| Headnote |
Suit—Decree—Law changed during pendency of appeal—, Appellate Court, if bound to apply changed law—Retrospective operation—Bombay Tenancy and Agricultural Lands Act (Bom. LXVI of 1948, S. 88 (1)(d))—Bombay Tenancy Act, 1939, 8, 3A(1). Certain lands were situated in the erstwhile State of Baroda before it became a part of the State of Bombay by merger. The Bombay Tenancy and Agricultural Lands Act, 1948, was extended to Baroda on August 1, 1949. Suits were filed in the Civil Court by appellants—landlords against the respondents who were their tenants on the ground that the latter became trespassers with effect from the beginning of the new agricultural season in May, 1951. Decrees for possession were passed by the Civil Court in favour of landlords and the same were confirmed by the first appellate court. However, the High Court accepted the appeals and dismissed the suits, It was held that under the provisions of s. 3A(1) of the Bombay Tenancy Act, 1939, as amended, a tenant would be deemed to be a protected tenant from August 1, 1950 and that vested right.could not be affected by the notification dated April 24,.1951 issued under s. 89 (1) (d) of the Act of 1948 by which the land in suit was excluded from the operation of the Act. The notification dated April 24,1951 had no retrospective effect and did not take away the protection afforded to tenants by s. 3A. The landlords came to this Court by special leave. It was conceded that the appellants’ suits for possession would fail if the Act applied to the tenancies in question, because in that case only revenue courts had jurisdiction to try them. However, reliance was plated on notification dated April 24, 1951 which excluded the land in suit from the operation of the Act. It was also contended on behalf of appellants that the subsequent notification cancelling the first one, could not take away the rights which had accrued to them as a result of the first notification. Held, that the notification dated April 24, 1951 was cancelled by another notification dated January 12, 1953. The second notification was issued when the matter was still pending in the first court of appeal. The suits had therefore to be decided on the basis that there was no notification in existence which would take the disputed lands out of the operation of the Act. The first appellate court was wrong in holding that the suits had to be decided on the basis of facts in existence on the date of filing of the suits. Held, further, that the second notification cancelling the first one did not take away any rights which had accrued to the landlords, If the landlords had obtained an effective decree and had succeeded in ejecting the tenants as a result of that decree which may have become final between the parties, that decree may not have been re-opened and the execution taken thereunder may not have been recalled. However, it was during the pendency of the suit at the appellate stage that the second notification was issued cancelling the first and the court was bound to apply the law as it was on the date of its judgment. Held, also, that clauses (a), (b) and (c) of s. 88(1) applied to things as they were on the date of the commencement of the Act of 1948 whereas clause (d) authorised the , State Government to specify certain areas as being reserved for urban non-agricultural or industrial development, by notification in the Official Gazette, from time to time. It was specifically provided in clauses (a) to (c) that the Act, from its inception, did not apply to certain areas then identified, whereas clause (d) had reference to the future. The State Government could take out of the operation of the Act such areas as in its opinion should be reserved for urban non- agricultural or industrial development. Clause (d) would come into operation only upon such a notification being issued by the State Government. In Sukharam’s case, this Court never intended to lay down that the provisions of Clause (d) were only prospective and had no retrospective operation. Unlike clauses (a) to (c) which were clearly prospective, clause (d) had retrospective operation in the sense that it would apply to land which would be covered by the notification to be issued by the Government from time to time so 728 to take that land out of the operation of the Act of 1948, granting the protection. So far as clauses (a) to (c) were concerned, the Act of 1948 would not apply ,at all to lands covered by them, but that would not take away the rights conferred by the Act of 1939 which was repealed by the Act of 1948. Section 89(2) specifically preserved the existing rights under the repealed Act. Sukharam’s case was about the effect of clause (c) on the existing rights under the Act of 1939 and it was in that connection that this Court observed that s. 88 was prospective. However clause (d) is about the future,-and unless it has the limited retrospective effect indicated earlier, it will be rendered completely nugatory, The intention of the legislature obviously was to take away all the benefits arising out of the Act of 1948 (but not. those arising from the Act’ of 1939) as soon as the notification was made under clause (d). |
