1993 Supreme(Guj) 492

Gujarat High Court
Judgename :A.N.Divecha
JAYSHANKER AMBALAL DAVE - Appellant
Versus
HARJIBHAI TRIKAMBHAI PATEL - Respondent
L.P.A.48 of 1992
Decided On : 12/27/1993

Headnote:Interpretation of Statute - Principle of construction - A statute affecting vested rights can not have retrospective operation Ckn absence of clear intention of Legislature in that regard.

       The well-settled principle of construction is that a statute affecting vested rights of a person or a class of persons cannot ordinarily have any retrospective operation. A substantial right of a person or a class of persons cannot be taken away with retrospective effect in absence of any clear intention of the Legislature in that regard.

       [Para 6]

       Bombay Tenancy & Agricultural Lands Act, 1948 - Section 32E - Amendment brought about by Gujarat Act, V of 1973 - Operation of Amending Act whether prospective or retrospective - Held, Amending Act does not relate to any procedural law or any rule of evidence - It is also not declaratory in nature - On the contrary it affected the sustantive right of landlord and therefore shall have to be construed as prospective & not retrospective in operation.

       The statutory provision engrafted in Sec. 32E of the Act prior to its amendment by the Amending Act was conferring a substantive right on landlord to claim the tenanted land if its statutory sale in favour of the tenant became ineffective under Sec. 32A or 32E of the Act. Of course, the right of the landlord in that regard was subject to fulfilment of certain conditions under Sec. 15 thereof as it existed at that time, Nonetheless, the landlord was entitled to claim the tenanted land if its statutory sale under the Act became ineffective. The Amending Act has taken away that right of the landlord irrespective of fulfilment of the conditions prescribed in Sec. 15 thereof as existing at the relevant time. The tenanted land in that case is made disposable in the hands of the Collector. It thus becomes clear that the Amending Act has affected the substantive right of a landlord like the present petitioner. It is obvious that it does not relate to any procedural law or any rule of evidence. It is also not declaratory in nature. In view of the settled principle of interpretation. The said provision of the Amending Act will have to be construed as prospective and not retrospective in operation.

       [Para 6]

       There is no specific provision anywhere in the Amending Act to indicate the provisions thereof to be of retrospective effect. Sub-section 1(2) thereof provides : It shall come into force on such date as the State Government may, by notification in the Official Gazette, appoint.

       This would mean that the Act was to be brought into force on some future date. This can be said to be a clear pointer to the effect that the Amending Act was not retrospective but prospective in operation. The aforesaid two features found in the Amending Act were found in Act XXX of 1974 by the Supreme Court in State of Madhya Pradesh and others vs. Rameshwar Rathod, AiR 1990 SC 1849. On the basis of the aforesaid two features, the Supreme Court held Act XXX of 1974 to be prospective and not retrospective in operation. The aforesaid ruling of the Supreme Court is on all fours applicable in the present case. As pointed out hereinabove, those two very features are ponted out hereinbove. those two very features are found present in the Amending Act. It will have therefore to be held that the Amending Act is prospective and not retrospective in operation.

       [Para 7]

       Bombay Tenancy & Agricultural Lands Act,1948 - Sections 15, 32, 32A, 32B, 32E & 32(P)5 - Excess of ceiling area as on tillers day placed at disposal of Collector under S. 32 (P)5 - Grievance of petitioner landlord that disputed land must be given to petitioner landlord instead - Held, Tenant respondent could not become deemed purchaser of the disputed land in view of Section 32 B - Disposal of said land will have to be governed by Section. 32E as it stood on tillers day i.e. 1.4.1957 - As a result impugned order as affirmed in appeal and further affirmed in revision can not be sustained in law - Order setaside and matter remanded back to First Authority to decide in light of relevant provisions Contained in Section 32E read with Section15 of the Act as were in existence on 1.4.1957.

       The rights of the parties inter alia for the purposes of Sections 32, 32A and 32B will have to be decided as they were crystallised on the tillers day, that is, on 1st April 1957.The impugned order in the instant case has certainly crystallised the right of the tenant, that is, respondent No. 1 herein, as on 1st April 1957. It has however failed to crystalise the right of the landlord as on that day or date. That has certainly resulted in injustice to the landlord, that is, the petitioner herein. If the statutory purchases of the disputed land by the tenant under the Act become ineffective, it would have to be disposed of in the light of the provisions applicable as on 1st April 1957 and not in the light of the provisions as applicable on the date the Proceeding came to be finally terminated. No. party should be prejudiced with respect to his substantive rights simply on account of laws delays. It is obvious that the petitoner was not solely responsible for tossing of the proceeding from time to time and remand of the matters for umpteen times.

       [Para 8]

       The impugned order at Annexure A to this petition as affirmed in appeal by the appellate order at Annexure B to this petition as further affirmed in revision by the impugned decision at Annexure C to this petition cannot be sustained in law. It has to be quashed and set aside. The matter will have to be remanded to the first authority for restoration of the case to file and disposed of the disputed land in accordance with the relevant provisions contained in Sec. 32E of the Act as it existed prior to its amendment by the Amending Act. In other words, the case will have to be dicided in the light of the relevant provisions contained in Sec. 32B read with Sec. 15 of the Act as were in existence on 1st April 1957.

       [Para 9]