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

2. The facts of this case are not in dispute. Shortly stated, they are as follows. By virtue of a lease dated October, 30, 1939, the defendants obtained a lease of the disputed lands from the plaintiff for a period of 10 years, expiring on October 30, 1949. The lands in dispute have been found to lie within two miles of the limits of Poona Municipality. The landlord gave notice on October 22, 1948, terminating the tenancy as from October 30, 1949. As the defendants did not vacate the land, in terms of the notice aforesaid, the plaintiff instituted the suit for ejectment in the Court of the Civil Judge, Junior Division at Poona in Civil Suit No. 86 of 1950. The Act of 1939 became law on March 27, 1940, but the Act was applied to Poona area with effect from April 11, 1946. Under S. 3 of the Act, a tenant shall be deemed to be a protected tenant in respect of any land if he has held such land continuously for a period of not less than six years immediately preceding either the first day of January, 1938 or the first day of January 1945 (added by the Amending Act of 1946) and has cultivated such land personally during the aforesaid period. It is not disputed that the defendants-appellants became entitled to the status of protected tenants as a result of the operation of the Act, as amended by the Bombay Tenancy (Amendment) Act, 1946 (Bombay Act XXVI of 1946), and under S. 3A (1) the defendants were deemed to be Protected tenants under the Act and their rights as such were recorded in the Record of Rights.

Reasoning: 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that the mere right, existing at the date of a repealing statute, to take advantage of provisions of the statute repealed is not a right accrued within the meaning of the usual saving clauseIn the instant case, the right of a protected tenant had accrued to the appellants while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.