1. Lease from local authority — Claim for protected tenant status under Bombay Tenancy Act 1939 and 1948 — Conflict between status recognition and statutory exclusion. (Para 1 , 2 , 3 , 4 )
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1960 Supreme(SC) 190
SUPREME COURT OF INDIA
P.B. GAJENDRAGADKAR, C.J.I., K.N. WANCHOO, M. HIDAYATULLAH, J.C. SHAH AND S.M. SIKRI JJ.
S. N. Kamble, Appellant
Versus
The Sholapur Borough Municipality and another, Respondents.
Civil Appeal No. 577 of 1963.
Advocates appeared
Mr. S. G. Patwardhan, Senior Advocate, (Mr. M. S. Gupta, Advocate, with him), for Appellant; M/s. N. D. Karkhanis, J. B. Dadachanji and A. G. Ratnaparkhi, Advocates for Respondent No. 1.
Advocates:
A.C.RATNAPARKHI, J.B.DADACHAN, M.S.Gupta, N.D.Karkhanis, S.G.PATVARDHAN
A.C.RATNAPARKHI, J.B.DADACHAN, M.S.Gupta, N.D.Karkhanis, S.G.PATVARDHAN
An express exclusionary provision in a repealing act overrides a general saving clause regarding rights acquired under the previous act, effectively removing the status of a protected tenant for lands leased from local authorities.
Headnote:(A) Tenancy and Agricultural Lands Act, 1948 - Sections 31, 88 and 89(2)(b) - Tenancy Act, 1939 - Sections 3, 3-A and 4 - Protected tenant - Status of lessee from a local authority - Section 31 recognizes persons as protected tenants if they were so deemed under the 1939 Act - Section 88(1)(a) provides that nothing in the foregoing provisions of the 1948 Act shall apply to lands held on lease from a local authority - Section 89(2)(b) provides that nothing in the Act shall affect rights acquired before its commencement, save as expressly provided in the Act - Section 88(1)(a) is an express provision that takes away the interest of a protected tenant acquired under the 1939 Act in respect of lands leased from a local authority - Section 31 must be treated as non-existent for such leases, and therefore no such lessee can claim to be a protected tenant. (Paras 7, 8, 9)
(B) Statutory Interpretation - Saving clause - Where a statute contains a saving clause for rights acquired under a previous act "save as expressly provided in this Act", an express exclusionary provision in the new act will prevail over the saved rights. (Para 8)
Facts of the case:
A lessee of land from a local authority claimed the status of a protected tenant under the 1939 Act. The 1948 Act recognized such tenants under Section 31, but Section 88(1)(a) excluded lands leased from local authorities from the application of the preceding provisions. The lessee argued that Section 89(2)(b) saved the rights acquired under the 1939 Act.
Findings of Court:
The court found that Section 88(1)(a) is an express provision that excludes the application of Section 31 to lands leased from a local authority. Consequently, the status of a protected tenant acquired under the 1939 Act is taken away by the 1948 Act for such lands.
Issues: Whether Section 88(1)(a) of the 1948 Act constitutes an "express provision" that overrides the saving clause in Section 89(2)(b), thereby removing the protected tenant status of a lessee from a local authority.
Ratio Decidendi: The court ruled that since Section 31 is the only provision recognizing protected tenants under the 1948 Act, and Section 88(1)(a) expressly excludes the application of all foregoing provisions (including Section 31) to lands leased from a local authority, it effectively removes the protected tenant status. This express provision prevails over the general saving clause in Section 89(2)(b).
Result: Appeal dismissed.
Legal Category Hierarchy
Table of Contents
2. Whether an express exclusion of local authority leases in the 1948 Act overrides protected tenant status acquired under the 1939 Act despite a general saving clause. (Para 1 , 4 , 5 , 8 , 9 )
3. The court found Section 88(1)(a) to be an express provision excluding local authority leases from Section 31, overriding the general saving clause in Section 89(2)(b). (Para 6 , 7 , 8 , 9 , 10 , 11 )
4. Express statutory provisions overriding specific rights prevail over general saving clauses that protect rights acquired before the commencement of the Act. (Para 8 , 9 )
5. Appeal dismissed; the appellant is not a protected tenant as the lease was from a local authority. (Para 12 , 13 , 14 )
6. Does Section 88 of the 1948 Act prevent a tenant of a local authority from being a protected tenant?
Yes. Section 88(1)(a) expressly provides that the foregoing provisions of the Act, including Section 31 which recognizes protected tenants, do not apply to lands held on lease from a local authority. (Para 7 , 9 )
7. How does the saving clause in Section 89(2)(b) interact with express provisions in the 1948 Act?
Section 89(2)(b) saves acquired rights only save as expressly provided in the Act. Therefore, any express provision in the Act that affects such rights will prevail over the general saving clause. (Para 8 , 9 )
8. Is the exclusion of local authority leases under Section 88(1)(a) prospective or retrospective?
It applies to both existing and future leases. The court noted that the provision would be ineffective if not applied retrospectively to affect rights acquired under the 1939 Act. (Para 10 , 11 )
9. Does Section 88-B of the 1948 Act protect a tenant whose lease was determined before the section's commencement?
No. The court held that Section 88-B does not protect a tenant if the lease had already been determined by notice before the section came into force on April 1, 1956. (Para 13 )
Judgement
WANCHOO, J. :- The appellant took on lease two survey numbers from the respondent, Sholapur Borough Municipality on April 1, 1946 for a period of three years. The land is situate within the municipal limits. About November 8, 1946, the Bombay Tenancy Act, No. 29 of 1939 (hereinafter referred to as the 1939-Act) was applied to this area and S. 3-A of that Act provided that every tenant shall on the expiry of one year from the date of the coming into force of the Bombay Tenancy (Amendment) Act, (No. XXVI of 1946) be deemed to be a protected tenant unless his landlord has within the said period made an application to the Mamlatdar for a declaration that the tenant was not a protected one. The respondent did not file a suit within one year and therefore the appellant claimed to have become a protected tenant under the 1939-Act. The 1939-Act was repealed in 1948 by the Bombay Tenancy and Agricultural Lands Act, No. LXVII of 1948 (hereinafter referred to as the 1948-Act). Section 31 of the 1948- Act provided that for the purposes of this Act a person shall be recognised to be a protected tenant if such person had been deemed to be a protected tenant under S. 3, 3-A or 4 of the 1939-Act. Ordinarily, therefore, the appellant would have become a protected tenant under this section of the 1948-Act, if he had become a protected tenant under the 1939-Act. But S. 88 of the 1948-Act inter alia provided that nothing in the foregoing provisions of the 1948-Act shall apply to lands held on lease from a local authority. Therefore if S. 88 prevailed over S. 31, the appellant would not be entitled to the benefit of S. 31 and could not claim to be a protected tenant under this section. The appellant however relied on S. 89 (2) of the 1948-Act which provided for the repeal of the 1939-Acct except for Ss. 3, 3-A and 4 which continued as modified in Schedule I of the 1948 Act. That sub-section provided that nothing in the 1948-Act or any repeal effected thereby shall save as expressly provided in this Act affect or be deemed to affect any right, title, interest, obligation or liability already acquired, accrued or incurred before the commencement of the 1948-Act.
2. In the present case the respondent gave notice to the appellant on May 2, 1955 terminating his tenancy with effect from March 31, 1956. Subsequently the respondent filed suit No. 42 of 1957 for obtaining possession of the lands and for certain other reliefs. It was held in that suit that the respondent could not get possession of the lands as the appellant was entitled to the benefit of the 1948-Act and consequently the respondent s suit for possession was dismissed. The respondent then appealed to the District Court. During the pendency of that appeal the appellant made an application on September 8, 1958 for a declaration that he was a protected tenant of the lands and also for fixing rent under the provisions of the Tenancy Act. Further in the appeal filed in the District Court a compromise was arrived at by which the order dismissing the respondent s suit for possession was set aside and the suit was remanded to the trial Court with the direction that the suit be stayed and disposed of after the decision by the Mamlatdar. The compromise provided that if the appellant was finally held to be tenant by the authorities under the 1948-Act the suit for possession would be dismissed. It also provided that if the decision in the proceedings under the Tenancy Act went against the appellant, the suit for possession would be decreed.
3. The Mamlatdar held that the appellant was a tenant and gave him a declaration under S. 70 (b) of the 1948 Act. The respondent then went in appeal to the Collector, and the Collector decided that the Mamlatdar had no jurisdiction to decide whether the appellant was a tenant. The appellant then went in revision to the Bombay Revenue Tribunal. The tribunal held, in view of the amendments that had been made in the 1948-Act by the Amendment Act of 1956 by which
