TMI Blog1965 (8) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... SHAH, S.M. SIKRI, JJ. JUDGMENT 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 repeated 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 s. 88- B was introduced in the 1948-Act, that the revenue court had jurisdiction to decide whether the appellant was a tenant. Finally it remanded the matter to the Collector for decision on the question whether the appellant was a tenant or a protected tenant on the merits. The respondent had contended before the Revenue Tribunal that the appellant could not have the status of a tenant or protected tenant in view of the provisions of the 1948-Act and therefore the respondent filed a petition under Art. 227 of the Constitution of India before the Bombay High Court. Its contention before the High Court was that in view of s. 88 of the 1948-Act the appellant could not claim to be a protected tenant within the meaning of s. 31 of that Act and therefore the order of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... December 28, 1948. Further it seems to us obvious that ss. 3, 3-A and 4 of the 1939-Act were not repealed and were continued as modified in Sch. 1 of the 1948-Act for the purpose of s. 31 of the 1948-Act. That section provided as follows:- For the purposes of this Act, a person shall be recognised to be a protected tenant if such person has been deemed to be a protected tenant under section 3, 3-A or 4 of the Bombay Tenancy Act, 1939. These sections (ss. 3, 3-A and 4) which were continued in a modified form in Sch. 1 of the 1948-Act were so continued only for the purpose of S. 31 of the Act and it was not possible for any tenant to be a protected tenant under the 1948-Act unless he was a protected tenant under the 1939-Act. The 1948-Act thus recogaised such tenants as protected tenants who were protected tenants under the 1939-Act and even though ss. 3, 3-A and 4 of the, 1939 Act were continued as modified by Sch. 1 of the 1948Act The modifications were such as showed that only those tenants would remain protected tenants under the 1948-Act who were protected under the 1939-Act. Then we come to s. 88 of the 1948-Act which is in these terms :- (1). Nothing in the for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e not repealed by the 1948-Act. Therefore that Part of s. 89 (2) (b) which says that any repeal effected thereby shall not affect or be deemed to affect any high title, interest etc. will not apply. But learned counsel for the appellant relies on the words nothing in this Act shall affect or be deemed to affect any right, title or interest. . . . and his argument is that even though there might not have been a repeal of ss. 3, 3-A and 4 of the 1939-Act by the 1948-Act S. 89 (2) would still protect him because it provides that nothing in the 1948-Act shall affect or be deemed to affect any right title, interest etc. acquired before its commencement. But the clause nothing in this Act shall affect or be deemed to affect is qualified by the words save as expressly provided in this Act . Therefore, if there is an express provision in the 1948-Act, that will prevail over any right, title or interest etc. acquired before its commencement. Further the words save as expressly provided in this Act also qualify the words any repeal affected thereby and even in the case of repeal of the provisions of the 1939-Act if there is an express provision which affects any title, right or int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of s. 88(1) is clearly the same and therefore there is no difficulty in holding that there is an express provision in the 1948-Act which lays down that there will be no protected tenant of lands held on lease from a local authority. In view of this express provision contained in s. 88(1) (a), the appellant cannot claim the benefit of s. 31 ; nor can it be said that his interest as protected tenant is saved by s. 89 (2) (b). This in our opinion is the -plain effect of the provisions contained in s. 31, s. 88 and s. 89(2)(b) of the 1948-Act. It now remains to refer to Sakharam's case([1962] 2 S.C.R. 59) which certainly supports the contention raised on behalf of the appellant. With respect, it seems to us that more has been read in that case in s. 89 (2) (b) than is justified under the terms of that provision. It was also observed in that case that the provisions of s. 88 were entirely prospective and were not intended in any sense to be of confiscatory character, and that s. 89(2) (b) showed clearly an intention to conserve such rights as were acquired before the commencement of 1948-Act. It seems to us, with respect, that in that case full effect was not given to the words sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s held on lease from Government, a local authority or co- operative society. The words held on lease in this clause are only descriptive of the lands and are not confined to lands held on lease on the date the Act came into force; they equally apply to lands ceased before or after the Act became law and the distinction that was drawn in Mohanlal Chunilal Kothari's case(1) that cls. (a), (b) and (c) applied to things as they were at the date of the enactment whereas cl. (d) was with respect to future, with respect, does not appear to be correct. In this view of the matter, the view taken by the High Court in the judgment under appeal that s. 88 (1) (a) is an express provision which takes away the interest of protected tenants under the 1939-Act must be held to be correct. So far as the argument based on s. 88-B is concerned, it IS enough to say that we agree with the High Court that section will not protect the appellant for his lease had already been determined before the section came into force on April 1, 1956. Besides it may be observed that s. 4-A which takes the place of s. 31 after the amendment of 1956 still does not apply to a case of lands held on lease from a loc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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