TMI Blog1965 (8) TMI 75X X X X Extracts X X X X X X X X Extracts X X X X ..... , father of the respondent, and since that date the land continued to remain in the possession of Nagjibhai and after his death of his son Motibhai By letter dated November 2, 1955 the appellant terminated the tenancy and called upon the respondent to deliver vacant possession of the land on March 31, 1956, and filed on April 4, 1956 Suit No. 180 of 1956 in the Court of the Civil Judge, Senior Division, at Broach for a decree in ejectment against the respondent and for mesne profits. The Civil Judge decreed the appellant's claim. In appeal the District Judge, Broach reversed the decree of the Trial Court and dismissed the suit. He held that in view of the proviso to s. 43C incorporated in the Bombay Tenancy and Agricultural Lands Act 67 of 1948 by Bombay Act 13 on 1956, the respondent continued by virtue of the amendment by Act 13 of 1956 to remain a tenant, and the Civil Court had no jurisdiction to grant a decree for possession of the land in dispute. In reaching that conclusion the learned Judge followed the decision of the Bombay High Court in Patel Maganbhai Jethrbhai v. Sonzabhai Sursang. (1958) 60 Bom. L. R. 1383 A second appeal to the High Court of Bombay was dismissed summ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at no tenancy of any land shall be for a period of less than ten years, and that no tenancy shall be terminated before the expiry of the period of ten years except on the grounds mentioned in s. 14. Section 14 provided that : "(1) Notwithstanding any agreement, usage, decree or order of a Court of law, the tenancy of any land held by a tenant shall not be terminated unless such tenant"has done acts or committed defaults specified in cls. (a) to (e). It may be sufficient to state that under s. 14 a notice calling upon the tenant to vacate and deliver possession of the land demised on the expiry of the contractual period of the annual tenancy does not operate to determine the tenancy. By sub-s. (2) of s. 29 it was enacted that a landlord shall not obtain possession of land held by a tenant except under an order of the Mamlatdar. Chapter III dealt with the special rights and privileges of protected tenants. By s. 32 it was provided that notwithstanding anything (to the) contrary in any law, usage or contract, a protected tenant shall at any time be entitled to purchase from the landlord the land held by him as a protected tenant. Section 34 prescribed certain other restrictions upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent acquired rights which a tenant could claim under that Act and his rights flowing from the status of a protected tenant remained expressly preserved. But the legislature thereafter enacted Bombay Act 33 of 1952 with effect from January 12, 1953 and by the amendment to s. 88 (which excluded lands in certain areas and of specified descriptions from the operation of ss. 1 to 87 of the Bombay Act 67 of 1948) lands situ-ate within all municipal boroughs constituted under Act 18 of 1925 ceased to be governed by Act 67 of 1948. Taking advantage of the amendment by Bombay Act 33 of 1952 the appellant purported to terminate as from March 31, 1956 the tenancy by a notice in accordance with s. 84 of the Bombay Land Revenue Code, 1879, and commenced an action in the Civil Court for a decree for possession. During the pendency of the action, S. 88 was again amended by Act 13 of 1956. The Legislature by that Act repealed cl. (c) of S. 88 as it stood modified by Act 33 of 1952 and restricted the exemption from the operation of the Act to lands belonging to the Government and certain other lands. The effect of the amendment was to restore to tenants of lands within certain municipal boroughs ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... April 11, 1957, and to related matters and s. 43 imposes restrictions on the transfer of lands purchased by virtue of the right reserved under ss. 32, 32F or 32-0 or sold under ss. 32-P or 64 of the Act. The proper function of a proviso is to except or qualify something enacted in the substantive clause, which but for the proviso would be within that clause. It may ordinarily be presumed in construing a proviso that it was intended that the enacting part of the section would have included the subject-matter of the proviso. But the question is one of interpretation of the proviso : and there is no rule that the proviso must always be restricted to the ambit of the main enactment. Occasionally in a statute a proviso is unrelated to the subject-matter of the preceding section, or contains matters extraneous to that section, and it may have then to be interpreted as a substantive provision, dealing independently with the matter specified therein, and not as qualifying the main or the preceding section. By the substantive clause of s. 43C the tenants do not acquire in respect of lands described therein rights conferred by ss. 32 to 32R : that part of s. 43C is therefore in the nature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to obtain possession of the land according to the law prevailing, from a person who was at the date of the suit not a tenant, could not be deemed to be restricted by the enactment of Act 13 of 1956. In support of this contention, counsel strongly relied upon s. 89(2)(b) of Act 67 of 1948 which provided: "But nothing in this Act or any repeal effected thereby- (a) (b) shall save as expressly provided in this Act, affect or be deemed to affect, (i) any right, title, interest, obligation or liability already acquired, accrued or incurred before the commencement of this Act, or (ii) any legal proceeding or remedy in respect of any such right, title, interest, obligation or liability or anything done or suffered before the commencement of this Act, and any such proceedings shall be continued and disposed of, as if this Act was not passed." In our view sub-s. (2) of s. 89 which incorporates, with some variations, the provisions found in s. 7 of the Bombay General Clauses Act 1 of 1904, relating to the operation of provisions which repeal statutes, has no relevance in considering the effect of the amendments made by Act 13 of 1956. Sub-section (2) of s. 89 in terms protects ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ractual tenancy is statutorily extended for a period of ten years, the right to claim that the tenancy may not be determined otherwise than in circumstances mentioned in s. 14, and in case of protected tenants subject to restrict jobs imposed by s. 34, the right not to be deprived of possession otherwise than by an order under s. 29(2), were some of those rights vested in the respondent before Act 33 of 1952 was enacted. These and other rights were restored to the tenants retrospectively from the. date on which Act 33 of 1952 was enacted by virtue of the express provision contained in the proviso to s. 43C. The Legislature having restored the rights originally granted under Act 67 of 1948 with retrospective operation from the date on which Act 33 of 1952 was. enacted, a person sued, before Act 13 of 1956 was brought into force, could in a pending suit set up the defence that he is entitled to the rights of a re. ant or a protected tenant. In Patel Maganbhai lethabhat"s case(x) the Bombay High Court held that the proviso to s. 43C affords protection to the tenant if the tenant had the protection of the Act of 1948 as originally enacted, notwithstanding that the protection was taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the tenancy had been duly determined in the manner provided by s. 14 or by s. 34 if the tenant is a protected tenant, it may be necessary to obtain from the Revenue Court in an appropriate proceeding an order under s. 29(2). It may be pertinent in this connection to refer to s. 85A which was added by Act 13 of 1956, The section, insofar as it is material, provided : "(1) If any suit instituted in any Civil Court involves any issues which are required to be settled, decided or dealt with by any authority competent to settle, decide or deal with such issues under this Act (hereinafter referred to as the "competent authority') the Civil Court shall stay the suit and refer such issues to such competent authority for determination. (2) On receipt of such reference from the Civil Court, the competent authority shall deal with and decide such issues in accordance with the provisions of this Act and shall communicate its decision to the Civil Court and such court shall thereupon dispose of the suit in accordance with the procedure applicable thereto. Explanation.-For purpose of this section a Civil Court shall include any Mamlatdar's Court constituted under the Mamlatdars' Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e costs of this appeal to the respondent. The costs in the District Court will abide the event. Mudholkar, J. The facts as well as the two points raised in the argument before us appear in the judgment prepared by my brother Shah and need not be repeated. I agree with him that the District Court was in error in allowing the appeal and dismissing the present appellant's suit for possession of the land in suit. in that suit the appehant's case was that he had terminated the respondent's tenancy by giving him an appropriate notice to quit. The substantial plea of the respondent was that his tenancy was governed by the Bombay Tenancy and Agricultural Lands Act, 1948 as it stood on the date of suit and that the combined effect of ss. 70 and 85 of that Act was to deprive the civil court of its jurisdiction to entertain the suit. In the arguments before us reliance was placed on his behalf in particular on the proviso to s. 43C which was added by amendment Act 13 of 1956. The learned counsel on the other side had claimed the benefit of the provisions of s. 89(2)(h) of the Act which seeks to preserve certain rights, titles etc., and exempts them from the operation of the Act. The benef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in the appeal before us, a mixed question of fact and law. The civil court before which the suit was brought raised the following issues bearing upon it (2) Whether the provisions of Bombay Tenancy and Agricultural Lands Act would be applicable to the suit Survey Numbers ? (3) Whether this Court has no jurisdiction to entertain suit in view of section 85 of the Bombay Tenancy and Agricultural Lands Act ? (5) Whether defendant proves that he is a permanent tenant of the suit land. The first and third of these had to be decided by the Mamlatdar and the second by the Civil Court in the light of the findings of the Mamlatdar on the other two issues. The limitations placed on the jurisdiction of the Civil Court would necessarily extend to the entire hierarchy of courts, including this Court before which the decision of the Civil Court can be challenged in appeal. It is in the light of this legal position that I hold that the District Court could not dismiss the appellant's suit. What this Court can, however, do is only to set aside the judgment of the District Court and remand the suit to the Civil Court with the direction that issues Nos. 2 and 5 be remitted to the Mamlatdar fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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