Full Judgment Text
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PETITIONER:
SIDRAM NARSAPPA KAMBLE
Vs.
RESPONDENT:
SHOLAPUR BOROUGH MUNCIPALITY & ANR.
DATE OF JUDGMENT:
27/08/1965
BENCH:
WANCHOO, K.N.
BENCH:
WANCHOO, K.N.
GAJENDRAGADKAR, P.B. (CJ)
HIDAYATULLAH, M.
SHAH, J.C.
SIKRI, S.M.
CITATION:
1966 AIR 538 1966 SCR (1) 618
CITATOR INFO :
RF 1972 SC 161 (27)
D 1979 SC1055 (16)
F 1985 SC 836 (15,16)
RF 1986 SC2204 (2,7)
RF 1991 SC1538 (8)
ACT:
Bombay Tenancy and Agricultural Lands Act, (67 of 1948) ss.
31, 88 and 89 --Scope of.
HEADNOTE:
In 1946, the Bombay -Tenancy Act, 1939 was applied to the
respondent-Muncipality. Section 3A of the Act provided that
every tenant shall, on the expiry of one year from the date
of the coming into force of the Amendment Act of 1946, be
deemed to be a protected tenant, unless the landlord had
within that period, applied to the Mamlatdar for a
declaration that the tenant was not protected. The
appellant had taken on lease lands from the respondent, and
since the respondents had not applied lo the Mamltdar, the
appellant became a protected tenant. ’Me 1939 Act was
repealed by the Bombay Tenancy and Agricultural Lands Act,
1948, Section 31 of the 1948 Act provided that a person
shall be recognised to be a protected tenant, if such person
had been deemed to be a protected tenant under s. 3, 3A or 4
of the 1939 Act. But s. 88 of the same Act provided that
nothing in the foregoing provisions of the 1948 Act shall
apply to lands held on lease from a local authority, while
s. 89(2) provided for the repeal of the 1939 Act except for
ss. 3, 3A and 4 which continued, is modified in Schedule 1
of the 1948 Act, and also provided. that nothing in the 1948
Act, or any repeal effected thereby shall save as expressly
provided in the 1948 Act, affect or be deemed to affect any
right, title, interest, obligation or liability, acquired,
accrued or incurred before the commencement of the 1948 Act.
In 1955 the respondent gave notice to the appellant
terminating his tenancy and subsequently filed a suit for
possession. Pending proceedings arising from the suit, the
appellant applied to the Mamlatdar for a declaration that he
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was a protected tenant of the lads, and the Mamlatdar gave
the declaration. On appeal, the Collector held that the
Mamlatdar had no jurisdiction to decide the question. The
Bombay Revenue Tribunal, in revision, set aside the
Collector’s order, and the High Court, in application under
Art. 227, restored Collector’s order.
In his appeal to this Court-, the appellant contended that
(i) the interest acquired by him as a protected tenant under
the 1939 Act would not be affected in view of the provisions
of s. 89(2) in the 1948 Act; and (ii) the Mamlatdar had
jurisdiction to decide the question under s. 88B.
HELD : (i) The plain effect of the provisions contained in
ss. 31, 88 and 89(2) (b), is that, in view of the express
provision contained in s. 88 (1) (a). the appellant could
not claim the benefit of s. 31, nor could it be said that
his interest as protected tenant was saved by s. 89(2) (b),
[625 G]
Sections 3, 3A and 4 of the 1939 Act were continued in a
modified form in Schedule 1 of the 1949 Act only for the
purpose of a. 11 of the 1948 Act and a perusal of those
shows that protected tenants were only those tenants who
satisfied these three sections and that no
619
new protected tenants could come into existence under the
1948 Act As & 31 is one of the foregoing provisions referred
to in s. 88, it win not apply to lands held on lease from a
local authority. In effect, therfore, legislature, which
had conferred by the 1939 Act, the status of a protected
tenant on certain persons, took away that status by enacting
s. 88 in the 1948 Act so far as lessees from a local
authority were concerned. As far as s. 89(2)(b) is
concerned, that part of it which says that any repeal
effected thereby shall not affect or be deemed to affect any
right etc., will not help the appellant because ss. 3, 3A
and 4 of the 1939 Act were not repealed by the 1948 Act.
Nor will the clause "nothing in this Act, shall affect or be
deemed to affect" apply, if there is an express provision in
the 1948 Act which takes away the interest of a protected
tenant acquired before its commencement, because of the
qualifying words, "save as expressly provided in this Act",
in the section. Section 88, of the 1948 Act is such an
express provision which takes out leases from a local
authority from the purview of ss. 1 of 87 of the 1948 Act,
including s. 31 which is the only provision in the 1948 Act
which recognised protected tenants. It follows that there
can be no protected tenants of lands held on lease from a
local authority under the 1948 Act. It is true that s. 88
does not in so many words say that the interest of a
protected tenant acquired under the 1939 Act is being taken
away so far as lands held on lease from a local authority
are concerned; but in effect, s. 88(1)(a) must be held to
say that there will be no protection under the 1948 Act for
protected tenants under the 1939 Act, so far as lands held
on lease from a local authority are concerned. The
intention from the express words of s. 88(1) (a) is also the
same. It may very well be that the legislature thought that
the status of a protected tenant should not be given to
lessees of lands from a local authority, in the interest of
the general public, and therefore, took away that status
which was conferred by the 1939 Act. by the express
enactment of s. 88(1)(a). [622 F-G; 623 E-G; 624 F-G; 625 B-
F; 616 C]
Further the appellant could not claim the benefit of s. 4A,
which takes the place of s. 31 after the amendment of 1956,
and claim that he is a protected tenant, because, s. 4A also
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does not apply to a case of lands held on lease from a local
authority. [627 D-E]
Sakharam v. Manikchand, [1962] 2 S.C.R. 59, disapproved.
Mohanlal Chunilal Kothari v. Tribhovan Haribhal Tamboli,
[1963] 2 S.C.R, 707, explained.
(ii) Section 88B will not protect the appellant, for his
lease had already been determined before the section came
into force on 1st April 1956 [627 C-D]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 577 of 1963.
Appeal from the judgment and order dated March 8, 1961 of
the Bombay High Court in Special Civil Application No. 1120-
of 1960.
S. G. Patwardhan and M. S. Gupta, for the appellant.
N. D. Karkhanis J. B. Dadachanji and A. G. Ratnaparkhi or
respondent No. 1.
620
The Judgment of the Court was delivered by
Wanchoo, J. The appellant took on lease two survey numbers
from the respondent, Sholapur Borough Municipality on April
1, 1946 for a period of three years. The land is situate
within the municipal limits. About November 8, 1946, the
Bombay Tenancy Act, No. 29 of 1939 (hereinafter referred to
as the 1939-Act) was applied to this area and s. 3-A of that
Act provided that every tenant shall on the expiry of one
year from the date of the coming into force of the Bombay
Tenancy (Amendment) Act, (No. XXVI of 1946) be deemed to be
a protected tenant unless his landlord has within the said
period made an application to the Mamlatdar for a
declaration that the tenant was not a protected one. The
respondent did not file a suit within one year and therefore
the appellant claimed to have become a protected tenant
under the 1939-Act. The 1939-Act was repeated in 1948 by
the Bombay Tenancy and Agricultural Lands Act, No. LXVII of
1948 (hereinafter referred to as the 1948-Act). Section 31
of the 1948-Act provided that for the purposes of this Act,
a person shall be recognised to be a protected tenant if
such person had been deemed to be a protected tenant under
s. 3, 3-A or 4 of the 1939-Act. Ordinarily, therefore, the
appellant would have become a protected tenant under this
section of the 1948-Act, if he had become a protected tenant
under the 1939Act. But s. 88 of the 1948-Act inter alia
provided that nothing in the foregoing provisions of the
1948-Act shall apply to lands held on lease from a local
authority. Therefore if s. 88 prevailed over s. 31, the
appellant would not be entitled to the benefit of s. 31 and
could not claim to be a protected tenant under this section.
The appellant however relied on s. 89(2) of the 1948-Act
which provided for the repeal of the 1939-Act except for ss.
3, 3-A and 4 which continued as modified in Sch. 1 of the
1948-Act. That sub-section provided that nothing in the
1948-Act or any repeal effected thereby shall save as
expressly provided in this Act affect or be deemed to affect
any right, title, interest, obligation or liability already
acquired, accrued or incurred before the commencement of the
1948-Act.
In the present case the respondent gave notice to the appel-
lant on May 2, 1955 terminating his tenancy with effect from
March 31, 1956. Subsequently the respondent filed suit No.
42 of 1957 for obtaining possession of the lands and for
certain other reliefs. It was held in that suit that the
respondent could not get possession of the lands as the
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appellant was entitled to the benefit of the 1948-Act and
consequently the respondent’s suit for pos
621
session was dismissed. The respondent then appealed to the,
District Court. During the pendency of that appeal the
appellant made an application on September 8, 1958 for a
declaration that he was a protected tenant of the lands and
also for fixig rent under the provisions of the Tenancy Act.
Further in the appeal filed in the District Court a
compromise was arrived at by which the order dismissing the
respondent’s suit for possession was set aside and the suit
was remanded to the trial court with the direction that the
suit be stayed and disposed of after the decision by the
Mamlatdar. The compromise provided that if the appellant
was finally held to be tenant by the authorities under the
1948Act the suit for possession would be dismissed. It also
provided that if the decision in the proceedings under the,
Tenancy Act went against the appellant, the suit for
possession would be decreed.
The Mamlatdar held that the appellant was a tenant and gave
him a declaration under s. 70 (b) of the 1948-Act. The
respondent then went in appeal to the Collector, and the
Collector decided that the Mamlatdar had no jurisdiction to
decide whether the appellant was a tenant. The appellant
then went in revision to the Bombay Revenue Tribunal. The
tribunal held, in view of the amendments that had been made
in the 1948-Act by the Amendment Act of 1956 by which s. 88-
B was introduced in the 1948-Act, that the revenue court had
jurisdiction to decide whether the appellant was a tenant.
Finally it remanded the matter to the Collector for decision
on the question whether the appellant was a tenant or a
protected tenant on the merits.
The respondent had contended before the Revenue Tribunal
that the appellant could not have the status of a tenant or
protected tenant in view of the provisions of the 1948-Act
and therefore the respondent filed a petition under Art. 227
of the Constitution of India before the Bombay High Court.
Its contention before the High Court was that in view of s.
88 of the 1948-Act the appellant could not claim to be a
protected tenant within the meaning of s. 31 of that Act and
therefore the order of the Collector was right. It was also
contended that s. 88-B would not apply to the case of the
appellant as it came into force on April 1, 1956 after the
determination of the tenancy of the appellant by notice.
Both these contention were accepted by the High Court and
the order of the Revenue Tribunal was set aside and in its
place the order of the Collector dismissing the appellant’s
application was restored. Thereupon there was an
application to the High Court under Art. 133 (1) (c) of the
Constitution and
622.
the High Court certified the case as a fit one for appeal to
this Court; and that is how the matter has come up before
us.
This appeal was first heard by a Division Bench of this
Court and has been referred to a larger Bench in view of
certain difficulties relating to the interpretation and
inter-relation of ss. 31, 88 and 89 of the 1948-Act and in
view of two decisions of this Court in Sakharam v.
Manikchand(1) and Mohanlal Chunilal Kothari v. Tribhovan
Haribhai Tamboli (2). It has been contended on behalf of the
appellant that Sakharam’s case(1) fully covers the present
case and on the basis of that case the appeal should be
allowed. On the other hand, learned counsel for the
respondent contends that on the ratio of Mohanlal Chunilal
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Kothari’s case, (2 ) the appellant should be held to be not
a protected tenant and that considerations which applied to
the interpretation of s. 8 8 ( 1 ) (d) equally applied to
the interpretation of s. 88 (1) (a), (b) and (c). It is
further urged on behalf of the respondent that in view of
the latter decision, the decision in Sakharam’s case(1) no
longer holds the field.
Before we refer to the two decisions on which reliance has
been placed on either side, we may refer to the various
provisions of the 1948-Act as they were before the
amendments of 1956 to decide the inter-relation of ss. 31,
88 and 89 of the said Act. It may be mentioned at the
outset that S. 89 which repealed the 1939-Act did not repeal
ss. 3, 3-A and 4 of that Act. These three sections
continued as modified in Sch. 1 of the 1948-Act. A perusal
of the modified sections in Sch. I shows that protected
tenants were only those tenants who satisfied these three
sections in the Schedule and that no new protected tenants
could come into existence under the 1948-Act after it came
into force from December 28, 1948. Further it seems to us
obvious that ss. 3, 3-A and 4 of the 1939-Act were not
repealed and were continued as modified in Sch. 1 of the
1948-Act for the purpose of s. 31 of the 1948-Act. That
section provided 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, 3-A or 4 of the Bombay
Tenancy Act, 1939."
These sections (ss. 3, 3-A and 4) which were continued in a
modified form in Sch. 1 of the 1948-Act were so continued
only for the purpose of S. 31 of the Act and it was not
possible for
(1) [1962] 2 S.C R. 59.
(2) [1963] 2 S.C.R. 707.
623
any tenant to be a protected tenant under the 1948-Act
unless he was a protected tenant under the 1939-Act. The
1948-Act thus recogaised such tenants as protected tenants
who were protected tenants under the 1939-Act and even
though ss. 3, 3-A and 4 of the, 1939 Act were continued as
modified by Sch. 1 of the 1948Act The modifications were
such as showed that only those tenants would remain
protected tenants under the 1948-Act who were protected
under the 1939-Act.
Then we come to s. 88 of the 1948-Act which is in these
terms :-
" (1). Nothing in the foregoing provisions of this Act
shall apply -.-
(a) to lands held on lease from the Crown, a local
authority or a co-operative society;
(b).................................."
Section 8 8 lays down that nothing in the foregoing
provisions of the 1948-Act shall apply inter-alia to lands
held on lease from a local authority, like a municipality.
As s. 31 is one of the foregoing sections it will not apply
to lands held on lease from a local authority. In other
words, so far as lands held on lease from a local authority
are concerned, there will be no provision in the 1948-Act
for recognising a protected tenant even if a person was a
protected tenant under the 1939-Act. It is only s. 31 which
gave recognition to the status of a protected tenant under
the 1948-Act and if that provision is in effect omitted so
far as lands held on lease from a local authority are
concerned, no such lessee can claim to be a protected
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tenant. In effect therefore the legislature which had
conferred by the 1939-Act the status of a protected tenant
on certain persons was taking away that status by enacting
s. 88 in the 1948-Act so far as inter alia aessees from a
local authority were concerned.
If matters had stood only on sq. 31 and 88 there would have
been no difficulty in holding that the status of protected
tenant conferred by the 1939-Act was taken away from certain
lessees including lessees from a local authority under s. 88
of the 1948Act. But the appellant relies on s. 89(2)(b) and
contends that provision saved his rights as a protected
tenant. We have already mentioned that s. 89(1) repealed
inter alia the 1939-Act except for ss. 3, 3-A and 4 which
continued in a modified form
624
in Sch. 1 of Section 89 (2) (b) on which reliance is placed
by the appellant is in these terms : -
"But nothing in this Act or any repeal
effected thereby-
(a)
(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)
The argument is that the interest acquired as a protected
tenant under the 1939-Act would thus not be affected in view
of this provision in the 1948-Act; and it is this argument
which we have to examine. Now we have already mentioned
that ss. 3, 3-A and 4 relating to protected tenants in the
1939-Act were not repealed by the 1948-Act. Therefore that
Part of s. 89 (2) (b) which says that any repeal effected
thereby shall not affect or be deemed to affect any high
title, interest etc. will not apply. But learned counsel
for the appellant relies on the words "nothing in this Act
shall affect or be deemed to affect any right, title or
interest. . . . " and his argument is that even though there
might not have been a repeal of ss. 3, 3-A and 4 of the
1939-Act by the 1948-Act S. 89 (2) would still protect him
because it provides that nothing in the 1948-Act shall
affect or be deemed to affect any right title, interest etc.
acquired before its commencement. But the clause "nothing
in this Act shall affect or be deemed to affect" is
qualified by the words "save as expressly provided in this
Act". Therefore, if there is an express provision in the
1948-Act, that will prevail over any right, title or
interest etc. acquired before its commencement. Further the
words "save as expressly provided in this Act" also qualify the
words "any repeal affected thereby" and even in the case of repe
al
of the provisions of the 1939-Act if there is an express provisi
on
which affects any title, right or interest acquired before the
commencement of the 1948-Act that will also not be saved.
The narrow question then is whether there is anything
express in the 1948-Act which takes away the interest of a
protected tenant acquired before its commencement. If there
is any such express provision then s. 89(2) (b) would be of
no help to the appellant. The contention of the respondent
is that S. 88 is an
625
express provision and in the face of this express provision
the interest acquired as a protected tenant under the 1939-
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Act cannot prevail. On the other hand, it is urged on
behalf of the appellant that s. 88 does not in express terms
lay down that the interest acquired by a protected tenant
under the 1939-Act is being taken away and therefore it
should not be treated as an express provision. Now there is
no doubt that s. 88 when it lays down inter alia that
nothing in the foregoing provisions of the 1948-Act shall
apply to lands held on lease from a ’local authority, it is
an express provision which takes out such leases from the
purview of sections 1 to 87 of the 1948-Act. One of the
provisions therefore which must be treated as non-existent
where lands are given on lease by a local authority is in s.
31. The only provision in the 1948-Act which recognised
protected tenants is s. 31 and if that section is to be
treated as non-existent so far as lands held on lease from a
local authority are concerned, it follows that there can be
no protected tenants of lands held on lease from a local
authority under the 1948-Act. It is true that s. 88 does
not in so many words say that the interest of a protected
tenant acquired under the 1939-Act is being taken away so,
far as lands held on lease from a local authority are
concerned; but the effect of the express provision contained
in s. 88 (1 ) (a) clearly is that s. 31 must be treated as
non-existent so far as lands held on lease from a local
authority are concerned and in effect therefore s. 8 8 (1)
(a) must be hold to say that there will be no protection
under the 1948-Act for protected tenants under the 1939-Act
so far as lands held on lease from a local authority are
concerned. It was not necessary that the express provision
should in so many words say that there will be no protected
tenants after the 1948-Act came into force with respect to
lands held on lease from a local authority. The intention
from the express words of s. 88(1) is clearly the same and
therefore there is no difficulty in holding that there is an
express provision in the 1948-Act which lays down that there
will be no protected tenant of lands held on lease from a
local authority. In view of this express provision
contained in s. 88(1) (a), the appellant cannot claim the
benefit of s. 31 ; nor can it be said that his interest as
protected tenant is saved by s. 89 (2) (b). This in our
opinion is the -plain effect of the provisions contained in
s. 31, s. 88 and s. 89(2)(b) of the 1948-Act.
It now remains to refer to Sakharam’s case(1) which
certainly supports the contention raised on behalf of the
appellant. With respect, it seems to us that more has been
read in that case in s. 89 (2) (b) than is justified
under the terms of that provision. It was
(1) [1962] 2 S.C.R. 59.
626
also observed in that case that the provisions of s. 88 were
entirely prospective and were not intended in any sense to
be of confiscatory character, and that s. 89(2) (b) showed
clearly an intention to conserve such rights as were
acquired before the commencement of 1948-Act. It seems to
us, with respect, that in that case full effect was not
given to the words "save as expressly provided in this Act"
appearing in S. 89(2) (b), and it was also not noticed that
there could be no new protected tenants after the 1948-Act
came into force and that S. 88(1) in its application to
leases from local authorities will have no meaning unless it
affected the rights contained in S. 3 1. It may very well be
that the legislature thought that the status of a protected
tenant should not be given to lessees of lands from a local
authority, in the interest of the general, public and
therefore took away that interest by the express enactment
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of s. 8 8 ( 1 ) (a). The status was after all conferred by
the 1939-Act and we can see no difficulty in its being taken
away by the 1948Act. It may be mentioned that S. 8 8 (1)
(a) applies not only to lands held on lease from a local
authority but also to lands held on lease from the State,
and one can visualise situations where the State may need to
get back lands leased by it in public interest. It must
therefore have been in the interest of the public that a
provision like S. 88 (1) (a) was made with respect to
lessees from a local authority or the State who had become
protected tenants under the 1939-Act. We are supported in
the view we have taken by the decision of this Court in
Mohanlal Chunilal Kothari’s case(1) where it was held that
S. 88 (1)(d) would be rendered completely ineffective if it
was not to be applied retrospectively, though it was added
in that case that it did not affect the rights acquired
under the earlier Act of 1939. The latter observation, with
respect, does not seem to be correct for their could be no
new protected tenants under the 1948-Act to whom even S. 88
(1) (d) could have applied. Further if a notification under
S. 88 (1) (d) could be retrospective upto the date of the
1948-Act we can see no reason on the language of this
section to hold that it was retrospective only upto 1948 and
would not affect the rights acquired tinder the 1939-Act.
We may also mention that by an oversight ’it was stated in
Mohanlal Chunilal Kothari’s case(1) that clauses (a), (b)
and (c) of S. 88(1) apply to things as they were at the date
of the enactment. It is however clear that clauses (a), (b)
and (c) of S. 88 (1) also apply in the future. For example
cl. (a) lays down that nothing in the foregoing provisions
of this Act shall apply to lands
(1) [1963] 2 S.C.R. 707.
6 2 7
held on lease from Government, a local authority or co-
operative society. The words "held on lease" in this clause
are only descriptive of the lands and are not confined to
lands held on lease on the date the Act came into force;
they equally apply to lands ceased before or after the Act
became law and the distinction that was drawn in Mohanlal
Chunilal Kothari’s case(1) that cls. (a), (b) and (c)
applied to things as they were at the date of the enactment
whereas cl. (d) was with respect to future, with respect,
does not appear to be correct.
In this view of the matter, the view taken by the High Court
in the judgment under appeal that s. 88 (1) (a) is an
express provision which takes away the interest of protected
tenants under the 1939-Act must be held to be correct.
So far as the argument based on s. 88-B is concerned, it IS
enough to say that we agree with the High Court that section
will not protect the appellant for his lease had already
been determined before the section came into force on April
1, 1956. Besides it may be observed that s. 4-A which takes
the place of s. 31 after the amendment of 1956 still does
not apply to a case of lands held on lease from a local
authority and therefore what we have said with respect to s.
31 will equally apply to s. 4-A and the appellant cannot
claim the benefit of that section and contend that he is a
protected tenant under the 1939-Act and therefore cannot be
ejected.
In the result we dismiss the appeal but in the circumstances
of this case we order the parties to bear their own costs.
Appeal dismissed.
(1) [1963] 2 S.C.R. 707.
628
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