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PETITIONER: TRIMBAK DAMODHAR RAIPURKAR

       Vs.

RESPONDENT: ASSARAM HIRAMAN PATIL AND ORS.

DATE OF JUDGMENT: 29/11/1961

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. SARKAR, A.K. WANCHOO, K.N. GUPTA, K.C. DAS AYYANGAR, N. RAJAGOPALA

CITATION:  1966 AIR 1758            1962 SCR  Supl. (1) 700  CITATOR INFO :  RF         1972 SC 161  (19,21,24)  RF         1981 SC 998  (2)  D          1991 SC  14  (7)

ACT:      Tenancy-Termination  of-Valid   notice  given before commencement  of new  Act-Course prescribed by statue must be followed-Right to eject, accrues only after the period specified in notice is over- Existing  rights  and  vested  rights-Distinction- Statue operating  in  future,  affecting  existing rights-If   retrospective-Bombay    Tenancy   Act, 1939(Bom. 29 of 1939), s. 23(1) (b)-Bombay Tenancy and Agricultural Lands Act, 1948(Bom. 67 of 1948), ss. 5, 14(2)-Bombay Tenancy and Agricultural Lands (Amendment) Act, (Bom. 33 of 1952) s. 2.

HEADNOTE:      In February  1943 the appellant leased out an agricultural land  for 5  years to the respondent. Before the expiry of the lease, the Bombay Tenancy Act, 1939,  was made  applicable to the area where the land  was situated,  and under s. 23(1)(b) the period of the lease was statutorily extended to 10 years. During  the subsistence of the tenancy thus statutorily extended,  the Bombay  Act 67  of 1948 came into  force. In March 1952 the appellant gave notice to  the  respondents  intimating  that  the statutory period  of tenancy expired on 31st March 1953, and  called upon  them to deliver possession immediately thereafter.  Before the  notice  could effectively be  enforced the Bombay Act 33 of 1952 came into  force, the effect of which was that the lease was automatically extended for 10 years from time to  time, unless  terminated  by  giving  one year’s notice  with the averment that the land was required bona  fide by  the landlord  for personal cultivation and  that income  would  be  the  main source of income to the landlord.

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    The appellant’s  case was  that the technical requirements of  a valid  notice prescribed by the Amending Act do not apply to his claim inasmuch as the relevant  provisions of  the amending  Act are not retrospective  in operation.  The question was whether the  appellant was  entitled to  eject the respondents  even   without  complying   with  the statutory   requirement   as   to   valid   notice prescribed by the Amending Act 33 of 1952. ^      Held, that  by virtue  of the Amending Act 33 of 1952  the period  of  lease  was  automatically extended for  a period  of ten  years from time to time, unless terminated by a valid 701 notice or  a surrender  was made  by the tenant as specified by  the statute,  otherwise the  tenancy would be  extended from  time to time at a stretch of every  ten years. In order to put an end to the tenancy,  thus   statutorily  safe   guarded,  the landlord had  to follow  the course  prescribed by the amending  statute to  give a  valid notice  as required by  the said  statute.  The  right  of  a landlord to  obtain  possession  does  not  accrue merely on  the giving of the notice, it accrues in his favour  on the date when the lease expires. It is only  after the  period specified in the notice is over  and the  tenancy in fact had expired that the landlord  gets a right to eject the tenant and take possession of land.      Held,  further,  that  there  is  distinction between existing  right and  vested right. Where a statute operates in future it cannot be said to be retrospective merely  because within  the sweep of its operation  all existing  rights are  included. The operation  of s.  5(1) of  the Amending Act is not retrospective, it merely affects in future the existing rights  under all leases whether executed before or after the date of the Act.      West. v.  Gwynne, [191I]  2 Ch.  1, Durlabhai Fakirbhai v.  Jhaverbhai Bhikabhai, (1955) 58 Bom. L. R. 85, applied.      Jivabhai  Purshottam   v.   Chhagan   Karson, [1962]1 S. C. R. 568, referred to.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION:  Civil  Appeal No. 19 of 1961.      Appeal by special leave from the judgment and order dated  April 11, 1957, of Bombay High Court, in Special Civil Application No. 3170 of 1956.      K. R.  Bengeri and A. G. Ratnaparkhi, for the appellant.      E. Udayaratnam  and S.  S.  Shukla,  for  the respondent.      1961. November  29. The Judgment of the Court was delivered by      GAJENDRAGADKAR,  J.-This  appeal  by  special leave arises  out of  a tenancy case instituted by the appellant  against his tenants the respondents in  the   Court  of   the  Mamlatdar  Raver  (East Khandesh),  in   the  State  of  Maharashtra.  The property in suit

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702 consists of agricultural lands, Survey Nos. 32 and 38,  situated   in   the   village   Raipur.   The respondents had executed a rent note in respect of these lands in favour of the appellant on February 5, 1943.  The period  for which  the rent note was executed was  five years and the rent agreed to be paid annually  was Rs.  785/-. In  ordinary course the lease  would have  expired on  March 31, 1948. However, before  the lease  expired, on  April 11, 1946 the Bombay Tenancy Act, 1939 (Bombay Act XXIX of 1939)  was applied  to the  area  of  the  East Khandesh where  the lands  are  situated,  and  in consequence as  a result  of s.  23 (1) (b) of the said Act  the five  years period stipulated in the rent note  was statutorily  extended to ten years; the result  was  that  under  the  said  statutory provision  the   rent  note   in  favour   of  the respondents would  have expired on March 31, 1953. During  the   subsistence  of   the  tenancy  thus statutorily  extended   the  Bombay   Tenancy  and Agricultural Lands  Act LXVII  of 1948  came  into force. This  act repealed  the earlier Act of 1939 except ss.  3, 3(a)  and 4 as modified. Sections 5 and 14  (2) of this Act are material. On March 11, 1952 the  appellant gave notice to the respondents intimating to  them that  the period  of the  rent note executed  by them  which had been statutorily extended  would  expire  on  March  31,  1953  and calling upon  them to  deliver possession  of  the lands to  him immediately  thereafter. Before  the notice  could   be  effectively  enforced  on  the expiration of  the period  of the  lease, however, Bombay Act  XXXIII of  1952 came into operation on January 12,  1953. This  Act repealed s. 14(2) and amended s.  5 and  added sub-s. (3) to it. 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 703 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.  The relevant averments  about these  grounds had to be made by  the landlord in issuing the notice to the tenants for terminating their tenancy.      On April 4, 1953 the appellant instituted the present   tenancy    proceedings   for   obtaining possession of  the lands.  The Mamlatdar who tried the proceedings  rejected the appellant’s claim on the ground  that he had not terminated the tenancy of the  respondents as  required by law in that he had not  given the  statutory  notice  making  the prescribed relevant  averments in that behalf. The appellant then  preferred an  appeal  against  the decision  of   the  Mamlatdar  but  the  appellate authority  agreed  with  the  view  taken  by  the Mamlatdar and  dismissed his  appeal. The  dispute was then  taken by the appellant before the Bombay Revenue  Tribunal   by   way   of   a   revisional application;  and   the   revisional   application

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succeeded. The  Tribunal held  that  the  relevant amendments  on   which  the   Mamlatdar  and   the appellate authority  had relied  in dismissing the appellant’s claim  were not retrospective and that the  appellant   was   entitled   to   eject   the respondents. This  order of  the Revenue  Tribunal was challenged  by the  respondents by  a petition filed by  them under  Art. 227 of the Constitution in the  Bombay High  Court.  The  High  Court  has allowed  the  writ  petition  and  held  that  the relevant amendments are retrospective in operation and that  the appellant  is not  entitled to eject the respondents.  On that view the order passed by the Revenue  Tribunal has  been set aside and that of the appellate authority restored. It is against this decision  that the appellant has come to this Court by special leave.      It is  necessary at the outset to set out the relevant statutory  provisions which  fall  to  be considered in the present appeal. 704      Section 23  (1) (b) of the Bombay Tenancy Act of 1939  which statutorily  extended the  original contractual five  years period of the lease to ten years reads  thus: "Every  lease subsisting on the said date  (that is to say the date on which s. 23 came into  force) 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 ten years". We have already  noticed that as soon as this act was made applicable  to the  area where  the lands  in question are  situated the original period of five years  agreed  to  between  the  parties  for  the duration of  the lease was statutorily extended to ten years.      Then followed  the Tenancy Act LXVII of 1948. Section 5 of the said Act originally stood thus:           "5. (1)  No tenancy of any land shall be      for a period of less than ten years.           Notwithstanding any  agreement, usage or      law to  the contrary,  no  tenancy  shall  be      terminated before  the expiry  of a period of      ten years  except on the grounds mentioned in      section 14:           Provided  that   any  tenancy   may   be      terminated by a tenant before the expiry of a      period  of  ten  years  by  surrendering  his      interest  as   a  tenant  in  favour  of  the      landlord." Section 14,  sub-s. (2)  which is  relevant  reads thus:           "In the  case of tenant, the duration of      whose tenancy is for a period of ten years or      more, the  tenancy  shall  terminate  at  the      expiration  of   such  period,   unless   the      landlord has  by the acceptance of rent or by      any other  act or  conduct of his allowed the      tenant to  hold over  within the  meaning  of      Section 116  of the  Transfer of Property Act      1882." On January  12, 1953,  the amending  Act XXXIII of 1952 came into force. By this amending Act 705 the following  proviso was  added to sub-s. (1) of s. 5:

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         "Provided that  at the  end of  the said      period 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 to the contrary." The said  amending Act  repealed s.  14 (2) of Act LXVII of 1948 and amended s. 5, sub-s. (2) in this way:           "The landlord  may, by giving the tenant      one year’s  notice in  writing before the end      of each  of the  periods 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-Section (2) and (2A) of the said Section,      as if such tenant was a protected tenant." A new  sub-section, sub-s.  (3) was added to s. 5. This new sub-section reads thus:           "Notwithstanding anything  contained  in      sub-section (1)-           (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." 706      It is common ground that if the provisions of the amending  Act XXXIII of 1952 are applicable to the present proceedings the appellant would not be entitled to claim the ejectment of the respondents because he has not given any notice in that behalf as prescribed  by the  said relevant provisions of the amending  statute. His  case, however, is that the  technical  requirements  of  a  valid  notice prescribed by the amending Act do not apply to his claim inasmuch  as the  relevant provisions of the amending Act  are not  retrospective in operation. According to  him he  has already  given notice to the respondents  on March  11, 1952, intimating to them unequivocally  his intention  to  eject  them from the  lands on  the expiration of the ten year period of  the lease. The High Court has held that this contention  is not  well-founded and  so  the appellant’s   claim   for   ejectment   has   been dismissed.  The  question  which  arises  for  our decision is  whether the  appellant is  entiled to eject the  respondents even without complying with the statutory  requirement as  to the valid notice prescribed by the amending Act XXXIII of 1952.      It would  be noticed  that though  the  lease originally was  for five  years, before  the  five years  expired  the  duration  of  the  lease  was statutorily extended to ten years by virtue of the provisions of  s. 23(1)(b)  of Act XXIX of 1939. A

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somewhat similar, though from the point of view of the  appellant   a  more   revolutionary,   result followed when  a proviso  was added  to s. 5(1) by the amending Act XXXIII of 1952. By virtue of this amendment   the   period   of   the   lease   gets automatically extended  for ten years from time to time. In  other words,  before the lease in favour of the respondents could expire on March 31, 1953, by virtue  of  the  proviso  to  s.  5(1)  of  the amending Act  of 1952  it  got  extended  for  ten years, and  unless it  is terminated  by  a  valid notice or a surrender 707 is made  by the tenant as specified by the statute the tenancy would be extended from time to time at every stretch  for ten years. Therefore, there can be no  doubt that  as a result of the amending Act of 1952  the expiration  of the lease did not take place on March 31, 1953 as had been anticipated by the appellant  when he  gave notice  on March  11, 1952. In  one sense  the  amending  Act  which  is undoubtedly  a  piece  of  beneficent  legislation conferred on the respondents additional rights and these additional  rights were  conferred  on  them before the  lease in  their favour  had come to an end. In  order to  put an  end to the tenancy thus statutorily  safeguarded   the  appellant  has  to follow  the  course  prescribed  by  the  amending statute and give a valid notice as required by the said statute. Just as the appellant could not have complained against  the extension  of the original period of  five years  to ten years by Act XXIX of 1939 so  he cannot  complain against  the  further extensions statutorily  granted to the respondents by s.  5(1) of  the amending  Act XXXIII  of 1952. That is one aspect of the matter.      Besides, it is necessary to bear in mind that the  right   of  the   appellant  to   eject   the respondents would arise only on the termination of the tenancy  and in the present case it would have been available  to him  on March  31, 1953  if the statutory  provision  had  not  in  the  meanwhile extended the  life of the tenancy. It is true that the appellant  gave notice  to the  respondents on March 11, 1952 as he was then no doubt entitled to do;  but   his  right  as  a  landlord  to  obtain possession did  not accrue merely on the giving of the notice,  it accrued  in his favour on the date when the  lease expired.  It  is  only  after  the period specified  in the  notice is  over and  the tenancy has in fact expired that the landlord gets a right  to eject the tenant and obtain possession of the land. Considered from this 708 point of  view, before  the right  accrued to  the appellant to  eject the  respondents amending  Act XXXIII of 1952 stepped in and deprived him of that right  by   requiring  him   to  comply  with  the statutory requirement  as to  a valid notice which has to be given for ejecting tenants.      In  this   connection  it   is  relevant   to distinguish between an existing right and a vested right. Where  a  statute  operates  in  future  it cannot be  said to be retrospective merely because within the  sweep of  its operation  all  existing

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rights are included. As observed by Buckley, L. J. in West  v. Gwynne  retrospective operation is one matter and  interference with  existing rights  is another. "If  an Act  provides that  as at  a past date the  law shall  be taken  to have  been  that which it  was not  that Act  I  understand  to  be retrospective. That is not this case. The question here is  whether a  certain provision  as  to  the contents of leases is addressed to the case of all leases or  only of  some, namely,  leases executed after the  passing of  the Act. The question is as to the  ambit and  scope of the Act, and not as to the date  as from which the new law, as enacted by the Act,  is to  be taken  to have  been the law." These observations  were made  in dealing with the question as  to the  retrospective construction of s. 3  of the Conveyancing and Law of Property Act, 1892 (55  & 56  Vict. c.  13). In  substance s.  3 provided that in all leases containing a covenant, condition   or    agreement   against   assigning, underletting, or  parting with  the possession, or disposing of  the land  or property leased without licence or  consent, such  covenant, condition  or agreement shall,  unless  the  lease  contains  an expressed provision  to the contrary, be deemed to be subject to a proviso to the effect that no fine or sum  of money  in the nature of a fine shall be payable for  or in  respect  of  such  licence  or consent. It was held that the provisions of 709 the said  section applied  to all  leases  whether executed before  or after  the commencement of the Act;  and,  according  to  Buckley,  L.  J.,  this construction did not make the Act retrospective in operation; it  merely affected  in future existing rights under all leases whether executed before or after the  date of the Act. The position in regard to the  operation of  s. 5(1)  of the amending Act with which  we are  concerned appears  to us to be substantially similar.      A similar  question had  been raised  for the decision of  this Court  in Jivabhai Purshottam v. Chhagan Karson  in  regard  to  the  retrospective operation of  s. 34(2)(a) of the said amending Act XXXIII of  1952 and this Court has approved of the decision of  the full  Bench of  the  Bombay  High Court on  that point  in Durlabbhai  Fakirbhai  v. Jhaberbhai Bhikabhai.  It was held in Durlabbhai’s case that  the relevant  provision of the amending Act would  apply  to  all  proceedings  where  the period of  notice had  expired after  the amending Act had come into force and that the effect of the amending Act was no more than this that it imposed a new  and additional  limitation on  the right of the landlord to obtain possession from his tenant. It was  observed in  that judgment  that "a notice under s.  34(1) is  merely a  declaration  to  the tenant  of   the  intention  of  the  landlord  to terminate the  tenancy; but  it is  always open to the landlord  not  to  carry  out  his  intention. Therefore, for  the application of the restriction under sub-s.  2(A) on the right of the landlord to terminate the tenancy, the crucial date is not the date of  notice but the date on which the right to terminate matures;  that is  the date on which the

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tenancy stands terminated".      Mr.  Bengeri,   for  the   appellant,  fairly conceded  that  the  decision  of  this  Court  in Jivabhai’s case  was against his contention but he purported to rely 710 on another  decision of  this  Court  in  Sakharam alias  Bapusaheb   Narayan  Sanas   v.  Manikchand Motichand Shah.  In that case the Court was called upon to  consider the  question as  to whether the provisions of  s. 88  of Bombay  Act LXVII of 1948 were retrospective in operation or not, and it has been   held   that   the   said   provisions   are prospective. However,  we do  not think  that  the position with  regard to  the provisions contained in s. 88 can be said to be analogous or similar to the  position   with  regard   to   the   relevant provisions of the amending Act XXXIII of 1952 with which we  are concerned  in  the  present  appeal. Therefore, we  do not  think that  Mr. Bengeri can make any effective use of the said decision.      In  the   result  the  appeal  fails  and  is dismissed with costs.                                  Appeal dismissed.