Appeal Nos 282  283 of 1959
Appeals by special leave from the judgment and decree dated December 18 1956 of the Bombay High Court at Bombay in Second Appeals Nos 233 and 185 of 1955 respectively
G section Pathak O C Mathur J B Dadachanji and Ravinder Narain for the appellants
section G Patwardhan and K R Choudhri for the respondents
May 2
The Judgment of the Court was delivered by SINHA CJ
These two appeals by special leave directed against the judgment and decree of a single Judge of the Bombay High Court raise a common question of law and have therefore been heard together
This judgment will govern both the cases
The appellants were plaintiff landlords 710 and the respondents were tenants in possession of certain lands which were situate in the erstwhile State of Baroda before it became part of the State of Bombay by merger
The Bombay Tenancy and Agricultural Lands Act Bombay Act LXVII of 1948 which hereinafter will he referred to as the Act was extended to Baroda on August 1 1949
The suits out of which these appeals arise had been instituted by the appellants on the basis that the tenants respondents had become trespassers on the service of notice in March 1950 with effect from the beginning of the new agricultural section in May 1951
As the defendants did not comply with the terms of the notice and continued in possession of the lands to which they had been inducted the landlords instituted suits for possession in the Civil Court
The Trial Courts and the Court of Appeal decreed the suits for possession
But on second appeal by the tenants the learned Single Judge
who heard the second appeals allowed the appeals and dismissed the suits with costs throughout
It is not disputed that if the provisions of the Act were applicable to the tenancies in question the plaintiffs  suits for possession must fail because these were instituted in the Civil Courts which have Jurisdiction to try the suits only if the dependents were trespassers
It is equally clear that if the tenants could take advantage of the provisions of the Act any suit for possession against a tenant would lie in the Revenue Courts and not in the Civil Courts
But reliance was placed upon the notification issued by the Bombay Government on April 24 1951 to the following effect  In exercise of the powers conferred by clause d of sub section 1 of Section 88 of the Bombay Tenancy and Agricultural Lands Act 1948 Bombay LXVII of 1948 the Government of Bombay is pleased to specify the area 711 within the limits of the Municipal Borough of Baroda City and within the distance of two miles of the limits of the said Borough as being reserved for Urban non agricultural or industrial development
The learned Judge of the High Court in disagreement with the Courts below held that under provisions of section 3A1 of the Bombay Tenancy Act 1939 as amended a tenant would be deemed to be a protected tenant from August 1 1950  and that vested right could not be affected by the notification aforesaid issued by the Government under section 88 1d which had the effect of putting the lands in question out of the operation of the Act
In other words the learned Judge held the notification had no retrospective effect so as to take away the protection afforded to the tenants by a 3A aforesaid
The learned counsel for the appellants contended
in the first instance that the notification set out above under section 88 1d operated with effect from December 28 1948 when the Act came into force
In this connection reliance was placed upon the decision of this Court pronounced by me sitting in a Division Court in the case of Sakharam vs Manikchand Motichand Shah 1 in these words  The provisions of a 88 are entirely pro spective
They apply to lands of the descrip tion contained in cls
a to d of section 881 from the date on which the Act came into operation that is to say from December 28 1948
They are not intended in any sense to be of a confiscatory character
They do not show an intention to take away what had already accrued to tenants acquiring the status of protected tenants
712 It is necessary therefore to make some observations explaining the real position
In that case the question then in controversy had particular reference to section 881c which is the only provision quoted at page 2 of the blue print of the judgment
That case had nothing to do with el
d of section 881
In that case the lands in dispute lay within two miles of the limits of Poona Municipality
It is clear therefore that the inclusion of el
d of section 881 was a slip and certainly was not relevant for consideration in that case
The provisions of section 881 are as follows  Nothing in the foregoing provisions of this Act shall apply a to lands held on lease from the Govern ment a local authority or a co operative society b to lands held on lease for the benefit of an industrial or commercial undertaking c to any area within the limits of Greater Bombay and within the limits of the Municipal boroughs of Poona City and Suburban Ahmedabad Sholapur Surat and Hubli and within a distance of two miles of the limit of such boroughs or d to any area which the State Government may from time to time by notification in tile Official Gazette specify as being reserved for urban non agricultural or industrial development
It will be noticed that cls
a b and c of section 881 apply to things as they were at the date of the enactment whereas el
d only authorised the State Government to specify certainareas as being reserved for urban non agricultural or industrial development by notification in the Official Gazette 713 from time to time
Under cls
a to c of a 881 it is specifically provided that the Act from its inception did not apply to certain areas then identified whereas el
d has reference to the future
Hence the State Government could take out of the operation of the Act such areas as it would deem should come within the description of urban non agricultural or for industrial development
Clause d therefore would come into operation only upon such a notification being issued by the State Government
The portion of the judgment quoted above itself makes it clear that the provisions of section 88 were never intended to divest vested interests
To that extent the decision of this Court is really against the appellants
It is clear that the appellants cannot take advantage of what was a mere slip in so far as cl
d was added to the other clauses of s881 when that clause really and did not fall to be considered with reference to the controversy in that case
In other words this Court never intended in its judgment in Sakharam s casee1 to lay down that the provisions of cld of s88 1 aforesaid were only prospective and had no retrospective operation
Unlike cls
a b and c of s881 which this Court held to be clearly prospective those of cld would in the context have retrospective operation in the sense that it would apply to land which could be covered by the notification to be issued by the Government from time to time so as to take those lands out of the operation of the Act of 1948 granting the protec tion
So far as cls
a b and e are concerned the Act of 1948 would not apply at all to lands covered by them
But that would not take away the rights conferred by the earlier Act of 1939 which was being repealed by the Act of 1948
This is made clear by the provision in s892 which preserves existing rights under the repealed Act
Sakharam s case 1 was about the effect of cl
c on 1  714 the existing rights under the Act of 1939 and it was in that connection that this Court observed that s88 was prospective
But el
d is about the future and unless it has the limited retrospective effect indicated earlier it will be rendered completely nugatory
The intention of the legislature obviously was to take away all the benefits arising out of the Act of 1948 but not those arising from the Act of 1939 as soon as the notification was made under el
This is the only way to harmonise the other provisions of the 1948 Act conferring certain benefits on tenants with the provisions in el
d which is meant to foster urban and industrial development
The observations of the High Court to the contrary are therefore not correct
But the matter does not rest there
The notification of April 24 1951 was cancelled by the State Government by the following notification dated January 12 1953 Revenue Department Bombay Castle 12th January 1953
Bombay Tenancy and Agricultural Landis Act 1948
No936149  In exercise of the powers conferred by clause d of sub section 1 of Section 88 of the Bombay Tenancy and Agri cultural Lands Act 1948 Bombay LXVII of 1948
The Government of Bombay is pleased to cancel Government Notification in the Revenue Department No936149 dated the 24th25th April 1951
It would thus appear that when the matter was still pending in the Court of Appeal the judgment of the lower Appellate Court being dated September 27 1954 the notification cancelling the previous notification was issued
The suit had therefore to be decided on the basis that there was no notification in existence under s881d which could take the disputed lands out of the operation 715 of the Act
This matter was brought to the notice of the learned Assistant Judge who took the view that though on the merger of Baroda with Bombay in 1949 the defendants had the protection of the Act that protection had been taken away by the first notification  which was cancelled by the second
That Court was of the opinion that though the Appellate Court was entitled to take notice of the subsequent events the suit had to be determined as on the state of facts in existence on the date of the suit and not as they existed during the pendency of the appeal
In that view of the matter the learned Appellate Court held that the tenants defendants could not take advantage of the provisions of the Act and could not resist the suit for possession
In our opinion that was a mistaken view of the legal position
When the judgment of the lower Appellate Court was rendered the position in fact and law was that there was no notification under cld of s881 in operation so as to make the land in question immune from the benefits conferred by the Tenancy Law
In other words the tenents could claim the protection afforded by the law against eviction on the ground that the term of the lease had expired
But it was argued on behalf of the appellants that the subsequent notification cancelling the first one could not take away the rights which had accrued to them as a result of the first notification
In our opinion this argument is without any force
If the landlords had obtained an effective decree and had succeeded in ejecting the tenants as a result of that decree which may have become final between the parties that decree may not have been re opened and the execution taken thereunder may not have been recalled
But it was during the pendency of the suit at the appellate stage that the second notification was issued canceling the first
Hence the Court was bound to 716 apply the law as it was found on the date of its judgment
Hence there is no question of taking away any vested rights in the landlords
It does not appear that the second notification canceling the first notification had been brought to the notice of the learned Single Judge who heard and decided the second appeal in the High Court
At any rate there is no reference to the second notification
Be that as it may in our opinion the learned Judge came to the right conclusion in holding that the tenants could not be ejected though for wrong reasons
The appeals are accordingly dismissed but there would be no order as to costs in this Court in view of the fact that the respondents had not brought the second notification cancelling the first to the pointed attention of the High Court
Appeal dismissed


Summary:
Certain lands were situated in the erstwhile State of Baroda before it became a part of the State of Bombay by merger
The Bombay Tenancy and Agricultural Lands Act 1948 was extended to Baroda on August 1 1949
Suits were filed in the Civil Court by appellants landlord  against the respondents who were their tenants on the ground that the latter became trespassers with effect from the beginning of the new agricultural season in May 1951
Decrees for possession were passed by the Civil Court in favour of landlords and the same were confirmed by the first appellate court
However the High  Court accepted the appeals and dismissed the suits
It was held that under the provisions of section 3 A1 of the Bombay Tenancy Act 1939 as amended a tenant would be deemed to be a protected tenant from August 1 1950 and that vested right could not be affected by the notification dated April 24 1951 issued under section 89 1 d of the Act of 1948 by which the land in suit was excluded from the operation of the Act
The notification dated April 24 1931 had no retrospective effect and did not take away the protection 708 afforded to tenants by section 3A
The landlords came to this Court by special leave
It was conceded that the appellants  suits for possession would fail if the Act applied to the tenancies in question because in that case only revenue courts had jurisdiction to try them
However reliance was placed on notification dated April 241951 which excluded the land in suit from the operation of the Act
It was also contended on behalf of appellants that the subsequent notification cancelling the first one could not take away the rights which had accrued to them as a result of the first notification
Held that the notification dated April 24 1951 was cancelled by another notification dated January 12 1953
The second notification was issued when the matter was still pending in the first court of appeal
The suits had therefore to be decided on the basis that there was no notification in existence which would take the disputed lands out of the operation of the Act
The first appellate court was wrong in holding that the suits had to be decided on the basis of facts in existence on the date of filing of the suits
Held further that the second notification cancelling the first one did not take away any rights which had accrued to the landlords
If the landlords had obtained an effective decree and had succeeded in ejecting the tenants as a result of that decree which may have become final between the parties that decree may not have been re opened and the execution taken thereunder may not have been recalled
However it was during
the pendency of the suit at the ap pellate stage that the second notification was issued cancelling the first and the court was bound to apply the law as it was on the date of its judgment
Held also that clauses a b and c of section 881 applied to things as they were on the date of the commence ment of the Act of 1948 whereas clause d authorised the State Government to specify certain areas as being reserved for urban non agricultural or industrial development by notification in the Official Gazette from time to time
It was specifically provided in clauses a to c that the Act from its inception did not apply to certain areas then identified whereas clause d had reference to the future
The State Government could take out of the operation of the Act such areas as in its opinion should be reserved for urban nonagricultural or industrial development
Clause d would come into operation only upon such a notification being issued by the State Government
In Sukharam s case this Court never intended to lay down that the provisions of 709 clause d were only prospective and had no retrospective operation
Unlike clauses a to c which were clearly prospective clause d had retrospective operation in the sense that it would apply to land which would be covered by the notification to be issued by the Government from time to 2 time so as to take that land out of the operation of the Act of 1948 granting the protection
So far as clauses a to c were concerned the Act of 1948 would not apply at all to lands covered by them but that would not take away the rights conferred by the Act of 1939 which was repealed by the Act of 1948
Section 892 specifically preserved the existing rights under the repealed Act
Sukharam s case was about the effect of clause c on the existing rights under the Act of 1939 and it was in that connection that this Court observed that section 88 was prospective
However clause d is about the future and unless it has the limited retrospective effect indicated earlier it will be rendered completely nugatory
The intention of the legislature obviously was to take away all the benefits arising out of the Act of 1948 but not those arising from the Act of 1939 as soon as the notification was made under clause d
Sakharam vs Manikchand Metichand Shah   explained