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PETITIONER: HIRALAL PRABHUBHAI AND OTHERS

       Vs.

RESPONDENT: NAGINDAS ATMARAM MATRI

DATE OF JUDGMENT: 14/02/1964

BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. MUDHOLKAR, J.R.

CITATION:  1966 AIR  367            1964 SCR  (6) 807

ACT: Bombay Tenancy Agricultural Lands Act (Bom.  LXVII of 1948), ss. 88 and 89-Suit for eviction-Agricultural land within two miles of the limits of Municipality-Applicability of Act.

HEADNOTE: The respondent gave notice to the appellants terminating the lease of agricultural land situated within two miles of  the limits  of the Municipality and filed a suit  for  eviction. The suit was contested, inter alia, on the ground that under the  provisions  of  the  Bombay  Tenancy  Act,  1939,   the defendants  had acquired tenancy rights.  The  civil  Judge, inter  alia,  held  that the 1939 Act was  repealed  by  the Bombay  Tenancy and Agricultural Land Act, 1948,  which  did not  apply to the suit land, as it was within two  miles  of the limits of the Surat Borough Municipality and decreed the suit.  On appeal, the District Judge held that the 1948  Act applied  to  the Suit land and set aside the decree  of  the trial  Court.  In second appeal by the plaintiff,  the  High Court  held that the suit land was within two miles  of  the limits  of the Municipality and therefore, the 1948 Act  did not apply to the suit land.  On appeal by Special Leave  the appellants  contended that their rights under the  1939  Act were saved and preserved under s. 89(2) of the 1948 Act with the  result  that the lease extended to 10 years  under  the 1939  Act was saved thereunder, and by reason of the  Bombay Tenancy and Agricultural Lands (Amendment) Act, 1952,  which brought  the  suit land within the scope of  the  1948  Act, their  rights  so  preserved  came to  be  governed  by  the provisions of he 1948 Act and, therefore, they could not  be evicted except in the manner prescribed by the provisions of the Act.  The respondent contended that the saving provision in  s.  89(2) of the 1948 Act operates only if there  is  no express provision to the contrary and that the saving of the appellant’s  right would be otiose, as he could not  enforce his right under the 1948 Act. Held:(i) Before the suit was disposed of, the 1952  Act came into force, and by reason of the extension of the  1948 Act  to  the suit land, the respondent could not  evict  the appellants except in the manner prescribed by the 1948 Act. (ii)The respondent’s contention must be rejected.  There is an  express provision found in s. 88(1) of the 1948 Act,  in

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as much as it says that the provisions of ss.  1 to 87  will not apply to the area in question. (iii)As there was a right recognized by law there was a remedy  and,  therefore.  in  the  absence  of  any  special provisions indicating a 774 particular  forum  for  enforcing  a  particular  right  the general  law  of the land would naturally take  its  course. The  High  Court, therefore, was wrong in holding  that  the appellants could not claim the benefit of the provisions  of the 1948 Act. Sakharam (a) Bapusaheb Narayan Sanas v. Manikchand Motichand Shah [1962] 2 S.C.R. 59. relied on.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 120/62. Appeal  by special leave from the judgment and decree  dated April  23, 1959, of the former Bombay High Court  in  Second Appeal No. 1359 of 1955. M.   S. K. Sastri and M. S. Narasimhan, for the  appellants. O.   C. Mathur, J. B. Dadachanji and Ravinder Narain for the respondent. February 14, 1964.  The Judgment of the Court was  delivered by SUBBA  RAo  J.-This  appeal  by  special  leave  raises  the question  of  the applicability of the  Bombay  Tenancy  and Agricultural  Lands  Act, 1948 (Bom.  Act No. 67  of  1948), hereinafter  called  the ’1948 Act’, to the tenancy  of  the land in dispute. The   appellants  are  the  legal  representatives  of   one Prabhubhai Ratanji.  The suit property is agricultural  land situate  within  two  miles  of  the  limits  of  the  Surat Municipal  Borough.   It was part of  the  erstwhile  Sachin State.   On  May  7,  1946,  Nagindas  Atmaram  Khatri,  the respondent herein, who was the owner of the said land,  gave a lease of the same in favour of the said Prabhubhai Ratanji for a period of six years. On July 28, 1948, Sachin State became part of the Stateof  Bombay.   From  that  date  the Bombay Tenancy Act, 1939,hereinafter  called the  "1939 Act",  was made applicable to the said area.  On  April  23. 1951,  Nagindas Atmaram Khatri, the landlord, gave a  notice to the defendant terminating the lease from March 31.  1952. After giving the said notice, he filed Reg.  Suit No. 403 of 1952  in  the  Court of the Subordinate  Judge,  Surat,  for eviction  of  the lessee Parbhubhai Ratanji.  The  suit  was contested on various grounds, the main contention being that under the provisions of the 1939 Act, the defendant 775 had acquired tenancy rights therein.  As the defendant  died on  September  30,  1955,  his  legal  representatives  were brought  on record in his place.  The learned  Civil  Judge, inter alia, held that the 1939 Act was repealed by the  1948 Act and that the latter Act did not apply to the suit  land, as  it  was  within two miles of the  limits  of  the  Surat Borough Municipality.  On that finding, he gave a decree for possession, arrears of rent and mesne profits.  Against  the said  decree,  the  defendant preferred  an  appeal  to  the District  Judge.  The learned District Judge held  that  the landlord failed to prove that the suit property was within a distance  of  two miles of the limits of the  Surat  Borough Municipality and, on that finding, he came to the conclusion that the 1948 Act applied to the suit land and set aside the decree  of  the  trial  court  awarding  possession  to  the

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plaintiff,  but maintained the decree for arrears  of  rent. Thereupon,  the plaintiff preferred a second appeal  to  the High Court insofar as the decree of the District Court  went against  him.   The said appeal came up  before  a  Division Bench of that High Court.  The High Court held that the suit land was within two miles of the limits of the Surat Borough Municipality and that, therefore, the 1948 Act did not apply to the suit land.  On that finding, it set aside the  decree passed  by  the  learned District Judge  and  restored  that passed   by   the   learned   Civil   Judge.    The    legal representatives of the defendant have preferred the  present appeal. Learned  counsel for the appellants contended that the  High Court  should  have held that the rights of  the  appellants under the 1939 Act were saved by the 1948 Act.  He contended broadly that the right of the appellants under the 1939  Act were  preserved  under s. 89(2) of the 1948  Act,  with  the result  that the lease extended to 10 years under  the  1939 Act  was saved thereunder, and that by reason of the  Bombay Tenancy  and Agricultural Lands (Amendment) Act, 1952  (Bom. Act  33 of 1952), hereinafter called the "1952  Act",  which brought  the  suit land within the scope of  the  1948  Act, their  rights  so  preserved  came to  be  governed  by  the provisions  of the 1948 Act and, therefore,  the  respondent could not evict them except in the manner prescribed by  the provisions of that Act. 776 To  appreciate  the contentions of the parties it  is  neces sary   to  trace  briefly  the  history  of   the   relevant provisions. Section 23(1) of the 1939 Act, as amended by the 1946  Act, read               (a)   No  lease  of any land situated  in  any               area  in which this section comes  into  force               made  after the date of the coming into  force               of  this section in such area, shall be for  a               period of less than 10 years; and               (b)   every lease subsisting on the said  date               or made after the said date in respect of  any               land in such area shall be deemed to be for  a               period of not less than 10 years." The 1939 Act was repealed by the 1948 Act.  Section 88(1) of the  1948 Act, as it stood before the amendment by the  1952 Act, read:               "Nothing  in the foregoing provisions of  this               Act shall apply-               (a)................               (b).................               (c)   to any area within the limits of Greater               Bombay  or within the limits of the  Municipal               Borough  of......  Surat......  and  within  a               distance  of  2  miles  of  the  limits   such               boroughs."               Section 89 thereof read :               "(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-               (a)..............               (b)   shall save as expressly provided in this               Act affect or deemed to affect,                                    777               (i)   any  right, title, interest,  obligation               or               liability already acquired, accrued or

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             incurred  before  the  commencement  of   this               Act;.........."                SCHEDULE I -------------------------------------------------------- Year       NO.      Short Title         Extent of repeal ---------------------------------------------------------- 1           2           3                      4 ---------------------------------------------------------- 1939     XXIX       The Bombay Ten-        The whole  except sections                     ancy Act,1939.                                             3, 3-A and 4  as modified                                              in          the following manner... ------------------------------------------------------------------ -- Section 88 of the 1948 Act was amended by the 1952 Act.  The relevant part of the amended section reads :               "(1)  Nothing in the foregoing  provisions  of               this Act shall apply-               (a)               (b)               (c)   to any area within the limits of Greater               Bombay  within  the limits  of  the  Municipal               Corporations  constituted  under  the   Bombay               Provincial  Municipal Corporation  Act,  1949,               within  the limits of the  Municipal  Boroughs               constituted   under   the   Bombay   Municipal               Boroughs  Act, 1925, and within the limits  of               any cantonment;..........." The  gist of the provisions in their application to a  lease of agricultural land situated within two miles of the limits of the Surat Borough Municipality may be stated thus :  Such a lease subsisting on the date of the amending Act of  1946, which came into force on April 11, 1946, shall be deemed  to be for a period of not less than 10 years.  The 1939 Act was repealed by the 1948 Act.  Under s. 88(1) (c) 778 or  the  1948  Act,  the provisions of  that  Act  were  not applicable  to any area within the municipal limits  of  the said borough of Surat and within a distance of two miles  of the    limits of the said borough; but the right, title  and interest of a lessee in such area was preserved under s. 8 9 (2) (b) (i) of the said Act.  Section 88(1) of the 1948 Act, among other things, was amended by the 1952 Act, which  came into  force on January 12, 1953.  By the said amendment  the 1948  Act was extended to any area within a distance of  two miles of the limits of the Surat Borough Municipality.  With the  result,  all the provisions of the 1948  Act  would  be applicable  to  a lease of agricultural land  subsisting  in such  an area after the amendment came into force.   If  so, such a lease can be terminated only in the manner prescribed by s. 14 thereof. What  is the effect of this legal position on the  facts  of the  present  case?  The relevant facts on  which  there  is really no dispute may now be stated. The  lease deed between the appellants’ predecessor and  the respondent was executed on May 7, 1946, for a period of  six years commencing from May 3, 1946; that is to say, it  would expire in the ordinary course on May 2, 1952.  Sachin  State became  part of the Bombay State from July 28. 1948.   After it became part of the Bombay State, the 1939 Act, as amended by the 1946 Act, was extended to that State; with the result the  lease  which  would  have  expired  in  May  1952   was

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statutorily  extended by another 4 years. that is, till  May 1956.   On December 28, 1948, the 1948 Act came into  force. That Act repealed the 1939 Act.  It also exempted’ the lands within the limits of the Surat Borough Municipality and also lands   within  two  miles  of  the  limits  of   the   said Municipality  from  the operation of the provisions  of  the said Act.  But, it saved the right or interest of the lessee which he had acquired under the 1939 Act.  When the 1952 Act came  into  force  on  January 12,  1953,  the  said  lease, protected  under the saving clause, was subsisting.  By  the said amendment, the 1948 Act was made applicable to the land in  question which is within two miles of the limits of  the Surat  Borough Municipality.  With the result, the  interest of the appellants could be terminated                             779 only  under s. 14 of the 1948 Act.  On April 23,  1951,  the respondent  gave a notice to the appellants terminating  the lease  from March 31, 1952, and filed the suit for  eviction on April 21, 1952.  But before the suit was disposed of, the 1952 Act came into force, and by reason of the extension  of the  1948  Act to the said land, the  respondent  could  not evict the appellants except in the manner prescribed by  the 1948  Act.  The High Court, therefore, was wrong in  holding that  the  appellants  could not claim the  benefit  of  the provisions of the 1948 Act At this stage another argument advanced by learned counsel   for the respondent may also be noticed.  The argument is   that the saving provision in s. 89(2) operates only  if there is no  express provision to the contrary, but such  an  express provision is found in s. 88(1), inasmuch as it says that the provisions  of  ss.  1 to 87 will not apply to the  area  in question.   It is further contended that the saving  of  the appellant’s  right would be otiose, as he could not  enforce his  right under the Act.  A similar argument  was  advanced but  was repelled by this Court in Sakharam alias  Bapusaheb Narayan  Sanas v. Manikchand Motichand Shah(1).   There  the lands in dispute were situate within two miles of the limits of  the Poona Municipal Borough.  The question  was  whether the  rights  of  the appellants as  protected  tenants  were affected by the repeal.  This Court held that the provisions of s. 88(1) were entirely prospective and that they  applied to  lands of the description contained in the  said  section from the date on which the Act came into force and that they were  not  intended,  in any sense, to  be  of  confiscatory character.   When  it was further contended that  the  right would  be  illusory, as it could not be enforced  under  the Act,  this  Court  pointed out that as  there  was  a  right recognized by law there was a remedy and, therefore, in  the absence  of any special provisions indicating  a  particular forum  for enforcing a particular right the general  law  of the land would naturally take its course.  This decision  is binding on us.  We, therefore, reject this contention. (1) [1962] 2 S.C.R. 59. 780 Even  so, learned counsel for the respondent contended  that in  the  view  taken  by  the  High  Court  it  had   become unnecessary  for  it  to give its findings  on  two  of  the important  issues that arose in the case, namely,  issues  3 and 4, which are as follows :               Issue 3. Whether the plaintiff proves that  he               wants   possession  for  bona  fide   personal               cultivation.               Issue 4. Whether the defendant proves that  he               had  not damaged the suit property in view  of               the decision in Reg.  C. Suit No. 619 of  1950

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             by the Joint Civil Judge (J.D.), Surat. He, therefore, pointed out that the matter would have to  be remanded to the High Court for its decision on the said  two points. In view of the supervening circumstances, it is not possible to  accede  to this argument.  As pointed  out  earlier,  on April  23,  1951, the respondent issued the  notice  on  the ground  that the tenancy of six years would expire on  March 31,  1952.   But by reason of the 1939 Act the  tenancy  was statutorily  extended  till 1956.  So the  said  notice  had become ineffective and the respondent would not be  entitled to any relief on its basis.  It would be open to him to take any  appropriate  proceedings, which the law  allows,  in  a proper tribunal.  In the circumstances the only course  open to  us is to set aside the decree of the High ’Court and  to restore  that of the Dirstict Judge.  The parties will  bear their respective costs throughout, Appeal allowed.