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Sakharam Bapusaheb Narayan Sanas ... vs Manikchand Motichand Shah And ... on 19 April, 1961
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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 s. 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 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. Sections 3 and 3A(1), aforesaid, are set out below:-

Under s. 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 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 ss. 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 v. The Minister for Lands (1):

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, 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 bad to do nothing more to bring their case within the expression 'right accrued', in el. (b) of s. 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 s. 88, within the meaning of s. 89(2)(b), taking away the appellants' right, is supported by the terms of ss. 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 67 the Act of 1948 shall not apply to lands of the situation of the disputed lands; and s. 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 ss. 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 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 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, 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-el. (ii) of ol. (b) of s. 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. (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 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 s. 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. Appeal allowed, 69