Prompt:
Appeal No. 1695 of 1993.
From the Judgment and Order dated 5.4.1991 of the Bombay High Court in S.C.A. Nos. 27 and 31 of 1988.
G.L. Sanghi Dhruv Mehta, Guru Raikar, S.K. Mehta and Arvind Verma for the Appellants.
BA Masodkar, Dr. R.B. Masodkar and KL.
Taneja for the Respondents.
The Judgment of Court was delivered by AHMADI, J. Special leave granted.
The appellants are the legal representatives of the deceased plaintiff Inacio Martins who died pendente lite.
He had on October 26, 1968 instituted a suit No. 157 of 1968 for a declaration and an injunction to restrain the defendants from dispossessing him from the property known as 'Palmar Oiteral do Predio Aivao ' comprising seven lots of coconut grove situated at Caranzalem belonging to defendant No. 2.
The said suit was dismissed on Match 28, 1974 on the ground that the plaintiff was no more in possession of the suit property and, therefore, a suit for a mere declaration simpliciter could not lie.
On the dismissal of the said suit the original plaintiff filed another suit No. 114/74 on May 6, 1974 for restoration of possession on the ground that he was the lawful tenant of the said property and since he had not been dispossessed,in accordance with law the defen dants who were mere trespassers were liable to be evicted.
The plaintiffs case in the plaint was that he was the lessee in respect of seven lots on an annual rent of Rs. 3600 payable in advance in three instalments; that he had paid the rent upto the end of December, 1967 and the first installment of 1968 but the owner, defendant No. 2, in collusion with defendant No. 1 executed a deed of lease in favour of the latter effective from January 1, 1968 on the strength whereof defendant No. 1 claimed to have assumed possession of the property sometime in the second week of June, 1968 without his tenancy having been lawfully terminated.
The plaintiff, therefore, contended that defendant No. 1 was a trespasser in the property and was liable to be evicted therefrom.
He, therefore, sought possession of the property in respect of which he claimed to be a lessee.
1020 The defendants, besides contending that the suit was barred on the principle of res judicata and/or constructive res judicata as found in Order 2 Rule 2(3) of the Code of Civil Procedure, averred that on the expiry of the lease at the end of December, 1967 the lease stood terminated by efflux of time and defendant No. 2 was, therefore, entitled to let out the property to defendant No. 1 and hence the latter was in lawful possession of the said property The plaintiffs allegation that he was forcibly dispossessed was denied.
The defendants, therefore, contended that the suit was not maintainable and deserved to be dismissed.
The Trial Court upheld the plaintiffs contention that the property was demised to him and he was the lawful tenant thereof till his possession came to be disturbed sometime in June, 1968.
The Trial Court also found that the plaintiff had paid a sum of Rs. 1200 to defendant No.2 through his employee Dattu Kenkro by way of advance rent for the year commencing from January 1, 1968.
The Trial Court, therefore, held that the plaintiff was wrongly dispossessed by defendant No. 1 in collusion with defendant No.2 and decreed the suit for eviction on September 25, 1985.
Against the said decree both the defendants preferred an appeal No. 82/85.
The First Appellate Court concurred with the findings recorded by the Trial Court and dismissed the appeal on March 25, 1986.
Feeling aggrieved by the order of dismissal of the appeal, the defendants preferred separate Second Appeals Nos.
27/88 and 31/88 which came to be allowed on April 5, 1991.
Interfering with the concurrent findings recorded by the two courts below the High Court came to the conclusion that the courts below had applied the wrong test and had based their findings on the question of tenancy and dispossession on mere conjectures.
It, therefore, held that the findings were perverse and it was open to the High Court in Second Appeal to interfere with the said findings.
It also held that the suit was barred by res judicata as well as Order 2 Rule 2(3) of the Code of Civil Procedure.
Lastly it noticed that during the pendency of the suit the Goa, Daman & Diu Agricultural Tenancy Act, 1964 (hereinafter called 'the Act ') was amended by Act 17 of 1976 dated October 14,1976 known as the Fifth Amendment which was brought into effect from April 20, 1976 by which the definition of 'agriculture ' was changed and the expressions 'garden ' and 'garden produce ' were defined by the insertion of sub sections (7A).
& (7B) to suction 2 which rendered the Civil Court without jurisdiction.
The High Court, therefore, held that the decree passed by the Civil Court was unsustainable.
On these findings the High Court allowed the appeals and 1021 reversed the decree of the Trial Court with no order as to costs.
It is against this order of the High Court that the present appeal by special leave is preferred.
Before we deal with the impact of the Act as amended by Act 17 of 1976 we may first deal with the two technical grounds on which the High Court has dismissed the suit.
The first ground on which the High Court dismissed the suit is that the suit was barred by the principle of res judicata in view of the dismissal of the former suit No. 157/68.
That suit was for a declaration that the plaintiff was a lessee and for an injunction to restrain the defendants from interfering with his possession of the suit property.
The foundation for that suit was that the plaintiff who claimed to be a lessee in respect of the demised property apprehended his forcible dispossession therefrom.
With a view to preventing any such action on the part of the defendants he instituted the suit for an injunction to restrain them from so doing.
That suit, however, came to be dismissed as the Trial Court came to the conclusion that the plaintiff was no more in possession of the property in respect of which he claimed to be a lessee.
It was only thereafter that the plaintiff filed the suit for restoration of his possession.
In the subsequent suit the plaintiff contended that he had been forcibly dispossessed sometime in the second week of June, 1968 contrary to law even though his tenancy was subsisting and he had paid the first installment of rent for the year 1968.
He, therefore, contended that the lease stated to have been created in favour of defendant No. 1 by defendant No. 2 was a sham and bogus document set up with a view to supporting their illegal action in dispossessing him.
The High Court, in the backdrop of these facts, came to the conclusion that the subject matter of the second suit was directly and substantially in issue in the previous suit between the same parties and hence regardless of the relief claimed the second suit was clearly barred by res judicata.
This finding of the High Court is difficult to sustain.
Section 11 of the Code of Civil Procedure provides that 'no court shall try any suit or issue in which the matter directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court '.
It is not the finding of the High Court that in the previous suit the question regarding the tenancy of the plaintiff was determined against the plaintiff.
As the record stands the only ground on which the previous suit 1022 was dismissed was the technical ground that a suit for a mere declaration cannot lie without claiming possession once it is found that the plaintiff had lost possession.
Injunction could not be granted to the plaintiff against dispossession as he had already been dispossessed.
The court came to the conclusion that a mere declaration of his status as a tenant could not be granted unless the consequential relief for possession was prayed.
It was for this technical reason that the suit was dismissed.
It is, therefore, difficult to comprehend how the High Court came to the conclusion that the subject matter of the second suit was directly and substantially in issue in the previous suit.
It would have been a different matter if in the previous suit the court had decided the question of status as lessee against the plaintiff, in which case, perhaps, it could be argued that the second suit based on the factum of tenancy was not maintainable.
It is only when the subject matter of any suit is directly and substantially in issue in the previous suit that the subsequent suit would be barred by res judicata if the competent court trying it had decided the issue regarding tenancy against the plaintiff.
The High Court has concluded against the plaintiff on this point in paragraph 31 which reads as under: Thus it is compelling to acknowledge that the subject matter of the second suit was directly and substantially in issue in the previous suit between the same parties.
The facts of the case clearly reveal that the res invoked in both the suits is the same.
The lite is also the same.
Hence the relief by itself is neither material nor relevant for the direct adjudication of the real issue.
The relief is only a consequence.
Therefore the second suit is to be deemed as barred by res judicata. ." With respect it is difficult to accept this line of reasoning.
As stated earlier, the first suit was dismissed on a technical ground that the suit for a mere declaration without seeking consequential relief of possession could not lie.
In that suit the issue regarding the status of the plaintiff as a lessee was not settled once for all and hence that issue could not be stated to be barred by res judicata in the subsequent suit brought by the lessee for possession the demised property.
We are, therefore, of the opinion that the High Court was wrong in holding that the second suit was barred by res judicata.
1023 The next contention which found favour with the High Court was based on the language of Order 2 Rule 2(3) of the Code of Civil Procedure.
The submission regarding constructive res judicata was also based on this very provision.
Now Order 2 concerns the framing of a suit.
Rule 2 thereof requires that the plaintiff shall include the whole of his claim in the framing of the suit.
Sub rule (1) of Rule 2, inter alia, provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action.
If he relinquishes any claim to bring the suit within the jurisdiction of any court he will not be entitled to claim that relief in any subsequent suit.
However, sub rule (3) of Rule 2 provides that a person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the court, to sue for all such reliefs he shall not afterwards sue for any relief so omitted.
It is well known that Order 2 Rule 2 CPC is based on the salutary principle that a defendant or defendants should not be twice vexed for the same cause by splitting the claim and the reliefs.
To preclude the plaintiff from so doing it is provided that if he omits any part of the claim or fails to claim a remedy available to him in respect of that cause of action he will thereafter be precluded from so doing in any subsequent litigation that he may commence if he has not obtained the prior permission of the court.
But the Rule does not preclude a second suit based on a distinct cause of action.
It may not be out of place to clarify that the doctrine of res judicata differs from the rule embodied in Order 2 Rule 2, in that, the former places emphasis on the plaintiff 's duty to exhaust all available grounds in support (if his claim while the latter requires the plaintiff to claim all reliefs emanating from the same cause of action.
The High Court is, therefore, clearly wrong in its view that the relief claimed is neither relevant nor material.
Now, in the fact situation of the present case, as we have pointed out earlier, the first suit was for an injunction and not for possession of the demised property.
The first suit was dismissed on the technical ground that since the plaintiff was not in de facto possession no injunction could be granted and a suit for a mere declaration of status without seeking the consequential relief for possession could not lie.
Once it was found that the plaintiff was not in actual physical possession of the demised property, the suit had become infructuous.
The cause of action for the former suit was not based on the allegation that the possession of the plaintiff was forcibly taken sometime in the second week of June, 1968.
The allegation in the former suit was that the plaintiff was a lessee and his 1024 possession was threatened and, therefore, he sought the court 's assistance to protect his possession by a prohibitory injunction.
When in the course of that suit it was found that the plaintiff had in fact been dispossessed, there was no question of granting an injunction and the only relief which the court could have granted was in regard to the declaration sought which the court held could not be granted in view of the provisions of Specific Relief Act.
Therefore, the cause of action for the former suit was based on an apprehension that the defendants were likely to forcibly dispossess the plaintiff.
The cause of action for that suit was not on the premise that he had in fact been illegally and forcibly dispossessed and needed the court 's assistance to be restored to possession.
Therefore, the subsequent suit was based on a distinct cause of action not found in the former suit and hence we do not think that the High Court was right in concluding that the suit was barred by Order 2 Rule 2(3) of the Code of Civil Procedure.
It may be that the subject matter of the suit was the very same property but the cause of action was distinct and so also the relief claimed in the subsequent.
suit was not identical to the relief claimed in the previous suit.
The High Court was, therefore, wrong in thinking that the difference in the reliefs claimed in the two suits was immaterial and irrelevant.
In the previous suit the relief for possession was not claimed whereas in the second suit the relief was for restoration of possession.
That makes all the difference.
We are, therefore, of the opinion that the High Court was completely wrong in the view that it took based on the language of Order 2 Rule 2(3) of the Civil Procedure Code.
The Act was enacted on 16th October, 1964 to provide for the regulation of the terms of tenancy with respect to agricultural lands in the Union Territory of Goa, Daman & Diu and for matters connected therewith.
The definition of the various terms employed in the statute have been set out in section 2 thereof The expression 'agriculture ' is defined in sub section (1A) to include horticulture and raising of food crops, grass or garden produce, but not allied pursuits, meaning thereby rearing or maintaining plough bulls, breeding of livestock, dairy farming, poultry farming, grazing on grounds reserved for the purpose and such other pursuits connected with agriculture as may be prescribed.
Sub sections (7A) and (7B) which came to be incorporated by the Fifth Amendment read as under : "7A. 'Garden ' means land used primarily for growing 1025 coconut trees, arecanut trees, cashewnut trees or mango trees; 7B. 'garden produce ' means any produce from a garden.
" It will be seen from the aforesaid definitions that land used primarily for growing coconut trees falls within the expression 'garden ' and any produce therefrom would be covered by the expression 'garden produce ' Since garden produce is included within the definition of agriculture in sub section (1A) of section 2 it is clear that land used primarily for growing coconut could be described as agricultural land.
Sub section (11) (i) defines land inter alia to mean land which is used for agriculture or which is capable of being so used but is left fallow.
Section 2(23) defines a tenant to mean 'a person who on or after the date of commencement of this Act holds land on lease and cultivates it personally and includes a person who is deemed to be a tenant under this Act '.
Section 7 posits that if any question arises whether any person is a tenant or should be deemed to be a tenant under the Act, the Mamlatdar shall after holding an enquiry decide such question.
Section 8(1) stipulates that no tenancy of any land shall be terminated and no person holding as tenant shall be liable to be evicted therefrom save as provided under the Act.
Sub section (2) of section 8 next provides that where any person as is referred to in section 4 (deemed tenant) has been evicted from the land on or after 1st July, 1962 such person shall be entitled to recover immediate possession of the land in the manner prescribed by or under the Act unless the landlord proves that the termination of tenancy was in the manner authorised by section 9.
Even in cases of threatened wrongful possession section 8A says that any tenant in possession of any land or dwelling house who apprehends that he may be dispossessed contrary to the provisions of this Act may apply in the prescribed manner to the Mamlatdar for an order safeguarding his right to possession.
Section 9 lays down the modes of termination of tenancy which are (a) by the tenant surrendering his right to the landlord in the manner provided in section 10; or (b) by the landlord terminating the tenancy on the grounds specified in section 11; or (c) under any other specific provision of the Act.
Section 18 lays down the procedure for taking possession.
It says that a tenant entitled to possession of any land under any of the provisions of the Act may apply in writing for such possession to the Mamlatdar.
It will be seen from the aforesaid provisions that the forum created for determination of the question whether a person is a 1026 tenant or a deemed tenant under the Act is the Mamlatdar.
Ever where a tenant apprehends that his possession is likely to be interfered with contrary to the provisions of the Act he can make an application in the prescribed manner to the Mamlatdar for safeguarding the, same.
So also where a tenant is evicted illegally, section 8(2) permits him to approach the Mamlatdar for recovery of possession.
Unless the tenancy is terminated in the manner provided by section 9, the law precludes the landowner from terminating the tenancy and obtaining possession of the land from the tenant.
Section 58 bars the jurisdiction of courts.
Sub section (2) thereof provides that save as otherwise provided in the Act no court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the Mamlatdar and no order passed by him under the Act shall be questioned in any civil or criminal court.
It will thus be seen that the Act sets up an independent machinery and invests the Mamlatdar with jurisdiction to decide questions such as : (i) Whether any person is a tenant or should be deemed to be a tenant under the Act? (ii) Whether the possession of any tenant in regard to any land or dwelling house is threatened and if so, whether an order safeguarding the same is required? (iii) Whether the tenancy of any deemed tenant is legally terminated and if no, whether the tenant evicted from the land held by him as such is entitled to restoration of possession? The jurisdiction of the civil court is specifically barred by sub section (2) of Section 58 from settling, deciding or dealing with any question which is by or under the Act required to be settled, decided and dealt with by the Mamlatdar.
There can, therefore, be no doubt that after the Fifth Amendment became effective in regard to land used primarily for growing coconut trees and garden produce, the jurisdiction of the civil court was ousted by virtue of section 58(2) of the Act.
The suit in question was instituted on May 6, 1974 i.e. before the Fifth Amendment was brought into force.
Thus the amendment came into force during the pendency of the suit.
The question, therefore, is what is the effect of the Fifth Amendment on pending litigation? No provision is 1027 made in the Act in that behalf.
The High Court concluded that since 'there is nothing in the language of sections 7 and 58 of the.
Act which is primarily a welfare legislation to indicate that it should not be applied retrospectively there is no question that its applicability should be necessarily prospective.
Proceeding further the High Court takes the view that even after the Fifth Amendment came into force the plaintiff had not applied to the Mamlatdar for possession of the land within the period allowed by Section 18 of the Act and had, therefore, allowed the first defendant to become a deemed purchaser of the suit property on the strength of his tenancy.
Since the civil court had lost jurisdiction to decide the suit, the High Court dismissed it.
We may now proceed to examine whether this view taken by the High Court is correct.
From the above discussion it emerges that the Civil Court undoubtedly had jurisdiction under section 9 of the Code of Civil Procedure to try and grant eviction till the Fifth Amendment became effective.
After that amendment came into force, the provisions of the Act became applicable to the lands in question which were primarily used for growing coconut trees and receiving produce therefrom.
By virtue of section 7 any question whether a person is a tenant or a deemed tenant was required to be decided by the Mamlatdar and the jurisdiction of the Civil Court stood ousted by section 58(2) of the Act.
The question is whether this subsequent change in the law deprived the Civil Court of jurisdiction which it undoubtedly possessed on the date of the institution of the suit.
Three situations, therefore, develop in the context of the provisions of the Act as amended by the Fifth Amendment, namely, (i) the Civil Court retains jurisdiction or (ii) the Civil Court is precluded from deciding, even incidentally, questions failing within the ambit of section 7 of the Act or (iii) the Civil Court 's jurisdiction is wholly ousted.
Since the Act is silent as to the fate of pending litigation after the Fifth Amendment the situation arising on the amendment of the Act must be decided on first principles.
If a suit is filed to recover possession of agricultural land from a trespasser and no dispute arises, the adjudication whereof is required to be done by the special machinery set up under the Act, the Civil Court will continue to have jurisdiction.
If, however, the defendant raises a dispute which is required to be resolved by the special machinery under the Act, a question will arise what procedure the Civil Court should adopt.
There may arise a situation where the entire dispute pending before the Civil Court can be adjudicated by the special machinery only and not the Civil Court, what procedure the 1028 Civil Court follow in such a situation? In the case of the first mentioned situation there is no difficulty as the Civil Court will continue to have jurisdiction to settle and decide the dispute and grant appropriate relief The problem arises in the two other situations where the jurisdiction of the Civil Court is partly or wholly ousted.
Take the case of suit where possession of agricultural land is sought on the plea that the defendant is a trespasser and the defendant contends that he is a tenant.
The question of the defendant 's tenancy in respect of agricultural land would be within the exclusive jurisdiction of the Mamlatdar under section 7 read with section 58(2) of the Act.
In such a situation what procedure should the Civil Court follow ? Now take a case where the entire dispute falls within the exclusive jurisdiction of the special machinery under the Act and had the litigation commenced after the Fifth Amendment was brought into force it could not have been instituted in a Civil Court.
In that case what procedure should the Civil Court follow? These are the questions which arise for determination.
Before we answer those questions we must decide on the impact of the Fifth Amendment on pending litigation.
The question whether the Fifth Amendment is prospective or retrospective really recedes in the background if we examine the question from the angle whether the Civil Court can decide any question falling within the jurisdiction of the special forum under the Act in a pending litigation in the absence of an express provision in that behalf.
If the question of tenancy in regard to agricultural land cannot be decided by the Civil Court under the Act and there is no express saving clause permitting the Civil Court to decide the same, it is obvious that any decision rendered by the Civil Court would be without jurisdiction.
A similar situation did arise in the context of another statute.
In Shah Yograj Kuverji Oil Mills and Ginning Factory vs Subhash Chandra Yograj Sinha, ; = ; the facts were that the landlord had filed a suit for eviction on April 25, 1957 in the regular court, i.e., the Court of the Joint Civil Judge (Junior Division), Erandol, which admittedly had jurisdiction to pass a decree for possession of the demised premises.
However, during the pendency of the suit, a notification was issued under section 6 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, (hereinafter called 'the Rent Act ') applying Part II of the Act to areas where the property in question was situate.
The tenants claimed protection of section 12 in Part 11 of the Rent Act which deprived the landlord of the right of possession under certain circumstance 1029 The question which arose for consideration was whether the tenants were entitled to the protection of section 12 in pending cases and if yes, its effect.
Since section 12 of the Rent Act was held to be prospective, the question which arose for consideration was whether its protection could be extended to tenants in pending litigation.
This court pointed out that the point of time when sub section (1) of Section 12 operates is when the court is called upon to pass a decree for eviction.
Thus, said this Court the language of the sub section applies equally to suits pending when Part 11 comes into force and those to be filed subsequently.
The contention of the landlord that the operation of section 12(1) is limited to suits filed after the Rent Act comes into force in a particular area was not accepted.
Applying the same principle to the facts of the present case, we have no hesitation in concluding that the provisions of the Fifth Amendment would apply to pending suits also.
However, the Act does not preclude the institution of a suit by a tenant for restoration of possession from a trespasser.
If the defendant who is sued as a trespasser raises a plea of tenancy, a question arises whether his plea of tenancy can be decided by the Civil Court as incidental to the grant of relief for possession or is the Civil Court precluded from deciding the same in view of section 7 read section 58(2) of the Act.
As pointed out earlier, section 7 in terms states that if any question arises whether any person is a tenant or should be deemed to be a tenant under the Act, the Mamlatdar shall decide such question.
The jurisdiction is, therefore, vested in the Mamlatdar under section 7 of the Act and section 58(2) specifically bars the jurisdiction of all other courts to settle, decide or deal with any question which is by or under the Act required to be settled, decided or dealt with by the Mamlatdar.
Section 8(2) has limited operation where a person referred to in section 4 has been evicted on or after 1st July, 1962.
In that case he would be entitled to recover immediate possession of the land in the manner prescribed by or under the Act unless it is shown that his tenancy was terminated in the manner authorised by section 9.
In the present case, the plaintiff came to court contending that even though his lease was not terminated as provided by section 9 of the Act, defendant No.1 had dispossessed him by an act of trespass.
He, therefore, sought possession of the demised property from the trespasser, defendant No.1.
He impleaded the owner of the land as defendant No.2 on the plea that she had colluded with defendant No.1.
Defendant No.1 raised a contention in his written statement that he was lawfully inducted as a tenant in the lands in question 1030 by the owner, defendant No.2.
In other words, he disputed the plaintiff 's contention that, he was a trespasser and pleaded tenancy.
If his plea was found to be well founded, he would be entitled to retain possession but not otherwise.
Therefore, the question which arose in the suit was whether defendant No.1 proved that he was a tenant in respect of the land in question.
This question could not be gone into by the Civil Court in view of the clear language of section 7 read with section 58(2) of the Act.
What procedure should the court follow in such situations? It would not stand to reason to non suit the plaintiff who had filed the suit in a competent court having jurisdiction to try the same merely because of the subsequent change in law.
The proper course, therefore, would be one which was followed by the Bombay High Court in Bhimaji Shankar Kulkami vs Dundappa Vithappa Udapudi & Anr., ; = ; That was a case arising under the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948.
The lands in question were agricultural lands.
Section 29(2) of that law provided that no landlord shall obtain possession of any land or dwelling house held by a tenant except under an order of the Mamlatdar on an application made in that behalf in the prescribed form.
Section 70(b) next provided that for the purposes of the Act, one of the duties and functions to be performed by the Mamlatdar is to decide whether a person is a tenant or a protected tenant or a permanent tenant.
Section 85(1) laid down that no Civil Court shall have jurisdiction to settle, decide or deal with any question which is required to be settled, decided or dealt with by the Mamlatdar under the statute.
The law was silent as to how a dispute of this nature raised in a suit filed for eviction on the footing that the defendant is a trespasser should be dealt withby the Civil Court.
This question squarely arose for consideration by the Bombay High Court in Dhondi Tukaram vs Hari Dadu AIR 1954 Bom 100 ILR wherein that court observed as under: "Therefore, we hold that in a suit filed against the defendant on the footing that he is a trespasser if he raises the plea that he is a tenant or a protected tenant, the Civil Court would have no jurisdiction to deal with that plea. .
We would, however, like to add that in all such cases where the Civil Court cannot entertain the plea and accepts the objection that it has no jurisdiction to try it, it should not proceed to dismiss the suit straightaway.
We think that the proper procedure to adopt in such cases 1031 would be to direct the party who raises such a plea to obtain a decision from the Mamlatdar within a reasonable time.
If the decision of the Mamlatdar is in favour of the party raising the plea, the suit for possession would have to be dismissed, because it would not be open to the Civil Court to give any relief to the landlord by way of possession of the agricultural land.
If, on the other hand, the Mamlatdar rejects the plea raised under the Tenancy Act, the Civil Court would be entitled to deal with the dispute on the footing that the defendant is a trespasser.
" Pursuant to the court 's recommendation, the Bombay Legislature introduced section 85A which provided that if in any suit instituted in a Civil Court issues which are required to be settled, decided and dealt with by any authority patent to settle, decide and deal with the same arises, the Civil Court shall stay the suit and refer such issues to such competent authority for determination under the statute.
Unfortunately even under the Act with which we are concerned the Legislature though aware of section 85A has not chosen to make any provision for dealing with such situations.
We are, therefore, of the opinion that it would be just and fair that the issue whether defendant No.1 was a tenant in respect of the lands in question should be referred to the Mamlatdar for decision and after his decision is received by the Civil Court if the issue is held against defendant No.1, the Civil Court may consider passing of a decree in eviction but if on the other hand he is held to be tenant, the Civil Court may be required to dismiss the suit.
One further situation which may arise under the provisions of the Act may be taken note of.
The impact of the Fifth Amendment may give rise to a situation where the remedy lies entirely under the Act and may have to be taken in the manner prescribed by or under the Act.
For example, where a person who is a deemed tenant under section 4 of the Act if evicted from the land on or after ' 1st July, 1962 his remedy under section 8(2) is to approach the authority under the Act for recovery of possession of the land of which he has been dispossessed.
In such a situation the remedy may not be the one available in the case of a tenant other than a deemed tenant whose case is not governed by section 8(2) of the Act.
But in the case of a deemed tenant who has been evicted from the land on or after 1st July, 1962 since a remedy has been provided under 1032 the Act, the Jurisdiction of the Civil Courts stands wholly barred by virtue of Section 58 (2) of the Act.
In such a situation the Civil Court would not be competent to pass any order for restoration of possession to the deemed tenant.
His remedy would, therefore, to be entirely under the Act.
This is just by way of an illustration.
If such a situation arises what procedure should the court follow in a pending suit which was instituted in a competent court having jurisdiction at the date of its institution.
It would seem unfair to non suit the plaintiff altogether for no fault of his own.
We think, in such a situation where the entire dispute falls outside the Civil Court 's jurisdiction on account of the change in law the proper course would be to follow in spirit the procedure outlined in Order 7 Rules 10 and 10A of the Code of Civil Procedure.
Since the paper book in this appeal does not contain the original plaint and the written statement and counsel were unable to enlighten us on the actual nature of the pleadings we have tried to indicate the procedure to be followed by the Civil Court on illustrative fact situations.
In the circumstances, we are left with no alternative but to remit the matter to the Trial Court with a direction to follow the course that may be found appropriate in the fact situation arising out of the pleadings in this case and the nature of the questions required to be determined for grant or refusal of relief claimed in the suit.
We would like to make it clear that the hypothetical situations may or may not apply to the fact situation that may emanate of the pleadings in this case and it would be for the Trial Court to determine the course of action to be adopted in the light of the guidelines indicated hereinabove.
In view of the foregoing discussion, we allow this appeal, set aside the order of the High Court which in either case lacked jurisdiction to decide the question regarding tenancy on merits and remit the matter to the Trial Court for further orders in the light of the observation hereinabove made.
Having regard to the peculiar facts and circumstance, of the case, we make no order as to costs.
R.P. Appeal allowed.

Response:
The plaintiff, predecessor in interest of the appellants, flied a suit for a declaration and an injunction to restrain the defendant respondents from dispossessing him from a certain property comprising of a coconut grove.
The trial court dismissed the suit holding that the, plaintiff was no more in possession of the suit property, and, therefore, a suit for a mere declaration simplicitor could not lie.
Consequently, the plaintiff flied another suit for restoration of possession.
His case was that he was a tenant of the suit property, whereof defendant No. 2 was the owners ' and 1016 that he was forcibly dispossessed by defendant No. 1, in collusion with defendant No. 2, without his tenancy having been lawfully terminated.
It was alleged that the defendants were trespassers and liable to be evicted.
The defendants, besides raising the pleas of res judicata and/or constructive res judicata purported to be based on Order 2 Rule 2(3) of the Code of Civil Procedure, contended that defendant No. 1 was in lawful possession of the suit property as the same was let out to him by defendant No. 2 after the lease in favour of the plaintiff stood terminated by efflux of time, and the suit, as such, was not maintainable.
The trial court decreed the suit holding that the suit property was demised to the plaintiff as he was the lawful tenant thereof, and defendant No. 1 in collusion with defendant No. 2 wrongfully dispossessed him.
The appeal riled by the defendants was dismissed by the first appellate court.
The second appeals filed by the defendants were allowed by the High Court holding that the suit was barred by res judicata as well as Order 2 Rule 2(3) C.P.C.
The High Court also held that during the pendency of the suit as a result of the amendment of the Goa, Daman and Diu Agricultural Tenancy Act, 1964 by Act 17 of 1976, known as the Fifth Amendment, the definition of 'agriculture ' was changed and the suit property came to be covered within the expression 'agricultural land ' which rendered the civil court without jurisdiction and the decree passed by it unsustainable.
Aggrieved, the heirs and legal representatives of the plaintiff, filed the appeal by special leave.
Allowing the appeal, this Court, HELD: 1.1 A subsequent suit would be barred by res judicata only when the subject matter of the suit was directly and substantially in issue in the previous suit.
[p. 1022 C] 1.2.
The first suit was dismissed on a technical ground that the suit for a mere declaration without seeking consequential relief of possession could not lie.
In that suit the issue regarding the status of the plaintiff as a lessee was not settled once for all and hence that issue could not be stated to be barred by res judicata in the subsequent suit brought by the lessee for possession of the demised property.
The High Court was not right in holding 1017 that the second suit was barred by res judicata.
1022 F H] 2.1.
Order 2 Rule 2 CPC is based on,the salutory principle that a defendant or defendants should not be twice vexed for the same cause by splitting the claim and the reliefs.
It does not preclude a second suit based.
on a distinct cause of action.
[p. 1023 C E] 2.2.
The doctrine of res judicata differs from the rule embodied In Order 2 Rule 2, in that, the former places emphasis on the plaintiff 's duty to exhaust all available grounds in support of his claim while the latter requires the plaintiff to claim all reliefs emanating from the same cause of action.
[p. 1023 E] 2.3.
The cause of action for the former suit was based on an apprehension that the defendants were likely to forcibly dispossess the plaintiff.
The suit was for an injunction and not for possession of the demised property.
It was not on the premise that the plaintiff had in fact been illegally and forcibly dispossessed and needed the court 's assistance to be restored to possession.
Therefore, the subsequent suit was based on a distinct cause of action not found in the former suit.
The High Court was not right in concluding that the suit was barred by Order 2 Role 2(3) of the Code of Civil Procedure, and that the difference in the reliefs claimed in the two suits was immaterial and irrelevant.
In the previous suit, the relief for possession was not claimed whereas in the second suit the relief was for restoration of possession.
That makes all the difference.
[pp. 1023 F, 1024 B D] 3.1.
The impact of the Fifth Amendment on pending litigation is that the question of tenancy in regard to agricultural land cannot be decided by the civil court under the Act and there being no express saying clause permitting the civil court to decide the same, any decision rendered by the civil court would be without jurisdiction.
The change in law deprived the civil court of jurisdiction which it undoubtedly possessed on the date of the institution of the suit.
Thus, the provisions of the Fifth Amendment would apply to pending suits also.
[pp. 1027 D E; 1028 D E; 1029 C] Shah Bhojraj Kuverji Oil Mills and Ginning Factory vs Subhash Chandra Yograj Sinha; , , relied on.
The Act does not preclude the institution of a suit by a tenant 1018 for restoration of possession from a trespasser.
[p. 1029 C] 3.3.
If a suit Is riled to recover possession of agricultural land from a trespasser and no dispute arises, the adjudication whereof is required to be done by the special machinery set up under the Act, the civil court will continue to have jurisdiction.
[p. 1027 F G] 3A.
If possession of agricultural land is sought on the plea that the defendant is a trespasser and the defendant contends that he is a tenant, the claim of tenancy by defendant cannot be gone into by the civil court in view of the clear language of S.7 read with section 58(2) of the Act In such a situation, it would not stand to reason to non suit the plaintiff who had flied the suit in a competent court having jurisdiction to try the same, merely because of the subsequent change in law.
The proper course, therefore, would be that the issue whether the defendant was a tenant should be referred to the Mamlatdar for decision and, after his decision is received by the civil court, if the issue is held against the defendant, the civil court may consider passing of a. decree.
for eviction but if, on the other hand, he is held to be a tenant, the civil court may be required to dismiss the suit [pp. 1029 F H; 1030 A B; 1031 D E] Bhimaji Shankar Kulkam vs Dundappa Vithappa Udapudi & Anr., ; =. ; and Dhondi Tukaram vs Hari Dadu, AIR 1954 Bom.
100 = ILR , relied on.
The impact of Fifth Amendment may give rise to a situation where a deemed tenant under s.4 of the Act is evicted from the land on or after 1st July, 1962; his remedy under s.8(2) is to approach the authority under the Act for recovery of possession of the land of which he has been disposed, and jurisdiction of the civil court stands wholly barred by virtue of s.58(2) of the Act as it would not be competent to pass any order for restoration of possession to the deemed tenant.
If such a situation arises in a pending suit which was instituted in a competent court having jurisdiction at the date of its institution, it would be unfair to non suit the plaintiff altogether for no fault of his own and the proper course would be to follow in spirit the procedure outlined in Order 7, Rules 10 and 10A, C.P.C. [pp. 1031 F H; 1032 A B] 4.
The High Court lacked jurisdiction to decide the question regarding tenancy on merits.
Its order is set aside and the matter is remitted to 1019 the trial court to determine the course of action to be adopted in accordance with the guideline indicated hereinabove.
[p. 1032 D F]


Prompt:
iminal Appeal No. 46 of 1957.
Appeal by special leave from the judgment and order dated the February 4, 1955, of the Bombay High Court in Criminal Appeal No. 1256 of 1954, arising out of the judgment and order dated June 19, 1954, of the Chief Presidency Magistrate, Bombay, in Case No. 176/S of 1953.
Hardayal Hardy, for the appellants.
H. J. Umrigar and B. H. Dhebar, for the respondent.
April 21.
The Judgment of the Court was delivered by KAPUR, J.
This is an appeal by special leave against the judgment and order of the High Court of Bombay reversing the judgment of the Chief Presidency Magistrate, Bombay, and thus convicting accused Nos. 1 & 5 under section 31(1) read with section 33(1) of the (XIV of 1947) (hereinafter called the Act) and sentencing accused No. 1 to a fine of Rs. 250 and accused No. 5 to a fine of Rs. 50, 736 The appellants are the Andheri Marol Kurla Bus Service who was accused No. 1 (now appellant No. 1) and its Manager H. M. Khan who was accused No. 5 (now appellant No. 2).
Some disputes arose between the appellant No. 1 and its workmen.
On December 13, 1951, the Conciliation Officer wrote to the appellant No. I and enclosed the demands of the Union which were dated August 9, 1951.
On December 31, 1951, the appellant No. I was asked to appear before the Conciliation Officer on January 9, 1952, and after getting one adjournment the appellant No. I appeared before the Conciliation Officer on January 17, 1952, and filed its Written Statement and raised various objections.
The next date of hearing was January 31, 1952, and the proceedings went on till June 2, 1952, when the appellant No. 1 wrote to the Conciliation Officer saying that no useful purpose would be served by holding any further meetings.
On May 9, 1952, the Union had also indicated to the Conciliation Officer that the negotiations had failed.
On March 18, 1952, the appellant dismissed Louis Pereira, a bus conductor and proceedings were taken on a complaint by Assistant Commissioner of Labour under section 33 read with section 31 of the Act against 5 accused persons the two appellants and the partners of appellant No. 1.
The Chief Presidency Magistrate acquitted all the accused including the appellants and held that as the conciliation proceedings had continued for a period of more than 14 days as from January 17, 1952, further proceedings for conciliation were illegal and therefore the accused persons could not be convicted under section 31(1)of the Act.
The State took an appeal to the High Court and the judgment of acquittal was reversed and of the accused persons the two appellants were convicted and the others were acquitted.
The two appellants have appealed by special leave.
The question for decision is whether the conciliation proceedings could be said to be pending when Louis Pereira was dismissed.
If the answer is in the affirmative then the appellants have been properly convicted and if not the conviction must be set aside.
Section 31(1) makes the contravention of the provision 737 of section 33 of the Act an offence punishable with imprisonment for a period which may extend to six months or with fine or with both.
Section 33(1) pro K. vides: section 33(1) " During the pendency of any conciliation proceedings before a conciliation officer or a Board or of any proceeding before a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, no employer shall: (a) in regard to any matter connected with the dispute, alter to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceedings; or (b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute, save with the express permission in writing of the authority before which the proceeding is pending ".
Therefore the question reduces itself to the meaning of the words " pendency of any conciliation proceedings before a conciliation officer ".
The argument raised on behalf of the appellant is that the object of conciliation is to get a settlement made with expedition and therefore under section 12 the Conciliation Officer was bound to make his report within 14 days of the commencement of the conciliation proceedings or within such shorter period fixed by the appropriate Government.
From this it was submitted that as 14 days had expired before March 18, 1952, the dismissal could not be said to be one within the words " pendency of conciliation proceedings ".
The Act provides for commencement and conclusion of conciliation proceedings under section 20 but the first sub section of section 20 deals with what are called utility services and sub section 2 of that section provides as to when the conciliation proceedings conclude.
That sub section is as follows: section 20(1). . . . . . . . . (2) A conciliation proceeding shall be deemed to have concluded 93 738 (a) where a settlement is arrived at, when a memorandum of the settlement is signed by the par ties to the dispute; (b) where no settlement is arrived at, when the report of the conciliation officer is received by the appropriate Government or when the report of the Board is published under s, 17, as the case may be; or (c) when a reference is made to a Court, Labour Court, Tribunal or National Tribunal under section 10 during the pendency of conciliation proceedings ".
The provisions of sub section 2 apply to all conciliation proceedings whether in regard to utility services or otherwise.
All conciliation proceedings under this sub section shall be deemed to have concluded in the case where no settlement is reached, when the report of the Conciliation Officer is received by the appropriate Government.
The conciliation proceedings therefore do not end when the report under section 12( 6) is made by the Conciliation Officer but when that report is received by the appropriate Government.
It was contended that the conciliation proceedings should be held to terminate when the Conciliation Officer is required under section 12(6) of the Act to submit his report but the provisions of the Act above quoted do not support this contention as the termination of the conciliation proceedings is deemed to take place when the report is received by the appropriate Government.
This is how section 20(2)(b) was interpreted in Workers of the Industry Colliery, Dhanbad vs Management of the Industry Colliery (1).
It was next contended that on this interpretation the conciliation proceedings could be prolonged much beyond what was contemplated by the Act and the termination would depend upon how soon a report is received by the appropriate Government.
It is true that section 12(6) of the Act contemplates the submission of the report by the Conciliation Officer within 14 days but that does not affect the pendency of the conciliation proceedings and if for some reason the Conciliation Officer delays the submission of his report his action (1) ; 739 may be reprehensible but that will not affect the interpretation to be put on section 20(2)(b) of the Act.
Section 12 lays down the duties of the Conciliation_ officer.
He is required to bring about settlement between the parties and must begin his investigation without delay and if no settlement is arrived at he is to submit his report to the appropriate Government.
No doubt section 12 contemplates that the report should be made and the proceedings closed within a fortnight and if proceedings are not closed but are carried on, as they were in the present case, or if the Conciliation Officer does not make his report within 14 days he may be guilty of a breach of duty but in law the proceedings do not automatically come to an end after 14 days but only terminate as provided in section 20(2)(b) of the Act.
Colliery Mazdoor Congress, Asansol vs New Beerbhoom Coal Co. Ltd (1).
As the conciliation proceedings were pending at the time when Louis Pereira was dismissed the appellants were rightly convicted under section 31(1) read with section 33 of the Act.
The appeal is therefore dismissed.
Appeal dismissed.

Response:
Conciliation proceedings were started in January.
1952 with respect to some disputes between appellant 1 and its workmen.
On May 9, 1952, the Union and on June 2, 1952, the appellant 1 indicated to the Conciliation Officer that the negotiations had failed.
In the meantime on March ~I8, 1952, the appellant 1 dismissed (1) I.L.R. 1947 All.
735 one of its workmen.
The two appellants and three others were prosecuted under section 31 Of the , for a breach of section 33 for dismissing a workman during the pendency of the conciliation proceedings.
The appellants contended that since section 12(6) required the report of the conciliation proceedings to be submitted within 14 days of the commencement thereof, the proceedings had terminated on the expiry of the 14 days and the dismissal was, therefore, not during the pendency of the conciliation proceedings.
Held that, in cases where no settlement was arrived at the conciliation proceedings terminated when the report of the Conciliation Officer was received by the appropriate Government and not on the expiry of 14 days from the commencement of the proceedings.
The commencement and termination of conciliation proceedings were determined by section 20 and not by section 12(6).
The dismissal of the workman was during the pendency of the conciliation proceedings and the appellants were guilty under section 31(1) of the Act.
Workers of the Industry Colliery, Dhanbad vs Management Of the Industry Colliery, ; ; Colliery Mazdoor Congress, Asansol vs New Beerbhoom Coal Co. Ltd., , applied.


Prompt:
N: Criminal Appeal No. 8 of 1951.
Appeal from an Order of the High Court of Bombay (Bavdekar and Chainani JJ.) dated 20th February, 1950, in Criminal Appeal No. 106 of 1950 arising out of an order dated 9th January, 1950, of the Presidency Magistrate, 19th Court, Esplanade, Bombay, in Case No. 10879/P of 1949.
The facts are stated in the judgment.
Iswarlal C. Dalai and R.B. Dalai, for the appellant.
C.K. Daphtary, Solicitor General for India (G. N. Joshi, with him) for the Republic of India (respondent No. 1).Jindra Lal for the respondent No. 2. 1952.
February 1.
The Judgment of the Court was deliv ered by CHANDRASEKHARA AIYAR J.
The facts out of which this Crimi nal Appeal has arisen are not long.
The appellant, W.H. King, who is carrying on a business in Bombay under the name and style of Associated Commercial Enterprises, was the tenant of a flat on the second floor of a building called "Ganga Vihar", Marine Drive, Bombay, which belongs to a lady named Durgeshwari Devi.
The tenancy was a monthly one, the rent being Rs. 215.
It is said that the appellant wanted to go to the United Kingdom for treatment of his failing eye sight and he got into touch with the complainant Mulchand Kodumal Bhatia, who is the second respondent in this appeal, through one Sayed for the purpose of making necessary ar rangements about the flat occupied by him in view of his intended departure.
The prosecution case is that the accused demanded a sum of Rs. 30,000 which was later on reduced to Rs. 29,500 as consideration for putting the complainant in vacant possession of the flat and an additional amount of Rs. 2,000 for the furniture, and that the complainant agreed to pay these sums.
The complainant actually paid the accused two sums of 420 Rs. 500 each on 7th November, 1948, and 17th November, 1948.
He, however, got into touch with the police on 1 12 1948, and in conjunction with the latter, a trap was laid for the appellant.
It was arranged that the complainant should bring with him Rs. 1,000, being the balance due in respect of the furniture and that the police would give him Rs. 29,500 to be paid to the appellant.
The complainant and a Sub Inspec tor, posing as the complainant 's brother, went to the appel lant on 4 12 1948, and paid him the two sums of money; and the keys of the flat and the motor garage were handed over to the complainant.
As the appellant and his wife were leaving the flat, the man, who masqueraded as the complain ant 's brother, threw off his disguise and disclosed his identity.
The police party, who were down below ready for the raid, held up the car of the appellant and recovered the sum of Rs. 30,500 from the rear seat of the car and also some papers, a typed draft of a partnership agreement be tween the complainant and the appellant and an application form for permission to occupy the building as caretaker.
From the complainant were recovered the bunch of keys and the documents that were handed over to him by the appellant, namely, the letter handing vacant possession (Exhibit D).
the receipt for Rs. 2,000 for the articles of furniture (Exhibit E), a letter to the Bombay Gas Company for transfer of the gas connection to the name of the complainant (Exhib it F), and the letter to the Bombay Electric Supply and Transport Committee for transfer of the telephone connec tions and the deposit of Rs. 27 (Exhibit G).
The appellant was charged under section 18(1) of the Bombay Rents, Hotel and Lodging House Rates Control Act, LVII of 1947, for receiving a pugree of Rs. 29,500 and he was further charged under section 19(2) of the said Act for receiving the said sum as a condition for the relin quishment of his tenancy.
His wife, who was the second accused in the case, was charged with aiding and abetting her husband in the commission of the two offences.
421 The defence of the appellant was that he was in search of a partner to carry on his business during his intended absence, who was also to act as caretaker of his flat anal that it was in this connection and with this object in view that he entered into negotiations with the complain ant.
The sum of Rs. 29 500 was not pugree but represented capital for 0 12 0 share in the business and as the com plainant was also to be a caretaker of the flat, the sum of Rs. 2,000 was paid and received as a guarantee against disposal and damage of the furniture and it was agreed to be paid back on the appellant 's return to India.
The wife of the appellant denied any aiding and abetting.
The Presidency Magistrate, who tried the case, disbe lieved the defence on the facts, holding that what was received by the accused was by way of pugree.
As section 18 (1) of the Act was not applicable he convicted him under section 19(2) of the Act and sentenced him, in view of his old age and blindness, to one day 's simple imprisonment and a fine of Rs. 30,000.
The wife was acquitted, the evidence being insufficient to prove any abetment.
The appellant preferred an appeal to the High Court of Bombay but it was summarily dismissed on 20 2 1950.
He asked for a certificate under article 134(1)(c) of the Constitution but this was rejected on 10 4 1950.
Thereaf ter he applied for special leave to appeal to this Court and it was granted on 3 10 1950.
A short legal argument was advanced on behalf of the appellant based on the language of section 19 (1) of the Act and this is the only point which requires our consideration.
The section which consists of two parts is in these terms:" "(1) It shall not be lawful for the tenant or any person acting or purporting to act on behalf of the tenant to claim or receive any sum or any consideration as a condi tion for the relinquishment of his tenancy of any premises; 422 (2) Any tenant or person who in contravention of the provisions of sub section (1) receives any sum or considera tion shall, on conviction, be punished with imprisonment for a term which may extend to 6 months and shall also be pun ished with fine which shall not be less than the sum or the value of the consideration received by him.
" It was urged that the offence arises only on receipt of any sum or any consideration as a condition of the relin quishment by a tenant of his tenancy and that in the present case there was no such relinquishment.
Exhibit D, which is the most material document, under which the appellant handed over vacant possession of the flat to the complainant, constitutes or evidences an assignment of the tenancy and not a relinquishment.
It says : "I, W.H. King, hereby hand over vacant possession of my flat No. 3 situated on 2nd floor and garage No. 4 on the ground floor of Ganga Vihar Building on Plot No. 55 situated on Marine Drive Road to Mr. Mulchand Kodumal Bhatia from this day onward and that I have no claim whatsoever over this flat and Mr. Mulchand Kodumal Bhatia will pay the rent directly to the landlord.
" The argument raised on behalf of the appellant appears to us to be sound and has to be accepted.
The learned Solic itor General urged that 'the word "relinquishment" was not a term of art and was used in the section not in any strict technical sense but in its comprehensive meaning as giving up of possession of the premises; and he pointed out that if it was intended by the legislature that "relinquish ment" should have the limited meaning sought to be placed upon it on behalf of the appellant, the word "surrender" used in the Transfer of Property Act would have been more appropriate.
Sections 15 and 18 of the Act were referred to in this connection but in our opinion they lend no assist ance to the argument of the learned counsel.
Any sublet ting, assignment or transfer in any other manner of his interest by the tenant is made unlawful under 423 section 15.
Section 18 deals with the grant, renewal or continuance of a lease of any premises or the giving of his consent by the landlord to the transfer of a lease by sub lease or otherwise, and it provides that the landlord, who receives any fine, premium, or other like sum or deposit, or any consideration for the grant, renewal or continuance or the accord of consent oh would be guilty of an offence and liable to the punishment therein specified.
It would thus be seen that an assignment of the lease or transfer in any other manner by a tenant is not made an offence; the statute merely says that it is not a lawful transaction.
It is the landlord 's consent to the transfer of a lease by sub lease or otherwise on receipt of consideration that has been made an offence.
Then follows section 19 which speaks of the relinquishment of his tenancy of any premises by a tenant.
If, by the expression, an assignment such as we have in the present case was meant, appropriate words could have been used, such as the transfer by a tenant of his interest, which we find in section 108, sub clause (i), of the Trans fer of Property Act.
The distinction between an assignment on the one hand and relinquishment or surrender on the other is too plain to be ignored.
In the case of an assignment, the assignor contin ues to be liable to the landlord for the performance of his obligations under the tenancy and this liability is contrac tual, while the assignee becomes liable by reason of privity of estate.
The consent of the landlord to an assignment is not necessary, in the absence of a contract or local usage to the contrary.
But in the case of relinquishment, it cannot be a unilateral transaction; it can only be in favour of the lessor by mutual agreement between them.
The relin quishment of possession must be to the lessor or one who holds his interest.
In fact, a surrender or relinquishment terminates the lessee 's rights and lets in the lessor.
It is no doubt true that the word "relinquishment" does not occur in the Transfer of Property Act but it is found in many of the Tenancy Acts in various provinces where there are Sec tions which deal with the 55 424 relinquishment of their holdings by tenants in favour of the landlord by notice given to him in writing.
The section in question, it should be further noted, does not speak of relinquishment or giving up of possession,in general terms.
The words are "the relinquishment of his tenancy of any premises".
The relinquishment of a tenancy is equivalent to surrender by the lessee or tenant of his rights as such.
Whether abandonment of a tenancy would come within the meaning of relinquishment is a question that does not arise in this appeal, because in the face of Exhibit D, there is no abandonment in the sense that the tenant disappeared from the scene altogether saying nothing and making no arrange ments about his interest and possession under the lease.
As the statute creates an offence and imposes a penalty of fine and imprisonment, the words of the section must be strictly construed in favour of the subject.
We are not concerned so much with what might possibly have been intend ed as with what has been actually said in and by the language employed.
As in our view, there has been no "relinquishment" within the meaning of section 19, sub clause (1), the conviction under sub clause (2) cannot be sustained.
It is set aside and the fine of Rs. 30,000 will be refunded if it has al ready been paid.
The other parts of the order of the learned Presidency Magistrate, as regards the disposal of Rs. 1,000 paid by the complainant to the appellant and the sum of Rs. 29,500 brought in by the police, will, however, stand.
Conviction sit aside.
Agent for respondent No. 1: P.A. Mehta.
Agent for respondent No. 2: Ganpat Rai.

Response:
Sub section (1) of sec.
19 of the Bombay Rents, Hotel and Lodging House Rates Control Act, LVI I of 1947, provided that "it shall not be lawful for the tenant or any person acting or purporting to act on behalf of the tenant to claim or receive any sum or any consideration as a condition for the relinquishment of his tenancy of any premises"; and sub sec.
(2) provided that any tenant or person who in contravention of the provisions of sub sec.
(1) receives any sum or consideration shall on conviction be punished with imprisonment and also with fine.
A. who was a tenant of a flat, handed over vacant posses sion the flat to B on receiving "pugree", under a document which recited that A shall have no claim whatever over the flat and that B shall pay the rent directly to the landlord.
A was convicted of an offence under sec.
19 (2).
Held, that there was no "relinquishment" of his tenancy by A, within the meaning of sec.
19 (1) and the conviction could not be sustained.
There is a clear distinction between an assignment of a tenancy on the one hand and a relinquishment or surrender on the other.
In the case of an assignment, the assignor con tinues to be liable to the landlord for the performance of his obligations under the tenancy and this liability is contractual, while the assignee becomes liable by reason of privity of estate.
The consent of the landlord to an as signment is not necessary, in the absence of a contract or local usage to the contrary.
But in the case of relinquish ment it cannot be a unilateral transaction; it can only be in favour of the lessor by mutual agreement between them.
Relinquishment of possession must be to the lessor or one who holds his interest; and surrender or relinquishment terminates the lessee 's rights and lets in the lessor.
As sec.
19 of Bombay Act LVII of 1947 creates an offence and imposes a penalty of fine and imprisonment, the words of the section must be strictly construed in favour of the subject.
The Court is not concerned so much with what might possibly have been intended as with what has been actually said in and by the language employed in the statute.
Judgment of the Bombay High Court reversed.


Prompt:
: Civil Appeals Nos 188 to 190 of 1958.
Appeals from the judgment and order dated November 20, 1957, of the Andhra Pradesh High Court, in Writ Petitions Nos. 1 of 1956, 19 and 470 of 1957.
A. V. Viswanatha Sastri, V. Vedantachari and K. Sundararajan, for the appellant.
H. N. Sanyal, Additional Solicitor General of India, D. Venkatappiah Sastri and T. M. Sen for respondent No. 1.
K. R. Choudhuri, for respondent No. 2. 1959.
August 14.
The Judgment of the Court was delivered by DAs C. J.
These three appeals are directed against the judgment and order pronounced by a Bench of the Andhra Pradesh High Court on November 20, 1957, whereby three writ petitions, namely, No. 1 of 1956, No. 19 of 1957 and No. 470 of 1957, which had been filed by the appellant and were heard together, were dismissed with costs.
These appeals have been filed with certificates granted by the High Court of Andhra Pradesh .
The circumstances under which the three writ petitions came to be filed by the appellant may now be narrated.
It is alleged that on January 10, 1942, an agreement was entered into between the Rajah of Venkatagiri and one Sri Balumuri Nageswara Rao whereby the Rajah agreed to give annual leases in respect of certain slate quarries within his estate for five years in succession commencing from February 1942 if the Rajah was satisfied with the work carried on by the lessee during the preceding year.
It was 551 further stipulated that if the leases were given continuously for five years, then the lessee would be entitled at the end of the fifth year to obtain a lease from the Rajah for a period of 20 years commencing from the termination of the fifth year.
On the expiry of the fifth year, however, the Rajah granted another lease to the said Balumuri Nageswara Rao for a short period commencing from February 1, 1947, and ending on November 30, 1947.
On December 10, 1947 the said Balumuri Negeswara Rao is said to have assigned his right, title and interest under the said agreement dated January 10, 1942, to the appelent of the sons of the Rajah.
The Rajah on the same day granted a lease for twenty years to the appellant.
On September 7, 1949 the Venkatagiri estate was notified under section 3 of the Madras Estate (Abolition and Conversion into Ryotwari) Act 1948 (Madras Act XXVI of 1948), hereinafter referred to as the abolition Act.
On the same date the appellant applied to the Collector for confirmation of the lease 'granted by the Rajah to him.
Nothing appears to have happened until February 12, 1952, when a notice was issued from the office of the Board of Revenue (Andhra) calling upon the appellant to show cause within two months from the date of receipt of.
that notice as to why the lease should not be terminated without any compensation under the second proviso to section 20(1) of the Abolition Act.
The appellant showed cause which apparently did not satisfy the said authorities.
Instructions appear to have been issued to the manager of the Venkatagiri estate requiring him to take over possession of the slate quarries which were then being worked by the appellant immediately after the expiry of two months ' notice issued to him.
The appellant promptly filed a writ petition, No. 287 of 1952 in the Madras High Court praying for the issue of a writ in the nature of a writ of mandamus directing the Madras State to forbear from terminating the leasehold right of the petitioner in the slate quarries and from interfering with his possession and working of the slate quarries and other ancillary reliefs.
The writ petition having come up for hearing before 555 Umamaheswaram, J:., the learned Judge on July 18, 1955, made an order directing the Government to hold, an enquiry under section 20 of the Abolition Act and decide whether the lease had been granted prior or subsequent to July 1, 1945.
The order required the Government to hold the enquiry and pass the appropriate orders within three months from the date of that order.
The Board of Revenue caused an enquiry to made by the Director of Settlements who, after taking evidence, oral and documentary, made his report to the Board of Revenue.
The Board of Revenue submitted a report to the Government on October 20, 1955, and the Government after considering the Board 's report instructed the latter to dispose of the case on merits.
Thereupon the Board of Revenue passed an order on December 27, 1955, declaring that the lease to the appellant had been granted subsequent to July 1, 1945, and that, as the lease was for a period exceeding one year, it was not enforceable against the Government, according to the second proviso to section 20 (1) of the Abolition Act.
On that finding the Board of Revenue declined to ratify the lease and terminated it under the powers delegated to it under the Rules framed under the Abolition Act.
The Board of Revenue also directed the Collector to take possession of the slate quarries from the appellant.
The appellant promptly filed writ petition No. 1 of 1956 praying for the issue of a writ of mandamus directing the State of Andhra Pradesh to forbear from terminating his leasehold right in the slate quarries.
He filed another petition, being writ petition No. 19 of 1957, for the issue of a writ of certiorari to quash the order made by the Board of Revenue on December 27, 1955.
In the meantime on September 21, 1955, the appellant had applied to the Board of Revenue, Andhra for renewal of the lease under r. 47 of the Mineral Concession Rules, 1949.
That application was dismissed on May 23, 1957.
The appellant thereupon filed a writ petition No. 476 of 1957 for quashing the last mentioned order passed by the Board of Revenue or, in the alternative, for the issue of a writ of mandamus 556 directing the State of Andhra Pradesh to issue a fresh lease in accordance with r. 47 of the Mineral Concession Rules, 1949.
All these writ petitions were heard together and were disposed of by a common judgment against which these appeals have been filed.
The principal question canvassed before us is that the termination of the appellant 's lease by the order dated December 27, 1955, was bad as it did not give three months ' notice to the appellant or provide for any compensation as required by section 20 of the Abolition Act.
The answer to the question depends on a true construction of that section which runs thus: "20.
(1) Saving of rights of certain lessees and others.
In cases not governed by sections 18 and 19, where before the notified date, a landholder has created any right in any land (whether by way of lease or otherwise) including rights in any forest, mines or minerals, quarries, fisheries or ferries, the transaction shall be deemed to be valid; and all rights and obligations arising thereunder, on or after the notified date, shall be enforceable by or against the Government: Provided that the transaction was not void or illegal under any law in force at the time: Provided further that any such right created on or after the 1st day of July 1,945 shall not be enforceable against the Government, unless it was created for a period not exceeding one year : Provided also that where such right was created for a period exceeding one year, unless it relates to the private land of the landholder within the meaning of section 3, clause (10), of the Estates Land Act, the Government may, if, in their opinion, it is in the public interest to do so, by notice given to the person concerned, terminate the right with effect from such date as may be specified in the notice, not being earlier than three months from the date thereof.
(2) The person, whose right has been terminated by the Government under the foregoing proviso, shall be entitled to compensation from the Government which shall be determined by the Board of 557 Revenue in such manner as may be prescribed, having regard to the value of the right and the unexpired portion of the period for which the right was created.
The decision of the Board of Revenue shall be final and not be liable to be questioned in any Court of law.
The long title and the preamble to the Abolition Act indicate, it is urged, that the object of the Act is to provide for the acquisition of the rights of landholders and that the policy of the Act is not to interfere with the rights of other persons in the estate.
This assumption, however, is not borne out by the substantive provisions of the Act itself.
Section 3 sets forth the consequences which ensue on the notification of an estate and it is clear that on an estate being notified the entire estate is to stand transferred to the Government and all rights and interests created in or over the estate before the notified date by the principal or any other landholder must, as against the Government cease and determine.
We are next reminded that the Abolition Act was enacted when section 299 of the Government of India Act, 1935, was in force.
Under that section no property could be acquired save for a public purpose and save by authority of a law which provides for compensation.
The Abolition Act was enacted by the Madras Legislature in exercise of the legislative power con ferred on it by the Government of India Act, 1935.
According to learned counsel for the appellant, the Court must assume that the Madras legislature acted properly and within the limits of powers conferred on it.
The Court must, therefore, interpret the provisions of the Abolition Act on the footing that it is a valid piece of legislation and that its provisions do not offend section 299 of the Government of India Act, 1935.
The Abolition Act is a law for the compulsory acquisition of property and, therefore, the court must put that interpretation on the relevant sections which will result in the payment of compensation to the person who is deprived of his property.
It may be conceded 71 558 that normally this is the correct approach to the problem, but the argument loses much of its force.
When we advert to the provisions of article 31(6) and 31 B of the Constitution of India read with the Ninth Schedule thereto.
Those provisions proceed on the assumption that certain laws passed under the Government of India Act, 1935, did offend section 299 of that Act and expressly save those Acts.
The Abolition Act is one of the Acts included in the Ninth Schedule and is protected by article 31B.
In the circumstances, the court must interpret the Abolition Act as it finds it by giving the ordinary and natural meaning to the words used by the Madras legislature and uninfluenced by any pre conceived notion as to validity of the Abolition Act.
provision for payment of compensation for the determination of rights created before the notified date is provided in sub section
(2) of section 20 of the Abolition Act.
Under that sub section a person can claim compensation only when his right is terminated by the Government under "the foregoing proviso".
The words "foregoing proviso", it is conceded, refer to the third proviso to sub section
The endeavour of learned counsel for the appellant, therefore, is to induce us to hold that the termination of the appellant 's leasehold rights which were created on or after July 1, 1945, could only be done under the third proviso, for other wise the provisions of sub section
(2) which provide for compensation will not be attracted.
Action taken by the Government under the third proviso to sub section
(1) can be supported only if the conditions said down in that proviso can be shown to have been complied with, namely, that the Government had formed the opinion that it was in the public interest to terminate such lease and that three months ' notice had been given before such termination.
The argument is that the second proviso is merely declaratory and the third proviso supplies the machinery for giving effect to the provisions of the second proviso.
According to the argument the third proviso is not an independent proviso but is a sort of proviso to the second proviso.
In other words, the third proviso, according to learned counsel 559 for the appellant, merely enables the Government to exercise the right conferred on it by the second proviso and therefore, the Government, if it intends to avail itself of the right under the second proviso, must comply with the conditions laid down in the third proviso.
It is said that the words " such right " in the third proviso relate to the rights mentioned in the second proviso, that is to say, rights created on or after July 1, 1945.
The scheme of section 20 of the Abolition Act is said to be to provide, firstly that rights created by way of lease or otherwise by the landholder prior to the notified date should be deemed to be valid and all rights and obligations arising thereunder on or after the notified date should be enforceable by or against the Government.
We start with this broad proposition.
Then we come to the provisos.
We may omit the first proviso, for it has no application to the facts of this case.
The implications of the second proviso, learned counsel for the appellant points out, are two fold, namely, (a) that all rights created before the notified date but after July 1, 1945, for a period not exceeding one year would be valid and enforceable both by and against the Government by the operation of the body of sub section
(1) itself and (b) that rights created before the notified date but after July 1, 1945, for a period exceeding one year would also be valid and enforceable by the Government against the person in whose favour such right had been created by reason of section 20(1).
Then we have the express provision of the second proviso, namely, that rights created before the notified date but after July 1, 1945, for a period exceeding one year would not be enforceable against the Government.
In other words, the true meaning of the second proviso is said to be that rights created after July 1, 1945, are only voidable at the instance of the Government and that being the position, the Government must do some overt act to terminate the transaction.
The machinery for such a termination, it is urged, is to be found in the third proviso and the conclusion is pressed upon us that such termination can be brought about only on the fulfilment of the conditions laid down in the third proviso.
The final step in the argument is 560 that the person Whose rights are terminated under the third proviso which is the " foregoing proviso " referred to in sub section
(2) must, therefore, be entitled to compensation under sub section
We are unable to accept this line of argument as correct.
The provision of section 20 of the Abolition Act has been considered and construed by a Bench of the Madras High Court.
We may, with advantage, quote here a part of the views expressed by Venkatarama Ayyar, J., in delivering the judgment of that Bench in A.M.S.S. V.M. & Co. vs The state of Madras (1).
" The argument of the petitioners is that the words " such rights " in the third proviso have reference to the rights created after the 1st July, 1945, mentioned in the previous proviso and on that construction, the lease in favour of the petitioners could be terminated only in accordance with that proviso by giving three months ' notice.
But this is to read the third proviso as a proviso not to the section, but to the second proviso and there is no warrant in law for such a construction.
The words " such rights refer in the second proviso only to the right dealt with in the body of the section, and those words occurring in the third proviso, should also bear the same interpretation.
That the third proviso does not govern the second proviso is also clear if the scope of the two provisos is examined.
Under the second proviso, leases for a period exceeding one year and created after 1st July, 1945, are not enforceable against the Government.
That is to say, the Government can elect to disaffirm them and they become, on such disaffirmance, void.
If the third proviso also applies to such leases, as the petitioners contend, then the lease can be terminated only if the Government is satisfied that it is in the public interest that it should be terminated and that further, in such cases, the lessee will also be entitled to compensation under section 20(2).
In other words, while under the second proviso the Government can terminate the lease at its option and unconditionally, under proviso (iii) that can be done only if it is in (1) I.L.R. ,1195.
561 public interest and, in that event, on payment of compensation, and this repugnancy can be avoided,., only by construing them as referring to different subjects.
Then again, there is in proviso (iii) an exception with reference to rights created over private lands; there is nothing corresponding to it in the second proviso and that also shows that the scope of the two provisos is different.
The true effect of the section can be stated in three proposi tions: (i) Rights validly created prior to 1st July, 1945, will be valid; (ii) such rights, however, may be determined under the third proviso if it is in the public interest to do so and in such cases, compensation will be payable under section 20(2); and (iii) rights created after 1st July, 1945, if they are for a period exceeding one year, are liable to be avoided under the second proviso.
In this view, we are of opinion that the notice, dated 13th March 1951, falls under the second proviso and is valid.
" It is pointed out that the attention of the Madras High Court was not drawn to the rule framed by the Governor of Madras in exercise of powers conferred on him by section 67 (1) and (2) of the Abolition Act.
That rule runs as follows: " Rule In the case of any right in any land created by a landholder on or after the 1st day of July 1945 for a period exceeding one year and falling under the second proviso to section 20(1) of the said Act, the authority to decide whether the right should be terminated or allowed to continue shall be the Board of Revenue.
Any order passed by the Board of Revenue under this rule shall be subject to revision by the Government.
" We do not think that the rule in any way impairs the correctness of the Madras decision.
It will be noticed that rule only indicates the authority who is to decide whether the right falling under the second proviso should be terminated or allowed to continue.
It 'does not purport to lay down the manner in which such termination is to be brought about.
In other words, that rule does not, in terms, attract the 562 operation of the third proviso at all.
Even if that rule has the effect contended for, it cannot, in our view, change the meaning of section 20 which we gather on a true construction thereof.
In our view the scheme of the Act is to render ineffective all rights created after July 1, 1945, for a period exceeding one year.
In one view of the matter it may well be taken as meaning that the creation of rights after July 1, 1945 is, by the force of the second proviso itself, void as against the Government without any further necessity for any overt act to be done by the Government to avoid the same.
In that sense the second proviso would be a self contained proviso and the aid of the third proviso would be wholly uncalled for.
But assuming that the effect of the second proviso is to make the rights created after July 1, 1945, only voidable and not void, all that follows is that the Government must do something to avoid them.
There is no warrant for saying that the avoidance must be under the terms of the third proviso.
If the third proviso at all applied to rights created after July 1, 1945, then the second proviso would be otiose and need not have been enacted at all.
In our opinion the third proviso deals with the termination of rights created before July 1, 1945.
The second proviso makes rights created after July 1, 1945, unenforceable as against the Government.
The reason for conferment of such an unconditional right on the Government is well known, for it was on that crucial date that the party which came into power later declared its intention to abolish all zemindaries and intermediary interest in land.
The second proviso was enacted to nullify the creation of rights in anticipation of the impending legislation and hence it was made unconditional.
If any condition was intended to be super imposed on the right of the Government to terminate the rights created after July 1, 1945, one would have expected those conditions to be mentioned in the second proviso itself.
In out opinion, there is no substance in the principal point urged by learned counsel appearing for the appellant before us.
It was somewhat faintly argued by learned counsel for the appellant that the Government should have 563 allowed the appellant 's application for the renewal of his lease under r. 47 of the Mineral Concession Rules of 1949.
The argument is wholly untenable.
That ' rule provides that a mining lease granted by a private person shall be subject to certain conditions therein specified.
The first condition thus laid down is that the term of the lease should be renewed at the option of the lessee for one period not exceeding the duration of the original lease.
The effect of this rule is, as it were, to insert statutorily some new terms in the lease itself.
In other words, this rule does not do anything more than add some terms to the lease.
When, however, the lease is determined under the second proviso, these terms must also fall with it.
No other point has been urged before us and for reasons stated above, we think that these appeals should be dismissed with costs and we order accordingly.
Appeals dismissed.

Response:
The principal question for determination in these appeals, arising out of writ petitions filed in the High Court, related to the validity of an order passed by the Board of Revenue (Andhra) terminating the appellant 's lease in respect of certain state quarries situated in the Venkatagiri Estate, which had been notified under section 3 of the Madras Estate (Abolition and Conversion into Ryotwari) Act, 1948 (Mad. XXVI Of I948), under the second proviso to section 20(1) of the Act, on the finding that the said lease was granted subsequent to July I, 1945, and was for a period exceeding one year, without giving the appellant three months ' notice under the third proviso to that section or providing for compensation under sub section
(2) thereof.
The appellant had also claimed renewal of.
, the lease under r. 47 Of the Mineral Concession Rules, 1949, which was rejected by the Board as well as by the High Court.
The contention on behalf of the appellant, in substance, was that the words "such right" in the third proviso to section 20(1) referred to the right mentioned in the second proviso, namely, the right created on or after July 1, 1945, and thus made applicable to it the provision of sub section
(2)of the section, and before such right could be terminated the provisions of the third proviso relating to notice and sub section
(2) as to compensation had to be complied with.
Held, that the contention raised on behalf of the appellant was without substance and must be negatived.
The scheme of the Act was to render all rights created after July 1, 1945, and for a period exceeding one year, ineffective and section 20, properly construed, made it amply clear that its second proviso was a self contained provision that rendered such rights void against the Government and, even if they were voidable and not void, the aid of the third proviso was wholly uncalled for.
The third proviso must be held to refer solely to termination of rights created before July i, 1945.
A. M. section section V. M. & Co. vs The State of Madras, I.L.R. , referred to.
553 The rule framed by the Madras Governor in exercise of the powers conferred on him by section 67(6) and (2) of the Act could not attract the operation of the third proviso nor could it change the true meaning Of section 20 Of the Act.
Held, further, that r. 47 Of the Mineral Concession Rules, 1949, which could at best insert a few terms in the lease, could not apply to a case, such as the present one, where the lease itself stood determined under the second proviso Of section 20 of the Act and its terms fell with it.