TMI Blog1991 (5) TMI 252X X X X Extracts X X X X X X X X Extracts X X X X ..... Act certain areas abutting Baroda Municipality were notified as being reserved for non- agricultural or industrial purpose with effect from May 2, 1958. By another notification published in the Gujarat State Gazette dated July 2, 1964, certain lands including those situated in Akote and of the appellant's lease hold lands were reserved for industrial purpose. Consequently Ss. 1 to 87 of the Act do not apply to the exempted area. While the landlord was continuing under disability, his son Vasant Rao sold the land to the respondent under registered sale deed dated August 19, 1964. By another notification under Section 88(1)(b) published in the Gazette dated October 29, 1964, the Government restricted the operation of the exemption to the area originally notified on May , 1958 i.e., Ss. 1 to 87 do not apply to the lands in question. This notification was rescinded by further notification published in the Gazette dated August 23, 1976. The Bombay Tenancy and Agricultural Lands(Gujarat) Amendment Act 36 of 1965, s. 18(1) and 18(2) thereof introduced two provisos to s. 88(1)(b) of the Act which was published in the Gazette on December 29, 1965 which are relevant for purpose of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vision to the Revenue Tribunal the decision was reversed. The Division Bench of the High Court by order dated February 3, 1977 dismissed the writ petition. The appellant had leave of this Court by Art. 136. Thus this appeal. From these admitted facts the question emerges whether the operation of the second proviso to s. 88(1)(b) has retrospective effect depriving the appellant of the statutory right of `deemed purchaser'. S. 88 of the Act empowers the government to exempt certain other lands from the purview of Ss. 1 to 87 of the Act. The State Government exercised their power from time to time under section 88(1)(b) and issued notification and published in the official Gazette specifying certain areas as being reserved for non-agricultural or industrial development i.e., urban development. Consequently the first proviso gets attracted which say that notwithstanding any judgment or order of any court, tribunal or any other authority under the Act to the contrary, once the notification was issued either before or after commencement of the Amendment Act reserving the area so added for non-agricultural or industrial development i.e. expansion for urbanisation, to the extent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e proviso cannot be torn apart from the main enactment nor can it be used to nullify by implication what the enactment clearly says nor set at naught the real object of the main enactment, unless the words of the proviso are such that it is its necessary effect. The effect of the notification issued under section 88(1)(b) was the subject of consideration in several decisions of this Court. In Sukharam @ Bapusaheb Narayan Sanas Anr. v. Manikchand Motichand Shah and Anr[196] SCR 59 Sinha, CJ., held that the provisions of s. 88 are entirely prospective and apply to such lands as are described in clauses (a) to (d) of s. 88(1) from which the Act came into operation, namely, December 28, 1948 and are not a confiscatory in nature so as to take away from the tenant the status of a protected tenant already accrued to him. In Mohanlal Chunilal Kothari v. Tribhovan Haribhai Tamboli, [1963] 2 SCR 707 a Constitution Bench speaking through Sinha, CJ. held that Clauses (a) to (c) of s. 88(1) applies to things as they were on the date of the commencement of the Act of 1948 whereas clause (d) authorised the State Govt. to specify certain areas as being reserved for urban non-agricultural or i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ....... the appellant cannot claim the benefit of s. 31; nor can it be said that his interest as protected tenant is saved by s. 89(2)(b). This in our opinion is a plain effect of the provisions contained in s. 31, s. 88 and s. 89(2)(b) of the 1948-Act . In Parvati Ors. v. Fatehsinhrao Pratapsinhrao Gaekwad, [1986] 3 SCR 793. the facts were that the Government issued a notification on May 21, 1958 under section 88(1)(b) of the 1948 Act reserving the land within the municipal limits of the city of Baroda for non- agricultural and industrial development. The appellant's husband had taken possession of certain lands situated in the city of Baroda on lease from the respondent-trustee. The respondent laid the suit against the appellant for recovery of arrears of rent. The defence was that the suit was not maintainable. Dealing with the effect of the notification issued under section 88(1)(b), this Court held that the notification had retrospective operation and subject to certain exceptions provided in sub-section (2) of s. 88 all rights, title, obligations etc. Accrued or acquired under the said Act ceased to exist. Therefore, s. 89(2)(b) was inapplicable to protect such ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d purchaser was postponed by operation of s. 32-F of the Act till the cessation of the disability or one year after the death of the landlord. In such situation can the son during the life time of the father, has right to sell the same property to the respondents, and whether such a sale made on August 19, 1964 to the respondents was valid and binds the appellant. In Raghavachariar's Hindu Law Principles and Precedents, Eighth Ed., 1987 in s. 275 at p. 39 stated thus: So long as the joint family remains undivided, the senior member of the family is entitled to manage the family properties, and the father, and in his absence, the next senior-most male member of the family, as its manager provided he is not incapacitated from acting as such by illness or other sufficient cause. The father's right to be the manager of the family is a survival of the patria potastas and he is in all cases, naturally, and in the case of minor sons necessarily the manager of the joint family property. In the absence of the father, or if he resigns, the management of the family property devolves upon the eldest male member of the family provided he is not wanting in the necessary capacity to m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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