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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 That  Act was  repealed by  the Bombay  Tenancy  and Agricultural Lands  Act, 1948  which was  made applicable to the Baroda  Municipality with  effect from August 1, 1956 by the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 794

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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 795 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 796 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 797           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