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PETITIONER: MOHANLAL CHUNILAL KOTHARI

       Vs.

RESPONDENT: TRIBHOVAN HARIBHAI TAMBOLI

DATE OF JUDGMENT: 02/05/1962

BENCH: SINHA, BHUVNESHWAR P.(CJ) BENCH: SINHA, BHUVNESHWAR P.(CJ) GAJENDRAGADKAR, P.B. WANCHOO, K.N. AYYANGAR, N. RAJAGOPALA AIYYAR, T.L. VENKATARAMA

CITATION:  1963 AIR  358            1963 SCR  (2) 707

ACT: Suit-Decree-Law changed during pendency of appeal  Appellate Court,   if   bound  to  apply   changed   law-Retrospective operation-Bombay Tenancy  and Agricultural, Lands Act  (Bom. LXVI of 1948, S. 88 (1) (d)-Bombay Tenancy Act, 1939, 8.  3A (1).

HEADNOTE: Certain lands were situated in the erstwhile State of Baroda before  it became a part of the State of Bombay  by  merger. The  Bombay  Tenancy and Agricultural Lands Act,  1948,  was extended  to Baroda on August 1, 1949.  Suits were filed  in the  Civil  Court  by  appellants-  landlord-,  against  the respondents  who were their tenants on the ground  that  the latter became trespassers with effect from the beginning  of the  new  agricultural  season in May,  1951.   Decrees  for possession  were  passed  by the Civil Court  in  favour  of landlords and the same were confirmed by the first appellate court.   However, the High’ Court accepted the  appeals  and dismissed the suits.  It was held that under the  provisions of s. 3 A(1) of the Bombay Tenancy Act, 1939, as amended,  a tenant would be deemed to be a protected tenant from  August 1,  1950 and that vested right could not be affected by  the notification dated April 24, 1951 issued under s. 89 (1) (d) of  the Act of 1948 by which the land in suit  was  excluded from the operation of the Act.  The notification dated April 24,  1931 had no retrospective effect and did not take  away the protection 708 afforded  to tenants by s. 3A.  The landlords came  to  this Court   by  special  leave.   It  was  conceded   that   the appellants’  suits  for  possession would fail  if  the  Act applied  to the tenancies in question, because in that  case only revenue courts had jurisdiction to try them.   However, reliance  was  placed on notification  dated  April  24,1951 which  excluded the land in suit from the operation  of  the Act.  It was also contended on behalf of appellants that the subsequent notification cancelling the first one, could  not take  away the rights which had accrued to them as a  result

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of the first notification. Held,  that  the  notification  dated  April  24,  1951  was cancelled  by another notification dated January  12,  1953. The second notification was issued when the matter was still pending  in  the  first  court of  appeal.   The  suits  had therefore  to  be  decided on the basis that  there  was  no notification  in  existence which would  take  the  disputed lands out of the operation of the Act.  The first  appellate court was wrong in holding that the suits had to be  decided on the basis of facts in existence on the date of filing  of the suits. Held,  further, that the second notification cancelling  the first one did not take away any rights which had accrued  to the  landlords.  If the landlords had obtained an  effective decree and had succeeded in ejecting the tenants as a result of  that  decree  which may have become  final  between  the parties,  that  decree may not have been re-opened  and  the execution  taken  thereunder  may not  have  been  recalled. However, it was during. the pendency of the suit at the  ap- pellate  stage  that  the  second  notification  was  issued cancelling  the first and the court was bound to  apply  the law as it was on the date of its judgment. Held,  also,  that  clauses (a), (b) and  (c)  of  s.  88(1) applied to things as they were on the date of the  commence- ment  of the Act of 1948 whereas clause (d)  authorised  the State Government to specify certain areas as being  reserved for  urban  non-agricultural or industrial  development,  by notification in the Official Gazette, from time to time.  It was  specifically  provided in clauses (a) to (c)  that  the Act, from its inception, did not apply to certain areas then identified, whereas clause (d) had reference to the  future. The State Government could take out of the operation of  the Act  such  areas as in its opinion should  be  reserved  for urban  nonagricultural or ’industrial  development.   Clause (d) would come into operation only upon such a  notification being  issued by the State Government.  In Sukharam’s  case, this Court never intended to lay down that the provisions of 709 clause  (d) were only prospective and had  no  retrospective operation.   Unlike  clauses (a) to (c) which  were  clearly prospective,  clause (d) had retrospective operation in  the sense that it would apply to land which would be covered  by the notification to be issued by the Government from time to 2  time so as to take that land out of the operation of  the Act of 1948, granting the protection.  So far as clauses (a) to  (c) were concerned, the Act of 1948 would not  apply  at all to lands covered by them, but that would not take away the  rights conferred by the Act of 1939 which was  repealed by  the Act of 1948.  Section 89(2)  specifically  preserved the existing rights under the repealed Act.  Sukharam’s case was  about the effect of clause (c) on the  existing  rights under  the Act of 1939 and it was in that  connection  that- this  Court  observed that s. 88 was  prospective.   However clause  (d)  is  about the future, and  unless  it  has  the limited  retrospective effect indicated earlier, it will  be rendered   completely  nugatory.   The  intention   of   the legislature  obviously  was to take away  all  the  benefits arising  out of the Act of 1948 (but not those arising  from the Act of 1939) as soon as the notification was made  under clause (d). Sakharam  v. Manikchand Metichand Shah, (1962) 2 S.C.R.  59, explained.

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JUDGMENT: Civil APPELLATE JURISDICTION: Civil Appeal Nos. 282 & 283 of 1959. Appeals by special leave from the judgment and decree  dated December  18,  1956, of the Bombay High Court at  Bombay  in Second Appeals Nos. 233 and 185 of 1955 respectively. G.   S. Pathak, O. C. Mathur, J. B. Dadachanji and  Ravinder Narain, for the appellants. S.   G. Patwardhan and K, R. Choudhri, for the respondents. 1962.  May 2. The Judgment of the Court was delivered by SINHA,  C.J.-These two appeals, by special  leave,  directed against  the  judgment and decree of a single Judge  of  the Bombay  High  Court,  raise a common question  of  law,  and have..  therefore, been heard together.  This judgment  will govern  both  the  cases.  The  appellants  were  plaintiff- landlords, 710 and the respondents were tenants-in-possession of      certain lands  which were situate in the erstwhile State  of  Baroda before it became part of the State      of    Bombay,     by merger.   The  Bombay  Tenancy and  Agricultural  Lands  Act (Bombay  Act  LXVII  of  1948)-which  hereinafter  will   he referred  to as the Act-was extended to Baroda on August  1, 1949.   The suits out of which these appeals arise had  been instituted by the appellants on the basis that the  tenants- respondents had become trespassers on the service of  notice in  March  1950, with effect from the beginning of  the  new agricultural section in May 1951.  As the defendants did not comply  with  the  terms  of the  notice  and  continued  in possession  of the lands, to which they had  been  inducted, the  landlords instituted suits for possession in the  Civil Court.  The Trial Courts and the Court of Appeal decreed the suits for possession.  But on second appeal by the  tenants, the  learned  Single Judge. who heard  the  second  appeals, allowed  the  appeals  and dismissed the  suits  with  costs throughout. It  is not disputed that if the provisions of the  Act  were applicable  to  the tenancies in question,  the  plaintiffs’ suits   for  possession  must  fail,  because   these   were instituted  in the Civil Courts, which have Jurisdiction  to try  the suits only if the dependents were trespassers.   It is equally clear that if the tenants could take advantage of the provisions of the Act, any suit for possession against a tenant would lie in the Revenue Courts and not in the  Civil Courts.   But  reliance  was placed  upon  the  notification issued  by the Bombay Government on April 24, 1951,  to  the following effect :               "In exercise of the powers conferred by clause               (d)  of sub-section (1) of Section 88  of  the               Bombay  Tenancy  and Agricultural  Lands  Act,               1948 (Bombay LXVII of 1948) the Government  of               Bombay is pleased to specify the area               711               within the limits of the Municipal Borough  of               Baroda  City  and within the distance  of  two               miles  of the limits of the said  Borough,  as               being reserved for Urban, non-agricultural  or               industrial development". The  learned Judge of the High Court, in  disagreement  with the Courts below,, held that under provisions of s. 3A(1) of the Bombay Tenancy Act, 1939, as amended, a tenant would  be deemed  to be a protected tenant from August 1,  1950,’  and that vested right could not be affected by the  notification aforesaid, issued by the Government under s. 88 (1)(d) which had the effect of putting the lands in  question out of  the

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operation of the Act.    In  other words, the learned  Judge held the  notification had no retrospective effect so as to     take away  the  protection  afforded to the  tenants  by  a.  3A, aforesaid. The  learned  counsel for the appellants contended.  in  the first instance, that the notification, set out above,  under s.  88 (1)(d) operated with effect from December  28,  1948, when the Act came into force.  In this connection,  reliance was placed upon the decision of this Court, pronounced by me sitting  in  a Division Court, in the case  of  Sakharam  v. Manikchand Motichand Shah, (1) in these words :               "The  provisions  of a. 88 are  entirely  pro-               spective.  They apply to lands of the descrip-               tion contained in cls. (a) to (d) of s.  88(1)               from  the  date  on which the  Act  came  into               operation,  that is to say, from December  28,               1948.   They are not intended in any sense  to               be  of a confiscatory character.  They do  not               show  an  intention  to  take  away  what  had               already  accrued  to  tenants  acquiring   the               status of ’protected tenants". 712 It  is  necessary,  therefore,  to  make  some  observations explaining  the real position.  In that case,  the  question then in controversy had particular reference to s. 88(1)(c), which  is  the only provision quoted at page 2 of  the  blue print of the judgment.  That case had nothing to do with el. (d)  of  s. 88(1).  In that case, the lands in  dispute  lay within two miles of the limits of Poona Municipality.  It is clear, therefore, that the inclusion of el. (d) of s.  88(1) was a slip and certainly was not relevant for  consideration in that case.  The provisions of s. 88(1) are as follows :               "Nothing  in the foregoing provisions of  this               Act shall apply:               (a)   to lands held on lease from the  Govern-               ment  a  local  authority  or  a  co-operative               society;               (b)   to  lands held on lease for the  benefit               of   an industrial or commercial undertaking;               (c)   to any area within the limits of Greater               Bombay and within the limits of the  Municipal               boroughs   of   Poona   City   and   Suburban,               Ahmedabad,  Sholapur,  Surat  and  Hubli   and               within a distance of two miles of the  limit,%               of such boroughs; or               (d)   to  any area which the State  Government               may,  from  time to time, by  notification  in               tile   Official  Gazette,  specify  as   being               reserved   for   urban   non-agricultural   or               industrial development. It  will be noticed that cls. (a), (b) and (c) of  s.  88(1) apply  to things as they were at the date of the  enactment, whereas  el.  (d) only authorised the  State  Government  to specify  certainareas  as  being  reserved  for  urban  non- agricultural  or industrial development, by notification  in the Official Gazette,  713 from time to time.  Under cls. (a) to (c) of a. 88(1) it  is specifically  provided that the Act, from its inception  did not apply to certain areas then identified; whereas el.  (d) has  reference to the future.  Hence, the  State  Government could take out of the operation of the Act such areas as  it would deem should come within the description of urban  non- agricultural  or  for industrial development.   Clause  (d), therefore,  would  come  into operation  only  upon  such  a

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notification  being  issued by the  State  Government.   The portion of the judgment, quoted above, itself makes it clear that  the provisions of s. 88 were never intended to  divest vested interests.  To that extent the decision of this Court is  really  against the appellants.  It is  clear  that  the appellants cannot take advantage of what was a mere slip  in so far as cl. (d) was added to the other clauses of s.88(1), when  that clause really and did not fall to  be  considered with  reference to the controversy in that case.   In  other words,  this  Court  never  intended  in  its  judgment   in Sakharam’s  case‘e(1)  to lay down that  the  provisions  of cl.(d)  of s.88 (1) aforesaid were only prospective and  had no retrospective operation.  Unlike cls. (a), (b) and (c) of s.88(1),  which this Court held to be  clearly  prospective, those  of  cl.(d) would in the  context  have  retrospective operation  in  the sense that it would apply to  land  which could  be  covered by the notification to be issued  by  the Government  from time to time so as to take those lands  out of  the operation of the Act of 1948, granting  the  protec- tion.   So far as cls. (a), (b) and (e) are  concerned,  the Act of 1948 would not apply at all to lands covered by them. But  that  would not take away the rights conferred  by  the earlier  Act of 1939 which was being repealed by the Act  of 1948.  This is made clear by the provision in s.89(2)  which preserves existing rights under the repealed Act. Sakharam’s case,  (1) was about the effect of cl. (c) on (1)  (1962)  2 S.C.R. 59. 714 the existing rights under the Act of 1939 and it was in that connection   that   this  Court  observed  that   s.88   was prospective.  But el. (d) is about the future and unless  it has  the limited retrospective effect indicated  earlier  it will be rendered completely nugatory.  The intention of  the legislature  obviously  was to take away  all  the  benefits arising  out of the Act of 1948 (but not those arising  from the Act of 1939) as soon as the notification was made  under el.  (d).   This  is the only way  to  harmonise  the  other provisions  of the 1948-Act, conferring certain benefits  on tenants  with  the provisions in el. (d) which is  meant  to foster  urban and industrial development.  The  observations of  the  High  Court to the  contrary  are,  therefore,  not correct. But  the  matter does not rest there.  The  notification  of April 24, 1951, was cancelled by the State Government by the following notification dated January 12, 1953               "Revenue  Department,  Bombay  Castle,   12th,               January,    1953.     Bombay    Tenancy    and               Agricultural Landis Act, 1948.               No.9361/49   :  In  exercise  of  the   powers               conferred by clause (d) of sub-section (1)  of               Section  88  of the Bombay Tenancy  and  Agri-               cultural  Lands  Act, 1948  (Bombay  LXVII  of               1948).  The Government of Bombay is pleased to               cancel Government Notification in the  Revenue               Department  No.9361/49  dated  the   24th/25th               April, 1951". It would thus appear that when the matter was still  pending in the Court of Appeal, the judgment of the lower  Appellate Court  being  dated  September 27,  1954,  the  notification cancelling  the previous notification was issued.  The  suit had, therefore, to be decided on the basis that there was no notification in existence under s.88(1)(d), which could take the disputed lands out of the operation 715 of  the Act.  This matter was brought to the notice  of  the

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learned  Assistant Judge, who took the view that though,  on the merger of Baroda with Bombay in 1949, the defendants had the  protection of the Act, that protection had  been  taken away  by the first notification’ which was cancelled by  the second.   That  Court  was of the opinion  that  though  the Appellate   Court  was  entitled  to  take  notice  of   the subsequent  events, the suit had to be determined as on  the state of facts in existence on the date of the suit, and not as they existed during the pendency of the appeal.  In  that view  of the matter, the learned Appellate Court  held  that the  tenants-defendants  could  not take  advantage  of  the provisions  of  the Act, and could not resist the  suit  for possession.  In our opinion, that was a mistaken view of the legal  position.  When the judgment of the  lower  Appellate Court  was rendered, the position in fact and law  was  that there  was  no  notification  under  cl.(d)  of  s.88(1)  in operation so as to make the land in question immune from the benefits conferred by the Tenancy Law.  In other words,  the tenents  could  claim  the protection afforded  by  the  law against  eviction on the ground that the term of  the  lease had expired.  But it was argued on behalf of the  appellants that the subsequent notification, cancelling the first  one, could not take away the rights which had accrued to them  as a  result of the first notification.  In our  opinion,  this argument  is  without  any  force.   If  the  landlords  had obtained  an effective decree and had succeeded in  ejecting the  tenants  as  a result of that decree,  which  may  have become  final between the parties, that decree may not  have been  re-opened and the execution taken thereunder  may  not have  been recalled.  But it was during the pendency of  the suit at the appellate stage that the second notification was issued canceling the first.  Hence, the Court was bound to 716 apply the, law as it was found on the date of its  judgment. Hence, there is no question of taking away any vested rights in  the  landlords.   It does not  appear  that  the  second notification,  canceling  the first notification,  had  been brought to the notice of the learned Single Judge, who heard and  decided  the second appeal in the High Court.   At  any rate, there is no reference to the second notification.   Be that  as it may, in our opinion, the learned Judge  came  to the  right conclusion in holding that the tenants could  not be  ejected,  though  for wrong reasons.   The  appeals  are accordingly  dismissed,  but there would be no order  as  to costs  in  this  Court,  in  view  of  the  fact  that   the respondents   had  not  brought  the   second   notification cancelling  the first to the pointed attention of  the  High Court. Appeal dismissed.