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TMI Blog1965 (8) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 1939Act. 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-Act except for ss. 3, 3-A and 4 which continued as modified in Sch. 1 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution 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 Collector was right. It was also contended that s. 88-B would not apply to the case of the appellant as it came into force on April 1, 1956 after the determination of the tenancy of the appellant by notice. Both these contention were accepted by the High Court and the order of the Revenue Tribunal was set aside and in its place the order of the Collector dismissing the appellant's application was restored. Thereupon there was an application to the High Court under Art. 133 (1) (c) of the Constitution and the High Court certified the case as a fit one for appeal to this Court; and that is how the matter has come up before us. This appeal was first heard by a Division Bench of this Court and has been referred to a larger Bench in view of certain difficulties relating to the interpretation and inter-relation of ss. 31, 88 and 89 of the 1948-Act and in view of two decisions of this Court in Sakharam v. Manikchand ([1962] 2 S.C R. 59.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... odifications 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 foregoing provisions of this Act shall apply -.- (a) to lands held on lease from the Crown, a local authority or a co-operative society; (b).................................." Section 8 8 lays down that nothing in the foregoing provisions of the 1948-Act shall apply inter-alia to lands held on lease from a local authority, like a municipality. As s. 31 is one of the foregoing sections it will not apply to lands held on lease from a local authority. In other words, so far as lands held on lease from a local authority are concerned, there will be no provision in the 1948-Act for recognising a protected tenant even if a person was a protected tenant under the 1939-Act. It is only s. 31 which gave recognition to the status of a protected tenant under the 1948-Act and if that provision is in effect omitted so far as lands held on lease from a local authority are concerned, no such lessee can claim to be a protected tenant. In effect therefore the legisl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pressly 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 interest acquired before the commencement of the 1948-Act that will also not be saved. The narrow question then is whether there is anything express in the 1948-Act which takes away the interest of a protected tenant acquired before its commencement. If there is any such express provision then s. 89(2) (b) would be of no help to the appellant. The contention of the respondent is that S. 88 is an express provision and in the face of this express provision the interest acquired as a protected tenant under the 1939- Act cannot prevail. On the other hand, it is urged on behalf of the appellant that s. 88 does not in express terms lay down that the interest acquired by a protected tenant under the 1939-Act is being taken away and therefore it should not be treated as an express provision. Now there is no doubt that s. 88 when it lays down inter alia that nothing in the foregoing provisions of the 1948-Act shall apply to lands held on lease from a 'local authority, it is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 "save as expressly provided in this Act" appearing in S. 89(2) (b), and it was also not noticed that there could be no new protected tenants after the 1948-Act came into force and that S. 88(1) in its application to leases from local authorities will have no meaning unless it affected the rights contained in S. 3 1. It may very well be that the legislature thought that the status of a protected tenant should not be given to lessees of lands from a local authority, in the interest of the general, public and therefore took away that interest by the express enactment of s. 8 8 ( 1 ) (a). The status was after all conferred by the 1939-Act and we can see no difficulty in its being taken away by the 1948Act. It may be mentioned that S. 8 8 (1) (a) applies not only to lands held on lease from a local authority but also to lands held on lease from the State, and one can visualise situations where the State may need to get back lands leased by it in public interest. It must there ..... X X X X Extracts X X X X X X X X Extracts X X X X
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