PETITIONER: SAKHARAM BAPUSAHEB NARAYAN SANAS AND ANOTHER Vs. RESPONDENT: MANIKCHAND MOTICHAND SHAH AND ANOTHER DATE OF JUDGMENT: 19/04/1961 BENCH: SINHA, BHUVNESHWAR P.(CJ) BENCH: SINHA, BHUVNESHWAR P.(CJ) SUBBARAO, K. DAYAL, RAGHUBAR CITATION: 1963 AIR 354 1962 SCR (2) 59 CITATOR INFO : E 1963 SC 358 (4,5) R 1966 SC 367 (6) O 1966 SC 538 (5,10) D 1966 SC1758 (11) R 1980 SC 101 (3) RF 1986 SC2204 (5) RF 1991 SC1538 (7) ACT: Agricultural Lands-Protected Tenants, Rights of-Acquisition under repealed statute-Repealing' statute, if affects such rights Bombay Tenancy Act, 1939 (Bom.29 of 1939), as amended by the Bombay Tenancy (Amendment) Act, 1946 (Bom. 26 of 1946), S. 3A(1) Bombay Tenancy and Agricultural Lands Act, 1948 (Bom. LXVII of 1948), ss. 31, 88, 89. HEADNOTE: The appellants had acquired the rights of protected tenants under S. 3A(1) 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 That Act was repealed by the Bombay Tenancy and Agricultural Lands Act, 1948, which by s. 31 recognised the rights of a protected tenant acquired under the Act of 1939 for its own purposes, by s. 88(1)(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 a distance of two miles of the limits of such boroughs, and by s. 89(2) that "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 .................................................... 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 commencement of this Act, and any such proceeding shall be continued and disposed of, as if this Act was not passed The lands in dispute 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. I affected by the repeal. Held, that the provisions of s. 88 of the Bombay Tenancy and Agricultural Lands Act, 1948, are entirely prospective and apply to such lands as are described in cls. (a) to (d) of s. 88(1) from 60 the date on which the Act came into operation i.e. December 28, 1948, and are not of a confiscatory nature so as to take away from the tenant the status of a protected tenant already accrued to him. 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. Abbot v. The Minister for Lands, [1995] A.C. 425, distin- guished. JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 185 of 1956.
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.
C. B. Agarwala and A. G. Ratnaparkhi, for the respondent
No. 1.
1961. April 19. The Judgment of the Court was delivered by
SINHA, C. J.-The only question for determination 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 as 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 dispute,
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,
1965.
The facts of this case are not in dispute. Shortly stated,
they are as follows. By virtue of a lease dated October 30,
1939, the defendants obtained a lease of the disputed lands
from the plaintiff for a period of 10 years, expiring on
October 30, 1949. The lands in
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dispute have been found to lie within two miles of the
limits of Poona Municipality. The landlord gave notice on
October 22, 1948, terminating the tenancy as from October
30, 1949. As the defendants did not vacate the land, in
terms of the notice aforesaid, the plaintiff instituted the
suit for ejectment in the Court of the Civil Judge, Junior
Division, at Poona in Civil Suit No. 86 of 1950. The Act of
1939 became law on March 27, 1940, but the Act was applied
to Poona area with effect from April 11, 1946. Under s. 3
of the Act, a tenant shall be deemed to be a ‘ protected
tenant’ in respect of any land if he has hold such land
continuously for a 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 ‘protected
tenants’ as a 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(1) 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(1), aforesaid, are set out below:-
“3. A tenant shall be deemed to be a protected
tenant in respect of any land if
(a) he has held such land continuously for a
period of not less than six years immediately
preceding 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(1) 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 a 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
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the Mamlatdar within whose jurisdiction the
land is situated for a declaration that the
tenant is not a protected tenant”.
Under s. 3A(1) aforesaid, it was open to the landlord,
within one year of the date of the commencement of the
Amending Act of 1946, to make an application to the
Mamlatdar for a declaration that the tenant was not a
‘protected tenant’. No such proceeding appears to have been
taken. As a result of the expiration of one year from
November 8, 1946the date of the coming into operation of the
Amending Act of 1946-the defendants were deemed to be
‘protected tenants’ and it is not disputed that they were
recorded as such. Section 4 of the Act, with which we are
not concerned in the present case, made further provisions
for recovery of possession by tenants who had been evicted
from their holdings in circumstances 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 defendants would have had the status of ‘protected
tenants’ and could not have been evicted from their
holdings, except in accordance with the provisions of the
Tenancy Law. But the Act of 1939 was replaced by the Act of
1948. The question that arises now for determination is
whether the Act of 1948 wiped out the defendant’s status as
‘protected tenants’. For determining this question, we have
naturally to examine the relevant provisions of the later
Act.
The Act of 1948, by s. 2 cl. (14) prior to its amendment by
Bombay Act XIII of 1956, provides that ” protected tenant’
means a person who is recognised to be a protected tenant
under section 31″. Section 31 runs as follows:-
“For the purposes of this Act, a person shall
be recognised to be a protected tenant if such
person has been deemed to be a protected
tenant under section 3, 3A or 4 of the Bombay
Tenancy Act, 1939.”
The force and effect of s. 31 will have to be discussed
later while dealing with the arguments raised
63
on behalf of the landlord-respondent. The next relevant
provisions of the Act of 1948 are those of s. 88(1)(c)
which reads:-
“Nothing in the foregoing provisions of this
Act shall apply:-
…………………………………
……………………………………….
(c) to any area within the limits of Greater
Bombay and within the limits of the municipal
boroughs of Poona City and Suburban,
Ahmedabad, Sholapur, Surat and Hubli and
within a 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 behalf of the
respondent that under the later Act the disputed lands are
outside the purview of the Act and that, therefore, the
defendants-appellants are not entitled to claim the status
of ‘protected 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 necessary 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 commencement of this Act,
and any such proceeding shall be continued and
disposed of, as if this Act was not
passed ……”.
64
It has been contended on behalf of the appellants that the
repealing s. 89, read with the Schedule, makes it clear that
the whole of ss. 3, 3A and 4 of the Act of 1939 have been
saved, subject to certain modifications, which are not
relevant to the present purpose; and that sub-s. 2(b) of s.
89 has in terms, saved the appellants’ rights as ‘protected
tenants’ because those rights had already accrued to them
under the Act of 1939. But this contention is countered by
the learned counsel for the plaintiff-respondent on three
grounds, namely, (1) that s. 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
a 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 every 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 appellants is
that the taking away of the status of a 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 el. (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 a 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.
65
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 individual towards
availing himself of that right, cannot properly be deemed a
“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
a right accrued 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 a ‘right accrued’ to them
as claimed. In our opinion, there is no substance in this
contention. The observations, 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 a 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 settle had the right to claim the additional
settlements, if he so desired, on fulfillment 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 the
previous Act, subject to a 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 repeal.
The appellants’ contention that under the saving clause of
the repealed enactment he had the right to make additional
conditional purchases and that was a ‘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 respondent, as quoted above, were made is
entirely different
9
66
from the context of the present controversy. That decision
is only authority for the proposition that ‘the mere right,
existing at the date of a repealing statute, to take
advantage of provisions of the statute repealed is not a
‘right accrued’ within the meaning of the usual saving
clause’. In that ruling, their Lordships of the Privy
Council assumed that the contingent right of the original
grantee was a right but it was not a 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 additional 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 a ‘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(1) of the ‘Act of 1939 had given the right to the
landlord-respondent to take proceedings to have the
necessary declaration made by the mamlatdar that the tenant
had not acquired the status of a ‘protected tenant’. He did
not proceed in that behalf. Hence, it is clear that so far
as the appellants were concerned, their status as ‘protected
tenants’ had been recognised by the public authorities under
the Act of 1939, and they bad to do nothing more to bring
their case within the expression ‘right accrued’, in el. (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. and 89. In this
connection, it was pointed out on behalf of the respondent
that s. 88(1) in terms provides that ss. 1 to 87 of
67
the Act of 1948 shall not apply to lands of the situation of
the disputed lands; and s. 31 has been further pressed in
laid of this argument. Section 31 has already “been quoted,
and it begins with the words “For the purposes of this Act”.
The provisions of the Act of 1948 relating to the rights and
liabilities of a protected tenant’ are not the same as those
under the Act of 1939. Hence, though the provisions of ss.
3, 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 a view to apply that nomenclature 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 cls. (a) to (d) of a. 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’. 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-el. (ii) of ol. (b) of s.
89(2). Therefore, sub-el. (ii), which has reference to
pending litigation, 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
68
proceedings taken under, the repealed Act. ;We have already
held that the expression ‘right accrued’ in sub-el. (i) does
not exclude the rights of ‘protected tenants”claimed by the
appellants. It is well settled that where there is a right
recognised by law, there is a remedy,; and, therefore, in’
the absence of any special provisions indicating the
particular forum for enforcing a particular right, the
general 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 a ‘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 a right
and then to regard it as illusory, because no particular
forum has been indicated. Lastly, the legal effect of the
provisions of sub-el. (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 resolved 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,
69