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1961 Supreme(SC) 194
SUPREME COURT OF INDIA
19th April, 1961.
B.P. SINHA, C.J.I., K. SUBBA RAO AND RAGHUBAR DAYAL, JJ.
Sakharam alias Bapusaheb Narayan Sanas and another, Appellants
Versus
Manikchand Motichand Shah and others, Respondents.
Civil Appeal No. 185 of 1956.
Advocate appeared
M/s. H. R. Gokhale and J. B. Dadachanji, Advocates and M/s. S. N. Andley, Rameshwar Nath and P. L. Vohra, Advocates of M/s. Rajinder Narain and Co., for Appellants; Mr. C. B. Agarwala, Senior Advocate 355
(Mr. A. G. Ratnaparkhi, Advocate with him), for Respondent No. 1.
A.G.Ratnaparkhi, C.B.AGARWAL, H.R.GOKHALE, J.B.DADACHAN, P.L.VOHRA, RAJINDAR NARAIN, RAMESHWAR NATH ROY, S.N.ANDLEY
A right acquired by operation of law and recognized by authorities constitutes an "accrued right" saved by a repealing statute's saving clause. Such rights are not extinguished by prospective exclusion clauses in new legislation unless the statute expressly provides for retrospective confiscation.
Headnote:(A) Tenancy Act, 1939 - Sections 3 and 3A(1) - Tenancy and Agricultural Lands Act, 1948 - Sections 2(14), 31, 88(1)(c), and 89(2)(b) - Status of protected tenants - Accrued rights - A right that accrues by operation of law and is recognized by public authorities is a "right accrued" and does not require a specific act of enforcement by the individual to be saved by a saving clause in a repealing statute. (Para 5)
(B) Statutory Interpretation - Prospective vs Retrospective application - Provisions excluding certain areas from the application of a new act are generally prospective and do not confiscate rights already acquired under a previous act, unless the legislature expresses a clear intention to do so. (Para 6)
(C) Repeal and Saving Clauses - Where a saving clause protects rights acquired before a repeal, any litigation regarding such rights must be resolved with reference to the provisions of the repealed statute. (Para 6)
Facts of the case:
Tenants obtained a lease for ten years. Under the provisions of a tenancy act, they were deemed protected tenants, and this status was recorded in the official Record of Rights. The landlord did not challenge this status within the statutory period provided. A subsequent act replaced the previous legislation and contained a provision excluding lands within a specific distance of certain municipal limits from its application. The landlord sought ejectment of the tenants, contending that the new act removed their status as protected tenants because the land fell within the excluded municipal area.
Findings of Court:
The status of protected tenants had accrued to the appellants by operation of law and was recognized by public authorities, meaning no further action was required on their part to establish an "accrued right." The exclusion clause in the later act is prospective and does not override the saving clause which preserves rights acquired before the commencement of the new act.
Issues: Whether the status of protected tenants acquired under the Act of 1939 was extinguished by the Act of 1948, specifically in light of the exclusion of certain municipal areas under Section 88 and the saving clause under Section 89.
Ratio Decidendi: The court ruled that the right to be a protected tenant was an "accrued right" as it was established by law and recorded officially. Section 88 of the 1948 Act is prospective and does not take away rights already accrued under the 1939 Act, as Section 89(2)(b) explicitly saves such rights. Consequently, the controversy must be resolved based on the repealed 1939 statute.
Result: Appeal allowed.
SINHA, C.J.I.: 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, 1955.
2. 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 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 held 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 defendants-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 -
"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 be 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, 1946 -- the 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
