A Notification issued under section 88(1)(b) of the Bombay Tenancy and Agricultural Lands Act, 1948, excluding lands from the operation of the Act, has the effect of depriving tenants of all rights under the Act, including the right to statutory ownership.

Headnote:
TENANCY ACT - APPLICABILITY - EXCLUSION OF LANDS FROM OPERATION OF ACT - NOTIFICATION UNDER SECTION 88(1)(B) - EFFECT - RIGHTS OF TENANTS - SECTION 43-C AND PROVISO - INTERPRETATION - REFERENCE TO REVENUE AUTHORITIES - VALIDITY - INJUNCTION - VACATION.
Fact of the Case:

The plaintiffs filed a suit for permanent injunction against the defendants, claiming exclusive possession and use of the disputed lands. The defendants claimed that they had entered into a partnership with the plaintiffs' predecessor-in-title for the development of the land and that the partnership had been dissolved in 1977. They had applied to the Competent Authority under the Urban Land Ceiling Act for exemption under section 20 of the Act and had obtained permission to convert the land to non-agricultural purpose. The plaintiffs claimed tenancy rights under the Bombay Tenancy and Agricultural Lands Act, 1948. The trial court granted an injunction restraining the defendants from interfering with the possession of the disputed lands and referred the issue of tenancy to the Mamlatdar under section 85-A of the Act. The defendants filed a Notice of Motion to vacate the injunction, which was dismissed by the High Court. The defendants appealed against the order of the High Court.
Finding of the Court:

The High Court held that the provisions of the Tenancy Act were not applicable to the lands in question because they had been excluded from the operation of the Act by a Notification issued under section 88(1)(b) of the Act. The Court further held that the reference to the Revenue Authorities was wholly unnecessary and incompetent and that the Revenue Tribunal was not required to decide on merits the revision application pending before it. The Court also held that the appellants were entitled to have their Notice of Motion for vacation of injunction heard on merits without taking into account the fact that the plaintiffs were claiming to be entitled to the benefits of the Tenancy Act.
Issues: 1. Whether the provisions of the Tenancy Act were applicable to the lands in question? 2. Whether the reference to the Revenue Authorities was valid? 3. Whether the appellants were entitled to have their Notice of Motion for vacation of injunction heard on merits?
Ratio Decidendi: 1. The Court held that the provisions of the Tenancy Act were not applicable to the lands in question because they had been excluded from the operation of the Act by a Notification issued under section 88(1)(b) of the Act. The Court observed that the effect of the Notification was that "nothing in the foregoing provisions of the Act shall apply" to the areas reserved for non-agricultural or industrial development. The Court further observed that the "foregoing provisions" are sections 1 to 87-A and, therefore, the moment a Notification is issued under section 88(1)(b), none of the provisions of Tenancy Act could be claimed by the plaintiffs. 2. The Court held that the reference to the Revenue Authorities was wholly unnecessary and incompetent because the provisions of the Tenancy Act were not applicable to the lands in question. The Court observed that the reference was made on the assumption that the plaintiffs were entitled to the benefits of the Tenancy Act, which was not the case. 3. The Court held that the appellants were entitled to have their Notice of Motion for vacation of injunction heard on merits without taking into account the fact that the plaintiffs were claiming to be entitled to the benefits of the Tenancy Act. The Court observed that the claim of the plaintiffs that they were governed by the provisions of the Tenancy Act was wholly misconceived and that for the purpose of determining the question as to whether they were entitled to any interim relief or not, the determination of the alleged right as tenant was wholly irrelevant.
Final Decision: The High Court allowed the appeal, set aside the order of the trial court granting an injunction, and directed that the Notice of Motion for vacation of injunction be heard on merits.

JUDGMENT - M.N. CHANDURKAR, J.:---This appeal by defendants Nos. 3 and 4 is directed against the order made by Kania, J., on 11th March, 1982 dismissing the Notice of Motion taken out by the appellant for vacating an order of interim injunction made by Mody, J., on 13th April, 1981. The contesting respondent Nos. 1 to 5 have filed a suit on Original Side of this Court asking for a permanent injunction preventing the appellants from trespassing upon or entering the lands in question; from dispossessing the plaintiffs or any of them of the said lands or any part thereof; from constructing any structure or structures on the said lands or any part thereof and from preventing, obstructing or interfering in any manner with the exclusive possession, use and enjoyment of the said lands or any portion thereof by the plaintiffs. It is not necessary to go into the various allegations made in the plaint on which the plaintiffs claim a right to continue in possession of the lands in dispute and it is sufficient to mention that the claim of the plaintiffs appears to be that their predecessor-in-title, viz., Bablya, who was the husband of plaintiff No. 1 and the father of the other plaintiffs was in exclusive and uninterrupted possession, use and enjoyment of the lands in dispute. It may be stated that the lands in dispute, which is having an area of 8006 sq. metres approximately, is a part of a larger piece of land having an area of 17,000 sq. meters situate at village Kurar which has been included in the municipal limits of Malad Municipality.

2. According to the defendants, the land in question belongs to one Sukhtankar with whom the appellants had entered into partnership for the purpose of developing the land. This partnership came to be dissolved in 1977 and as a part of the division of the assets of the partnership, the lands have been taken over by the appellants who had applied to the Competent Authority under the Urban Land Ceiling Act for exemption under section 20 of the Act. This application has been granted on 21st February, 1978 and the appellants claimed that permission to convert the land to non-agricultural purpose has also been granted on 2nd November, 1978.

3. In the suit, a Notice of Motion was taken out by the plaintiffs for an interim order of injunction. Injunction was granted by Modi, J., restraining the appellants from in any way interfering with the possession of the disputed lands bearing CTS Nos. 74, 75, 84 (1 to 7) and 95 (1 to 4) of village Kurar, Dapthary Road, Malad, and from dispossessing the plaintiffs or any of them from the said lands or part thereof and form putting up any construction on or under the said land or any part thereof. The present appellants, who are defendants Nos. 3 and 4 were given liberty to put up a compound wall around the said lands but so as not to obstruct in any way the possession or right to pass or repass of the plaintiffs or any of them or their guests, invitees and persons desiring to visit them. Defendants Nos. 3 and 4 were also permitted to construct or have constructed drainage, electric cables and other facilities passing through out the lands in dispute provided, however, that the same will be taken only along the periphery of the land. After having made an order of injunction, the learned Judge, taking the view that the plaintiffs claimed tenancy rights under the Bombay Tenancy and Agricultural Lands Act, 1948, made a reference to the Mamlatdar. In para 4 of the order Modi, J., observed as follows :

"The case of the plaintiffs based on adverse possession, prima facie, appears to be difficult to prove. However, the plaintiffs claim in the alternative is for the tenancy rights claimed under the Bombay Tenancy and Agricultural Lands Act, 1948. This issue in my view must be referred to the proper authorities under the said Act. Hence, under the provisions of the section 85-A of the Act I stay this suit till this issue is decided and refer the said issue to Mamlatdar Borival

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