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Digambar Gopal Vs. Vithoba Jogu - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberLetters Patent Appeal No. 51 of 1951
Judge
Reported inAIR1954Bom450; (1954)56BOMLR385; ILR1954Bom671
ActsBombay Tenancy Act, 1939 - Sections 2(A), 3, 4, 4(1) and 5(2); Tenancy Law; Code of Civil Procedure (CPC), 1908
AppellantDigambar Gopal
RespondentVithoba Jogu
Appellant AdvocateK.B. Sukhtankar, Adv.
Respondent AdvocateK.N. Dharap and ;M.M. Virkar, Advs.
Excerpt:
.....as defined under section 3 not applicable as said section came into effect during pendency of suit - act not retrospective in nature so as to effect even pending suit - respondent not tenant on date of introduction of legislation - held, tenant not protected under act. - - ramchandra laxman (a)',the tenancy legislation has not always been well drafted and we must take the legislation as it is. that made it necessary that the rights of the parties should be decided irrespective of the legislation unless the legislation showed quite clearly an intention to make the act retrospective so as to affect even pending suits......874 of 1946, d/-10-11-1949 (bom) (b). in both these cases the view which was taken was that the word 'tenant' in the act of 1939 means a person whose tenancy had not expired at the date when the act came into force. there are of course in the act itself provisions under which certain persons are deemed to be protected tenants.and mr. dharap who appears on behalf of the respondent relies upon section 4(1)(b) which says that certain tenants shall be deemed to be protected tenants if those persons held any land and cultivated it continuously for a period of not less than six years immediately preceding 1-4-1944, and were evicted from such land on or after such: date otherwise than by order of a competent authority on any of the grounds specified in section 5, sub-section (2).this.....
Judgment:

Bavdekar, J.

1. This is a Letters Patent Appeal arising from a judgment in a suit for ejectment.

2. It appears from the evidence that the appellant plaintiff terminated the contractual tenancy by a notice given to the respondent evicting him from 31-3-1945. The notice was actually given on 30-11-1944. There was in force the Bombay Tenancy Act, 1939, but it has not been made applicable to the area in which the land in suit was situated. Subsequently, however, the Bombay Tenancy Act was amended and the Amended Act has been made applicable to the area in which the land is situated pending the suit. It was under this Amended Act that the defendant tenant took up a contention that he was a protected tenant, and tiie only question which arises in the present appeal is whether he is a protected tenant.

3. The question is covered by two decisions of the division benches of this Court. One in --'Ramchandra Atmaram v. Ramchandra Laxman', S. A. NO. 335 of 1948, D/- 14-10-1949 (Bom) (A) and the other in -- 'Vaman Narayan Ketkar v. Lax-man Chaytya Vedga', S. A. No. 874 of 1946, D/-10-11-1949 (Bom) (B). In both these cases the view which was taken was that the word 'tenant' in the Act of 1939 means a person whose tenancy had not expired at the date when the Act came into force. There are of course in the Act itself provisions under which certain persons are deemed to be protected tenants.

And Mr. Dharap who appears on behalf of the respondent relies upon Section 4(1)(b) which says that certain tenants shall be deemed to be protected tenants if those persons held any land and cultivated it continuously for a period of not less than six years immediately preceding 1-4-1944, and were evicted from such land on or after such: date otherwise than by order of a competent authority on any of the grounds specified in Section 5, Sub-section (2).

This Sub-section, however, has in terms no application because it applies only in regard to persons who were evicted from the land on and after 1-4-1944, otherwise than by order of a competent authority on any of the grounds specified in Sub-section (2) of Section 5. Mr. Dharap says that we should interpret the word 'evicted' to mean a person whose tenancy has been terminated by an act on the part of the landlord by giving a notice. But we see no authority whatsoever for interpreting that word in that sense.

It is true that it does seem anomalous that persons who had held land continuously for a period of not less than six years immediately preceding 1-4-1944, were to be regarded as protected tenants if they were evicted from such land on or after such date otherwise than by order of a competent Court on any of the grounds specified in Sub-section (2) of Section 5, but that in case they remained on the land, they were not to be regarded as protected tenants.

But as pointed out by the division bench in -- 'Ramchandra Atmaram v. Ramchandra Laxman (A)', the tenancy legislation has not always been well drafted and we must take the legislation as it is. It would be doing violence to the language of the section to say that it required a person to be regarded as evicted even when he was still on the land.

4. In that case we must fall back upon the definition of the 'protected tenant' in Section 3. It has got to be remembered in the first instance that this section was made applicable during the pendency of the suit filed by the appellant. That made it necessary that the rights of the parties should be decided irrespective of the legislation unless the legislation showed quite clearly an intention to make the Act retrospective so as to affect even pending suits. That in the first instance the legislation does not appear to have done.

It is true that some intention of retrospectivity has been shown. But Acts must not be interpreted in a greater retrospective sense than the language of the section compels one to do and it is no ground for holding that an Act has greater retrospectivity because the intention to give it some retrospectivity is quite clear. Mr. Dharap says that in that case he would argue that the word 'tenant' in Section 3 of the Act should be made to include 'a tenant whose tenancy has expired'.

Now, tenancy legislation usually protects persons whose contractual tenancy has expired but provided that he is a tenant at the date of the introduction of the tenancy legislation. But in this case the respondent was not such a tenant. Mr. Dharap says that if we look at Section 4, we must come to the conclusion that the word 'tenant' must there be held to include even persons who were tenants once but whose tenancy expired before the Act came into force. That is undoubtedly so.

That would, however, only be a ground for holding that the word 'tenant' has not always been used in the Act in the sense of a person who is a tenant at the time when the Act came into force. We notice, however, that in Section 2 (A) there is a definition of persons who are deemed to be tenants. That is again therefore an argument in favour of not construing the word 'tenant' to mean a tenant unless he falls either with the ordinary definition of the word 'tenant' or his case falls in Section 3.

In any case two division benches have taken the view that the Act of 1939 does not apply where the tenancy has been brought to an end by a notice given by the landlord prior to the coming into force of the Act unless the persons fall within the definition which made certain persons by a legal fiction protected tenants even when they are not otherwise so under the Act.

5. We, therefore, allow the appeal and restorethe decree of the trial Court. The respondentwill pay the appellant's costs throughout.

6. Appeal allowed.


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