SAKHARAM @ BAPUSAHEB NARAYAN SANAS AND ANOTHER versus MANIKCHAND MOTICHAND SHAH AND ANOTHER

2 S.C.R. SUPREME COURT REPORTS

SAKHARAM: @ BAPUSAHEB NARAYAN SANAS AND ANOTHER

MANIKCHAND MOTICHAND SHAH AND ANOTHER

(B. I'. SINHA, C. J., K. SunnA RAo and RAGHUBAR DAYAL, JJ.)

Agricultural Lands-Protected Tenants, Rights of-Acquisition under repealed statute-Repealing statute, if affects such rights-Bombay Tenancy Act, r939 (Bom. 29 of r939), as amended by the Bombay Tenancy (Amendment) Act, r946 (Born. 26 of r946), s. 3A(1) -Bombay Tenancy and Agricultural Lands Act, r948 (Bom. LXV II of r948), ss. JI, 85, 89.

The appellants had acquired the rights of protected tenants under s. 3A(r) of the Bombay Tenancy Act, 1939, as amended by the Bombay Tenancy (Amendment) Act, 1946, and their rights as protected tenants were recorded in the Record of Rights. That Act was repealed by the Bombay Tenancy and Agricul-tural Lands Act, r948, which by s. 31 recognised the rights of protected tenant acquired under the Act of r939 for its own purposes, by s. 88(r)(c) provided, that nothing in the foregoing provisions of the Act should apply to any area within the limits of the Municipal borough of Poona City and Suburban as also some other boroughs and within distance of two miles of the limits of such boroughs, and bys. 8g(2) that

"nothing in this Act or any repeal effected thereby ........ . (b) shall, save as expressly proviJed in this Act, affect or be deemed to affect

(i) a:iy right, title, interest, obligation or liability already acquired, accrued or incurred before the commencement of this Act,

or .......................................................................... .

(ii) any legal proceeding or remedy in respect of any such right, title, interest, obligation, or liability or anything done or suffered hPfore the commencement of this Act, and any such proceeding shall be continued and disposed of, as if this Act was not passed ......... ".

The lands in dispnte were situated within two miles of the limits of the Poona Municipal Borough, i.e. Poona City and Suburban, and the question was whether the rights of the appellants as protected tenants therein were affected by the repeal.

Held, that the provisions ()f s. 88 of the Bombay Tenancy and Agricultural Lands Act, 1948, arc entirely prospective and apply to such lands as are described in els. (a) to (d) of s. 88(1) from

April I9.

the date on which the Act. came into operation i.e.· December 28, 1948, and are not of confiscatory nature so as to take away from the tenant the status of protected tenant already .accrued to him.

Sakharani @

Hapusaheb Narayan Sanas

Section 89(2)(b) of the Act clearly intends to conserve such

rights as were acquired or .accrued before its commencement and that any legal proceeding in respect of such rights was to be. disposed of in terms of the .Act of 1939.

AI anikchand ll! otichand Shah

Abbot v. The Minist.er for Lands, [1895] A.C. 425, distin-guished. · ·

CIVIL APPELLATE .JURISDICTION: . Civil Appeal No. 185 ofl956.

Appeal by special leave .from the judgment and decree dated November 25, 1954, of the Bombay High Court in Second Appeal No. 1003 of 1952.

H. R. Gokhale, J. B. Dadachanji, S. N. Andley,

Rameshwar Nath and P. L. Vohra, for the appellants. 0. B. Agarwala and A.G. Ratnaparkhi, for the res-pondent No. I.

1961. April 19. The Judgment of the Court was delivered by

Sinha c. J. SINHA, C. J.-The only question for determinatfon in this appeal is whether the defendants-appellants are 'protected tenants' within the meaning of the Bombay Tenancy Act (Bombay Act XXIX of 1939) (which hereinafter will be referred to, for the sake of brevity, as the Act of 1939), whose rights a3 such were not affected by the repeal of that Act by the Bombay Tenancy and Agricultural Lands Act (Bombay Act LXVII of 1948) which hereinafter will be referred to as the Act of 1948). The Courts below have decreed the plaintiff's suit for possession of the lands in dis-pute, holding that the defendants were not entitled to the protection claimed by them as 'protected tenants'. This appeal is by special leave granted by this Court on April 4, 1955. . . .

. . . The facts of this case are not in dispute. Shortly stated, they are as follows. By virtue of lease dated October 30, 1939, the defendants obtained lease of the disputed lands from the plaintiff for period of 10 years, expiring on October 30, 1949. The lands in [t]

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dispute have been found to lie within two miles of the r96r limits of Poona Municipality. The landlord gave . 0 22 1948 t ' t' th t Sai<hamm @ notrne on cto er · , , ermma mg e?ancy Bapusaheb as from October 30, 1949. As the defendants did not Na.-ayan sanas vacate the land, in terms of the notice aforesaid, the "· plaintiff instituted the suit for ejectment in the Court Manikchand of the Civil Judge, Junior Division, at Poona in Civil Motichand Shah Suit No. 86 of 1950. The Act of 1939 became law on March 27, 1940, but the Act was applied to Sinha c. f. Poona area with effect from April ll, 1946. Under s. 3 of the Act, tenant shall be deemed to be 'protected tenant' in respect of any land if he has held such land continuously for period of not less than six years immediately preceding either the first day of January, 1938, or the first day of January, 1945, (added by the Amending Act of 1946) and has cultivated such land personally during the aforesaid period. It is not disputed that the defen-dants-appellants became entitled to the status of 'pro-tected tenants' as result of the operation of the Act, as amended by the Bombay Tenancy (Amendment) Act, 1946 (Bombay Act XXVI of 1946), and under s. 3A(l) the defendants were deemed to be 'protected tenants' under the Act and their rights as such were recorded in the Record of Rights. Sections 3 and

3A(l), aforesaid, are set out below:-

"3. tenant shall be deemed to be protected tenant in respect of any land if

(a) he has held such land continuously for ape-

riod of not less than six years immediately preced-ing either

(i) the first day of January 1938 or

(ii) the first day of January 1945 and

(b) has cultivated such land personally during

the aforesaid period.

3A(l) Every tenant shall, on the expiry of one year

from the date of the coming into force of the Bombay Tenancy Amendment Act of 1946, be deemed to be protected tenant for the purposes of this Act and his rights as such protected tenant shall be recorded in the Record of Rights, unless his landlord has within the said period made an application to

Sal~haram (f.i; Bapusaheb J..r arayan Sanas v. 1\1 anikchand ]J,f otichaud Shah Sinha C. j.

the Mamlatdar within whose jurisdiction the land is situated for declaration that the tenant is not protected tenant".

Under s. 3A(l) aforesaid, it was open to the land-lord, within one year of the date of the commence-ment of the Amending Act of 1946, to make an appli-cation to the J)lamlatnnr for declaration that the t('aant was not 'protected tenant'. No such pro-ceeding appcarn to have been taken. As result of the expiration of one year from November 8, 1946-thc date of the coming into operation of the Amend-ing Act of l!H(i-the defendants were deemed to be 'protec~ed teaants' r.nd it is not disputed that they were recorded as mch. Section 4 of the Act, with which we are not concerned in the present case, made furthflr provisions fur recovery of possession by ten-ants who had been evicted from their holdings in cir-cumstances set out in that section. The Act, therefore, in its terms, was intended for the protection of tenants in certain areas in the Province of Bombay (as it then was). If nothing had happened later, the defon<lants would have had the status of 'protected tenants' and could not have been evicte<l from their holdings, ex-cept in aocordance with the provisirms of the Tenancy Law. But tlje Act of 1939 wtts replaced by the Act of 1948. The question that arises now for determina" tion is whether the Act of 1948 wiped out the defen-dant's status as 'prc)tccted tenants'. For determining this question, we have naturally to examine the rele-vant provisions of the later Act.

The Act of 1948, by s. 2 cl. (14) prior to its amend-ment by Bombay Aet XIII of 1956, provides that "'protected tenant' means a. person who is recognised to be protected tenant under section 31 ". Section 31 runs as follows:-

" ]'or the purposes of this Act, person shall be recognised to be protected tenant if such person has been deemed to be protected tenant under sec-tion 3, 3A or 4 of the Bombay Tenancy Act, 1939." The force and effect of s. 31 will h~.ve to be dis-cussed later while dealing with the arguments raised

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on behalf of the landlord-respondent. The next rele-vant provisions of the Act of 1948 are those of s. 88(l)(c) which i·eads:-

"N othing in the foregoing provisions of this Aot sho.11 apply:-

(c) to any area within the limits of Greater Born-

bay and within the limits of the municipal boroughs of Poona City and Suburban, Ahmedabad, Shola-pur, Surat and Hubli and within distance of two miles of the limits of such boroughs; or ...... ".

As already observed, the lands in dispute in the present controversy have been found to be situate within two miles of the limits of the Poona Municipal Borough, which, for the purpose of this case, has been equated to 'Borough of Poona City and Suburban'. It has been contended on beha,lf of the respondent that under the later Act the disputed lands are outside the purview of tho Act and that, therefo1·e, the defen-dants-appellants n.rc not entitled to daim the status of 'prot.ected tenants'. The appellants have answered this contention by reference to the provisions of s. 89, which may now be set out (in so far as they are neces-sary for the purpose of this case):-

"89(1) The enactment specified in the Schedule is

hereby repealed to the extent mentioned in the fourth column thereof.

(2) But nothing in this Act or any repeal effected 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 proceeding or remedy in respect of

any such right, title, interest, obligation, or liability or anything done or suffered before the commence-ment of this Act, and any such proceeding shall be continued and disposed of, as if this Act was not passe " ....

Sakharam @ Bapusaheb nr ara)''an Sana.~ v.

M anil1chand

A1otichand .Shah

Sinha c..r.

'9[6]' It has been contended on behalf of the appellants that Sakharam @ the repealing s. 89, read with the Schedule, makes it Hapusaheb clear that the whole of ss. 3, 3A and 4 of_ the Act of Narayan Sanas 1939 have been saved, subject to certain modifications, v. which are not relevant to the present purpose; and Manikchand that sub-s. 2(b) of s. 89 has in terms, saved the appel-Motichand Shah l , · , ants rig ts as 'protects tenants ecause those rights Sinha c. J. had already accrued to thBm under the Act of HJ39. But this contention is countered by the learned counsel for the plaintiff-respondent on three grounds, namely, (1) thats. 88 expressly provides that ss. 1 to 87 of the later Act shall not apply to lands situate in the Municipal Borough of Poona City and Suburban and within distance of two miles of the limits of such borough; (2) that what has been saved by cl. (b) of sub-s. (2) of s. 89 is not eve,ry right but only such rights as had been actually exercised and recognised; and (3) that the terms of the saving clause, as contained s. 89{2)(b) were not identical with s. 7 of the Bombay General Clauses Act, inasmuch as cl. (b) aforesaid only speaks of such proceedings being continued and disposed of, without reference to the institution of such proceedings.

Shortly put, the arguments on behalf of the appel-lants is that the taking away of the status of 'protected tenant' from certain lands, as specified in s. 88, is only prospective and not retrospective, whereas the argument on behalf of the respondent is that the repeal was with retrospective effect and only so much was saved as would come directly within the terms of cl. (b) of s. 89(2), and that the right claimed by the

appellants was in express terms taken away by s. 88.

The argument based on the second ground may be disposed of at the outset in order to clear the ground for further consideration of the effect of ss. 88 and 89, on which the whole case depends. The learned counsel for the plaintiff-respondent placed strong reliance upon the following observations of the Lord Chancellor in the case of Abbot v. The Minister for Lands ([1]):

"They think that the mere right (assuming it to

(1) [1895] A.C. 425, 431.

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be properly so called) existing in the members of the community or any class of them to take advantage of an enactment, without any act done by an indivi-dual towards. availing himself Of that right, cannot properly be. deemed "right accrued" within the meaning of the enactment."

The ·contention is that in order that the defendants-appellants .could ·claim the status of 'protected tenants' as right a.cc.rued under the Act of 1939, they should have taken certain steps to enforce that right and got the relevant authorities to pronounce upon those · rights, and as no such steps had admittedly been taken by the appellants, they could not claim that they had 'right accrued' to them as claimed. In our opinion, there is no substance in this contention. The observa-tions, quoted above, made by the Lord Chancellor, with all respect, are entirely correct, but have been made in the context of the statute under which the controversy had arisen. In that case, the appellant had obtained grant in fee-simple of certain lands under the Crown Lands Alienation Act, 1861. By virtue of the original grant, he would have been entitled to claim. settlement of additional areas, if he satisfied certain conditions laid down in the relevant provisions of the statute. The original settlee had the right to claim the additional settlements, if he so desired, on fulfilment of those conditions. He had those rights to acquire the additional lands under the provisions of the Crown Lands Alienation.Act, 1861, but the Crown . Lands Act of 1884, repealed t.he previous Act, subject to saving provision to the. effect that all .rights accrued by virtue of the repealed enactment shall, .subject to any express provisions of the repealing Act in relation thereto, remain unaffected by such rQpeal. The appellarrts' contention that under the . saving clause of the repealed enactment he had the right to make additional conditional purchases and that was 'right accrued' within the meaning of the saving clause contained in the repealing Act of 1884, was negatived by the Privy Council. It is, thus, clear that the context in which the observations relied upon by the respon-dent, as quoted above, were made is entirely different

Sakliaram@ Bapusaheb

Narayan Sanas

Manikcha~d

Motichand Shah

Sinha C. ].

66 iSUl>REME COUR'.I' REPOR'l'S (1962]

z96z from the context of the present controversy. That decision is only authority for the proposition that 'the s~~Pa;;.~,~ mere right, existing at thP: ~ate of repealing statute, Narayan sanas to take advantage of prov1s1ons of the statute repealed v. is not 'right accrued' within the meaning of the M~nikchand usual saving clause'. In that ruling, their Lordships of Motichand Shah the Privy Council assumed that the contingent right --of the original grantee was right bnt it was not Sinha c. [1 ]· 'right accrued' within the meaning of the repealed statute. It was held not to have accrued because the option given to the original grantee to make additio-nal purchases had not been exercised before the repeal. In other words, the right which was sought to be exercised was not in existence at the date of the repealing Act, which had restricted those rights. In the instant case, the right of 'protected tenant' had accrued to the appellants while the Act of 1939 was still in force, without any act on their part being necessary. That right had been recognised by the public authorities by making the relevant entries in the Record of Rights, as aforesaid. On the other hand, as already indicated, s. 3A(l) of the Act of 1939 had given the right to the landlord-respondent to take proceedings to have the necessary declaration madE by the mam.latdar that the tenant had not acquired the status of 'protected tenant'. He did not proceed in that behalf. Hence, it is clear that so far as tbe appellants were concerned, their status as 'protected tenants' had been recognised by the public authorities under the Act of 1939, and they had to do nothing more to bring their case within the expression 'right accrued', in cl. (b) of s. 89(2) of the Act of 1948.

It having been held that the second ground of attack against the claim made by the appellants is not well-founded in law, it now remains to consider whether the first ground, namely, that there is an express provision in s. 88, within the meaning of s. 89(2)(b), taking away the appellants' right, is supported by the terms of ss. 88 and 89. In this connection, it was pointed out on behalf of the respon-dent thats. 88(1) in terms provides that ss. 1 to 87 of

2 S.C.R. SUPREME COURT REPORTS

the Act of 1948 shall not apply to lands of the situa-

tion of the disputed lands; and s. 31 has been further pressed in aid of this argument. Section 31 has S~k~ra~ ~ already been quoted, and it begins with the words Nara~•:'•; ••• , "For the purposes of this Act". The provisions of the v. Act of 1948 relating to the rights and liabilities of Manikchand 'protected tenant' are not the same as those under the Motichand Shah Act of 1939. Hence, though the provisions of ss. 3, Sinha --C.J. 3-A and 4 of the earlier Act of 1939 have been adopt-ed by the later Act, it has been so done in the context of the later Act, granting greater facilities and larger rights to what are described as 'protected tenants'. In other words s. 31 has been enacted not to do away with the rights contained in ss. 3, 3-A and 4 of the earlier statute, but with view to apply that nomen-clature to larger rights conferred under the Act of 1948. The provisions of s. 88 are entirely prospective. They apply to lands of the description contained in els. (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 confiscatory character. They, do not show an inten-tion to take away what had already accrued to tenants acquiring the status of 'protected tenants'. On the other hand, s. 89(2)(b), quoted above, clearly shows an intention to conserve such rights as had been acquired or had accrued before the commencement of the repealing Act. But it has further been contended on behalf of the respondent, in ground 3 of the attack, that sub-cl. (ii) of cl. (b) of s. 89(2) would indicate that the legislature did not intend completely to re-enact the provisions of s. 7 of the Bombay General Clauses Act. This argument is based on the absence of the word 'instituted' before the words 'continued and disposed of'. In our opinion there are several answers to this contention. In the first place, sub-cl. (i) is independent of sub-cl. (ii) of cl. (b) of s. 89(2). There-fore, sub-cl. (ii), which has reference to pending litiga-tion, cannot cut down the legal significance and ambit of the words used in sub-cl. (i). Sub-cl. (ii) may have reference to the forum of the proceedings, whether the Civil Court or the Revenue Court shall have seizin of

'96' proceedings taken under the repealed Act. We have 5 [kh ]@ already held that the expression 'right accrued' in ~.;:;a~eb · sub-cl. (i) does not exclude the rights of 'protected Narayan sanas tenants' claimed by the appellants. It is well settled v. that where there is right recognised by law, there is M~nikchand remedy, and, therefore, in the absence of any special Motichand Shah provisions indicating the particular forum for enforc-Sinha -C. J. ing particular right, the g· eneral law of the land will naturally take its course. In this connection, it is relevant to refer to the observations of the High Court that "even if it were to be assumed that the right as 'protected tenant' remained vested in the defendants even after the enactment of s. 88(1), that right, in its enforcement against the plaintiff, must be regarded as illusory". In our opinion, those observations are not well-founded. Courts will be very slow to assume right and then to regard it as illusory, because no particular forum has been indicated. Lastly, the legal effect of the provisions of sub-cl. (ii) aforesaid is only this that any legal proceeding in respect of the right· claimed by the defendants shall be continued and disposed of as if the Act of 1948 had not been passed. Applying those words to the present litigation, the inference is clear that the controversy has to be resol-ved with reference to the provisions of the repealed statute. That being so, in our opinion, the intention of the legislature . was that the litigation we are now dealing with should be disposed of in terms of the repealed statute of 1939. It has not been disputed before us that if that is done, there is only one answer to this suit, namely, that it must be dismissed with costs. Accordingly, we allow the appeal, set aside the judgments below and dismiss the suit with costs throughout, to the contesting defendants-appellants.

Appeal allowed.