HIRALAL PARBHUBHAI Vs. NAGINDAS ATNARNAM KHATRI

JUDGEMENT

(1.) THE following Judgment of the court was delivered by

(2.) THIS appeal by special leave raises the question of the applicability of the Bombay Tenancy and Agricultural Lands Act, 1948 (Bom. Act No. 67 of 1948), hereinafter called the '1948 Act', to the tenancy of the land in dispute.

(3.) AT this stage another argument advanced by learned counsel for the respondent may also be noticed. The argument is that the saving provision in s. 89(2) operates only if there is no express provision to the contrary, but such an express provision is found in s. 88(1), inasmuch as it says that the provisions of ss. 1 to 87 will not apply to the area in question. It is further contended that the saving of the appellant's right would be otiose, as he could not enforce his right under the Act. A similar argument was advanced but was repelled by this court in Sakharam alias Bapusaheb Narayan Sanas v. Manikchand Motichand Shah(1). There the lands in dispute were situate within two miles of the limits of the Poona Municipal Borough. The question was whether the rights of the appellants as protected tenants were affected by the repeal. This court held that the provisions of s. 88(1) were entirely prospective and that they applied to lands of the description contained in the said section from the date on which the Act came into force and that they were not intended, in any sense, to be of confiscatory character. When it was further contended that the right would be illusory, as it could not be enforced under the Act, this court pointed out that as there was a right recognized by law there was a remedy and, therefore, in the absence of any special provisions indicating a particular forum for enforcing a particular right the general law of the land would naturally take its course. This decision is binding on us. We, therefore, reject this contention.