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Ganpati Appa Kasar Vs. Maruti Bala Nagave and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSp. Civil Appln. Nos. 645, 839, 876, 951 and 1318 of 1959
Judge
Reported inAIR1962Bom75; (1960)62BOMLR802; ILR1961Bom28
ActsBombay Tenancy and Agricultural Lands Act, 1958 - Sections 25(2); Bombay Tenancy and Agricultural Lands (Amendment) Act, 1956 - Sections 25(2); Tenancy Law
AppellantGanpati Appa Kasar
RespondentMaruti Bala Nagave and anr.
Appellant AdvocateV.M. Limaye, ;M.V. Paranjape, ;G.N. Vaidya, ;R.B. Kotwal and ;U.R. Latif, Advs.
Respondent AdvocateG.N. Baidya, ;M.A. Rane, ;P.R. Patil, ;N.B. Kadam, ;S.B. Bhasme, ;M.B. Kadam and ; P.T. Patil, Advs.
Excerpt:
.....the period prescribed in the section. (2) nothing in this section shall apply to any tenant whose tenancy is terminated for non payment of rent if he has failed for any three years to pay rent within the period specified in section 14.'this section provided for relief against forfeiture of a tenancy for non-payment of rent. it has been contended that the amendment imposes a new obligation on a landlord to give an intimation to the tenant within three months of each default that his tenancy had been terminated for non-payment of rent, that there was no such obligation on him before 1st august 1956 and that consequently he could not have discharged this obligation in respect of defaults committed before 1st august 1956. it has also been urged that the right to terminate the tenancy and..........notice that the tenancy is terminated and the landlord gets a right to obtain possession of the land. a landlord cannot, however, take possession of the land immediately after the tenancy comes to an end. in order to get possession, he has to make an application to the mamlatdar. when the application is made to the mamlatdar, the tenant can claim relief against forfeiture under sub-section (1) of section 25 of the act. if he is granted relief, the tenancy will continue and the tenant will continue to hold the land, as if the tenancy had not terminated. before the act was amended in 1956, this relief could be refused to a tenant, if he had committed a default in the payment of rent for three years. after the amendment this circumstance alone would not debar a tenant from being relieved.....
Judgment:

Chainani, C.J.

(1) The question referred to the Full Bench relates to the interpretation of Section 25(2) of the Bombay Tenancy and Agricultural Lands Act, 1948, (hereinafter referred to as the Act). In order to decide this question, it is necessary to refer to two other Sections of the Act as they stood before the Act was amended in 1956. Section 14(1) provided that notwithstanding any agreement, usage, decree or order of a Court of law, the tenancy of any land held by a tenant shall not be terminated except on the grounds specified in this sub-section. One of the grounds specified in this sub-section was that the tenant had failed to pay in any year the rent of the land for that year, within the period prescribed in the section. The proviso to sub-section (1) stated:

'No tenancy of any land held by a tenant shall be terminated on any of the grounds mentioned in this sub-section, unless the landlord gives three months' notice in writing intimating the tenant his decision to terminate the tenancy and the ground for such termination.'

Under this section, therefore, the tenancy could be terminated on the ground of non-payment of rent, by giving three months' notice in writing to the tenant.

Section 25 of the Act, as it stood before it was amended in 1956, was as follows:-

'(1) Where any tenancy of any land held by any tenant is terminated for non payment of rent and the landlord files any proceeding to eject the tenant, the Mamlatdar shall c all upon the tenant to tender to the landlord the rent in arrears together with the cost of the proceeding, within fifteen days from the date of order, and if the tenant complies with such order, the Mamlatdar shall, in lieu of making an order for ejectment, pass an order directing that the tenancy had not been terminated and thereupon the tenant shall hold the land as if the tenancy had not been terminated.

(2) Nothing in this section shall apply to any tenant whose tenancy is terminated for non payment of rent if he has failed for any three years to pay rent within the period specified in section 14.'

This section provided for relief against forfeiture of a tenancy for non-payment of rent. Under Sub-section (2) this relief could not be claimed by a tenant, if he had not paid rent for three years, within the prescribed period. The other section to be considered is section 29. Sub-section (2) of this section states that no landlord shall obtain possession of any land held by a tenant except under an order of the Mamlatdar and that for obtaining such order e shall make an application in the prescribed form and within a period of two years from the date on which the right to obtain possession of the land is deemed to have accrued to him.

(2) In 1956 the Act was extensively amended. A new section 14 was substituted for old section 14. But there was no change so far as the right of the landlord to terminate the tenancy on the ground of non-payment of rent is concerned. Under the new section 14 also, the landlord can, terminate the tenancy by giving three months' notice, in case his tenant has not paid the rent within the prescribed period. Section 25 was also amended and the period, which the Mamlatdar is required to give to a tenant under sub-section (1), in order to enable him to pay the rent in arrears and the costs of the proceedings, was increased from 15 days to three months. In sub-section (2) of Section 25 for the words 'within the period specified in Section 14' the words 'and the landlord has given intimation to the tenant to that effect within a period of three months on each default' were substituted. These amendments came into force on 1st August 1956.

(3) The scheme of these three sections is clear. Section 14 gives a right to the landlord to terminate the tenancy, if his tenant has not paid the rent within the period prescribed. A default in the payment of rent does not however, automatically result in the termination of the tenancy. Non-payment of rent only gives a right to the landlord to terminate the tenancy a right which he may or may not exercise. It does not give him a right to obtain possession of the land. The tenancy does not, however, terminate, unless a notice of three months is given by the landlord and it is on the expiration of the period of the notice that the tenancy is terminated and the landlord gets a right to obtain possession of the land. A landlord cannot, however, take possession of the land immediately after the tenancy comes to an end. In order to get possession, he has to make an application to the Mamlatdar. When the application is made to the Mamlatdar, the tenant can claim relief against forfeiture under sub-section (1) of Section 25 of the Act. If he is granted relief, the tenancy will continue and the tenant will continue to hold the land, as if the tenancy had not terminated. Before the Act was amended in 1956, this relief could be refused to a tenant, if he had committed a default in the payment of rent for three years. After the amendment this circumstance alone would not debar a tenant from being relieved against forfeiture. He can be refused relief, if it is also shown that he had been informed about each default within three months of its occurrence. Looking at the matter from another point of view, the amendment imposes a new bar in the way of the landlord's fiting possession of his land on the ground of non-payment of rent. He has to prove not only that there were three defaults, but also that he had brought each default to the notice of the tenant within three months after it had been committed.

(4) The question, which arises for our consideration, is whether the amendment made in sub-section (2) of Section 25 applies in the case of defaults, which had occurred before the amendment came into force on 1st August 1956. This question arose for consideration in Dhundiraj Govind v. Ambaji Ramdas, special Civil Appln. No. 2558 of 1958, D/-15-11-1958 (Bom) in that case the tenant had committed defaults in the payment of rent for three years 1953-54, 1954-55 and 1055-56. On 16-7-1956 the landlord gave a notice to the tenant, terminating his tenancy from 31st March 1957 on this ground. The application for possession was made to the Mamlatdar on 22-7-1957. It was held that as the tenancy had been terminated after the Act had been amended and as the cause of action for obtaining possession had arisen after that date, the amendment applied and the application must be decided by reference to the provisions of Section 25(2) as amended in 1956.

(5) It has been urged before us that the view taken in Sp. Civil Appln. No. 2558 of 1958 D/-15-11-1958 (Bom), requires to be reconsidered. It has been contended that the amendment imposes a new obligation on a landlord to give an intimation to the tenant within three months of each default that his tenancy had been terminated for non-payment of rent, that there was no such obligation on him before 1st August 1956 and that consequently he could not have discharged this obligation in respect of defaults committed before 1st August 1956. It has also been urged that the right to terminate the tenancy and the right to obtain possession accrue to the landlord as soon as there is a default in the payment of rent that the amendment must, in accordance with the well recognised rules of interpretation, be held to be prospective in operation, that the amendment cannot affect rights which had already been acquired and that consequently it cannot apply to defaults which had occurred before 1st August 1956. Reliance has also been placed on Section 7 of the Bombay General Clauses Act, which provides that the repeal of an act shall not affect any right, privilege, obligation or liability acquired accrued or incurred under the repealed enactment.

(6) As observed by Lord O' Hagan in Gardnner v. Lucas, (1878) 3 AC 582, unless there is some declared intention of the Legislature - clear and unequivocal - or unless there are some circumstances rendering it inevitable that we should take the other view, we are to presume that an Act is prospective and not retrospective. If the enactment is expressed in language, which is fairly capable of either interpretation, it ought to be construed as prospective only. Every statute, therefore, should be construed as operating only in cases or on facts, which come into existence after the statute was passed, unless retrospective effect is clearly intended. There is no indication either in sub-section (2) of Section 25 or in any other part of the Act suffusing that the Legislature intended to give retrospective effect to the amendment made in this sub-section. This sub-section formerly provided that nothing in this section shall apply if the tenant had failed to pay rent for any three years within the period specified in Section 14. The words 'within the period specified in Section 14' were deleted in 1956. It has been argued that the deletion of these words indicates that the Legislature's intention was that the amended section should apply in case of all defaults, whether committed before or after 1st August 1956. It is not necessary for us to speculate why these words were deleted, but we do not think that the omission of these words from the amended section indicates any intention on the part of the Legislature to affect vested rights. The amendment cannot, therefore, apply to applications for possession made before 1st August 1956 and which were pending on that date. This is the view which has been taken by a Division Bench of this Court in Laxman Motiram v. Usha Laxmi Narayandas, Sp. Civil Appln. No. 884 of 1959, D/-10-11-1959 (Bom). We agree with the view taken in this case.

(7) In regard to applications made on and after 1st August 1956, two kinds of cases arise, those in which the tenancies had been terminated, before 1st August 1956 and those in which the tenancies were terminated subsequently, either as a result of the notice given before 1st August 1956 or by notices given on and after this date. A landlord acquires a right to obtain possession of his land as soon as the tenancy comes to an end. In cases in which the tenancies had been terminated before 1st August 1956 on the ground that there were three or more defaults in the payment of rent the landlords had acquired rights to get possession of their lands. These rights had accrued to them as soon as the tenancies had been terminated. The rights to take possession had therefore become vested in the landlords. These rights could, of course, be taken away by the Legislature. It is, however, well settled that every statute should be so interpreted as to respect vested rights and that vested rights should not be held to have been taken away unless the Legislature has used language clearly indicating such an intention. We do not find any words in sub-section (2) of Section 25 suggesting that the Legislature intended to affect vested rights. Consequently cases, in which the tenancies had been terminated before 1st August 1956, will be governed by Section 25 as it stood before it was amended in 1956.

(8)The position is different in regard to cases in which tenancies were terminated after 1st August 1956. It has been urged before us that under Section 14, as soon as a tenant commits a default in the payment of rent the landlord acquires not only a right to terminate the tenancy, but also a right to obtain possession of the land. This argument must be negatived in view of Section 14, which specifically states that no tenancy shall be terminated unless the landlord gives three months' notice in writing to the tenant. In order to terminate a tenancy, the landlord must therefore give three months' notice. During the period of the notice, the tenancy continues to subsist. It comes to an end on the expiry of the period of notice. The landlord cannot claim possession so long as the tenancy subsists. Consequently the right to obtain possession of the land arises or accrues to the landlord only when the period of the notice expires. He does not, therefore, acquire a right to the possession of the land, as soon as he gives a notice terminating the tenancy under Section 14. The same view was taken by a Full Bench of this Court in Durlabbhai v. Jhaverbhai : AIR1956Bom285 . In that case the Court had to decide when the right to obtain possession had accrued to the landlord, after he had given a notice to his tenant terminating his tenancy on the ground that he needed the land bona fide for personal cultivation. At p. 89 (of Bom LR): (at p. 286 of AIR) it was observed:

'The third stage is that on the termination of the tenancy the right accrues to the landlord to obtain possession and it is in this third stage that the landlord either proceeds to take possession from his tenant or files the necessary application in Court to obtain possession if the tenant is refractory. Therefore, the cause of action that accrues to the landlord and which he comes to Court to enforce is the right to possession and that cause of action only accrues to him when the tenancy is terminated and not when he gives notice. The vested right also that accrues to him is when the tenancy is terminated. The vested right is the right to obtain possession, and till the tenancy is terminated, there is no vested right in the landlord.'

Our attention has been invited to some observations made in Chimnabai Rama v. Ganpat Jagannath : AIR1959Bom425 (FB) that the right to possession accrues to the landlord when he gives a notice indicating his intention to terminate the tenancy. The Court in that case was considering the question as to when the right of the landlord to obtain possession of the land, on the ground that the tenant had sublet the land, must be deemed to have accrued to him under Section 29(2). The question which arose for determination was whether this right should be deemed to have accrued to the landlord when the land was sublet or when the landlord gave notice terminating the tenancy on the ground of subletting. The question whether the right to obtain possession accrues to the landlord. When he gives a notice terminating the tenancy or when the tenancy is actually terminated on the expiry of the notice, did not arise for decision. In this case it was held that the right of a landlord to obtain possession of the land sublet by his tenant must be deemed to have accrued to him on the date on which the land had been sublet. It has therefore been urged that the landlord acquires a right to get possession of his land as soon as there is a default in the payment of rent. There is no force in this argument, for, as has been pointed out in the judgment in this case the Legislature has in Section 29(2) inserted a legal fiction and that is, that limitation begins to run from the date on which the right to obtain possession must be deemed to have accrued to the landlord. At p, 978 (of Bom LR): (at p, 426 of AIR) it was observed:

'The one fact that immediately strikes the reader of this section is that the Legislature had advisedly not made the time, when the actual right to take possession accrues to the landlord, the starting point of limitation. It was open to the Legislature to have indicated some actual act which resulted in the starting pint of the period of limitation.. . . . .But instead of doing so the legislature has inserted a legal fiction and the legal fiction is that you have not to consider for the purpose of limitation when the right to obtain possession actually accrued to the landlord, but what you have to consider is when the right to obtain possession accrued to him fictionally by reason of the fiction introduced by the legislature. Therefore, it is clear that under Section 29(2) limitation does not begin to run from the time when the right to obtain possession actually accrues to the landlord.'

This decision is, therefore, not an authority for the proposition that a right to obtain possession accrues as soon as there is default in the payment of rent.

(9) In our opinion, a distinction must be drawn between the right to terminate the tenancy and the right to obtain possession of the land. The former right is not affected by the amendments made in 1956. So far as the second right is concerned, this right had not accrued in cases, in which the tenancies had not been terminated before 1st August 1956. Before the right accrued, the Legislature stepped in and imposed a further restriction or a further limitation on the right of the landlord to obtain possession of the land. In such cases therefore the amendment made in sub-section (2) of Section 25 does not affect any accrued or vested rights. It will therefore apply in all cases in which the tenancies were terminated on or after 1st August 1956. The view taken in Dhundiraj's case, Special Civil Appln. No. 2558 of 1958, D/-15-11-1958 (Bom), was therefore correct.

(10) Reference was made in arguments to Section 7 of the Bombay General Clauses Act. This section cannot be relied upon in these cases, because Section 25 was not repealed in 1956. It was only amended in certain respects.

(11) To sum up, the position is that the amendment made in sub-section (2) of Section 25 does not apply in cases, in which applications for possession had been made prior to 1st August 1956 and were pending before the Mamlatdar or some other authority on that date. The amendment will also not apply in cases in which the tenancies had been lawfully terminated before 1st August 1956 by giving the requisite notices under Section 14 of the Act. It will, however, apply in all cases in which the tenancies were terminated on or after 1st August 1956.

(12) Answer accordingly.


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