N.H. Bhatt, J.
1. This Special Civil Application has been referred to the Division Bench by P.D. Desai, J. of this Court as per his order dated November 16, 1976 because he found it not possible for him to agree with the judgment of the learned Single Judge of this Court in the case of Ambalal v. Jagdishchandra 17 G.L.R. 578. The short question that falls to be determined in this Special Civil Application is whether a mortgagee inducted on the agricultural piece, of land prior to 20th December 1948, the date on which the Bombay Tenancy and Agricultural Lands Act, 1948 came into operation, would be a protected tenant entitled to various protections provided for him in this Act. In the reported judgment, the learned Single Judge of this Court C.V. Rane J. held that the judgment of the Division Beach of this case in the case of Salman Raje v. Madhavsang 4 G.L.R. 817 was no longer good law in view of the judgment of the Supreme Court in the case of S.N. Kamble v. The Sholapur Borough Municipality A.I.R. 1966 Section 538.
2. The facts of this case are no longer in dispute. The petitioner in this petition is the owner of the agricultural land who had mortgaged his field with the respondent No. 1 in the year 1943. The said mortgage continued to remain operative till 22nd November 1966 when the petitioner allegedly redeemed the said field by paying to the respondent No. 1 the mortgage money, namely, Rs 3251/-. Thereafter on 7-3-69, the respondent No. 1 filed an application under Section 70B of the Bombay Tenancy Act for a declaration that he was the protected tenant of the land. Ultimately, the Revenue Tribunal, setting aside the judgment of the Mamlatdar and the appellate authority, held that in view of the judgment of the Gujarat High Court, in the case of Salmon Raje (supra), the respondent No. 1 was a protected tenant, who was not liable to be evicted from the land in question.
3. The point arising in this petition had pointedly come up before the Division Bench of this Court in Salmon Raje's (supra) case and the Division Bench laid down the law very clearly in the following terms:
Since the mortgage in favour of the petitioner was made in 1943 and the petitioner went into possession by virtue of the mortgage, the parties would be governed by the Bombay Tenancy Act XXIX of 1939, which was applied to the District of Ahmedabad on and from April 1946. As the landlord did not file any application as laid down in the Amendment Act of 1946, within one year of the Act coming into force, the petitioner who became a deemed tenant under Section 2A was also deemed to be a protected tenant under Section 3A of the 1939 Act. If a tenant of a mortgagee became a deemed tenant under Section 2A of the Bombay Tenancy and Agricultural Lands Act, 1939, on the ground only that he came on the land lawfully, though not because of the permission of or privity with the owner, a mortgagee under an usufructuary mortgage must necessarily be in the identical position and must be said to be a deemed tenant on the same reasoning under Section 2A of the 1939 Acts.
The above judgment of the Division Bench of this Court should have normally disposed of this petition, but on behalf of the petitioners strong reliance was placed on the judgment of the learned Single Judge in Ambalal's (Supra) case reported at 17 G.L.R. 578. The learned Single Judge in that case held as follows:
The object of Section 4(c) of the Bombay Tenancy Act of 1948 falls within the clause 'save as expressly provided in this Act' occurring in Section 89(2)(b) of the 1948 Act and in that case, it would be difficult to say that, the status of a deemed tenant alleged to have been acquired by the appellants under the Bombay Tenancy Act of 1939 is saved by Section 89(2)(b)(i) of the 1948 Act. In other words, in the face of the express provision of Section 4(c) of the 1948 Act which specifically excludes mortgagee in possession from the category of a deemed tenant, there is no scope for saying that, the appellants' status as deemed tenants is saved by the provisions of Section 89(2)(b)(i) of the 1948 Act. An express provision to the contrary would hit any such right acquired before the commencement of the Act. It should further be remembered that mortgage in possession was specifically excluded from the category of deemed tenant by Section 4(c) of the 1948 Act in order to remove the anomalies created by Section 2A of the 1939 Act so far as mortgagee in possession is concerned and hence it is not likely that the legislature would have intended to protect any right of a mortgagee in possession to be included in the category of a deemed tenant under Section 2A of the 1939 Act, after Section 4(c) of the 1948 Act containing the provision to the contrary was enacted.
Then the learned Judge has further observed as follows:
It appears with great respect to the learned Judges who decided the case of Salman Raje (supra) that case full effect has not been given to the words 'save as expressly provided in this Act' appearing in Section 89(2)(b) of the 1948 Act and in view of the decision of the Supreme Court in the case of S.N. Kamble (supra) the decision of this Court in the case of Salmon Raje cannot be considered to be a good law.
4. In this connection it is to be recalled that the judgment of the Supreme Court in S.N. Kamble's case (supra) was dealing with Section 88 (1)(a) read with Section 89(2)(b) of the Bombay Tenancy and Agricultural Lands Act expressly taking away the interest of protected tenants under Bombay Tenancy Act, 1939 when the tenancy was created in the tenant's favour by a Borough Municipality. It was the total exclusion that was provided for in the larger interests of all the local authorities. The analogy of that judgment obviously would not be extended to the case of private individuals. Unfortunately for the petitioner Section 4(A) of the Bombay Tenancy Act, 1948 was not brought to the notice of the learned Single Judge. Despite the insertion of Clause (c) of Section 4 in the Act, Section 4(a) is there to protect the tenants who are deemed to be the protected tenants under Sections 3, 3A and 4 of the Bombay Tenancy Act, 1939 referred to in Schedule to this Act. If the legislature wanted to take away the said benefit conferred on the tenants, who were mortgagees in possession Section 4A would not have found place in the statute book at all. Section 4A, therefore, is a clear reply to the view propounded by the learned Single Judge. Section 89(2)(b) on which reliance has placed by the learned Judge has no application. Sub-see. (2) of Section 89 reads as follows:
89(2) But nothing in this Act or any repeal effect thereby,
(b) shall, save as expressly provided in this Act, affect or be deemed to affect,
(i) any right, title interest, obligation or liability already acquired, accrued or incurred before the commencement of this Act, or
(ii) any legal proceedings or remedy in respect of any such right, title interest, obligation or liability or anything done or suffered before the commencement of this Act
and any such proceedings shall be continued and disposed of, as if this Act was not passed.
The phrase 'save as expressly provided in this Act' occurring in Clause (b) of Sub-section (2) of Section 89 of the Act does not limit the scope of Section 4A in any way. Section 4A does not provide otherwise, but on the contrary provides that the rights of deemed protected tenants, the status which had accrued to a person under the provisions of 1939 Act, would prevail despite what has been stated there. In above view of the matter, the judgment of the learned Single Judge in Ambalal's case (supra) is no good law. The view expressed by the learned Single Judge is not the correct view and the correct law laid down in this connection is the one expressed by the Division Bench in Salmon Raje's case (supra).
5. Mr. Amin, however, had placed heavy reliance on the judgment of the Bombay High Court in the case of Gulabrai M. Wani v. Hemakashiram Gajare 59 B.L.R. 194 where an observation is to the effect that the character of a mortgagee or a person entering into possession of the agreement of sale is in contrast with the character of a tenant. The reply to this argument is already given by the Division Bench of this Court in Salman Raje's case (supra). The Division Bench has ruled that this is a special Act creating special relationship in the special exigencies of the times and the old notions regarding the relationship should not militate against the express provisions of law. Mr. Amin has also invited our attention to the case of Dahya Laid v. Rasul Mohomed Abdul Rahim (S.C.) 65 B.L.R. 328. It has no bearing on the question before us. The Supreme Court no doubt there stated that the Legislature had restricted the exclusion to mortgagees in possession from the class of deemed tenants and had intended that the tenant lawfully inducted by the mortgagee shall on redemption of the mortgage be deemed to be tenant of the mortgagor and that a mortgagee in possession is excluded from the class of deemed tenants on grounds of public policy, to confer that status upon a mortgagee in possession would be to invest him with rights inconsistent with his judiciary character. However, the Supreme Court was dealing with a case arising under Section 4 of the Bombay Tenancy and Agricultural Lands Act, 1948 and these general observations will not be applicable to the special facts envisaged by the provisions of the Bombay Tenancy Act, 1939. The result is that the petition fails and is dismissed with no order as to costs.
6. Mr. Amin at this stage made an oral application for leave to appeal to the Supreme Court under Article 133 of the Constitution of India. We are unable to certify that this is a fit case involving substantial question of law of general importance, which in our opinion requires to be decided by the Supreme Court. The oral request is therefore, rejected.
The interim relief is continued for the period of 60 days from today to enable the petitioner to approach the Supreme Court.