Judgment Case ID: 1390

Judgment:
Appeal No. 185 of 1956. Appeal by special leave from the judgment and decree dated November 25	 1954	 of the Bombay High Court in Second Appeal No. 1003 of 1952. H. R. Gokhale	 J. B. Dadachanji	 section N. Andley	 Rameshwar Nath and P. L. Vohra	 for the appellants. C. B. Agarwala and A. G. Ratnaparkhi	 for the respondent No. 1. April 19. The Judgment of the Court was delivered by SINHA	 C. J. The only question for determination in this appeal is whether the defendants appellants are 'protected tenants ' within the meaning of the Bombay Tenancy Act (Bombay Act XXIX of 1939) (which hereinafter will be referred to	 for the sake of brevity	 as the Act of 1939)	 whose rights as such were not affected by the repeal of that Act by the Bombay Tenancy and Agricultural Lands Act (Bombay Act LXVII of 1948) which hereinafter will be referred to as the Act of 1948). The Courts below have decreed the plaintiff 's suit for possession of the lands in dispute	 holding that the defendants were not entitled to the protection claimed by them as 'protected tenants '. This appeal is by special leave granted by this Court on April 4	 1965. 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 61 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 section 3 of the Act	 a tenant shall be deemed to be a ' protected tenant ' in respect of any land if he has hold 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 defen dants 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 section 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. Sections 3 and 3A(1)	 aforesaid	 are set out below: "3. A tenant shall be deemed to be a protected tenant in respect of any land if (a) he has held such land continuously for a period of not less than six years immediately preceding either (i) the first day of January 1938 or (ii) the first day of January 1945 and (b) has cultivated such land personally during the aforesaid period. 3A(1) Every tenant shall	 on the expiry of one year from the date of the coming into force of the Bombay Tenancy Amendment Act of 1946	 be deemed to be a protected tenant for the purposes of this Act and his rights as such protected tenant shall be recorded in the Record of Rights	 unless his landlord has within the said period made an application to 62 the Mamlatdar within whose jurisdiction the land is situated for a declaration that the tenant is not a protected tenant". Under section 3A(1) aforesaid	 it was open to the landlord	 within one year of the date of the commencement of the Amending Act of 1946	 to make an application to the Mamlatdar for a declaration that the tenant was not a 'protected tenant '. No such proceeding appears to have been taken. As a result of the expiration of one year from November 8	 1946the date of the coming into operation of the Amending Act of 1946 the defendants were deemed to be 'protected tenants ' and it is not disputed that they were recorded as such. Section 4 of the Act	 with which we are not concerned in the present case	 made further provisions for recovery of possession by tenants who had been evicted from their holdings in circumstances set out in that section. The Act	 therefore	 in its terms	 was intended for the protection of tenants in certain areas in the Province of Bombay (as it then was). If nothing had happened later	 the defendants would have had the status of 'protected tenants ' and could not have been evicted from their holdings	 except in accordance with the provisions of the Tenancy Law. But the Act of 1939 was replaced by the Act of 1948. The question that arises now for determination is whether the Act of 1948 wiped out the defendant 's status as 'protected tenants '. For determining this question	 we have naturally to examine the relevant provisions of the later Act. The Act of 1948	 by section 2 cl. (14) prior to its amendment by Bombay Act XIII of 1956	 provides that " protected tenant ' means a person who is recognised to be a protected tenant under section 31". Section 31 runs as follows: "For the purposes of this Act	 a person shall be recognised to be a protected tenant if such person has been deemed to be a protected tenant under section 3	 3A or 4 of the Bombay Tenancy Act	 1939. " The force and effect of section 31 will have to be discussed later while dealing with the arguments raised 63 on behalf of the landlord respondent. The next relevant provisions of the Act of 1948 are those of section 88(1)(c) which reads: "Nothing in the foregoing provisions of this Act shall apply: . . . . . . . . . . . . . . . (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 limits of such boroughs; or. . As already observed	 the lands in dispute in the present controversy have been found to be situate within two miles of the limits of the Poona Municipal Borough	 which	 for the purpose of this case	 has been equated to 'Borough of Poona City and Suburban '. It has been contended on behalf of the respondent that under the later Act the disputed lands are outside the purview of the Act and that	 therefore	 the defendants appellants are not entitled to claim the status of 'protected tenants '. The appellants have answered this contention by reference to the provisions of section 89	 which may now be set out (in so far as they are necessary for the purpose of this case): "89(1) The enactment specified in the Schedule is hereby repealed to the extent mentioned in the fourth column thereof (2) But nothing in this Act or any repeal effected thereby . . . . . . . `. (b) shall	 save as expressly provided in this Act	 affect or be deemed to affect	 (i) any right	 title	 interest	 obligation or liability already acquired	 accrued or incurred before the commencement of this Act	 or (ii) any legal proceeding or remedy in respect of any such right	 title	 interest	 obligation	 or liability or anything done or suffered before the commencement of this Act	 and any such proceeding shall be continued and disposed of	 as if this Act was not passed . ". 64 It has been contended on behalf of the appellants that the repealing section 89	 read with the Schedule	 makes it clear that the whole of sections 3	 3A and 4 of the Act of 1939 have been saved	 subject to certain modifications	 which are not relevant to the present purpose; and that sub section 2(b) of section 89 has in terms	 saved the appellants ' rights as 'protected tenants ' because those rights had already accrued to them under the Act of 1939. But this contention is countered by the learned counsel for the plaintiff respondent on three grounds	 namely	 (1) that section 88 expressly provides that sections 1 to 87 of the later Act shall not apply to lands situate in the Municipal Borough of Poona City and Suburban and within a distance of two miles of the limits of such borough; (2) that what has been saved by cl. (b) of sub section (2) of section 89 is not every right but only such rights as had been actually exercised and recognised; and (3) that the terms of the saving clause	 as contained section 89(2)(b) were not identical with section 7 of the Bombay General Clauses Act	 inasmuch as cl. (b) aforesaid only speaks of such proceedings being continued and disposed of	 without reference to the institution of such proceedings. Shortly put	 the arguments on behalf of the appellants is that the taking away of the status of a protected tenant ' from certain lands	 as specified in section 88	 is only prospective and not retrospective	 whereas the argument on behalf of the respondent is that the repeal was with retrospective effect and only so much was saved as would come directly within the terms of el. (b) of section 89(2)	 and that the right claimed by the appellants was in express terms taken away by section 88. The argument based on the second ground may be disposed of at the outset in order to clear the ground for a further consideration of the effect of sections 88 and 89	 on which the whole case depends. The learned counsel for the plaintiff respondent placed strong reliance upon the following observations of the Lord Chancellor in the case of Abbot vs The Minister for Lands (1): "They think that the mere right (assuming it to (1) 	431. 65 be properly so called)existing in the members of the community or any class of them to take advantage of an enactment	 without any act done by an individual towards availing himself of that right	 cannot properly be deemed a "right accrued" within the meaning of the enactment." The contention is that in order that the defendants appellants could claim the status of 'protected tenants ' as a right accrued under the Act of 1939	 they should have taken certain steps to enforce that right and got the relevant authorities to pronounce upon those rights	 and as no such steps had admittedly been taken by the appellants	 they could not claim that they had a 'right accrued ' to them as claimed. 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 arisen. In that case	 the appellant had obtained a grant in fee simple of certain lands under the Crown Lands Alienation Act	 1861. By virtue of the original grant	 he would have been entitled to claim settlement of additional areas ' if he satisfied certain conditions laid down in the relevant provisions of the statute. The original settle had the right to claim the additional settlements	 if he so desired	 on fulfillment of those conditions. He had those rights to acquire the additional lands under the provisions of the Crown Lands Alienation Act		 1861	 but the Crown Lands Act of 1884	 repealed the previous Act	 subject to a saving provision to the effect that all rights accrued by virtue of the repealed	 enactment shall	 subject to any express provisions of the repealing Act in relation thereto	 remain unaffected by such repeal. The appellants ' contention that under the saving clause of the repealed enactment he had the right to make additional conditional purchases and that was a 'right accrued ' within the meaning of the saving clause contained in the repealing Act of 1884	 was negatived by the Privy Council. It is	 thus;	 clear that the context in which the observations relied upon by the respondent	 as quoted above	 were made is entirely different 9 66 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 clause '. In that ruling	 their Lordships of the Privy Council assumed that the contingent 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	 section 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 bad to do nothing more to bring their case within the expression 'right accrued '	 in el. (b) of section 89(2) of the Act of 1948. 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 section 88	 within the meaning of section 89(2)(b)	 taking away the appellants ' right	 is supported by the terms of sections and 89. In this connection	 it was pointed out on behalf of the respondent that section 88(1) in terms provides that sections 1 to 87 of 67 the Act of 1948 shall not apply to lands of the situation of the disputed lands; and section 31 has been further pressed in laid of this argument. Section 31 has already "been quoted	 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 sections 3	 3 A and 4 of the earlier Act of 1939 have been adopt. ed 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 section 31 has been enacted not to do away with the rights contained in sections 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 section 88 are entirely prospective. They apply to lands of the description contained in cls. (a) to (d) of a. 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	 section 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 section 89(2) would indicate that the legislature did not intend completely to re enact the provisions of section 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 el. (ii) of ol. (b) of section 89(2). Therefore	 sub el. (ii)	 which has reference to pending litigation	 cannot cut down the legal significance and ambit of the words used in sub cl. Sub cl. (ii) may have reference to the forum of the proceedings	 whether the Civil Court or the Revenue Court shall have seizin of 68 proceedings taken under	 the repealed Act. ;We have already held that the expression 'right accrued ' in sub el. (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 section 88(1)	 that right	 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 el. (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. It has not been disputed before us that if that. is done	 there is only one answer to this suit	 namely	 that it must be dismissed with costs. Accordingly	 we allow the appeal	 set aside the judgments below and dismiss the suit with costs throughout	 to the contesting defendants appellants.

Summary:
The appellants had acquired the rights of protected tenants under section 3A(1) of the Bombay Tenancy Act	 1939	 as amended by the Bombay Tenancy (Amendment) Act	 1946	 and their rights as protected tenants were recorded in the Record of Rights. That Act was repealed by the Bombay Tenancy and Agricultural Lands Act	 1948	 which by section 31 recognised the rights of a protected tenant acquired under the Act of 1939 for its own purposes	 by section 88(1)(c) provided	 that nothing in the foregoing provisions of the Act should apply to any area within the limits of the Municipal borough of Poona City and Suburban as also some other boroughs and within a distance of two miles of the limits of such boroughs	 and by section 89(2) that "nothing in this Act or any repeal effected thereby . (b) shall	 save as expressly provided in this Act	 affect or be deemed to affect (i) any right	 title	 interest	 obligation or liability already acquired	 accrued or incurred before the commencement of this Act	 or . . . . . . . . . or . . . . . . . . . (ii) any legal proceeding or remedy in respect of any such right	 title	 interest	 obligation	 or liability or anything done or suffered before the commencement of this Act	 and any such proceeding shall be continued and disposed of	 as if this Act was not passed The lands in dispute were situated within two miles of the limits of the Poona Municipal Borough	 i.e. Poona City and Suburban	 and the question was whether the rights of the appellants as protected tenants therein were. I affected by the repeal. Held	 that the provisions of section 88 of the Bombay Tenancy and Agricultural Lands Act	 1948	 are entirely prospective and apply to such lands as are described in cls. (a) to (d) of section 88(1) from 60 the date on which the Act came into operation i.e. December 28	 1948	 and are not of a confiscatory nature so as to take away from the tenant the status of a protected tenant already accrued to him. Section 89(2)(b) of the Act clearly intends to conserve such rights as were acquired or accrued before its commencement and that any legal proceeding in respect of such rights was to be disposed of in terms of the Act of 1939. Abbot vs The Minister for Lands	 	 distin guished.