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Hiralal Prabhubhai and ors. Vs. Nagindas Atmaram Khatri - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtSupreme Court of India
Decided On
Judge
Reported inAIR1966SC367; 1964MhLJ532(SC); [1964]6SCR773
ActsBombay Tenancy and Agricultural Lands Act, 1948 - Sections 88 and 89; Bombay Tenancy Act, 1939
AppellantHiralal Prabhubhai and ors.
RespondentNagindas Atmaram Khatri
Cases ReferredBapusaheb Narayan Sanas v. ManikchandMotichand Shah
Excerpt:
the court ruled that before the suit was disposed of, the bombay tenancy and agricultural lands act, 1952, came into force, and by reason of the extension of the bombay tenancy agricultural lands act, 1948 to the suit land, the respondent could not evict the appellants except the manner prescribed by the 1948 act. - .....held thatthe 1939 act was repealed by the 1948 act and that the latter act did not applyto the suit land, as it was within two miles of the limits of the surat boroughmunicipality. on that finding, he gave a decree for possession, arrears of rentand mesne profits. against the said decree, the defendant preferred an appealto the district judge. the learned district judge held that the landlord failedto prove that the suit property was within a distance of two miles of thelimits of the surat borough municipality and, on that finding, he came to theconclusion that the 1948 act applied to the suit land and set aside the decreeof the trial court awarding possession to the plaintiff, but maintained thedecree for arrears of rent. thereupon, the plaintiff preferred a second appealto the high.....
Judgment:

Subba Rao, J.

1. This appeal by special leave raises the question of the applicability ofthe Bombay Tenancy and Agricultural Lands Act, 1948 (Bom. Act No. 67 of 1948),hereinafter called the '1948 Act', to the tenancy of the land in dispute.

2. The appellants are the legal representatives of one Prabhubhai Ratanji.The suit property is agricultural land situate within two miles of the limitsof the Surat Municipal Borough. It was part of the erstwhile Sachin State. OnMay 7, 1946, Nagindas Atmaram Khatri, the respondent herein, who was the ownerof the said land, gave a lease of the same in favour of the said PrabhubhaiRatanji for a period of six years. On July 28, 1948, Sachin State became partof the State of Bombay. From that date the Bombay Tenancy Act, 1939,hereinafter called the '1939 Act', was made applicable to the saidarea. On April 23, 1951, Nagindas Atmaram Khatri, the landlord, gave a noticeto the defendant terminating the lease from March 31, 1952. After giving thesaid notice, he filed Reg. Suit No. 403 of 1952 in the Court of the SubordinateJudge, Surat, for eviction of the lessee Parbhubhai Ratanji. The suit wascontested on various grounds, the main contention being that under theprovisions of the 1939 Act, the defendant had acquired tenancy rights therein.As the defendant died on September 30, 1955, his legal representatives werebrought on record in his place. The learned Civil Judge, inter alia, held thatthe 1939 Act was repealed by the 1948 Act and that the latter Act did not applyto the suit land, as it was within two miles of the limits of the Surat BoroughMunicipality. On that finding, he gave a decree for possession, arrears of rentand mesne profits. Against the said decree, the defendant preferred an appealto the District Judge. The learned District Judge held that the landlord failedto prove that the suit property was within a distance of two miles of thelimits of the Surat Borough Municipality and, on that finding, he came to theconclusion that the 1948 Act applied to the suit land and set aside the decreeof the trial court awarding possession to the plaintiff, but maintained thedecree for arrears of rent. Thereupon, the plaintiff preferred a second appealto the High Court insofar as the decree of the District Court went against him.The said appeal came up before a Division Bench of that High Court. The HighCourt held that the suit land was within two miles of the limits of the SuratBorough Municipality and that, therefore, the 1948 Act did not apply to thesuit land. On that finding, it set aside the decree passed by the learnedDistrict Judge and restored that passed by the learned Civil Judge. The legalrepresentatives of the defendant have preferred the present appeal.

Learned counsel for the appellants contended that the High Court should haveheld that the rights of the appellants under the 1939 Act were saved by the1948 Act. He contended broadly that the right of the appellants under the 1939Act were preserved under s. 89(2) of the 1948 Act, with the result that thelease extended to 10 years under the 1939 Act was saved thereunder, and that byreason of the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1952 (Bom.Act 33 of 1952), hereinafter called the '1952 Act', which brought thesuit land within the scope of the 1948 Act, their rights so preserved came tobe governed by the provisions of the 1948 Act and, therefore, the respondentcould not evict them except in the manner prescribed by the provisions of thatAct.

3. To appreciate the contentions of the parties it is necessary to tracebriefly the history of the relevant provisions. Section 23(1) of the 1939 Act,as amended by the 1946 Act, read :

(a) No lease of any landsituated in any area in which this section comes into force made after the dateof the coming into force of this section in such area, shall be for a period ofless than 10 years; and

(b) every lease subsisting on thesaid date or made after the said date in respect of any land in such area shallbe deemed to be for a period of not less than 10 years.'

4. The 1939 Act was repealed by the 1948 Act. Section 88(1) of the 1948 Act,as it stood before the amendment by the 1952 Act, read :

Nothing in the foregoingprovisions of this Act shall apply -

(a) . . . . . . . . . .

(b) . . . . . . . . . .

(c) to any area within thelimits of Greater Bombay or within the limits of the Municipal Boroughof......Surat.......and within a distance of 2 miles of the limits suchboroughs.'

5. Section 89 thereof read :

(1) The enactment specifiedin the schedule is hereby repealed to the extent mentioned in the fourth columnthereof.

(2) But nothing in this Act orany repeal effected thereby -

(a) . . . . . . . . . .

(b) shall save as expresslyprovided in this Act affect or deemed to affect,

(i) any right, title, interest,obligation or liability already acquired, accrued or incurred before thecommencement of this Act;.....'.

SCHEDULE I

-----------------------------------------------------------------------

Year No. Short Title Extent of repeal

------------------------------------------------------------------------

1 2 3 4

------------------------------------------------------------------------

1939 XXIX The Bombay The whole except

Tenancy Act, sections 3, 3-A and 4

1939. as modified in the

following manner.....

------------------------------------------------------------------------

6. Section 88 of the 1948 Act was amended by the 1952 Act. The relevant partof the amended section reads :

(1) Nothing in theforegoing provisions of this Act shall apply -

(a) . . . . . . . . . .

(b) . . . . . . . . . .

(c) to any area within thelimits of Greater Bombay within the limits of the Municipal Corporationsconstituted under the Bombay Provincial Municipal Corporation Act, 1949, withinthe limits of the Municipal Boroughs constituted under the Bombay MunicipalBoroughs Act, 1925, and within the limits of any cantonment;......'.

7. The gist of the provisions in their application to a lease ofagricultural land situated within two miles of the limits of the Surat BoroughMunicipality may be stated thus : Such a lease subsisting on the date of theamending Act of 1946, which came into force on April 11, 1946, shall be deemedto be for a period of not less than 10 years. The 1939 Act was repealed by the1948 Act. Under s. 88(1)(c) of the 1948 Act, the provisions of that Act werenot applicable to any area within the municipal limits of the said borough ofSurat and within a distance of two miles of the limits of the said borough; butthe right, title and interest of a lessee in such area was preserved under s.89(2)(b)(i) of the said Act. Section 88(1) of the 1948 Act, among other things,was amended by the 1952 Act, which came into force on January 12, 1953. By thesaid amendment the 1948 Act was extended to any area within a distance of twomiles of the limits of the Surat Borough Municipality. With the result, all theprovisions of the 1948 Act would be applicable to a lease of agriculturalland subsisting in such an area after the amendment came into force. If so, sucha lease can be terminated only in the manner prescribed by s. 14 thereof.

8. What is the effect of this legal position on the facts of the presentcase The relevant facts on which there is really no dispute may now bestated.

9. The lease deed between the appellants' predecessor and the respondent wasexecuted on May 7, 1946, for a period of six years commencing from May 3, 1946;that is to say, it would expire in the ordinary course on May 2, 1952. SachinState became part of the Bombay State from July 28, 1948. After it became partof the Bombay State, the 1939 Act, as amended by the 1946 Act, was extended tothat State; with the result the lease which would have expired in May 1952 wasstatutorily extended by another 4 years, that is, till May 1956. On December28, 1948, the 1948 Act came into force. That Act repealed the 1939 Act. It alsoexempted the lands within the limits of the Surat Borough Municipality and alsolands within two miles of the limits of the said Municipality from theoperation of the provisions of the said Act. But, it saved the right orinterest of the lessee which he had acquired under the 1939 Act. When the 1952Act came into force on January 12, 1953, the said lease, protected under thesaving clause, was subsisting. By the said amendment, the 1948 Act was madeapplicable to the land in question which is within two miles of the limits ofthe Surat Borough Municipality. With the result, the interest of the appellantscould be terminated only under s. 14 of the 1948 Act. On April 23, 1951, therespondent gave a notice to the appellants terminating the lease from March 31,1952, and filed the suit for eviction on April 21, 1952. But before the suitwas disposed of, the 1952 Act came into force, and by reason of the extensionof the 1948 Act to the said land, the respondent could not evict the appellantsexcept in the manner prescribed by the 1948 Act. The High Court, therefore, waswrong in holding that the appellants could not claim the benefit of the provisionsof the 1948 Act.

10. At this stage another argument advanced by learned counsel for therespondent may also be noticed. The argument is that the saving provision in s.89(2) operates only if there is no express provision to the contrary, but suchan express provision is found in s. 88(1), inasmuch as it says that theprovisions of Sections 1 to 87 will not apply to the area in question. It is furthercontended that the saving of the appellant's right would be otiose, as he couldnot enforce his right under the Act. A similar argument was advanced but wasrepelled by this Court in Sakharam alias Bapusaheb Narayan Sanas v. ManikchandMotichand Shah : [1962]2SCR59 . There the lands in dispute were situatewithin two miles of the limits of the Poona Municipal Borough. The question waswhether the rights of the appellants as protected tenants were affected by therepeal. This Court held that the provisions of s. 88(1) were entirelyprospective and that they applied to lands of the description contained in thesaid section from the date on which the Act came into force and that they werenot intended, in any sense, to be of confiscatory character. When it wasfurther contended that the right would be illusory, as it could not be enforcedunder the Act, this Court pointed out that as there was a right recognized bylaw there was a remedy and, therefore, in the absence of any special provisionsindicating a particular forum for enforcing a particular right the general lawof the land would naturally take its course. This decision is binding on us.We, therefore, reject this contention.

11. Even so, learned counsel for the respondent contended that in the viewtaken by the High Court it had become unnecessary for it to give its findingson two of the important issues that arose in the case, namely, issues 3 and 4,which are as follows :

Issue 3. Whether the plaintiffproves that he wants possession for bona fide personal cultivation.

Issue 4. Whether the defendantproves that he had not damaged the suit property in view of the decision inReg. C. Suit No. 619 of 1950 by the Joint Civil Judge (J.D.), Surat.

12. He, therefore, pointed out that the matter would have to be remanded tothe High Court for its decision on the said two points.

13. In view of the supervising circumstances, it is not possible to accedeto this argument. As pointed out earlier, on April 23, 1951, the respondentissued the notice on the ground that the tenancy of six years would expire onMarch 31, 1952. But by reason of the 1939 Act the tenancy was statutorilyextended till 1956. So the said notice had become ineffective and therespondent would not be entitled to any relief on its basis. It would be opento him to take any appropriate proceedings, which the law allows, in a propertribunal. In the circumstances the only course open to us is to set aside thedecree of the High Court and to restore that of the District Judge. The partieswill bear their respective costs throughout.

14. Appeal allowed.


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