Nabi Bavadin Nadaf vs Murigeppa Dhulappa Bulli

Chagla, C.J.

(1) The question which arises in. this re visional application is whether the petitioner is a debtor within the meaning of the Bombay Agricultural Debtors Relief Act. He has satisfied all the qualifications, and the only controversy is with regard to the qualification u/s 2(5)(a)(iv). That clause provides that a ''debtor'' means an individual whose annual income from sources other than agriculture and manual labour does not exceed 33 per cent, of his total annual income, or does not exceed Rs. 500, whichever is greater. Now, in this case, the agricultural income of the debtor is Rs. 200 and the non-agricultural income is Rs. 340. Therefore, it is clear that the non-agricultural income does not exceed Rs. 500. But the view taken by both the Courts below is that, inasmuch as the non-agricultural income exceeds 33 per cent. of his total income, he is not a debtor. Now, the Judges below have overlooked the fact that the Legislature has hot used the expression "and" but "or" and has further emphasized that fact by stating "whichever (of the two amounts mentioned) is greater." Therefore, in this case, as the non-agricultural income is less than Rs. 500, the debtor satisfies the qualification laid down by the statute.

(2) Reliance has been placed by Mr. Lokur on a judgment of Mr. Justice Shall in -- Anant Dharma Patil Vs. Mangaldas Rupchand Gujarathi and Others, . Now the learned Judge there was called upon to construe, not Section 2(5)(a)(iv), but Section 2(5)(b)(iv) which deals with an undivided Hindu family; and Section 2(5)(b)(iv) provides that a ''debtor'' means an undivided Hindu family the annual income of which from sources other than agriculture & manual labour does not exceed 40 per cent. of its total annual income and the aggregate of such incomes of the members of which does not exceed Rs. 1,500. Therefore, in the case of an undivided Hindu family two conditions have got to be satisfied: the non-agricultural income must bear a certain proportion to the total income, and it must not exceed Rs. 1,500. When the learned Judge was construing this sub-clause, it was argued before him that "or" must be read in place of "and". In support of this contention, the learned Judge''s attention was drawn to Section 2(5)(a)(iv), and the learned Judge took the view that "or" in that sub-clause meant "and", and in the case of the individual also both the conditions must be satisfied just as in the ease of an undivided Hindu family; Now, if Mr. justice Shah was called upon to construe Section 2(5) (a) (iv), I would be bound by the decision and I would have certainly followed it. But it is clear that the observations of Mr. Justice Shah, although they are entitled to respect, are obiter. With very great respect to the learned Judge, not only was he confronted with the difficulty about the Legislature having used the word "or" in Section 2(5)(a)(iv) and used the expression "and" in Section 2(5)(b)(iv), but he was also confronted with the difficulty that in Section 2(5)(a)(iv) the Legislature has used the expression "whichever is greater." The learned Judge overcame this difficulty by suggesting that the expression "whichever is greater" should be omitted altogether in construing Section 2(5)(a)(iv). Now, I do not see how--again speaking with respect--it is possible to omit a particular expression used, by the Legislature in construing a section. Effect must be given to the intention of the Legislature by looking at the language used by the Legislature; and if the Legislature deliberately and advisedly uses different language in the same section dealing with two different entities and emphasizes the difference by using the expression "whichever is greater", I do not see how it is possible to say that the position of an undivided Hindu family is the same u/s 2(5)(b)(iv) as the position of an individual u/s 2(5)(a)(iv). In my opinion, therefore, inasmuch as the non-agricuitural income of the debtor is less than Rs. 500, the condition laid down in Section 2(5)(a)(iv) is satisfied, and the Courts below were wrong in holding that the applicant is not a debtor.

(3) I would, therefore, set aside the order of the trial Court and direct that the application of the petitioner should be disposed of according to law.

(4) Mr. Chitale, who appears for opponent No. 17, urges that he should be given his costs because he should never have been made ft party inasmuch as the Mamlatdar who advanced the tagavi loan to the petitioner is not a creditor whose debts can be adjusted under the Act. Now, this may be a very sound contention. But I fail to understand why Mr. Chitale''s client has been waiting all this time to urge this point. He never raised this point in the Court of first instance, nor in the appellate Court. He should have asked the trial Court long ago to strike his name off as being unnecessary as a party. He remained on the record in the two Courts below, and the petitioner is right in bringing him on the record as a party.

(5) Rule made absolute. Mr. Lokur''s clients to pay the costs throughout.

(6) Rule made absolute