Judgment Case ID: 1485

Judgment:
Appeal Nos. 282 & 283 of 1959. Appeals by special leave from the judgment and decree dated December 18	 1956	 of the Bombay High Court at Bombay in Second Appeals Nos. 233 and 185 of 1955 respectively. G. section Pathak	 O. C. Mathur	 J. B. Dadachanji and Ravinder Narain	 for the appellants. section G. Patwardhan and K	 R. Choudhri	 for the respondents. May 2. The Judgment of the Court was delivered by SINHA	 C.J. These two appeals	 by special leave	 directed against the judgment and decree of a single Judge of the Bombay High Court	 raise a common question of law	 and have. therefore	 been heard together. This judgment will govern both the cases. The appellants were plaintiff landlords	 710 and the respondents were tenants in possession of certain lands which were situate in the erstwhile State of Baroda before it became part of the State of Bombay	 by merger. The Bombay Tenancy and Agricultural Lands Act (Bombay Act LXVII of 1948) which hereinafter will he referred to as the Act was extended to Baroda on August 1	 1949. The suits out of which these appeals arise had been instituted by the appellants on the basis that the tenants respondents had become trespassers on the service of notice in March 1950	 with effect from the beginning of the new agricultural section in May 1951. As the defendants did not comply with the terms of the notice and continued in possession of the lands	 to which they had been inducted	 the landlords instituted suits for possession in the Civil Court. The Trial Courts and the Court of Appeal decreed the suits for possession. But on second appeal by the tenants	 the learned Single Judge. who heard the second appeals	 allowed the appeals and dismissed the suits with costs throughout. It is not disputed that if the provisions of the Act were applicable to the tenancies in question	 the plaintiffs ' suits for possession must fail	 because these were instituted in the Civil Courts	 which have Jurisdiction to try the suits only if the dependents were trespassers. It is equally clear that if the tenants could take advantage of the provisions of the Act	 any suit for possession against a tenant would lie in the Revenue Courts and not in the Civil Courts. But reliance was placed upon the notification issued by the Bombay Government on April 24	 1951	 to the following effect : "In exercise of the powers conferred by clause (d) of sub section (1) of Section 88 of the Bombay Tenancy and Agricultural Lands Act	 1948 (Bombay LXVII of 1948) the Government of Bombay is pleased to specify the area 711 within the limits of the Municipal Borough of Baroda City and within the distance of two miles of the limits of the said Borough	 as being reserved for Urban	 non agricultural or industrial development". The learned Judge of the High Court	 in disagreement with the Courts below		 held that under provisions of section 3A(1) of the Bombay Tenancy Act	 1939	 as amended	 a tenant would be deemed to be a protected tenant from August 1	 1950	 ' and that vested right could not be affected by the notification aforesaid	 issued by the Government under section 88 (1)(d) which had the effect of putting the lands in question out of the operation of the Act. In other words	 the learned Judge held the notification had no retrospective effect so as to take away the protection afforded to the tenants by a. 3A	 aforesaid. The learned counsel for the appellants contended. in the first instance	 that the notification	 set out above	 under section 88 (1)(d) operated with effect from December 28	 1948	 when the Act came into force. In this connection	 reliance was placed upon the decision of this Court	 pronounced by me sitting in a Division Court	 in the case of Sakharam vs Manikchand Motichand Shah	 (1) in these words : "The provisions of a. 88 are entirely pro spective. They apply to lands of the descrip tion contained in cls. (a) to (d) of section 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". 712 It is necessary	 therefore	 to make some observations explaining the real position. In that case	 the question then in controversy had particular reference to section 88(1)(c)	 which is the only provision quoted at page 2 of the blue print of the judgment. That case had nothing to do with el. (d) of section 88(1). In that case	 the lands in dispute lay within two miles of the limits of Poona Municipality. It is clear	 therefore	 that the inclusion of el. (d) of section 88(1) was a slip and certainly was not relevant for consideration in that case. The provisions of section 88(1) are as follows : "Nothing in the foregoing provisions of this Act shall apply: (a) to lands held on lease from the Govern ment a local authority or a co operative society; (b) to lands held on lease for the benefit of an industrial or commercial undertaking; (c) to any area within the limits of Greater Bombay and within the limits of the Municipal boroughs of Poona City and Suburban	 Ahmedabad	 Sholapur	 Surat and Hubli and within a distance of two miles of the limit	% of such boroughs; or (d) to any area which the State Government may	 from time to time	 by notification in tile Official Gazette	 specify as being reserved for urban non agricultural or industrial development. It will be noticed that cls. (a)	 (b) and (c) of section 88(1) apply to things as they were at the date of the enactment	 whereas el. (d) only authorised the State Government to specify certainareas as being reserved for urban non agricultural or industrial development	 by notification in the Official Gazette	 713 from time to time. Under cls. (a) to (c) of a. 88(1) it is specifically provided that the Act	 from its inception did not apply to certain areas then identified; whereas el. (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 section 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 and 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 Sakharam 's case`e(1) to lay down that the provisions of cl.(d) of s.88 (1) aforesaid were only prospective and 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 protec tion. So far as cls. (a)	 (b) and (e) 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. Sakharam 's case	 (1) was about the effect of cl. (c) on (1) ; 714 the existing rights under the Act of 1939 and it was in that connection that this Court observed that s.88 was prospective. But el. (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 el. This is the only way to harmonise the other provisions of the 1948 Act	 conferring certain benefits on tenants with the provisions in el. (d) which is meant to foster urban and industrial development. The observations of the High Court to the contrary are	 therefore	 not correct. 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 Landis Act	 1948. No.9361/49 : In exercise of the powers conferred by clause (d) of sub section (1) of Section 88 of the Bombay Tenancy and Agri cultural 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". 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 715 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 tenents 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 re opened 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 canceling the first. Hence	 the Court was bound to 716 apply the	 law as it was 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	 canceling 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. The appeals are accordingly dismissed	 but there would be no order as to costs in this Court	 in view of the fact that the respondents had not brought the second notification cancelling the first to the pointed attention of the High Court. Appeal dismissed.

Summary:
Certain lands were situated in the erstwhile State of Baroda before it became a part of the State of Bombay by merger. The Bombay Tenancy and Agricultural Lands Act	 1948	 was extended to Baroda on August 1	 1949. Suits were filed in the Civil Court by appellants landlord 	 against the respondents who were their tenants on the ground that the latter became trespassers with effect from the beginning of the new agricultural season in May	 1951. Decrees for possession were passed by the Civil Court in favour of landlords and the same were confirmed by the first appellate court. However	 the High ' Court accepted the appeals and dismissed the suits. It was held that under the provisions of section 3 A(1) of the Bombay Tenancy Act	 1939	 as amended	 a tenant would be deemed to be a protected tenant from August 1	 1950 and that vested right could not be affected by the notification dated April 24	 1951 issued under section 89 (1) (d) of the Act of 1948 by which the land in suit was excluded from the operation of the Act. The notification dated April 24	 1931 had no retrospective effect and did not take away the protection 708 afforded to tenants by section 3A. The landlords came to this Court by special leave. It was conceded that the appellants ' suits for possession would fail if the Act applied to the tenancies in question	 because in that case only revenue courts had jurisdiction to try them. However	 reliance was placed on notification dated April 24	1951 which excluded the land in suit from the operation of the Act. It was also contended on behalf of 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. Held	 that the notification dated April 24	 1951 was cancelled by another notification dated January 12	 1953. The second notification was issued when the matter was still pending in the first court of appeal. The suits had therefore to be decided on the basis that there was no notification in existence which would take the disputed lands out of the operation of the Act. The first appellate court was wrong in holding that the suits had to be decided on the basis of facts in existence on the date of filing of the suits. Held	 further	 that the second notification cancelling the first one did not take away any rights which had accrued to the landlords. 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 re opened and the execution taken thereunder may not have been recalled. However	 it was during. the pendency of the suit at the ap pellate stage that the second notification was issued cancelling the first and the court was bound to apply the law as it was on the date of its judgment. Held	 also	 that clauses (a)	 (b) and (c) of section 88(1) applied to things as they were on the date of the commence ment of the Act of 1948 whereas clause (d) 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. It was specifically provided in clauses (a) to (c) that the Act	 from its inception	 did not apply to certain areas then identified	 whereas clause (d) had reference to the future. The State Government could take out of the operation of the Act such areas as in its opinion should be reserved for urban nonagricultural or 'industrial development. Clause (d) would come into operation only upon such a notification being issued by the State Government. In Sukharam 's case	 this Court never intended to lay down that the provisions of 709 clause (d) were only prospective and had no retrospective operation. Unlike clauses (a) to (c) which were clearly prospective	 clause (d) had retrospective operation in the sense that it would apply to land which would be covered by the notification to be issued by the Government from time to 2 time so as to take that land out of the operation of the Act of 1948	 granting the protection. So far as clauses (a) to (c) were 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 Act of 1939 which was repealed by the Act of 1948. Section 89(2) specifically preserved the existing rights under the repealed Act. Sukharam 's case was about the effect of clause (c) on the existing rights under the Act of 1939 and it was in that connection that this Court observed that section 88 was prospective. However clause (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 clause (d). Sakharam vs Manikchand Metichand Shah	 ; 	 explained.