Mohanlal Chunilal Kothari Vs.
Tribhovan Haribhai Tamboli [1962] INSC 186 (2 May 1962)
02/05/1962 SINHA, BHUVNESHWAR P.(CJ) SINHA,
BHUVNESHWAR P.(CJ) GAJENDRAGADKAR, P.B.
WANCHOO, K.N.
AYYANGAR, N. RAJAGOPALA AIYYAR, T.L.
VENKATARAMA
CITATION: 1963 AIR 358 1963 SCR (2) 707
ACT:
Suit-Decree-Law changed during pendency of
appeal Appellate Court, if bound to apply changed law-Retrospective
operation-Bombay Tenancy and Agricultural, Lands Act (Bom.
LXVI of 1948, S. 88 (1) (d)-Bombay Tenancy
Act, 1939, 8. 3A (1).
HEADNOTE:
Certain lands were situated in the erstwhile
State of Baroda before it became a part of the State of Bombay by merger.
The Bombay Tenancy and Agricultural Lands
Act, 1948, was extended to Baroda on August 1, 1949. Suits were filed in the
Civil Court by appellantslandlord-, against the respondents who were their
tenants on the ground that the latter became trespassers with effect from the
beginning of the new agricultural season in May, 1951. Decrees for possession
were passed by the Civil Court in favour of landlords and the same were
confirmed by the first appellate court. However, the High' Court accepted the
appeals and dismissed the suits. It was held that under the provisions of s. 3
A(1) of the Bombay Tenancy Act, 1939, as amended, a tenant would be deemed to
be a protected tenant from August 1, 1950 and that vested right could not be
affected by the notification dated April 24, 1951 issued under s. 89 (1) (d) of
the Act of 1948 by which the land in suit was excluded from the operation of
the Act. The notification dated April 24, 1931 had no retrospective effect and
did not take away the protection 708 afforded to tenants by s. 3A. The
landlords came to this Court by special leave. It was conceded that the
appellants' suits for possession would fail if the Act applied to the tenancies
in question, because in that case only revenue courts had jurisdiction to try
them. However, reliance was placed on notification dated April 24,1951 which
excluded the land in suit from the operation of the Act. It was also contended
on behalf of appellants that the subsequent notification cancelling the first
one, could not take away the rights which had accrued to them as a result of
the first notification.
Held, that the notification dated April 24, 1951
was cancelled by another notification dated January 12, 1953.
The second notification was issued when the
matter was still pending in the first court of appeal. The suits had therefore
to be decided on the basis that there was no notification in existence which
would take the disputed lands out of the operation of the Act. The first
appellate court was wrong in holding that the suits had to be decided on the
basis of facts in existence on the date of filing of the suits.
Held, further, that the second notification
cancelling the first one did not take away any rights which had accrued to the
landlords. If the landlords had obtained an effective decree and had succeeded
in ejecting the tenants as a result of that decree which may have become final
between the parties, that decree may not have been re-opened and the execution
taken there under may not have been recalled.
However, it was during. the pendency of the
suit at the appellate stage that the second notification was issued cancelling
the first and the court was bound to apply the law as it was on the date of its
judgment.
Held, also, that clauses (a), (b) and (c) of
s. 88(1) applied to things as they were on the date of the commencement of the
Act of 1948 whereas clause (d) authorised the State Government to specify
certain areas as being reserved for urban non-agricultural or industrial
development, by notification in the Official Gazette, from time to time. It was
specifically provided in clauses (a) to (c) that the Act, from its inception, did
not apply to certain areas then identified, whereas clause (d) had reference to
the future.
The State Government could take out of the
operation of the Act such areas as in its opinion should be reserved for urban
nonagricultural or 'industrial development. Clause (d) would come into
operation only upon such a notification being issued by the State Government.
In Sukharam's case, this Court never intended to lay down that the provisions
of 709 clause (d) were only prospective and had no retrospective operation.
Unlike clauses (a) to (c) which were clearly prospective, clause (d) had
retrospective operation in the sense that it would apply to land which would be
covered by the notification to be issued by the Government from time to 2 time
so as to take that land out of the operation of the Act of 1948, granting the
protection. So far as clauses (a) to (c) were concerned, the Act of 1948 would
not apply at all to lands covered by them, but that would not take away the
rights conferred by the Act of 1939 which was repealed by the Act of 1948.
Section 89(2) specifically preserved the existing rights under the repealed
Act. Sukharam's case was about the effect of clause (c) on the existing rights
under the Act of 1939 and it was in that connection that this Court observed
that s. 88 was prospective. However clause (d) is about the future, and unless
it has the limited retrospective effect indicated earlier, it will be rendered
completely nugatory. The intention of the legislature obviously was to take
away all the benefits arising out of the Act of 1948 (but not those arising
from the Act of 1939) as soon as the notification was made under clause (d).
Sakharam v. Manikchand Metichand Shah, (1962)
2 S.C.R. 59, explained.
Civil APPELLATE JURISDICTION: Civil Appeal
Nos. 282 & 283 of 1959.
Appeals by special leave from the judgment
and decree dated December 18, 1956, of the Bombay High Court at Bombay in
Second Appeals Nos. 233 and 185 of 1955 respectively.
G. S. Pathak, O. C. Mathur, J. B. Dadachanji
and Ravinder Narain, for the appellants.
S. G. Patwardhan and K, R. Choudhri, for the
respondents.
1962. May 2. The Judgment of the Court was
delivered by SINHA, C.J.-These two appeals, by special leave, directed against
the judgment and decree of a single Judge of the Bombay High Court, raise a
common question of law, and have.. therefore, been heard together. This
judgment will govern both the cases. The appellants were plaintiff landlords,
710 and the respondents were tenants-in-possession of certain lands which were
situate in the erstwhile State of Baroda before it became part of the State of
Bombay, by merger. The Bombay Tenancy and Agricultural Lands Act (Bombay Act
LXVII of 1948)-which hereinafter will he referred to as the Act-was extended to
Baroda on August 1, 1949. The suits out of which these appeals arise had been
instituted by the appellants on the basis that the tenants respondents had
become trespassers on the service of notice in March 1950, with effect from the
beginning of the new agricultural section in May 1951. As the defendants did
not comply with the terms of the notice and continued in possession of the
lands, to which they had been inducted, the landlords instituted suits for
possession in the Civil Court. The Trial Courts and the Court of Appeal decreed
the suits for possession. But on second appeal by the tenants, the learned
Single Judge. who heard the second appeals, allowed the appeals and dismissed
the suits with costs throughout.
It is not disputed that if the provisions of
the Act were applicable to the tenancies in question, the plaintiffs' suits for
possession must fail, because these were instituted in the Civil Courts, which
have Jurisdiction to try the suits only if the dependents were trespassers. It
is equally clear that if the tenants could take advantage of the provisions of
the Act, any suit for possession against a tenant would lie in the Revenue
Courts and not in the Civil Courts. But reliance was placed upon the
notification issued by the Bombay Government on April 24, 1951, to the
following effect :
"In exercise of the powers conferred by
clause (d) of sub-section (1) of Section 88 of the Bombay Tenancy and
Agricultural Lands Act, 1948 (Bombay LXVII of 1948) the Government of Bombay is
pleased to specify the area 711 within the limits of the Municipal Borough of
Baroda City and within the distance of two miles of the limits of the said
Borough, as being reserved for Urban, non-agricultural or industrial
development".
The learned Judge of the High Court, in
disagreement with the Courts below,, held that under provisions of s. 3A(1) of
the Bombay Tenancy Act, 1939, as amended, a tenant would be deemed to be a
protected tenant from August 1, 1950,' and that vested right could not be
affected by the notification aforesaid, issued by the Government under s. 88
(1)(d) which had the effect of putting the lands in question out of the
operation of the Act. In other words, the learned Judge held the notification
had no retrospective effect so as to take away the protection afforded to the
tenants by a. 3A, aforesaid.
The learned counsel for the appellants
contended. in the first instance, that the notification, set out above, under
s. 88 (1)(d) operated with effect from December 28, 1948, when the Act came
into force. In this connection, reliance was placed upon the decision of this
Court, pronounced by me sitting in a Division Court, in the case of Sakharam v.
Manikchand Motichand Shah, (1) in these words :
"The provisions of a. 88 are entirely
prospective. They apply to lands of the description contained in cls. (a) to
(d) of s. 88(1) from the date on which the Act came into operation, that is to
say, from December 28, 1948. They are not intended in any sense to be of a
confiscatory character. They do not show an intention to take away what had
already accrued to tenants acquiring the status of 'protected tenants".
712 It is necessary, therefore, to make some
observations explaining the real position. In that case, the question then in
controversy had particular reference to s. 88(1)(c), which is the only
provision quoted at page 2 of the blue print of the judgment. That case had
nothing to do with el.
(d) of s. 88(1). In that case, the lands in
dispute lay within two miles of the limits of Poona Municipality. It is clear,
therefore, that the inclusion of el. (d) of s. 88(1) was a slip and certainly
was not relevant for consideration in that case. The provisions of s. 88(1) are
as follows :
"Nothing in the foregoing provisions of
this Act shall apply:
(a) to lands held on lease from the Government
a local authority or a co-operative society;
(b) to lands held on lease for the benefit of
an industrial or commercial undertaking;
(c) to any area within the limits of Greater
Bombay and within the limits of the Municipal boroughs of Poona City and
Suburban, Ahmadabad, Sholapur, Surat and Hubli and within a distance of two
miles of the limit,% of such boroughs; or (d) to any area which the State
Government may, from time to time, by notification in tile Official Gazette,
specify as being reserved for urban non-agricultural or industrial development.
It will be noticed that cls. (a), (b) and (c)
of s. 88(1) apply to things as they were at the date of the enactment, whereas
el. (d) only authorised the State Government to specify certainareas as being
reserved for urban nonagricultural or industrial development, by notification
in the Official Gazette, 713 from time to time. Under cls. (a) to (c) of a.
88(1) it is specifically provided that the Act, from its inception did not apply
to certain areas then identified; whereas el. (d) has reference to the future.
Hence, the State Government could take out of the operation of the Act such
areas as it would deem should come within the description of urban nonagricultural
or for industrial development. Clause (d), therefore, would come into operation
only upon such a notification being issued by the State Government. The portion
of the judgment, quoted above, itself makes it clear that the provisions of s.
88 were never intended to divest vested interests. To that extent the decision
of this Court is really against the appellants. It is clear that the appellants
cannot take advantage of what was a mere slip in so far as cl. (d) was added to
the other clauses of s.88(1), when that clause really and did not fall to be
considered with reference to the controversy in that case. In other words, this
Court never intended in its judgment in Sakharam's case`e(1) to lay down that
the provisions of cl.(d) of s.88 (1) aforesaid were only prospective and had no
retrospective operation. Unlike cls. (a), (b) and (c) of s.88(1), which this
Court held to be clearly prospective, those of cl.(d) would in the context have
retrospective operation in the sense that it would apply to land which could be
covered by the notification to be issued by the Government from time to time so
as to take those lands out of the operation of the Act of 1948, granting the
protection. So far as cls. (a), (b) and (e) are concerned, the Act of 1948
would not apply at all to lands covered by them.
But that would not take away the rights
conferred by the earlier Act of 1939 which was being repealed by the Act of
1948. This is made clear by the provision in s.89(2) which preserves existing
rights under the repealed Act. Sakharam's case, (1) was about the effect of cl.
(c) on (1) (1962) 2 S.C.R. 59.
714 the existing rights under the Act of 1939
and it was in that connection that this Court observed that s.88 was
prospective. But el. (d) is about the future and unless it has the limited
retrospective effect indicated earlier it will be rendered completely nugatory.
The intention of the legislature obviously was to take away all the benefits
arising out of the Act of 1948 (but not those arising from the Act of 1939) as
soon as the notification was made under el. (d). This is the only way to
harmonise the other provisions of the 1948-Act, conferring certain benefits on
tenants with the provisions in el. (d) which is meant to foster urban and
industrial development. The observations of the High Court to the contrary are,
therefore, not correct.
But the matter does not rest there. The
notification of April 24, 1951, was cancelled by the State Government by the
following notification dated January 12, 1953 "Revenue Department, Bombay
Castle, 12th, January, 1953. Bombay Tenancy and Agricultural Landis Act, 1948.
No.9361/49 : In exercise of the powers
conferred by clause (d) of sub-section (1) of Section 88 of the Bombay Tenancy
and Agricultural Lands Act, 1948 (Bombay LXVII of 1948). The Government of
Bombay is pleased to cancel Government Notification in the Revenue Department
No.9361/49 dated the 24th/25th April, 1951".
It would thus appear that when the matter was
still pending in the Court of Appeal, the judgment of the lower Appellate Court
being dated September 27, 1954, the notification cancelling the previous
notification was issued. The suit had, therefore, to be decided on the basis
that there was no notification in existence under s.88(1)(d), which could take
the disputed lands out of the operation 715 of the Act. This matter was brought
to the notice of the learned Assistant Judge, who took the view that though, on
the merger of Baroda with Bombay in 1949, the defendants had the protection of
the Act, that protection had been taken away by the first notification' which
was cancelled by the second. That Court was of the opinion that though the
Appellate Court was entitled to take notice of the subsequent events, the suit
had to be determined as on the state of facts in existence on the date of the
suit, and not as they existed during the pendency of the appeal. In that view
of the matter, the learned Appellate Court held that the tenants-defendants
could not take advantage of the provisions of the Act, and could not resist the
suit for possession. In our opinion, that was a mistaken view of the legal
position. When the judgment of the lower Appellate Court was rendered, the
position in fact and law was that there was no notification under cl.(d) of
s.88(1) in operation so as to make the land in question immune from the
benefits conferred by the Tenancy Law. In other words, the tenents could claim
the protection afforded by the law against eviction on the ground that the term
of the lease had expired. But it was argued on behalf of the appellants that
the subsequent notification, cancelling the first one, could not take away the
rights which had accrued to them as a result of the first notification. In our
opinion, this argument is without any force. If the landlords had obtained an effective
decree and had succeeded in ejecting the tenants as a result of that decree,
which may have become final between the parties, that decree may not have been
re-opened and the execution taken there under may not have been recalled. But
it was during the pendency of the suit at the appellate stage that the second
notification was issued canceling the first. Hence, the Court was bound to 716
apply the, law as it was found on the date of its judgment.
Hence, there is no question of taking away
any vested rights in the landlords. It does not appear that the second
notification, canceling the first notification, had been brought to the notice
of the learned Single Judge, who heard and decided the second appeal in the
High Court. At any rate, there is no reference to the second notification. Be
that as it may, in our opinion, the learned Judge came to the right conclusion
in holding that the tenants could not be ejected, though for wrong reasons. The
appeals are accordingly dismissed, but there would be no order as to costs in
this Court, in view of the fact that the respondents had not brought the second
notification cancelling the first to the pointed attention of the High Court.
Appeal dismissed.
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