GORDHANBHAI MOTIBHAI BARVA v. MOHANBHAI JITABHAI — 1972 DIGILAW 30 (GUJ)

P. D. DESAI, J. ( 1 ) THIS petition raises an interesting question as to the interpretation of sub-sec. (2) of sec. 880 of the Bombay Tenancy and Agricultural Lands Act 1948 (hereinafter referred to as the Act) and it arises in these circumstances. ( 2 ) THE petitioner is the occupant and the respondent is the tenant of 5. No. 981 admeasuring 9 acres 3 gunthas of village Picchuwada Taluka Sankheda District Baroda. The petitioner having made an application under sec. 88c of the Act obtained a certificate that the said land was exempt from the provisions of secs. 32 to 32r of the Act. The date on which this certificate was issued is not capable of being ascertained from the record. It appears that the respondent thereafter moved the State Government by an application praying that the said certificate should be revoked under the provisions of sec. 88d of the Act inasmuch as the conditions for exempting the land under sec. 88c had ceased to exist. Thereupon the State Government by its order dated 6th December 1963 revoked the certificate with effect from the date of the said order. The order was published in the Gujarat Government Gazette dated 19th December 1963 and a copy of the order was served on the petitioner on 9th February 1964. ( 3 ) THE petitioner thereafter issued a notice dated 27th April 1964 terminating the tenancy of the respondent in respect of the said land and the said notice was served on the respondent on 2nd May 1964. On 14th December 1964 the petitioner filed an application for possession of the said land under sec. 88d read with sec. 31 and sec. 29 of the Act on the ground that the land in question was bona fide required by him for personal cultivation. The application was filed before the Mamlatdar of Sankheda who by his judgment and order dated 16th September 1966 dismissed the said application inter alia on the grounds that the petitioner had failed to prove that he bona fide required the land in question for personal cultivation and that the income from the suit land would be the main source of income for the petitioner and further that the application for possession was time barred as it was not filed within one year from the date specified in the order made under sec. 88d revoking the certificate issued under sec. 88c of the Act. The petitioner carried the matter in appeal and the Special Deputy Collector Baroda who heard the said Appeal reversed the decision of the Mamlatdar of Sankheda on the points decided against the petitioner. The Special Deputy Collector however confirmed the decision of the Mamlatdar on a different ground and dismissed the appeal on the ground that the petitioner had not proved that the land stood in the name of his ancestor or himself on 1st January 1952 as required by sec. 31a (d) of the Act. The petitioner thereupon carried the matter in revision before the Gujarat Revenue Tribunal. The Tribunal reversed the decision of the Special Deputy Collector on the sole point decided against the petitioner. The Tribunal however upheld the order on the Special Deputy Collector on a different ground the ground being that the application for possession filed by the petitioner was time barred and dismissed the revision application. In the opinion of the Tribunal since the application for possession for the land in question was filed by the petitioner after the expiry of period of one year from the date specified in the order revoking the exemption certificate the application was time barred having regard to the provisions of sub-sec. (2) of sec. 88d of the Act. It is this decision of the Tribunal which is impugned before me in this petition. ( 4 ) AT the hearing this petition Mr. C. K. Patel learned advocate appearing on behalf of the petitioner contended before me that the Tribunal had misconstrued the provisions of sec. 88d and more particularly the provisions of sub-sec. (2) thereof. It was urged that sub-sec. (2) of sec. 88d prescribes a period of limitation for terminating the tenancy and initiating proceedings for possession of land held by the erstwhile excluded tenant and that though the period of limitation according to the literal construction of the section would start running from the date specified in the order issued under sub-sec (1) of sec 88d on principles of fair play and natural justice the expression within one year from such date was required to be construed so as to mean one year from the date of the knowledge of such date. It was contended that the revocation of the certificate issued under sec 88c in exercise of the powers conferred by sec. It was contended that the revocation of the certificate issued under sec 88c in exercise of the powers conferred by sec. 88d vitally affected the rights of a landlord and it was essentially fair and just that the contents of the said decision should be communicated to the party concerned before the period of limitation starts running against such party. Unless the landlord has knowledge about the revocation of the certificate as well as about the specified date with effect from which the revocation takes effect he would have no occasion to terminate the tenancy of the erstwhile excluded tenant by initiating proceedings under the relevant provisions of the Tenancy Act. The submission therefore was that principles of fair play and justice required that the period of limitation prescribed in sub-sec. (2) of sec. 88d should start running not from the date specified in the order made under sub-sec. (1) of sec. 88d but from the knowledge of the landlord about the revocation of the certificate and the specification of the date with effect from which such revocation is to take place. This briefly stated was the contention urged on behalf of the petitioner. ( 5 ) NOW in order to appreciate the contention raised on behalf of the petitioner it would be necessary to briefly refer to the relevant provisions of the Act. Under sec. 32 of the Act on the first day of April 1957 which is referred to as the tillers day in the Act subject to other provisions of the Act every tenant of agricultural land is deemed to have purchased from his landlord free from all encumbrances subsisting thereon on the said day the land held by him if the conditions laid down in the said section are fulfilled. Secs. 88 88 88 and 88c are sections which are in the nature of exceptions to sec. 32. We are in the present case concerned with sec. 88c and the said section in so far as it is relevant provides that save as otherwise provided by the Bombay Tenancy and Agricultural Lands (Gujarat Amendment) Act 1960 nothing in secs. 32 to 32r (both inclusive) shall apply to lands leased by any person if such land does not exceed an economic holding and the total annual income of such person including the rent of such land does not exceed Rs. 1500/ -. For seeking exemption under sec. 32 to 32r (both inclusive) shall apply to lands leased by any person if such land does not exceed an economic holding and the total annual income of such person including the rent of such land does not exceed Rs. 1500/ -. For seeking exemption under sec. 88c the person concerned has to make an application in the prescribed form to the Mamlatdar and on receipt of such application the Mamlatdar after holding an inquiry is required to decide whether the land leased by the person concerned is exempt from the provisions of secs. 32 to 32r under sub-sec. (1) of sec. 88c. After the Mamlatdar decides that the lands are so exempt the Mamlatdar is required to issue a certificate in the prescribed form to such person. ( 6 ) THE next group of sections which is required to be noticed commences with sec. 325 which defines the terms certified landlord and excluded tenant respectively meaning a person who holds a certificate issued under sub-sec. 4 of sec. 88c and a tenant of the land in respect of which such certificate is issued. Sec. 32t deals with special rights of a certified landlord to terminate tenancy of the excluded tenant on the ground of bona fide requirement of the land for personal cultivation and sec. 32u provides for cases in which tenants of lands mentioned in sec. 88c are deemed to Lave purchased the land and makes certain other incidental provisions. he next important provision and the one with which we are immediately concerned is sec. 88d which might be fully reproduced :-880 (1) Notwithstanding anything contained in secs. 88 88 88 and 88c if the State Governments is satisfied (I) in the case of an area referred to in clause (b) of sec. 88 that the chances of non-agricultural or industrial development are remote or that after the eviction of tenants from any land in such area the land has not been used for a non-agricultural or industrial purpose. (II) that the lands transferred by a Bhoodan Samiti are not cultivated personally by the transferees or are alienated by them. (III) in the case of lands referred to in clause (b) of sec. (II) that the lands transferred by a Bhoodan Samiti are not cultivated personally by the transferees or are alienated by them. (III) in the case of lands referred to in clause (b) of sec. 88b that the trust is unable to look after the property or has mismanaged it or that there are disputes between the trust and the tenants and (IV) in the case of lands referred to in sec. 88c that the annual income of the person has exceeded Rs. 1500/or that the total holding of such person exceeds an economic holdingthe State Government may by order published in the prescribed manner direct that with effect from such date as may be specified in the order such land or area as the case may be shall cease to be exempted from all or any of the provisions of this Act from which it was exempted under any of the sections aforesaid and any certificate granted under sec. 88b or 88c as the case may be shall stand revoked. (2) Where any such land or area ceases to be so exempted then in the case of a tenancy subsisting on the date specified in the order issued under sub-sec. (1) the landlord shall be entitled to terminate such tenancy under sec. 31 within one year from such date and the tenant unless his tenancy is so terminated shall have a right to purchase the land within one year from the expiry of the period during which such landlord is entitled to terminate the tenancy. The provisions of secs. 31 to 31d (both inclusive) and secs. 32 to 32r (both inclusive) shall so far as may be applicable apply to such termination of tenancy and to the right of the tenant to purchase the land. I shall presently come back to sec. 88d but to complete reference to the relevant sections it would be convenient here to refer to section 31 which is referred to in sub-sec. (2) of sec. 88d8 Sec. 31 in so far as it is relevant provides that notwithstanding anything contained in sec. 14 and 30 but subject to sec. 31a to 31d (both inclusive) a landlord may after giving notice and making an application for possession as provided in sub-sec. (2) of sec. 88d8 Sec. 31 in so far as it is relevant provides that notwithstanding anything contained in sec. 14 and 30 but subject to sec. 31a to 31d (both inclusive) a landlord may after giving notice and making an application for possession as provided in sub-sec. (2) terminate the tenancy of any land except a permanent tenancy if the landlord bona fide requires the land for the purposes mentioned in the said section. The application for possession is to be made under sec. 29 of the Act. These are the relevant sections of the Act which have to be borne in mind and against the background of which the provisions of sec. 88d would require to be construed. ( 7 ) REVERTING now to sec. 88d it confers power on the State Government to make an order directing that the concerned lands shall cease to be exempted from the provisions of sec. 88c and revoking the certificate issued thereunder on its being satisfied that the actual income of the person holding the certificate has exceeded Rs. 1500/or that the total holding of such person exceeds an economic holding. The power of the State Government to issue the necessary direction and revoke the certificate is thus dependent upon its satisfaction that the conditions prescribed in sec. 88c which earned the exemption have ceased to exist. The power of the State Government to issue the necessary direction and revoke the certificate is furthermore to be exercised by an order published in the prescribed manner and the State Government is required to specify in the said order the date with effect from which the concerned lands would cease to be exempted under sec. 88c and the certificate issued thereunder would stand revoked. The manner in which the order is to be published is prescribed in Rule 54 of the Bombay Tenancy and Agricultural Lands Rules 1956 which provides that an order under sub-sec. (1) of sec. 88d shall be published in the official gazette and a copy thereof shall be served on the landlord and the tenant of the land to which the order relates by the Mamlatdar within whose jurisdiction the land is situate. ( 8 ) NOW the question regarding the nature of power conferred upon the State Government under sec. (1) of sec. 88d shall be published in the official gazette and a copy thereof shall be served on the landlord and the tenant of the land to which the order relates by the Mamlatdar within whose jurisdiction the land is situate. ( 8 ) NOW the question regarding the nature of power conferred upon the State Government under sec. 88d and the effect of the exercise of the power thereunder on the rights of a certified landlord came up for consideration before a Division Bench of this Court consisting of Bhagwati C. J. and Bakshi J. in Bai Jadav v. Durlabh Ranchhod X G. L. R. 727. The Division Bench in that case has taken the view that the function discharged by the State Government in making an order under sec. 88d is a quasi-judicial function since the exercise of power under the said section affects the right of property of the concerned landlord. It has been further held in the said decision that before making an order under sec. 88d the State Government must comply with the principles of natural justice and it has been indicated that the authority exercising the power of the State Government under sec. 88d must given an opportunity to the landlord to make his submission before final decision is taken by the State Government under the said section. It has been made clear however that personal hearing is not necessarily required to be given by the State Government to the concerned landlord and that principles of natural justice would be satisfied if the landlord is given an opportunity to make written submission in the course of the said inquiry. It would thus appear that though an inquiry under sec. 88d is a quasi-judicial inquiry which requires that the landlord should be given an opportunity of making his submission before the State Government decides to revoke the certificate under sec. 88d it is out obligatory for the State Government to give a personal hearing to the concerned landlord. Besides an order made under sec. 88d is a quasi-judicial inquiry which requires that the landlord should be given an opportunity of making his submission before the State Government decides to revoke the certificate under sec. 88d it is out obligatory for the State Government to give a personal hearing to the concerned landlord. Besides an order made under sec. 88d is not required to be pronounced like a judicial order much less it is required to be pronounced in the presence of the party whose rights are affected by it nor is it the requirement of the Act or the Rules that the date of the pronouncement if any of the order should be communicated to the parties affected by it. It is for these reasons presumably that sec. 88d requires the publication of the order in the prescribed manner and the prescribed manner of publication is publication in the Official Gazette and by service of a copy of the order on the concerned landlord and tenant. In any case it cannot be gainsaid that the Legislature has clearly recognised that since an order made under sec 88d vitally affects the rights of the parties namely the landlord and the tenant it would not be just and proper for the State Government to revoke the certificate issued under sec. 88c except by publishing the order of revocation in the prescribed manner. Sec. 88d read with Rule 54 therefore clearly postulates the necessity of the communication of the order to the party affected thereby and by the use of mandatory words an obligation is therefore cast on the State Government to publish the order inter alia by serving a copy thereof on the concerned landlord and tenant through the Mamlatdar within whose jurisdiction the land is situate. This statutory requirement has a great bearing on the question which arises for my determination. ( 9 ) SUB-SEC. (2) of sec. 88d provides for the situation following upon the land ceasing to be exempt under sec. 88c upon revocation of the certificate. Sub-sec. (2) provides that in the case of a tenancy subsisting on the date specified in the order issued under sub-sec. (1) of sec. 88d the landlord shall be entitled to terminate such tenancy under sec. (2) of sec. 88d provides for the situation following upon the land ceasing to be exempt under sec. 88c upon revocation of the certificate. Sub-sec. (2) provides that in the case of a tenancy subsisting on the date specified in the order issued under sub-sec. (1) of sec. 88d the landlord shall be entitled to terminate such tenancy under sec. 31 within one year from such date and the tenant unless his tenancy is so terminated shall have a right to purchase the land within one year from the expiry of the period during which such landlord is entitled to terminate the tenancy. Sub-sec. (2) further provides that the provisions of sec. 31 to 31d and 32 to 32r shall so far as may be applicable apply to such termination of tenancy and to the right of the tenant to purchase the land. It is thus clear that on revocation of the certificate under sec. 88d the landlord is entitled in cases where the tenancy is subsisting on the date specified in the order issued under sub-sec. (1) of sec. 88c to terminate such tenancy under sec. 31 of the Act and if the tenancy is not terminated within the prescribed time-limit the tenant becomes entitled to purchase the land. Sec. 31 of the Act provides for the termination of the tenancy after giving notice and making an application for possession. The provisions of sec. 88d sub-sec. (2) therefore entitle the landlord to terminate subsisting tenancy by giving a notice and filing an application within a period of one year from the specified date. It is not in dispute before me that the period of one year prescribed in sub-sec. (2) of sec. 88d is a period of limestone and the question which arises for my consideration is as to whether on a true and proper construction of the said provision the period of limitation starts running from the date specified in the order issued under sub-sec. (1) of sec. 88d or from the knowledge of the landlord about the specification of such date. In other words the question is whether the Legislature intended that the period of limitation would start running from the date mentioned in the said order irrespective of whether or not the concerned landlord has knowledge about the order under sec. (1) of sec. 88d or from the knowledge of the landlord about the specification of such date. In other words the question is whether the Legislature intended that the period of limitation would start running from the date mentioned in the said order irrespective of whether or not the concerned landlord has knowledge about the order under sec. 88d having been made by the State Government as well as about the contents of such order. ( 10 ) NOW the first and primary rule of construction of statutes is that the intention of the Legislature must be found in the words used by the Legislature itself. If the words used are capable of one construction only then it would not be open to the courts to adopt any other hypothetical construction on the ground that such hypothetical construction is more in consonance with the object and policy of the Act. However if two constructions are possible one of which advances the object and policy of the Act and the other which defeats it would be permissible and legitimate for the court to adopt the former construction in preference to the latter in order to effectuate the intention of the Legislature. Now so far as sec. 88d is concerned there is no doubt that the intention of the Legislature is to confer upon the landlord the right to terminate the subsisting tenancy of the erstwhile excluded tenant within a period of one year from the date which might be specified in the order revoking the certificate issued under sec. 88c and if the tenancy is not terminated within the specified time-limit to clothe the tenant with a right to purchase the land. The question then is whether by literal and mechanical construction of the relevant words of sub-sec. (2) of sec. 88d on the assumption that it is the only possible construction it would be proper to render ineffective the right which the Legislature intended to confer upon the landlord under sec. 88d sub-sec. (2) even in cases where the landlord does not know about the making of the order and is himself not to be blamed for not knowing about the order having been made. 88d sub-sec. (2) even in cases where the landlord does not know about the making of the order and is himself not to be blamed for not knowing about the order having been made. On the other hand if it is possible to reasonably construe the said provision so as to avoid such a consequence and to advance the policy and object of the Act it would be legitimate for the court to do so and we must therefore inquire whether the relevant provision i. e. the requirement of sub-sec. (2) of sec. 88d that the landlord should terminate the subsisting tenancy of land in respect of which the certificate issued under sec. 88c is revoked within one year of the date specified in the order is capable of the construction for which the petitioner contends. ( 11 ) NOW it is indisputable having regard to the decision in Bai Jadavs case (supra) that an order made under sec. 88d vitally affects the rights of the landlord and the tenant of the land in question. As a result of the revocation of the certificate the land ceases to be exempt from the provisions of sec. 32 to 32r and in the case of a tenancy subsisting on the date specified in the said order the concerned landlord becomes entitled to terminate the tenancy and recover possession of the land from the tenant within the time limit specified in the said section. If the concerned landlord fails to terminate the tenancy within the specified time limit the tenant becomes entitled to purchase the land within one year from the expiry of the period during which the landlord is entitled to terminate the tenancy. Having regard to the consequences which ensue from an order made under sec. 88d such an order like any decision which has the effect of affecting the rights of the parties must in fairness and interest of justice be brought into force only from the date of the knowledge actual or constructive of the party concerned about the order as well as about the contents of the order. 88d such an order like any decision which has the effect of affecting the rights of the parties must in fairness and interest of justice be brought into force only from the date of the knowledge actual or constructive of the party concerned about the order as well as about the contents of the order. To make the order operative without the knowledge of the party about it having been made might in a given case render ineffective he statutory right which is conferred upon the landlord to terminate the tenancy and recover possession of the land in question within the time limit specified in sec. 88d; this would be so even in cases where the landlord for no fault of his does not know about the fact of the making of the order much less about the date specified in the order. The knowledge of the party either actual or constructive about the revocation of the certificate with effect from the specified date is therefore an essential element which must be satisfied before the decision of the State Government under sec. 88d can be brought into force. The principles of fair play and natural justice would require that the order under sec. 88d must be communicated to the landlord so that he is fixed with the knowledge about the specified date with effect from which the land in question has ceased to be of the exempted category and his right to terminate tenancy within the specified time limit has come into existence. ( 12 ) THE view which I am inclined to take is fortified by the requirement of sub-sec. (1) of sec. 88d which authorises the State Government to take an action thereunder by an order published in the prescribed manner. A little earlier in the course of this judgment I have considered the reasons which might have impelled the Legislature to make such a provision and it would appear that the Legislature itself has in so many words indicated that the communication of the order made under sec. 88d inter alia by personal service on the landlord is a condition essential to the making of the order. 88d inter alia by personal service on the landlord is a condition essential to the making of the order. The Legislature has clearly recognised that mere making of the order by the State Government and specifying in the said order the dale with effect from which the revocation of the certificate is to operate would not be sufficient because the order is not required to be pronounced in the presence of the parties and the date of the pronouncement if any of the order is not required to be communicated to the parties. The necessity to communicate an order made under sec. 88d to the party affected by it is therefore not merely a requirement of fair play and natural justice but flows also from the mandate given by the Legislature. ( 13 ) IN my opinion therefore the conclusion is inevitable that the knowledge either actual or constructive of the party affected by the revocation of the certificate issued under sec. 88c about an order having been made under sec. 88d as well as about the date specified in the said order with effect from which the revocation takes place is an essential prerequisite for the proper working out of the rights of the parties affected by the said order. In order to effectuate the true intention of the Legislature it would be proper to construe the expression within one year from such date appearing in sub-sec. (2) of sec. 88d as within one year from the date when the order made under sec. 88d becomes known to the party either actually or constructively. In other words on a true and proper construction of sub-sec. (2) of sec. 88d the landlords right to terminate subsisting tenancy on the land which ceased to be exempt would be exercisable by him not within one year from the date specified in the order issued under sec. 88d (1) but from the date on which the contents of the order made under sec. 88d become known to the landlord actually or constructively. If the landlord fails to terminate the tenancy within such period the tenant shall have a right to purchase the land within one year from the expiry of the period during which the landlord is entitled to terminate the tenancy as aforesaid. 88d become known to the landlord actually or constructively. If the landlord fails to terminate the tenancy within such period the tenant shall have a right to purchase the land within one year from the expiry of the period during which the landlord is entitled to terminate the tenancy as aforesaid. ( 14 ) THE view which I am inclined to take is supported in principle by two decisions of the Supreme Court and two decisions of the Bombay High Court. In Harish Chanara v. Dy. Land Acquisition officer A. I. R. 1961 S. C. 1500 the Supreme Court was concerned with the interpretation of the expression within six months from the date of the Collectors award appearing in the proviso to sec. 18 of the Land Acquisition Act 1894 Under the provisions of sec. 18 any person interested in the acquired land who has not accepted the award may by written application made to the Collector require that the matter be referred by him for determination of the Court. The proviso to sec. 18 deals with the period of limitation and prescribes that every such application shall be made (a) if the person making it was present or represented before the Collector at the time when the award was made within six weeks from the date of the Collectors award or (b) in other cases within six weeks of the receipt of the notice from the Collector under sec. 12 (2) of the Land Acquisition Act or within six months from the date of the award whichever shall first expire. In the case before the Supreme Court the award was made on March 25 1951 However it was only on January 13 1953 that the person interested in the acquired land came to know about the award having been made. The person interested thereupon made an application on February 24 1953 to the Collector requiring him to refer the matter to the court under sec. 18. A Division Bench of the Allahabad High Court took the view that the application filed by the appellant under sec. 18 of the Act was barred by time because it was filed beyond the period of six months from the date of the Collectors award. 18. A Division Bench of the Allahabad High Court took the view that the application filed by the appellant under sec. 18 of the Act was barred by time because it was filed beyond the period of six months from the date of the Collectors award. The Supreme Court in dealing with the question observed as under:-IF the award is treated as an administrative decision taken by the Collector in the matter of the valuation of the property sought to be acquired it is clear that the said decision ultimately affects the rights of the owner of the property and is that sense like all decisions which affect persons it is essentially fair and just that the said decision should be communicated to the said party. The knowledge of the party affected by such a decision either actual or constructive is an essential element which must be satisfied before the decision can be brought into force. Thus considered the making of the award cannot consist merely in the physical act of writing the award or signing it or even filing it in the office of the Collector; it must involve the communication of the said award to the party concerned either actually or constructively. . . . . . . . . . . . . . The knowledge on the party affected by the award either actual or constructive being an essential requirement of fair play and natural justice the expression the date of the award used in the proviso must mean the date when the award is either communicated to the party or is known by him either actually or constructively. IN arriving at its decision the Supreme Court also took into account the fact that under the Land Acquisition Act the Legislature had recognised by enacting sec. 12 (2) that the making of the award should be followed by the communication of the award to the party concerned and therefore by use of mandatory words an obligation was cast on the Collector to communicate the award immediately to the person concerned. The knowledge of the party concerned was therefore not only an essential requirement of fair play and natural justice but also the Legislative requirement as provided in sec. 12 of the Land Acquisition Act. The knowledge of the party concerned was therefore not only an essential requirement of fair play and natural justice but also the Legislative requirement as provided in sec. 12 of the Land Acquisition Act. ( 15 ) THE decision of the Supreme Court was followed in a later decision in State of Punjab v. Qaisar Begam A. I. R. 1963 S. C. 1604 which also was a case in which an application to the Collector was made more than one year after the award was made and filed. The delay in making the application had occurred because the person interested was not aware of the award having been made. The Collector accepted the application and made a reference. When the matter went before the civil Court the learned Subordinate Judge discharged the reference on the ground that it was incompetent it having been made beyond the period prescribed in the proviso to sec. 18 of the Act. The matter was carried to the High Court and the High Court set aside the order of the learned Subordinate Judge and directed him to deal with the reference on merit. The State of Punjab thereupon carried the matter in appeal to the Supreme Court and the Supreme Court again reiterated the principle laid down by it in Harish Chandras case (supra ). The Supreme Court in fact went a step further in that case and said that on the ratio of the decision in Harish Chandras ease not only should the party affected by the award must know that an award was made but the person interested must also know the essential contents of the award. In other words according to the Supreme Court not only the knowledge that an award was made was sufficient but the contents of the award must also be known to the person interested and the period of limitation would start running from the date of the knowledge of the contents of the award. ( 16 ) A similar view was taken by the Bombay High Court in Sursinghji Dajirai v. Secretary of State 28 B. L. R. 1213. Mr. Justice Fawcett has there taken the view that if the content justified it would be legitimate to construe the word the date of a given order as meaning the date when the order is served on the party affected by it. In support of this view Mr. Mr. Justice Fawcett has there taken the view that if the content justified it would be legitimate to construe the word the date of a given order as meaning the date when the order is served on the party affected by it. In support of this view Mr. Justice Fawcett has referred to an earlier judgment of the Bombay High Court reported in Mahinat v. Laxman I. L. R. 24 Bombay 426. ( 17 ) THE principal underlying the aforesaid decision was applied by the Bombay High Court in its unreported decision in Bhalchandra Parvati Shanker v. Muljibhai Bhagabhai (Special Civil Application No. 1525 of 1955 decided by Gajendragadkar and Gokhale JJ. on 5th September 1955 ). In that case an application for possession of the land let out to the tenant was made under the provisions of the Tenancy Act on the ground that the tenant had committed default in payment of three years rent before the date of the application. The Mamlatdar found that the tenant had committed two defaults in payment of rent and therefore directed the tenant to pay the arrears of rent within a period of 15 days under sec. 25 of the Act. When the matter went in appeal the Prant Officer took the same view and directed that the arrears of rent should be paid within fifteen days from the date of his order. The order was dated 27th June 1953 and if the date of the order meant the date which the order bore the period of 15 days would have expired on 12th July 1953. The order in question was sent to the tenant by post on 1st July 1953 and was actually received by him on 8th July 1953. The order which was thus served on the tenant called upon him to pay the amount within 15 days from the 27th of June 1953 The tenant did not pay the amount on or before 12th July 1953 and on the motion of the landlords the Mamlatdar passed an order directing the tenant to deliver possession of the land in question to the landlords on 15th July 1953. The matter ultimately went before the Bombay Revenue Tribunal which took the view that the period of 15 days within which the tenant had to pay the defaulted amount would commence from the date when the order was served on the tenant. The matter ultimately went before the Bombay Revenue Tribunal which took the view that the period of 15 days within which the tenant had to pay the defaulted amount would commence from the date when the order was served on the tenant. In other words in the opinion of the Tribunal the period of 15 days was required to be accounted from 8th July 1953 when the tenant was fixed with the knowledge of the order. The Tribunal therefore set aside the order directing the tenant to deliver possession of the land to the landlord. The decision of the Tribunal was challenged in the said writ petition before the Bombay High Court and it was urged on behalf of the landlords that the words used in sec. 25 of the Tenancy Act were clear and they indicated that the period of 15 days must be counted from the date of the order that is the date which the order actually bears. The Bombay High Court declined to interfere with the decision of the Revenue Tribunal on two grounds:- first that in the exercise of its writ jurisdiction the High Court was not bound to interfere in every case where the words used in a section are misconstrued and secondly that there was ample authority in support of the view taken by the Revenue Tribunal that the period of 15 days within which the tenant had to pay the defaulted amount would commence from the date when the order was served on the tenant. In the opinion of the Bombay High Court the landlords contention that the expression from the date of order was misconstrued by the Tribunal was not valid and could not be accepted. This decision of the Bombay High Court which is decision under the Tenancy Act also clearly supports the view which I am inclined to talk. ( 18 ) THE next question which must of necessity arise for consideration then is as to how the fact of the knowledge either actual or constructive of the landlord about the making of an order under sec. 88d can be established or inferred in a given case. It can hardly be disputed that this is essentially a question of the fact and it is not possible to lay down any guiding principle which may govern all cases. 88d can be established or inferred in a given case. It can hardly be disputed that this is essentially a question of the fact and it is not possible to lay down any guiding principle which may govern all cases. The only point which requires to be clarified is that mere publication of the said order in the Official Gazette would not necessarily amount to constructive knowledge of the landlord about the order having been made or about the contents of the order. The concerned landlord would ordinarily be a small land-holder having regard to the fact that he was till the date of the making of the order under sec. 88d a certified landlord. It would not be unreasonable to assume that in a large number of cases such a landlord would be a person residing in a village where a copy of the Official Gazette may not even be available. Besides such a landlord may not in quite a few cases be a literate person. Mere publication in the Official Gazette cannot bring the order within the reach of the knowledge of such a person nor can it have the effect of attributing to such a person constructive knowledge of the order or the contents thereof. It would be too much to expect of such a person to peruse the Gazette from time to time and on that basis to attribute to him constructive knowledge about the making of the order. The publication of the order in the Official Gazette would not therefore ordinarily amount to fixing the concerned landlord with the neuralgia about the order having been made. The Legislature itself has clearly recognised this and provided by enacting in Rule 54 that the publication of the order shall be in a two-fold manner:- by publication of the order in the Official Gazette and by service of the copy of the order on the concerned landlord and tenant. In my opinion therefore since an order made under sec. The Legislature itself has clearly recognised this and provided by enacting in Rule 54 that the publication of the order shall be in a two-fold manner:- by publication of the order in the Official Gazette and by service of the copy of the order on the concerned landlord and tenant. In my opinion therefore since an order made under sec. 88d is not required to be pronounced in presence of the parties affected by it and its publication in the Official Gazette would not necessarily be tantamount to fixing the landlord with the knowledge about the order having been made unless there is clear evidence to the contrary the knowledge of the landlord about the said order having been made should ordinarily be fixed with reference to the date on which a copy of the order was served upon the landlord by the Mamlatdar within whose jurisdiction the land is situate. In other words unless there is specific evidence establishing prior knowledge of the landlord about the making of order through other sources the right of the erstwhile certified landlord to terminate subsisting tenancy on the land which has ceased to be exempt would come into existence on the date on which the order made under sec. 88d is communicated to the concerned landlord by service of a copy of the said order on him as contemplated by Rule 54 of the Bombay Tenancy and Agricultural Land Rules. ( 19 ) NOW applying the aforesaid principle to the facts of the present case it appears that a copy of the order made under sec. 88d was served upon the petitioner on 9th February 1954. The petitioner terminated the tenancy of the respondent by a notice which was served on the respondent on 2nd May 1964 and by filing an application for possession under sec. 31 read with sec. 29 of the Act on 14th December 1964. It appears prima facie. therefore that the tenancy was terminated within a period of one year as required by sub-sec. (2) of sec. 88d and the application for possession is therefore within time. If however the provisions of subsec. (2) of sec. 88d were correctly construed by the lower court it would have been open to the respondent to prove that the petitioner had knowledge aliened about the order made by the State Government under sec. (2) of sec. 88d and the application for possession is therefore within time. If however the provisions of subsec. (2) of sec. 88d were correctly construed by the lower court it would have been open to the respondent to prove that the petitioner had knowledge aliened about the order made by the State Government under sec. 88d as also about the contents thereof even prior to the date of the service of a copy of the said order on him by the Mamlatdar. It is but fair and proper therefore that proper opportunity should be given to the respondent to establish that fact. Besides since the Tribunal took the view that the application for possession was time-barred it having not been made within a period of one year from 6th December 1963 which was the date specified in the order made under sec. 88d the Tribunal also has not considered the case from the correct point of view and the question of limitation has not been fully examined on the evidence available on record in proper light. In these circumstances in my judgment the proper order which requires to be made in the present case is that the matter should be remanded to the Gujarat Revenue Tribunal with a direction that it will examine afresh the question whether the application for possession filed by the tenant was or was not time barred in the light of the observations made in this judgment. It would be open to the respondent to apply to the Tribunal for permission to lead additional evidence either before the Tribunal or before the lower authorities with a view to establishing that the petitioner was in fact in know of the order as well as of contents of the order made under sec. 88d of the Act even prior to the date of the service of a copy of the order on him and it such an application is made the Tribunal will consider the application on merits and dispose it of in accordance with law as well as in the light of the observations made in this judgment. ( 20 ) IN the result the petition is allowed. The decision dated 31st July 1968 given by the Gujarat Revenue Tribunal in TEN. ( 20 ) IN the result the petition is allowed. The decision dated 31st July 1968 given by the Gujarat Revenue Tribunal in TEN. A. 135 of 1968 is quashed and set aside in so far as it holds that the petitioners application for possession of the land in question was time barred. The matter is remanded to the Tribunal for rehearing and further inquiry on the question of limitation as well as on such other questions which might directly arise from the decision of the lower authorities and which have not already been decided by the Tribunal at the earlier stage. Rule made absolute with no order as to costs. .