09/1970

BENCH: VAIDYIALINGAM, C.A. BENCH: VAIDYIALINGAM, C.A. SHELAT, J.M.

CITATION:  1971 AIR  281            1971 SCR  (2)  73  1970 SCC  (2) 847  CITATOR INFO :  F          1973 SC2056  (15)

ACT: Bombay Tenancy  and Agricultural Lands  Vidarbha Region  and Kutch area) Act (99 of 1958), s. 52--Scope of.

HEADNOTE: Section  9(6)  of  the Berar  Regulation  of  Regulation  of Agricultural Leases Act, 1951, read with rule 9 of the Rules made  thereunder required a land holder, who terminated  the tenancy  of his protected lease on the ground that the  land was  required  by  him  for  his  personal  cultivation,  to cultivate  the land personally for a period of 2 years.   It the land holder failed to do so then the section conferred a right on the former protected lessee to apply to the Revenue Officer  for being restored to possession.  On December  30, 1958,  the Bombay Tenancy and Agricultural  Lands  (Vidarbha Region  and Kutch Area) Act of 1958 came into force.   Under s.  132 of’ the Bombay Act. the Berar Act was  repealed  but certain  rights acquired or accrued before the  commencement of  the  Bombay Act were saved.  Under s. 52 of  the  Bombay Act, if the landlord had ceased to cultivate the land within a period of 12 years from the date of taking possession, the tenant  can apply for restoration, that is, the period of  2 years Linder the Berar Act was enlarged to 12 years. The  appellant was a protected lessee within the meaning  of the  expression  in  the Berar Act, in  respect  of  certain lands.   The  landlord obtained possession of the  lands  on April 4, 1957 on. the ground that he required the lands  for personal  cultivation.   He continued in possession  of  the lands till June     21,  1961, on which date he  transferred the lands to the first respondent.      The tenant thereupon filed in application under s. 52 of the ’Bombay,  Act.   The application  was  dismissed  but  the  tenant’s  appeal  was allowed.  The  appellate order was confirmed in revision  by the’  ’Revenue Tribunal.  The first respondent filed a  writ petition  and  the  High Court set aside the  order  of  the Revenue Tribunal.  The certified copy of the judgment of the High  Court, by mistake, showed the valuation of  the  lands ,it  a  very much higher value than the value given  by  the appellant  in  the writ petition.   The  appellant  obtained

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special  leave  from  this  Court  mentioning  the  enhanced valuation in his application for special leave. On the questions : (1) Whether the special leave granted  by this  Court  should  be cancelled on  the  ground  that  the appellant made a false statement in regard to valuation; and (2) whether s. 52 of the Bombay Act applies, HELD  :  (1) In the particular circumstances of  this  case, though  the  appellant  should have been  more  careful,  it cannot  be  said that he was guilty of making any  false  or untrue statement on any material particulars deliberately to mislead the court.  Further, the statement regarding  valua- tion  was lot of Much consequence in this case  because  the questions   raised   are  points  of   law   regarding   the applicability of s. 51 of the Bombay Act. [81 D-F] Hari Narain vc.  Badri Das [1964] 2. S. C.R. 203.  Sita  Bai v. Sonu Vanji Wani & Ors.  C.A.No. 982/65 dt. 25-4-68 and S. R.  Shetty  v. Phirozeshah Nusserwanji Golabawalla  &  Anr,. V.A., No. 1551/63 clt. 5-4-61, referred to. L235SLtp.CI(P)71 74 (2)  Section  52 of the Bombay Act applies to the  facts  of this case. [91 B] If  a landlord, in pursuance of an order obtained under  the Berar  Act,. takes possession after the commencement of  the Bombay  Act,  s.  52 applies to him and  his  obligation  to cultivate personally for two years under the Berar Act  gets extended  to 12 years period provide(’ under  that  section. [90 A-B] If  the landlord had taken possession of the land under  the Berar  Act before the commencement of the Bombay Act,  there was  an  obligation on him to cultivate personally  for  two years and if he had not so cultivated, the tenant would have acquired a right to be restored to possession.  That  right, so  acquired  by the tenant or accrued to  him,  before  the commencement of the Bombay Act, is saved under s. 132(2) (i) of  the  Bombay  Act.   Similiarly,  if  the  landlord   had cultivated  the  land  personally for  the  required  period before  the  Bombay Act came into farce the  landlord  would have  acquired  a  right  not  to  be  disturbed  from   his possession  thereafter.   That right again, which  had  been acquired  by the landlord or accrued to him is saved  Linder s. 132(2(i). [89 E-H] Therefore,  s. 52 applies to cases in which  possession  was obtained by the landlord under s. 9 of the Berar Act but  in respect of which the period of two years disability  imposed under  s.  9(6)  read with r. 9 of the rules  was  not  over before the coining into force of the Bombay Act. [90 F-H] The  decision  of  this Court in Rain  Chandra  v.  Tukaram, [1966]  1  S.C.R. 594 does not lay down that s.  52  of  the Bombay  Act doe,-, not apply to case-, where possession  has been  taken  after  the Bombay Act had come  into  force  in pursuance  of  an  order ’for restoration  obtained  by  the landlord under the Berar Act. [85 A-B] In  the  Full  Bench decision of the Bombay  High  Court  in Saraswatibai    Babji   Tukaram   Umakar   v.    Bhikamchand Premsukhdas,  (1966) Bom.  L.R. 954, the possession  of  the land  was  taken by the landlord from the tenant  under  the Berar  Act and the two year,-, period as required  under  s. 9(6)  of  that Act had also expired before the  coming  into force of the Bombay Act.  The principle, that  applicability of  s. 52 of the Bombay Act depends solely upon the date  on which the landlord takes possession, that is, whether before or  after  the Bombay Act came into force,  was  to  broadly stated in the decision. [86 H; 88 G-H]

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JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No, 85 of 1967. Appeal  by special leave from the judgment and decree  dated August  19, 1966 of the Bombay High Court, Nagpur  Bench  in Special Civil Application No. 831 of 1965, W.   S. Barlingay and A. G, Ratnaparkhi, for the appellant, M.   S. Gupta and S. K. Dhingra, for respondent No. 1. The Judgment of the Court was delivered by Vaidialingam.   J.  The appellant was  a  ’protected  lessee within the meaning of that expression contained in the Berar Regulation of Agricultural Leases Act, 1951 (Act 24 of 1951 75 (hereinafter  called the Berar Act) in respect of  the  suit lands  bearing survey No. 23 of an extent of 7 acres  and  4 gunthas  under the 5th respondent herein, who was  then  the original  owner of the lands.  The 5th respondent served  on the appellant (hereinafter called the tenant) a notice dated December 28, 1955 under s. 9(1) of the Berar Act terminating the  I  tenancy  of  the appellant on  the  ground  that  he required  the  lands for personal cultivation; and  he  also submitted  an  application to the Revenue Officer  under  s. 8(1)(g)  of  the  Berar Act for  an  order  determining  the tenancy.   The  5th respondent obtained an  order  from  the Revenue  Officer  on May IS, 1956 directing  the  tenant  to surrender  possession of the lands.  The 5th  respondent  in pursuance  of  the order of the  Revenue,  Officer  obtained possession  of the lands on April 4, 1957 and  continued  in such  possession  till  June  21, 1961,  on  which  date  he transferred   the  suit  lands  to  the   first   respondent ’,hereinafter  to be referred as the landlord) and got,  .in exchange  8  acres in survey No. 33 plus an  amount  of  Rs. 13,000/-.  in the meanwhile on December 30, 1958 the  Bombay Tenancy  and Agricultural Lands (Vidarbha Region  and  Kutch area) Act of 1958 (Act No. XCIX of 1958) (hereinafter called the Bombay Act) came into force. The  tenant filed an application under s. 52 of  the  Bombay Act before the Naib Tahsildar, Achalpur, against  respondent Nos.  1 and 5 for restoration of the possession of the  suit lands  on  the  ground  that the  original  owner,  the  5th respondent,  had  eased to cultivate  the  lands  personally within the period of 12 years after obtaining possession  of the lands on April 4, 1957.  The Naib Tahsildar by his order dated  November  14, 1962 dismissed the application  on  the ground  that s. 52 does not apply and hence the  application was not maintainable.  On appeal by ’the tenant, the Special Deputy  Collector,  Amravati  by his  order  June  30,  1964 reversed the decision of the Naib Tahsildar and directed the landlord to restore possession of the lands as prayed for by the tenant.  The first respondent’s revision challenging the order  of  the  Special Deputy Collector  was  dismissed  on August  5, 1965 by the, Maharashtra Revenue ’Tribunal.   The Revenue  Tribunal  while dismissing the  revision  petition, inter alia, held that the tenant was a protected lessee  and that  in  pursuance  of the proceedings  taken  by  the  5th respondent  in  terms of the notice tinder s.  9(1)  of  the Berar  Act,  the tenant was deprived of the  lands  and  his tenancy rights on the ground of personal cultivation by  the then owner of the lands.  The Tribunal further held that  as the 5th respondent had transferred the suit lands in  favour of  the first respondent on June 21, 1961., the former  must be  considered  to  have failed to use  the  lands  for  the purposes  specified in his notice within 12 years  from  the date  on which lie took, possession and in  consequence  the

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tenant 76 was entitled to be restored to possession under S. 52 of the Bombay Act.  On this reasoning the Revenue Tribunal confirm- ed  the order of restoration passed by the Special.   Deputy Collector in favour of the tenant. The first respondent filed a writ petition under Art. 227 of the Constitution, being Special Civil Application No. 831 of 1965, in the High Court of Bombay (Nagpur Bench) challenging the  orders restoration. passed against him by  the  Special Deputy Collector and the Maharashtra Revenue Tribunal.   The High  Court by its judgment and order dated August 19,  1966 has set aside the orders of the Special Deputy Collector and the  Revenue Tribunal, thus restoring the order of the  Naib Tahsildar,   land   has  dismissed   the   application   for restoration tiled by the tenant.  The tenant challenges  the decision of the High Court in this appeal by special leave. The  High Court in its order under appeal has  recorded  the following findings The, original owner, the 5th  respondent, was entitled to terminate the lease of the tenant by  giving a  notice  under S. 9(1) of the Berar Act.   He  accordingly terminated  the tenancy by giving notice dated December  23, 1955.   After initiating proceedings under S.  8(1)(g)  read with  s.  19(1) of the Berar Act, the  owner  also  obtained possession of the lands on .April 4, 1957.  Under the  Berar Act there was a duty cast on ’the landlord to cultivate, the lands  personally for a period of 2 years and in  this  case the  5th respondent has complied with this requirement.   As possession  was taken from the tenant by the 5th  respondent when  the Berar Act was in operation and :as the latter  had cultivated the lands for a period of 2 years, as required by S. 9(6) of the Berar Act, the tenant had ceased to have  any rights after the expiry of the period of 2 years and.  hence S.  52 of the Bombay Act was not applicable and  it  follows that  the  application for restoration  under  that  section filed  by the tenant was not maintainable.  The position  is concluded  ,against  the  tenant by an  earlier  Full  Bench decision  of the High ,Court reported in Saraswatibai  Babji Tukaram  Umarkar v. Bhikamchand Peemsukhdas,(1)  wherein  it had  been  held that when possession of the lands  had  been taken before coming into force of the Bombay Act, the rights and liabilities of the parties are governed by the Berar Act and  that  S.  52 of the Bombay  Act  has  no  retrospective operation.   On  these findings the High Court  allowed  the writ petition of the first respondent. Dr. Barlingay, learned counsel for the appellant, has  urged that having due regard to the scheme of the Berar and Bombay Acts, the High Court’s view that S. 52 of the Bombay Act has no .application, is erroneous.  In this case. he pointed out that the (1) 1966 Bom. L.R. 954. 77 Bombay  Act  has come into force on December 30,  1958  even before  the expiry of the period of two years from April  4, 1957, on which date the original owner, the 5th  respondent, had  entered  into possession after terminating  the  lease. Section   52’   of  the  Bombay  Act   contains   provisions substantially similar to s. 9(6) of the, Berar Act which was repealed  and  the  only  change was  that  the  Bombay  Act enlarged  the period for which the landlord was required  to continue  to cultivate land personally from two years to  12 years.  As the enlarged period under the Bombay Act has come into operation before the expiry of the shorter period under the Berar Act, which was repealed, the landlord was bound to conform  to the requirements of the larger  period  provided

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under  the Bombay Act.  In this case the 5th respondent  had transferred  the suit lands to the first respondent on  June 21,  1961 and hence there has been a failure in law  on  the part  of  the 5th respondent to utilise the  lands  for  the purpose of personal cultivation for the period mentioned  in s.  52  of  the Bombay Act and so  the  said  section  fully applies  and the dismissal of the tenant’s  application  for restoration  by the High Court is. opposed to the  mandatory provisions of the Bombay Act.  The counsel, further  pointed out  that  the  Full Bench decision, on  which  the  present judgment of the High Court is .rested, is not applicable for the reason that the Full Bench was dealing with a case where the  period  provided  under s. 9(6) of the  Berar  Act  had already  expired before the coming into force of the  Bombay Act,  whereas in the case on hand even before the expiry  of that  two years’ period the Bombay Act has come into  force. This  material difference has not been noted in the  present order by the High Court.  He further urged that if the  Full Bench decision applies, as held by the High Court, it should be  held. by this Court that the Full Bench decision is  not correct. Mr,  M. S. Gupta. learned counsel for the first  respondent, landlord,  raised a preliminary objection to the hearing  of the appeal and prayed for cancellation of the special  leave granted by this Court on January 11, 1967.  According to him the appellant has made deliberately certain false statements in  his  application for grant of special  leave.   We  will revert  to this aspect a little later.  On merits Mr.  Gupta contended  that the obligation of his  client’s  transferor, the 5th respondent, after obtaining possession of the  lands from  the tenant under the Berar Act was only  to  cultivate the  lands for two years.  Admittedly in this case  the  5th respondent  had cultivated the lands for the said period  of two years and the obligation incurred by him under s. 96) of the Berar Act having been duly complied with, 78 pointed  out  that s. 132 deals with  repeals  and  savings. Subsection  (1)  had repealed the  enactments  specified  in Schedule  I to the extent specified in column No. 4  of  the said Schedule.  Schedule I shows that the Berar Act has been repealed  in its entirety.  Notwithstanding the repeal  sub- section (2) has saved certain matters and on of the  matters so  saved  is the obligation or liability  already  incurred before  the  commencement  of  the  Bombay  Act.   The   5th respondent, who had incurred the obligation or liability  to cultivate the lands for two years under the Berar Act before the commencement of the Bombay Act, has discharged the  said obligation or liability and hence the tenant has no  further rights  which  he  can  enforce.   He  also  urged  that  s. 52_protects  even  cases where possession  has  beer.  taken after  the coming into force of the Bombay Act on the  basis of  an order for restoration obtained under the  Berar  Act. In  support of ’his contention he relied on the decision  in Ramchandra v. Tukaram and others(1). Before  we deal with- the merits we will now dispose of  the preliminary  objection  raised  by  Mr.  Gupta  praying   or cancellation  of  special  leave  granted  by  this   Court. According   to  the  learned  counsel  the   appellant   has deliberately   made   certain  false  ,statements   in   the application for grant of special leave and has misguided the Court.   He  drew our attention to the  statements  made  in paragraph  6  of the application wherein the  appellant  has stated  that  the 5th respondent had  transferred  the  suit lands in favour of the first respondent on June 21, 1961  by taking  in  exchange  8  acres of land plus  a  sum  of  Rs.

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30,000/-.   Again  in  paragraph  10  of  the  petition  the appellant has stated that his claim in these proceedings  is for restoration of possession of the lands measuring 7 acres and 4 gunthas, the market value of which happens to be  more than Rs. 20,000/- and that this fact is further strengthened because of the 5th respondent exchanging his lands with  the first  respondent for a sum of Rs. 30,000/- plus 8 acres  of land.  The appellant has filed an affidavit stating that the statements contained in the special leave petition ’are true and  correct  to the best of my personal  knowledge’.   From these statements Mr. Gupta pointed out that it is clear that the appellant has categorically stated that the value of the lands concerned in this, appeal is over Rs. 20,000/- and  he has  also  specifically  stated that  the  suit  land%  were exchanged  for Rs. 30,000/- plus 8 acres of lands and  these statements  have  been affirmed to be true to  the  personal knowledge of the appellant. Mr. Gupta pointed out that these statements regarding valua- tion are absolutely false to the knowledge of the  appellant as will (1) (1966) 1.S.C.R. 594 79 be clear from the value given in the writ petition filed  by the  first respondent in the High Court.  In para 1  of  the writ  petition the first respondent has stated that the  5th respondent after transfering the suit lands of 7 acres and 4 gunthas has taken in exchange from him 8 acres of land and a sum  of Rs. 13,000/-, thus making a total of  Rs.  19,000/-. In  the  affidavit filed along with the  writ  petition  the first  respondent has again stated that the amount  received from  him  along with 8 acres of land as  Rs.  13,000/-  the total  value of the lands being only Rs. 19,000/-.  He  also drew  our attention to the recitals in the judgment  printed in  the appeal records wherein the exchange has been  stated as being of 8 acres of land plus a sum of Rs. 13,000/-.   In view of these circumstances, the counsel points out that the statements  made by the appellant, which have been  affirmed to  be  true to his knowledge about valuation  of  the  suit lands  being over Rs. 20,000/- and the exchange having  been obtained of 8 acres and Rs. 30,000/- are false and have been deliberately  made  to  mislead the Court so  as  to  obtain special   leave  making  it  appear  that  the   requirement regarding  valuation  is  satisfied.   Mr.  Gupta  drew  out attention  to  the  decisions of this  Court,  namely,  Hari Narain  v.  Badri Das(1), Sita Bai v. Sonu  Vanji  Wani  and ors.(2)  and  S.  R.  Shetty  v.  Phirozeshah   ’Nusserwanji Golabawalla  and another(3).  Mr. Gupta pointed out that  in all  these  decisions when there has been  false  statements made on material particulars or matters of importance either on  facts  or  about valuation,  this  Court  bad  cancelled special  leave already granted.  The proposition  enunciated by  Mr.  Gupta  that the statements  in  the  special  leave application   should  not  contain  any  untrue   or   false statements  either in material particulars or on matters  of importance  or  about valuation is certainly  laid  down  in those decisions and the requirement in this regard cannot be over-emphasised. In Hari Narain v. Badri Das(1), this  Court held  that the special leave petition contained  inaccurate, untrue and misleading statements and cancelled special leave already granted.  This Court observed at page 209 as follows :               "It  is  of utmost importance that  in  making               material statements and setting forth  grounds               in  applications for special leave, care  must               be taken not to make any statements which  are

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             inaccurate, untrue or misleading.  In  dealing               with applications for special leave, the Court               naturally takes statements of fact and grounds               of  fact contained in the petitions  at  their               face  value and it would be unfair  to  betray               the   confidence  of  the  Court   by   making               statements which are untrue and misleading." (1) [1964] 2 S.C.R. 203.   (2) C.A. No. 982 of 1965  decided on 25-4-1968. (3)  G.A. No. 155 of 1963 decided on 25-4-1963. 80 From  the  facts  in  that case it will  be  seen  that  the material statements made in the special leave petition  were false. In Sita Bai v. Sonu Vanji Wanil and ors. (1) this Court held that   in   the   special  leave  petition   there   was   a misrepresentation of facts on a matter of importance, though it was not possible to say that when granting special  leave these untrue facts had misled the Court.     It   has   been further emphasised in this decision that the appellant had deliberately made untrue statements on matters of importance and that they were not the result of inadvertence. Similarly in  S. R. Shetty v. Phirozeshah Nusserwanji Golabawalla  and another(2) a statement had been made regarding the value  of the  subject matter as being above Rs. 20,000/-  though  the suit had been valued only in the sum of Rs. 5001- and  court fee  paid  on  that valuation.  This  Court  held  that  the statements  of  valuation in the plaint, namely,  Rs.  5001- cannot be reconciled with the statement regarding  valuation in  the  special leave application and this Court  took  the view that the valuation has been deliberately inflated  with a  view  to getting over the preliminary hurdle  as  regards valuation.  In this view special leave granted was revoked. If  it  is  held  that there has  been  an  untrue  averment regarding  material  statements  or  a  false  statement  on matters of importance    or  a deliberate  untrue  statement regarding valuationhas been  made to mislead this Court, it cannot be gainsaid that thespecial.  leave   granted   by this Court will have to be revoked. Dr. Barlingay pointed out that there has been nountrue or false   statement  made  by  his  client  on  any   material particular  nor has any statement been deliberately made  to mislead  the  Court  so as to enable his  client  to  obtain special leave.  On the other hand, the counsel pointed  out, that  the certified copy of the judgment of the  High  Court furnished  to his client and which, has been filed  in  this Court  clearly shows that in the said copy the,  High  Court has stated that the 5th respondent obtained an exchange from the  first  respondent  8 acres of land plus a  sum  of  Rs. 30,000/-.   That  mistaken  value given in  the  High  Court judgment  has  been adopted in the special  leave  petition. The  points  that  have been raised  in  the  special  leave petition are all I questions of law relating to legal effect of possession under the Berar Act after coming into force of the Bombay Act.  The valuation. given in the certified  copy of  the High Court judgment was incorporated in the  special leave  petition  filed  as early as January  11.  1967.   He further  pointed out that on March, 28, 1967 his client  had moved the High Court for correcting the High Court’s (1) Civil Appeal No. 982 of 1965 decided on 25-4-68. (2)  CIVIL Appeal No. 155 of 1963 decided on 5-4-1963 81 judgment  by  deleting  the valuation of  Rs.  30,000/-  and substitute the same by correct figure of Rs. 13,000/-.   The counsel  for both the parties agreed before the  High  Court

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that  the figure of Rs. 30,000/- contained in  the  judgment was  an  error  and that the correct figure  should  be  Rs. 13,000/-.   The  High Court accordingly by its  order  dated April  17, 1967 corrected the judgment by stating  that  the valuation  of  Rs.  30,000/-  should  be  corrected  to  Rs. 13,000/-.   That order was passed nearly three months  after the  special leave application was filed in this Court.   In view of the fact that his client and the counsel acting  for him, at the time of drafting the petition for special  leave adopted  the  valuation given in the certified copy  of  the High Court’s judgment, Dr. Barlingay pointed out that  there has been no untrue or false statement given by his client so as to justify revocation of. the leave already ranted. We  have  given  due  consideration  to  all  these  aspects presented  before us by both the learned counsel and we  are of  the  view that in the particular circumstances  of  this case  it  cannot  be said that the appellant  is  guilty  of making  any  false  or  untrue  statement  on  any  material particulars or matters of importance or regarding valuation. The  mistake committed by the appellant regarding  valuation was the result of the mistaken value given by the High Court itself  in  its  judgment, which  was  corrected  only  long afterwards.   No doubt, the appellant who is a party to  the proceedings should have been a little more careful, but that does  not  disclose any deliberate attempt on  his  part  to mislead   this  Court.   Further  the  statement   regarding valuation  is not of much consequence in this  case  because the questions arising for decision are really points of  law regarding applicability of either the Berar or Bombay  Acts. Therefore,  Mr. Gupta has not been able to make out  a  case for cancelling the special leave already granted. We  will now proceed to consider the appeal on merits.   The suit  land  was  originally in the  Vidarbha  Region,  which before  the  passing of Bombay Act of 1958 was part  of  the state of Madhya Pradesh and the tenancy of the appellant was governed by the Berar Act.  As proceedings had been taken by the  5th  respondent  for evicting  the  appellant  and  for possession of the land under the Berar Act, it is  necessary to refer to some of the material provisions of that statute. Section  2(h)  defines a protected lessee  as  ’a  protected lessee  within  the meaning of s. 3.  Section  3  enumerates various  lessees  who are protected lessees.   There  is  no controversy  that  the appellant before us was  a  protected lessee under the Berar Act.  Section 8(1) enumerates in cls. (a) to (g) the (,rounds on which 82 the  lease of a land held by a protected lessee can  be  got terminated  under the orders of a Revenue Officer.   One  of the  grounds  for eviction is provided under  cl.(g)  of  s. g(1), namely  lessee having been served with the notice by a landholder  as provided,, in s. 9. Section 9 deals with  the right  of  the  landholder  to  terminate  the  lease  of  a protected lessee.  Sub-sections (1) and (6)  of   the   said section  which are material for the present purpose  are  as follows :               "Right  of landholder to terminate lease of  a               protected lessee.               Section   9  (1).   Notwithstanding   anything               contained  in  section 8  the  landholder  may               terminate  the lease of a protected lessee  by               giving  him  notice in writing  delivered  not               less  than three months before the  commnence-               ment  of  the next agricultural  year  stating               therein  the reasons for such termination  and               the  description  of the area  in  respect  of

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             which  it is proposed to terminate the  lease,               if  the  landholder  requires  the  lands  for               cultivating the land personally.               Section 9(6).  If on re-entering upon any land               after termination of the lease of a  protected               lessee  in  accordance with  this  section,  a               landholder  fails  at  any  time  during  such               period  as  may be prescribed to  utilise  the               land  for the purpose for which the lease  was               terminated, the dispossessed lessee may  apply               to   the  Revenue  Officer  to  put   him   in               possession  of the land from the  commencement               of the agricultural year next following :  and               the  Revenue Officer shall, after hearing  the               landholder and making such enquiry as he deems               fit, put the lessee in possession of the  land               if  he is satisfied of the, failure  and  also               award  him such sum by way of compensation  as               the Revenue Officer may consider sufficient." Section  19  (1) provides for a landholder applying  to  the Revenue Officer to eject a protected lessee against whom  an order for the termination of the lease had been passed under ss.  8 or 9. Section 22 gives power to the State  Government to make rules as stated therein.  Under cl. (3) of s. 22 (2) rules  can be made regarding ’the period  under  sub-section (6)  of  s. 9’.  Rules have been framed under s. 22  and  in particular  r.  9  prescribes ’such period as  that  of  two years’.   Hence it will be seen that S. 9(6) read with r.  9 requires  the landholder who terminates the tenancy  of  his protected lessee on the ground that the land was required 83 by  him for his personal cultivation, to cultivate the  land personally for a period of two years.  Under the Berar  Act, after having entered upon the land, if the landholder  fails to  cultivate the land personally during the  above  period, then s. 9(6) confers a right on the former protected  lessee to  apply  to  the Revenue Officer  for  being  restored  to possession. We  have  already indicated that the Bombay  Act  came  into force  on December 30, 1958.  The material provisions to  be referred  to  in  the said statute are ss.  52(1)  and  132. Section 52(1) runs as follows :               "Landlord to restore possession if be fails to               cultivate within one year :               Section  52(1) : Where after  terminating  the               tenancy  of  any land under section 9  of  the               Berar Regulation of.  Agricultural Leases Act,               1951, or under sections 38, 39 or 39A of  this               Act, the landlord has taken possession of such               land and he fails to use the land for the pur-               pose  specified in the notice given under  the               said  section 9 or as the case may  be  within               one  year  from  the date  on  which  he  took               possession or ceases to use it at any time for               any  of the aforesaid purposes  within  twelve               years  from  the date on which  he  took  such               possession,   the  landlord  shall   forthwith               restore  possession of the land to the  tenant               whose tenancy was terminated by him, unless he               has  obtained from the tenant his  refusal  in               writing  to  accept the tenancy  on  the  same               terms and conditions or has offered in writing               to  give possession of the land to the  tenant               on  the  same  terms and  conditions  and  the               tenant  has failed to accept the offer  within

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             three months of the receipt thereof :               Provided  that no refusal of the tenant  shall               be  valid unless it has been  verified  before               the Tahsildar in the prescribed manner." Section  132 relates to repeals and savings.  Sub-section  1 states  that the provisions of the enactments  specified  in Schedule I are repealed to the extent specified in column  4 of  the said Schedule.  It may be stated at this stage  that one  of the enactments so repealed was the Berar Act in  its entirety.  Sub-section 3 is not relevant.  Sub-section 2  of s. 132 on which reliance has been placed by both the parties is as follows :               "Repeals and Savings :               Section  132(2) : Nothing in  sub-section  (1)               shall, save as expressly provided in this Act,               affect or be deemed to affect-               84               (i)any  right, title, interest,  obligation               or  liability  already  acquired,  accrued  or               incurred before the commencement of this  Act,               or               (ii)any   legal  proceeding  or  remedy   in               respect  of any such right,  title,  interest,               obligation  or liability or anything  done  or               suffered before the commencement of this Act,               and any such proceedings shall be  instituted,               continued and disposed of,, as if this Act had               not been passed." We have already referred to the fact that the 5th respondent had  issued the necessary notice terminating the tenancy  of the  appellant on December 28, 1955 under s. 9(1) and  after initiating  proceedings under s. 8 ( 1) (g) read with S.  19 (1),  he  obtained an order for possession  as  against  the appellant from the Revenue Officer on lay 15, 1956, and  had also obtained possession of the lands on April 4, 1957.  All these proceedings were under the Berar Act before the coming into force of the Bombay Act.  The 5th respondent  continued in such possession of the lands till June 21, 1961, on which date  he transferred the suit lands to the first  respondent in exchange for certain other lands.  The appellant filed an application  for  restoration seeking relief on  the  ground that  the 5th respondent had ceased to be in  possession  of the lands within twelve years from April 4, 1957. Therefore  the short question that arises for  consideration is  whether S. 52 of the Bombay Act applies to  those  lands the  possession of which was obtained by the landlord  under s. 9 of the Berar Act but in respect of which the period  of two  years’  disability as imposed under S. 9(6)  read  with rule  9  of the Rules was not over before  the  coming  into operation of the Bombay Act. From  the  scheme of the Berar and Bombay Acts, it  will  be noted that while s. 52 of the Bombay Act enlarged the period of  personal  cultivation  to 12 years, the  Berar  Act  had provided  for  personal cultivation only for a period  of  2 years.   Under  the  Berar  Act if  the  landlord  does  not personally cultivate for 2 years., the tenant can apply  for restoration  of  possession from  the  landlord.   Similarly under  the  Bombay  Act,  if  the  landlord  had  ceased  to cultivate  the  land within a period of 12 years,  from  the date  of  taking  possession,  the  tenant  can  apply   for restoration. We have already referred to the fact that Mr. Gupta, learned counsel  for the respondent, has relied on the  decision  of this  Court in  Rainachanadra v.  Tukaram and  others(1)  in support of his

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(1) [1966] 1 S.C.R. 594. 85 proposition  that s. 52 of the Bombay Act applies,  even  to cases where possession has been taken after the coming  into force  of  the  Bombay  Act in pursuance  of  an  order  for restoration  obtained by the landlord under the  Berar  Act. We  have gone ’through the above decision and we are of  the opinion that it does not lay down any such proposition.  The question that arose for consideration therein was a  totally different  one.  In that case, one X was a protected  lessee under  the  Berar Act and the landlord  had  terminated  the tenancy  under s. 9(1) on the round of personal  cultivation and had also submitted an application to the Revenue Officer under  s.  8 (1) (g) for an order terminating  the  tenancy. The  Revenue Officer determined the tenancy by  order  dated July 2, 1957 and made it effective from April 1, 1958.   But before  the  latter date, Ordinance No. 4 of 1957  was  pro- mulgated, which in turn was replaced by the Bombay Act IX of 1958.  The said Act had imposed a ban on eviction of tenants and had also stayed all such proceedings pending on the date of  commencement of the said Act.  The landlord had  applied on  May  15,  1958 to the Naib Tahsildar for  an  order  for restoration  of possession of the land by the  tenant.   The Bombay Act. which repealed the Berar Act and the Bombay  Act No.  IX  of 1958, came into force on December 30,  1958,  on which  date  the  application  filed  by  the  landlord  for restoration  was pending before the Naib  Tahsildar.   There was  a controversy is to the nature of relief that could  be granted to the landlord.  Having due regard to s. 132(2)(ii) and  (3)  of  the  Bombay Act,  this  Court  held  that  the application,  filed  by  the landlord  for-  restoration  of possession on the basis of the order obtained under s. 8 ( 1 )  (g)  of  the Berar Act, and which was  pending  when  the Bombay Act came into force must be treated as an application under  s.  19  of  the Berar Act and had  to  be  tried  and disposed  of  by  the  appropriate  authority.   This  Court further  held that the application of the landlord  being  a pending proceeding in respect of a right acquired before the Bombay Act, it had to be continued and disposed of as if the Bombay Act had not been passed.  It was further held that in so disposing of the application, treating it as one under s. 19 of the Berar Act. there was no scope for the  application of  the  conditions  and  restrictions  prescribed  by  sub- sections  (3)  and (4) of s. 38 of the Bombay Act  as  those provisions  do  not apply to proceedings to  enforce  rights acquired  when the Berar Act was in operation.   This  judg- ment,  in our opinion, does not support the landlord in  the case before us. We have already referred to the fact that the High Court. in its  order tinder appeal, has held that s. 52 of the  Bombay Act  does not apply to the present case as the landlord  had cultivated  the  land for two years though a  part  of  that period "?as after the 86 commencement  of  the Bombay Act. The High  Court  has  also stated  that s. 52 of the said Act will have no  application to  the case on hand inasmuch as the landlord  had  obtained possession  on  April 4, 1957 long before  the  coming  into force  of  the Bombay Act.  For this proposition,  the  High Court  has relied on an earlier decision of a Full Bench  of the  same  Court in Saraswatibai Babji  Tukaram  Umarkar  v. Bhikamchand Premsukhdas(1).  According to Dr. Barlingay, the High  Court’s  view that even it’ a landlord  completes  the period of two years personal cultivation, as required  under S. 9(6) of the Berar Act, after the coming into force of the

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Bombay Act, the larger period provided under s. 52 does  not apply,  is  not correct.  We have already  stated  that  Dr. Barlingay has further urged that the Full Bench decision  of the  Bombay High Court does not apply and if  that  applies, the said decision must be he-Id to be erroneous. As the decision under appeal is substantially rested on  the decision  of the Full Bench, it is necessary to examine  the scope of the Full.  Bench decision.  But we may straight way say that the High Court’s view that the Full Bench has  held that  s.  52 will not apply to’ cases where the  two  years’ period  is  completed even after the Bombay  Act  came  into force  is not correct, because the Full Bench has  not  laid down  any  such proposition.  The Full Bench has  only  held that  s.  52  applies  to  cases  where  a  landlord   takes possession of the land on determination of a tenancy  either under  s. 9 of the Berar Act or under.ss. 38, 39 or  39A  of the Bombay Act after the latter Act has come into force. The facts in the Full Bench case were briefly a,, follows  : X, a landlord obtained possession on July 3, 1955 of certain lands from his tenant under the Berar Act on the ground that he  required the same for personal cultivation.   After  the death  of  X on October 28,1955, his  heirs  inherited  the, property  and  continued  in possession  of  the  same  till February  9. 1959, on which date they sold the lands to  one S. After purchase by S. the original tenant applied under s. 52  of the Bombay Act for restoration of possession  on  the ground that the landlord had ceased to use the property  for a period of 1.2 years as required by the section.  The heirs of X and the purchaser S, were both made parties to the said application  and relief was asked for against both of  them. At  this stage it may be mentioned that the Bombay Act  came into force on December 30, 1958. From  the  facts  stated above, it will  be  seen  that  the landlord had obtained possession from the tenant on July  3. 1955 and lie and his heirs had completed the requirement  of s.  9(6)  of  the  Berar Act,  namely,  two  years  personal cultivation  Oil  July 3. 1957, long before the  Bombay  Act came into force.  After (1) [1966]  Bom.L.R. 954. 87 having  completed the said two years period, the heirs  were in, possession not only on the date of the coming into force of  the  Bombay Act, but also till the date of  sale  to  S. (February 9, 1959).  The question naturally arose whether s. 52  of the Bombay Act will apply when the two years’  period under  the Berar Act had expired before December  12,  1958. There appears to have been earlier single Judge’s  decisions of  the Bombay High Court holding that s. 52 of  the  Bombay Act  will  apply to cases where possession  has  been  taken after  the Bombay Act had come into force and also to  cases where  the  period of 2 years’ personal cultivation  by  the landlord  had  been completed even before  the  coming  into force of the Bombay Act.  Mr. Justice Wagle, before whom the matter came in the first instance expressed doubt about  the correctness of the earlier decisions.  Mr. Justice Wagle was inclined to take the view that s. 52 of the Bombay Act would apply  only  to  those lands, the possession  of  which  was obtained by the landlord under s. 9 of the Berar Act. but in respect  of  which the period of two  years’  disability  as imposed  under s. 9(6) read with r. 9 of the Rules  was  not over before the coming into force of the Bombay Act.  As the learned  Judge  was inclined to take a view,  which  was  in conflict with the previous view of the Bombay High Court, he referred  the  matter  to a Division Bench,  which  in  turn referred the matter to the Full Bench.

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From  what  is stated above, it will be seen  that  in  that case,  possession  of the lands was taken by  the  landlord, from  the  tenant  under the Berar Act and  the  two  years’ period  as required under s. 9(6) of the said Act  had  also expired  before the coming into force the Bombay  Act.   The transfer  in  favour of S. no. doubt, was  made  long  after December  28, 1958.  In the case before us the landlord  had obtained possession under the Berar Act on April 4, 1957 and he bad not completed the two years’ period under s. 9(6)  of the  Berar Act on December 30, 1958.  We are only  referring to these dates to show that the Full Bench decision did  not have occasion to directly tackle the problem that arises for consideration before us.  But nevertheless there are certain broad principles laid down in that decision, the correctness of which will have to be considered by us.  The Full  Bench, posed the following two questions for consideration :               "1.  Whether the provisions of section  52  of               the  Bombay  Tenancy and  Agricultural  Lands,               (Vidarbha Region and Kutch Area) Act, 1958 are               attracted  to  cases  where  the  lease  of  a               protected  lessee had been determined  by  the               landholder  under  section  9  of  the   Berar               Regulation  of Agricultural Leases  Act,  1951               and possession thereof taken prior to the date               the.               88               new.   Tenancy  Act came, into force  and  the               landholder  continued to personally  cultivate               the  land  on the date the new Act  came  into               force.               2.If  the answer to the first question  is               in the affirmative,. whether the expiry of two               years  prior to the coming into force  of  the               new   Act  would  have  any  bearing  on   the               application of section 52." The  first question, it will be noted, refers to the  effect of  taking  possession by the landlord before  December  30, 1958  and his still being in possession on the date  of  the coming  into force of the Bombay Act.  The  second  question refers to the effect of the expiry of two years prior to the coming into force of the Bombay Act. So  far  as  the first question is  concerned,  the  learned Judges held that s. 52 of the Bombay Act would be  attracted only  to Such cases where a landlord takes possession  after determination of tenancy either under s. 9 of the Berar  Act or under ss. 38, 39, force. So far as the second question is concerned, the learned Judgeshave not expressed any opinion on  the  ground  that  it does  not  ’survive  on  the  View expressed by them on the first question. It will be noted  from a reading of the Full Bench  judgment that  the learned Judges have placed  considerable  emphasis for  the applicability of s. 52 of the Bombay Act about  the landlord  taking  possession after the Bombay Act  has  come into  force.  If possession had been taken  before  December 30, 1958, according to the Full Bench, s. 52 does not apply; whereas if possession is taken after the said date, the said section will apply.  For coming to this conclusion the  Full Bench has given considerable importance to the fact that  s. 52  refers also to ss. 38, 39 and 39A of the Bombay Act  and that  it uses the expression "landlord has taken  possession of  such  land  and  he  fails  to  use  the  land.",  These expressions, according to the Full Bench, can refer only  to cases  of  lands taken possession by a  landlord  after  the Bombay   Act   has  come  into  force  as  s.  52   is   not retrospective.

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In  our opinion, the Full Bench has too broadly  stated  the principles regarding the circumstances under which s. 52  of the Bombay Act will apply.  If taking possession of the land by  the landlord after December 30, 1958, is the  sole  test for  the applicability of s. 52, the position, in our  view, will  be  very anomalous.  For instance if  a  landlord  had taken possession on December 29. 1958, s. 52 will not  apply and  the requirement of two years’ personal cultivation  may not also become necessary as the Berar 89  Act stands repealed as on December 30, 1958.  Similarly  if the landlord had taken possession and had also complied with the  requirement  of two years’  personal  cultivation  long before  December  30,  1958, but nevertheless if  he  is  in possession  of the land on December 30, 1958,  according  to the  Full Bench, s. 52 will stand attracted.  No  doubt  the Full Bench has not answered the second question posed before it, but the reasoning of the decision will be to that effect if  the test of possession on December 30, 1958 is the  only criteria. We  are  of  the opinion that the question of  s.  52  being retrospective or not has no material bearing in interpreting that section.  That section had necessarily to refer ss. 38, 39 and 39A as they were also provisions enabling a  landlord to  get  possession from a lessee.  It is in  the  light  of these matters that the expressions occurring therein have to be  given  their  natural  meaning.   The  Full  Bench   has misinterpreted that section. In  interpreting s. 52, in our opinion, s. 132 (2) (i)  will be  helpful.  The obligation of the landlord when  he  takes possession  of the land from the tenant under the Berar  Act is  to  cultivate it personally for two years and  once  the landlord  complies with that requirement before  the  Bombay Act  came into force, the tenant’s right to get  restoration stands  extinguished  as  the landlord  has  discharged  his obligation. Section 52 of the Bombay Act extends the period of  personal ,cultivation  to 12 years to all cases to which it  applies. If  the ’landlord had taken possession under the Berar  Act, there  was an obligation on him to cultivate personally  for two  years and if he has not so cultivated, the  tenant  had acquired  a right to be restored to possession.  That  right which  has  been acquired by the tenant or  accrued  to  him before the commencement of the ’Bombay Act is saved under s. 132(2)  (i).  Similarly, if the landlord had cultivated  the lands personally for the required period, before the  Bombay Act  came into force, the landlord had acquired a right  not to be disturbed from his possession thereafter.  That  right again, which has been acquired by landlord or accrued to him has  been saved under s. 132(2) (i).  Having due  regard  to the  provisions of the statutes and what has been stated  by us earlier the position is that if the landlord on  December 30,  1958  had completed the two years  period  of  personal cultivation, his right not to be disturbed is continued  and preserved  under s. 132(2) (i) of the Bombay Act.  Again  if the  landlord  in pursuance of an order obtained  under  the Berar  Act, takes possession, after the commencement of  the Bombay Act, s. 52 applies to him and his original obligation to  cultivate personally for two years under the  Berar  Art gets L235 Sup.  CI/71- 7 90 extended by the 12 years period provided under that section. If  he ceases to so cultivate within the period of 12  years from his taking possession, the tenant gets a right to apply for restoration of the land.

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The  several aspects enumerated above have not  been  consi- dered by the Full Bench of the Bombay High Court and it  has rested its decision for applying s. 52 by applying the  sole test  whether  the landlord has taken possession  before  or after  December 30, 1958.  Such a test is not  warranted  by the  provisions of both the statutes read together.  A  fair reading  of  s. 52 also, in our opinion, leads to  the  same conclusion.  Section 52 provides for:               (i)   the tenancy being terminated under s.  9               of the Berar Act;               (ii)the  landlord taking possession of  such               land  on the basis of such termination of  the               tenancy;               (iii)the landlord failing to use the land for               the purpose specified in the notice under S. 9               of the Berar Act;               (iv)failure to use the land for the  purpose               mentioned  in the notice within one year  from               the date on which he took possession;               (v)   the landlord ceasing to use the land for               the  purpose for which he  obtains  possession               within 12 years of his taking possession. To  the  case of a landlord who had  already  completed  two years  personal cultivation before December 30,,  1958,  the requirement  of his failing to use the land for the  purpose specified in the notice under s. 9 within one year from  the date  of  his taking possession, will  have  no  application whatsoever.   The normal and reasonable construction  to  be placed  upon  S. 52 is that it will apply only to  cases  of lands,-the possession of which was obtained by the  landlord under  s.  9 of the Berar Act, but in respect of  which  the period  of two years disability imposed under s.  9(6)  read with  r. 9 of the Rules was not over before the coming  into force  of the Bombay Act.  In respect of such landlords,  S. 52  enlarges  the  period  for  which  he  is  required   to personally  cultivate  the lands.  In this  respect  we  are inclined to agree with the view of Mr. Justice Wagle. To  conclude S. 52 applies to all cases where possession  is taken  by the landlord on or after December 30, 1958 on  the basis of an order obtained under the Berar Act.  It  applies to 91 cases  where possession had been taken by a  landlord  under the  Berar  Act  but  the  two  years  period  of   personal cultivation had not been completed when the Bombay Act  came into force.  The instances of obtaining possession under ss. 38, 39 or 39A of the Bombay Act have not been considered  by us in this appeal.  It follows that s. 52 of the Bombay Act applies to the case before  us,  as the landlord had not  completed  two  years’ personal cultivation on December 30, 1958, the date on which the Bombay Act came into force.  He had taken possession  on April 4, 1957, and the two years’ ptriod will expire only on April  4,  1959.  In the meanwhile the Bombay Act  had  come into  force on December 30, 1958.  Under s.52 the period  of personal cultivation had been extended to 12 years from  the date  of taking possession.  But as the 5th respondent,  who obtained possession for personal cultivation had transferred the  suit lands to the 1st respondent on June 21,  1961,  on which  date  the  12  years  period  had  not  expired,  the appellant  tenant was entitled to apply for  restoration  on the  ground that the said landlord had ceased  to  cultivate the lands for the required period as provided under S. 52. In  the result the judgment and order of the High Court  are set aside and the orders of the Special Deputy Collector and

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the Maharashtra Revenue Tribunal are restored and the appeal allowed. Though normally costs should follow the event, in this  case though  the  appellant  succeeds- we decline  to  award  him costs,  as we are of the view that he should have been  more careful  in  giving  the  valuation  in  the  special  leave petition. V.P.S.                                                Appeal allowed. 92