Holding

The notification under s.88(1)(b) renders the Act inapplicable retrospectively to the notified lands, and s.89(2)(b) does not preserve the tenant's rent right, so the civil court may determine reasonable rent.

Summary

The Supreme Court examined whether a 1958 government notification under section 88(1)(b) of the Bombay Tenancy and Agricultural Lands Act, 1948, which reserved lands within Baroda municipality for non‑agricultural/industrial use, rendered the Act's provisions inapplicable retrospectively, thereby extinguishing rights accrued under the Act, including a rent determination made by a Mamlatdar. The Court held that the notification gave the Act a retrospective effect, nullifying rights except those preserved under section 89A for protected tenants under the 1939 Act. Consequently, section 89(2)(b) could not protect the tenant's rent right, and the civil court was competent to determine reasonable rent. The High Court’s decree ordering recovery of rent was affirmed, and the appeal was dismissed.

Issues considered

Whether the notification under s.88(1)(b) of the Bombay Tenancy and Agricultural Lands Act, 1948, makes the Act inapplicable retrospectively to lands reserved for non‑agricultural/industrial development, thereby extinguishing rights accrued before the notification.
Whether s.89(2)(b) of the same Act protects the tenant's right to the rent determined by the Mamlatdar despite the retrospective effect of the notification.

Legislation cited

Bombay Tenancy Act, 1939s. 3, s. 3A, s. 4
Bombay Tenancy and Agricultural Lands Act, 1948s. 88(1)(b), s. 89(2)(b), s. 89A
Bombay Tenancy and Agricultural Lands (Amendment) Act, 1955

Subjects

Tenancy ActRent determinationRetrospective legislationProtected tenantCivil court jurisdictionLand reservationBombay Tenancy and Agricultural Lands Act

Judgment

A

PARVATI & ORS.
v.
FATEHSINHRAO PRATAPSJNHRAO G,AEKWAD
B
SEPTEMBER 18, 1986

IA.P. SEN AND B.C. RAY, JJ.J

Bombay Tenancy and.Agricultural Lands Act, 1948: ss. 88( l)(b).
89(2)(b) and 89A-Notification reserving lands within municipal limits
-of a clly for non-agricultural or industrial development-Effect oj.
c
When Baroda became Borough Municipality on Isl May 1950, the ·
provisions of the Bombay Tenancy A:ct, 1939 were applicable to the
lands situated within its municipal limits. That Act was repealed by the
Bombay Tenancy and Agricultural Lands Act, 1948 which was made D
applicable to the Baroda Municipality with effect from August I, 1956
by the Bombay Tenancy .and Agricultural Lands (Amendment) Act,
1955 (Bombay Act No. XIII of 1956). Section 88( l)(b) ·of the 1948
Act, as substituted bys. 48 of the Act of 1956, provided that nothing in
the Act shall apply to any area which the State Government may, by
notification in the official gazette, specify as being reserved for non- E
agricultural or ind_ustrial development. Section 89(2)(b) further laid
down that nothing in that Act or. any repeal effected thereby, shall
affect or be deemed to affect, any right, title, interest, obligation or
liability already acquired, accrued or incurred before the commence-
ment of this Act. Section 89A recited that notwithstanding the repeal of
the 1939 Act, the provisions of s~. 3, 3A and 4 or that Act, as set out in F
Schedule I to the 1948 Act, shall always be deemed to be extendec\ to
and to be in force in those areas on the dates on which the 1948 Act was
extended to and brought into force.

The Government by a notification dated May 21, 1958 issued
under s. 88(l)(b) of the 1948 Act reserved the lands within the G
municipal limits of the city of Baroda for non-agricultural and in-
dustrial development.

Appellant's husband-defendant, took possession of certain lands
situated in the city of Baroda, from the respondent-trustee of a temple
for a period of three years from 1956 to 1958 at an annual rent of H
•
793
794 SUPREME COURT REPORTS 11986] 3 S.C.R.

A Rs.2225 by executing a Kabuliyat dated June 2, 1956, which was not
registered. As he fell into arrears of rent for the said years, the
respondent-plaintiff filed a snit for its recovery. The defence was that
the snit was not maintainable in a civil court inasmuch as even though
the Tenancy Act ceased to apply on the issue of the notification under s.
88(1)(b) in respect of lands within the municipal limits of the city of
B Baroda, yet the rights of the tenant in respect of the snit land, which
had accrued before the said notification, subsisted.

The trial court held that the Tenancy Act was applicable to the
case and since the Mamlatdar had already determined the reasonable
rent in respect of the lands in question, the civil court was not
c competent to determine the same once again. The appeal preferred was
dismissed by the District Judge. On further appeal, the High Court held
that in view of the notification issued under s. 88(l)(b) of the said Act
the provisions of the Tenancy Act will not apply retrospectively and
directed the trial court to redetermine the issue. On receipt of the
findings of the trial court, the High Court allowed the second appeal,
D setting aside the judgment and decree passed by the courts below.

In the Appeal by special Leave to this Court it was contended for
the appellant that in view of the provisions of s. 89(2)(b) the right of the
defendant to pay rent as determined by the Mamlatdar nnd er ss. 8 and
9 of the 1948 Act was not affected by the retrospective effect given to the
E provisions of s. 88 of the Act.

F
Dismissing the Appeal, the Court,

HELD: The specific provision in s. 89(2)(b) of the Bombay
Tenancy and Agricnltnral Lands Act, 1948 to the effect that nothing in
the Act or any repeal affected thereby shall, save as expressly provided
,
··~
-
therein, affect or be deemed to affect any right, title, interest, ob-
ligation or liability already acquired, accrued or incurred before the
commencement of the Act, read with the specific provision of s. 88(I)(b)
that on issue of a notification specifying areas reserved for non·
agricultural or industrial development the provisions of the Act shall
·G not apply to the lands so notified, make it apparent that the Act will not
be applicable to the lands notified. [799B; D-El

The issuance of the notification dated 2 lst May, 1958 under s.
88(1)(b) of the Tenancy Act, 1948 specifying the lands within the
municipal limits of Baroda city reserved for non-agricultural and
H industrial development in the instant case made the provisions of the
I
PARVATiv. F.P. GAEKWAD IRAY,J.J 795
Act inapplicable retrospectively, subject to the exception provided in A
sub-s. (2) of s. 88, and with it all rights, title, obligation etc. accrued or
acquired under the said Act ceased to exist. The provisions of s. 89(2)(b)
are, therefore, not applicable tO protect such right,, title or interest,
except as provided ins. 89A owing to express provision made ins. 88 of
the Act. [801C-E]
B
Protected tenants are·only those tenants specified in ss. 3, 3A and
4 of the 1939 Act and no new protected tenant could come into existence
under the 1948 Act. [801B-C]

In the instant case, therefore, the civil court ·was legally com-
petent to determine the reasonable. rent payable' by the defendent- c
tenant. The detennination by Mamlatdar under ss. 8 and 9 of the
Tenancy Act 1948 automatically becomes ineffective and non-est by
.virtue of s. 88(1)(b) of the said Act and the notification made there-
under. [801E-F]
D
Mohan/a/ Chuni/a/ Kothari v: Tribhovan Haribhai Tamboli,
[ 1963] 2 SCR 707 and Sid ram Narsappa K amble v. Sholapur Borough
Municipality andAnr, [1966] l SCR 618, referred to.

Sakharam @Bapusaheb Narayan Sanas and Anr. v. Manikchand
.......,. Motichand Shah andAnr., [1962] 2 SCR 59, distinguished .
E
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1947
(N) of 1972.

From the Judgment and Order dated 4.10.1971 of the Gujarat
).-. High CourtinS.A. No. 313of1963. . F

V.M. Tarkunde and M.V. Goswami for the Appellants.

S. Seth and S. Sukumaran for the Respondents.

The Judgment of the Court was delivered by
G
RAY, J. This appeal on special leave is against the judgment and
decree made on October 4, 1971 in S.A. No. 313/63 by the High Court
of Gujarat whereby it was held that in view of the retrospective effect
given by virtue of the notification issued under Sec. 88(1)(b) of the
Bombay Tenancy and Agricultural Lands Act, 1948 the provisions of
H
_the said Tenancy Act was not applicable in respect of lands within the
796 SUPREME COURT REPORTS [1986] 3· S.C. R.

A municipal limits of the city of Baroda and as such the civil court was )
competent to determine the reasonable rent in respect of the lands in
question taken settlement of by the defendent on the basis of the
Kabuliyat executed on 2nd June, 1956 for a period of three years from
1956 to 1958. ' ·

B The admitted facts of this case are that the defendant Kashiram
J aiswal, since deceased, took possession of the lands measuring 20
acres 27 gunthas in S. No. 707 of Baroda Kasba situated behind Kirti
Mandir in the city of Baroda from the respondent by executing a
Kabuliyat dated June 2, 1956 for a period of three years from 1956 to
1958 at an annual rent of Rs.2225. The said Kabuliyat was however not , l,
c registered. The defendant paid in total a sum of Rs.970.31 in respect of
arrears of rent of the said years 1956-57 and 1957-58. The plaintiff who
is a trustee of the temple Kirti Mandir instituted a regular suit No.
143/59 in the court of 3rd Joint Civil Judge, Baroda for recovery of
arrears of rent at Rs.3479.69 setting off the amount paid already. The
defence was that the suit was not entertainable in the civil court in as
D much as even though the Tenancy Act ceased to apply on the issue of
the notification under Sec. 88(1)(b) of the said Act in respect of lands
within the municipal limits of city of Baroda yet the rights·of the tenant
in respect of the suit land which acrued before the said notification
subsisted or in other words the same was not affected by the said
notification. It has been further contended that since the Mamlatdar
E has determined the fair rent in accordance with the provisions of section
8 and 9 of the said /\ct at Rs.375 and 5 annas lawfully payable .in
respect of the said land the plaintiff could not recover any amount in
excess of the said sum. The trial court held that the Tenancy Act was
applicable to this case and since the Mamlatdar has already deter-
mined the reasonable rent in respect of the lands in question the civil •.-J.
F court was not competent to determine the same once again. The suit
was accordingly dismissed. On appeal the District Judge, Baroda )
. dismissed the appeal and affirmed the judgment and decree of the
court below. Against this judgment and decree S.A. No. 313/63 was
preferred in the High Court of Gujarat. The High Court on considering
the decision of this Hon'ble Court in S.N. Kamb/e's case [1966) 1
G S.C.R. 618 held that in view of the notification issued under Sec.
88(1)(b) of the said Act the provisions of the Tenancy Act will not
apply retrospectively in view of the notification issued under Sub-
section (1) (b) of Sec. 88 of the Act XIII of 1956 issued on May 21,
1958. The High Court, therefore, framed the following issue:

H "At what rate is the plaintiff entitled to cl~im rent in respect
PARVATI v. F.P. GAEKWAD IRAY,J.] 797

)'.. of the land in occupation of deceased defendant Surajmal A
Kashiram for the two years 1956-57 and 1957-58 having
regard to the rent that may be considered reasonable in the
light of the .evidence that may be adduced before the
court."

~
B
And sent the records to the trial court for determination of the said
issue on allowing the parties to adduce evidence. The trial court was
also directed to return the evidence together with its findings thereon
to the High Court of Gujarat. The trial court after considering the
l.(, evidence adduced by both the parties held that the reasonable rent of
.,
the land in question was Rs.2225 per annum. With these findings of the
trial court the records were returned to the High Court of Gujarat. On
c
4.10.1971 the High Court of Gujarat allowed .the appeal setting aside
the judgment and decree passed by the courts below decreeing the suit
lt for a sum of Rs.3479.69 paisa as rent to be recovered from the legal
heirs of the defendants-respondents.
D
The sole question that poses itself for consideration before this
court is whether the issuance of notification under sub-Section (l)(b)
of Sec. 88 of Act No. :X:Ill of 1956 on May 21, 1958 making the
'"-<I provisions of the Bombay Tenancy and Agricultural Lands Act, 1948
inapplicable to the lands reserved for non-agricultural or industrial
development in the municipal limits of the city of Baroda retrospec- E
tively. Or in other words whether the said Act will not at all apply to
lands within the Baroda Municipality which have been reserved for
non-agricultural or industrial development by the aforesaid notifica-
lion dated May 21, 1958 published in the official gazette. If the Act
) ' does not at all apply then the determination-of rent of the suit land as
made by the M amlatdar under the provisions of Sections 8 and 9 of the F
..i__ said Act will be of no avail and the clvil court will be competent to
determine the rent payable by the defendant-tenant in respect of these
lands in question to the respondent on the basis of the Kabuliyat by the
defendant-appellant or in case the Kabuliyat is held to be inadmissible
in evidence because of non-registration the reasonable rent payable in
respect of the said land is to be determined. To determine this ques- G
tion it is pertinent to refer to the provision of Sec. 88 (l)(b) which is
quoted herein bdow:
~

Sec. 88(1) Save as otherwise provided in sub-section (2),
nothing in the foregoing provisions of this Act shall apply-
H
798 SUPREME COURT REPORTS 11986] 3 S.C.R.

A
(b) to any area which the State Government may, from )
time to time, by notification in the Official Gazette, specify
as being reserved for non-agricultural or · industrial
developn:en t.

B On a plain reading of the provisions of Sec. 88(1) it is crystal clear that
the issuance of the notification under Sec. 88(1)(b) on May 21, 1958
reserving the land within the municipal limits of the city of Baroda for
non-agricultural or industrial development the provisions of the
Tenancy Act were .made inapplicable retrospectively subject to the
exception provided in sub-section (2) of Sec. 88. Another section very
relevant to be considered in this connection is Sec. 89 of the said Act.
c Sub-Section (2)(b) of the said section further provides that Save as
expressely provided in this Act nothing in this Act or any repeal
effected thereby shall be deemed to affect any right, title, interest,
obligation or liability already acquired, accrued or incurred before the
commencement of this Act. It was tried to be contended before us on
D behalf of the appellant that in view of this provision the right of the
defendant-tenant to pay rent as determined by the Mamlatdar under
the provisions of Sections 8 and 9 of the Bombay Tenancy and ,
Agricultural Lands Act, 1948 will not be affected by the retrospective
effect given by Sec. 88 of the said Act. It has been further urged that
the reasonable rent in respect of the lands in question has already been
determined by the Mamlatdar and the Civil Court is !JOI competent to
E
decide reasonable rent once again and the determination made by the
civil court is ineffective.

It was urged on behalf of the respondent that in view of the
notification issued under Sec. 88(1)(b) of the Bombay Tenancy and
F Agricultural Lands Act, 1948 the provisions of the Tenancy Act are
not applicable to lands within municipal limits of Baroda city at all as
retrospective effect was given to the said provisions and as such the
rights that had accrued to a tenant in respect of a land within munici-
pality will automatically go.

G As already held before that on a plain reading of the provisions
of Sec. 88 of the Act it is quite clear and apparent that the provisions of
the said Tenancy Act are not applicable to any area notified by the
State Government as being reserved for non-agricultural or industrial
development. In the instant case, there has been a notification by the
Government on May 21, 1958 under Sub-section (l)(b) of Sec. 88 of
H the Act No. XIII of 1956 declaring that the lands within municipal
PARVAT!v. F.P. GAEKWAD [RAY,J.J 799

limits of the City of Baroda are res~rved for non-agricultural or in- A
dustrial development. The consequence that falls is that the provisions
of Bombay Tenancy and Agricultural Lands Act, 1948 are not appli-
cable to the land in question as the same is situated within municipal
limits of the city of Baroda and as a result these rights acquired under
the said Act automatically becomes non-est. It has been tried to be
urged by referring to the provisions of the Sec. 89(2)(b) of the said Act R
ihat right, title and interest, ·obligation or liability already acquired,
accrued or incurred beforeJhe commencement of this Act will not be
affected by the retrospective effect given to the provisions of Sec. 88 of
thy said Act. This argument, in our considerable opinion, is totally
devoid of any merit. Iii view of specific provision in the said sub-
section (2)(b) of Sec. 89 to the affect "shall, save as expressely pro-
vided in this Ac!, affect or deemed to be affected". It follows from this
c
provision that in the absence of an express provision in the Act any
right, title, interest, obligation or liability already acquired or accrued
before the commencement of this Act shall not be affected by the Act
ot 1948. Section 88(1)(b) of the said Act has specifically provided that
on the issue of a notification in the Official Gazette specifying areas D
reserved for non-agricultural or industrial development the provisions
of the Tenancy Act, 1948 shall not apply. Therefore, reading these two
provisions together the only reasonable con'clusion that follows is that
the provisions of the Act will not be applicable to the lands notified by
the Government in the Official Gazette as being reserved for non-
agricultural or industrial development. This has been expressely pro- E
vided in Sec. 88(1)(b) of the Act. The argument that the retrospective
attect given to the provisions of Sec.88(1)(b) will not affect the rights
or interest acquired or accrued under the said Act prior to the comm-
encement of the 1948 Act is of no substance and as such it cannot be
sustained. It may be pertinent to refer to the provisions of Sec. 89A of
the Act wherein it has been expressly provided that notwithstanding
repeal of the 1939 Act the provisions of Sections 3, 3A and 4 of the F
Bombay Ten.ancy Act, 1939 as set out in Schedule I to this Act shall
always be deemed to be extended to and to be in force in, those areas on
the dates on which this Act was extended to and brought into force.
Therefore, express provisions has been made for the preservation of
the rights accrued under Sections 3, 3A and 4 of the Bombay Tenancy
Act, 1939 inspite of the repeal of 1939 Act by the Bombay Act No. G
LXVI! of 1948, that is, the Bombay Tenancy and Agricultural Lands
Act, 1948. This very question about the effect of the provisions of Sec.
88(1)(b) and the provisions of Sec. 89(2)(b) of the Act fell for consi-
deration in the case of Sakharam @ Bapusaheb Narayan Sanas and
Anr. v. Manikchand Motichand Shah and Anr., [1966] 2 S.C.R. 59. In
that case the only question arose for determination was whether the H
800 SUPREME COURT REPORTS [1986] J S.C.R.

A defendent appellants were "protected tenants" within the meaning of
the Bombay Tenancy Act, 1939 (Bombay) Act 29 of 1939). It was held
that the provision of Sec. 88 of the Bombay Tenancy and Agricultural
Lands Act, 1948 were entirely prospective and it would apply to such
lands as prescribed in clauses (a) and (d) of Sec. 88(1) from the date on
which the Act came into operation i.e., December 28, 1948 and are not
B of a confiscatory nature so as to take away from the tanant the status of
a protected tanant already accrued to him. It has been further ),
observed that Sec. 89(2)(b) of the Act clearly intents to conserve such
right as were acquired or accrued before its commencement and that
any legal proceeding in respect of such rights was to be disposed of in '-
terms of the Act of 1939. It is to be noticed in this case that the -l
c question as of effect of a notification published in the Official Gazette
by the Government under Sec. 88( l)(b) of the said Tenancy Act of
1948 did not arise for consideration. Furthermore, as we have said
already hereinbefore that Sec. 89A read with-Schedule I to the said ..,-
Act clearly preserves the rights acquired or accrued under the provi-
sions of Sections 3, 3A and 4 of the Bombay Tenancy Act, 1939. This
D case, therefore, strictly speaking does not deal with the question that
specifically has arosen in the instant case.

This Court in the case of Mohan/al Chunilal Kothari v. Tribho-
van Haribhai Tamboli, [1963] 2 S.C.R. 707 has held that a notification ..,.
E issued under clause (d) of Sub-section (1) of Sec. 88 of the Bombay
Tenancy and Agricultural Lands Act, 1948 declaring lands within
municipal area as reserved for urban non-agricultural or industrial
development were clearly retrospective in operation and the intention
of the legislature obviously was to take away all the benefits arising out
of the Act of 1948 and not those arising out of the Act of 1939 that is ....J
F under Sections 3, 3A and 4 of the said Act as soon as the notification
was made under clause (d). In other words, it has been observed )
sepcifically that the rights acquired under the Tenancy Act, 1939 ex-
cept rights acquired under Sections 3, 3A and 4 will be· no longer in
existence after the issuance of notification under Sec. 88(1)(b) of the
Act of 1948.
G
Jn a later decision in Sidram Narsappa Kamble v. Sholapur
Borough Municipality & Anr., [1966] l S.C.R. 618 this question came
to be considered by a larger bench of this Court and it was held that the
plain effect of the provisions contained in Sections 31, 88 and 89(2)(b)
is that in view of the express provision contained in Sec. 88(1)(a), the
H appellant could not claim the benefit of Sec. 31 nor could it be said that
PARVATJ v. F.P. GAEKWAD !RAY, J.J 801

his interest as a protected tenant was saved by S. 89(2)(b) of the said A
Act. It was further observed that Sections 3, 3A and 4 of 1939 Act
were continued in a modified form in Schedule I of the 1948 Act only
for the purpose of Sec. 31 of the 1948 Act. It is obvious that the
consequence follows that protected tenants are only those tenants
spec"ified in those three sections aforesaid and that no new protected
B
tenant could come into existence under the -1948 Act. The intention
from the express words of Sec. 88(!)(a) is also the same. It has been
observed that the intention from the express words of Sec. 88(1) is that
there will be no protected tenant after the 1948 Act came into force in
regard to lands held on lease from a local authority in view of the
express provision contained i_n S. 88(l)(a). We have already held
hereinbefore that the effect of the notification dated 21st May, 1958 c
issued under Section 88(l)(b) of the Tenancy Act of 1948 specifying
the lands within the municipal limits of Baroda city reserved for non-
agricultural and industrial development is that all rights, title, obliga-
tion etc. accrued or acquired under the Said Act ceased to exist as the
said section expressly states that the provisions of the Tenancy Act of
1948 will not apply to such lands. Section 88(1) is given retrospecti'(e D
effect. The provision of Section 89(2)(b) are not applicable to protect
the right, title, interest already accrued before the commencement of
this Act except as provided in Section 89A owing to express provisions
made in section 88 of the said Act.

In view of our .indings referred to hereinbefore the irresistable / E
conclusion follows that the determination by Mamlatdar under Ss. 8
and 9 of the Tenancy Act automatically becomes ineffective and non-
es! by virtue of S. 88(1)(b) of the said Act and the notification made
thereunder. The. Civil Court is legally competent to determine the
reasonable rent payable by the defendent tenant and this determina-
tion has been duly made by the Civil Court and same has been F
affinped by the High Court of Gujarat. There is, therefore, no merit in
this appeal which is dismissed without any order as tci costs.

P.S.S. Appeal dismissed.