1. Landlords sought possession of agricultural lands, claiming tenants were trespassers, while tenants claimed protection under the Bombay Tenancy and Agricultural Lands Act, 1948. (Para 1 , 2 )
Back
Next 
1962 Supreme(SC) 197
SUPREME COURT OF INDIA
2nd May, 1962
B.P. SINHA, C.J.I., P.B. GAJENDRAGADKAR, K.N. WANCHOO, N. RAJAGOPALA AYYANGAR AND T.L. VENKATARAMA AYYAR, JJ.
Mohanlal Chunilal Kothari deceased and after his death his legal representatives, Appellants
Versus
Tribhovan Haribhai Tamboli and others (In C A. 282/59) and Tamboli Boghalal Chhotalal and others (In C. A. 281/59), Respondents.
Civil Appeals Nos. 282 and 283 of 1959.
Advocates appeared
Mr. G. S. Pathak, Senior Advocate (Messrs. O. C. Mathur, J. B. Dadachanji and Ravinder Narain, Advocates of M/s. J. B. Dadachanji &: Co., with him), for Appellants; Mr. S. G. Patwardhan, Sr. Advocate, (Mr. K. R. Chaudhury, Advocate, with him), for Respondents.
Advocates:
G.S.PATHAK, J.B.DADACHAN, K.R.CHAUDHARY, O.C.MATHUR, Ravindra Narayan, S.C.PATVARDHAN
G.S.PATHAK, J.B.DADACHAN, K.R.CHAUDHARY, O.C.MATHUR, Ravindra Narayan, S.C.PATVARDHAN
Headnote:(A) Tenancy and Agricultural Lands Act, 1948 - Section 88(1)(d) - Notification for urban, non-agricultural or industrial development - Effect of notification on protected tenants - Provisions of Section 88(1)(a), (b), and (c) are prospective and apply from the date of enactment - Clause (d) authorizes the State Government to specify areas from time to time, which has a limited retrospective effect in taking away benefits arising out of the 1948 Act from the date of notification to foster urban and industrial development. (Paras 4, 5)
(B) Civil Procedure/Appellate Jurisdiction - Effect of subsequent notification during pendency of appeal - Where a notification removing protection is cancelled by a subsequent notification while the matter is pending in appeal, the court is bound to apply the law as it exists on the date of its judgment - No vested rights of landlords are taken away if the decree has not become final. (Para 7)
Facts of the case:
Landlords instituted suits for possession against tenants, claiming they had become trespassers. The tenants sought protection under the Tenancy Act. A government notification had been issued reserving the area for urban development, which would have removed the Act's application. However, this notification was subsequently cancelled by another government notification while the case was pending at the appellate stage.
Findings of Court:
The court found that the second notification cancelled the first, meaning there was no notification in operation under Section 88(1)(d) to make the land immune from the benefits of the Tenancy Law at the time the judgment was rendered.
Issues: Whether a notification under Section 88(1)(d) of the Act has retrospective effect to remove tenant protections and whether the cancellation of such a notification during the pendency of an appeal requires the court to apply the law as it exists on the date of the judgment.
Ratio Decidendi: While clauses (a), (b), and (c) of Section 88(1) are prospective, clause (d) allows the government to remove lands from the Act's operation via notification, which takes away benefits of the 1948 Act. If such a notification is cancelled during the pendency of an appeal, the court must apply the law as it stands on the date of the judgment, as no final decree had been executed.
Result: Appeals dismissed.
Legal Category Hierarchy
Table of Contents
2. Whether a government notification reserving land for urban development under Section 88(1)(d) of the Act operates retrospectively to divest tenants of protected status. (Para 3 , 4 )
3. Section 88(1)(d) allows the government to remove lands from the Act's operation retrospectively, but courts must apply the law existing at the date of judgment. (Para 5 , 7 )
4. A notification under Section 88(1)(d) removes benefits of the 1948 Act; however, subsequent cancellation of such notification must be applied by the court at the time of judgment. (Para 5 , 7 )
5. Appeals dismissed; tenants cannot be ejected. (Para 7 )
6. Does a notification issued under Section 88(1)(d) of the Bombay Tenancy and Agricultural Lands Act, 1948, have retrospective effect?
Yes, unlike clauses (a), (b), and (c) of Section 88(1), clause (d) allows the State Government to specify areas for urban or industrial development from time to time, which operates retrospectively to take such lands out of the operation of the 1948 Act. (Para 5 )
7. Should a court decide a suit based on the law existing at the date of the suit or the law existing at the date of the judgment?
The court is bound to apply the law as it exists on the date of its judgment, including subsequent notifications that cancel previous ones, provided the decree has not already become final between the parties. (Para 7 )
8. Does a notification under Section 88(1)(d) affect rights accrued under the earlier Tenancy Act of 1939?
No, the intention of the legislature was to take away benefits arising out of the Act of 1948 upon notification, but not those arising from the Act of 1939, as preserved by Section 89(2). (Para 5 )
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
