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PETITIONER: SIDRAM NARSAPPA KAMBLE

       Vs.

RESPONDENT: SHOLAPUR BOROUGH MUNCIPALITY & ANR.

DATE OF JUDGMENT: 27/08/1965

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. GAJENDRAGADKAR, P.B. (CJ) HIDAYATULLAH, M. SHAH, J.C. SIKRI, S.M.

CITATION:  1966 AIR  538            1966 SCR  (1) 618  CITATOR INFO :  RF         1972 SC 161  (27)  D          1979 SC1055  (16)  F          1985 SC 836  (15,16)  RF         1986 SC2204  (2,7)  RF         1991 SC1538  (8)

ACT: Bombay Tenancy and Agricultural Lands Act, (67 of 1948)  ss. 31, 88 and 89 --Scope of.

HEADNOTE: In  1946, the Bombay -Tenancy Act, 1939 was applied  to  the respondent-Muncipality.  Section 3A of the Act provided that every tenant shall, on the expiry of one year from the  date of  the coming into force of the Amendment Act of  1946,  be deemed  to  be a protected tenant, unless the  landlord  had within   that  period,  applied  to  the  Mamlatdar  for   a declaration   that  the  tenant  was  not  protected.    The appellant had taken on lease lands from the respondent,  and since  the respondents had not applied lo the Mamltdar,  the appellant  became  a  protected tenant.  ’Me  1939  Act  was repealed  by the Bombay Tenancy and Agricultural Lands  Act, 1948,  Section  31 of the 1948 Act provided  that  a  person shall be recognised to be a protected tenant, if such person had been deemed to be a protected tenant under s. 3, 3A or 4 of  the 1939 Act.  But s. 88 of the same Act  provided  that nothing  in the foregoing provisions of the 1948  Act  shall apply  to lands held on lease from a local authority,  while s. 89(2) provided for the repeal of the 1939 Act except  for ss.  3, 3A and 4 which continued, is modified in Schedule  1 of the 1948 Act, and also provided. that nothing in the 1948 Act, or any repeal effected thereby shall save as  expressly provided in the 1948 Act, affect or be deemed to affect  any right,  title, interest, obligation or liability,  acquired, accrued or incurred before the commencement of the 1948 Act. In  1955  the  respondent  gave  notice  to  the   appellant terminating  his tenancy and subsequently filed a  suit  for possession.  Pending proceedings arising from the suit,  the appellant applied to the Mamlatdar for a declaration that he

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was  a protected tenant of the lads, and the Mamlatdar  gave the  declaration.   On appeal, the Collector held  that  the Mamlatdar  had no jurisdiction to decide the question.   The Bombay   Revenue  Tribunal,  in  revision,  set  aside   the Collector’s order, and the High Court, in application  under Art. 227, restored Collector’s order. In  his appeal to this Court-, the appellant contended  that (i) the interest acquired by him as a protected tenant under the 1939 Act would not be affected in view of the provisions of  s.  89(2) in the 1948 Act; and (ii)  the  Mamlatdar  had jurisdiction to decide the question under s. 88B. HELD  : (i) The plain effect of the provisions contained  in ss.  31, 88 and 89(2) (b), is that, in view of  the  express provision  contained in s. 88 (1) (a). the  appellant  could not  claim the benefit of s. 31, nor could it be  said  that his interest as protected tenant was saved by s. 89(2)  (b), [625 G] Sections  3,  3A and 4 of the 1939 Act were continued  in  a modified  form  in Schedule 1 of the 1949 Act only  for  the purpose  of  a. 11 of the 1948 Act and a  perusal  of  those shows  that  protected tenants were only those  tenants  who satisfied these three sections and that no 619 new  protected tenants could come into existence  under  the 1948 Act As & 31 is one of the foregoing provisions referred to in s. 88, it win not apply to lands held on lease from  a local  authority.  In effect, therfore,   legislature, which had  conferred  by the 1939 Act, the status of  a  protected tenant on certain persons, took away that status by enacting s.  88  in  the  1948 Act so far as  lessees  from  a  local authority  were  concerned.   As  far  as  s.  89(2)(b)   is concerned,  that  part  of it which  says  that  any  repeal effected thereby shall not affect or be deemed to affect any right  etc., will not help the appellant because ss.  3,  3A and  4  of the 1939 Act were not repealed by the  1948  Act. Nor will the clause "nothing in this Act, shall affect or be deemed to affect" apply, if there is an express provision in the  1948 Act which takes away the interest of  a  protected tenant  acquired  before its commencement,  because  of  the qualifying words, "save as expressly provided in this  Act", in  the  section.  Section 88, of the 1948 Act  is  such  an express  provision  which  takes out  leases  from  a  local authority from the purview of ss.  1 of 87 of the 1948  Act, including s. 31 which is the only provision in the 1948  Act which  recognised protected tenants.  It follows that  there can  be no protected tenants of lands held on lease  from  a local  authority under the 1948 Act.  It is true that s.  88 does  not  in  so  many words say that  the  interest  of  a protected tenant acquired under the 1939 Act is being  taken away  so far as lands held on lease from a  local  authority are  concerned; but in effect, s. 88(1)(a) must be  held  to say that there will be no protection under the 1948 Act  for protected  tenants under the 1939 Act, so far as lands  held on  lease  from  a  local  authority  are  concerned.    The intention from the express words of s. 88(1) (a) is also the same.  It may very well be that the legislature thought that the  status  of a protected tenant should not  be  given  to lessees of lands from a local authority, in the interest  of the  general  public, and therefore, took away  that  status which  was  conferred  by  the  1939  Act.  by  the  express enactment of s. 88(1)(a). [622 F-G; 623 E-G; 624 F-G; 625 B- F; 616 C] Further the appellant could not claim the benefit of s.  4A, which takes the place of s. 31 after the amendment of  1956, and claim that he is a protected tenant, because, s. 4A also

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does not apply to a case of lands held on lease from a local authority. [627 D-E] Sakharam v. Manikchand, [1962] 2 S.C.R. 59, disapproved. Mohanlal  Chunilal  Kothari v. Tribhovan  Haribhal  Tamboli, [1963] 2 S.C.R, 707, explained. (ii) Section  88B  will not protect the appellant,  for  his lease  had already been determined before the  section  came into force on 1st April 1956 [627 C-D]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 577 of 1963. Appeal  from the judgment and order dated March 8,  1961  of the Bombay High Court in Special Civil Application No. 1120- of 1960. S.   G. Patwardhan and M. S. Gupta, for the appellant. N.   D. Karkhanis J. B. Dadachanji and A. G. Ratnaparkhi  or respondent No. 1. 620 The Judgment of the Court was delivered by Wanchoo,  J. The appellant took on lease two survey  numbers from the respondent, Sholapur Borough Municipality on  April 1,  1946 for a period of three years.  The land  is  situate within  the municipal limits.  About November 8,  1946,  the Bombay Tenancy Act, No. 29 of 1939 (hereinafter referred  to as the 1939-Act) was applied to this area and s. 3-A of that Act  provided that every tenant shall on the expiry  of  one year  from the date of the coming into force of  the  Bombay Tenancy (Amendment) Act, (No.  XXVI of 1946) be deemed to be a  protected tenant unless his landlord has within the  said period   made  an  application  to  the  Mamlatdar   for   a declaration  that the tenant was not a protected  one.   The respondent did not file a suit within one year and therefore the  appellant  claimed to have become  a  protected  tenant under  the 1939-Act.  The 1939-Act was repeated in  1948  by the Bombay Tenancy and Agricultural Lands Act, No. LXVII  of 1948 (hereinafter referred to as the 1948-Act).  Section  31 of the 1948-Act provided that for the purposes of this  Act, a  person  shall be recognised to be a protected  tenant  if such  person had been deemed to be a protected tenant  under s. 3, 3-A or 4 of the 1939-Act.  Ordinarily, therefore,  the appellant  would have become a protected tenant  under  this section of the 1948-Act, if he had become a protected tenant under  the  1939Act.  But s. 88 of the 1948-Act  inter  alia provided  that  nothing in the foregoing provisions  of  the 1948-Act  shall  apply to lands held on lease from  a  local authority.   Therefore  if s. 88 prevailed over s.  31,  the appellant would not be entitled to the benefit of s. 31  and could not claim to be a protected tenant under this section. The  appellant  however relied on s. 89(2) of  the  1948-Act which provided for the repeal of the 1939-Act except for ss. 3,  3-A and 4 which continued as modified in Sch.  1 of  the 1948-Act.   That  sub-section provided that nothing  in  the 1948-Act  or  any  repeal effected  thereby  shall  save  as expressly provided in this Act affect or be deemed to affect any right, title, interest, obligation or liability  already acquired, accrued or incurred before the commencement of the 1948-Act. In the present case the respondent gave notice to the appel- lant on May 2, 1955 terminating his tenancy with effect from March 31, 1956.  Subsequently the respondent filed suit  No. 42  of  1957 for obtaining possession of the lands  and  for certain  other reliefs.  It was held in that suit  that  the respondent  could  not get possession of the  lands  as  the

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appellant  was entitled to the benefit of the  1948-Act  and consequently the respondent’s suit for pos  621 session was dismissed.  The respondent then appealed to the, District  Court.   During the pendency of  that  appeal  the appellant  made  an application on September 8, 1958  for  a declaration that he was a protected tenant of the lands  and also for fixig rent under the provisions of the Tenancy Act. Further  in  the  appeal  filed  in  the  District  Court  a compromise was arrived at by which the order dismissing  the respondent’s suit for possession was set aside and the  suit was remanded to the trial court with the direction that  the suit  be  stayed and disposed of after the decision  by  the Mamlatdar.   The compromise provided that if  the  appellant was  finally held to be tenant by the authorities under  the 1948Act the suit for possession would be dismissed.  It also provided that if the decision in the proceedings under  the, Tenancy  Act  went  against  the  appellant,  the  suit  for possession would be decreed. The Mamlatdar held that the appellant was a tenant and  gave him  a  declaration under s. 70 (b) of  the  1948-Act.   The respondent  then  went in appeal to the Collector,  and  the Collector decided that the Mamlatdar had no jurisdiction  to decide  whether the appellant was a tenant.   The  appellant then  went in revision to the Bombay Revenue Tribunal.   The tribunal held, in view of the amendments that had been  made in the 1948-Act by the Amendment Act of 1956 by which s. 88- B was introduced in the 1948-Act, that the revenue court had jurisdiction  to decide whether the appellant was a  tenant. Finally it remanded the matter to the Collector for decision on  the  question whether the appellant was a  tenant  or  a protected tenant on the merits. The  respondent  had contended before the  Revenue  Tribunal that the appellant could not have the status of a tenant  or protected  tenant in view of the provisions of the  1948-Act and therefore the respondent filed a petition under Art. 227 of  the Constitution of India before the Bombay High  Court. Its contention before the High Court was that in view of  s. 88  of  the 1948-Act the appellant could not claim to  be  a protected tenant within the meaning of s. 31 of that Act and therefore the order of the Collector was right.  It was also contended  that s. 88-B would not apply to the case  of  the appellant  as it came into force on April 1, 1956 after  the determination  of  the tenancy of the appellant  by  notice. Both  these contention were accepted by the High  Court  and the  order of the Revenue Tribunal was set aside and in  its place the order of the Collector dismissing the  appellant’s application   was   restored.   Thereupon   there   was   an application to the High Court under Art. 133 (1) (c) of  the Constitution and 622. the High Court certified the case as a fit one for appeal to this  Court; and that is how the matter has come  up  before us. This  appeal  was first heard by a Division  Bench  of  this Court  and  has been referred to a larger Bench in  view  of certain  difficulties  relating to  the  interpretation  and inter-relation  of ss. 31, 88 and 89 of the 1948-Act and  in view  of  two  decisions  of  this  Court  in  Sakharam   v. Manikchand(1)  and  Mohanlal Chunilal Kothari  v.  Tribhovan Haribhai Tamboli (2). It has been contended on behalf of the appellant  that Sakharam’s case(1) fully covers the  present case  and  on the basis of that case the  appeal  should  be allowed.   On  the  other  hand,  learned  counsel  for  the respondent  contends that on the ratio of Mohanlal  Chunilal

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Kothari’s case, (2 ) the appellant should be held to be  not a protected tenant and that considerations which applied  to the  interpretation of s. 8 8 ( 1 ) (d) equally  applied  to the  interpretation  of s. 88 (1) (a), (b) and (c).   It  is further  urged on behalf of the respondent that in  view  of the  latter decision, the decision in Sakharam’s case(1)  no longer holds the field. Before  we refer to the two decisions on which reliance  has been  placed  on either side, we may refer  to  the  various provisions   of  the  1948-Act  as  they  were  before   the amendments  of 1956 to decide the inter-relation of ss.  31, 88  and  89  of the said Act.  It may be  mentioned  at  the outset that S. 89 which repealed the 1939-Act did not repeal ss.  3,  3-A  and  4 of  that  Act.   These  three  sections continued as modified in Sch.  1 of the 1948-Act.  A perusal of  the  modified sections in Sch.  I shows  that  protected tenants  were only those tenants who satisfied  these  three sections  in the Schedule and that no new protected  tenants could  come into existence under the 1948-Act after it  came into  force from December 28, 1948.  Further it seems to  us obvious  that  ss.  3, 3-A and 4 of the  1939-Act  were  not repealed  and were continued as modified in Sch.  1  of  the 1948-Act  for  the purpose of s. 31 of the  1948-Act.   That section provided as follows:-               "For the purposes of this Act, a person  shall               be recognised to be a protected tenant if such               person  has  been  deemed to  be  a  protected               tenant under section 3, 3-A or 4 of the Bombay               Tenancy Act, 1939." These sections (ss. 3, 3-A and 4) which were continued in  a modified  form in Sch.  1 of the 1948-Act were so  continued only  for  the purpose of S. 31 of the Act and  it  was  not possible for (1) [1962] 2 S.C R. 59. (2) [1963] 2 S.C.R. 707.  623 any  tenant  to  be a protected tenant  under  the  1948-Act unless  he was a protected tenant under the  1939-Act.   The 1948-Act  thus recogaised such tenants as protected  tenants who  were  protected  tenants under the  1939-Act  and  even though  ss. 3, 3-A and 4 of the, 1939 Act were continued  as modified  by Sch.  1 of the 1948Act The  modifications  were such  as  showed  that  only  those  tenants  would   remain protected  tenants  under the 1948-Act  who  were  protected under the 1939-Act. Then  we  come to s. 88 of the 1948-Act which  is  in  these terms :- "  (1).   Nothing in the foregoing provisions  of  this  Act shall apply -.- (a)  to  lands  held  on  lease  from  the  Crown,  a  local authority or a co-operative society; (b).................................." Section  8  8  lays  down  that  nothing  in  the  foregoing provisions  of the 1948-Act shall apply inter-alia to  lands held  on lease from a local authority, like a  municipality. As s. 31 is one of the foregoing sections it will not  apply to  lands  held on lease from a local authority.   In  other words, so far as lands held on lease from a local  authority are  concerned, there will be no provision in  the  1948-Act for  recognising a protected tenant even if a person  was  a protected tenant under the 1939-Act.  It is only s. 31 which gave  recognition to the status of a protected tenant  under the  1948-Act and if that provision is in effect omitted  so far  as  lands  held on lease from  a  local  authority  are concerned,  no  such  lessee can claim  to  be  a  protected

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tenant.   In  effect  therefore the  legislature  which  had conferred  by the 1939-Act the status of a protected  tenant on  certain persons was taking away that status by  enacting s.  88 in the 1948-Act so far as inter alia aessees  from  a local authority were concerned. If matters had stood only on sq. 31 and 88 there would  have been  no difficulty in holding that the status of  protected tenant conferred by the 1939-Act was taken away from certain lessees including lessees from a local authority under s. 88 of the 1948Act.  But the appellant relies on s. 89(2)(b) and contends  that  provision saved his rights  as  a  protected tenant.   We have already mentioned that s.  89(1)  repealed inter  alia the 1939-Act except for ss. 3, 3-A and  4  which continued in a modified form 624 in Sch.  1 of Section 89 (2) (b) on which reliance is placed by the appellant is in these terms : -               "But  nothing  in  this  Act  or  any   repeal               effected thereby-               (a)               (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) The  argument is that the interest acquired as  a  protected tenant under the 1939-Act would thus not be affected in view of  this provision in the 1948-Act; and it is this  argument which  we  have to examine.  Now we have  already  mentioned that  ss. 3, 3-A and 4 relating to protected tenants in  the 1939-Act were not repealed by the 1948-Act.  Therefore  that Part  of s. 89 (2) (b) which says that any  repeal  effected thereby  shall not affect or be deemed to affect  any   high title,  interest etc. will not apply.  But  learned  counsel for  the appellant relies on the words "nothing in this  Act shall  affect  or be deemed to affect any  right,  title  or interest. . . . " and his argument is that even though there might  not  have been a repeal of ss. 3, 3-A and  4  of  the 1939-Act  by the 1948-Act S. 89 (2) would still protect  him because  it  provides  that nothing in  the  1948-Act  shall affect or be deemed to affect any right title, interest etc. acquired  before its commencement.  But the clause  "nothing in  this  Act  shall  affect or  be  deemed  to  affect"  is qualified  by the words "save as expressly provided in  this Act".   Therefore, if there is an express provision  in  the 1948-Act,  that  will  prevail  over  any  right,  title  or interest etc. acquired before its commencement.  Further the words "save as expressly provided in this Act" also qualify   the words "any repeal affected thereby" and even in the case of   repe al of the provisions of the 1939-Act if there is an express   provisi on which affects any title, right or interest acquired before    the commencement of the 1948-Act that will also not be saved. The  narrow  question  then  is whether  there  is  anything express in the 1948-Act  which takes away the interest of  a protected tenant acquired before its commencement.  If there is any such express provision then s. 89(2) (b) would be  of no help to the appellant.  The contention of the  respondent is that S. 88 is an  625 express provision and in the face of this express  provision the interest acquired as a protected tenant under the  1939-

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Act  cannot  prevail.   On the other hand, it  is  urged  on behalf of the appellant that s. 88 does not in express terms lay  down that the interest acquired by a  protected  tenant under  the  1939-Act is being taken away  and  therefore  it should not be treated as an express provision.  Now there is no  doubt  that  s. 88 when it lays  down  inter  alia  that nothing  in the foregoing provisions of the  1948-Act  shall apply to lands held on lease from a ’local authority, it  is an  express provision which takes out such leases  from  the purview  of  sections 1 to 87 of the 1948-Act.  One  of  the provisions  therefore which must be treated as  non-existent where lands are given on lease by a local authority is in s. 31.   The  only provision in the 1948-Act  which  recognised protected  tenants  is s. 31 and if that section  is  to  be treated as non-existent so far as lands held on lease from a local authority are concerned, it follows that there can  be no  protected  tenants of lands held on lease from  a  local authority  under the 1948-Act.  It is true that s.  88  does not  in so many words say that the interest of  a  protected tenant  acquired under the 1939-Act is being taken away  so, far  as  lands  held on lease from  a  local  authority  are concerned; but the effect of the express provision contained in  s. 88 (1 ) (a) clearly is that s. 31 must be treated  as non-existent  so  far as lands held on lease  from  a  local authority  are concerned and in effect therefore s. 8 8  (1) (a)  must  be hold to say that there will be  no  protection under the 1948-Act for protected tenants under the  1939-Act so  far  as lands held on lease from a local  authority  are concerned.  It was not necessary that the express  provision should in so many words say that there will be no  protected tenants  after the 1948-Act came into force with respect  to lands  held on lease from a local authority.  The  intention from  the express words of s. 88(1) is clearly the same  and therefore there is no difficulty in holding that there is an express provision in the 1948-Act which lays down that there will  be no protected tenant of lands held on lease  from  a local   authority.   In  view  of  this  express   provision contained  in s. 88(1) (a), the appellant cannot  claim  the benefit  of s. 31 ; nor can it be said that his interest  as protected  tenant  is saved by s. 89 (2) (b).  This  in  our opinion is the -plain effect of the provisions contained  in s. 31, s. 88 and s. 89(2)(b) of the 1948-Act. It  now  remains  to  refer  to  Sakharam’s  case(1)   which certainly  supports the contention raised on behalf  of  the appellant.  With respect, it seems to us that more has  been read in that case in s. 89 (2)     (b)  than  is   justified under the terms of that provision.  It was (1)  [1962] 2 S.C.R. 59. 626 also observed in that case that the provisions of s. 88 were entirely  prospective and were not intended in any sense  to be  of confiscatory character, and that s. 89(2) (b)  showed clearly  an  intention  to  conserve  such  rights  as  were acquired  before the commencement of 1948-Act.  It seems  to us,  with  respect, that in that case full  effect  was  not given to the words "save as expressly provided in this  Act" appearing in S. 89(2) (b), and it was also not noticed  that there  could be no new protected tenants after the  1948-Act came  into  force and that S. 88(1) in  its  application  to leases from local authorities will have no meaning unless it affected the rights contained in S. 3 1. It may very well be that the legislature thought that the status of a  protected tenant should not be given to lessees of lands from a  local authority,  in  the  interest of  the  general,  public  and therefore  took away that interest by the express  enactment

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of s. 8 8 ( 1 ) (a).  The status was after all conferred  by the 1939-Act and we can see no difficulty in its being taken away  by the 1948Act.  It may be mentioned that S. 8  8  (1) (a)  applies  not only to lands held on lease from  a  local authority  but also to lands held on lease from  the  State, and one can visualise situations where the State may need to get  back  lands leased by it in public interest.   It  must therefore  have  been in the interest of the public  that  a provision  like  S.  88 (1) (a) was  made  with  respect  to lessees  from a local authority or the State who had  become protected  tenants under the 1939-Act.  We are supported  in the  view  we have taken by the decision of  this  Court  in Mohanlal  Chunilal Kothari’s case(1) where it was held  that S. 88 (1)(d) would be rendered completely ineffective if  it was  not to be applied retrospectively, though it was  added in  that  case that it did not affect  the  rights  acquired under the earlier Act of 1939.  The latter observation, with respect,  does not seem to be correct for their could be  no new protected tenants under the 1948-Act to whom even S.  88 (1) (d) could have applied.  Further if a notification under S.  88 (1) (d) could be retrospective upto the date  of  the 1948-Act  we  can  see no reason on  the  language  of  this section to hold that it was retrospective only upto 1948 and would not affect the rights acquired tinder the 1939-Act. We  may also mention that by an oversight ’it was stated  in Mohanlal  Chunilal Kothari’s case(1) that clauses  (a),  (b) and (c) of S. 88(1) apply to things as they were at the date of the enactment.  It is however clear that clauses (a), (b) and (c) of S. 88 (1) also apply in the future.  For  example cl.  (a) lays down that nothing in the foregoing  provisions of this Act shall apply to lands (1)  [1963] 2 S.C.R. 707. 6 2 7 held  on  lease from Government, a local  authority  or  co- operative society.  The words "held on lease" in this clause are  only descriptive of the lands and are not  confined  to lands  held  on lease on the date the Act came  into  force; they  equally apply to lands ceased before or after the  Act became  law and the distinction that was drawn  in  Mohanlal Chunilal Kothari’s case(1) that cls. (a), (b)     and    (c) applied to things as they were at the date of the  enactment whereas  cl. (d) was with respect to future,  with  respect, does not appear to be correct. In this view of the matter, the view taken by the High Court in  the  judgment  under appeal that s. 88  (1)  (a)  is  an express provision which takes away the interest of protected tenants under the 1939-Act must be held to be correct. So far as the argument based on s. 88-B is concerned, it  IS enough to say that we agree with the High Court that section will  not  protect the appellant for his lease  had  already been determined before the section came into force on  April 1, 1956.  Besides it may be observed that s. 4-A which takes the  place of s. 31 after the amendment of 1956  still  does not  apply  to a case of lands held on lease  from  a  local authority and therefore what we have said with respect to s. 31  will  equally apply to s. 4-A and the  appellant  cannot claim  the benefit of that section and contend that he is  a protected tenant under the 1939-Act and therefore cannot  be ejected. In the result we dismiss the appeal but in the circumstances of this case we order the parties to bear their own costs. Appeal dismissed. (1) [1963] 2 S.C.R. 707. 628

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