TMI Blog1961 (4) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... et aside the judgments below and dismiss the suit with costs throughout, to the contesting defendants-appellants. - C.A. 185 OF 1956 - - - Dated:- 19-4-1961 - P. BHUVNESHWAR SINHA, K. SUBBARAO, RAGHUBAR DAYAL, JJ. JUDGMENT The only question for determination in this appeal is whether the defendants-appellants are 'protected tenants' within the meaning of the Bombay Tenancy Act (Bombay Act XXIX of 1939) (which hereinafter will be referred to, for the sake of brevity, as the Act of 1939), whose rights as such were not affected by the repeal of that Act by the Bombay Tenancy and Agricultural Lands Act (Bombay Act LXVII of 1948) which hereinafter will be referred to as the Act of 1948). The Courts below have decreed the plaintiff's suit for possession of the lands in dispute, holding that the defendants were not entitled to the protection claimed by them as 'protected tenants'. This appeal is by special leave granted by this Court on April 4, 1965. The facts of this case are not in dispute. Shortly stated, they are as follows. By virtue of a lease dated October 30, 1939, the defendants obtained a lease of the disputed lands from the plaintiff for a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amlatdar for a declaration that the tenant was not a 'protected tenant'. No such proceeding appears to have been taken. As a result of the expiration of one year from November 8, 1946the date of the coming into operation of the Amending Act of 1946-the defendants were deemed to be 'protected tenants' and it is not disputed that they were recorded as such. Section 4 of the Act, with which we are not concerned in the present case, made further provisions for recovery of possession by tenants who had been evicted from their holdings in circumstances set out in that section. The Act, therefore, in its terms, was intended for the protection of tenants in certain areas in the Province of Bombay (as it then was). If nothing had happened later, the defendants would have had the status of 'protected tenants' and could not have been evicted from their holdings, except in accordance with the provisions of the Tenancy Law. But the Act of 1939 was replaced by the Act of 1948. The question that arises now for determination is whether the Act of 1948 wiped out the defendant's status as 'protected tenants'. For determining this question, we have naturally to exa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e commencement of this Act, and any such proceeding shall be continued and disposed of, as if this Act was not passed ...... . It has been contended on behalf of the appellants that the repealing s. 89, read with the Schedule, makes it clear that the whole of ss. 3, 3A and 4 of the Act of 1939 have been saved, subject to certain modifications, which are not relevant to the present purpose; and that sub-s. 2(b) of s. 89 has in terms, saved the appellants' rights as 'protected tenants' because those rights had already accrued to them under the Act of 1939. But this contention is countered by the learned counsel for the plaintiff-respondent on three grounds, namely, (1) that s. 88 expressly provides that ss. 1 to 87 of the later Act shall not apply to lands situate in the Municipal Borough of Poona City and Suburban and within a distance of two miles of the limits of such borough; (2) that what has been saved by cl. (b) of sub-s. (2) of s. 89 is not every right but only such rights as had been actually exercised and recognised; and (3) that the terms of the saving clause, as contained s. 89(2)(b) were not identical with s. 7 of the Bombay General Clauses Act, inasmuch a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal settlements, if he so desired, on fulfillment of those conditions. He had those rights to acquire the additional lands under the provisions of the Crown Lands Alienation Act,, 1861, but the Crown Lands Act of 1884, repealed the previous Act, subject to a saving provision to the effect that all rights accrued by virtue of the repealed, enactment shall, subject to any express provisions of the repealing Act in relation thereto, remain unaffected by such repeal. The appellants' contention that under the saving clause of the repealed enactment he had the right to make additional conditional purchases and that was a 'right accrued' within the meaning of the saving clause contained in the repealing Act of 1884, was negatived by the Privy Council. It is, thus;, clear that the context in which the observations relied upon by the respondent, as quoted above, were made is entirely different from the context of the present controversy. That decision is only authority for the proposition that 'the mere right, existing at the date of a repealing statute, to take advantage of provisions of the statute repealed is not a 'right accrued' within the meaning of the usual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve been adopt. ed by the later Act, it has been so done in the context of the later Act, granting greater facilities and larger rights to what are described as 'Protected tenants'. In other words s. 31 has been enacted not to do away with the rights contained in ss. 3, 3-A and 4 of the earlier statute, but with a view to apply that nomenclature to larger rights conferred 'under the Act of 1948. The provisions of s. 88 are entirely prospective. They apply to lands of the description contained in cls. (a) to (d) of a. 88(1) from the date on which the Act came into operation, that is to say, from December 28, 1948. They are not intended in any sense to be of a confiscatory character. They do not show an intention to take away what had already accrued to tenants acquiring the status of 'protected tenants'. On the other hand, s. 89(2)(b), quoted above, clearly shows an intention to conserve such rights as had, been acquired or had accrued before the commencement of the repealing Act. But it has further been contended on behalf of the respondent, in ground 3 of the attack, that sub-cl. (ii) of cl. (b) of s. 89(2) would indicate that the legislature did not intend comp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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