Appeal No 153 of 1958
Appeal by special leave from the judgment and order dated January 9 1956 of the Bombay High Court in Special Civil Application No 2258 of 1955 J B Dadachanji section N Andley and Rameshwar Nath for the appellant
section P Sinha M I Khowaja and A C Dave for respondent No 1 1961
March 27
The Judgment of the Court was delivered by WANCHOO J
This appeal by special leave against the judgment of the Bombay High Court raises a question of the interpretation of a 34 2 A of the 569 Bombay Tenancy and Agricultural Lands Act No LXVII of 1948 hereinafter called the Act
The brief facts necessary for present purposes are these The appellant is the landlord and the respondent a protected tenant
The appellant gave notice of termination of tenancy to the respondent on December 31 1951 under section 341 of the Act
The notice was for one year as required by section 341 and the tenancy was to terminate from after March 31 1953
The landlord therefore made an application on April 7 1953 under section 292 of the Act for obtaining possession of the land to the Mamlatdar
In the meantime an amendment
was made to the Act by the insertion of sub section
2 A to section 34 by the Amending Act No XXXIII of 1952 which came into force on January 12 1953
By this amendment certain further restrictions were placed on the right of the landlord to terminate the tenancy of a protected tenant
The relevant part of sub section
2 A is in these terms If the landlord bona fide requires the land for any of the purposes specified in sub section 1 then his right to terminate the tenancy shall be subject to the following conditions namely 1 The land held by the protected tenant on lease stands in the record of rights in the name of the landlord on the first day of January 1952 as the superior holder
2 If the land held by the landlord is in area equal to the agricultural holding or less the landlord shall be entitled to terminate the tenancy of the protected tenant in respect of the entire area of such land
3 If the land held by the landlord is more than the agricultural holding in area the right of the landlord to terminate the tenancy of the protected tenant shall be limited to an area which shall after such termination leave with the tenant half the area of the land leased
4 The tenancy in respect of the land left with the protected tenant after termination under this section shall not at any time be liable to be terminated on the ground that the landlord bona fide 72 570 requires the said land for any of the purposes specified in sub section 1
Explanation
The agricultural holding shall mean sixteen acres of jirayat land or four acres of irrigated or paddy or rice land or lands greater or less in area than the aforesaid areas in the same proportion The restriction contained in sub section
2 A is in addition to the restrictions in sub section
2 which lays down that the landlord shall have no right to terminate the tenancy of a protected tenant if the landlord at the date on which the notice is given or at the date on which the notice expires has been cultivating personally other land fifty acres or more in area provided that if the land which is being cultivated personally is less than fifty acres the right of the landlord to terminate the tenancy of the protected tenant and to take
possession of the land leased to him shall be limited to such area as will be sufficient to make the area of the land which he has been cultivating to the extent of fifty acres
When therefore the landlord applied for possession of the land under section 292 of the Act the tenant objected and claimed the benefit of the third clause of subs
2 A and the question that arose for determination was whether the tenant was entitled to the protection contained in this clause The Mamlatdar to whom the application under section 29 2 was made allowed the application
The respondent thereupon appealed but his appeal was dismissed
He then went in revision to the Revenue Tribunal which was rejected
The tenant then filed an application under article 227 of the Constitution before the High Court and contended that the provision of section 342 A should have been taken into consideration by the Revenue Courts in deciding the application of the landlord under section 292 and that the revenue courts were wrong in the view they had taken that that sub section did not apply to the present proceedings
The High Court allowed the application of the tenant relying on its previous Full Bench decision in Durlabbhai Fakirbhai vs Jhaverbhai Bhikabhai 1 where it was held that as the tenancy had 1 571 terminated and the right to obtain possession had accrued to the landlord after the coming into force of the Amending Act the Amending Act applied and therefore the landlord if he fails to satisfy the further conditions under the Amending Act would not be entitled to possession
It further held that 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 what tile Amending
Act did was that it imposed a new limitation on the tight of the landlord to obtain possession and if the landlord failed to satisfy the court at the date when the tenancy expired and he became entitled to possession that he was so entitled in law as it then stood he could not claim relief from the court
It is the correctness of this view which is being challenged before us in the present appeal
The contention on behalf of the appellant is that section 341 gives a right to the landlord to terminate the tenancy by one year s notice which was given in this case in December 1951 before the Amending Act came into force
Therefore the notice having been given before the Amending Act came into force the further limitation put on the right of the landlord by subs
2 A introduced by the Amending Act would not apply to notices given before the Amending Act came into force
The appellant further contends that the right to terminate a tenancy having arisen when the notice was given the law to be applied in case of notices given before the Amending Act came into force would be the law existing on the date of notice
We are of opinion that there is no force in this contention
If we look at the words of sub section
2 A it provider certain conditions subject to which the right to terminate the tenancy shall be exercised
It may be that section 341 requires one year s notice in order to exercise this right to terminate but flubs
2 A imposer restrictions on the landlord s right to terminate the tenancy and does not speak of any notice at all
Therefore when we have to look to the application of sub section
2 A it is the date on which 572 the tenancy terminates which determines its application
The restriction by sub section
2 A is on the right to terminate the tenancy and this restriction would come into play on the day on which the landlord s right to terminate the tenancy is perfected namely the day on which the tenancy actually terminates in consequence of the notice given to terminate it
A notice under section 341 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 section
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 tenancy stands terminated
It is on  hat date that the court has to enforce the right of the landlord arising out of the notice of termination and therefore the court has to see whether the termination is in accordance with the restrictions imposed by subs2 A on the date the right is to be enforced
Nor are we impressed by the argument that by applying sub section
2 A to notices issued before the Amending Act came into force we would be taking away the vested right of the landlord
As we have already pointed out the notice under section 34 1 is merely a declaration to the tenant of the landlord s intention to terminate the tenancy and no further proceedings may be taken by the landlord in consequence thereof It is only when the period of notice has expired and the tenancy has terminated that the landlord acquires a vested right to obtain possession of the land
Therefore the Amending Act did not affect any vested right of the landlords till the tenancy actually stood terminated after the expiry of the notice
Consequently the provisions of the Amending Act which came into force before the tenancy stood terminated by the notice will have to be taken into consideration in determining the right of the landlord in the matter of the termination of tenancy for the Amending Act put certain fetters on this right of termination
In the circumstances we are of opinion 573 that the view taken by the High Court is correct and sub section
2 A would apply to all cases where notices might have been given but where the tenancy had not actually terminated before the coming into force of the Amending Act
This view which appears to us to be plain enough on the words of sub section
2 A is further enforced by another consideration even if there is any doubt as to the meaning of sub section
2 A
That consideration is that the Amending Act is a piece of beneficent legislation meant for the protection of tenants
Therefore if there is any doubt about the meaning of sub section
2 A that doubt should be resolved in favour of the tenant for whose benefit the Amending Act was passed
In this view it is obvious that the legislature could not have intended that the benefit of this beneficent measure should not be extended to tenants in whose cases the tenancy had not yet terminated though notices had been given when the further restrictions were being put on the right to terminate the tenancy
Learned counsel for the appellant has drawn our attention in this connection to Jeebankrishna Chakrabarti vs Abdul Kader Chaudhuri 1
In that case the Bengal Tenancy Act was amended and the amendment provided that a tenant would be liable to ejectment on one year s notice by the landlord
The earlier law provided for a notice of ejectment but did not provide that the notice should be for one year it pro vided no period of notice whatsoever and it was sufficient under it to give notice expiring with the end of an agricultural year in order to effect ejectment howsoever short might be the period of notice
The question therefore arose whether the amendment applied to notices given under the old law and the Calcutta High Court held that it did not
The circumstances under which that decision was given are entirely different from the circumstances of the present case
In that case the contents of notice were changed while formerly what was required was a notice without any particular period the amendment required a notice of one year
There was no provision in the 1 1933 ILR LX Cal
1037 574 Amending Act making notices which were in accordance with the previous law ineffective
In these circumstances the Calcutta High Court was right in holding that the amendment did not affect notices already given
No such question however arises in the present case
The period of notice is the same before and after the amendment in the present case and what we have to see is whether the crucial date for the application of the new sub section 2 A is the date of the notice or the date of the termination of the tenancy
We have already held that that date must be the date of the termination of the tenancy
In the circumstances the appeal fails and is hereby dismissed with costs
Appeal dismissed


Summary:
Sub section 2A of section 34 of the Bombay Tenancy and Agri cultural Lands Act 1948 as amended by the Amending Act of 1952 applied from the date when the tenancy stood terminated on expiry of the notice of ejectment served on the tenant by the landlord under section 341 of the Act and not from the date of the notice
The Amending Act could not be said to divest the landlord of any vested right since he could have none till the period of notice terminated and the tenancy came to an end
Consequently where the landlord gave notice of ejectment under section 341 of the Act but the Amending Act came into force before the period of notice expired the landlord could be entitled to possession only after satisfying the provisions of that subsection
Durlabbhai Fakirbhai vs jhaverbhai Bhikabhai 1956 58 Bom
L R 85 referred to
Jeebankrishna Chakrabarti vs Abdul Kader Choudhuri 1933 ILR LX Cal
1037 distinguished