2015 Supreme(Bom) 106

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
M.S. SONAK, J.
Saraswati Shamrao Dhere – Appellant
Versus
Khutub Babu Malani & Ors. – Respondents
Writ Petition No. 1484 of 1992
Decided on: 05-02-2015

Headnote:Bombay Tenancy and Agricultural Lands Act, 1948 - Section 43 Bombay T&A Lands Rules, 1956, Rule 25-A Transfer of land. Transfer of land purchased by tenant, in breach of mandatory provision of Section 43(1) of Act is invalid. The conjoint reading of provisions under Section 43 of the said Act and Rule 25-A of the said Rules, makes it clear that the sanction contemplated by the provisions, is indeed ’previous sanction’ of the Collector or the competent authority as may be prescribed. Further, it is also clear that the provisions contained in Section 43(1) of the said Act are mandatory and any non-compliance would render the transfer of land invalid.

       If the real intention of the Legislature as well as the whole scope of statute is to be kept in mind, then it is clear that the provisions of Section 43 are mandatory in nature. For the determination as to whether some provision is mandatory or directory, the language employed in the provisions is no doubt important. Further, it is necessary to consider the nature and design of the statute, the consequences which would follow from construing it one way or other; the impact of other provisions whereby the necessity of complying with the provisions in question is avoided; the circumstances, namely, that the statute provides for a contingency of the non-compliance with the provisions; and above all, whether the object of the legislation will be defeated or furthered. Applying such tests, it has to be held that the provisions of Section 43 of the said Act bear a mandatory character.

       Section 43(2) of the Act provides that a transfer in contravention of sub-section (1) shall be invalid. When consequences of nullification on failure to comply with a prescribed requirement is provided by the statute itself, there can be no manner of doubt that such statutory requirement must be interpreted as mandatory. Besides the provisions of Section 43(1) of the said Act provide that no land purchased by a tenant under specified sections of the said Act shall be transferred without previous sanction of the Collector. Thus the Legislature has made use of negative words. One of the well known modes of showing a clear intention that the provision enacted is mandatory, is by clothing the command in a negative form.

       The provisions specifically make reference to ’previous sanction’. If the objective of said enactment is taken into consideration alongwith phraseology employed by the Legislature, then the mandatory nature of the requirement contained in Section 43(1) cannot be diluted by permitting some post-facto sanction for a transfer in breach of Section 43(1) of the said Act. This would render the provisions of Section 43(2) as otiose. Accordingly, there is no merit in the contention that the provisions of Section 43 of the said Act are only directory and that post-facto sanction constitutes substantial compliance.

       Bombay Tenancy and Agricultural Lands Act, 1948 - Sections 43 and 84-C Expression "no land". - Expression "no land" used in Section 43 of Act means that even if portion of land is transferred without previous sanction of Collector, entire land will have to be resumed by State Government in terms of Section 84 of Act. In the case of Ashok Baburao, 2005 (3) All MR 115, Court has held that even if portion of the land purchased by the tenant under the statutory provisions were to be transferred without obtaining previous sanction of the Collector under Section 43 of the said Act, that would tender such transaction invalid and the entire land will have to be resumed by the State Government in terms of Section 84-C(4) of the said Act, because Section 43 of the Act opens with the expression `no land’ which would mean that even if portion of the land is transferred without previous sanction of the Collector, the entire land will have to be resumed and, would vest in the State Government free from all encumbrances for disposal in terms of Section 84-C of the Act.

       Bombay Tenancy and Agricultural Lands Act, 1948 - Section 84-C(4) Constitution of India, Article 226 Phrase "person interested". Although complainant has no locus standi yet Writ Court can maintain order passed if reasons recorded were sound and tenable. The persons referred to under Section 32-P of the said Act may be the only `interested persons’, the fact remains that suo motu proceedings can always be initiated by the authorities. Thus, even if, the complainant had no locus standi, this Court in exercise of writ jurisdiction will be justified in maintaining the order passed, if it was more than convinced that the reasons recorded were sound and tenable. Moreover, this Court would be loathe to exercise writ jurisdiction if erroneous order were to be restored. Accordingly, no merit was found in the objection based on doctrine of locus standi.

       Bombay Tenancy and Agricultural Land Rules, 1956 - Rule 25-A. - See Bombay Tenancy and Agricultural Lands Act, 1948, Section 43.