Case: Mohanlal Chunilal Kothari Vs. Tribhovan Haribhai Tamboli

To that extent the decision of this Court is really against the appellants. It is clear that the appellants cannot take advantage of what was a mere slip in so far as cl.(d) was added to the other clauses of S. 88(1), when that clause really did not fall to be considered with reference to the controversy in that case. In other words, this Court never intended in its judgment in Sakharams case, Civil Appeal No. 185 of 1956, D/-19-4-1961 : (AIR 1963 SC 354 ) (supra) to lay down that the provisions of cl. (d) of S. 88(1) aforesaid were, only prospective end had no retrospective operation. Unlike cls. (a), (b) and (c) of S. 88 (1), which this Court held to be clearly prospective, those of cl. (d) would in the context have retrospective operation in the sense that it would apply to land which could be covered by the notification to be issued by the Government from time to time so as to take those lands out of the operation of the Act of 1948, granting the protection. So far as cls. (a), (b) and (c) are concerned, the Act of 1948 would not apply at all to lands covered by them. But that would not take away the rights conferred by the earlier Act of 1939 which was being repealed by the Act of 1948. This is made clear by the provision in S. 89(2) which preserves existing rights under the repealed Act, Sakharams case, Civil Appeal No. 185 of 1956, D/-19-4-1961: (AIR 1963 SC 354 ,) (supra) was about the effect of cl. (c) on the existing rights under the Act of 1939 and it was in that connection that this Court observed that S. 88 was prospective. But cl.(d) is about the future and unless it has the limited retrospective effect indicated earlier it will be rendered completely nugatory. The intention of the legislature obviously was to take away all the benefits arising out of the Act of 1948 (but not those arising from the Act of 1939) as soon as the notification was made under cl. (d). This is the only way to harmonise the other provisions of the 1948-Act, conferring certain benefits on tenants with the provisions in cl. (d) which is meant to foster urban and industrial development. The observations of the High Court to the contrary are, therefore, not correct.6. But the matter does not rest there. The notification of April, 24, 1951, was cancelled by the State Government by the following notification dated January 12, 1953:"Revenue Department, Bombay Castle, 12th January, 1953. Bombay Tenancy and Agricultural Lands Act, 1948.No. 9361/ 49: In exercise of the powers conferred by clause (d) of sub-sec. (1) of S. 88 of the Bombay Tenancy and Agricultural Lands Act, 1948 (Bombay LXVII of 1948). The Government of Bombay is pleased to cancel Government Notification in the Revenue Department No. 9361/49 dated the 24th / 25th April, 1951."7. It would thus appear that when the matter was still pending in the Court of Appeal, the judgment of the Lower Appellate Court being dated September 27, 1954, the notification cancelling the previous notification was issued. The suit had, therefore, to be decided on the basis that there was no notification in existence under S. 88(1) (d), which could take the disputed lands out of the operation of the Act. This matter was brought to the notice of the learned Assistant Judge, who took the view that though, on the merger of Baroda with Bombay in 1949, the defendants had the protection of the Act, that protection had been taken away by the first notification, which was cancelled by the second. That Court was of the opinion that though the Appellate Court was entitled to take notice of the subsequent events, the suit had to be determined as on the state of facts in existence on the date of the suit, and not as they existed during the pendency of the appeal. In that view of the matter, the learned Appellate Court held that the tenants-defendants could not take advantage of the provisions of the Act and could not resist the suit for possession. In our opinion, that was a mistaken view of the legal position. When the judgment of the lower Appellate Court was rendered, the position in fact and law was that there was no notification under cl. (d) of S. 88(1) in operation so as to make the land in question immune from the benefits conferred by the Tenancy Law. In other words, the tenants could claim the protection afforded by the law against eviction on the ground that the term of the lease had expired. But it was argued on behalf of the appellants that the subsequent notification, cancelling the first one, could not take away the rights which had accrued to them as a result of the first notification. In our opinion, this argument is without any force. If the landlords had obtained an effective decree and had succeeded in ejecting the tenants as a result of that decree, which may have become final between the parties, that decree may not have been reopened and the execution taken thereunder may not have been recalled. But it was during the pendency of the suit at the appellate stage that the second notification was issued cancelling the first. Hence, the Court was bound to apply the law as it found on the date of its judgment. Hence, there is no question of taking away any vested rights in the landlords. It does not appear that the second notification, cancelling the first notification, had been brought to the notice of the learned Single Judge, who heard and decided the second appeal in the High Court. At any rate, there is no reference to the second notification. Be that as it may, in our opinion, the learned Judge came to the right conclusion in holding that the tenants could not be ejected, though for wrong reasons.

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

Explanation:
0[ds]5. It will be noticed that cls. (a), (b) and (c) of S. 88(1) apply to things as they were at the date of the enactment, whereas cl. (d) only authorised the State Government to specify certain areas as being reserved for urban non-agricultural or industrial development, by notification in the Official Gazette, from time to time. Under cls. (a) to (c) of S. 88 (1) it is specifically provided that the Act, from its inception, did not apply to certain areas then identified; whereas cl. (d) has reference to the future. Hence, the State Government could take out of the operation of the Act such areas as it would deem should come within the description of urban non-agricultural or for industrial development. Clause (d), therefore, would come into operation only upon such a notification being issued by the State Government. The portion of the judgment, quoted above, itself makes it clear that the provisions of S. 88 were never intended to divest vested interests. To that extent the decision of this Court is really against the appellants. It is clear that the appellants cannot take advantage of what was a mere slip in so far as cl.(d) was added to the other clauses of S. 88(1), when that clause really did not fall to be considered with reference to the controversy in that case. In other words, this Court never intended in its judgment in Sakharams case, Civil Appeal No. 185 of 1956, D/-19-4-1961 : (AIR 1963 SC 354 ) (supra) to lay down that the provisions of cl. (d) of S. 88(1) aforesaid were, only prospective end had no retrospective operation. Unlike cls. (a), (b) and (c) of S. 88 (1), which this Court held to be clearly prospective, those of cl. (d) would in the context have retrospective operation in the sense that it would apply to land which could be covered by the notification to be issued by the Government from time to time so as to take those lands out of the operation of the Act of 1948, granting the protection. So far as cls. (a), (b) and (c) are concerned, the Act of 1948 would not apply at all to lands covered by them. But that would not take away the rights conferred by the earlier Act of 1939 which was being repealed by the Act of 1948. This is made clear by the provision in S. 89(2) which preserves existing rights under the repealed Act, Sakharams case, Civil Appeal No. 185 of 1956, D/-19-4-1961: (AIR 1963 SC 354 ,) (supra) was about the effect of cl. (c) on the existing rights under the Act of 1939 and it was in that connection that this Court observed that S. 88 was prospective. But cl.(d) is about the future and unless it has the limited retrospective effect indicated earlier it will be rendered completely nugatory. The intention of the legislature obviously was to take away all the benefits arising out of the Act of 1948 (but not those arising from the Act of 1939) as soon as the notification was made under cl. (d). This is the only way to harmonise the other provisions of the 1948-Act, conferring certain benefits on tenants with the provisions in cl. (d) which is meant to foster urban and industrial development. The observations of the High Court to the contrary are, therefore, not correct.It would thus appear that when the matter was still pending in the Court of Appeal, the judgment of the Lower Appellate Court being dated September 27, 1954, the notification cancelling the previous notification was issued. The suit had, therefore, to be decided on the basis that there was no notification in existence under S. 88(1) (d), which could take the disputed lands out of the operation of the Act. This matter was brought to the notice of the learned Assistant Judge, who took the view that though, on the merger of Baroda with Bombay in 1949, the defendants had the protection of the Act, that protection had been taken away by the first notification, which was cancelled by the second. That Court was of the opinion that though the Appellate Court was entitled to take notice of the subsequent events, the suit had to be determined as on the state of facts in existence on the date of the suit, and not as they existed during the pendency of the appeal. In that view of the matter, the learned Appellate Court held that the tenants-defendants could not take advantage of the provisions of the Act and could not resist the suit for possession. In our opinion, that was a mistaken view of the legal position. When the judgment of the lower Appellate Court was rendered, the position in fact and law was that there was no notification under cl. (d) of S. 88(1) in operation so as to make the land in question immune from the benefits conferred by the Tenancy Law. In other words, the tenants could claim the protection afforded by the law against eviction on the ground that the term of the lease had expired. But it was argued on behalf of the appellants that the subsequent notification, cancelling the first one, could not take away the rights which had accrued to them as a result of the first notification. In our opinion, this argument is without any force. If the landlords had obtained an effective decree and had succeeded in ejecting the tenants as a result of that decree, which may have become final between the parties, that decree may not have been reopened and the execution taken thereunder may not have been recalled. But it was during the pendency of the suit at the appellate stage that the second notification was issued cancelling the first. Hence, the Court was bound to apply the law as it found on the date of its judgment. Hence, there is no question of taking away any vested rights in the landlords. It does not appear that the second notification, cancelling the first notification, had been brought to the notice of the learned Single Judge, who heard and decided the second appeal in the High Court. At any rate, there is no reference to the second notification. Be that as it may, in our opinion, the learned Judge came to the right conclusion in holding that the tenants could not be ejected, though for wrong reasons.