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Sakharam Bapusaheb Narayan Sanas ... vs Manikchand Motichand Shah And ... on 19 April, 1961
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"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 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 Act of 1948, by s. 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 s. 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 s. 88(1)(c) which reads:-

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