SIDRAM NARSAPPA KAMBLE v. SUOLAPUR BOROUGH MUNICIPALITY & Anr.

1bis appeal was first heard by a Division Bench of this Court and has been referred to a larger Bench in view of certain diffi culties 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 e Court in Sakharam v. Manikchand(') and Mohan/al Ch11nilal It has been con Kothari v. Tribhovan J/aribhai Tamboli("). tended on behalf of the appellant that Sakharam's case(') covers the present case and on the basis of that case the appeal should be allowed. On the other hand, learned counsel for respondent contends that on the ) the appellant should be held to be not a pro Kothari's case,( 2 tected tenant and that considerations which applied to the inter pretation of s. 88 (l)(d) equally applied to the interpretation of It is further urged on behalf of the s. 88(1)(a), (b) and (c). respondent that in view of the latter decision, the decision Sakharam's case(') no longer holds the field. ratio of Mohan/al Chuni/al C I> Before we refer to the two decisions on which reliance has been placed on either side, we may refer to the various provisions of the 1948-Act as they were before the amendments of 1956 to decide the inter-relation of ss. 31, 88 and 89 of the said Act. It may be mentioned at the outset that s. 89 which repealed the E 1939-Act did not repeal ss. 3, 3-A and 4 of that Act. These three sections continued as modified in Sch. I of the 1948-Act. A perusal of the modified sections in Sch. I shows that protected tenants were only those tenants who satisfied these three sections in the Schedule and that no new protected tenants could come into existence under the 1948-Act after it came into force from P 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 Further it seems to us obvious that ss. 3, 3-A and 4 of the 1939-Act were not repealed and were continued as modified in Sch. I 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 re- cognised 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." G. • These sections ( ss. 3, 3-A and 4) which were continued in a modified form in Sch. I of the 1948-Act were so continued only H! for the purpose of s. 31 of the Act and it was not possible for - - - - - - ,, __ _ (2) [1963] 2 S.C.R. 707. (I) [t962] 2 S.C.R. S9. • s. N. !CAMBLE v. SHOLAPUR MUNC. (Wanchoo, J.) 623' A 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 recognised 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. I of the 1948- Act the modifications were such as showed that only those tenants B 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 terms:- c D JI: • G H " ( 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) " In other words, so far as lands held on Section 88 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 foregoing sections it will not apply to lands held on lease from a local authority. 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 there fore the legislature which had conferred by the 1939-Act the· status of a protected tenant on certllcin persons was taking away that status by enacting s. 88 in the 1948-Act so far as inter a/ia lessees from a local authority were concerned. If matters had s!Ood only on ss. 31 and 88 there would have been no difficulty in holding that the status of protected tenant conferred by the 1939-Act was taken away from certain lessees including lessees from a local authority under s. 88 of the 1948- Act. But the appeliant relies on s. 89(2)(b) and contends that that provision saved his rights as a protected tenant. We have already mentioned thats. 89(1) repealed inter alia the 1939-Act except for ss. 3, 3-A and 4 which continued in a modified form 624 SUPUMJI COUIT l.BPOllTS (1966) I S.C.R. in Sch. I of Section 89 (2) (b) on which reliance is placed by the A appellant is in these terms : - "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 liabi lity already acquired, accrued or incurred before tlu: commencement of this Act, or (ii) " 8 c The argument is that the interest acquired as a protected tenant under the 1939-Act would thus not be affected in view of this pro vision in the 1948-Act; and it is this argument which we have to examine. Now we have already mentioned that ss. 3, 3-A and 4 relating to protected tenants in the 1939-Act were not repealed D 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 right, 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 case of repeal of the provisions of the 1939-Act if express provision which affects any title, right or interest acquired before the commencement of the 1948-Act that will also not be saved. E JI there is an G The narrow question then is whether there is anything expresa in the 1948-Act which takes away the interest of a protected b tenant acquired before its commencement. If there is any sue express provision then s. 89(2) (b) would be of no help to appellant. The contention of the respondent is that s. 88 is an • • s. N. KAMBLE v. SHOLAPUR MUNC. (Wanchoo, J.) 625 0 A express provision and in the face of this express provision 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 term$ 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 provi- 8 &ion. 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 an expre.5s provision which takes out such leases from the purview of sections 1 to 87 of the 1948-Act. One of the provisions therefore which must be treated as non-existent where lands are given on lease by c a local authority is in s. 31. The only provision in the 1948-Act which recognised protected tenants is s. 31 and if that section is to be treated as non-existent so far as lands held on lease from a local authority are concerned, it follows that there can be no pro tected tenants of lands held on lease from a local authority under the 1948-Act. It is true thats. 88 does not in so many words say that the interest of a protected tenant acquired under the 1939-Act is being taken away so far as lands held on lease from a authority are concerned; but the effect of the express provision contained in s. 88 ( 1 ) (a) clearly is that s. 31 must be treated as non-existent so far as lands held on lease from a loca1 authority are E concerned and in effect therefore s. 88 (I )(a) must be held to say that there will be no protection under the 1948-Act for protected tenants under the 1939-Act so far as lands held on lease from a local authority are concerned. It was not necessary that the ex press provision should in so many words say that there will be no protected tenants after the 1948-Act came into force with respect to lands held on leare from a local authority. The intention from the express words 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 In view of tenant of lands held on lease from a local authority. this express provision contained in s. 88(1) (a), the appellant G 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 ins. 31, s. 88 and s. 89(2) (b) of the 1948-Act. F , • It now remains to refer to Sakharam's case(') which certainly supports the contention raised on behalf of the appellant. With res H pect, it seems to us that more has been read in that case in s. 89 It was (2) (b) than is justified under the terms of that provision. (1) [1962! 2 S.C.R. 59. ... 126 SUPllBMJ! COUllT llBPOJ. TS (1966) l S.C.R. also observed in that case that the provisions of s. 88 were entirely A prospective and were not intended in any sense to be of conJis catory character, and thats. 89(2) (b) showed clearly an intention to conserve such rights as were acquired before the commencement It seems to us, with respect, that in that case full of 1948-Act. effect was not given to the words "save as expressly provided this Act" appearing ins. 89(2) (b), and it was also not noticed B that there could be no new protected tenants after the 1948-Acr came into force and that s. 88 (I) in its application to leases from local authorities will have no meaning unless it affected the rights contained in s. 31. 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 c and therefore took away that interest by the express enactment of s. 88(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 1948- It may be mentioned that s. 88 (I)( a) applies not only to Act. lands held on lease from a local authority but also to lands held D 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 therefore have been in the interest of the public that a pro vision likes. 88 (l)(a) was made with respect to lessees from a local authority or the State who had become protected tenants under the 1939-Act. We are supported in the view we have taken E by the decision of this Court in Mohan/al Chuni/al Kothari'3 case( 1 ) where it was held thats. 88 (l)(d) would be rendered compl-~tely ineffective if it was not to be applied retrospectively, thouj!h it was added in that case that it did not affect the rights acquired under the earlier Act of 1939. The latter observation, with respect, does not seem to be correct for their could he no new F protected tenants under the 1948-Act to whom even s. 88 (I) ( d) could have applied. Further if a notification under s. 88 (I)( d) could b.~ retrospective upto the date of the 1948-Act we can see no reason on the language of this section to hold that it was retro <pective only upto 1948 and would not affect the righ!Sacquired under the 1939-Act. G We may also mention thl!_t by an oversight it was stated Mohan/al Chunilal Kothari's case(') that clauses (a), (b) and ( c) of s. 88 (I) apply to things as they were at the date of the en actment. It is however clear that clauses (a), (b) and (c) of s. 88 (I) also apply in the future. For example cl. (a) lays down that H nothing in the foregoing provisions of this Act shall apply to lands (I) [1963] 2 S.C.R. 707. s. N. KAMBLB v. SHOLAPUR MUNC. (Wanchoo, l.) 627 A held on lease from Government, a local authority or -co-Operative society. The words "held on lease" in this clause are only des criptive of the lands and are not confined to lands held on lease on the date the Act came into force; they equally apply to leased before or after the Act became law and the distinction that was drawn in Mohan/al Chuni/a/ Kothari's case(') that els. (a), ( b) and ( c)' applied to things as they were at the date of the enact ment whereas cl. ( d) was with respect to future, with respect, does not appear to be correct. B In this view of the matter, the view taken ~t the High Court in the judgment under appeal thats. 88 (l)(a) is an express-pro C vision 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 i~ enough to say that we agree with the High Court that -that section will not protect the appellant for his lease had already been deter- D mined before the section came into force on April l, 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 local authority and therefore what we have said with respect to s. 31 will equally apply to s. 4-A and the appellant cannot claim the benefit of that section and contend that he is a E prot.~cted tenant under the 1939-Act and therefore cannot be ejected. In the result we dismiss the appeal but in the circumstances of this case we order the parties to bear their own costs. Appeal dismissed . • (!) [1963] 2 S.C.R. 707.