Skip to content


JasIn Tomu Damel Vs. Harischandra Pandurang Muranjan - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberAppeal No. 711 of 1957
Judge
Reported in(1959)61BOMLR1112
AppellantJasIn Tomu Damel
RespondentHarischandra Pandurang Muranjan
DispositionAppeal dismissed
Excerpt:
bombay tenancy and agricultural lands act (bom. lxvii of 1948), sections 88(1)(c), 89(2)(b), 43c-greater bombay laws and the bombay high court (declaration of limits) (amendment) act (bom. 8 of 1950), section 6-bombay general clauses act (i of 1904), sections 3(21), 7(b) & (c)-greater bombay laws and the bombay high court (declaration of limits) act (17 of 1948), section 2(2)-tenant acquiring protected tenancy rights by virtue of section 3a of tenancy act of 1939 since november 8, 1947-act 8 of 1950 making village where lands situated part of greater bombay on april 15, 1950-section 88(1)(c) applicable to lands in village-suit by landlord for possession of lands;-whether provisions of section 88 such, express provision as could affect the tenant's rights as contemplated in section.....gokhale, j.1. this is an appeal by the original defendant against whom a decree has been passed by the bombay city civil court in summary suit no. 1086 of 1953. the plaintiffs, who are members of a joint hindu family, owned two pieces of unsurveyed khoti land in the village of paspoli situated in the suburbs of bombay, in january 1946, the said lands were leased out to the present appellant for a period of three years ending on december 31, 1948, on a yearly rent of rs. 260 and there is no dispute that the defendant took these lands for cultivating the same. the terms and conditions of the lease were recorded in an agreement dated january 15, 1946. even after the expiry of the three years' period, defendant continued to hold the land on the same terms and conditions and it would appear.....
Judgment:

Gokhale, J.

1. This is an appeal by the original defendant against whom a decree has been passed by the Bombay City Civil Court in Summary Suit No. 1086 of 1953. The plaintiffs, who are members of a joint Hindu family, owned two pieces of unsurveyed Khoti land in the village of Paspoli situated in the suburbs of Bombay, In January 1946, the said lands were leased out to the present appellant for a period of three years ending on December 31, 1948, on a yearly rent of Rs. 260 and there is no dispute that the defendant took these lands for cultivating the same. The terms and conditions of the lease were recorded in an agreement dated January 15, 1946. Even after the expiry of the three years' period, defendant continued to hold the land on the same terms and conditions and it would appear that, in every December, plaintiff No. 1 agreed to extend the lease for one more year. In December 1952, it appears that the plaintiffs' family did not want to extend the lease and, therefore, by a letter dated December 11, 1952, defendant was called upon to vacate the lands and deliver quiet possession thereof to the plaintiffs. The defendant, however, replied by a letter dated December 22, 1952, alleging that he was a protected tenant and, therefore, not liable to be evicted. This claim of the defendant was denied by the plaintiffs by a letter dated December 29, 1952, and as the defendant did not deliver possession of the lands, the plaintiffs filed the present suit in the Bombay City Civil Court on May 26, 1953.

2. The suit was resisted by the defendant on several grounds, but for the purpose of this appeal it may be mentioned that the principal contention raised by the defendant was that he was a protected tenant of the lands and by virtue of Section 89 of the Bombay Tenancy and Agricultural Lands Act, 1948 (67 of 1948), which will hereafter be referred to as the Tenancy Act of 1948, his rights as such protected tenant remained unaffected, he having become a protected tenant since November 8, 1947.

3. The trial Court came to the conclusion, and that does not appear to have been disputed even on behalf of the plaintiffs, that the defendant was a protected tenant between the coming into force of the Tenancy Act of 1948 on December 28, 1948, and April 15, 1950, on which day the village of Paspoli became a part of Greater Bombay. We may observe that neither in the trial Court nor in the appeal before us, which has been argued at a fairly considerable length, was a point raised as to the jurisdiction of the City Civil Court to decide the question as to whether the defendant being a protected tenant could be evicted by the City Civil Court in the suit as framed by the plaintiffs. It appears that issue No. 3 which was raised, viz. whether the Court had jurisdiction to entertain the suit, was argued by Mr. Joseph, learned advocate appearing on behalf of the appellant who also appeared even in the trial Court, on the basis whether such a suit would be cognisable by the Presidency Small Cause Court and not by the City Civil Court, which contention was negatived by the trial Court and no arguments have been addressed to us on that point in this appeal. The trial Court held that the suit lands having become a part of Greater Bombay, the relevant provisions of the Tenancy Act did not apply to the defendant and after April 15, 1950, it was not open to the defendant to exercise any of the rights as a protected tenant because the provisions of Sections 1 to 87 of the Tenancy Act could not apply to any area within Greater Bombay including the village of Paspoli. In accordance with these findings, a decree was passed in favour of the plaintiffs ordering the defendant to quit and vacate the land in suit and restraining him by a perpetual injunction from entering upon the said land. It has to be mentioned that, as observed by the learned trial Judge, the suit had a very chequered career. On December 10, 1956, an ex parte decree had been passed against the defendant, though that ex parte decree was set aside on certain conditions on January 15, 1957. Execution, however, had been levied on the basis of the ex parte decree, so that on June 7, 1957, possession was in fact handed over to the plaintiffs in execution of the said ex parte decree. It is against the decree passed by the trial Court on July 10, 1957, that the present appeal has been filed by the original defendant.

4. The decision of the trial Court has been challenged by Mr. Joseph on behalf of the appellant on the ground that defendant's rights as a protected tenant under the Tenancy Act were not affected by any of the provisions of that Act as amended from time to time and, therefore, the decree for eviction passed against his client was erroneous. It is urged that defendant was let into possession as a tenant in January 1946 and continued in possession as a tenant till and after November 8, 1947, and by virtue of the Tenancy Act, he acquired the rights of a protected tenant. Paspoli, where the lands are situated, was not included in Greater Bombay when the Tenancy Act of 1948 came into force. It was by virtue of Act 8 of 1950 that the said village came to be included in Greater Bombay, but the defendant's rights as a protected tenant were not thereby affected or rendered illusory on account of Section 88(1)(c) of the Tenancy Act of 1948. That, in short, is the first branch of Mr. Joseph's argument on behalf of the defendant.

5. In order to examine the soundness of this argument, it is necessary to notice the relevant provisions of the Bombay Tenancy Acts with the amendments introduced therein from time to time. The first Tenancy Act is Bombay Act 29 of 1939 which came into force on April 2, 1940. Barring the amendments introduced in this Act, especially by Bombay Act 26 of 1946, this Act (29 of 1939) continued in force till December 28, 1948. We are not concerned with the provisions of this Act except with regard to one branch of Mr. Joseph's argument which will be referred to later. The Act of 1939 was repealed by what is known as the Bombay Tenancy and Agricultural Lands Act, 1948 (67 of 1948) which came into force on December 28, 1948. Section 2(14) of this Act defined a 'protected tenant' as meaning a person recognised to be a protected tenant under Section 31. Section 89(1) dealt with the repeal of the Bombay Tenancy Act, 1939, and provided that the said Act was repealed to the extent specified in the fourth column of the Schedule. It would be apparent from the Schedule that the whole of the Bombay Tenancy Act, 1939, came to be repealed except Sections 3, 3A and 4 as modified, these modified sections being set out in the fourth column. Under Section 31 of the Tenancy Act, it was provided that a person shall be recognised to be a protected tenant if such person has been deemed to be a protected tenant under Section 3, 3A or 4 of the Bombay Tenancy Act, 1939. Section 3A, as mentioned in the Schedule, provided that every tenant shall from the eighth day of November 1947 be deemed to be a protected tenant for the purposes of this Act and his rights as such, protected tenant shall be recorded in the Record of Eights, unless his landlord had prior to the aforesaid date made an application to the Mamlatdar for a declaration that the tenant is not a protected tenant. The Explanation to this section provided that a person shall not be deemed to be a protected tenant if such person had been, on an application made by the owner of the land as provided in Section 3A of the Bombay Tenancy Act, 1939, declared by a competent authority not to be a protected tenant. Now, in the present case there is no dispute that the defendant continued in possession of the suit land as a tenant till and after November 8, 1947. The plaintiffs had not applied for a declaration that the defendant was not a protected tenant. It would be obvious, therefore, that since November 8, 1947, the defendant became a protected tenant under the Tenancy Act of 1948. Section 88 of this Act provided for certain exemptions in respect of certain lands and areas. By virtue of Section 88(1)(c), nothing in the foregoing provisions of the Act would apply to any area within the limits of Greater Bombay and within the limits of the municipal boroughs of Poona City and Suburban, Ahmedabad, Sholapur, Surat and Hubli and within a distance of two miles of the limits of such boroughs. The result of this provision would be that the provisions of Sections 1 to 87 of the Act would not apply to any area within the limits of Greater Bombay. This sub-section was substituted by Section 16 of the Amending Act 33 of 1952, which came into force on January 12, 1953. The original Sub-section (1)(c) of Section 88 was substituted by the following sub-clause:-

(c) to any area within the limits of Greater Bombay, within the limits of the municipal corporations constituted under the Bombay Provincial Municipal Corporations Act, 1949, within the limits of the municipal boroughs constituted under the Bombay Municipal Boroughs Act, 1925, and within the limits of any cantonment.

It would be clear, therefore, that the original exemption as regards the limits of Greater Bombay was confirmed by this substituted clause, and instead of certain municipal boroughs being mentioned, the new clause mentioned the limits of the municipal corporations constituted either under the Bombay Provincial Municipal Corporations Act, 1949, or the limits of municipal boroughs constituted under the Bombay Municipal Boroughs Act, 1925, and the limits of any cantonment also came to be included as an exempted area. It may be also mentioned that Sub-section (2) of Section 88, as it originally stood in the Tenancy Act of 1948 as well as after its amendment in 1952, empowered Government to direct that any particular land or class of lands in any area shall not be exempt from all or any of the provisions of that Act.

6. The suit lands, as already stated, are situate in the village of Paspoli. The term 'Greater Bombay' has not been defined by the Tenancy Act of 1948. Section 3 of the Bombay General Clauses Act, I of 1904, gives certain definitions which are to be applicable to all Bombay Acts made after the commencement of that Act, and Section 3(21) of that Act provides that 'Greater Bombay' shall mean the areas specified in Schedule A to the Greater Bombay Laws and the Bombay High Court (Declaration of Limits) Act, 1945 (17 of 1945). Section 2(2) of Act 17 of 1945 defines 'Greater Bombay' as meaning the areas for the time being specified in Schedule A, and this Act, came into force on August 15, 1945, The village of Paspoli is not mentioned in Schedule A to this Act. It is by virtue of Section 9 of this Act 17 of 1945 that the definition of 'Greater Bombay' to be found in Section 3(21) of the Bombay General Clauses Act was inserted in that Act. It is obvious, therefore, that when the Tenancy Act of 1948 came into force on December 28, 1948, the exemption under Section 88 did not apply to the suit lands situated in the village of Paspoli. The Greater Bombay Laws and the Bombay High Court (Declaration of Limits) Act, 1945, was itself amended by Bombay Act 8 of 1950 and, by virtue of Section 6 of this amending Act, 14 villages of the Bombay Suburban District including the village of Paspoli came to be inserted as Part III of the Schedule of Act 17 of 1945. This amending Act appears to have come into force on April 15, 1950, with the result that so far as the suit lands are concerned, as Paspoli became a part of Greater Bombay, Section 88(1)(c) of the Tenancy Act of 1948 became applicable to that village and none of the provisions of Sections 1 to 87 of that Act could apply to the said area. It was on this basis that the learned trial Judge came to the conclusion that the defendant was a protected tenant between the coming into force of the Tenancy Act of 1948 and April 15, 1950.

7. Mr. Joseph challenges the correctness of this finding in the first instance on the ground that if the defendant was a protected tenant after the coming into operation of the Tenancy Act of 1948, his right as a protected tenant could not be adversely affected by anything in Section 88 of the Act which admittedly, so far as his client is concerned, could apply, if at all, after Paspoli came within the limits of Greater Bombay on April 15, 1950. In support of his argument he has relied on the provisions of Sub-section (2)(b) of Section 89, which provides, so far as is material, that nothing in the Tenancy Act of 1948 or any repeal effected thereby shall, save as expressly provided in the Act, affect or be deemed to affect, any right, title, interest, obligation or liability acquired, accrued or incurred before the commencement of the Act. Mr. Joseph contends that his client had acquired the rights of a protected tenant and those rights could not be adversely affected by the provisions of Section 88. In short, Mr. Joseph's argument is that in the first instance Section 88 cannot be given retrospective operation so as to nullify the right of a protected tenant which has vested in his client since November 8, 1947, and secondly, the provisions of Section 88 are not such express provisions as could affect his rights as contemplated in x 89(2) (I) of the Act. Now, as regards the nature of the right alleged to have been acquired by the defendant, Mr. Padhye, learned advocate appearing on behalf of the respondents, points out that the right cannot be regarded as a vested right because, it is the Tenancy Act of 1948 which conferred on the defendant the right of being a protected tenant and that by itself, says Mr. Padhye, would not be sufficient to make it a vested right. In support of his argument, Mr. Padhye has relied on a Full Bench decision of this Court in Maganbhai Jethabhai Patel v. Somabhai : (1958)60BOMLR1383 F.B., which was inclined to take the view that

when one speaks of vested rights, those are rights which are not the creature of law or of an enactment, but those are rights which are acquired by a person claiming them by some action taken by him under the law.

In this connection the learned Chief Justice, who delivered the judgment of the Full Bench, further observed (p. 1387) :-.The Tenancy Act, as it were, put a cloak of protection round the tenant and prevented the landlord from exercising his contractual rights. Can it be said that when that cloak was removed and the Parties were left to their contractual rights and obligations, there were some vested rights which the tenant still possessed? The tenant had done nothing under the Tenancy Act which led to his acquiring any right. He had not changed his position; he had not entered into any contract or into any lease pursuant to the provisions of the Act. All that he acquired was the rights given by the Tenancy Act itself. The Legislature gave him certain rights and Legislature took away those rights. Was it open to the tenant to contend that the protection given by the law was a vested right to which he was entitled and which could not be taken away from him by the Legislature unless the Legislature so expressly provided?.

Mr. Padhye says that these observations of the learned Chief Justice would indicate that the right that the defendant got under the Tenancy Acts of 1939 and 1948 was not a vested right, and if that was so, the provisions of Section 88 could apply retrospectively. It is true that the judgment of the learned Chief Justice shows that the Full Bench was inclined to accept the contention that the rights which a tenant gets under the Tenancy Act are not vested rights. But as the judgment itself shows, the Full Bench did 'not Hunk it necessary expressly to decide that point, in view of the interpretation that the Full Bench put on the proviso to b. 43(c) of the Tenancy Act as amended in 1956. In our opinion, that question also need not be decided in the present case because, in our judgment, Section 88 of the Tenancy Act which in terms exempts lands falling within the limits of Greater Bombay from the provisions of Sections 1 to 87 of the Act, constitutes an express provision as contemplated under Section 89(2)(6) of the Act. In Sakharam Narayan v. Manikchand Motichand (1954) 57 Bom. L.R. 223 a Division Bench of this Court held that a suit by a landlord to recover possession of Agricultural lands situated within the limits of a Municipal Corporation. which lands are excluded from the operation of The Bombay Tenancy and Agricultural Lands Act, 1948, can lie in a Civil Court, even though the defendant sets up the plea that he is a protected tenant under the Bombay Tenancy Act, 1939. The facts of that case may be briefly stated. The plaintiffs there had filed a suit in the Court of the Joint Civil Judge, Junior Division, Poona, against four defendants, for a decree for possession of certain agricultural lands which were within the limits of the Poona Municipal Corporation. The defendants contended inter alia that the Civil Court had no jurisdiction to try the suit, as it was governed by the provisions of the Bombay Tenancy Act. That contention was negatived by the trial Court as well as by the appellate Court, and this Court upheld their decision on the ground that the effect of Section 88, Sub-section (1), Clause (c), of the Tenancy Act of 1948 was to excluded from the operation of Sections 1 to 87 of the Act those areas which are specified in that sub-section and therefore, to land situate in the area specified in the sub-section, even if it be used for agricultural purposes, the provisions of the Act do not apply and the lights of the parties to a dispute relating to that land are govern-d by the ordinary law of the land and are unaffected by the provisions of the Tenancy Act of 1948,. It is true that this case was concerned with the 'question of jurisdiction of the ordinary Civil Court to try the suit. But that necessarily led to the consideration of the question raised by the defendants in that case, viz., whether they were entitled to set up their rights as protected tenants in respect of the lands so as to defeat the plaintiff's claim for possession of the lands which are excluded by Section 88 from the operation of the Act, in other words, whether the defendants were entitled to set up rights and privileges of the protected tenant acquired under the Act of 1939 in respect of lands which were no longer governed by the provisions of the Tenancy Act of 1948. On this point, Mr. Justice Shah, who delivered the judgment in that case, observed as follows (p. 225) :.But the Legislature has excluded from the operation of the Act of 1948 certain classes of leases, and also lands which are situate in specified areas. Once that exclusion is made, whatever rights may be deemed otherwise to have been conferred by Section 31 upon protected tenants must be regarded as ineffective, if the land is of the description mentioned in Section 88 or that the land is within the area specified in that section, It is true that the Legislature by Sub-section (2) of Section 89 has purported to protect the right, title and interest of persons who were governed by the Tenancy Act of 1939, notwithstanding the repeal of that Act; but it is provided that those rights and privileges will not be exercisable if there is an express provision to the contrary made in the Act. The Legislature has provided by Section 88 that the lands situate in certain areas will not be governed by the provisions of the Act of 1948, and that must be regarded as 'an express provision to the contrary' and the rights acquired under the Act of 1939 cannot be b exercised if the lands hi respect of which they are claimed are situate within the area J specified in Section 88, Sub-section (1), Clause (c) of the Act of 1948.

In his judgment Mr. Justice Shah also referred to an unreported decision of a Division Bench of this Court, Shivram Narayan Bhide v. Shridhar Keshav Patwardhan (1953) First Appeal No. 166 of 1952, decided by Gajendragadkar and Chainani, JJ., on July 17, 1953 where it was held that the effect of Section 88 of the Tenancy Act is that in the case of lands which are governed by that section the provisions of the Act would not apply and the protection to the vested rights of the tenants would be rendered illusory because the suit in which that right had to be asserted has been instituted subsequent to the commencement of the Act and the bar to the jurisdiction of the Civil Court to entertain and decide the suit was removed by Section 88 which excluded certain lands from the operation of the Tenancy Act. In the present case, in case Mr. Joseph's argument is right that a, 88 cannot be operative so as to affect the protected tenancy rights of his client, the Bombay City Civil Court would not have jurisdiction to decide the present suit which is filed by the plaintiffs for possession of the suit lands, a contention which was not raised in the trial Court and not urged before us also. In our judgment, therefore, the ratio of the decision in Sakharam Narayan v. Manikchand Motichand would apply to the facts of the present case and it will have to be held that the provisions of Section 88(1)(c) of the Tenancy Act of 1948 are an express provision in the Act as contemplated under Section 89(2)(b) of the Act, with the result that after Paspoli became a part of Greater Bombay on April 15, 1950, the protected tenancy right of the defendant ceased to have the protection of the provisions of Sections 1 to 87 of the Tenancy Act.

8. Our attention has been invited to two other unreported decisions of this Court which are also referred to in the recent Pull Bench case of Maganbhai Jethabai Patel v. Somabhai. The first of these decisions is the case of Moreshwar Parasharam Phatak v. Vithal Krishna Joshi (1954) First Appeal No. 144 of 1951, decided by Gajendragadkar and Vyas, JJ., on January 18, 1954. In that case, the plot in dispute was situated within the municipal limits of Ratnagiri and Section 88(1)(c) of the Tenancy Act of 1948 became applicable to the area by virtue of Clause (c) substituted by Bombay Act XXXIII of 1952 for the original Clause (c) of Sub-section (1) of Section 88. The contention raised in that case that this amendment should be held to be retrospective so as to affect the tenancy rights accrued in favour of one of the defendants was negatived and it was held that the amendment introduced by Act XXXIII of 1952 was not retrospective and did not apply to the case of tenants who were protected by the Act of 1948, As pointed out in the Full Bench case, the view taken by this Court in this unreported decision must be assumed to be on the basis that the rights of the tenants were vested rights. In that case, it does not also appear to have been argued that the provisions of Section 88 constituted an express provision to the contrary contemplated under Section 89(2)(b). In the present case, we are not concerned with the amendment introduced by Act XXXIII of 1952 and, as we have already pointed out, in the original Tenancy Act of 1948 itself Section 88 provided for exemption of lands falling within the limits of Greater Bombay by virtue of Section 88(1)(c). The other unreported decision, to which our attention was drawn and which is also referred to in the Full Bench decision, is Nanchand Amirchand Gandhi v. Rama Malhari Pise (1958) Special Civil Application No. 2882 of 1957, decided by Chagla, C.J. and Datar, J., on January 17, 1958. In that case, the area with which the Court was concerned was the Municipal Borough limits of Pandharpur Municipality and it was by virtue of Act XXXIII of 1952 which came into force on January 12, 1953 that that area came to be exempted under Section 88(i)(c) from the operation of the Act, There again, the learned Judges held that the provisions of Act XXXIII of 1952 could not affect the rights which the tenant had acquired under the Tenancy Act of 1948. But it appears that this view was taken by that Bench on account of the provisions of Section 43(c) of the Tenancy Act of 1956. As the judgment in the Full Bench case of Maganbhai Jethabai Patel v. Bomabhai has pointed out, in Sakharam Narayan v. Manikchand Motichand, the Court was not concerned with the Amending Act of 1952 but the question arose under the Tenancy Acts of 1939 and 1948. In the present ease also, the exemption of the lands in suit is the result of Section 88(i)(e) as it stood even before the Amending Act XXXIII of 1952, and, in our view, the decision in Sakharam Narayan v. Manikchand Motichand will have to be followed so far as the point under consideration is concerned.

9. But then Mr. Joseph contends that when the Tenancy Act of 1948 came into force on December 28, 1948, the village of Paspoli was not included in the limits of Greater Bombay. It came only to be included within Greater Bombay on April 15, 1950, by virtue of the provisions of Bombay Act VIII of 1950, and Mr. Joseph argues that since the protected tenancy rights of the defendant continued unaffected till April 1950, Section 88(2)(c) cannot affect the land in suit which must continue to be governed by the Tenancy Act. We are not prepared to accept this argument either. Section 88(1)(c) provided for exemption of lands from the operation of the Tenancy Act within the limits of Greater Bombay, Sub-section (2) of Section 2 of Bombay Act XVII of 1945 defines 'Greater Bombay' as meaning the areas for the time being specified in Schedule A. When this Act was passed, the village of. Paspoli was not included in that Schedule; but the definition of 'Greater Bombay' itself shows that the Legislature had contemplated that the limits of Greater Bombay would be fluctuating and expanding limits. Bombay Act VIII of 1950 which amended Bombay Act XVII of 1945 included the village of Paspoli in Schedule A and that village, therefore, came within the limits of Greater Bombay. But Mr. Joseph contends that when the Tenancy Act of 1948 was enacted the Legislature had in mind certain limits of Greater Bombay, and he argues that even assuming that Section 88(i)(c) was intended to affect rights already acquired, the Legislature could not have intended to give to Clause (c) an operation so as to affect rights in lands which came to be subsequently included within the limits of Greater Bombay. We do not think that that argument is sound. As already pointed out, when the Tenancy Act of 1948 was placed on the statute book in 1948, under Section 88(1)(c), the area within the limits of Greater Bombay was exempted from the operation of Sections 1 to 87 of the Act and by virtue of Act XVII of 1945 Greater Bombay was meant to include areas which would for the time being be specified in Schedule A of that Act. The limits of Greater Bombay were obviously intended, however, to be flexible and capable of extension. It cannot, therefore, be said that the Legislature had in mind only the limits of Greater Bombay as they existed on December 28, 1948, for the purpose of the exemption from the operation of the Act and could not have intended the widening of the scope of the exemption so as to affect rights within the enlarged limits also. Besides, if Section 88(i)(c) constitutes an express provision in the Act as contemplated by Section 89(2)(b) of the Tenancy Act of 1948, that clause would necessarily continue to have that effect even though the village of Paspoli and other villages are subsequently included in the limits of Greater Bombay.

10. Then Mr. Joseph contended that even assuming that Sections 1 to 87 of the Tenancy Act of 1948 do not apply to the lands in suit by reason of Section 88(1)(c), defendant's protected tenancy rights which arose under the Tenancy Act of 1939 cannot be affected because of the provisions of Section 89 of the Tenancy Act of 1948. It is contended that Section 89 of the Act retains three sections of the Tenancy Act of 1939, though the other provisions of that Act are repealed. If that be so, Mr. Joseph contends, his client, by virtue of the provisions of Section 3A of the Tenancy Act of 1939 and the Explanation to that section, would be deemed to be a protected tenant and that right cannot be adversely affected by anything in the provisions of Section 88. We are not persuaded to uphold this argument also. It is not disputed that if Sections 1 to 87 do not apply to the lands in suit, Section 2(14), which defines a protected tenant, as well as Section 31 would not have any operation so far as the suit lands are concerned. Though under Section 3A of the Tenancy Act of 1939 a tenant is to be deemed to be a protected tenant from November 8, 1947, he can only be recognised to be a protected tenant by virtue of Section 31 of the Tenancy Act of 1948. If Section 31 cannot apply, we fail to see how the rights of the defendant can be regarded as anything but illusory, even assuming that Section 3A of the Tenancy Act of 1939 stands independently of the provisions of the Tenancy Act of 1948. But, as already pointed out, Section 89(1) of the Tenancy Act of 1948 while repealing the Tenancy Act of 1939 has preserved three sections of the old Act, but the rights arising under those three sections can only be rendered effective by virtue of the other provisions of the Tenancy Act of 1948. We are not, therefore, prepared to accept the argument of Mr. Joseph that his client is entitled to defeat the plaintiffs' suit by virtue of his right as a protected tenant under the Tenancy Act of 1939 even though Sections 1 to 87 of the Tenancy Act of 1948 cease to have any operation by virtue of Section 88(1)(c) of the Act.

11. Then Mr. Joseph has raised a further contention on the basis of the amending Tenancy Act 13 of 1956. Now, Act 13 of 1956 came into force on August 1, 1956. Under that Act, the original Section 88 was considerably modified and the relevant section for our present purpose in the amending Act is Section 88(b). By virtue of the present Section 88(b), Sections 1 to 87 of even the amending Act would not apply to any area which the State Government may from time to time by notification in the Official Gazette specify as reserved for non-agricultural or industrial development. This Act came into force on August 1, 1956, and on that very day, in exercise of the powers conferred by Clause (b) of Section 88 the State Government issued a notification No. TNC 5156/101965-P specifying areas within the limits of Greater Bombay as being reserved for non-agricultural and industrial development. There' is no dispute that on August 1, 1956, the village of Paspoli was within the limits of Greater Bombay. If that be so, by virtue of this notification the provisions of Sections 1 to 87 would continue to cease 1o have any operation with regard to the lands in suit. Mr. Joseph's argument is that a notification issued by the State Government could not destroy the protected tenancy rights of his client, because such a notification cannot be given retrospective effect. In support of his argument, Mr. Joseph has relied on the case of Tamboli Boghalal v. Mohanlal Chunilal (1958) 59 Bom. L.R. 274. where Mr. Justice Vyas took the view that the tenancy rights created in favour of a tenant before the coming into force of the Bombay Tenancy and Agricultural Lands Act, 1948, and enjoyed by a tenant after the Act came into force, are not affected as the result of a notification issued by the State Government under Section 88(1)(d) of the Tenancy Act of 1948, specifying the lands as reserved for urban, non-agricultural or industrial development. According to this decision, although competence is given to the State Government under Section 88(1)(d) of the Tenancy Act of 1948 to issue a notification reserving certain lands for urban, non-agricultural or industrial development, the said competence is prospective and not restrospective and it does not extend to the taking away of the already vested valuable rights of the tenants. Now, it must be observed in the first instance that this decision is based on the view that the rights acquired by the tenant under the Tenancy Act are vested rights. That view cannot now be regarded as above question in view of the observations of the learned Chief Justice in the Full Bench case of Maganhhm Jethabhai Patel v. Somabhai, to which we have already made a reference, though the Full Bench has refrained from giving its final opinion on that point. In the case with which Mr. Justice Vyas was dealing, the lands were situated in the former State of Baroda which merged in the Bombay State on August 1, 1949. On the same day the Tenancy Act came into force in that area and the tenants became protected tenants from August 1, 1950, which was the date mentioned in the provisions of the Tenancy Act, as were made applicable to Baroda State, instead of November 8, 1947. Sixteen months thereafter, on April 24, 1951, the State Government issued a notification under Section 88(1)(d) reserving an area within the limits of the Municipal Borough of Baroda City and within a distance of two miles of the limits of the said Borough for urban, non-agricultural or industrial development. Mr. Justice Vyas held that as this area came to be within the exemption by virtue of the notification issued by Government, the notification could not be given any retrospective effect. In the present case, according to our view, from April 15, 1950, the defendant ceased to have any effective tenancy rights because as the village in which the suit land is situate came within the limits of Greater Bombay, the provisions of Sections 1 to 87 ceased to apply to the suit land. Till August 1, 1956, the original Section 88(1)(c) continued and that section came to be replaced by Section 88(b) of the Tenancy Act of 1948 as amended by Act 13 of 1956 and on the very day that the new Act came into operation on August 1, 1956, the Government issued a notification continuing the exemption in respect of the lands in Greater Bombay from the operation of Sections 1 to 87 of the Tenancy Act of 1948, as amended in 1956. It cannot, therefore, be said that the notification issued by the State Government on August 1, 1956, introduced any new exemption. All that it did was that it continued the exemption which was already in force under Section 88(1)(c) since April 15, 1950, so far as the suit land is concerned. 'We are not, therefore, prepared to accept the argument that the notification issued by the State Government on August 1, 1956, cannot affect the defendant's rights.

12. Then Mr. Joseph relied on the provisions of Section 7 of the Bombay General Clauses Act, 1904. He contended that Section 7(b) and (c) of that Act would prevent the protected tenancy rights of his client from being affected. Under Section 7 of that Act, where that Act or any Bombay Act made after the commencement of the Act repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not, under Clause (b) of Section 7, affect any right, privilege, obligation or liability acquired, accrued or-incurred under any enactment so repealed, or, under Clause (c) of the same section, affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed. It is difficult to appreciate the argument that the defendant's rights continue to be protected by reason of these provisions as the Tenancy Act of 1948 is impliedly repealed regarding lands in Paspoli. For the purpose of this argument, Mr. Joseph has not relied on the repeal of the Tenancy Act of 1939. He contends that under Section 88 of the Tenancy Act of 1948 certain areas are exempted from the operation of Sections 1 to 87. When this Act came into operation on December 28, 1948, the limits-of Greater Bombay did not include the village of Paspoli. It was only by reason of Act 8 of 1950 that the said village came within the limits of Greater Bombay, and, therefore, contends Mr. Joseph, Act 8 of 1950 must be taken to have impliedly repealed the Tenancy Act of 1948 so far as the lands situated in that village are concerned. We are not prepared to accept this argument as sound. Section 88 of the Act excludes certain areas from the operation of the Tenancy Act. That does not mean that Section 88 itself impliedly repeals a part of the Tenancy Act. Section 88(1)(c) referred to the exemption in respect of the area within the limits of Greater Bombay. The limits of that area were fluctuating and capable of extension and by virtue of Act 8 of 1950 the limits of Greater Bombay were extended and certain more villages including the village of Paspoli came to be included within the limits of Greater Bombay. But that cannot, in our opinion, constitute any implied repeal of the Tenancy Act itself by Act 8 of 1950. In our view, therefore, the essential condition for the application of Section 7 of the Bombay General Clauses Act, 1904, is not present in this case. It is also not possible to accept the submission, as already stated, that the Legislature, when it extended the limits of Greater Bombay by including the village of Paspoli and other villages in the limits of Greater Bombay, could never have intended that this inclusion should affect the operation of the Tenancy Act with regard to the lands in these villages. This contention of Mr. Joseph, therefore, must also fail.

13. Finally, Mr. Joseph contended that his client's right as a protected tenant was acquired by virtue of the provisions of the Tenancy Act of 1948 and that would be unaffected by anything in Section 88 because of the proviso to Section 43C enacted by Act 13 of 1956. The proviso to Section 43C states that. if any person has acquired any right as a tenant under this Act on or after the 28th December 1948, the said right shall not be deemed to have been affected by the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1952, or (save as expressly provided in Section 43D), by the Amending Act, 1955, notwithstanding the fact that either of the said Act has been made applicable to the area in which such land is situate.

The short argument of Mr. Joseph is that the defendant had acquired his right as a protected tenant and continued to be such a tenant till at any rate April 15, 1950, and that right would be saved by reason of the proviso to Section 43C. In support of this argument Mr. Joseph relied on the Pull Bench case, already referred to, Maganbhai Jethabhai Patel v. Somabhai. Now, the Full Bench in that case was concerned with certain lands situated in the Borough Municipality of Baroda and by virtue of the amending Act of 1952 the lands in that case came to be excluded from the operation of the Tenancy Act of 1948 from January 1953. The landlord after giving notice to the tenant filed a suit for possession before the Mamlatdar and his suit was decreed. A revision was filed by the tenant before the Prant Officer. Pending the revision application, the Tenancy Act of 1948 was amended by the Amending Act, 1955 (Act 13 of 1956), and the Prant Officer set aside the order of the Mamlatdar relying on the proviso to Section 43C. On the question whether the effect of the proviso to Section 43C was such that notwithstanding the decree passed by the Mamlatdar, the tenant could claim protection under the Act of 1948 and resist the landlord's suit for eviction, it was held by the Full Bench that the right of the tenant under the Tenancy Act of 1948 was, by a legal fiction introduced by the proviso to Section 43C, continued and was not affected by the Amending Act of 1952 and that the proviso to Section 43C was applicable to the case as there was no final judgment against the opponent in the sense that the judgment given by the Mamlatdar was subject to revision, and the revisional Court was bound to take notice of the change in law effected by the proviso. On facts, the present case is distinguishable from the case which the Full Bench was considering. But before I deal with that distinction, it is necessary to note that even the legal fiction introduced by the proviso to Section 43C does not appear to be an absolute fiction which would save the rights of a tenant in every case. That seems to be clear from the subsequent decision of another Full Bench of this Court in Dhundi-raj Jayaram v. Dhondu Anaji : AIR1959Bom319 F.B. where it was held that the legal fiction introduced by the proviso to Section 430 did not permit the tenant to claim rights which he did not have at the date when a litigation had finally ended by a decree for possession passed by a competent Court against him. In that case, the landlord of certain lands situated in a Municipal Borough had filed a suit in a Civil Court for ejectment against his tenant who was a protected tenant under the Tenancy Act of 1948. Previous to the coming into operation of the amending Act of 1956, a decree was passed in favour of the landlord on April 22, 1955, and in execution of that decree the landlord obtained possession on April 24, 1955. Thereafter, the amending Tenancy Act came into force and the tenant applied under Section 84 of the Act claiming possession from the landlord by virtue of the proviso to Section 43C. On these facts it was held by the Full Bench that a decree having been passed by a competent Court, the tenant could not claim any rights by virtue of the proviso to Section 43C. In the present case, the protected tenancy rights of the defendant have not been acquired under the Tenancy Act of 1948, but by virtue of Section 3A of the Tenancy Act of 1939. Further these rights are not affected by the amending Act of 1952 but were affected by virtue of the provisions of Section 88(1)(c) of the Tenancy Act of 1948 on April 15, 1950, when the village of Paspoli came within the limits of Greater Bombay. The proviso to Section 43C will not consequently be applicable. What is contemplated under the proviso to Section 43C is, in our opinion, the right which a tenant has acquired on or after December 28, 1948, and which continued to be intact and effective till the coming into force of the amending Act of 1952 or the amending Act of 1955 (Act 13 of 1956). In the present case, the tenancy rights were already affected in April 1950 and were not for the first time affected either by the amending Act of 1952 or by the notification issued by the State Government under Section 88(b) on August 1, 1956. In our judgment, therefore, Mr. Joseph's argument that the defendant's rights as a protected tenant cannot be deemed to have been affected because of the proviso to Section 430 of the amending Tenancy Act cannot also be accepted.

14. The difficulties experienced in putting a rational interpretation on the several provisions of the Bombay Tenancy Acts which have been amended and replaced from time to time have been the subject of frequent comments in this Court and the present ease has proved no exception. In arriving at our conclusion we have not lost sight of the object which the Legislature has had in mind in enacting the agricultural tenancy legislation which is intended to ameliorate and better the economic conditions of the actual tillers of the soil. At the same time, it appears that the Legislature has also kept in mind other economic and social aspects, such as the development and expansion of large cities and towns, and non-agricultural and industrial development. That seems to be the basis of the original Section 88 of the Tenancy Act of 1948 which was first amended in 1952 and underwent radical alteration and substitution in 1956, and under Section 88(b) Government was given power to exempt from the operation of the Act any area which they would specify as being reserved for non-agricultural or industrial development by issue of a notification. Sub-section (2) of Section 88 of the Tenancy Act of 1948, as it originally stood, provided that notwithstanding anything contained in Sub-section (1), the Provincial Government may, by notification published in the Official Gazette, direct that any particular land or class of lands in any area shall not be exempt from all or any of the provisions of the Act. This sub-section has not been retained when the amending Act 13 of 1956 was enacted. To hold, therefore, that the notification issued by the State Government regarding Greater Bombay on August 1, 1956, should have only prospective, operation is not, in our judgment, calculated to further the object which the Legislature had in view. On this ground also, we cannot accept the contention of Mr. Joseph that the notification dated August 1, 1956, can be given prospective effect only, though, as already stated, the only effect that that notification had in the present case was to continue the exemption which was already in operation regarding land situated within the limits of Greater Bombay.

15. The result is that all the contentions raised by Mr. Joseph fail and the appeal will have to be dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //