ivil Appeal No 1947 N of 1972
From the Judgment and order dated 4101971 of the Gujarat High Court in SA No 313 of 1963
VM Tarkunde and MV Goswami for the Appellants
section Seth and section Sukumaran for the Respondents
The Judgment of the Court was delivered by G RAY J
This appeal on special leave is against the judgment and decree made on October 4 1971 in SA No 31363 by the High Court of Gujarat whereby it was held that in view of the retrospective effect given by virtue of the notification issued under Sec
881b of the Bombay Tenancy and Agricultural Lands Act 1948 the provisions of the said Tenancy Act was not applicable in respect of lands within the 796 municipal limits of the city of Baroda and as such the civil court was competent to determine the reasonable rent in respect of the lands in question taken settlement of by the defendent on the basis of the Kabuliyat executed on 2nd June 1956 for a period of three years from 1956 to 1958
The admitted facts of this case are that the defendant Kashiram Jaiswal since deceased took possession of the lands measuring 20 acres 27 gunthas in section No 707 of Baroda Kasba situated behind Kirti Mandir in the city of Baroda from the respondent by executing a Kabuliyat dated June 2 1956 for a period of three years from 1956 to 1958 at an annual rent of Rs2225
The said Kabuliyat was however not registered
The defendant paid in total a sum of Rs97031 in respect of arrears of rent of the said years 1956 57 and 1957 58
The plaintiff who is a trustee of the temple Kirti Mandir instituted a regular suit No 14359 in the court of 3rd Joint Civil Judge Baroda for recovery of arrears of rent at Rs347969 setting off the amount paid already
The defence was that the suit was not entertainable in the civil court in as much as even though the Tenancy Act ceased to apply on the issue of the notification under Sec
881b of the said Act in respect of lands within the municipal limits of city of Baroda yet the rights of the tenant in respect of the suit land which acrued before the said notification subsisted or in other words the same was not affected by the said notification
It has been further contended that since the Mamlatdar has determined the fair rent in accordance with the provisions of section 8 and 9 of the said Act at Rs375 and 5 annas lawfully payable in respect of the said land the plaintiff could not recover any amount in excess of the said sum
The trial court held that the Tenancy Act was applicable to this case and since the Mamlatdar has already deter mined the reasonable rent in respect of the lands in question the civil court was not competent to determine the same once again
The suit was accordingly dismissed
On appeal the District Judge Baroda dismissed the appeal and affirmed the judgment and decree of the court below
Against this judgment and decree SA No 31363 was preferred in the High Court of Gujarat
The High Court on considering the decision of this Hon ble Court in SN Kamble s case  held that in view of the notification issued under Sec
881b of the said Act the provisions of the Tenancy Act will not apply retrospectively in view of the notification issued under Sub Section 1 b of Sec 88 of the Act XIII of 1956 issued on May 21 1958
The High Court therefore framed the following issue At what rate is the plaintiff entitled to claim rent in respect 797 of the land in occupation of deceased defendant Surajmal Kashiram for the two years 1956 57 and 1957 58 having regard to the rent that may be considered reasonable in the light of the evidence that may be adduced before the court  And sent the records to the trial court for determination of the said issue on allowing the parties to adduce evidence
The trial court was also directed to return the evidence together with its findings thereon to the High Court of Gujarat
The trial court after considering the evidence adduced by both the parties held that the reasonable rent of the land in question was Rs2225 per annum
With these findings of the trial court the records were returned to the High Court of Gujarat
On 4101971 the High Court of Gujarat allowed the appeal setting aside the judgment and decree passed by the courts below decreeing the suit for a sum of Rs347969 paisa as rent to be recovered from the legal heirs of the defendants respondents
The sole question that poses itself for consideration before this court is whether the issuance of notification under sub Section 1b of Sec 88 of Act No XIII of 1956 on May 21 1958 making the provisions of the Bombay Tenancy and Agricultural Lands Act 1948 inapplicable to the lands reserved for non agricultural or industrial development in the municipal limits of the city of Baroda retrospectively
Or in other words whether the said Act will not at all apply to lands within the Baroda Municipality which have been reserved for non agricultural or industrial development by the aforesaid notification dated May 21 1958 published in the official gazette
If the Act does not at all apply then the determination of rent of the suit land as made by the Mamlatdar under the provisions of Sections 8 and 9 of the said Act will be of no avail and the civil court will be competent to determine the rent payable by the defendant tenant in respect of these lands in question to the respondent on the basis of the Kabuliyat by the defendant appellant or in case the Kabuliyat is held to be inadmissible in evidence because of non registration the reasonable rent payable in respect of the said land is to be determined
To determine this question it is pertinent to refer to the provision of Sec 88 1b which is quoted herein below Sec
881 Save as otherwise provided in sub section 2 nothing in the foregoing provisions of this Act shall apply 798 b to any area which the State Government may from time to time by notification in the official Gazette specify as being reserved for non agricultural or industrial development 
On a plain reading of the provisions of Sec
881 it is crystal clear that the issuance of the notification under Sec
881b on May 21 1958 reserving the land within the municipal limits of the city of Baroda for non agricultural or industrial development the provisions of the Tenancy Act were made inapplicable retrospectively subject to the exception provided in sub section 2 of Sec 88
Another section very relevant to be considered in this connection is Sec 89 of the said Act
Sub Section 2b of the said section further provides that Save as expressely provided in this Act nothing in this Act or any repeal effected thereby shall be deemed to affect any right title interest obligation or liability already acquired accrued or incurred before the commencement of this Act
It was tried to be contended before us on behalf of the appellant that in view of this provision the right of the defendant tenant to pay rent as determined by the Mamlatdar under the provisions of Sections 8 and 9 of the Bombay Tenancy and Agricultural Lands Act 1948 will not be affected by the retrospective effect given by Sec 88 of the said Act
It has been further urged that the reasonable rent in respect of the lands in question has already been determined by the Mamlatdar and the Civil Court is not competent to decide reasonable rent once again and the determination made by the Civil Court is ineffective
It was urged on behalf of the respondent that in view of the notification issued under Sec
881b of the Bombay Tenancy and Agricultural Lands Act 1948 the provisions of the Tenancy Act are not applicable to lands within municipal limits of Baroda city at all as retrospective effect was given to the said provisions and as such the rights that had accrued to a tenant in respect of a land within municipality will automatically go
As already held before that on a plain reading of the provisions of Sec 88 of the Act it is quite clear and apparent that the provisions of the said Tenancy Act are not applicable to any area notified by the State Government as being reserved for non agricultural or industrial development
In the instant case there has been a notification by the Government on May 21 1958 under Sub section 1b of Sec 88 of the Act No XIII of 1956 declaring that the lands within municipal 799 limits of the City of Baroda are reserved for non agricultural or industrial development
The consequence that falls is that the provisions of Bombay Tenancy and Agricultural Lands Act 1948 are not applicable to the land in question as the same is situated within municipal limits of the city of Baroda and as a result these rights acquired under the said Act automatically becomes non est
It has been tried to be urged by referring to the provisions of the Sec
892b of the said Act that right title and interest obligation or liability already acquired accrued or incurred before the commencement of this Act will not be affected by the retrospective effect given to the provisions of Sec 88 of the said Act
This argument in our considerable opinion is totally devoid of any merit
In view of specific provision in the said sub Section 2b of Sec 89 to the affect shall save as expressely provided in this Act affect or deemed to be affected
It follows from this provision that in the absence of an express provision in the Act any right title interest obligation or liability already acquired or accrued before the commencement of this Act shall not be affected by the Act of 1948
Section 881b of the said Act has specifically provided that on the issue of a notification in the official Gazette specifying areas reserved for non agricultural or industrial development the provisions of the Tenancy Act 1948 shall not apply
Therefore reading these two provisions together the only reasonable conclusion that follows is that the provisions of the Act will not be applicable to the lands notified by the Government in the official Gazette as being reserved for nonagricultural or industrial development
This has been expressely provided in Sec
881b of the Act
The argument that the retrospec tive affect given to the provisions of Sec
881b will not affect the rights or interest acquired or accrued under the said Act prior to the commencement of the 1948 Act is of no substance and as such it cannot be sustained
It may be pertinent to refer to the provisions of Sec
89A of the Act wherein it has been expressly provided that notwithstanding repeal of the 1939 Act the provisions of Sections 3 3A and 4 of the Bombay Tenancy Act 1939 as set out in Schedule I to this Act shall always be deemed to be extended to and to be in force in those areas on the dates on which this Act was extended to and brought into force
Therefore express provisions has been made for the preservation of the rights accrued under Sections 3 3A and 4 of the Bombay Tenancy Act 1939 inspite of the repeal of 1939 Act by the Bombay Act No LXVII of 1948 that is the Bombay Tenancy and Agricultural Lands Act 1948
This very question about the effect of the provisions of Sec
881b and the provisions of Sec
892b of the Act fell for consideration in the case of Sakharam  Bapusaheb Narayan Sanas and Anr
vs Manikchand Motichand Shah and Anr
 In that case the only question arose for determination was whether the 800 defendant appellants were protected tenants within the meaning of the Bombay Tenancy Act 1939 Bombay Act 29 of 1939
It was held that the provision of Sec 88 of the Bombay Tenancy and Agricultural Lands Act 1948 were entirely prospective and it would apply to such lands as prescribed in clauses a and d of Sec
881 from the date on which the Act came into operation ie December 28 1948 and are not of a confiscatory nature so as to take away from the tanant the status of a protected tanant already accrued to him
It has been further observed that Sec
892b of the Act clearly intents to conserve such right as were acquired or accrued before its commencement and that any legal proceeding in respect of such rights was to be disposed of in terms of the Act of 1939
It is to be noticed in this case that the question as of effect of a notification published in the official Gazette by the Government under Sec
881b of the said Tenancy Act of 1948 did not arise for consideration
Furthermore as we have said already hereinbefore that Sec
89A read with Schedule I to the said Act clearly preserves the rights acquired or accrued under the provisions of Sections 3 3A and 4 of the Bombay Tenancy Act 1939
This case therefore strictly speaking does not deal with the question that specifically has arisen in the instant case
This Court in the case of Mohanlal Chunilal Kothari vs Tribhovan Haribhai Tamboli  has held that a notification issued under clause d of Sub section 1 of Sec 88 of the Bombay Tenancy and Agricultural Lands Act 1948 declaring lands within municipal area as reserved for urban non agricultural or industrial development were clearly retrospective in operation and the intention of the legislature obviously was to take away all the benefits arising out of the Act of 1948 and not those arising out of the Act of 1939 that is under Sections 3 3A and 4 of the said Act as soon as the notification was made under clause d
In other words it has been observed specifically that the rights acquired under the Tenancy Act 1939 except rights acquired under Sections 3 3A and 4 will be no longer in existence after the issuance of notification under Sec
881b of the Act of 1948
In a later decision in Sidram Narsappa Kamble vs Sholapur Borough Municipality  Anr  this question came to be considered by a larger bench of this Court and it was held that the plain effect of the provisions contained in Sections 31 88 and 892b is that in view of the express provision contained in Sec
881a the appellant could not claim the benefit of Sec 31 nor could it be said that 801 his interest as a protected tenant was saved by section 892b of the said Act
It was further observed that Sections 3 3A and 4 of 1939 Act were continued in a modified form in Schedule I of the 1948 Act only for the purpose of Sec 31 of the 1948 Act
It is obvious that the consequence follows that protected tenants are only those tenants specified in those three sections aforesaid and that no new protected tenant could come into existence under the 1948 Act
The intention from the express words of Sec 881a is also the same
It has been observed that the intention from the express words of Sec
881 is that there will be no protected tenant after the 1948 Act came into force in regard to lands held on lease from a local authority in view of the express provision contained in section 881a
We have already held hereinbefore that the effect of the notification dated 21st May 1958 issued under Section 881b of the Tenancy Act of 1948 specifying the lands within the municipal limits of Baroda city within the municipal limits of Baroda city reserved for nonagricultural and industrial development is that all rights title obligation etc
accrued or acquired under the Said Act ceased to exist as the said section expressly states that the provisions of the Tenancy Act of 1948 will not apply to such lands
Section 881 is given retrospective effect
The provision of Section 892b are not applicable to protect the right title interest already accrued before the commencement of this Act except as provided in Section 89A owing to express provisions made in section 88 of the said Act
In view of our findings referred to hereinbefore the irresistable conclusion follows that the determination by Mamlatdar under Ss 8 and 9 of the Tenancy Act automatically becomes ineffective and nonest by virtue of section 881b of the said Act and the notification made thereunder
The Civil Court is legally competent to determine the reasonable rent payable by the defendent tenant and this determination has been duly made by the Civil Court and same has been affirmed by the High Court of Gujarat
There is therefore no merit in this appeal which is dismissed without any order as to costs
PSS Appeal dismissed


Summary:
When Baroda became Borough Municipality on 1st May 1950 the provisions of the Bombay Tenancy Act 1939 were applicable to the lands situated within its municipal limits
That Act was repealed by the Bombay Tenancy and Agricultural Lands Act 1948 which was made applicable to the Baroda Municipality with effect from August 1 1956 by the Bombay Tenancy and Agricultural Lands Amendment Act 1955 Bombay Act No XIII of 1956
Section 881b of the 1948 Act as substituted by section 48 of the Act of 1956 provided that nothing in the Act shall apply to any area which the state Government may by notification in the official gazette specify as being reserved for non agricultural or industrial development
Section 892b further laid down that nothing in that Act or any repeal effected thereby shall affect or be deemed to affect any right title interest obligation or liability already acquired accrued or incurred before the commencement of this Act
Section 89A recited that notwithstanding the repeal of the 1939 Act the provisions of ss3 3A and 4 or that Act as set out in Schedule I to the 1948 Act shall always be deemed to be extended to and to be in force in those areas on the dates on which the 1948 Act was extended to and brought into force
The Government by a notification dated May 21 1958 issued under section 881b of the 1948 Act reserved the lands within the municipal limits of the city of Baroda for non agricultural and industrial development
Appellant s husband defendant took possession of certain lands situated in the city of Baroda from the respondent trustee of a temple for a period of three years from 1956 to 1958 at an annual rent of 794 Rs2225 by executing a Kabuliyat dated June 2 1956 which was not registered
As he fell into arrears of rent for the said years the respondent plaintiff filed a suit for its recovery
The defence was that the suit was not maintainable in a civil court inasmuch as even though the Tenancy Act ceased to apply on the issue of the notification under section 881b in respect of lands within the municipal limits of the city of Baroda yet the rights of the tenant in respect of the suit land which had accrued before the said notification subsisted
The trial court held that the Tenancy Act was applicable to the case and since the Mamlatdar had already determined the reasonable rent in respect of the lands in question the civil court was not competent to determine the same once again
The appeal preferred was dismissed by the District Judge
On further appeal the High Court held that in view of the notification issued under section 881b of the said Act the provisions of the Tenancy Act will not apply retrospectively and directed the trial court to redetermine the issue
On receipt of the findings of the trial court the High Court allowed the second appeal setting aside the judgment and decree passed by the courts below
In the Appeal by special Leave to this Court it was contended for the appellant that in view of the provisions of section 892b the right of the defendant to pay rent as determined by the Mamlatdar under sections 8 and 9 of the 1948 Act was not affected by the retrospective effect given to the provisions of section 88 of the Act
Dismissing the Appeal the Court  HELD The specific provision in section 892b of the Bombay Tenancy and Agricultural Lands Act 1948 to the effect that nothing in the Act or any repeal affected thereby shall save as expressly provided therein affect or be deemed to affect any right title interest ob ligation or liability already acquired accrued or incurred before the commencement of the Act read with the specific provision of section 881b that on issue of a notification specifying areas reserved for non agricultural or industrial development the provisions of the Act shall not apply to the lands so notified make it apparent that the Act will not be applicable to the lands notified
799 B D E The issuance of the notification dated 21st May 1958 under section 881b of the Tenancy Act 1948 specifying the lands within the municipal limits of Baroda city reserved for non agricultural and industrial development in the instant case made the provisions of the 795 Act inapplicable retrospectively subject to the exception provided in sub section
2 of section 88 and with it all rights title obligation etc
accrued or acquired under the said Act ceased to exist
The provisions of section 892b are therefore not applicable to protect such right title or interest except as provided in section 89A owing to express provision made in section 88 of the Act
801 C E Protected tenants are only those tenants specified in sections 3 3A and 4 of the 1939 Act and no new protected tenant could come into existence under the 1948 Act
801 B C In the instant case therefore the civil court was legally competent to determine the reasonable rent payable by the defendent tenant
The determination by Mamlatdar under sections 8 and 9 of the Tenancy Act 1948 automatically becomes ineffective and non est by virtue of section 881b of the said Act and the notification made there under
801E F Mohanlal Chunilal Kothari vs Tribhovan Haribhai Tamboli  and Sidram Narsappa Kamble vs Sholapur Borough Municipality and Anr   referred to
Sakharam  Bapusaheb Narayan Sanas and Anr
vs Manikchand Motichand Shah and Anr   distinguished