Judgment

SINHA, C.J.I. : These two appeals, by special leave, directed against the judgment and decree of a Single Judge of the Bombay High Court, raise a common question of law, and have, therefore, been heard together. This judgment will govern both the cases. The appellants were plaintiff-landlords, and the respondents were tenants-in-possession of certain lands which were situate in the erstwhile State of Baroda before it became part of the State of Bombay, by merger. The Bombay Tenancy and Agricultural Lands Act (Bombay Act LXVII of 1948) -- which hereinafter will be referred to as the Act -- was extended to Baroda on August 1, 1949. The suits out of which these appeals arise had been instituted by the appellants on the basis that the tenants-respondents had become trespassers on the service of notice in March 1950, with effect from the beginning of the new agricultural season in May 1951. As the defendants did not comply with the terms of the notice and continued in possession of the lands, to which they had been inducted, the landlords instituted suits for possession in the Civil Court. The Trial Courts and the Court of Appeal decreed the suits for possession. But on second appeal by the tenants, the learned Single Judge, who heard the second appeals, allowed the appeals and dismissed the suits with costs throughout.

2. It is not disputed that if the provisions of the Act were applicable to the tenancies in question, the plaintiffs suits for possession must fail, because these were instituted in the Civil Courts, which would have jurisdiction to try the suits only if the defendants were trespassers. It is equally clear that if the tenants could take advantage of the provisions of the Act, any suit for possession against a tenant would lie in the Revenue Courts and not in the Civil Courts. But reliance was placed upon the notification issued by the Bombay Government on April 24, 1951, to the following effect:

"In exercise of the powers conferred by clause (d) of sub-sec. (1) of S. 88 of the Bombay Tenancy and Agricultural Lands Act, 1948 (Bombay LXVII of 1948) the Government of Bombay is pleased to specify the area within the limits of the Municipal Borough of Baroda City and within the distance of two miles of the limits of the said Borough, as being reserved for Urban, non-agricultural or Industrial development".

3. The learned Judge of the High Court, in disagreement with the Courts below held that under the provisions of S. 3A (1) of the Bombay Tenancy Act, 1939, as amended, a tenant would be deemed to be a protected tenant from August 1, 1950, and that that vested right could not be affected by the notification aforesaid, issued by the Government under S. 88(1)(d), which had the effect of putting the lands in question out of the operation of the Act. In other words, the learned Judge held that the notification had no retrospective effect so as to take away the protection afforded to the tenants by S. 3A, aforesaid.

4. The learned counsel for the appellants contended, in the first instance, that the notification, set out above, under S. 88(1) (d) operated with effect from December 28, 1948, when the Act came into force. In this connection, reliance was placed upon the decision of this Court, pronounced by me sitting in a Division Court, in the case of Sakharam v. Manikchand Motichand Shah, Civil Appeal No. 185 of 1956, D/-19-4-1961: (in these words :

"The provisions of S. 88 are entirely prospective. They apply to lands of the description contained in cls. (a) to (d) of S. 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 ."

It is necessary, therefore, to make some observations explaining the real position. In that case the question then in controversy had particular reference to S.88 (