Trimbak Damodhar Raipurkar Vs. Assaram
Hiraman Patil & Ors  INSC 334 (29 November 1961)
GUPTA, K.C. DAS AYYANGAR, N. RAJAGOPALA
CITATION: 1966 AIR 1758 1962 SCR Supl. (1)
CITATOR INFO :
RF 1972 SC 161 (19,21,24) RF 1981 SC 998 (2)
D 1991 SC 14 (7)
Tenancy-Termination of-Valid notice given
before commencement of new Act-Course prescribed by statue must be
followed-Right to eject, accrues only after the period specified in notice is
over- Existing rights and vested rights-Distinction- Statue operating in
future, affecting existing rights-If retrospective-Bombay Tenancy Act,
1939(Bom. 29 of 1939), s. 23(1) (b)-Bombay Tenancy and Agricultural Lands Act,
1948(Bom. 67 of 1948), ss. 5, 14(2)-Bombay Tenancy and Agricultural Lands
(Amendment) Act, (Bom. 33 of 1952) s. 2.
In February 1943 the appellant leased out an
agricultural land for 5 years to the respondent.
Before the expiry of the lease, the Bombay
Tenancy Act, 1939, was made applicable to the area where the land was situated,
and under s. 23(1)(b) the period of the lease was statutorily extended to 10
years. During the subsistence of the tenancy thus statutorily extended, the
Bombay Act 67 of 1948 came into force. In March 1952 the appellant gave notice
to the respondents intimating that the statutory period of tenancy expired on
31st March 1953, and called upon them to deliver possession immediately
thereafter. Before the notice could effectively be enforced the Bombay Act 33
of 1952 came into force, the effect of which was that the lease was
automatically extended for 10 years from time to time, unless terminated by
giving one year's notice with the averment that the land was required bona fide
by the landlord for personal cultivation and that income would be the main
source of income to the landlord.
The appellant's case was that the technical
requirements of a valid notice prescribed by the Amending Act do not apply to
his claim inasmuch as the relevant provisions of the amending Act are not
retrospective in operation. The question was whether the appellant was entitled
to eject the respondents even without complying with the statutory requirement
as to valid notice prescribed by the Amending Act 33 of 1952.
^ Held, that by virtue of the Amending Act 33
of 1952 the period of lease was automatically extended for a period of ten
years from time to time, unless terminated by a valid 701 notice or a surrender
was made by the tenant as specified by the statute, otherwise the tenancy would
be extended from time to time at a stretch of every ten years. In order to put
an end to the tenancy, thus statutorily safe guarded, the landlord had to
follow the course prescribed by the amending statute to give a valid notice as
required by the said statute. The right of a landlord to obtain possession does
not accrue merely on the giving of the notice, it accrues in his favour on the
date when the lease expires. It is only after the period specified in the notice
is over and the tenancy in fact had expired that the landlord gets a right to
eject the tenant and take possession of land.
Held, further, that there is distinction
between existing right and vested right. Where a statute operates in future it
cannot be said to be retrospective merely because within the sweep of its
operation all existing rights are included.
The operation of s. 5(1) of the Amending Act
is not retrospective, it merely affects in future the existing rights under all
leases whether executed before or after the date of the Act.
West. v. Gwynne, [191I] 2 Ch. 1, Durlabhai
Fakirbhai v. Jhaverbhai Bhikabhai, (1955) 58 Bom. L. R. 85, applied.
Jivabhai Purshottam v. Chhagan Karson,
1 S. C. R. 568, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 19 of 1961.
Appeal by special leave from the judgment and
order dated April 11, 1957, of Bombay High Court, in Special Civil Application
No. 3170 of 1956.
K. R. Bengeri and A. G. Ratnaparkhi, for the
E. Udayaratnam and S. S. Shukla, for the
1961. November 29. The Judgment of the Court
was delivered by GAJENDRAGADKAR, J.-This appeal by special leave arises out of
a tenancy case instituted by the appellant against his tenants the respondents
in the Court of the Mamlatdar Raver (East Khandesh), in the State of
Maharashtra. The property in suit 702 consists of agricultural lands, Survey
Nos. 32 and 38, situated in the village Raipur. The respondents had executed a
rent note in respect of these lands in favour of the appellant on February 5,
1943. The period for which the rent note was executed was five years and the
rent agreed to be paid annually was Rs. 785/-. In ordinary course the lease
would have expired on March 31, 1948.
However, before the lease expired, on April
11, 1946 the Bombay Tenancy Act, 1939 (Bombay Act XXIX of 1939) was applied to
the area of the East Khandesh where the lands are situated, and in consequence
as a result of s. 23 (1) (b) of the said Act the five years period stipulated
in the rent note was statutorily extended to ten years;
the result was that under the said statutory
provision the rent note in favour of the respondents would have expired on
March 31, 1953.
During the subsistence of the tenancy thus
statutorily extended the Bombay Tenancy and Agricultural Lands Act LXVII of
1948 came into force. This act repealed the earlier Act of 1939 except ss. 3,
3(a) and 4 as modified. Sections 5 and 14 (2) of this Act are material. On
March 11, 1952 the appellant gave notice to the respondents intimating to them
that the period of the rent note executed by them which had been statutorily
extended would expire on March 31, 1953 and calling upon them to deliver
possession of the lands to him immediately thereafter. Before the notice could
be effectively enforced on the expiration of the period of the lease, however,
Bombay Act XXXIII of 1952 came into operation on January 12, 1953. This Act
repealed s. 14(2) and amended s. 5 and added sub-s. (3) to it. Shortly stated
the effect of this amendment was that the tenancy of the respondents, who were
till then ordinary tenants as distinct from protected tenants, could not be
terminated on the expiry of their tenancy except by giving one year's notice
and that too on the ground that the lands were required by 703 the landlord for
bona fide personal cultivation and that the income of the said lands would be
the main source of income of the landlord. The relevant averments about these
grounds had to be made by the landlord in issuing the notice to the tenants for
terminating their tenancy.
On April 4, 1953 the appellant instituted the
present tenancy proceedings for obtaining possession of the lands. The
Mamlatdar who tried the proceedings rejected the appellant's claim on the
ground that he had not terminated the tenancy of the respondents as required by
law in that he had not given the statutory notice making the prescribed
relevant averments in that behalf. The appellant then preferred an appeal
against the decision of the Mamlatdar but the appellate authority agreed with
the view taken by the Mamlatdar and dismissed his appeal. The dispute was then
taken by the appellant before the Bombay Revenue Tribunal by way of a
revisional application; and the revisional application succeeded. The Tribunal
held that the relevant amendments on which the Mamlatdar and the appellate
authority had relied in dismissing the appellant's claim were not retrospective
and that the appellant was entitled to eject the respondents. This order of the
Revenue Tribunal was challenged by the respondents by a petition filed by them
under Art. 227 of the Constitution in the Bombay High Court. The High Court has
allowed the writ petition and held that the relevant amendments are
retrospective in operation and that the appellant is not entitled to eject the
respondents. On that view the order passed by the Revenue Tribunal has been set
aside and that of the appellate authority restored. It is against this decision
that the appellant has come to this Court by special leave.
It is necessary at the outset to set out the
relevant statutory provisions which fall to be considered in the present
704 Section 23 (1) (b) of the Bombay Tenancy
Act of 1939 which statutorily extended the original contractual five years
period of the lease to ten years reads thus: "Every lease subsisting on
the said date (that is to say the date on which s. 23 came into force) or made
after the said date in respect of any land in such area shall be deemed to be
for a period of not less than ten years". We have already noticed that as
soon as this act was made applicable to the area where the lands in question
are situated the original period of five years agreed to between the parties
for the duration of the lease was statutorily extended to ten years.
Then followed the Tenancy Act LXVII of 1948.
Section 5 of the said Act originally stood
"5. (1) No tenancy of any land shall be
for a period of less than ten years.
Notwithstanding any agreement, usage or law
to the contrary, no tenancy shall be terminated before the expiry of a period
of ten years except on the grounds mentioned in section 14:
Provided that any tenancy may be terminated
by a tenant before the expiry of a period of ten years by surrendering his
interest as a tenant in favour of the landlord." Section 14, sub-s. (2)
which is relevant reads thus:
"In the case of tenant, the duration of
whose tenancy is for a period of ten years or more, the tenancy shall terminate
at the expiration of such period, unless the landlord has by the acceptance of
rent or by any other act or conduct of his allowed the tenant to hold over
within the meaning of Section 116 of the Transfer of Property Act 1882."
On January 12, 1953, the amending Act XXXIII of 1952 came into force. By this
amending Act 705 the following proviso was added to sub-s. (1) of s. 5:
"Provided that at the end of the said
period and thereafter at the end of each period of ten years in succession, the
tenancy shall, subject to the provisions of Sub-Sections (2) and (3), be deemed
to be renewed for a further period of ten years on the same terms and
conditions notwithstanding any agreement to the contrary." The said
amending Act repealed s. 14 (2) of Act LXVII of 1948 and amended s. 5, sub-s.
(2) in this way:
"The landlord may, by giving the tenant
one year's notice in writing before the end of each of the periods referred to
in Sub- Section (1), terminate the tenancy, with effect from the thirty-first
day of March in the last year of each of the said period, if he bona fide
requires the land for any of the purposes specified in Sub-Section (1) of
Section 34, but subject to the provisions of Sub-Section (2) and (2A) of the
said Section, as if such tenant was a protected tenant." A new
sub-section, sub-s. (3) was added to s. 5.
This new sub-section reads thus:
"Notwithstanding anything contained in
sub-section (1)- (a) every tenancy shall, subject to the provisions of sections
24 and 25, be liable to be terminated at any time on any of the grounds
mentioned in section 14; and (b) a tenant may terminate the tenancy at any time
by surrendering his interest as a tenant in favour of the landlord:
Provided that such surrender shall be in
writing and shall be verified before the Mamlatdar in the prescribed
manner." 706 It is common ground that if the provisions of the amending
Act XXXIII of 1952 are applicable to the present proceedings the appellant
would not be entitled to claim the ejectment of the respondents because he has
not given any notice in that behalf as prescribed by the said relevant
provisions of the amending statute. His case, however, is that the technical
requirements of a valid notice prescribed by the amending Act do not apply to
his claim inasmuch as the relevant provisions of the amending Act are not
retrospective in operation.
According to him he has already given notice
to the respondents on March 11, 1952, intimating to them unequivocally his intention
to eject them from the lands on the expiration of the ten year period of the
lease. The High Court has held that this contention is not well-founded and so
the appellant's claim for ejectment has been dismissed. The question which
arises for our decision is whether the appellant is entiled to eject the
respondents even without complying with the statutory requirement as to the
valid notice prescribed by the amending Act XXXIII of 1952.
It would be noticed that though the lease
originally was for five years, before the five years expired the duration of
the lease was statutorily extended to ten years by virtue of the provisions of
s. 23(1)(b) of Act XXIX of 1939. A somewhat similar, though from the point of
view of the appellant a more revolutionary, result followed when a proviso was
added to s. 5(1) by the amending Act XXXIII of 1952. By virtue of this
amendment the period of the lease gets automatically extended for ten years
from time to time. In other words, before the lease in favour of the respondents
could expire on March 31, 1953, by virtue of the proviso to s. 5(1) of the
amending Act of 1952 it got extended for ten years, and unless it is terminated
by a valid notice or a surrender 707 is made by the tenant as specified by the
statute the tenancy would be extended from time to time at every stretch for
ten years. Therefore, there can be no doubt that as a result of the amending
Act of 1952 the expiration of the lease did not take place on March 31, 1953 as
had been anticipated by the appellant when he gave notice on March 11, 1952. In
one sense the amending Act which is undoubtedly a piece of beneficent
legislation conferred on the respondents additional rights and these additional
rights were conferred on them before the lease in their favour had come to an
end. In order to put an end to the tenancy thus statutorily safeguarded the
appellant has to follow the course prescribed by the amending statute and give
a valid notice as required by the said statute. Just as the appellant could not
have complained against the extension of the original period of five years to
ten years by Act XXIX of 1939 so he cannot complain against the further
extensions statutorily granted to the respondents by s. 5(1) of the amending
Act XXXIII of 1952.
That is one aspect of the matter.
Besides, it is necessary to bear in mind that
the right of the appellant to eject the respondents would arise only on the
termination of the tenancy and in the present case it would have been available
to him on March 31, 1953 if the statutory provision had not in the meanwhile
extended the life of the tenancy. It is true that the appellant gave notice to
the respondents on March 11, 1952 as he was then no doubt entitled to do; but
his right as a landlord to obtain possession did not accrue merely on the
giving of the notice, it accrued in his favour on the date when the lease
expired. It is only after the period specified in the notice is over and the
tenancy has in fact expired that the landlord gets a right to eject the tenant
and obtain possession of the land. Considered from this 708 point of view,
before the right accrued to the appellant to eject the respondents amending Act
XXXIII of 1952 stepped in and deprived him of that right by requiring him to
comply with the statutory requirement as to a valid notice which has to be
given for ejecting tenants.
In this connection it is relevant to
distinguish between an existing right and a vested right. Where a statute
operates in future it cannot be said to be retrospective merely because within
the sweep of its operation all existing rights are included. As observed by
Buckley, L. J.
in West v. Gwynne retrospective operation is
one matter and interference with existing rights is another. "If an Act
provides that as at a past date the law shall be taken to have been that which
it was not that Act I understand to be retrospective. That is not this case.
The question here is whether a certain provision as to the contents of leases
is addressed to the case of all leases or only of some, namely, leases executed
after the passing of the Act. The question is as to the ambit and scope of the
Act, and not as to the date as from which the new law, as enacted by the Act,
is to be taken to have been the law." These observations were made in dealing
with the question as to the retrospective construction of s. 3 of the
Conveyancing and Law of Property Act, 1892 (55 & 56 Vict. c. 13). In
substance s. 3 provided that in all leases containing a covenant, condition or
agreement against assigning, underletting, or parting with the possession, or
disposing of the land or property leased without licence or consent, such
covenant, condition or agreement shall, unless the lease contains an expressed
provision to the contrary, be deemed to be subject to a proviso to the effect
that no fine or sum of money in the nature of a fine shall be payable for or in
respect of such licence or consent. It was held that the provisions of 709 the
said section applied to all leases whether executed before or after the
commencement of the Act; and, according to Buckley, L. J., this construction
did not make the Act retrospective in operation; it merely affected in future
existing rights under all leases whether executed before or after the date of
the Act. The position in regard to the operation of s. 5(1) of the amending Act
with which we are concerned appears to us to be substantially similar.
A similar question had been raised for the
decision of this Court in Jivabhai Purshottam v. Chhagan Karson in regard to
the retrospective operation of s. 34(2)(a) of the said amending Act XXXIII of
1952 and this Court has approved of the decision of the full Bench of the
Bombay High Court on that point in Durlabbhai Fakirbhai v.
Jhaberbhai Bhikabhai. It was held in
Durlabbhai's case that the relevant provision of the amending Act would apply
to all proceedings where the period of notice had expired after the amending
Act had come into force and that the effect of the amending Act was no more
than this that it imposed a new and additional limitation on the right of the
landlord to obtain possession from his tenant.
It was observed in that judgment that "a
notice under s. 34(1) is merely a declaration to the tenant of the intention of
the landlord to terminate the tenancy; but it is always open to the landlord
not to carry out his intention.
Therefore, for the application of the
restriction under sub-s. 2(A) on the right of the landlord to terminate the
tenancy, the crucial date is not the date of notice but the date on which the
right to terminate matures; that is the date on which the tenancy stands
Mr. Bengeri, for the appellant, fairly
conceded that the decision of this Court in Jivabhai's case was against his
contention but he purported to rely 710 on another decision of this Court in
Sakharam alias Bapusaheb Narayan Sanas v. Manikchand Motichand Shah. In that
case the Court was called upon to consider the question as to whether the
provisions of s. 88 of Bombay Act LXVII of 1948 were retrospective in operation
or not, and it has been held that the said provisions are prospective. However,
we do not think that the position with regard to the provisions contained in s.
88 can be said to be analogous or similar to the position with regard to the
relevant provisions of the amending Act XXXIII of 1952 with which we are
concerned in the present appeal.
Therefore, we do not think that Mr. Bengeri
can make any effective use of the said decision.
In the result the appeal fails and is
dismissed with costs.