Full Judgment Text
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PETITIONER:
PARVATI & ORS.
Vs.
RESPONDENT:
FATEHSINHRAO PRATAPSINHRAO GAEKWAD
DATE OF JUDGMENT18/09/1986
BENCH:
RAY, B.C. (J)
BENCH:
RAY, B.C. (J)
SEN, A.P. (J)
CITATION:
1986 AIR 2204 1986 SCR (3) 793
1986 SCC (4) 319 JT 1986 456
1986 SCALE (2)447
CITATOR INFO :
RF 1991 SC1538 (9)
ACT:
Bombay Tenancy and Agricultural Lands Act, 1948: ss.
88(1)(b). 89(2)(b) and 89A - Notification reserving lands
within municipal limits of a city for non-agricultural or
industrial development-Effect of.
HEADNOTE:
When Baroda became Borough Municipality on 1st May
1950, the provisions of the Bombay Tenancy Act, 1939 were
applicable to the lands situated within its municipal
limits. That Act was repealed by the Bombay Tenancy and
Agricultural Lands Act, 1948 which was made applicable to
the Baroda Municipality with effect from August 1, 1956 by
the Bombay Tenancy and Agricultural Lands (Amendment) Act,
1955 (Bombay Act No. XIII of 1956). Section 88(1)(b) of the
1948 Act, as substituted by s. 48 of the Act of 1956,
provided that nothing in the Act shall apply to any area
which the state Government may, by notification in the
official gazette, specify as being reserved for non-
agricultural or industrial development. Section 89(2)(b)
further laid down that nothing in that Act or any repeal
effected thereby, shall affect or be deemed to affect, any
right, title, interest, obligation or liability already
acquired, accrued or incurred before the commencement of
this Act. Section 89A recited that notwithstanding the
repeal of the 1939 Act, the provisions of ss.3, 3A and 4 or
that Act, as set out in Schedule I to the 1948 Act, shall
always be deemed to be extended to and to be in force in
those areas on the dates on which the 1948 Act was extended
to and brought into force.
The Government by a notification dated May 21, 1958
issued under s. 88(1)(b) of the 1948 Act reserved the lands
within the municipal limits of the city of Baroda for non-
agricultural and industrial development.
Appellant’s husband-defendant, took possession of
certain lands situated in the city of Baroda, from the
respondent-trustee of a temple for a period of three years
from 1956 to 1958 at an annual rent of
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Rs.2225 by executing a Kabuliyat dated June 2, 1956, which
was not registered. As he fell into arrears of rent for the
said years, the respondent-plaintiff filed a suit for its
recovery. The defence was that the suit was not maintainable
in a civil court inasmuch as even though the Tenancy Act
ceased to apply on the issue of the notification under s.
88(1)(b) in respect of lands within the municipal limits of
the city of Baroda, yet the rights of the tenant in respect
of the suit land, which had accrued before the said
notification, subsisted.
The trial court held that the Tenancy Act was
applicable to the case and since the Mamlatdar had already
determined the reasonable rent in respect of the lands in
question, the civil court was not competent to determine the
same once again. The appeal preferred was dismissed by the
District Judge. On further appeal, the High Court held that
in view of the notification issued under s. 88(1)(b) of the
said Act the provisions of the Tenancy Act will not apply
retrospectively and directed the trial court to redetermine
the issue. On receipt of the findings of the trial court,
the High Court allowed the second appeal, setting aside the
judgment and decree passed by the courts below.
In the Appeal by special Leave to this Court it was
contended for the appellant that in view of the provisions
of s. 89(2)(b) the right of the defendant to pay rent as
determined by the Mamlatdar under ss. 8 and 9 of the 1948
Act was not affected by the retrospective effect given to
the provisions of s. 88 of the Act.
Dismissing the Appeal, the Court,
^
HELD: The specific provision in s. 89(2)(b) of the
Bombay Tenancy and Agricultural Lands Act, 1948 to the
effect that nothing in the Act or any repeal affected
thereby shall, save as expressly provided therein, affect or
be deemed to affect any right, title, interest, ob ligation
or liability already acquired, accrued or incurred before
the commencement of the Act, read with the specific
provision of s. 88(1)(b) that on issue of a notification
specifying areas reserved for non agricultural or industrial
development the provisions of the Act shall not apply to the
lands so notified, make it apparent that the Act will not be
applicable to the lands notified. [799 B; D-E]
The issuance of the notification dated 21st May, 1958
under s. 88(1)(b) of the Tenancy Act, 1948 specifying the
lands within the municipal limits of Baroda city reserved
for non-agricultural and industrial development in the
instant case made the provisions of the
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Act inapplicable retrospectively, subject to the exception
provided in sub-s. (2) of s. 88, and with it all rights,
title, obligation etc. accrued or acquired under the said
Act ceased to exist. The provisions of s. 89(2)(b) are,
therefore, not applicable to protect such right, title or
interest, except as provided in s. 89A owing to express
provision made in s. 88 of the Act. [801 C-E]
Protected tenants are only those tenants specified in
ss. 3, 3A and 4 of the 1939 Act and no new protected tenant
could come into existence under the 1948 Act. [801 B-C]
In the instant case, therefore, the civil court was
legally competent to determine the reasonable rent payable
by the defendent-tenant. The determination by Mamlatdar
under ss. 8 and 9 of the Tenancy Act 1948 automatically
becomes ineffective and non-est by virtue of s. 88(1)(b) of
the said Act and the notification made there-under. [801E-F]
Mohanlal Chunilal Kothari v. Tribhovan Haribhai
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Tamboli, [1963] 2 SCR 707 and Sidram Narsappa Kamble v.
Sholapur Borough Municipality and Anr, [1966] 1 SCR 618,
referred to.
Sakharam @, Bapusaheb Narayan Sanas and Anr. v.
Manikchand Motichand Shah and Anr., [1962] 2 SCR 59,
distinguished.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1947 (N)
of 1972.
From the Judgment and order dated 4.10.1971 of the
Gujarat High Court in S.A. No. 313 of 1963.
V.M. Tarkunde and M.V. Goswami for the Appellants.
S. Seth and S. Sukumaran for the Respondents.
The Judgment of the Court was delivered by G
RAY, J. This appeal on special leave is against the
judgment and decree made on October 4, 1971 in S.A. No.
313/63 by the High Court of Gujarat whereby it was held that
in view of the retrospective effect given by virtue of the
notification issued under Sec. 88(1)(b) of the Bombay
Tenancy and Agricultural Lands Act, 1948 the provisions of
the said Tenancy Act was not applicable in respect of lands
within the
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municipal limits of the city of Baroda and as such the civil
court was competent to determine the reasonable rent in
respect of the lands in question taken settlement of by the
defendent on the basis of the Kabuliyat executed on 2nd
June, 1956 for a period of three years from 1956 to 1958.
The admitted facts of this case are that the defendant
Kashiram Jaiswal, since deceased, took possession of the
lands measuring 20 acres 27 gunthas in S. No. 707 of Baroda
Kasba situated behind Kirti Mandir in the city of Baroda
from the respondent by executing a Kabuliyat dated June 2,
1956 for a period of three years from 1956 to 1958 at an
annual rent of Rs.2225. The said Kabuliyat was however not
registered. The defendant paid in total a sum of Rs.970.31
in respect of arrears of rent of the said years 1956-57 and
1957-58. The plaintiff who is a trustee of the temple Kirti
Mandir instituted a regular suit No. 143/59 in the court of
3rd Joint Civil Judge, Baroda for recovery of arrears of
rent at Rs.3479.69 setting off the amount paid already. The
defence was that the suit was not entertainable in the civil
court in as much as even though the Tenancy Act ceased to
apply on the issue of the notification under Sec. 88(1)(b)
of the said Act in respect of lands within the municipal
limits of city of Baroda yet the rights of the tenant in
respect of the suit land which acrued before the said
notification subsisted or in other words the same was not
affected by the said notification. It has been further
contended that since the Mamlatdar has determined the fair
rent in accordance with the provisions of section 8 and 9 of
the said Act at Rs.375 and 5 annas lawfully payable in
respect of the said land the plaintiff could not recover any
amount in excess of the said sum. The trial court held that
the Tenancy Act was applicable to this case and since the
Mamlatdar has already deter mined the reasonable rent in
respect of the lands in question the civil court was not
competent to determine the same once again. The suit was
accordingly dismissed. On appeal the District Judge, Baroda
dismissed the appeal and affirmed the judgment and decree of
the court below. Against this judgment and decree S.A. No.
313/63 was preferred in the High Court of Gujarat. The High
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Court on considering the decision of this Hon’ble Court in
S.N. Kamble’s case [1966] 1 S.C.R. 618 held that in view of
the notification issued under Sec. 88(1)(b) of the said Act
the provisions of the Tenancy Act will not apply
retrospectively in view of the notification issued under Sub
Section (1) (b) of Sec. 88 of the Act XIII of 1956 issued on
May 21, 1958. The High Court, therefore, framed the
following issue:
"At what rate is the plaintiff entitled to claim
rent in respect
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of the land in occupation of deceased defendant
Surajmal Kashiram for the two years 1956-57 and
1957-58 having regard to the rent that may be
considered reasonable in the light of the evidence
that may be adduced before the court. "
And sent the records to the trial court for determination of
the said issue on allowing the parties to adduce evidence.
The trial court was also directed to return the evidence
together with its findings thereon to the High Court of
Gujarat. The trial court after considering the evidence
adduced by both the parties held that the reasonable rent of
the land in question was Rs.2225 per annum. With these
findings of the trial court the records were returned to the
High Court of Gujarat. On 4.10.1971 the High Court of
Gujarat allowed the appeal setting aside the judgment and
decree passed by the courts below decreeing the suit for a
sum of Rs.3479.69 paisa as rent to be recovered from the
legal heirs of the defendants-respondents.
The sole question that poses itself for consideration
before this court is whether the issuance of notification
under sub-Section (1)(b) of Sec. 88 of Act No. XIII of 1956
on May 21, 1958 making the provisions of the Bombay Tenancy
and Agricultural Lands Act, 1948 inapplicable to the lands
reserved for non-agricultural or industrial development in
the municipal limits of the city of Baroda retrospectively.
Or in other words whether the said Act will not at all apply
to lands within the Baroda Municipality which have been
reserved for non-agricultural or industrial development by
the aforesaid notification dated May 21, 1958 published in
the official gazette. If the Act does not at all apply then
the determination of rent of the suit land as made by the
Mamlatdar under the provisions of Sections 8 and 9 of the
said Act will be of no avail and the civil court will be
competent to determine the rent payable by the defendant-
tenant in respect of these lands in question to the
respondent on the basis of the Kabuliyat by the defendant-
appellant or in case the Kabuliyat is held to be
inadmissible in evidence because of non-registration the
reasonable rent payable in respect of the said land is to be
determined. To determine this question it is pertinent to
refer to the provision of Sec. 88 (1)(b) which is quoted
herein below:
Sec. 88(1) Save as otherwise provided in sub-
section (2), nothing in the foregoing provisions
of this Act shall apply-
798
(b) to any area which the State Government may,
from time to time, by notification in the official
Gazette, specify as being reserved for - non-
agricultural or industrial development .
On a plain reading of the provisions of Sec. 88(1) it is
crystal clear that the issuance of the notification under
Sec. 88(1)(b) on May 21, 1958 reserving the land within the
municipal limits of the city of Baroda for non-agricultural
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or industrial development the provisions of the Tenancy Act
were made inapplicable retrospectively subject to the
exception provided in sub-section (2) of Sec. 88. Another
section very relevant to be considered in this connection is
Sec. 89 of the said Act. Sub-Section (2)(b) of the said
section further provides that Save as expressely provided in
this Act nothing in this Act or any repeal effected thereby
shall be deemed to affect any right, title, interest,
obligation or liability already acquired, accrued or
incurred before the commencement of this Act. It was tried
to be contended before us on behalf of the appellant that in
view of this provision the right of the defendant-tenant to
pay rent as determined by the Mamlatdar under the provisions
of Sections 8 and 9 of the Bombay Tenancy and Agricultural
Lands Act, 1948 will not be affected by the retrospective
effect given by Sec. 88 of the said Act. It has been further
urged that the reasonable rent in respect of the lands in
question has already been determined by the Mamlatdar and
the Civil Court is not competent to decide reasonable rent
once again and the determination made by the Civil Court is
ineffective.
It was urged on behalf of the respondent that in view
of the notification issued under Sec. 88(1)(b) of the Bombay
Tenancy and Agricultural Lands Act, 1948 the provisions of
the Tenancy Act are not applicable to lands within municipal
limits of Baroda city at all as retrospective effect was
given to the said provisions and as such the rights that had
accrued to a tenant in respect of a land within municipality
will automatically go.
As already held before that on a plain reading of the
provisions of Sec. 88 of the Act it is quite clear and
apparent that the provisions of the said Tenancy Act are not
applicable to any area notified by the State Government as
being reserved for non-agricultural or industrial
development. In the instant case, there has been a
notification by the Government on May 21, 1958 under Sub-
section (1)(b) of Sec. 88 of the Act No. XIII of 1956
declaring that the lands within municipal
799
limits of the City of Baroda are reserved for non-
agricultural or industrial development. The consequence that
falls is that the provisions of Bombay Tenancy and
Agricultural Lands Act, 1948 are not applicable to the land
in question as the same is situated within municipal limits
of the city of Baroda and as a result these rights acquired
under the said Act automatically becomes non-est. It has
been tried to be urged by referring to the provisions of the
Sec. 89(2)(b) of the said Act that right, title and
interest, obligation or liability already acquired, accrued
or incurred before the commencement of this Act will not be
affected by the retrospective effect given to the provisions
of Sec. 88 of the said Act. This argument, in our
considerable opinion, is totally devoid of any merit. In
view of specific provision in the said sub-Section (2)(b) of
Sec. 89 to the affect "shall, save as expressely provided in
this Act, affect or deemed to be affected". It follows from
this provision that in the absence of an express provision
in the Act any right, title, interest, obligation or
liability already acquired or accrued before the
commencement of this Act shall not be affected by the Act of
1948. Section 88(1)(b) of the said Act has specifically
provided that on the issue of a notification in the official
Gazette specifying areas reserved for non-agricultural or
industrial development the provisions of the Tenancy Act,
1948 shall not apply. Therefore, reading these two
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provisions together the only reasonable conclusion that
follows is that the provisions of the Act will not be
applicable to the lands notified by the Government in the
official Gazette as being reserved for nonagricultural or
industrial development. This has been expressely provided in
Sec. 88(1)(b) of the Act. The argument that the retrospec-
tive affect given to the provisions of Sec. 88(1)(b) will
not affect the rights or interest acquired or accrued under
the said Act prior to the commencement of the 1948 Act is of
no substance and as such it cannot be sustained. It may be
pertinent to refer to the provisions of Sec. 89A of the Act
wherein it has been expressly provided that notwithstanding
repeal of the 1939 Act the provisions of Sections 3, 3A and
4 of the Bombay Tenancy Act, 1939 as set out in Schedule I
to this Act shall always be deemed to be extended to and to
be in force in, those areas on the dates on which this Act
was extended to and brought into force. Therefore, express
provisions has been made for the preservation of the rights
accrued under Sections 3, 3A and 4 of the Bombay Tenancy
Act, 1939 inspite of the repeal of 1939 Act by the Bombay
Act No. LXVII of 1948, that is, the Bombay Tenancy and
Agricultural Lands Act, 1948. This very question about the
effect of the provisions of Sec. 88(1)(b) and the provisions
of Sec. 89(2)(b) of the Act fell for consideration in the
case of Sakharam @ Bapusaheb Narayan Sanas and Anr. v.
Manikchand Motichand Shah and Anr., [1966] 2 S.C.R. 59. In
that case the only question arose for determination was
whether the
800
defendant appellants were "protected tenants" within the
meaning of the Bombay Tenancy Act, 1939 (Bombay) Act 29 of
1939). It was held that the provision of Sec. 88 of the
Bombay Tenancy and Agricultural Lands Act, 1948 were
entirely prospective and it would apply to such lands as
prescribed in clauses (a) and (d) of Sec. 88(1) from 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 tanant the status of a protected tanant already
accrued to him. It has been further observed that Sec.
89(2)(b) of the Act clearly intents to conserve such right
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. It is to be noticed
in this case that the question as of effect of a
notification published in the official Gazette by the
Government under Sec. 88(1)(b) of the said Tenancy Act of
1948 did not arise for consideration. Furthermore, as we
have said already hereinbefore that Sec. 89A read with
Schedule I to the said Act clearly preserves the rights
acquired or accrued under the provisions of Sections 3, 3A
and 4 of the Bombay Tenancy Act, 1939. This case, therefore,
strictly speaking does not deal with the question that
specifically has arisen in the instant case.
This Court in the case of Mohanlal Chunilal Kothari v.
Tribhovan Haribhai Tamboli, [1963] 2 S.C.R. 707 has held
that a notification issued under clause (d) of Sub-section
(1) of Sec. 88 of the Bombay Tenancy and Agricultural Lands
Act, 1948 declaring lands within municipal area as reserved
for urban non-agricultural or industrial development were
clearly retrospective in operation and the intention of the
legislature obviously was to take away all the benefits
arising out of the Act of 1948 and not those arising out of
the Act of 1939 that is under Sections 3, 3A and 4 of the
said Act as soon as the notification was made under clause
(d). In other words, it has been observed specifically that
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the rights acquired under the Tenancy Act, 1939 except
rights acquired under Sections 3, 3A and 4 will be no longer
in existence after the issuance of notification under Sec.
88(1)(b) of the Act of 1948.
In a later decision in Sidram Narsappa Kamble v.
Sholapur Borough Municipality & Anr., [1966] 1 S.C.R. 618
this question came to be considered by a larger bench of
this Court and it was held that the plain effect of the
provisions contained in Sections 31, 88 and 89(2)(b) is that
in view of the express provision contained in Sec. 88(1)(a),
the appellant could not claim the benefit of Sec. 31 nor
could it be said that
801
his interest as a protected tenant was saved by S. 89(2)(b)
of the said Act. It was further observed that Sections 3, 3A
and 4 of 1939 Act were continued in a modified form in
Schedule I of the 1948 Act only for the purpose of Sec. 31
of the 1948 Act. It is obvious that the consequence follows
that protected tenants are only those tenants specified in
those three sections aforesaid and that no new protected
tenant could come into existence under the 1948 Act. The
intention from the express words of Sec. 88(1)(a) is also
the same. It has been observed that the intention from the
express words of Sec. 88(1) is that there will be no
protected tenant after the 1948 Act came into force in
regard to lands held on lease from a local authority in view
of the express provision contained in S. 88(1)(a). We have
already held hereinbefore that the effect of the
notification dated 21st May, 1958 issued under Section
88(1)(b) of the Tenancy Act of 1948 specifying the lands
within the municipal limits of Baroda city within the
municipal limits of Baroda city reserved for nonagricultural
and industrial development is that all rights, title,
obligation etc. accrued or acquired under the Said Act
ceased to exist as the said section expressly states that
the provisions of the Tenancy Act of 1948 will not apply to
such lands. Section 88(1) is given retrospective effect. The
provision of Section 89(2)(b) are not applicable to protect
the right, title, interest already accrued before the
commencement of this Act except as provided in Section 89A
owing to express provisions made in section 88 of the said
Act.
In view of our findings referred to hereinbefore the
irresistable conclusion follows that the determination by
Mamlatdar under Ss. 8 and 9 of the Tenancy Act automatically
becomes ineffective and nonest by virtue of S. 88(1)(b) of
the said Act and the notification made thereunder. The Civil
Court is legally competent to determine the reasonable rent
payable by the defendent tenant and this determination has
been duly made by the Civil Court and same has been affirmed
by the High Court of Gujarat. There is, therefore, no merit
in this appeal which is dismissed without any order as to
costs.
P.S.S. Appeal dismissed.
802