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Sidram Narsappa Kamble Vs. Sholapur Borough Municipality anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtSupreme Court of India
Decided On
Judge
Reported inAIR1966SC538; 1966MhLJ527(SC); [1966]1SCR618
ActsBombay Tenancy Act, 1939; Bombay Tenancy (Amendment) Act, 1946; Bombay Tenancy and Agricultural Lands Act, 1948 - Sections 3, 3-A, 4, 31, 70, 88, 88(1), 88-B, 89 and 89(2); Bombay Tenancy and Agricultural Lands (Amendment) Act, 1956; Constitution of India - Article 227
AppellantSidram Narsappa Kamble
RespondentSholapur Borough Municipality anr.
Cases Referred and Mohanlal Chunilal Kothari v. Tribhovan Haribhai Tamboli
Excerpt:
.....88 lays down that nothing in the foregoing provisions of the1948-act shall apply inter-alia to lands held on lease from a local authority,like a municipality. 88 (1) (a) clearly is that s. 88(1) is clearly the same and therefore there is no difficulty in holding thatthere is an express provision in the 1948-act which lays down that there willbe no protected tenant of lands held on lease from a local authority. 88 were entirely prospective and were notintended in any sense to be of confiscatory character, and that s, 89(2) (b)showed clearly an intention to conserve such rights as were acquired before thecommencement of 1948-act. 31, it may very well be that thelegislature thought that the status of a protected tenant should not be givento lessees of lands from a local authority, in..........under the 1948-act and if thatprovision is in effect omitted so far as lands held on lease from a localauthority are concerned. no such lessee can claim to be a protected tenant. ineffect therefore the legislature which had conferred by the 1939-act the statusof a protected tenant on certain persons was taking away that status byenacting s. 88 in the 1948-act so far as inter alia lessees from a localauthority were concerned. 10. it matters had stood only on sections 31 and 88 there would have been nodifficulty in holding that the status of protected tenant conferred by the1939-act was taken away from certain lessees including lessees from a localauthority under s. 88 of the 1948-act. but the appellant relies on s. 89 [2][b] and contends that that provision saved his rights as a.....
Judgment:

Wanchoo, J.

1. The appellant took on lease two survey numbers from the respondent,Sholapur Borough Municipality on April 1, 1946 for a period of three years. Theland is situate within the municipal limits. About November 8, 1946, the BombayTenancy Act, No. 29 of 1939 (hereinafter referred to as the 1939-Act) wasapplied to this area and s. 3-A of that Act provided that every tenant shall onthe expiry of one year from the date of the coming into force of the BombayTenancy (Amendment) Act, (No. XXVI of 1946} be deemed to be a protected tenantunless his landlord has within the said period made an application to theMamlatdar for a declaration that the tenant was not a protected one. Therespondent did not file a suit within one year and therefore the appellantclaimed to have become a protected tenant under the 193.9-Act. The 1939-Act wasrepealed in 1948 by the Bombay Tenancy and Agricultural Lands Act, No. LXVII of1948 (hereinafter referred to as the 1948-Act). Section 31 of the 1948-Actprovided that for the- purposes of this Act, a person shall be recognised to bea protected tenant if such person had been deemed to be a protected tenantunder s. 3, 3-A or 4 of the 1939-Act. Ordinarily, therefore, the appellantwould have become a protected tenant under this section of the 1948-Act, if hehad become a protected tenant under the 1939-Act. But s. 88 of the 1948-Actinter alia provided that nothing in the foregoing provisions of the 1948-Actshall apply to lands held on lease from a local authority. Therefore if s. 88prevailed over s. 31, the appellant would not be entitled to the benefit of s.31 and could not claim to be a protected tenant under this section. Theappellant however relied on s. 89(2) of the 1948-Act which provided for therepeal of the 1939-Act except for Sections 3, 3-A and 4 which continued as modifiedin Sch. I of the 1948-Act. That sub-section provided that nothing in the1948-Act or any repeal effected thereby shall save as expressly provided inthis Act affect or be deemed to affect any right, title, interest, obligationor liability already acquired, accrued or incurred before the commencement ofthe 1948-Act.

2. In the present case the respondent gave notice to the appellant on May 2,1955 terminating his tenancy with effect from March 31, 1956. Subsequently therespondent filed suit No. 42 of 1957 for obtaining possession of the land andfor certain other relief. It was held in that suit that the respondent couldnot get possession of the lands as the appellant was entitled to the benefit ofthe 1948-Act and consequently the respondent's suit for possession wasdismissed. The respondent than appealed to the District Court. During thetendency of that appeal the appellant made in application on September 8, 1958for a declaration that he was a protected tenant to the lands and also forfixing rent under the provisions of the Tenancy Act. Further in the appeal filedin the District Court a compromise was arrived at by which the order dismissingthe respondent suit for possession was set aside and the suit was remanded tothe trial court with the direction that the suit be stayed and disposed ofafter the decision by the Mamlatdar. The compromise provided that if theappellant was finally held to be tenant by the authorities under the 1948-Actthe suit for possession would be dismissed. It also provided that if thedecision in the proceedings under the Tenancy Act went against the appellant,the suit for possession would be decreed.

3. The Mamlatdar held that the appellant was a tenant and gave him adeclaration under s. 70 [b] of the 1948-Act. The respondent then went in appealto the Collector, and the Collector decided that the Mamlatdar had nojurisdiction to decide whether the appellant was a tenant. The appellant thenwent in revision to the Bombay Revenue Tribunal. The tribunal held, in view ofthe amendments that had been made in the 1948-Act by the Amendment Act, of 1956by which s. 88-B was introduced in the 1948- Act, that the revenue court hadjurisdiction to decide whether the appellant was a tenant. Finally it remandedthe matter to the Collector for decision on the question whether the appellantwas a tenant or a protected tenant on the merits.

4. The respondent had contended before the Revenue Tribunal that theappellant could not have the status of a tenant or protected tenant in view ofthe provision of the 1948-Act and therefore the respondent filed a petitionunder Art. 227 of the Constitution of India before the Bombay High Court. Itscontention before the High Court was that in view of s. 88 of the 1948- Act theappellant could not claim to be a protected tenant within the meaning of s. 31of that act and therefore the order of the Collector was right. It was alsocontended that s. 88-B would not apply to the case of the appellant as it cameinto force on April 1, 1956 after the determination of the tenancy of theappellant by notice. Both these contention were accepted by the High Court andthe order of the Revenue Tribunal was set aside and in its place the order ofthe Collector dismissing the appellant's application was restored. Thereuponthere was an application was restored was restored. Thereupon there was anapplication to the High Court under Art. 133(1)(c) of the Constitution andthe High Court certified the case as a fit one for appeal to this Court; andthat is how the matter has come up before us.

5. This appeal was first heard by a Division Bench of this court and hasbeen referred to a larger Bench in view of certain difficulties relating to theinterpretation and inter relation of Sections 31, 88 and 89 of the 1948-Act and inview of two decisions of this Court in Sakharam v. Manikchand : [1962]2SCR59 and Mohanlal Chunilal Kothari v. Tribhovan Haribhai Tamboli : [1963]2SCR707 . It has been contended on behalf of the appellant that Sakharam's casefully covers the present case and on the basis of that case the appeal shouldbe allowed. On the other hand, learned counsel for the respondent contends thaton the ratio of Mohanlal Chunilal Kothari's case the appellant should be heldto be not a protected tenant and that considerations which applied to theinterpretation of s. 88 [1] [d] equally applied to the interpretation of s. 88[1] [a] [b] and [c]. It is further urged on behalf of the respondent that inview of the latter decision, the decision in Sakharam's case no longer holdsthe field.

6. Before we refer to the two decisions on which reliance has been placed oneither side, we may refer to the various provisions of the 1948-Act as theywere before the amendments of 1956 to decide the inter relation of Sections 31, 88and 89 of the said Act. It may be mentioned at the outset that s. 89 whichrepealed the 1939-Act did not repeal Sections 3, 3-A and 4 of that Act. These threesections continued as modified in Sch. I of the 1948-Act. A perusal of themodified sections in Sch. I shows that protected tenants were only thosetenants who satisfied these three section in the Schedule and that no newprotected tenants could come into existence under the 1948- Act after it cameinto force form December 28, 1948. Further it seems to us obvious that Sections 33-A and 4 of the 1939-Act were not repealed and were continued as modified inSch. I of the 1948-Act for the purpose of s. 31 of the 1948-Act. That sectionprovided as follows:--

'For the purposes of this Act a person shall berecognised to be a protected tenant if such person has been deemed to be a protectedtenant under section 3, 3-A or 4 of the Bombay Tenancy Act, 1939.'

7. These sections (Sections 3, 3-A and 4) which were continued in a modified formin Sch. I of the 1948-Act were so continued only for the purpose of s. 31 ofthe Act and it was not possible for any tenant to be a protected tenant underthe 1948-Act unless he was a protected tenant under the 1939-Act. The 1948-Actthus recognised such tenants as protected tenants who were protected tenantsunder the 1939-Act and even though Sections 3, 3-A and 4 of the 1939 Act werecontinued as modified by Sch. I of the 1948-Act the modifications were such asshowed that only those tenants would remain protected tenants under the1948-Act who were protected under the 1939-Act.

8. Then we come to s. 88 of the 1948-Act which is in these terms:-

' [1] Nothing in theforegoing provisions of this Act shall apply:

[a] to lands held on lease fromthe Crown, a local authority or a co- operative society.

[b].............................................................

9. Section 88 lays down that nothing in the foregoing provisions of the1948-Act shall apply inter-alia to lands held on lease from a local authority,like a municipality. As s. 31 is one of the foregoing sections it will notapply to lands held on lease from a local authority. In other words, so far aslands held on lease from a local authority are concerned, there will be noprovisions in the 1948-Act for recognising a protected tenant even if a personwas a protected tenant under the 1939- Act. It is only s. 31 which gaverecognition to the status of a protected tenant under the 1948-Act and if thatprovision is in effect omitted so far as lands held on lease from a localauthority are concerned. No such lessee can claim to be a protected tenant. Ineffect therefore the legislature which had conferred by the 1939-Act the statusof a protected tenant on certain persons was taking away that status byenacting s. 88 in the 1948-Act so far as inter alia lessees from a localauthority were concerned.

10. It matters had stood only on Sections 31 and 88 there would have been nodifficulty in holding that the status of protected tenant conferred by the1939-Act was taken away from certain lessees including lessees from a localauthority under s. 88 of the 1948-Act. But the appellant relies on s. 89 [2][b] and contends that that provision saved his rights as a protected tenant. Wehave already mentioned that s. 89 [1] repealed inter alia the 1939-Act exceptfor Sections 3, 3-A and 4 which continued in a modified forming Sch. I of section 89[2] [b] on which reliance is placed by the appellant is in these terms:-

'But nothing in this Act orany repeal effected thereby :-

[a]..................................................

[b] Shall, save as expresslyprovided in this Act, affect or be deemed to affect.

[i] any right, title, interest,obligation or liability already acquired, accrued or incurred before thecommencement of this Act, or

[ii]....................................................

11. The argument is that the interest acquired as a protected tenant underthe 1939-Act would thus not be affected in view of this provision in the1948-Act; and it is this argument which we have to examine. Now we have alreadymentioned that Sections 3, 3-A and 4 relating to protected tenants in the 1939-Actwere not repealed by the 1948-Act. Therefore that part of s. 89(2) (b) whichsays that any repeal effected thereby shall not affect or be deemed to affectany right, title, interest etc. will not apply. But learned counsel for theappellant relies on the words 'nothing in this Act shall affect or bedeemed to affect any right, title or interest....' and his argument isthat even though there might not have been a repeal of Sections 3, 3-A and 4 of the1939-Act by the 1948-Act s. 89 (2) would still protect him because it providesthat nothing in the 1948-Act shall affect or be deemed to affect any right,title, interest etc. acquired before its commencement. But the clause'nothing in this Act shall affect or be deemed to affect' is qualifiedby the words 'save as expressly provided in this Act'. Therefore, ifthere is an express provision in the 1948-Act, that will prevail over anyright, title or interest etc. acquired before its commencement. Further thewords 'save as expressly provided in this Act' also qualify the words'any repeal affected thereby' and even in the case of repeal of theprovisions of the 1939-Act if there is an express provision which affects anytitle, right or interest acquired before the commencement of the 1948-Act thatwill also not be saved.

12. The narrow question then is whether there is anything express in the1948-Act which takes away the interest of a protected tenant acquired beforeits commencement. If there is any such express oravision then s. 89(2) (b)would be of no help to the appellant. The contention of the respondent is thats. 88 is an express provision and in the face of this express provision theinterest acquired as a protected tenant under the 1939-Act cannot prevail. Onthe other hand, it is urged on behalf of the appellant that s. 88 does not inexpress terms lay down that the interest acquired by a protected tenant underthe 1939-Act is being taken away and therefore it should not be treated as anexpress provision. Now there is no doubt that s. 88 when it lays down interalia that nothing in the foregoing provisions of the 1948-Act shall apply tolands held on lease from a local authority, it is an express provision whichtakes out such leases from the purview of sections 1 to 87 of the 1948-Act. Oneof the provisions therefore which must be treated as non-existent where landsare given on lease by a local authority is in s. 31. The only provision in the1948-Act which recognised, protected tenants is s. 31 and if that section is tobe treated as non-existent so far as lands held on lease from a local authorityare concerned, it follows that there can be no protected tenants of lands heldon lease from a local authority under the 1948-Act. It is true that s. 88 doesnot in so many words say that the interest of a protected tenant acquired underthe 1939-Act is being taken away so far as lands held on Lease from a localauthority are concerned; but the effect of the express provision contained ins. 88 (1) (a) clearly is that s. 31 must be treated as non-existent so far aslands held on lease from a local authority are concerned and in effecttherefore s. 88(1)(a) must be he'd to say that there will be no protectionunder th?, 1948-Act for protected tenants under the 1939-Act so far as landsheld on lease from a local authority are concerned. It was not necessary thatthe express provision should in so many words say that there will be noprotected tenants after the 1948-Act came into force with respect to lands heldon lease from a local authority. The intention from the express words of s.88(1) is clearly the same and therefore there is no difficulty in holding thatthere is an express provision in the 1948-Act which lays down that there willbe no protected tenant of lands held on lease from a local authority. In viewof this express provision contained in s. 88(1) (a), the appellant cannot claimthe benefit of s. 31 ; nor can it be said that hi^ interest as protected fsnantis saved by s. 89(2) (b). This in our opinion is the plain effect of the provisionscontained in s. 31, s. 88 and s. 89(2) (b) of the 1948-Act.

13. It now remains to refer to Sakharam's case : [1962]2SCR59 whichcertainly supports the contention raised on behalf of the appellant. Withrespect, it seems to us that more has been read in that case in s. 89 [2] [b]than is justified under the terms of that provision. It was also observed inthat case that the provisions of s. 88 were entirely prospective and were notintended in any sense to be of confiscatory character, and that s, 89(2) (b)showed clearly an intention to conserve such rights as were acquired before thecommencement of 1948-Act. It seems to us, with respect, that in that case fulleffect was not given to the words 'save as expressly provided in this Act'appearing in s. 89(2)(b), and it was also not noticed that there could be nonew protected tenants after the 1948-Act came into force and that s. 88(1) inits application to leases from local authorities will have no meaning unless itaffected the rights contained in s. 31, It may very well be that thelegislature thought that the status of a protected tenant should not be givento lessees of lands from a local authority, in the interest of the generalpublic and therefore took away that interest by the express enactment of s.88(l)(a). The status was after all conferred by the 1939-Act and we can see nodifficulty in its being taken away by the 1948-Act. It may be mentioned that s.88(l)(a) applies not only to lands held on lease from a local authority butalso to lands held on lease from the State, and one ca'h visualisesituations where the State may need to get back lands leased by it in publicinterest. It must therefore have been in the interest of the public that aprovision like s. 88 (l)(a) was made with respect to lessees from a localauthority or the State who had become protected tenants under the 1939-Act. Weare supported in the view we have taken by the decision of this Court inMokanlat Chunilal Kothari's case where it was held that s. 88 (l)(d) would berendered completely ineffective if it was not to be applied retrospectively,though it was added in that case that it did not affect the rights acquiredunder the earlier Act of 1939. The latter observation, with re-pect, does notseem to be correct for their could be no new protected tenants under the1948-Act to whom even s. 88(l)(d) could have applied. Further if a notificationunder s. 88 (l)(d) could be retrospective upto the date of the 1948-Act we cansee no reason on the language of this section to hold that it was retrospectiveonly upto 1948 and would not affect the rights acquired under the 1939-Act.

14. We may also mention that by an oversight it was stated in MohanlalChunilal Kothari's case : [1963]2SCR707 that clause [a], [b] and [c] of s.88 [1] apply to things as they were at the date of the enactment. It is howeverclear that clauses [a], [b] and [c] of s. 88 [1] also apply in the future. Forexample Clause [a] lays down that nothing in the foregoing provisions of this Actshall apply to lands held on lease from Government, a local authority or co-operative society. The words held on lease in this clause are only descriptiveof the lands and are not contained to lands held on lease on the date the actcame into force; they equally apply to lands leased before or after the Actbecame law and the distinction that was drawn in Mohanlal Chunilal Kotharis;case : [1963]2SCR707 that cls. [a], [b] and [c] applied to things as theywere at the date of the enactment whereas Clause [d] was with respect to future,with respect, does not appeal to be correct.

15. In this view of the matter, the view taken by the High Court in thejudgment under appeal that s. 88 [1] [a] is an express provision which takesaway the interest of protected tenants under the 1939-Act must be held to becorrect.

16. So far as the argument based on s. 88-B is concerned, it is enough tosay that we agree with the High Court that that section will not protect theappellant for his lease had already been determined before the section cameinto force on April 1, 1956 Besides it may be observed that s. 4-A which takesthe place of s. 31 after the amendment of 1956 still does not apply to case oflands held on lease from a local authority and therefore what we have said withrespect to s. 31 will equally apply to s. 4-A and the appellant cannot claimthe benefit of that section and contend that he is a protected tenant under the1939-Act and therefore cannot be ejected.

17. In the result we dismiss the appeal but in the circumstances of thiscase we order the parties to bear their own costs.

18. Appeal dismissed.


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