Appeal No 616 of 1963
Appeal from the judgment and order dated September 21 1961 of the Bombay High Court Nagpur Bench at Nagpur in Special Civil Application No 2 of 1961
section G Patwardhan G L Sanghi J B Dadabhanji O C Mathur and Ravinder Narain for the appellant
A G Ratnaparkhi for the respondents
The Judgment of the Court was delivered by Shah J
The first respondent Tukaram was a protected lessee within the meaning of that expression in the Berar Regulation of Agricultural Leases Act 24 of 1951 hereinafter called the Berar Act in respect of certain land at Monza Karwand in the Vidarbha Region now in the State of Maharashtra
The appellant who is the owner of the land served a notice under section 91 of the Berar Act terminating the tenancy on the ground that he required the land for personal cultivation and submitted an application to the Revenue Officer under section 81g of the Berar Act for an order determining the tenancy
The Revenue Officer determined the tenancy by order dated July 2 1957 and made it effective from April 1 1958
In the meantime the Governor of the State of Bombay the Vidarbha region having been incorporated within the State of Bombay by the  issued Ordinance 4 of 1957 which was later replaced by Act 9 of 1958 known as the Bombay Vidarbha Region Agricultural Tenants Prosection from Eviction and Amendment of Tenancy Laws Act 1957
By section 3 of Act 9 of 1958 a ban was imposed against eviction of tenants and by section 4 all proceedings pending at the date of the commencement of the Act or which may be instituted during the period the Act remained in force for termination of any tenancy and for eviction of tenants were to be stayed on certain conditions set out in that section
Bombay Act 9 of 1958 and the Berar Act 24 of 1951 were repealed by the Bombay Tenancy and Agricultural Lands Vidarbha Region and Kutch Area Act 99 of 1958 which may hereinafter be referred to as the Tenancy Act
The appellant applied on May 15 1958 to the Naib Tahsildar Chikhli for an order for restoration of possession of the land
By order dated August 2 1960 the Naib Tahsildar ordered restoration of possession of the land to the appellant
597 In appeal the Sub Divisional Officer Buldana set aside the order of the Naib Tahsildar because in his view the application was not maintainable in that the appellant had failed to comply with the requirements of section 38 of the Tenancy Act
The Revenue Tribunal confirmed the order of the Sub Divisional Officer
The appellant then moved the High Court of Judicature at Bombay praying for a writ or direction quashing the order of the Sub Divisional Officer Buldana and of the Revenue Tribunal and for an order for restoration of possession of the land in pursuance of the order of Naib Tahsildar
The High Court set aside the order of the Naib Tahsildar the Sub Divisional Officer and the Revenue Tribunal and remanded the case to the Tahsildar for dealing with the application made by the appellant in the light of the directions given in the judgment
The appellant appeals to this Court with certificate under article 133 1c of the Constitution ranted by the High Court
The contention urged on behalf of the appellant is that the High Court should have restored the order passed by the Naib Tahsildar and should not have reopened the inquiry as directed in its judgment
It is necessary in the first instance to make a brief survey of the diverse statutory provisions in their relation to the progress of the dispute which have a bearing on the question which falls to be determined
The land was originally in the Vidharbha region which before the Bombay Reorganisation Act 1956 was a part of the State of Madhya Pradesh and the tenancy of the land was governed by the Berar Act
The first respondent was a protected lessee in respect of the land under section 3 of the Berar Act
Section 8 of the Act imposed restrictions
on termination of protected leases
It was provided that notwithstanding any agreement usage decree or order of a court of law the lease of any land held by a protected lessee shall not be terminated except under orders of a Revenue Officer made on any of the grounds contained therein
Even if the landlord desired to obtain possession of the land for bona fide personal cultivation he had to obtain an order in that behalf under section 81g
Section 9 enabled the landlord to terminate the lease of a protected lessee if he required the land for personal cultivation by giving notice of the prescribed duration and setting out the reasons for determination of the tenancy
A tenant served with the notice under sub section
1 could under sub section
3 apply to the Revenue Officer for a declaration that the notice shall have no effect or for permission to give up some other land of the same landholder in lieu of the land mentioned in the notice
Sub sections 4 5 6 7 and 8 dealt with the proce 598 dure and powers of the Revenue Officer
The landlord had after serving a notice under section 9 1 to obtain an order under section 8 1 g that possession was required by him bonafide for personal cultivation
Section 1 9 of the Berar Act prescribed the procedure for ejectment of a protected lessee
Sub section 1 provided  A landholder may apply to the Revenue Officer to eject a protected lessee against whom an order for the termination of the lease has been passed under sections 8 or 9 Sub section 2 enabled a tenant dispossessed of land otherwise than in accordance with the provisions of the Act to apply to the Revenue Officer for restoration of the possession
By sub section
3 it was provided  On receipt of an application under sub section 1 or 2 the Revenue Officer may after making such summary enquiry as he deems fit pass an order for restoring possession of the land to the landholder or the protected lessee as the case may be and may take such steps as may be necessary to give effect to his order The appellant had obtained from the Revenue Officer concerned an order tinder section 8  1 g determining the tenancy effective from April 1 1958
But before that date Ordinance 4 of 1957 was promulgated
This Ordinance was later replaced by Bombay Act 9 of 1958
By section 4 of Bombay Act 9 of 1958 all proceedings either pending at the date of commencement of the Act or which may be instituted during the period the Act remained in force for termination of the tenancies were Stayed
The Tenancy Act Bombay Act 99 of 1958 which was brought into force on December 30 1958 repealed Bombay Act 9 of 1958 and the Berar Act and made diverse provisions with regard to protection of tenants
By section 9 of the Tenancy Act it was provided that no tenancy of any land shall be terminated merely on the round that the period fixed for its duration whether by agreement or otherwise had expired and by section 19 it was provided that notwithstanding any agreement usage decree or order of a court of law the tenancy of any land held by a tenant shall not be terminated unless certain conditions specified therein were fulfilled
Section 36 of the Tenancy Act set up the procedure to be followed inter alia for obtaining possession from a tenant after determination of the tenancy and sub section
2 enacted that no landlord shall obtain possession of any an dwelling house 599 or site used for any allied pursuit held by a tenant except under an order of the Tahsildar
By sub section
3 it was provided that on receipt of an application under sub section
1 the Tahsildar shall after holding an inquiry pass such order thereon as he deems fit provided that where an application under sub section
2 is made by a landlord in pursuance of the right conferred on him under section 38 the Tahsildar may first decide as preliminary issue whether the conditions specified in cls
c and d of sub section
3 and cls
b c and d of sub section
4 of that section are satisfied
That takes us to section 38
By the first sub section as it was originally enacted it was provided   Notwithstanding anything contained in section 9 or 19 but subject to the provisions of sub sections 2 to 5 a landlord may after giving to the tenant one year s notice in writing at any time within two years from the commencement of this Act and making an application for possession under sub section 2 of section 36 terminate the tenancy of the land held by a tenant other than an occupancy tenant if he bona fide requires the land for cultivating it personally  Amendment of this sub section by Maharashtra Act 5 of 1961 is not material for the purpose of this appeal By sub section
3 it was provided that the right of a landlord to terminate a tenancy under sub section
1 shall be subject to the conditions contained in cls
a to e which need not for the purpose of this appeal be set out
Sub section 4 imposed on the right of the landlord certain restrictions in terminating the tenancy
A landlord may not terminate a tenancy a so as to reduce the area with the tenant below a certain limit or b contravene the provisions of the Bombay Prevention of Fragmentation Act or c where the tenant is a member of a co operative farming society or d where the tenant is a co operative farming society
Sub section 4A dealt with the special case of a member of armed forces ceasing to be a member of the serving force
Sub sections 5 6 and 7 made certain incidental provisions
By sub section
1 of section 132 amongst others the Berar Act and Bombay Act 9 of 1958 were repealed
By sub section
2 it was provided that nothing in sub section
1 shall save as expressly provided in the Act affect or be deemed to affect i any right title interest obligation or liability already acquired accrued before the commencement of the Act or ii any legal proceeding or remedy in respect of any such right title interest obligation or liability or anything done or suffered before the commencement of the Act and any such 7Sup65 10 600 proceedings shall be instituted continued and disposed of as if Act 99 of 1958 had not been passed
Sub section 3 provided  Notwithstanding anything contained in sub section 1 a all proceedings for the termination of the tenancy and ejectment of a tenant or for the recovery or restoration of the possession of the land under the provisions of the enactments so repealed pending on the date of the commencement of this Act before a Revenue Officer or in appeal or revision before any appellate or revising authority shall be deemed to have been instituted and pending before the corresponding authority under this Act and shall be disposed of in accordance with the provisions of this Act and b   
As from December 30 1958 the Berar Act ceased to be in operation
But by sub section
2 of section 132 any right title interest obligation or liability already acquired before the commencement of the Tenancy Act remained enforceable and any legal proceedings in respect of such right title interest obligation or liability could be instituted continued and disposed of as if Bombay Act 99 of 1958 had not been passed
But to this reservation an exception was made by sub section
3 that a proceeding for termination of tenancy and ejectment of the tenant or for recovery or restoration of possession of the land under any repealed provisions pending on the date of the commencement of Act 99 of 1958 before a Revenue Officer
was to be deemed to have been instituted and pending before the corresponding authority under the Tenancy Act and was to be disposed of in accordance with the provisions of that Act
Therefore when a proceeding was pending for termination of the tenancy and ejectment of a tenant the proceeding had to be disposed of in accordance with the provisions of the Tenancy Act notwithstanding anything contained in sub section
If the expression proceedings pending on the date of commencement of this Act in section 1323a be literally interpreted a somewhat anomalous situation may result
An application under section 19 of the Berar Act pursuant to an order under sections 8 and 9 instituted before the Tenancy Act was enacted will have to be disposed of in accordance with the provisions of the Tenancy Act but if no proceeding under section 19 be commenced the proceeding would not be governed in terms by sub section
3 and would by the operation of sub section
2 be instituted and continued as if the Tenancy Act was not passed
This problem engaged 601 the attention of the Bombay High Court in Jayantraj Kanakmal Zambad and Another vs Hari Dagdu and Others1 in which the facts were closely parallel to the facts in the present case
An order determining the lease under sections 8  9 of the Berar Act was obtained by the landlord before the Tenancy Act was enacted and at a time when Bombay Act 9 of 1958 was in force and proceedings were started by the landlord for obtaining possession from the tenant after the Tenancy Act was brought into force
The High Court held that the application by the landlord for possession against the tenant whose tenancy was determined by an order under the Berar Act has if instituted after the Tenancy Act was brought into force to be decided according to the provi sions of the latter Act by virtue of section 1323 and not under the Berar Act and that an order for termination of the lease under section 8 does not come to an end until an order is made under sub s3 of section 19
The Court therefore in that case avoided the anomaly arising from the words of sub section 3 by holding that an order made under section 8 or under section 9 of the Berar Act relating to termination of a lease does not terminate the proceeding and it comes to an end when an order under section 19 of the Act is made
The High Court in the judgment under appeal following the decision in Jayantroj Kanakmal Zambad s case1 held that the application filed by the appellant purporting to be under section 367 of the Tenancy Act must be regarded as an application under section 19 of the Berar Act and therefore be deemed to be a continuation of the application under sections 8  9 of the Berar Act
which was pending at the date when the Tenancy Act was brought into force and to such an application section 38 1 did not apply but by virtue of sub section
3 cl
a of section 132 the application had to be disposed of in accordance with the provisions of the Tenancy Act thereby making the provisions of section 383 and section 384 applicable thereto
Mr Patwardhan for the appellant has for the purpose of this appeal not sought to canvass the correctness of the view of the judgment in Jayantraj Kanakmal Zambad s case but has submitted that the High Court has not correctly interpreted section 1323 of the Tenancy Act
The appellant had acquired a right to obtain possession of the land on determination made by the Revenue Officer by order dated July 2 1957 and a legal proceeding in respect thereof could be instituted or continued by virtue of sub section
2 of section 132 as if the Tenancy Act had not been passed
The exception made 1 ILR FB 602 by sub section
3 of section 132 in respect of proceedings for termination of the tenancy and ejectment of a tenant which are pending on the date of the commencement of the Tenancy Act is limited in its content
Proceedings which are pending are to be deemed to have been instituted and pending before the corresponding authority under the Act and must be disposed of in accordance with the provisions of the Tenancy Act
By the use of the expression  shall be disposed of in accordance with the provisions of this Act apparently the Legislature intended to attract the procedural provisions of the Tenancy Act and not the conditions precedent to the institution of fresh proceedings
To hold otherwise would be to make a large inroad upon sub section
2 of section 132 which made the right title or interest already acquired by virtue of any previous order passed by competent authority unenforceable even though it was expressly declared enforceable as if the Tenancy Act had not been passed
The High Court was in our judgment right in holding that the application filed by the appellant for obtaining an order for possession against the first respondent must be treated as one under section 19 of the Berar Act and must be tried before the corresponding authority
Being a pending proceeding in respect of a right acquired before the Act it had to be continued and disposed of as if the Tenancy Act had not been passed sub section
2 subject to the reservation in respect of two matters relating to the competence of the officers to try the proceeding and to the procedure in respect of the trial
The appellant had obtained an order determining the tenancy of the first respondent
That order had to be enforced in the manner provided by section 191 ie the Revenue Officer had to make such summary inquiry as be deemed fit and had to pass an order for restoring possession of the land to the landholder and to take such steps as may be necessary to give effect to his order
Since the repeal of the Berar Act the proceeding pending before the Revenue Officer would stand transferred to the Tahsildar
The Tahsildar was bound to give effect to the rights already acquired before the Tenancy Act was enacted and in giving effect to those rights he had to follow the procedure prescribed by the Tenancy Act
Between sections 193 of the Berar Act and 363 of the Tenancy Act in the matter of procedure there does not appear to us any substantial difference
Under the Berar Act a summary inquiry has to be made by the Revenue Officer whereas under the Tenancy Act the Tahsildar must hold an inquiry and pass such order consistently with the rights of the parties as he deems fit
But to the trial of the application for enforcement of the right acquired under the 603 Berar Act section 38 of the Tenancy Act could not be attracted
Section 38 authorises the landlord to obtain possession of the land from a tenant if the landlord bona fide required the land for cultivating it personally
In order to effectuate that right the landlord must give a notice of one year s duration in writing and make an application for possession under section 36 within the prescribed period
The section is in terms prospective and does not purport to affect rights acquired before the date on which the Tenancy Act was brought into force
The High Court was therefore also right in observing The notice referred to in sub section
1 of section 38 could not obviously have been given in respect of proceedings which were pending or which are deemed to have been pending on the date of the commencement of this Act
It does not also appear that it was the intention of the Legislature that such proceedings should be kept pending for a further period until a fresh notice as required by sub section
1 of section 38 had been given
For the same reasons the proviso to sub section
2 of section 36 will not apply in such cases
 But we are unable to agree with the High Court that sub sections
3 and 4 of section 38 apply to an application filed or deemed to be filed under section 19 of the Berar Act
The High Court appears to be of the view that by the use of the expression shall be disposed of in accordance with the provisions of this Act it was intended that all the provisions of the Act which would apply to an application made under sub section
2 of section 36 would also apply to application which are deemed to have been made under this section and therefore it followed that sub sections
3 and 4 of section 38 applied to all applications for obtaining possession of the land for personal cultivation made under section 19 of the Berar Act which were pending or which were deemed to have been pending on the date of the commencement of the Tenancy Act
It may be noticed that sub section
3 of section 38 in terms makes the right of the landlord to terminate a tenancy under sub section
1 subject to conditions mentioned therein
If there be no determination of the tenancy by notice in writing under sub section 1 sub section
3 could have no application
The words of sub section
4 are undoubtedly general
But the setting in which the sub section occurs clearly indicates that it is intended to apply to tenancies determined under section 381
Large protection which was granted by section 19 of the Tenancy Act 604 has been withdrawn from tenants who may be regarded as con tumacious
By section 381 a landlord desiring to cultivate the land personally is given the right to terminate the tenancy but the right is made subject to the conditions prescribed in sub section
3 and the legislature has by sub section
4 a sought to make an equitable adjustments between the claims of the landlord and the tenant
If sub section
4 be read as imposing a restriction on the determination of all tenancies it would imply grant of projection to a contumacious tenant as well
The Legislature could not have intended that in making equitable adjustments between the rights of landlords and tenants contumacious tenants who have disentitled themselves otherwise to the protection of section 19 should still be benefited
Again if sub section
4 be read as applying to determination of every agricultural tenancy its proper place would have been in sub section
3 of section 36 and the proviso thereto would riot have been drafted in the manner it is found in the Act
By cls
c  d of sub section
4 tenants who are cooperative societies or members of cooperative societies are not liable to be evicted and if the opening words of sub section
4 are intended to be read as applicable to termination of all tenancies whatever the reason we would have expected some indication to that effect in section 19 of the tenancy Act
Again inclusion of sub sections 2 to 5 in the non obstante clause in sub section
1 supports the view that the expression In no case a tenancy shall be terminated being
part of an integrated scheme means that a tenancy determined or reasons and in the manner set out in sub section
1 of section 38 must be determined consistently with sub section
4 but where the determination of the tenancy is not under sub section
1 of section 38 sub section
4 has no application
The application made by the appellant is undoubtedly one for ejectment of the tenant and for recovery of possession
The Naib Tahsildar was competent to entertain the application
It is true that the application was orginally filed under sections 8  9 of the Berar Act on the ground that the landlord required the land bona fide for his personal cultivation but once an order was passed under section 8 1 g by the Revenue Officer the only inquiry contemplated to be made on an application under section 19 was a summary inquiry before an order for possession was made in favour of the landlord
At that stage there was no scope for the application of the conditions and restrictions prescribed by sub sections
3  4 of section 38 for in our view those provisions do not apply to proceedings to enforce rights acquired when the Berar Act was in operation
605 We therefore modify the order passed by the High Court and direct that the orders passed by the Tahsildar and the Revenue Tribunal will be set aside and the matter will be remanded to the Tahsildar for dealing with the application on the footing that it is an application to enforce the right conferred by sections 8  9 of the Berar Regulation of Agricultural Leases Act 1951 and the provisions of section 38 of the Bombay Act 99 of 1958 have no application thereto
There will be no order as to costs in this appeal
Order modified and case remanded


Summary:
The land in dispute as in the Vidarbha region originally forming part of the State of Madhya Pradesh to which the Berar Regulation of Agricultural Leases Act 1951 Berar Act applied
Under the Act a landlord requiring land for personal cultivation could terminate a lease by issuing a notice to the lessee under section 9 and obtaining an order in that behalf from the Revenue Officer under section 81g and then applying to the Revenue Officer for ejectment of the lessee
On the landlord s application the Officer after making such summary enquiry as he deems fit may pass an order restoring possession to the landlord
After the merger of the Vidarbha region with the State of Bombay the Bombay Tenancy and Agricultural Lands Vidarbha region and Kutch Area Act Tenancy Act was passed on December 30 1958 repealing the Berar Act
Section 36 of the Tenancy Act set up a procedure for obtaining possession from a tenant and provided that the landlord may apply to the Tahsildar who after holding an enquiry may pass such order as he deems fit
Section 381 authorised the landlord to obtain possession of land from a tenant if the landlord bona fide required the land for personal cultivation and in order to efecetuate that right the landlord must give a notice of one year s duration in writing and make an application for possession under section 36 within the prescribed period
By section 383 it was provided that the right of a landlord to terminate a tenancy under section 381 shall be subject to the conditions contained in cls
a to e of sub section
3 and sub section 4 imposed certain restrictions on the right of the landlord to terminate a tenancy
By section 1322 any right already acquired before 30th December 1958 remained enforceable
and any legal proceeding in respect of such right could be instituted continued and disposed of as if the Tenancy Act had not been passed
But to this reservation an exception was made by section 1323 that a proceeding pending on 30th December 1958 was to be deemed to have been instituted and pending before the corresponding authority tinder the Tenancy Act and was to be disposed of in accordance with its provisions
The appellant had obtained from the Revenue Officer concerned an order determining the tenancy of the respondent under section 81g of the Berar Act
effective from 1st April 1958
On 15th May 1959 after the Tenancy Act had come into force the appellant applied to the Tahsildar under section 36 for an order for restoration of possession
The Tahsildar ordered restoration of possession
but on appeal the Sub Divisional Officer set aside the order on the ground that the appellant failed to comply with the requirements of section 38 of the Tenancy Act
and the Revenue Tribunal confirmed the order of the Sub Divisional Officer
In a petition for the issue of a writ the High Court set aside all the orders of the subordinate tribunals and remanded the case to the Tahsildar for dealing with the application in the light of directions given in its judgment
The High Court 595 held that though section 361 of the Tenancy Act did not apply to the appellant s application by vitrue of section 1323 the provision of section 383 and 4 were applicable to it
In his appeal to the Supreme Court the appellant contended that the High Court had not correctly interpreted section 1323 and that it should have restored the order passed by the Tahsildar Direct should not have reopened the enquiry
HELD  The Tahsildar was competent to entertain the appellant s application for recovery of possession
Once an order was passed under section 81g of the Berar Act by the Revenue Officer the only enquiry contemplated to be made on an application under section 19 of the Act was a summary enquiry before an order for possession was made in favour of the landlord
At that stage there was no scope for the application of the conditions and restrictions prescribed by section 383 and 4 for those provisions do not apply to proceedings to enforce rights acquired when the Berar Act was in operation
Therefore the Tahsildar should deal with the application on the footing that it was an application to enforce right conferred by sections 8 and of the Berar Act and that the provisions of section 38 of the Tenancy Act have no application thereto
604 F H 605 A B The appellant had acquired a right to obtain possession of the land on the determination made by the Revenue Officer under section 81g of the Berar Act
An order made under section 8 or section 9 of the Berar Act relating to termination of a lease does not terminate the proceeding it comes to an end only when an order under section 19 of the Act is made
Therefore the application filed by the appellant purporting to be under section 362 of the Tenancy Act must be regarded its an application under section 19 of the Berar Act and deemed to be a Continuation of the application under sections 8 and 9 of the Berar Act and pending at the date when the Tenancy Act was brought into force
Since the repeal of the Berar Act the proceeding would stand transferred to the Tahsildar who was bound to give effect to the rights already acquired before the Tenancy Act was enacted under section 1322 and in doing so under section 1323 he bad to follow the procedure prescribed by the Tenancy Act But the exception made in section 1323 is limited in its content
By the use of the expression shall be disposed of in accordance with the provisions of this Act 
the legislature intended to attract the procedural provisions of the Tenancy Act and not the conditions precedent to the institution of fresh proceedings
Therefore a pending proceeding in respect of a right acquired before the Act had to be continued and disposed of as if the Tenancy Act had not been passed subject to the reservation in respect of two matters relating to the competence of the officers to try the proceedings and to the procedure in respect of the trial
Between section 193 of the Berar Act and section 363 of the Tenancy Act in the matter of procedure there is no substantial difference
But to the trial of the application for enforcement of the right acquired trader the Berar Act section 38 of the Tenancy Act could not be attracted
Section 381 is in terms prospective and does not purport to affect rights acquired before the Tenancy Act was brought into force
Section 383 and 4 do not apply to an application filed or deemed to be filed under section 19 of the Berar Act
Section 383 in term makes the right of the landlord to terminate a tenancy under sub section
subject to conditions mentioned therein
The words of section 384
are undoubtedly general but the setting in which the sub section occurs indicating that it is also intended to apply to tenancies determined under section 381
Therefore where the determination of the tenancy is not under 381 sub sections
3 and 4 have no application
D E 60 A B F G H 603 B E F H 596 Jayantraj Kanakanial Zambad vs Hari Dagdu ILR  approved