DURLABHAI FAKIRBHAI Vs. JHAVERBHAI BHIKHABHAI

JUDGEMENT

(1.) A very short question has been referred to this Full Bench and it arises with regard to the proper interpretation of Act 33 of 1952 which amended Section 34, Tenancy Act. A few facts which may be stated in order to appreciate the point raised are that the landlord) gave a notice on 6-3-1952 to his tenant under Section 34, Tenancy Act on the ground that he needed the land bona fide for his personal cultivation. The notice was to expire on 31-3-1953. The landlord filed an application for possession under Section 29 before the Mamlatdar on 11-4-1953. The Mamlatdar granted possession, in appeal the Prant Officer confirmed the decision of the Mamlatdar, and in revision the Bombay Revenue Tribunal confirmed the order of the two lower Courts, and the matter has now come up before us on this Full Bench.

(2.) NOW, when the notice was given on 6-3-1952 the conditions laid down in Section 34 which permitted the landlord to obtain possession from his tenant were satisfied. By the Amending Act 33 of 1952 certain further limitations were placed upon the right of the landlord to obtain possession, and when the notice terminated the tenancy on 31-3-1953 those limitations would not permit the landlord to obtain possession, and the contention of the tenant was that the Amending Act applied to the facts of this case, that the landlord was prevented from taking possession under the provisions of the Amending Act 33 of 1952, and therefore the application of the landlord should have been dismissed. The view taken by the Revenue Tribunal was that inasmuch as the notice was given on 6-3-1952 and the Amending Act came, into force subsequently on 12-1-1953, the Amending Act had no application and the landlord was entitled to succeed. The most significant fact of this case is that the Amending Act came into force before the notice of 6-3-1952 expired on 31-3-1953. The tenancy only terminated on 31-3-1953 and the right of the landlord to obtain possession only accrued to him on the termination of the tenancy, viz. , 31-3-1953. At that date a law was in force which prevented the landlord to obtain possession from the tenant because certain limitations were placed upon his right to obtain possession and under those limitations the Court could not grant him possession. What is argued by Mr. Patel on behalf of the landlord is that the material date which we must consider is not the date of termination of the tenancy, 31-3-1953, but the date of the giving of the notice, viz. , 6-3-1952. Therefore the question resolves itself into a very narrow compass. For the purpose of the application of the amended Act which is the material date, the date of the giving of the notice or the date when the tenancy terminated?

(3.) SECTION 34, as the marginal note indicates deals with the landlord's right to determine a protected tenancy and Sub-section (1) provides that a landlord may terminate the tenancy of a protected tenant by giving him one year's notice in writing, stating therein the reasons for such termination, if the landlord bona fide requires the land for any of the following purposes, namely, (1) for cultivating personally, or (2) for any non-agricultural use or his own purpose. Therefore, Section 34 (1) refers to a notice as the procedure by which a landlord can determine a protected tenancy. But the right to determine the protected tenancy only arises provided he is entitled to possession under the circumstances mentioned in Section 34. Sub-section, (2) imposes limitations upon the right of the landlord to terminate the tenancy and these limitations are set out in that sub-section. The Amending Act 33 of 1952 imposes one further limitation in this sub-section which was by Clause (c ). The amending Act also embodied in the original Act Sub-section (2-A) and that was in the following terms: "if the landlord bona fide requires the land for any of the purposes specified in Sub-section (1) then his right to terminate the tenancy shall be subject to the following conditions. . . . " therefore Sub-section (2-A) imposed a further restriction upon the right of the landlord to terminate the tenancy.