PARVATI & ORS. versus FATEHSINHRAO PRATAPSINHRAO GAEKWAD

PARVATI & ORS. v. FATEHSINHRAO PRATAPSJNHRAO G,AEKWAD

SEPTEMBER 18, 1986

IA.P. SEN AND B.C. RAY, JJ.J

Bombay Tenancy and.Agricultural Lands Act, 1948: ss. 88( l)(b). 89(2)(b) and 89A-Notification reserving lands within municipal limits -of a clly for non-agricultural or industrial development-Effect oj.

When Baroda became Borough Municipality on Isl May 1950, the ·

provisions of the Bombay Tenancy A:ct, 1939 were applicable to the lands situated within its municipal limits. That Act was repealed by the Bombay Tenancy and Agricultural Lands Act, 1948 which was made applicable to the Baroda Municipality with effect from August I, 1956 by the Bombay Tenancy .and Agricultural Lands (Amendment) Act, 1955 (Bombay Act No. XIII of 1956). Section 88( l)(b) ·of the 1948 Act, as substituted bys. 48 of the Act of 1956, provided that nothing in the Act shall apply to any area which the State Government may, by notification in the official gazette, specify as being reserved for non agricultural or ind_ustrial development. Section 89(2)(b) further laid down that nothing in that Act or. any repeal effected thereby, shall affect or be deemed to affect, any right, title, interest, obligation or liability already acquired, accrued or incurred before the commence ment of this Act. Section 89A recited that notwithstanding the repeal of the 1939 Act, the provisions of s~. 3, 3A and 4 or that Act, as set out in Schedule I to the 1948 Act, shall always be deemed to be extendec\ to and to be in force in those areas on the dates on which the 1948 Act was extended to and brought into force.

The Government by a notification dated May 21, 1958 issued under s. 88(l)(b) of the 1948 Act reserved the lands within the municipal limits of the city of Baroda for non-agricultural and in dustrial development.

Appellant's husband-defendant, took possession of certain lands situated in the city of Baroda, from the respondent-trustee of a temple for a period of three years from 1956 to 1958 at an annual rent of

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11986] 3 S.C.R.

Rs.2225 by executing a Kabuliyat dated June 2, 1956, which was not registered. As he fell into arrears of rent for the said years, the respondent-plaintiff filed a snit for its recovery. The defence was that the snit was not maintainable in a civil court inasmuch as even though the Tenancy Act ceased to apply on the issue of the notification under s. 88(1)(b) in respect of lands within the municipal limits of the city of Baroda, yet the rights of the tenant in respect of the snit land, which had accrued before the said notification, subsisted.

The trial court held that the Tenancy Act was applicable to the case and since the Mamlatdar had already determined the reasonable rent in respect of the lands in question, the civil court was not competent to determine the same once again. The appeal preferred was dismissed by the District Judge. On further appeal, the High Court held that in view of the notification issued under s. 88(l)(b) of the said Act the provisions of the Tenancy Act will not apply retrospectively and directed the trial court to redetermine the issue. On receipt of the findings of the trial court, the High Court allowed the second appeal, setting aside the judgment and decree passed by the courts below.

In the Appeal by special Leave to this Court it was contended for the appellant that in view of the provisions of s. 89(2)(b) the right of the defendant to pay rent as determined by the Mamlatdar nnd er ss. 8 and 9 of the 1948 Act was not affected by the retrospective effect given to the provisions of s. 88 of the Act.

Dismissing the Appeal, the Court,

HELD: The specific provision in s. 89(2)(b) of the Bombay Tenancy and Agricnltnral Lands Act, 1948 to the effect that nothing in the Act or any repeal affected thereby shall, save as expressly provided therein, affect or be deemed to affect any right, title, interest, ob ligation or liability already acquired, accrued or incurred before the commencement of the Act, read with the specific provision of s. 88(I)(b) that on issue of a notification specifying areas reserved for non· agricultural or industrial development the provisions of the Act shall not apply to the lands so notified, make it apparent that the Act will not be applicable to the lands notified. [799B; D-El

The issuance of the notification dated 2 lst May, 1958 under s. 88(1)(b) of the Tenancy Act, 1948 specifying the lands within the municipal limits of Baroda city reserved for non-agricultural and industrial development in the instant case made the provisions of the

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Act inapplicable retrospectively, subject to the exception provided in sub-s. (2) of s. 88, and with it all rights, title, obligation etc. accrued or acquired under the said Act ceased to exist. The provisions of s. 89(2)(b) are, therefore, not applicable tO protect such right,, title or interest, except as provided ins. 89A owing to express provision made ins. 88 of the Act. [801C-E]

Protected tenants are·only those tenants specified in ss. 3, 3A and 4 of the 1939 Act and no new protected tenant could come into existence under the 1948 Act. [801B-C]

In the instant case, therefore, the civil court ·was legally com petent to determine the reasonable. rent payable' by the defendent tenant. The detennination by Mamlatdar under ss. 8 and 9 of the Tenancy Act 1948 automatically becomes ineffective and non-est by .virtue of s. 88(1)(b) of the said Act and the notification made there under. [801E-F]

Mohan/a/ Chuni/a/ Kothari v: Tribhovan Haribhai Tamboli, [ 1963] 2 SCR 707 and Sid ram Narsappa K amble v. Sholapur Borough Municipality andAnr, [1966] l SCR 618, referred to.

Sakharam @Bapusaheb Narayan Sanas and Anr. v. Manikchand

.......,.

Motichand Shah andAnr., [1962] 2 SCR 59, distinguished .

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1947

(N) of 1972.

From the Judgment and Order dated 4.10.1971 of the Gujarat

).-. High CourtinS.A. No. 313of1963.

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V.M. Tarkunde and M.V. Goswami for the Appellants.

S. Seth and S. Sukumaran for the Respondents.

The Judgment of the Court was delivered by

RAY, J. This appeal on special leave is against the judgment and decree made on October 4, 1971 in S.A. No. 313/63 by the High Court of Gujarat whereby it was held that in view of the retrospective effect given by virtue of the notification issued under Sec. 88(1)(b) of the Bombay Tenancy and Agricultural Lands Act, 1948 the provisions of _the said Tenancy Act was not applicable in respect of lands within the

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[1986] 3· S.C. R.

A municipal limits of the city of Baroda and as such the civil court was competent to determine the reasonable rent in respect of the lands in question taken settlement of by the defendent on the basis of the Kabuliyat executed on 2nd June, 1956 for a period of three years from · 1956 to 1958.

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The admitted facts of this case are that the defendant Kashiram J aiswal, since deceased, took possession of the lands measuring 20 acres 27 gunthas in S. No. 707 of Baroda Kasba situated behind Kirti Mandir in the city of Baroda from the respondent by executing a Kabuliyat dated June 2, 1956 for a period of three years from 1956 to 1958 at an annual rent of Rs.2225. The said Kabuliyat was however not registered. The defendant paid in total a sum of Rs.970.31 in respect of arrears of rent of the said years 1956-57 and 1957-58. The plaintiff who is a trustee of the temple Kirti Mandir instituted a regular suit No. 143/59 in the court of 3rd Joint Civil Judge, Baroda for recovery of arrears of rent at Rs.3479.69 setting off the amount paid already. The defence was that the suit was not entertainable in the civil court in as much as even though the Tenancy Act ceased to apply on the issue of the notification under Sec. 88(1)(b) of the said Act in respect of lands within the municipal limits of city of Baroda yet the rights·of the tenant in respect of the suit land which acrued before the said notification subsisted or in other words the same was not affected by the said notification. It has been further contended that since the Mamlatdar has determined the fair rent in accordance with the provisions of section 8 and 9 of the said /\ct at Rs.375 and 5 annas lawfully payable .in respect of the said land the plaintiff could not recover any amount in excess of the said sum. The trial court held that the Tenancy Act was applicable to this case and since the Mamlatdar has already deter mined the reasonable rent in respect of the lands in question the civil • .-J. court was not competent to determine the same once again. The suit was accordingly dismissed. On appeal the District Judge, Baroda . dismissed the appeal and affirmed the judgment and decree of the court below. Against this judgment and decree S.A. No. 313/63 was preferred in the High Court of Gujarat. The High Court on considering the decision of this Hon'ble Court in S.N. Kamb/e's case [1966) 1 S.C.R. 618 held that in view of the notification issued under Sec. 88(1)(b) of the said Act the provisions of the Tenancy Act will not apply retrospectively in view of the notification issued under Sub section (1) (b) of Sec. 88 of the Act XIII of 1956 issued on May 21, 1958. The High Court, therefore, framed the following issue:

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"At what rate is the plaintiff entitled to cl~im rent in respect

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797

of the land in occupation of deceased defendant Surajmal Kashiram for the two years 1956-57 and 1957-58 having regard to the rent that may be considered reasonable in the light of the .evidence that may be adduced before the court."

And sent the records to the trial court for determination of the said issue on allowing the parties to adduce evidence. The trial court was also directed to return the evidence together with its findings thereon to the High Court of Gujarat. The trial court after considering the evidence adduced by both the parties held that the reasonable rent of the land in question was Rs.2225 per annum. With these findings of the trial court the records were returned to the High Court of Gujarat. On 4.10.1971 the High Court of Gujarat allowed .the appeal setting aside the judgment and decree passed by the courts below decreeing the suit for a sum of Rs.3479.69 paisa as rent to be recovered from the legal heirs of the defendants-respondents.

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The sole question that poses itself for consideration before this court is whether the issuance of notification under sub-Section (l)(b) of Sec. 88 of Act No. :X:Ill of 1956 on May 21, 1958 making the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 inapplicable to the lands reserved for non-agricultural or industrial development in the municipal limits of the city of Baroda retrospec- tively. Or in other words whether the said Act will not at all apply to lands within the Baroda Municipality which have been reserved for non-agricultural or industrial development by the aforesaid notifica- lion dated May 21, 1958 published in the official gazette. If the Act ' does not at all apply then the determination-of rent of the suit land as made by the M amlatdar under the provisions of Sections 8 and 9 of the said Act will be of no avail and the clvil court will be competent to determine the rent payable by the defendant-tenant in respect of these lands in question to the respondent on the basis of the Kabuliyat by the defendant-appellant or in case the Kabuliyat is held to be inadmissible in evidence because of non-registration the reasonable rent payable in respect of the said land is to be determined. To determine this ques- tion it is pertinent to refer to the provision of Sec. 88 (l)(b) which is quoted herein bdow:

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Sec. 88(1) Save as otherwise provided in sub-section (2), nothing in the foregoing provisions of this Act shall apply-

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11986] 3 S.C.R.

(b) to any area which the State Government may, from time to time, by notification in the Official Gazette, specify as being reserved for non-agricultural or · industrial developn:en t.

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On a plain reading of the provisions of Sec. 88(1) it is crystal clear that the issuance of the notification under Sec. 88(1)(b) on May 21, 1958 reserving the land within the municipal limits of the city of Baroda for non-agricultural or industrial development the provisions of the Tenancy Act were .made inapplicable retrospectively subject to the exception provided in sub-section (2) of Sec. 88. Another section very relevant to be considered in this connection is Sec. 89 of the said Act. Sub-Section (2)(b) of the said section further provides that Save as expressely provided in this Act nothing in this Act or any repeal effected thereby shall be deemed to affect any right, title, interest, obligation or liability already acquired, accrued or incurred before the commencement of this Act. It was tried to be contended before us on behalf of the appellant that in view of this provision the right of the defendant-tenant to pay rent as determined by the Mamlatdar under the provisions of Sections 8 and 9 of the Bombay Tenancy and , Agricultural Lands Act, 1948 will not be affected by the retrospective effect given by Sec. 88 of the said Act. It has been further urged that the reasonable rent in respect of the lands in question has already been determined by the Mamlatdar and the Civil Court is !JOI competent to decide reasonable rent once again and the determination made by the civil court is ineffective.

It was urged on behalf of the respondent that in view of the notification issued under Sec. 88(1)(b) of the Bombay Tenancy and Agricultural Lands Act, 1948 the provisions of the Tenancy Act are not applicable to lands within municipal limits of Baroda city at all as retrospective effect was given to the said provisions and as such the rights that had accrued to a tenant in respect of a land within munici pality will automatically go.

As already held before that on a plain reading of the provisions of Sec. 88 of the Act it is quite clear and apparent that the provisions of the said Tenancy Act are not applicable to any area notified by the State Government as being reserved for non-agricultural or industrial development. In the instant case, there has been a notification by the Government on May 21, 1958 under Sub-section (l)(b) of Sec. 88 of the Act No. XIII of 1956 declaring that the lands within municipal

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PARVAT!v. F.P. GAEKWAD [RAY,J.J

799

limits of the City of Baroda are res~rved for non-agricultural or in dustrial development. The consequence that falls is that the provisions of Bombay Tenancy and Agricultural Lands Act, 1948 are not appli cable to the land in question as the same is situated within municipal limits of the city of Baroda and as a result these rights acquired under the said Act automatically becomes non-est. It has been tried to be urged by referring to the provisions of the Sec. 89(2)(b) of the said Act ihat right, title and interest, ·obligation or liability already acquired, accrued or incurred beforeJhe commencement of this Act will not be affected by the retrospective effect given to the provisions of Sec. 88 of thy said Act. This argument, in our considerable opinion, is totally devoid of any merit. Iii view of specific provision in the said sub section (2)(b) of Sec. 89 to the affect "shall, save as expressely pro vided in this Ac!, affect or deemed to be affected". It follows from this provision that in the absence of an express provision in the Act any right, title, interest, obligation or liability already acquired or accrued before the commencement of this Act shall not be affected by the Act ot 1948. Section 88(1)(b) of the said Act has specifically provided that on the issue of a notification in the Official Gazette specifying areas reserved for non-agricultural or industrial development the provisions of the Tenancy Act, 1948 shall not apply. Therefore, reading these two provisions together the only reasonable con'clusion that follows is that the provisions of the Act will not be applicable to the lands notified by the Government in the Official Gazette as being reserved for non agricultural or industrial development. This has been expressely pro vided in Sec. 88(1)(b) of the Act. The argument that the retrospective attect given to the provisions of Sec.88(1)(b) will not affect the rights or interest acquired or accrued under the said Act prior to the comm encement of the 1948 Act is of no substance and as such it cannot be sustained. It may be pertinent to refer to the provisions of Sec. 89A of the Act wherein it has been expressly provided that notwithstanding repeal of the 1939 Act the provisions of Sections 3, 3A and 4 of the Bombay Ten.ancy Act, 1939 as set out in Schedule I to this Act shall always be deemed to be extended to and to be in force in, those areas on the dates on which this Act was extended to and brought into force. Therefore, express provisions has been made for the preservation of the rights accrued under Sections 3, 3A and 4 of the Bombay Tenancy Act, 1939 inspite of the repeal of 1939 Act by the Bombay Act No. LXVI! of 1948, that is, the Bombay Tenancy and Agricultural Lands Act, 1948. This very question about the effect of the provisions of Sec. 88(1)(b) and the provisions of Sec. 89(2)(b) of the Act fell for consi deration in the case of Sakharam @ Bapusaheb Narayan Sanas and Anr. v. Manikchand Motichand Shah and Anr., [1966] 2 S.C.R. 59. In that case the only question arose for determination was whether the

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defendent appellants were "protected tenants" within the meaning of the Bombay Tenancy Act, 1939 (Bombay) Act 29 of 1939). It was held that the provision of Sec. 88 of the Bombay Tenancy and Agricultural Lands Act, 1948 were entirely prospective and it would apply to such lands as prescribed in clauses (a) and (d) of Sec. 88(1) from 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 tanant the status of a protected tanant already accrued to him. It has been further observed that Sec. 89(2)(b) of the Act clearly intents to conserve such right 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. It is to be noticed in this case that the question as of effect of a notification published in the Official Gazette by the Government under Sec. 88( l)(b) of the said Tenancy Act of 1948 did not arise for consideration. Furthermore, as we have said already hereinbefore that Sec. 89A read with-Schedule I to the said Act clearly preserves the rights acquired or accrued under the provi- sions of Sections 3, 3A and 4 of the Bombay Tenancy Act, 1939. This case, therefore, strictly speaking does not deal with the question that specifically has arosen in the instant case.

This Court in the case of Mohan/al Chunilal Kothari v. Tribho- van Haribhai Tamboli, [1963] 2 S.C.R. 707 has held that a notification issued under clause (d) of Sub-section (1) of Sec. 88 of the Bombay Tenancy and Agricultural Lands Act, 1948 declaring lands within municipal area as reserved for urban non-agricultural or industrial development were clearly retrospective in operation and the intention of the legislature obviously was to take away all the benefits arising out of the Act of 1948 and not those arising out of the Act of 1939 that is under Sections 3, 3A and 4 of the said Act as soon as the notification was made under clause (d). In other words, it has been observed sepcifically that the rights acquired under the Tenancy Act, 1939 ex- cept rights acquired under Sections 3, 3A and 4 will be· no longer in existence after the issuance of notification under Sec. 88(1)(b) of the Act of 1948.

Jn a later decision in Sidram Narsappa Kamble v. Sholapur Borough Municipality & Anr., [1966] l S.C.R. 618 this question came to be considered by a larger bench of this Court and it was held that the plain effect of the provisions contained in Sections 31, 88 and 89(2)(b) is that in view of the express provision contained in Sec. 88(1)(a), the appellant could not claim the benefit of Sec. 31 nor could it be said that

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801

his interest as a protected tenant was saved by S. 89(2)(b) of the said Act. It was further observed that Sections 3, 3A and 4 of 1939 Act were continued in a modified form in Schedule I of the 1948 Act only for the purpose of Sec. 31 of the 1948 Act. It is obvious that the consequence follows that protected tenants are only those tenants spec"ified in those three sections aforesaid and that no new protected tenant could come into existence under the -1948 Act. The intention from the express words of Sec. 88(!)(a) is also the same. It has been observed that the intention from the express words of Sec. 88(1) is that there will be no protected tenant after the 1948 Act came into force in regard to lands held on lease from a local authority in view of the express provision contained i_n S. 88(l)(a). We have already held hereinbefore that the effect of the notification dated 21st May, 1958 issued under Section 88(l)(b) of the Tenancy Act of 1948 specifying the lands within the municipal limits of Baroda city reserved for non agricultural and industrial development is that all rights, title, obliga tion etc. accrued or acquired under the Said Act ceased to exist as the said section expressly states that the provisions of the Tenancy Act of 1948 will not apply to such lands. Section 88(1) is given retrospecti'(e effect. The provision of Section 89(2)(b) are not applicable to protect the right, title, interest already accrued before the commencement of this Act except as provided in Section 89A owing to express provisions made in section 88 of the said Act.

In view of our .indings referred to hereinbefore the irresistable / conclusion follows that the determination by Mamlatdar under Ss. 8 and 9 of the Tenancy Act automatically becomes ineffective and non es! by virtue of S. 88(1)(b) of the said Act and the notification made thereunder. The. Civil Court is legally competent to determine the reasonable rent payable by the defendent tenant and this determina tion has been duly made by the Civil Court and same has been affinped by the High Court of Gujarat. There is, therefore, no merit in this appeal which is dismissed without any order as tci costs.

P.S.S.

Appeal dismissed.

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