In order to answer this question, it will have to be seen, what is the consequence of grant of certificate. The consequence of grant of exemption certificate is that the tenant of the agricultural land, in respect of which exemption certificate is granted, loses his valuable right of becoming purchaser of the land on the tillers' day. Section 88-B prescribes that on grant of exemption certificate except sections which are set out in Sub-section (1), the other provisions of the Tenancy Act will not be attracted with respect to such lands. Section 32 of the Act provides that on April 1, 1957 which is known as tillers' day, every tenant shall be deemed to have purchased from his landlord the land held by him as tenant free of all encumbrances subsisting on the said day. Section 32 onwards of the Act, then sets out the mode of determining purchase price, and the mode of payment by the tenant. The Tenancy Act was enacted by the Legislature to confer substantial right upon the cultivator of the land in accordance with the Constitutional mandate. The right conferred upon the cultivator under Section 32 of the Act stands excluded in respect of the lands belonging to the Trust, on grant of exemption certificate. It is, therefore, obvious that the consequence of grant of exemption certificate by the Collector and which is made conclusive evidence results into serious prejudice to the interest of the tenant. Indeed, on grant of exemption certificate, the landlord is not required to approach the Tenancy authorities to seek recovery of possession but can institute proceedings in regular Civil Court on the basis that the relationship of the lessor and lessee is regulated by the provisions of the Transfer of Property Act. It hardly requires to be stated that the tenant of an agricultural land who is deprived of protection of the provisions of the Tenancy Act can have no answer when the suit is instituted by the Trust in regular Civil Court for recovery of possession. It is, therefore, obvious that grant of exemption certificate seriously prejudices the right of the cultivator of an agricultural land.
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Bombay High Court
Bhimrao Chandru Patil And Ors. vs Balkrishna Dattatraya Joshi And ... on 18 September, 2001
Equivalent citations: 2002 (3) BomCR 731, (2002) 1 BOMLR 500, 2002 (1) MhLj 125
Bench: V Daga
1. This petition is by a Tenant, directed against the order dated 26-2-1982 passed by the Sub-Divisional Officer, Walva Division, Dist: Sangli directing issuance of certificate in favour of landlords under Section 88 of the Bombay Tenancy and Agricultural Lands Act, 1948 (Act 'for short') in form No. XIII prescribed under Rule 62(3) of the Bombay Tenancy and Agricultural Lands Rules, 1956 ('Rules' for short) framed under the Act.
THE FACTS
The facts giving rise to the present petition in nutshell are as under:--
2. One Vithoba Deosthan is a registered public Trust registered under B.P.T. Act, 1950. The respondent No. 1 claiming to be vahiwatdar/trustee of the said trust, on 22-4-1974, had applied for grant of exemption certificate under Section 88-B of the Act and Rules framed thereunder. The said application was rejected by the then Assistant Collector, Walva Division, Sangli vide its order dated 27-3-1976 holding that no evidence was tendered by the applicant to prove that the income earned by the trust from the registered property i.e. land in question was being appropriated for the purposes of such trust. The applicant/respondent No. 1 was held not eligible for grant of certificate under Section 88-B of the Act.
3. The respondent No. 1 had preferred revision petition before the M.R.T. Kolhapur. The same was dismissed on 30-9-1977. The prayer for review also came to be rejected on 2-6-1978. Here the first round of litigation came to an end.
4. The second round of litigation came to be initiated by respondent Nos. 1 to 8, claiming to be the trustees of the trust in question. These respondents preferred another application sometime in the month of June 1979 for grant of exemption certificate under Section 88-B of the Act. The said application came to be registered as Tenancy Application No. 1/1979. None from the category of tenants, namely, respondent Nos. 9 to 22 (including present petitioner) were joined as parties to the said application.
5. The Special Sub-Divisional Officer, Walva Division, Sangli, without hearing the petitioner and respondent Nos. 9 to 22 (tenants) passed an order directing grant of exemption certificate under Section 88-B of the Act, in favour of the respondent 1 to 8, trustees of the said Vithoba Deosthan Trust in respect of the lands held by the said Trust.
6. The aforesaid order, granting exemption certificate in favour of the trust, without affording any opportunity of hearing is a subject matter of challenge in this petition filed under Article 227 of the Constitution of India.
THE ARGUMENTS
7. The learned Counsel for petitioner-tenant challenged the legality, validity and propriety of the impugned order dated 26-2-1982, and contended that the said order is liable to be set aside being in breach of principles of natural justice, and relied upon the Division Bench judgment of this Court in
the case of Keraba Dattu Borachate and Ors. v. Sheshaskai and Vishnu Trust, 1990 Mh.L.J. 1183; wherein it was held that notice to tenant was necessary before granting certificate under Section 88-B of the Act.
8. The learned Counsel for the respondent Nos. 1 to 8 tried to support the impugned order on the text of Section 88-B and contended an enquiry could not be treated at par with that of a judicial trial and relied upon the judgment of the Apex Court in the case of Maneksha Ardeshir Irani and Anr. v. Manekji Edulji Mistry and Ors., , in which it was observed that the inquiry under Section 88-B of the Act was between the Collector and the Trust and the conclusive evidence clause in Sub-section (2) of Section 88-B of the Tenancy Act is in the nature of rule of evidence.
9. The Learned Counsel for the trustees further contended that the opinion of the Division Bench in the case of Keraba Dattu (supra), if properly read in the light of Supreme Court Judgment delivered in the case of Manekji Edulji (supra), then the expression of opinion to this extent was not necessary for the decision of case. If that be so, it would be incorrect to assume that the said view would bind the single Judge of this Court. In alternative, he prayed for reference to a Larger Bench. In support of his submission he relied upon the Judgment of this Court in the case of Mohandas Issardas v. A.N. Sattanathan, 56 B.L.R. 1156.
THE ISSUE
10. The crucial issue which falls for consideration is, whether it was obligatory on the part of the authority, hearing application praying for grant of certificate under Section 88-B of the Act, to hear the tenant on the question as to whether or not the trust satisfied the conditions of eligibility to claim exemption certificate.
FINDINGS
11. Having heard the parties at length, let me have a fresh look to the Division Bench judgment of this Court in the case of Keraba Borachate and others (supra), wherein the Division Bench has overruled the judgment of the learned Single Judge of this Court (Masodkar, J.) in the case of Shrimant Jagdeorao Anandrao Pawar v. Kisan Namdeo Pawar and Ors., 7979 Mh.L.J. 687, wherein it was held that an inquiry under Section 88(2) of the Act could not be treated at par with judicial trial. By this judgment Masodkar, J. held that tenant need not be heard by the Collector during the course of such inquiry. The reliance was placed on the judgment of the Apex Court in the case of Maneksha Ardeshir (supra) in which it was observed that the inquiry under Section 88-B of the Act was between the Collector and the Trust and conclusive evidence clause in Sub-section (2) of Section 88-B is in the nature of rule of evidence. The Division Bench while overruling the judgment of Masodkar, J. observed as under :--
"With respect, we are unable to share the view of the learned Single Judge, and we overrule the same."
"The reliance of the learned Judge on the provisions of Section 88C of the Act to hold that the Legislature never intended that notice should be issued to the tenants and inquiry should be held in their presence before grant of exemption certificate under Section 88-B of the Act is not appropriate. It is now well settled that when valuable properly rights of a party are affected, then irrespective of the fact whether the Statute specifically provides for issuance of notice and inquiry, the forum is duty bound to serve notice upon the person whose rights are going to be adversely affected. The principles of natural justice demand that the valuable property rights should not be deprived without the person being given sufficient opportunity to meet the claim. The trust is entitled to an exemption certificate provided two facts are established : (a) that the Trust is or is deemed to be registered under the Public Trust Act and (b) the entire income of lands is appropriated for the purposes of the Trust. Now, these two questions which are required to be determined by the Collector demand proof of certain facts and it is not permissible to hold that the Collector can conclude the inquiry without giving an opportunity to the tenants who are directly affected by grant of certificate. The tenant could very well establish that the trust is not registered before tillers day or, in any event, the entire income of the Trust is not appropriated towards the object of the Trust. By holding that the issue arises only between the Trust and the Collector, the learned Single Judge deprived the tenants from establishing that the Trust is not entitled to exemption certificate. Sub-section (2) of Section 88-B of the Act prescribed by rule of evidence that the exemption certificate is conclusive evidence as regards the conditions provided under Section 88-B(1)(b) of the Act and, therefore, there is greater necessity that the tenants who are going to be seriously prejudiced by grant of such exemption certificate should be served with the notice and permitted to participate in the inquiry. The deprivation of a right in such an important inquiry conducted under the Statute, which was enacted by the Legislature for conferring valuable rights upon the cultivators and the legislation being a beneficial one, is neither just nor fair. Merely because the Legislature did not specifically provide for service of notice and opportunity for the tenants to participate in the inquiry, it is not permissible for the Courts to deprive the tenants of their valuable rights in the agriculture lands by concluding that the enquiry is only between the Collector and the Trustees. The Collector while exercising the powers, even assuming performing administrative duties, still is bound to serve notice upon the persons whose property rights are affected."
12. The learned Division Bench, while considering the observations of the Apex Court made in paragraph 14 of the Judgment in the case of Maneksha Ardeshir Irani (supra), observed as under :-- "The observation of the Supreme Court in paragraph 14 of the judgment must be read in its proper perspective. The Supreme Court, after holding against the lessee on the question of protection under Section 4B of the Act and concluding that the lessee was a rank trespasser, was examining the question as to whether the lessee was entitled to a notice before grant of exemption certificate under Section 88-B of the Act. The observations of the Supreme Court in this context were that a person claiming to be a lessee was found to be a rank trespasser and was not entitled to any protection under the provisions of the Tenancy Act. The observations that the inquiry is between the Collector and the Trust, therefore, must be read with reference to the peculiar facts of the case before the Supreme Court. In our judgment, it is not possible to conclude that the Supreme Court intended to lay down that in the inquiry conducted by the Collector under Sub-section (2) of Section 88-B of the Act, it is not necessary to serve any notice upon the tenant whose valuable property rights would be destroyed by grant of exemption certificate. In our judgment, the reliance upon the decision of the Supreme Court by the Single Judge was not accurate. In our judgment, the Collector is bound to issue a notice to the tenant of the agricultural lands before holding an enquiry and must permit the tenant to participate in the inquiry before granting exemption certificate under Section 88-B of the Act. As Sub-Divisional Officer has failed to serve notices upon the tenants in the present case, the impugned order cannot be sustained."
13. To appreciate the contention of the petitioner, it is necessary to set out the relevant provisions of Section 88-B of the Act. Section 88-B(1)(b)
"(1) Nothing in the foregoing provisions except Sections 3, 4B, 8, 9, 9A, 9B, 9C, 10, 10A, 11, 13 and 27 and the provisions of Chapters VI and VIII insofar as the provisions of the said Chapters are applicable to any of the matters referred to in the sections mentioned above shall apply :--
(b) to lands which are the property of a trust for an educational purpose, a hospital, Panjarapole, Gaushala or an institution for public religious worship:
Provided that:--
(i) such trust is or is deemed to be registered under the Bombay Public Trust Act, 1950, and
(ii) the entire income of such lands is appropriated for the purposes of such trust."
Sub-section (2) of Section 88-B reads as under :--
"For the purposes of this section, a certificate granted by the Collector, after holding an inquiry, that the conditions in the proviso to Sub-section (1) are satisfied by any trust shall be conclusive evidence in that behalf."
14. The aforesaid section no doubt prima facie does contemplate an inquiry by the Collector. The question is, can it be inferred that on the text of Section 88-B, the principles of natural justice are excluded or the compliance thereof is not necessary while conducting inquiry under Section 88-B of the Act.
15. In order to answer this question, it will have to be seen, what is the consequence of grant of certificate. The consequence of grant of exemption certificate is that the tenant of the agricultural land, in respect of which exemption certificate is granted, loses his valuable right of becoming purchaser of the land on the tillers' day. Section 88-B prescribes that on grant of exemption certificate except sections which are set out in Sub-section (1), the other provisions of the Tenancy Act will not be attracted with respect to such lands. Section 32 of the Act provides that on April 1, 1957 which is known as tillers' day, every tenant shall be deemed to have purchased from his landlord the land held by him as tenant free of all encumbrances subsisting on the said day. Section 32 onwards of the Act, then sets out the mode of determining purchase price, and the mode of payment by the tenant. The Tenancy Act was enacted by the Legislature to confer substantial right upon the cultivator of the land in accordance with the Constitutional mandate. The right conferred upon the cultivator under Section 32 of the Act stands excluded in respect of the lands belonging to the Trust, on grant of exemption certificate. It is, therefore, obvious that the consequence of grant of exemption certificate by the Collector and which is made conclusive evidence results into serious prejudice to the interest of the tenant. Indeed, on grant of exemption certificate, the landlord is not required to approach the Tenancy authorities to seek recovery of possession but can institute proceedings in regular Civil Court on the basis that the relationship of the lessor and lessee is regulated by the provisions of the Transfer of Property Act. It hardly requires to be stated that the tenant of an agricultural land who is deprived of protection of the provisions of the Tenancy Act can have no answer when the suit is instituted by the Trust in regular Civil Court for recovery of possession. It is, therefore, obvious that grant of exemption certificate seriously prejudices the right of the cultivator of an agricultural land.
16. I shall now proceed to discuss the question, whether the provision of Section 88-B confers unfettered discretion on the Collector to grant exemption certificate. Based on subsequent discussions the answer is No. Section 88-B(2) of the Act provides that lands which are the properties of a Trust for an educational purpose and other purposes specified therein are
exempted from certain provisions of the Act. The conditions of such exemption prescribed by the Act are as under :--
(i) Such Trust is or is deemed to be registered under the Bombay
Public Trust Act 1950, and
(ii) the entire income of such lands is appropriated for the purposes of such trust.
Sub-section (2) of the said Section 88-B reads as under :--
88-B (2) For the purposes of this section a certificate granted by the Collector after holding an inquiry, that the conditions in the proviso to Sub-section (1) are satisfied by any trust shall be conclusive evidence in that behalf."
17. On the canvass of the above section, the inquiry has to thrash out the following questions :--
(1) Whether the trust is registered under the Bombay Public Trust Act, 1950?
(2) Whether the entire income of the Suit land is appropriated for the purpose of the trust?
18. The necessity of recording positive finding based on evidence by the Collector is in-built in the section itself. The reasons in support of the findings are required to be recorded in the order passed by the Collector though the question of sufficiency or adequacy of the material is not open to judicial review. The inquiry necessarily postulates recording of reasons.
19. The recording of reasons, which lead to the passing of the order granting exemption certificate, is basically intended to serve two-fold purpose:
(1) The Landlord acquires knowledge of the reasons for refusal and at the same time tenant also acquires knowledge of reasons for grant of exemption and in a proceeding before High Court or the Supreme Court, it has an opportunity to demonstrate that the reasons which persuaded the Collector to pass an order adverse to his interest were erroneous, irrational or irrelevant, and
(2) That the obligation to record reasons operates as deterrent against possible arbitrary action by the executive authority invested with power to grant exemption certificate.
20. The above necessary requirements will automatically attract the necessity of observing the rules of natural justice. The recent statutes have extended the practice of imposing upon departments or officers of State the duty of deciding or determining questions of various kinds and it will usually be an administrative kind though it involves matter of law as well as fact. It is now well settled by catena of decisions that principles of natural justice come into play not only in respect of a judicial or quasi-judicial enquiry but also in
respect of administrative actions resulting into deprivation of valuable rights of property.
21. It is no doubt true that plain reading of provision of Section 88-B clearly shows that section does not contain any provision for giving hearing to the tenant before the order granting or refusing to grant exemption certificate. In connection with the requirement of opportunity of being heard before directing grant of exemption certificate, I find that somewhat similar questions have been considered by the Apex Court on number of occasions. In the case of Union of India v. J.N. Sinha, the facts were that the first respondent who was in the class I service of the Survey of India and rose to the position of Deputy Director, was compulsorily retired by an order under Rule 56 (j) of the Fundamental Rules, no reasons were given in the order. Respondent 1 challenged the order on the ground that it violated principles of natural justice and no opportunity had been given to the first respondent to show cause against his compulsory retirement. A Division Bench of the Apex Court in its judgment in that case observed as follows : (SCC pp. 460-461, para 8). "Rules of natural justice are not embodied rules nor can they be elevated to the position of fundamental rights. As observed by this Court in Union of India v. J.N. Sinha, Kraipak, A.K. v. Union of India the aim of rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law but supplement it. It is true that if a statutory provision can be read consistently with the principles of natural justice, the Courts should do so because it must be presumed that the Legislatures and the statutory authorities intend to act in accordance with the principles of natural justice. But if on the other hand a statutory provision either specifically or by necessary implication excludes the application of any or all the principles of natural justice then the Court cannot ignore the mandate of the Legislature or the statutory authority and read into the concerned provision the principles of natural justice. Whether the exercise of a power conferred should be made in accordance with any of the principles of natural justice or not depends upon the express words of the provision conferring the power, the nature of the power conferred, the purpose for which it is conferred and the effect of the exercise of that power.
22. In the case of Olga Tellis v. Bombay Municipal Corporation ; a Constitution Bench comprising five learned Judges of the Apex Court had occasion to deal with the provisions of Section 314 of the Bombay Municipal Corporation Act, 1888. Chandrachud C. J., (as he then was) delivering the judgment of the Court held that: (SCC p. 581, para 44). "........(the said section) confers on the Commissioner the discretion to cause an encroachment to be removed with or without notice. That discretion has to be exercised in a reasonable manner so as to comply with the constitutional mandate that the procedure accompanying the performance of a public act must be fair and reasonable. (The Court) must lean in favour of this interpretation because it helps sustain the validity of the law."
Chandrachud, C. J., went on to observe as follows:--
(SCC p. 581, para 45).
"It must further be presumed that, while vesting in the Commissioner the power to act without notice, the Legislature intended that the power should be exercised sparingly and in cases of urgency which brook no delay. In all other cases, no departure from the audi alteram partem rule ("Hear the other side") could be presumed to have been intended. Section 314 is so designed as to exclude the principles of natural justice by way of exception and not as a general rule. There are situations which demand the exclusion of the rules of natural justice by reason of diverse factors like time, place the apprehended danger and so on. The ordinary rule which regulates all procedure is that persons who are likely to be affected by the proposed action must be afforded an opportunity of being heard as to why that action should not be taken. The hearing may be given individually or collectively, depending upon the facts of each situation. A departure from this fundamental rule of natural justice may be presumed to have been intended by the Legislature only in circumstances which warrant it. Such circumstances must be shown to exist, when so required, the burden being upon those who affirm their existence."
23. It must, however, be borne in mind that Courts have generally read into the provisions of the relevant sections a requirement of giving a reasonable opportunity of being heard before an order is made which would have adverse civil consequences for the parties affected. This would be particularly so in a case where the validity of the section is likely to be exposed to a serious challenge for want of such an opportunity.
24. There is nothing in the language of Section 88-B which would negate such an opportunity being given. Moreover, if such a requirement is not read into the provision of the said section, it would be seriously exposed to the challenge on the ground of violation of the provisions of Article 14 of the Constitution of India for non-compliance with principles of natural justice. The statute has to be construed so as to make it effective and operative.
25. The Apex Court in the case of Kedarnath v. State of Bihar, said :
"It is well settled that if certain provisions of law, construed in one way, would make them consistent with the Constitution and another
interpretation would render them unconstitutional, the Court would lean in favour of the former construction."
26. I may mention that the opinion formed by me is in line with the view taken by another Single Judge of this Court in the case of Poulad Deochand Patil v. Samasta Aher Nhavi Panch Trust, reported in 1992 Mh. L.J. 412, wherein Dhanuka, J. applying the principles of law laid down by the Apex Court in the case of Maneka Gandhi v. Union of India and Anr., , reached to conclusion that the tenant in that case was entitled for opportunity of hearing keeping in view the rules of natural justice.
27. The above view taken by the learned Division Bench of this Court in the case of Keraba Dattu (supra), followed by the learned Single Judge of this Court in the case of Poulad Deochand Patil (supra) is holding the field since more than one decade. Since then the provision of Section 88-B had always been interpreted in the manner stated above by this Court consistently. It would not be proper to disturb the course of decisions and unsettle the position of law by interpreting the provision differently. The Apex Court in the matter of B. Lakshmipati Naidu v. Distt. Educational Officer and Ors., , Raj Narain Pandey v. Sant Prasad Tewari and Ors. , held that in the matter of local statute the view taken by the High Court over number of years should normally be adhered to and not disturbed. The said observations are referred to and relied upon by the Apex Court in the case of Darshansingh etc. v. Ram Pal Singh and Anr., (1992), Suppl. 1 SCC 191 and Janabai (dead) through L.Rs. v. Gopikabai . The Apex Court applied the said principles while interpreting the provisions of of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 in the case of Janabai (dead) through L.Rs. (cited supra).
28. On the above canvass of discussion, I am unable to persuade myself to accept the contention of the learned Counsel appearing for the respondent that the judgment of Division Bench of this Court in the case of Keraba Dattu Borachate (supra) needs reconsideration, rather, the judgment of the Apex Court in the case of Maneksha Ardeshir Irani (supra) was rightly and properly read by the learned Division Bench of this Court.
29. In the result, I quash and set aside the impugned order dated 26-2-1982 passed by Sub-Divisional Officer, Walva Division, Sangli in Tenancy Application No. 1/1979 being in breach of principles of natural justice and remit the proceedings back to the Sub-Divisional Officer, Walva Division, Sangli for holding fresh inquiry after service of notice on the tenants. The tenants are permitted to participate in the inquiry. The Sub-Divisional Officer, Walva Division, Sangli should pass final order on the application filed by the respondent Nos. 1 to 8 after giving a fair opportunity to the tenants to answer the claim of the respondents/trustees. The Sub-Divisional Officer should
dispose of the proceedings as expeditiously as possible at any rate within a period of one year from the date of receipt of writ from this Court.
30. Rule is accordingly made absolute with no order as to costs.
31. Order accordingly.
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