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PETITIONER: SAKHARAM  BAPUSAHEB NARAYAN SANAS AND ANOTHER

       Vs.

RESPONDENT: MANIKCHAND MOTICHAND SHAH AND ANOTHER

DATE OF JUDGMENT: 19/04/1961

BENCH: SINHA, BHUVNESHWAR P.(CJ) BENCH: SINHA, BHUVNESHWAR P.(CJ) SUBBARAO, K. DAYAL, RAGHUBAR

CITATION:  1963 AIR  354            1962 SCR  (2)  59  CITATOR INFO :  E          1963 SC 358  (4,5)  R          1966 SC 367  (6)  O          1966 SC 538  (5,10)  D          1966 SC1758  (11)  R          1980 SC 101  (3)  RF         1986 SC2204  (5)  RF         1991 SC1538  (7)

ACT: Agricultural Lands-Protected Tenants, Rights  of-Acquisition under  repealed statute-Repealing’ statute, if affects  such rights Bombay Tenancy Act, 1939 (Bom.29 of 1939), as amended by  the  Bombay Tenancy (Amendment) Act, 1946  (Bom.  26  of 1946), S. 3A(1) Bombay Tenancy and Agricultural Lands  Act, 1948 (Bom.  LXVII of 1948), ss. 31, 88, 89.

HEADNOTE: The appellants had acquired the rights of protected  tenants under  S. 3A(1) of the Bombay Tenancy Act, 1939, as  amended by  the  Bombay  Tenancy (Amendment) Act,  1946,  and  their rights  as protected tenants were recorded in the Record  of Rights.   That  Act was repealed by the Bombay  Tenancy  and Agricultural Lands Act, 1948, which by s. 31 recognised  the rights of a protected tenant acquired under the Act of  1939 for its own purposes, by s. 88(1)(c) provided, that  nothing in  the foregoing provisions of the Act should apply to  any area  within the limits of the Municipal borough  of  Poona City  and Suburban as also some other boroughs and within  a distance of two miles of the limits of such boroughs, and by s. 89(2) that "nothing in this Act or any repeal effected  thereby ... (b) shall, save as expressly provided in this Act, affect or be deemed to affect (i)  any  right, title, interest,  obligation  or  liability already   acquired,   accrued   or   incurred   before   the commencement of this Act, or  .................................................... or ...................................................... (ii)  any legal proceeding or remedy in respect of any  such right, title, interest, obligation, or liability or anything done  or suffered before the commencement of this  Act,  and

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any  such proceeding shall be continued and disposed of,  as if this Act was not passed The  lands in dispute were situated within two miles of  the limits  of the Poona Municipal Borough, i.e. Poona City  and Suburban,  and  the question was whether the rights  of  the appellants as protected tenants therein were.  I affected by the repeal. Held, that the provisions of s. 88 of the Bombay Tenancy and Agricultural  Lands Act, 1948, are entirely prospective  and apply  to such lands as are described in cls. (a) to (d)  of s. 88(1) from 60 the date on which the Act came into operation i.e.  December 28, 1948, and are not of a confiscatory nature so as to take away  from  the  tenant the status  of  a  protected  tenant already accrued to him. Section 89(2)(b) of the Act clearly intends to conserve such rights  as were acquired or accrued before its  commencement and that any legal proceeding in respect of such rights  was to be   disposed of in terms of the Act of 1939. Abbot  v. The Minister for Lands, [1995] A.C.  425,  distin- guished.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 185 of 1956. Appeal  by special leave from the judgment and decree  dated November 25, 1954, of the Bombay High Court in Second Appeal No. 1003 of 1952. H.   R.  Gokhale, J. B. Dadachanji, S. N. Andley,  Rameshwar Nath and P. L. Vohra, for the appellants. C.   B.  Agarwala and A. G. Ratnaparkhi, for the  respondent No. 1. 1961.  April 19.  The Judgment of the Court was delivered by SINHA,  C.  J.-The only question for determination  in  this appeal  is whether the defendants-appellants are  ’protected tenants’  within  the  meaning of  the  Bombay  Tenancy  Act (Bombay  Act  XXIX  of  1939)  (which  hereinafter  will  be referred  to, for the sake of brevity, as the Act of  1939), whose rights as such were not affected by the repeal of that Act by the Bombay Tenancy and Agricultural Lands Act (Bombay Act LXVII of 1948) which hereinafter will be referred to  as the  Act  of  1948).   The Courts  below  have  decreed  the plaintiff’s  suit  for possession of the lands  in  dispute, holding  that  the  defendants  were  not  entitled  to  the protection  claimed  by them as ’protected  tenants’.   This appeal is by special leave granted by this Court on April 4, 1965. The facts of this case are not in dispute.  Shortly  stated, they are as follows.  By virtue of a lease dated October 30, 1939, the defendants obtained a lease of the disputed  lands from  the  plaintiff for a period of 10 years,  expiring  on October 30, 1949.  The lands in 61 dispute  have  been  found to lie within two  miles  of  the limits  of Poona Municipality.  The landlord gave notice  on October  22, 1948, terminating the tenancy as  from  October 30,  1949.   As the defendants did not vacate the  land,  in terms of the notice aforesaid, the plaintiff instituted  the suit  for ejectment in the Court of the Civil Judge,  Junior Division, at Poona in Civil Suit No. 86 of 1950.  The Act of 1939  became law on March 27, 1940, but the Act was  applied to  Poona area with effect from April 11, 1946.  Under s.  3 of  the  Act, a tenant shall be deemed to be a  ’  protected

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tenant’  in  respect of any land if he has  hold  such  land continuously  for  a  period  of not  less  than  six  years immediately preceding either the first day of January, 1938, or  the first day of January, 1945, (added by  the  Amending Act of 1946) and has cultivated such land personally  during the  aforesaid period.  It is not disputed that  the  defen- dants-appellants became entitled to the status of ’protected tenants’ as a result of the operation of the Act, as amended by the Bombay Tenancy (Amendment) Act, 1946 (Bombay Act XXVI of  1946), and under s. 3A(1) the defendants were deemed  to be  ’protected  tenants’ under the Act and their  rights  as such were recorded in the Record of Rights.  Sections 3  and 3A(1), aforesaid, are set out below:-               "3. A tenant shall be deemed to be a protected               tenant in respect of any land if               (a)   he has held such land continuously for a               period of not less than six years  immediately               preceding either               (i)   the first day of January 1938 or               (ii)  the first day of January 1945 and               (b)   has  cultivated  such  land   personally               during               the aforesaid period.               3A(1) Every tenant shall, on the expiry of one               year from the date of the coming into force of               the  Bombay Tenancy Amendment Act of 1946,  be               deemed  to  be  a  protected  tenant  for  the               purposes  of this Act and his rights  as  such               protected  tenant  shall be  recorded  in  the               Record of  Rights, unless his  landlord  has               within the said period made an application to               62               the  Mamlatdar within whose  jurisdiction  the               land  is situated for a declaration  that  the               tenant is not a protected tenant". Under  s.  3A(1)  aforesaid, it was open  to  the  landlord, within  one  year  of the date of the  commencement  of  the Amending  Act  of  1946,  to  make  an  application  to  the Mamlatdar  for  a  declaration that the  tenant  was  not  a ’protected tenant’.  No such proceeding appears to have been taken.   As  a  result of the expiration of  one  year  from November 8, 1946the date of the coming into operation of the Amending  Act  of  1946-the defendants  were  deemed  to  be ’protected  tenants’ and it is not disputed that  they  were recorded  as such.  Section 4 of the Act, with which we  are not  concerned in the present case, made further  provisions for  recovery of possession by tenants who had been  evicted from  their  holdings  in  circumstances  set  out  in  that section.  The Act, therefore, in its terms, was intended for the  protection of tenants in certain areas in the  Province of Bombay (as it then was).  If nothing had happened  later, the  defendants  would  have had the  status  of  ’protected tenants’  and  could  not  have  been  evicted  from   their holdings,  except in accordance with the provisions  of  the Tenancy Law.  But the Act of 1939 was replaced by the Act of 1948.   The  question that arises now for  determination  is whether the Act of 1948 wiped out the defendant’s status  as ’protected tenants’.  For determining this question, we have naturally  to examine the relevant provisions of  the  later Act. The Act of 1948, by s. 2 cl. (14) prior to its amendment  by Bombay  Act XIII of 1956, provides that " protected  tenant’ means  a person who is recognised to be a  protected  tenant under section 31".  Section 31 runs as follows:-               "For the purposes of this Act, a person  shall

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             be recognised to be a protected tenant if such               person  has  been  deemed to  be  a  protected               tenant under section 3, 3A or 4 of the  Bombay               Tenancy Act, 1939." The  force  and effect of s. 31  will have to  be  discussed later while dealing with the arguments raised                              63 on  behalf  of the landlord-respondent.  The  next  relevant provisions of the Act of 1948 are those of s.     88(1)(c) which reads:-               "Nothing  in the foregoing provisions of  this               Act shall apply:-                .......................................                ..............................................               (c)   to any area within the limits of Greater               Bombay and within the limits of the  municipal               boroughs   of   Poona   City   and   Suburban,               Ahmedabad,  Sholapur,  Surat  and  Hubli   and               within  a distance of two miles of the  limits               of such boroughs; or......... As  already  observed, the lands in dispute in  the  present controversy  have been found to be situate within two  miles of the limits of the Poona Municipal Borough, which, for the purpose of this case, has been equated to ’Borough of  Poona City and Suburban’.  It has been contended on behalf of  the respondent  that under the later Act the disputed lands  are outside  the  purview of the Act and  that,  therefore,  the defendants-appellants  are not entitled to claim the  status of  ’protected tenants’.  The appellants have answered  this contention  by reference to the provisions of s.  89,  which may now be set out (in so far as they are necessary for  the purpose of this case):-               "89(1) The enactment specified in the Schedule               is hereby repealed to the extent mentioned  in               the fourth column thereof               (2)   But  nothing in this Act or  any  repeal               effected               thereby-                ........................................‘...               (b) shall, save as expressly provided in  this               Act, affect or be deemed to affect,               (i)   any  right, title, interest,  obligation               or  liability  already  acquired,  accrued  or               incurred before the commencement of this  Act,               or-               (ii)  any   legal  proceeding  or  remedy   in               respect  of any such right,  title,  interest,               obligation,  or liability or anything done  or               suffered before the commencement of this  Act,               and any such proceeding shall be continued and               disposed   of,   as  if  this  Act   was   not               passed ......".               64 It  has been contended on behalf of the appellants that  the repealing s. 89, read with the Schedule, makes it clear that the whole of ss. 3, 3A and 4 of the Act of   1939 have  been saved,  subject  to  certain modifications,  which  are  not relevant to the present purpose; and that sub-s. 2(b) of  s. 89 has in terms, saved the appellants’ rights as  ’protected tenants’  because those rights had already accrued  to  them under the Act of 1939.  But this contention is countered  by the  learned counsel for the plaintiff-respondent  on  three grounds, namely, (1) that s. 88 expressly provides that  ss. 1 to 87 of the later Act shall not apply to lands situate in the Municipal Borough of Poona City and Suburban and  within

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a  distance of two miles of the limits of such borough;  (2) that  what has been saved by cl. (b) of sub-s. (2) of s.  89 is not every right but only such rights as had been actually exercised and recognised; and (3)  that  the  terms  of  the saving clause, as contained s.     89(2)(b)     were     not identical  with  s.  7 of the Bombay  General  Clauses  Act, inasmuch   as  cl.  (b)  aforesaid  only  speaks   of   such proceedings   being  continued  and  disposed  of,   without reference to the institution of such proceedings. Shortly  put, the arguments on behalf of the  appellants  is that  the taking away of the status of a  protected  tenant’ from  certain  lands,  as  specified  in  s.  88,  is   only prospective  and not retrospective, whereas the argument  on behalf  of  the  respondent  is that  the  repeal  was  with retrospective  effect  and only so much was saved  as  would come  directly within the terms of el. (b) of s. 89(2),  and that  the  right claimed by the appellants  was  in  express terms taken away by s. 88. The  argument based on the second ground may be disposed  of at  the  outset in order to clear the ground for  a  further consideration  of the effect of ss. 88 and 89, on which  the whole case depends.  The learned counsel for the  plaintiff- respondent   placed  strong  reliance  upon  the   following observations of the Lord Chancellor in the case of Abbot  v. The Minister for Lands (1):               "They  think that the mere right (assuming  it               to                (1)  [1895] A.C. 425,431. 65 be  properly  so  called)existing  in  the  members  of  the community  or  any  class of them to take  advantage  of  an enactment,  without  any act done by an  individual  towards availing himself of that right, cannot properly be deemed  a "right accrued" within the meaning of the enactment." The  contention  is  that  in  order  that  the   defendants appellants could claim the status of ’protected tenants’  as a  right  accrued under the Act of 1939,  they  should  have taken  certain  steps  to enforce that  right  and  got  the relevant authorities to pronounce upon those rights, and  as no  such steps had admittedly been taken by the  appellants, they could not claim that they had a ’right accrued’ to them as  claimed.  In our opinion, there is no substance in  this contention.   The  observations, quoted above, made  by  the Lord Chancellor, with all respect, are entirely correct, but have been made in the context of the statute under which the controversy  had  arisen.  In that case, the  appellant  had obtained  a grant in fee-simple of certain lands  under  the Crown Lands Alienation Act, 1861.  By virtue of the original grant,  he would have been entitled to claim  settlement  of additional  areas’ if he satisfied certain  conditions  laid down  in  the  relevant  provisions  of  the  statute.   The original  settle  had  the right  to  claim  the  additional settlements,  if  he  so desired, on  fulfillment  of  those conditions.   He had those rights to acquire the  additional lands  under  the provisions of the Crown  Lands  Alienation Act,,  1861, but the Crown Lands Act of 1884,  repealed  the previous  Act, subject to a saving provision to  the  effect that all rights accrued by virtue of the repealed, enactment shall,  subject to any express provisions of  the  repealing Act  in relation thereto, remain unaffected by such  repeal. The  appellants’ contention that under the saving clause  of the  repealed enactment he had the right to make  additional conditional purchases and that was a ’right accrued’  within the meaning of the saving clause contained in the  repealing Act  of  1884, was negatived by the Privy Council.   It  is,

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thus;,  clear  that the context in  which  the  observations relied upon by the respondent, as quoted above, were made is entirely different 9 66 from the context of the present controversy.  That  decision is only authority for the proposition that ’the mere  right, existing  at  the  date  of a  repealing  statute,  to  take advantage  of  provisions of the statute repealed is  not  a ’right  accrued’  within  the meaning of  the  usual  saving clause’.   In  that  ruling, their Lordships  of  the  Privy Council  assumed that the contingent right of  the  original grantee  was a right but it was not a right accrued’  within the  meaning  of the repealed statute.  It was held  not  to have  accrued  because  the option  given  to  the  original grantee to make additional purchases had not been  exercised before  the  repeal.  In other words, the  right  which  was sought  to be exercised was not in existence at the date  of the  repealing Act, which had restricted those  rights.   In the  instant  case, the right of a  ’protected  tenant’  had accrued to the appellants while the Act of 1939 was still in force, without any act on their part being necessary.   That right  had  been  recognised by the  public  authorities  by making  the  relevant entries in the Record  of  Rights,  as aforesaid.   On  the other hand, as  already  indicated,  s. 3A(1)  of  the  ’Act  of 1939 had given  the  right  to  the landlord-respondent   to  take  proceedings  to   have   the necessary declaration made by the mamlatdar that the  tenant had not acquired the status of a ’protected tenant’.  He did not proceed in that behalf.  Hence, it is clear that so  far as the appellants were concerned, their status as ’protected tenants’ had been recognised by the public authorities under the  Act of 1939, and they bad to do nothing more  to  bring their case within the expression ’right accrued’, in el. (b) of s. 89(2) of the Act of 1948. It having been held that the second ground of attack against the claim made by the appellants is not well-founded in law, it now remains to consider whether the first ground, namely, that  there  is an express provision in s.  88,  within  the meaning of s.  89(2)(b), taking away the appellants’  right, is  supported  by  the  terms  of  ss.  and  89.   In   this connection,  it was pointed out on behalf of the  respondent that s. 88(1) in terms provides that ss.  1 to 87 of                              67 the Act of 1948 shall not apply to lands of the situation of the  disputed lands; and s. 31 has been further  pressed  in laid of this argument.  Section 31 has already "been quoted, and it begins with the words "For the purposes of this Act". The provisions of the Act of 1948 relating to the rights and liabilities of a protected tenant’ are not the same as those under the Act of 1939.  Hence, though the provisions of  ss. 3, 3-A and 4 of the earlier Act of 1939 have been adopt.  ed by the later Act, it has been so done in the context of  the later Act, granting greater facilities and larger rights  to what  are described as ’Protected tenants’.  In other  words s.  31  has  been enacted not to do  away  with  the  rights contained  in ss. 3, 3-A and 4 of the earlier  statute,  but with  a  view to apply that nomenclature  to  larger  rights conferred  ’under the Act of 1948.  The provisions of s.  88 are  entirely  prospective.   They apply  to  lands  of  the description  contained in cls. (a) to (d) of a.  88(1)  from the  date on which the Act came into operation, that is  to say,  from December 28, 1948.  They are not intended in  any sense  to be of a confiscatory character.  They do not  show an  intention  to  take away what  had  already  accrued  to

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tenants acquiring the status of ’protected  tenants’.   On the other hand, s. 89(2)(b), quoted above, clearly shows  an intention  to conserve such rights as had, been acquired  or had  accrued before the commencement of the  repealing  Act. But  it  has  further  been  contended  on  behalf  of   the respondent, in ground 3 of the attack, that sub-cl. (ii)  of cl. (b) of s. 89(2) would indicate that the legislature  did not intend completely to re-enact the provisions of s. 7  of the  Bombay General Clauses Act.  This argument is based  on the  absence  of  the  word  instituted’  before  the  words ’continued  and  disposed  of’.  In our  opinion  there  are several  answers  to this contention.  In the  first  place, sub-cl. (i) is independent of sub-el. (ii) of ol. (b) of  s. 89(2).   Therefore,  sub-el. (ii), which  has  reference  to pending  litigation, cannot cut down the legal  significance and  ambit of the words used in sub-cl. (i).   Sub-cl.  (ii) may have reference to the forum of the proceedings,  whether the Civil Court or the Revenue Court shall have seizin of 68 proceedings taken under, the repealed Act. ;We have  already held that the expression ’right accrued’ in sub-el. (i) does not exclude the rights of ’protected tenants"claimed by  the appellants.  It is well settled that where there is a  right recognised  by law, there is a remedy,; and, therefore,  in’ the  absence  of  any  special  provisions  indicating   the particular  forum  for  enforcing a  particular  right,  the general law of the land will naturally take its course.   In this connection, it is relevant to refer to the observations of  the High Court that "even if it were to be assumed  that the  right  as a ’protected tenant’ remained vested  in  the defendants even after the enactment of s. 88(1), that right, in  its enforcement;against the plaintiff, must be  regarded as  illusory".  In our opinion, those observations  are  not well-founded.   Courts will be ’very slow to assume a  right and  then  to regard it as illusory, because  no  particular forum  has been indicated.  Lastly, the legal effect of  the provisions  of sub-el. (ii) aforesaid is only this that  any legal proceeding! in’ respect of the, right claimed by,  the defendants shall be continued and disposed of as if the  Act of  1948 had not been passed.. Applying those words  to  the present   litigation  the  inference  is  clear   that   the controversy  has  to  be  resolved  with  reference  to  the provisions  of the repealed statute.  That being so, in  Our Opinion,  the  intention  of the legislature  was  that  the litigation we are now dealing with should be disposed of  in terms  of  the repealed statute of 1939.  It  has  not  been disputed before us that if that. is done, there is only  one answer to this suit, namely, that it must be dismissed  with costs.   Accordingly,  we allow the appeal,  set  aside  the judgments below and dismiss the suit with costs  throughout, to the contesting defendants-appellants. Appeal allowed, 69