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TMI Blog1965 (8) TMI 75X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 summarily. With special leave, the appellant has appealed to this Court. Counsel for the appellant raised two contentions in support of the appeal : (1) That the rights of the respondent in the land conferred or recognised by virtue of Bombay Act 67 of 1948 were extinguished on the enactment of Bombay Act 33 of 1952, and by the amendments made by Act 13 of 1956 (which was brought into force during the pendency of the suit) those rights were not restored to the respondent so as to prejudice the appellant's claim to evict him; and (2) that the Civil Court w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion 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 the landlord's right to determine a protected tenancy. The first sub-section gave liberty to a landlord to determine a protected tenancy notwithstanding anything contained in s. 14, by giving one year's notice in writing, if the landlord bona fide required the land, (1) for cultivating personally, or (2) for any non-agricultural use of his own purpose. The Act also provided a special forum for determination of questions required to be settled, decided or dealt with by the Act. By s. 70 the duties of the Mamlatdar were specified. The section, in so far as i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ombay 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 (such lands not falling within the description of lands described in s. 88 as amended and ss. 88A to 88C as inserted) the protection of the Bombay Tenancy and Agricultural Lands Act 67 of 1948 as originally enacted. It is common ground that the land with which we are concerned in this appeal is not of the description in ss. 88 and 88A to 88C of the Act as amended by Act 13 of 1956. The Legislature also enacted by Act 13 of 1956 s. 43C which by the proviso sought to restore with retrospective effect the rights which had been previously acquired under the Bombay Te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of a qualification or an exception, and functions as a proviso to ss. 32 to 32R. The proviso to s. 43C goes on, not to carve out an exception or to impose a qualification to the exclusion prescribed by the main enactment, but deals with a matter which is unrelated thereto. In tern-is it seeks to protect rights acquired or arising not under ss. 32 to 32R (which were added by Act 13 of 1956) but under the principal Act 67 of 1948 on or after December 281, 1948, and those rights are protected not from the operation of the substantive part of s. 43C, but from the operation of A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 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 (save as expressly provided in the Act) right, title, interest, obligation or liability acquired, accrued or incurred "before the commencement of this Act" i.e. Act 67 of 1948, and it also protects legal proceedings or remedies in respect of any such right, title, interest, obligation or liability or anything done or suffered "before the commencement of this Act". The appellant does not seek to enforce a right acquired before the Act 67 of 1948 was enacted, and a suit instituted for a decree for possession of lands pursuant to a determination of tenancy by a notice in 1956 is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 away by the Bombay Tenancy and Agricultural Lands (Amendments) Act, 1952. The Bombay High Court also held that the protection of the proviso to s. 43C must be given to the tenant even in cases where it is claimed in a suit filed before the amendment was enacted, if the suit is not finally disposed of. We agree with the Bombay High Court on both the questions decided in Patel Maganbhai Jethabhai's case. (1958) 60 Born. L.R. 1383. But the order passed by the District Judge dismissing the suit, cannot be sustained. The learned District Judge passed the order of dismissal of the suit, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nafter 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' Courts Act, 1906." Whatever may have been the position before Act 13 of 1956, the Legislature has clearly expressed its intention that even in a suit property instituted in the Civil Court, if any issue arises which is required to be decided by the Revenue Court, the issue shall be referred for trial to that Court, and the suit shall be disposed of in the light of that decision. The Legislature has therefore clearly expressed itself that issues required under Act 6 7 of 1948 to be decided by a Revenue Court, even if arising in a civil suit must be decided by the Revenue Court and not by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 benefit of the proviso to s. 43C of the Act would be available only to a person who is or claims to be a tenant or protected tenant under the Act. That in turn would depend upon the effect of the various amendments to the Act made after its enactment in 1948 till the date of suit, including the effect of s. 89(2)(h) of the Act. Section 70 of the Act, however, provides that one of the duties to be performed by the Mamlatdar (who acts as a revenue court) is to decide whether a person is a tenant or a protected tenant. Obviously this must mean a claim to be a tenant or a protected tenant under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht 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 for his findings. It is not open to this Court to examine for itself the various enactments, construe the provisions and state its conclusions as to their applicability to the case before us. The jurisdiction to do any of these things in an appeal of the kind before us is, in my view, barred by the combined operation of ss. 70(b) and 85(1) of the Act. I would, therefore, allow the appeal, set aside the judgment of all the courts below and remit the suit to the court of first instance with the direction that it should remit issues 2 and 5 to the Mamlatdar for decision and upon receiving his findi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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