Case: Sakharam Bapusaheb Narayan Sanas And Another Vs. Manikchand Motichand Shah And Another

right of the original grantee was a right but it was not a right accrued within the meaning of the repealed statute. It was held not to have accrued because the option given to the original grantee to make additional purchases had not been exercised before the repeal. In other words, the right which was sought to be exercised was not in existence at the date of the repealing Act, which had restricted those rights.In the instant case, the right of a protected tenant had accrued to the appellants while the Act of 1939 was still in force, without any act on their part being necessary. That right had been recognised by the public authorities by making the relevant entries in the Record of Rights, as aforesaid. On the other hand as already indicated, S. 3A(1) of the Act of 1939 had given the right to the landlord-respondent to take proceedings to have the necessary declaration made by the mamlatdar that the tenant had not acquired the status of a protected tenant. He did not proceed in that behalf. Hence, it is clear that so far as the appellants were concerned, their status as protected tenants had been recognised by the public authorities under the Act of 1939, and they had to do nothing more to bring their case within the expression right accrued, in cl. (b) of S. 89(2) of the Act of 1948. 6. It having been held that the second ground of attack against the claim made by the appellants is not well-founded in law, it now remains to consider whether the first ground, namely, that there is an express provision in S. 88, within the meaning of S. 89 (2) (b), taking away the appellants right, is supported by the terms of Ss. 88 and 89. In this connection, it was pointed out on behalf of the respondent that S. 88(1) in terms provides that Ss. 1 to 87 of the Act of 1948 stall not apply to lands of the situation of the disputed lands; and S. 31 has been further pressed in aid of this argument. Section 31 has already been quote and it begins with the words "For the purposes of this Act." The provisions of the Act of 1948 relating to the rights and liabilities of a protected tenant are not the same as those under the Act of 1939. Hence, though the provisions of Ss. 3, 3-A and 4 of the earlier Act of 1939 have been adopted by the later Act, it has been so done in the context of the later Act, granting greater facilities and larger rights to what are described as protected tenants. In other words S. 31 has been enacted not to do away with the rights contained in Ss. 3, 3-A and 4 of the earlier statute, but with a view to apply that nomenclature to larger rights conferred under the Act of 1948. The provisions of S. 88 are entirely prospective. They apply to lands of the description contained in cls. (a) to (d) of S. 88(1) from the date on which the Act came into operation, that is to say, from December 28, 1948. They are not intended in any sense to be of a confiscatory character. They do not show an intention to take away what had already accrued to tenants acquiring, the status of protected tenants. On the other hand, S. 89(2)(b), quoted above, clearly shows an intention to conserve such rights as had been acquired or had accrued before the commencement of the repealing Act.But it has further been contended on behalf of the respondent, in ground 3 of the attack, that sub-cl. (ii) of cl. (b) of S. 89 (2) would indicate that the legislature did not intend completely to re-enact the provisions of S. 7 of the Bombay General Clauses Act. This argument is based on the absence of the word instituted before the words continued and disposed of. In our opinion there are several answers to this contention. In the first place, sub-cl (i) is independent of sub-cl. (ii) of cl. (b) of S. 89(2). Therefore sub-cl. (ii), which has reference to pending litigation, cannot cut down the legal significance and ambit of the words used in sub-cl (i). Sub- cl. (ii) may have reference to the forum of the proceedings, whether the Civil Court or the Revenue Court shall have seizin of proceedings taken under the repealed Act. We have already held that the expression right accrued in sub-cl (i) does not exclude the rights of protected tenants claimed by the appellants. It is well settled that where there is a right recognised by law, there is a remedy, and, therefore, in the absence of any special provisions indicating the particular forum for enforcing a particular right the general law of the land will naturally take its course. In this connection it is relevant to refer to the observations of the High Court that even if it were to be assumed that the right as a protected tenant remained vested in the defendants even after the enactment of S. 88(1), that Fight, in its enforcement against the plaintiff, must be regarded as illusory." In our opinion, those observations are not well-founded. Courts will be very slow to assume a right and then to regard it as illusory, because no particular forum has been indicated. Lastly, the legal effect of the provisions of sub-cl. (ii) aforesaid is only this that any legal proceeding in respect of the right claimed by the defendants shall be continued and disposed of as if the Act of 1948 had not been passed. Applying those words to the present litigation the inference is clear that the controversy has to be resolved with reference to the provisions of the repealed statute. That being so, in our opinion, the intention of the legislature was that the litigation we are now dealing with should be disposed of in terms of the repealed statute of 1939.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]In our opinion there is no substance in this contention. The observations, quoted above made by the Lord Chancellor, with all respect, are entirely correct, but have been made in the context of the statute under which the controversy had arisenIt is, thusr that the context in which the observations relied upon by the respondent, as quoted above, were made is entirely different from the context of the present controversy. That decision is only authority for the proposition that the mere right, existing at the date of a repealing statute, to take advantage of provisions of the statute repealed is not a right accrued within the meaning of the usual saving clauseIn the instant case, the right of a protected tenant had accrued to the appellants while the Act of 1939 was still in force, without any act on their part being necessary. That right had been recognised by the public authorities by making the relevant entries in the Record of Rights, as aforesaid. On the other hand as already indicated, S. 3A(1) of the Act of 1939 had given the right to the landlord-respondent to take proceedings to have the necessary declaration made by the mamlatdar that the tenant had not acquired the status of a protected tenant. He did not proceed in that behalf. Hence, it is clear that so far as the appellants were concerned, their status as protected tenants had been recognised by the public authorities under the Act of 1939, and they had to do nothing more to bring their case within the expression right accrued, in cl. (b) of S. 89(2) of the Act of 1948On the other hand, S. 89(2)(b), quoted above, clearly shows an intention to conserve such rights as had been acquired or had accrued before the commencement of the repealing Act.But it has further been contended on behalf of the respondent, in ground 3 of the attack, that sub-cl. (ii) of cl. (b) of S. 89 (2) would indicate that the legislature did not intend completely to re-enact the provisions of S. 7 of the Bombay General Clauses Act. This argument is based on the absence of the word instituted before the words continued and disposed of. In our opinion there are several answers to this contention. In the first place, sub-cl (i) is independent of sub-cl. (ii) of cl. (b) of S. 89(2). Therefore sub-cl. (ii), which has reference to pending litigation, cannot cut down the legal significance and ambit of the words used in sub-cl (i). Sub- cl. (ii) may have reference to the forum of the proceedings, whether the Civil Court or the Revenue Court shall have seizin of proceedings taken under the repealed Act. We have already held that the expression right accrued in sub-cl (i) does not exclude the rights of protected tenants claimed by the appellants. It is well settled that where there is a right recognised by law, there is a remedy, and, therefore, in the absence of any special provisions indicating the particular forum for enforcing a particular right the general law of the land will naturally take its courseIn our opinion, those observations are not well-founded. Courts will be very slow to assume a right and then to regard it as illusory, because no particular forum has been indicated. Lastly, the legal effect of the provisions of sub-cl. (ii) aforesaid is only this that any legal proceeding in respect of the right claimed by the defendants shall be continued and disposed of as if the Act of 1948 had not been passed. Applying those words to the present litigation the inference is clear that the controversy has to be resolved with reference to the provisions of the repealed statute. That being so, in our opinion, the intention of the legislature was that the litigation we are now dealing with should be disposed of in terms of the repealed statute of 1939.