Hiralal Prabhubhai And Others vs Nagindas Atmaram Matri

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 120/62

Decision Date: 14 February, 1964

Coram: K. Subbarao, J.R. Mudholkar, Subba Rao J

In the matter styled Hiralal Prabhubhai and Others versus Nagindas Atmaram Matri, the Supreme Court of India delivered its judgment on 14 February 1964. The judgment was authored by Justice J. R. Mudholkar, who sat on a bench together with Justice Subbarao K. The case is reported in 1966 AIR 367 and in the 1964 volume of the Supreme Court Reports at page 807, and it concerns the Bombay Tenancy Agricultural Lands Act, Bombay Act No. 67 of 1948, particularly sections 88 and 89, as well as the earlier Bombay Tenancy Act of 1939 and the Bombay Tenancy and Agricultural Lands (Amendment) Act of 1952.

The respondent, Nagindas Atmaram Matri, served notice on the appellants terminating their lease of an agricultural plot that lay within two miles of the limits of the Surat Borough Municipality, and thereafter instituted a suit for eviction. The appellants contested the suit on the ground that, under the provisions of the Bombay Tenancy Act of 1939, they had acquired tenancy rights that could not be terminated arbitrarily. The civil judge, after examining the matter, held that the 1939 Act had been repealed by the Bombay Tenancy and Agricultural Lands Act of 1948 and that the 1948 Act did not apply to the land in question because the land was situated within two miles of the municipal limits. Accordingly, the civil judge decreed in favour of the respondent.

The appellants appealed to the District Judge, who reversed the trial court’s decree on the basis that the 1948 Act did apply to the disputed land. The respondent then appealed to the High Court, which, in a second appeal by the plaintiff, again held that the land fell within the two‑mile limit and that therefore the 1948 Act was inapplicable, restoring the original decree in favour of the respondent.

On special leave to appeal, the appellants argued that their tenancy rights under the 1939 Act were saved by section 89(2) of the 1948 Act, which preserved a lease of ten years that had been granted under the earlier statute. They further contended that the Bombay Tenancy and Agricultural Lands (Amendment) Act of 1952 brought the land within the territorial scope of the 1948 Act, so that the saved rights should now be governed by the 1948 Act, rendering any eviction permissible only in accordance with that Act’s procedures. The respondent counter‑argued that the saving provision in section 89(2) operated only where there was no express contrary provision, and that invoking the saving clause would be pointless because the appellant could not enforce any right under the 1948 Act.

The Court held, first, that before the suit was finally disposed of, the 1952 Amendment had come into force, thereby extending the operation of the 1948 Act to the land in dispute, and that consequently the respondent could not evict the appellants except by following the procedure prescribed in the 1948 Act. Second, the Court rejected the respondent’s contention, observing that section 88(1) of the 1948 Act expressly states that the provisions of sections 1 to 87 do not apply to the area in question, which demonstrates an express provision contrary to the respondent’s argument. Third, the Court noted that where a right is recognised by law, a legal remedy must be available, and therefore the appellants’ saved tenancy right could not be denied.

In the absence of any special provision that designated a specific forum for the enforcement of a particular right, the ordinary law of the land would inevitably apply. Consequently, the High Court erred when it held that the appellants could not rely on the benefits contained in the Bombay Tenancy and Agricultural Lands Act of 1948. The Court referred to the decision in Sakharam (a) Bapusaheb Narayan Sanas v. Manikchand Motichand Shah [1962] 2 S.C.R. 59. The matter before the appellate division was Civil Appeal No. 120/62, which had been granted special leave against a judgment and decree dated 23 April 1959 issued by the former Bombay High Court in Second Appeal No. 1359 of 1955. Counsel for the appellants were Mr. M. S. K. Sastri and Mr. M. S. Narasimhan, while counsel for the respondent comprised Mr. O. C. Mathur, Mr. J. B. Dadachanji and Mr. Ravinder Narain. The appeal was decided on 14 February 1964, and the opinion was delivered by Justice Subba Rao. The central issue raised by the special leave petition concerned whether the 1948 Act applied to the tenancy that was the subject of the dispute.

The appellants were the legal representatives of one Prabhubhai Ratanji, and the land in question was agricultural terrain situated within two miles of the limits of the Surat Municipal Borough. That parcel had previously formed part of the former Sachin State. On 7 May 1946, the respondent, Nagindas Atmaram Khatri, who owned the land, executed a lease in favour of Prabhubhai Ratanji for a term of six years. Subsequently, on 28 July 1948, the territory of Sachin State was incorporated into the State of Bombay, and from that date the Bombay Tenancy Act of 1939 (hereinafter the “1939 Act”) became applicable to the area. On 23 April 1951, the landlord served a notice terminating the lease effective 31 March 1952, and thereafter instituted Regular Suit No. 403 of 1952 before the Subordinate Judge of Surat, seeking eviction of the lessee Parbhubhai Ratanji. The defendant contested the suit on several grounds, primarily asserting that the provisions of the 1939 Act had conferred tenancy rights upon him. Following the death of the defendant on 30 September 1955, his legal representatives were substituted in his place. The learned Civil Judge, among other findings, held that the 1939 Act had been repealed by the 1948 Act and that the latter did not extend to the suit land because it lay within two miles of the Surat Borough Municipality, and accordingly he granted a decree for possession, arrears of rent and mesne profits. The decree was appealed to the District Judge, who, after finding that the landlord had not proven the two‑mile distance, concluded that the 1948 Act applied to the property and set aside the trial court’s decree.

The appellate court affirmed the decree that granted possession of the suit land to the plaintiff while it upheld the decree ordering the plaintiff to recover arrears of rent from the defendant. Following this decision, the plaintiff filed a second appeal before the High Court, challenging the portion of the decree issued by the District Court that was adverse to his interests. That appeal was heard by a Division Bench of the High Court. The High Court examined the question of whether the suit land lay within a two‑mile radius of the limits of the Surat Borough Municipality. It concluded that the land indeed fell within that distance, and consequently held that the Bombay Tenancy and Agricultural Lands (Transfer) Act, 1948 did not apply to the land in question. On the basis of that finding, the High Court set aside the decree that had been passed by the learned District Judge and restored the decree originally issued by the learned Civil Judge, which had awarded possession to the plaintiff. The legal representatives of the deceased defendant subsequently filed the present appeal before this Court. Counsel for the appellants argued that the High Court ought to have held that the rights of the appellants created under the Bombay Tenancy and Agricultural Lands (Transfer) Act, 1939 were preserved by the provisions of the 1948 Act. The counsel further submitted, in broad terms, that section 89(2) of the 1948 Act saved the appellants’ rights under the 1939 Act, thereby protecting the ten‑year lease term granted under that earlier statute. Moreover, the counsel contended that the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1952—referred to as the “1952 Act”—brought the suit land within the scope of the 1948 Act, so that the preserved rights subsequently fell under the governance of the 1948 Act, and that, accordingly, the respondent could not lawfully evict the appellants except in accordance with the procedural requirements set out in that Act.

To understand the arguments of the parties, the Court found it necessary to trace briefly the legislative history of the relevant provisions. Section 23(1) of the 1939 Act, as amended by the 1946 Amendment, provided that (a) no lease of any land situated in any area where the section was in force could be for a period of less than ten years if the lease was created after the date the section became operative in that area; and (b) every lease that was subsisting on the date the section became operative, or that was created after that date, in respect of any land in that area would be deemed to be for a period of not less than ten years. The 1939 Act was later repealed by the 1948 Act. Prior to its amendment by the 1952 Act, section 88(1) of the 1948 Act stated: “Nothing in the foregoing provisions of this Act shall apply— (a) ……… (b) ……… (c) to any area within the limits of Greater Bombay or within the limits of the Municipal Borough of ……… Surat ……… and within a distance of 2 miles of the limits such boroughs.” Section 89 of the same Act read: “(1) The enactment specified in the schedule is hereby repealed to the extent mentioned in the fourth column thereof. (2) But nothing in this Act or any repeal effected thereby— (a) ……… (b) shall save as expressly provided in this Act affect or deemed to affect, (i) any right, title, interest, obligation or liability already acquired, accrued or incurred before the commencement of this Act; ……” These provisions formed the basis of the appellants’ contention that their tenancy rights, acquired under the earlier statute, were intended to be preserved despite the later repeal and amendment.

The schedule attached to the legislation listed the statutes that were repealed. In the first column the year 1939 was shown, followed by the short title “The Bombay Tenancy Act, 1939.” The third column indicated that the whole of that Act was repealed except for sections three, three‑A and four, which were to remain in force as modified by the subsequent provisions.

Section eighty‑eight of the 1948 Act had later been altered by the 1952 amendment. The amendment provided that none of the earlier provisions of the Act would apply to any area that lay within the limits of Greater Bombay, within the limits of the municipal corporations created under the Bombay Provincial Municipal Corporation Act of 1949, within the limits of the municipal boroughs created under the Bombay Municipal Boroughs Act of 1925, or within the limits of any cantonment. In other words, the amended section expressly excluded those specified areas from the operation of the 1948 Act.

The court then explained how these provisions affected a lease of agricultural land situated within two miles of the limits of the Surat Borough Municipality. The court stated that any lease that was in existence on the date the amending Act of 1946 became effective, which was 11 April 1946, would be deemed to have a minimum term of ten years. The court noted that the 1939 Act had been repealed by the 1948 Act. Under subsection eighty‑eight (1) (c) of the 1948 Act, the provisions of that Act did not apply to any area that lay within the municipal limits of the Surat borough or within a two‑mile radius of those limits. However, the lessee’s right, title and interest in such an area were preserved by subsection eighty‑nine (2) (b) (i) of the same Act.

The court further observed that section eighty‑eight (1) of the 1948 Act was again amended by the 1952 Act, which came into force on 12 January 1953. By that amendment the 1948 Act was extended to cover any area within two miles of the Surat Borough Municipality. Consequently, after the amendment took effect, all the provisions of the 1948 Act became applicable to any agricultural lease that continued to exist in that area. The court explained that, once those provisions applied, a lease could be terminated only in the manner prescribed by section fourteen of the 1948 Act.

Having set out the legal framework, the court turned to the facts of the present dispute, which were uncontested. The lease deed between the predecessor of the appellants and the respondent had been executed on 7 May 1946. The lease was for a period of six years, commencing on 3 May 1946, and therefore was scheduled to expire on 2 May 1952. The territory known as Sachin State had been merged into Bombay State on 28 July 1948. After that merger, the 1939 Act, as amended by the 1946 Act, was extended to the newly formed Bombay State. As a result of that extension, the lease that would otherwise have expired in May 1952 was statutorily prolonged by an additional four years, carrying its expiry date to May 1956. On 28 December 1948, the respondent took further action, the details of which were to be considered in the subsequent analysis.

In this case, the Court observed that the 1948 Act had become operative on the date it came into force and that it expressly repealed the earlier 1939 Act. The 1948 Act also contained a provision exempting lands lying within the limits of the Surat Borough Municipality and lands situated within two miles of those limits from the operation of its provisions, while at the same time preserving any right or interest that a lessee had acquired under the repealed 1939 Act. When the 1952 Act took effect on 12 January 1953, the lease in question was still subsisting under the protective saving clause of the 1948 Act. By virtue of the amendment made by the 1952 Act, the 1948 Act was extended to the land that lay within two miles of the Surat Borough Municipality, and consequently the appellants’ interest could be terminated only in accordance with section 14 of the 1948 Act. On 23 April 1951, the respondent served a notice on the appellants terminating the lease effective from 31 March 1952, and subsequently filed an eviction suit on 21 April 1952. However, before the suit was finally decided, the 1952 Act came into force, and because the 1948 Act was now extended to the land in dispute, the respondent was barred from evicting the appellants except as prescribed by the 1948 Act. The Court therefore held that the High Court was incorrect in concluding that the appellants could not invoke the benefit of the 1948 Act. At this stage, the Court also examined another contention raised by counsel for the respondent. The respondent argued that the saving provision in section 89(2) would operate only in the absence of an express contrary provision, and that such an express provision existed in section 88(1), which stated that the provisions of sections 1 to 87 would not apply to the area in question. The respondent further claimed that the saving of the appellant’s right would be futile because the appellant could not enforce that right under the Act. The Court noted that a similar argument had been advanced and rejected in Sakharam alias Bapusaheb Narayan Sanas v. Manikchand Motichand Shah (1). In that precedent, the lands were situated within two miles of the Poona Municipal Borough, and the issue was whether the rights of protected tenants were affected by the repeal. The Court in that case held that the provisions of section 88(1) were wholly prospective, applied from the date the Act came into force, and were not intended to be confiscatory. When it was further contended that the right would be illusory because it could not be enforced, the Court pointed out that a legally recognized right always carries a remedy, and in the absence of any special provision specifying a particular forum, the general law would naturally provide the means of enforcement. The Court affirmed that the decision in Sakharam alias Bapusaheb Narayan Sanas v. Manikchand Motichand Shah (1) [1962] 2 S.C.R. 59 is binding on the present matter.

In this case, the Court rejected the contention raised. The citation (1) [1962] 2 S.C.R. 59 was noted. Nonetheless, counsel for the respondent argued that, according to the view adopted by the High Court, it was unnecessary for the High Court to make findings on two important issues that had arisen, identified as issues three and four. Issue three concerned whether the plaintiff had established that he sought possession for bona‑fide personal cultivation. Issue four concerned whether the defendant had demonstrated that he had not caused damage to the suit property, taking into account the decision in Regulation C, Suit No. 619 of 1950, rendered by the Joint Civil Judge (J.D.) at Surat. The respondent’s counsel therefore suggested that the matter should be remanded to the High Court for determination of those two points. The Court held that, because of the supervening circumstances, it could not accept that argument. The Court recalled that on 23 April 1951 the respondent had served a notice stating that a six‑year tenancy would expire on 31 March 1952. However, the 1939 Act had extended the tenancy by operation of law until 1956, rendering the notice ineffective and depriving the respondent of any relief based on it. The Court observed that the respondent could pursue any appropriate legal remedy available in a competent tribunal. Consequently, the only appropriate step was to set aside the decree of the High Court and to restore the decree of the District Judge. Each party was ordered to bear its own costs throughout the proceedings, and the appeal was allowed.