JIVABHAI PURSHOTTAM Vs. CHHAGAN KARSON

JUDGEMENT

(1.) This appeal by special leave against the judgment of the Bombay High Court raises a question of the interpretation of S. 34 (2-A) of the Bombay Tenancy and Agricultural Lands Act. No. LXVII of 1948 (hereinafter called the Act). The brief facts necessary for present purposes are these:The appellant is the landlord and the respondent a protected tenant. The appellant gave notice of termination of tenancy to the respondent on December 31, 1951, under S. 34(1) of the Act. The notice was for one year as required by S. 34(1) and the tenancy was to terminate from after March 31, 1953. The landlord, therefore, made an application on April, 7, 1953, under S. 29(2) of the Act for obtaining possession of the land to the Mamlatdar. In the meantime, an amendment was made to the Act by the insertion of sub-s. (2-A) to S. 34 by the Amending Act No. XXXIII of 1952, which came into force on January 12, 1953. By this amendment certain further restrictions were placed on the right of the landlord to terminate the tenancy of a protected tenant. The relevant part of sub-s. (2-A) is in these terms:-

(2.) When, therefore, the landlord applied for possession of the land under S. 29(2) of the Act, the tenant objected and claimed the benefit of the third clause of sub-s. (2-A), and the question that arose for determination was, whether the tenant was entitled to the protection contained in this clause. The Mamlatdar to whom the application under S. 29(2) was made allowed the application. The respondent thereupon appealed but his appeal was dismissed. He then went in revision to the Revenue Tribunal, which was rejected. The tenant then filed an application under Art. 227 of the Constitution before the High Court and contended that the provision of S. 34(2-A) should have been taken into consideration by the Revenue Courts in deciding the application of the landlord under S. 29(2) and that the revenue courts were wrong in the view they had taken that that sub-section did not apply to the present proceedings. The High Court allowed the application of the tenant, relying on its previous Full Bench decision in Durlabbhai Fakirbhai vs. Jhaverbhai Bhikabhai, 58 Bom LR 85, where it was held that as the tenancy had terminated and the right to obtain possession had accrued to the landlord after the coming into force of the Amending Act, the Amending Act applied and, therefore, the landlord, if he fails to satisfy the further conditions under the Amending Act, would not be entitled to possession. It further held that the Amending Act would apply to all proceedings where the period of notice had expired after the Amending Act had come into force and that what the Amending Act did was that it imposed a new limitation on the right of the landlord to obtain possession and if the landlord failed to satisfy the court at the date when the tenancy expired and he became entitled to possession that he was so entitled in law as it then stood, he could not claim relief from the court. It is the correctness of this view which is being challenged before us in the present appeal.

(3.) The contention on behalf of the appellant is that S. 34(1) gives a right to the landlord to terminate the tenancy by one year's notice, which was given in this case in December 1951 before the Amending Act came into force. Therefore, the notice having been given before the Amending Act came into force, the further limitation put on the right of the landlord by sub-s. (2-A), introduced by the Amending Act, would not apply to notices given before the Amending Act came into force. The appellant further contends that the right to terminate a tenancy having arisen when the notice was given, the law to be applied, in case of notices given before the Amending Act came into force, would be the law existing on the date of notice.