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PETITIONER: MANEKJI EDULJI MISTRY AND ORS.

       Vs.

RESPONDENT: MANEKSHA ARDESHIR IRANI & ANR.

DATE OF JUDGMENT20/08/1971

BENCH: RAY, A.N. BENCH: RAY, A.N. VAIDYIALINGAM, C.A. PALEKAR, D.G.

CITATION:  1972 AIR  161            1972 SCR  (1) 334  CITATOR INFO :  RF         1974 SC2123  (5)

ACT: Bombay Tenancy and Agricultural Lands Act, 1948-Section 5 as amended by Bombay Act XXXIII of 1952-If applied to protected tenancy.

HEADNOTE: The respondents were lessees of the appellants for a  period of 5 years from March 1, 1943.  They were protected  tenants under  the Bombay Tenancy and Agricultural Lands Act,  1948. They contended that the appellants-landlords could not claim eviction,  because, being protected tenants their lease  was extended by statute up to February 28, 1953, and as a result of the amendment of s. 5 of the 1948 Act by amending Act  of 1952 the period of lease was further extended upto  February 28, 1963. On  the question whether a protected tenant could claim  the benefit of s.  5 as amended by amending Act of 1952, HELD : Section 5 of the 1948 Act as amended in 1952 did  not apply to protected tenancy. The  principal  reason was that the tenancy of  a  protected tenant under the 1948 Act was of unlimited time.  Whereas  a tenant other than a protected tenant had a security only for 10 years and it was only under s. 5 as amended in 1952  that a  tenant other than a protected tenant became  entitled  to renewal  of the tenancy for a period of 10 years in  succes- sion  as mentioned in the said section.  Any  such  renewal, for  periods of ten years, of a protected tenancy, would  be destructive of the protected tenant’s unlimited security  as to  duration  of tenancy.  Secondly, if s. 5 as  amended  in 1952 applied to protected tenants the manner of  termination of  tenancy mentioned in s. 5, namely, by giving one  year’s notice in writing before the end of each period of ten years would  have  been totally inconsistent with  the  manner  of termination  of tenancy of a protected tenant.  The  tenancy of  a  protected tenant could be terminated  by  one  year’s notice on the grounds mentioned in s. 34 whereas the tenancy of one other than a protected tenant, could be terminated on the  grounds mentioned in s. 34(1) only at the end  of  each period of ten years.  Thirdly, if the word tenancy occurring in s.5as  amended in 1952 related to  protected  tenancy

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the words "as if such atenant was a protected tenant in s. 5(2) would not have been necessary". And finally, s. 5 as amended  in  1952  was in Ch.  II  which  contained  general provisions regarding tenancies and ss. 31 and 34 of 1948 Act which related, to protected tenants occurred in Ch.  III  of the 1958 Act. [341 H-342 H] Trimbak Damodhar Rajpukar v. Assaram Patil, [1962] Supp.   1 S.C.R. 700, referred ’to.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2435 of 1966. Appeal  from  the judgment an order dated  November  6,  and December  6, 1962 of the Bombay High Court in  First  Appeal No. 453 of 1960.                3 3 5 V.   S.  Desai.   R.  G. Samant, P. C. Bhartari  and  J.  B. Dada--chanji,for the appellants. V.   M. Tarkunde, K. R. Chaudhuri.  K. Rajendra Chaudhuri and Hari Singh, for the respondents. The Judgment of the Court was delivered by Ray,  J. This appeal is by certificate against the  judgment dated  6 November/6 December, 1962 of the Bombay High  Court dismissing the appellants’ suit filed on 14 September,  1959 against the respondents, inter alia, for possession of  suit property. By  an indenture of lease dated 16 March, 1944  the  respon- dents  became  lessees of the appellants for a period  of  5 years,  from  1 March 1943 in respect  of  the  agricultural lands   belonging  ,to  Jivanji  Jamasji  Mistry’s   Adarian Charities.   The  appellants terminated the tenancy  of  the respondents  by notice to quit dated 25 October, 1955.   The notice  to  quilt was effective on the expiry of  31  March, 1957.  The appellants without prejudice to the October, 1955 notice  gave another notice to quilt dated 10 June, 1958  to deliver possession within 7 days. The  respondents contended that they were protected  tenants under the Bombay Tenancy Acts 1939 and 1948 and, therefore,. the appellants would not be entitled to possession. The trial Court held that after 31 March, 1957 the  respon-- dents continued in possession and the appellants allowed the respondents to continue in possession by extending the  term of  the  lease at least for one year up to 31  March,  1958. The trial Court hold that the notice dated 25 October,  1955 terminating  the  tenancy with effect from  31  March,  1957 could  not therefore be relied on by the appellants.  As  to the notice dated 10 June, 1958 the trial Court held that  it was  not  a valid notice and a proper  three  months  notice expiring with the year on 31 March, ’shouldhave. been  given by the appellants. On  appeal the High Court held that it was not necessary  to consider whether the respondents had acquired the status  of protected tenants.  The High Court held that the lease which was operative from 1 March, 1943 for a period of 5 years was under  section 23(1)(b) of the Bombay Tenancy Act,  1939  as amended, in 1946 deemed to be for a period of not less  than 10  years.   The  lease was therefore  effective  up  to  28 February,   1953.    Meanwhile  the   Bombay   Tenancy   and Agricultural Lands Act, 1948 came into force on 28 December, 1948.  The High Court held that section 5 of the Bombay Act, 1948 as it originally stood was in terms similar to  section 23 of the 1939 Act but as a result of amendment of section 5 of the 1948 Act by the Bombay Act 33 6

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XXXIII of 1952 the period of the lease was renewed up to  28 February, 1963 and therefore the appellants could not obtain a ,decree for posession. Though  section 5 of the 1948 Act as amended by  the  Bombay Act of 1952 was repealed by Bombay Act XIII of 1956 the High Court held that the tenants had acquired the vested right of protection  against  termination of tenancy  merely  on  the ground  of ,expiry of the duration fixed by agreement.   The High Court said that it was not necessary to decide  whether the  respondents  had  acquired  the  status  of   protected tenants.   The  High  Court  held  that  by  reason  of  the provisions  of section 5 of the 1948 Act as amended in  1952 the respondents acquired renewed tenancy up to -28 February, 1963  and  unless the plaintiff-landlord  could  show  -that rights   so  acquired  had  ended  they  could   not   claim possession. When the appeal came up for hearing before this Court on  13 February,  1970 this Court sent the matter back to the  High Court  for  submitting a report. on two  questions.   First, whether  on 1 March, 1953 , the respondents  were  protected tenants.  Second, if the respondents were protected  tenants on 1 March, 1953 whether on that account the respondents had the  right  ’to ,claim the benefit of section  5  and  other relevant  sections of the -Bombay Tenancy  and  Agricultural Lands Act 67 of 1948. The  High Court recorded the findings on 27  January,  1971. The  High  Court recorded the answers that  the  respondents were  protected tenants on 1 March, 1953 and, secondly,  the respondents  did not have the right to claim the benefit  of section  5 or other relevant sections of the Bombay  Tenancy and   Agricultural   Lands  Act,  1948.    The   respondents challenged the second finding of the High Court. The  Bombay Tenancy Act, 1939 came into effect on  2  April. 1940.  Section 3 of the 1939 Act spoke of a tenant who would -be  deemed  to  be  a protected  tenant  if  he  held  land continuously  -for  a  period  of  not  less  than  6  years immediately  preceding 1 January, 1938 and  cultivated  such land personally during the said -period.  The Bombay Tenancy Amendment  Act, 1946 introduced changes into the  1939  Act. These were sections 3A and 23.  Under section 3A of the 1946 Amendment  Act every tenant on the expiry of one  year  from the date of the coming into force of the 1946 Amendment  Act would  be deemed to be a’ protected -tenant for the  purpose of  the  Act  and his rights as protected  tenant  would  be recorded  in the Record of Rights, unless his  landlord  has within  the said period made an application to the  relevant authority  for  a declaration that he was  not  a  protected tenant.  Under section 23 of the 1946 Amendment Act no lease of any land after the coming into force of the said  section in the relevant 33 7 area  was  to  be for a period of less  than  10  years  and secondly  every lease subsisting on the said  date,  namely, coming into force of the Act 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 leases subsisting  on the  date when the 1946 Amendment Act came into force  could not  be  terminated before the expiry of the period of  1  0 years  only  on  the ground. that the period  of  lease  had expired but such a lease could be terminated by a tenant  by surrendering the lease. The Bombay Tenancy Amendment Act 1946 was brought into force from  8  November, 1946 throughout the Province  of  Bombay. The effect of the 1946 Amendment Act in the present case was that  the lease which was subsisting on that date,  viz.,  8

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November,  1946  was deemed to be for a period of  not  less than  10 years from 1 March, 1943 when the lease  came  into effect.  The other important change as a result of the  1946 Amendment  Act  was  that under section 3A of  the  Act  the tenant  was deemed to be a protected tenant for the  purpose of this Act and his rights were to be recorded in the Record of Rights.  The facts found by the High Court in the present case  are that the tenant-respondents" rights were  recorded and  the  appellants did not make an application  after  the coming  into  force  of  the 1946  Amendment  Act  that  the respondents were not protected tenants.  Therefore, the res- pondents were protected tenants and the lease was  effective for10  years from the date of the lease. This  extension  of the lease for 5 years beyond the period of 5 years mentioned in the lease was by virtue of the provisions in the statute. The  Bombay  Tenancy Act, 1939 was repealed  by  the  Bombay Tenancy and Agricultural Lands Act, 1948 referred to, as the 1948 Act.  It may be stated here that the 1948 Act  repealed the whole of the Bombay Tenancy Act, 1939 except sections 3, 3A and 4 which were also modified in the manner mentioned in Schedule  1 to the 1948 Act.  In the present case, the  High Court  has  recorded the finding that the  respondents  were protected  tenants  on 1 March, 1953.  That finding  is  not challenged by either side in the present appeal. The  respondents  have challenged the other finding  of  the High  Court that the respondents did not have the  right  to claim the benefit of section 5 or other relevant sections of the 1948 Act. The  rival  contentions  in the present appeal  are  on  the effect of section 5 of the 1948 Act which was introduced  as an  amendment  by Bombay Act 33 of 1952 in  substitution  of section 5 as it originally stood in the 1948 Act.  On behalf of  the  respondents  it is said that  they  were  protected tenants under the 1948 Act and the lease of the  respondents which had come into existence on 338 1 March, 1943 was extended up to 28 February, 1953 and as  a result of an amendment of section 5 by the 1952 Amending Act the  period  of the lease was extended up  to  28  February, 1963,  -and  therefore,  the  appellants  could  not   claim eviction.   The appellants on the other hand contended  that the  respondents who had a subsisting lease dated  1  March, 1943 for 5 years received the benefit of statutory extension of  the period by another 5 years up to 28  February,  1953, and on 1 March, 1953 the respondents were protected  tenants who  had  an  unlimited period of  tenancy  which  could  be terminated  in accordance with the provisions of section  34 of  the  1948  Act.   It was also  said  on  behalf  of  the appellants that section 5 which was introduced into the 1948 Act by the Amending Act of 1952 which came into effect on 12 January, 1953 did not at all apply to protected tenants  but only  to  ordinary tenants.  Even if it  were  assumed  that section  5  of  the  1948 Act as amended  by  the  1952  Act applied, it was said ,on behalf of the appellants that as  a result of the Bombay Amending Act 13 of 1956 which came into effect  on  1  August, 1956 section 88B  introduced  by  the Amending Act of 1956 removed section 5 from the statute  and the  appellants were not entitled to invoke  any  protection under that section of the statute. In order to appreciate these contentions it is necessary  to refer to section 5 which was introduced into the 1948 Act by the Amending Act of 1952 which is as follows- "5 (1) No tenancy of any land shall be for a period of  than ten years.               Provided  that at the end of the  said  period

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             and  thereafter at the end of each  period  of               ten  years in succession, the  tenancy  shall,               subject to the provisions of sub-sections  (2)               and (3); be deemed to be renewed for a further               period  of  ten years on the  same  terms  and               conditions  notwithstanding any  agreement  of               the contrary.               (2)The landlord may, by giving the tenant  one               year’s  notice  in writing before the  end  of               each of the period referred to in  sub-section               (1),  terminate the tenancy with  effect  from               the thirty-first day of March in the last year               of  each of the said period, if he  bona  fide               requires  the  land for any  of  the  purposes               specified  in sub-section (1) of  section  34,               but subject to the provisions of  sub-sections               (2)  and (2A) of the said section, as if  such               tenant was a protected tenant.               (3)Notwithstanding anything contained in  sub-               section (1): -               33 9               (a)   every  tenancy  shall,  subject  to  the               provisions of sections 24 and 25, be liable to               be  terminated  at  any time  on  any  of  the               grounds mentioned in section 14; and               (b)   a  tenant may terminate the  tenancy  at               any  time  by surrendering his interest  as  a               tenant in favour of the landlord :               Provided  that  such  surrender  shall  be  in               writing  and  shall  be  verified  before  the               Mamlatdar in the prescribed manner". The   question  in  the  forefront  is  whether  section   5 introduced by the Amending Act of 1952 applied to  protected tenants.  Counsel on behalf of the respondents contended not only  that the said section 5 applied to  protected  tenants but  also  that  if  the said section  5  were  held  to  be applicable only to ordinary tenants the respondentswho were protected tenants could claim the benefit of ordinarytenants by virtue of their position of contractual tenants. The 1948 Act recognised a tenant to be a protected tenant if such  person had been deemed to be a protected tenant  under sections  3,  3A  or 4 of the Bombay Tenancy  Act,  -  1939. Section  34  of the 1948 Act provided  that  notwithstanding anything contained in section 14 a landlord might  terminate the tenancy of a protected tenant on the grounds and in  the manner  as provided in that section.  It  therefore  follows that  a protected tenant had been given security  under  the 1948 Act for an unlimited duration and he could be  accepted either  on  grounds mentioned in section 14 or  for  grounds mentioned  in  section  34 of the  1948  Act.   A  protected tenancy  therefore did not come to an end on the  expiration of  any  particular period.  A protected  tenancy  could  be brought to termination only on the grounds and in the manner mentioned in sections 14 and 34 of the 1948 Act.  It is also ncoticeable  that no new protected tenancy could  come  into existence under the 1948 Act. Section  5 of the 1948 Act as it originally  stood  provided that no tenancy could be for a period of less than ten years and no tenancy was to be terminated before the expiry of the period  of  10  years except on  the  grounds  mentioned  in section  14.  Therefore, under section 5 of the 1948 Act  as it  originally stood, tenants other than  protected  tenants were  given  a  security to the extent  of  10  years  only. Persons  other than protected tenants could  under  sections 14(2) and 15 of the 1948 Act be allowed

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34 0 to  hold over and in such case of holding over  the  tenancy "of such a tenant shall be deemed to have been renewed for a further  period of 10 years from the date of the  expiry  on the same terms and conditions". Therefore, under the 1948 Act prior to the amendment in 1952 there was on the one hand a protected tenant with a security for  an unlimited period whose tenancy could  be  terminated for  grounds and in the manner mentioned in sections 14  and 34 of the 1948 Act and on the other hand a person other than protected tenant who had a security for a period of 10 years with  the possibility of a landlord allowing such a  tenancy to hold over in which case he would have a further period of 10 years.  Unless :the tenancy was terminated in  accordance with the provisions of the Act. It is in this context that section 5 was introduced into the Act by the Amending Act of 1952.  The effect of the  amended section 5 came up for consideration by this Court in Trimbak Damodhar  Raipurkar v. Assaram Hiraman Patil &  Ors.(1)  The facts  in  that  case  were  these.   A  tenancy  came  into existence  on  5  February, 1953 for  5  years.   Under  the provisions of section 23 (1) (b) of the 1939 Act as  amended in  1946 the subsisting lease was deemed to be for a  period of  not less than 10 years.  During the subsistence  of  the tenancy  the  1948 Act came into existence.   A  notice  was given to the tenants calling upon them to deliver possession after expiration of the period of tenancy on 31 March, 1953. Meanwhile, the 1952 Amending Act had come into effect on  12 January, 1953.  The tenant in that case relied on section  5 as amended in 1952.  That case was of an ordinary tenant and not  of  a  protected  tenant.  This  Court  held  that  the Amending  Act 1952 repealed section 14(2) of the  1948  Act, amended  section  5 of the 1948 Act and the  effect  of  the amendment in that case was stated as follows :-               "Shortly  stated the effect of this  amendment               was  that the tenancy of the respondents,  who               were  till then ordinary tenants  as  distinct               from   protected   tenants,   could   not   be               terminated  on  the expiry  of  their  tenancy               except  by giving one year’s notice  and  that               too on the ground that the lands were required               by   the  landlord  for  bona  fide   personal               cultivation  and that the income of  the  said               lands  would be the main source of  income  of               the landlord". Prior to the Amending Act of 1952 the tenancy of an ordinary tenant  could  be  terminated on the  grounds  mentioned  in section 14 before the expiry of the period of 10 years.   An ordinary tenant however could hold over under section  14(2) of  the 1948 Act.  After the amendment of section 5 and  the repeal of section (1)  [19621 supp.  1 S. C. R. 700 3 4 1 14(2) of the 1948 Act a tenancy contemplated in section 5 of the Act would at the end of each period of 10 years  subject to  the provisions of sub-sections (2) and (3) be deemed  to be renewed for a further period of 10 years.  This was a new protection  afforded to tenancies mentioned in section 5  of the Act.  The second sub-section of section 5 as amended  in 1952 provided that the landlord by-giving one year’s  notice in  writing  before  the end of each  period  of  ten  years referred to in section 5 (1) of the Act could ’terminate the tenancy with effect from the thirty-first day , of March  in the  last year of each of the said period, if  the  landlord bona  fide  required  the  land  for  any  of  the  purposes

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specified in section 34(1) but subject to the provisions  of sub-sections (2) and (2A) as if such tenant was a  protected tenant.  On the one hand a tenant under section 5 as amended in 1952 could have a renewal of a further period of 10 years and on the other the landlord could terminate the tenancy at the  end  of the period of 10 years by giving  a  notice  as mentioned in section 5(2) of the Act as amended in 1952. The decision of this Court in Trimbak Damodhar  Raipurkar’s. case  (supra)  noticed  the  distinction  between   ordinary tenants  and  protected  tenants and applied  section  5  as amended  in  1952  to. the case of  an  ordinary  tenant  as distinct  from a protected tenant.  This decision also  held that there was a statutory extension of the duration of  the lease by virtue of the provisions of the Act.  It could  not be  said  that when a lease for 5 years was extended  as,  a result of the provision of the statute that extension was in terms  of  the contract. - In Trimbak  Damodhar  Rajpurkar’s case  (supra)  this Court held that before the  lease  could expire  on  31 March,, 1953 in that case the period  of  the lease  had  been extended for 10 years as a  result  of  the amendment  of  section 5 by the Amending Act of  1952  which came  into effect on 12 January, 1953, and it could  not  be terminated save and except as specified by a valid notice or a  surrender.  The notice given in the month of March,  1952 in that case which called upon the tenant to deliver posses- sion on the expiry of the statutory period of 10 years on 31 March,  1953 proved abortive -by reason of the operation  of the amendment of section 5 renewing the term of the  tenancy for the period of ten years. The principal reason as to why section 5 as amended in  1952 does not apply to a protected tenant is that the tenancy  of a protected tenant under the 1948 Act was of unlimited  time and the tenant other than a protected tenant had a  security only for 10 years and it is only under section 5 as  amended in  1952  that such a tenant other than a  protected  tenant became  entitled  to renewal of the tenancy  for  a  further period  of 10 years in succession as mentioned in  the  said section.  Secondly, section 5 and, in parti- 3 42 cular,  sub-section (2) thereof as amended in 1952 spoke  of termination of tenancy by the landlord by giving the  tenant one  year’s  notice  in writing if the  landlord  bona  fide required the land for any of the purposes specified in  sub- section  (1) of section 34 but subject to the provisions  of sub-sections  (2) and (3) of the said section as if  such  a tenant was a protected tenant.  The words "as  if  such  a tenant was a protected tenant’ indicate that the legislature treated  section  5  as applying  to  tenancies  other  than protected  tenancies.  If the word ’tenancy’  ’occurring  in section 5 of the Act as amended in 1952 related to protected tenancy the words as  if  such a tenant  was  a  protected tenant’  in section 5(2) would not have been necessary.   In the  third  place, section 5 of the 1948 Act as  amended  in 1952  was in Chapter II of the Act.  Chapter 11  related  to general provisions regarding tenancies.  Sections 31 and  34 of the 1948 Act which related to protected tenants  occurred in Chapter III of the 1948 Act.  The heading of Chapter  III of  the  1948 Act before the amendment thereof in  1956  was ’Protected  tenants  their special rights  and  privileges’. The  recognition of protected tenant was only under  section 31  of  the  1948 Act.  The termination of a  tenancy  of  a protected  tenant  was  specifically provided  for  only  in section  34  of the Act.  Section 34  itself  provided  that notwithstanding anything contained in section 14 the tenancy of a protected tenant could be terminated -as. mentioned  in

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section  34 of the Act.  It is true that section 14  of  the Act  occurred in Chapter 11 but that section  was  attracted only  for  termination  of tenancy  of  a  protected  tenant because of the grounds mentioned in S. 14.  These were  spe- cific  provisions  for  protected  tenants.   Fourthly,  the termination  of tenancy of a person other than  a  protected tenant  after  the -amendment of section 5 in  1952  on  the grounds  mentioned in section 34 of the Act was by  applying the  grounds as if such tenant was a protected  tenant.   It is, therefore, manifest that if section 5 as amended in 1952 applied  to protected tenants the manner of  termination  of tenancy mentioned in section 5, namely, by giving one year’s notice in writing before the end of each period of ten years would  have  been totally inconsistent with  the  manner  of termination  of tenancy of a protected tenant.  A  protected tenant  had unlimited security of tenure with the  exception of termination by one year’s notice on the grounds mentioned in  section  34  whereas the tenancy of  one  other  than  a protect  would continue to be, renewed for a period  of  ten years section 34 (1)only  at the end of each period  of ten years.  Fifthly, under the1948 Act no new protected tenancy  could come into existence whereas a  tenancy  other than that of a protected tenant would continue to be renewed for  a period of ten years in succession unless the  tenancy was  terminated at the end of one such period of ten  years. Finally, if a protected tenancy of 343 unlimited time was brought within the ambit of section 5  as amended in 1952 the protected tenancy would be  contemplated to  be renewed for periods of ten years in succession.   Any such  renewal for periods of ten years would be  destructive of the protected tenant’s unlimited security as to  duration of tenancy. In view of our conclusion that section 5 of the 1948 Act  as amended in 1952 does not -apply to protected tenancy for the reasons  indicated  above, it is not necessary  to  consider another  contention  advanced on behalf of  the  respondents that apart from protected tenancy section 5 of the 1948  Act as  amended  could  be  invoked as  a  part  of  contractual tenancy.  The reason is obvious.  The protection afforded by section  30 of the 1948 Act to contractual terms of  tenancy is that the rights or privileges vested in the tenancy under any contract cannot be abridged or limited.  The  provisions contained  in  section  5 of the 1948  Act  as  amended  are provisions  of  the  statute  not  applicable  to  protected tenants  and a protected tenant cannot therefore  claim  the protection  of  such a statutory provision far less  on  the ground  that it is a right or privileges arising out of  any contract.   It  has to be borne in mind that  section  5  as amended in 1952 speaks of the fictional renewal of a tenancy for  periods of ten years.  A protected tenant on the  other hand acquired the statutory "Status or irremovability"  when the 1948 Act recognised a protected tenant and nothing  more was  required to be done to renew or extend the duration  of statutory  tenure.   To  apply the renewal  of  tenancy  for periods of ten years under the amended section 5 would be to rob  the  protected tenancy of its  unlimited  security  and truncate  it into tenancy for period of ten years  renewable as mentioned therein. In  the present case the tenancy under the lease  which  was for  a  5 years commencing 1 March, 1943  was  operative  in duration upto 29 February, 1948.  The respondents by  virtue of section 23 (1) (b) of the Tenancy Act of 1939 as  amended in 1946 became entitled to an extension of 5 years under the statutory  provisions.   This  Court  in  Trimbak   Damodhar

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Raipurkar’s  case (supra) noticed that the extension of  the duration  of  the lease was virtue of a  statute.   This  is described  as  a  ’Statory security  of  tenure".   "Various statutes give security of tenure to tenants.  The  co-called statutory tenancy created under the Rent Acts ........  upon the  determination of contractual tenancy is  not,  properly speaking,  a species of tenancy, it is a personal  right  in the tenant not to have an order for possession made  against him  unless certain specified conditions -are fulfilled;  it is a " status of irremovability" (See Woodfall Landlord ’and Tenant, 27th Edition, Vol.  1 paragraph 703 pp. 295 to 296). An  ordinary  tenant could invoke in aid the  provisions  of section 5 of the 344 1948  Act  as  amended in 1952 and even  in  that  case  the extended  terms would be under the statute and #lot as  part of the contractual term.  A protected tenant, as is the case here,  is disentitie to be within the scope of  the  amended section 5. The  1948 Act was amended by the Bombay Amending Act  13  of 1956 which came into effect on 1 August. 1956.  As a  result of  the 1956 amendment section 5 which had  been  introduced into the Act by the amended Act of 1952 ceased to be on  the statute  and a new section 5 was substituted.  But  the  new section  5  substituted  in 1956 has  no  relevance  to  the present appeal.  The contention on behalf of the respondents was  that  section  5 as -amended in 1952  had  conferred  a vested  right on the respondents and therefore the  deletion of  the  amended section 5 by the 1956 amendment  could  not take away the vested rights of the respondents. The contention on behalf of the appellants as to the  effect of  substitution  of  the amended section  5  by  a  totally different section 5 of 1956 was first that section 5 did not apply  and  even if it applied it did not  create  a  vested right  and secondly if the statute conferred any  protection or privilege the statute could ,take away such a  protection or privilege. This  Court  in Sidram Narsappa Kamble v.  Sholapur  Borough Municipality  &  Anr.(1) considered the effect of  the  1956 Amendment  Act  in relation to protected  tenants.   In  the present appeal, in view of our conclusion that section 5  of the  1948 Act as amended in 1952 did not apply to  protected tenants,  it  is not necessary to  consider  the  contention advanced  on behalf of the respondents whether they had  any vested right in the amended section 5. For  these reasons the findings of the High Court  dated  27 January, 1971 are upheld and the judgment dated 6 November 6 December, 1962 is set aside. Counsel for both the parties submitted that the matter  that matter  would  have  to be remanded to the  High  Court  for consideration as to whether there was a valid termination of tenancy.   The  matter  is remanded to the  High  Court  for decision  of  the  appeal as to whether there  was  a  valid termination of tenancy. (1)  [1966] 1 S.C.R. 618. 345 In  view of the fact that this is an old litigation we  hope that  the matter will be heard as soon as is  convenient  to the High Court. The  order of costs passed by the High Court is  set  aside. Costs  of this appeal will abide the result of the  decision of  the High Court.  The successful party would be  entitled to costs. K.B.N. 346

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