PATEL MAGANBHAI JETHABHAI Vs. SOMABHAI SURSANG

JUDGEMENT

(1.) VERY few cases that arise under the Tenancy Act are easy of solution and this case is no exception to that rule. The few facts which require to be stated in order to understand and appreciate the question that arises for our determination are that the Tenancy Act of 1948 was applied to Baroda on July 30, 1949, and admittedly opponent No. 1 before us was a tenant recognized as such under that Act and enjoying all the rights that that Act conferred upon him. Amending Act XXXIII of 1952 came into force on January 12, 1953, and by amending Section 88 it excluded from the operation of the Tenancy Act lands situated within borough municipalities, and therefore the lands within the Baroda Municipality were excluded, and admittedly the lands with which we are dealing in this revision application are situated within the Borough Municipality of Baroda. Therefore, from January 12, 1953, the Tenancy Act of 1948 did not apply to these lands. The landlord then gave a notice terminating the tenancy of the tenant and that notice determined the tenancy as of March 31, 1954. On April 13, 1954, the landlord filed a suit for possession before the Mamlatdar, and the Mamlatdar decreed the suit on June 30, 1956. The tenant then went in revision before the Prant Officer, and while that revision application was pending, the Amending Act of 1955 (XIII of 1956) came into force, and the question that arises for our determination is whether the proviso to Section 43C enacted by that amendment protects the rights of the tenant which he had acquired under the Act of 1948. In other words, whether the effect of that proviso is such that notwithstanding the notice terminating his tenancy, notwithstanding the decree passed by the Mamlatdar, a tenant can claim protection under the Act of 1948 and resist the landlord's suit for eviction.

(2.) BEFORE we come to deal, with the effect of the proviso, it would be necessary to consider the effect of the Amending Act XXXIII of 1952. That amendment, as we have already pointed out, excluded certain areas from the application of the Tenancy Act of 1948, and it may be said that in a sense the Act was repealed to the extent that it applied to the municipal borough lands, and the question arises as to what would be the effect of such a repeal. What has been urged before us by Mr. Paranjpe on behalf of the tenant is that inasmuch as the tenant had acquired certain rights under the Act of 1948, the Amending Act of 1952 cannot affect his vested rights. There is no provision in the Amending Act of 1952 which expressly seeks to affect vested rights, and in the absence of any such provision, by the ordinary canon of construction we must read the amendment of 1952 as affecting only future rights and not interfering with rights which have already been acquired and which had become vested.

(3.) NOW , it will be noticed that the General Clauses Act uses in Section 7 the expression 'affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed.' This really is a paraphrase of a vested right and therefore a right or privilege must be acquired or have accrued under any enactment. A right given by the enactment itself which has not been acquired by the party or which has not accrued to the party is not a vested right in the sense in which vested right is understood. There is a leading authority on this point and that is an English decision in Abbott v. Minister for Lands [1895] A.C. 4725 in the judgment of the Privy Council the Lord Chancellor says: It may be, as Windeyer J. observes, that the power to take advantage of an enactment may without impropriety be termed a 'right'. But the question is whether it is a 'right accrued' within the meaning of the enactment which has to be construed. Their Lordships think not, and they are confirmed in this opinion by the fact that the words relied on are found in conjunction with the words 'obligations incurred or imposed'. They think that the mere right (assuming it to be properly so called) existing in the members of the community or any class of them to take advantage of an enactment, without any act done by an individual towards availing himself of that right, cannot properly be deemed a 'right accrued' within the meaning of the enactment. Therefore, the right of a tenant to be protected may be a right in the wide sense of the term. It is a legal right which he could assert in a Court of law. But when we talk of a vested right, we are not talking of a right in that wide sense, but a vested right is a right used in the sense which the Privy Council has defined and described, viz., a right of which a party claiming it has availed himself under the statute by doing any act and not merely by relying on the right conferred by the statute itself. There is no suggestion in this case that the tenant did any set or in any way changed his position as a result of the Tenancy Act which made him acquire a vested right or whereby a vested right accrued. His only contention is that the protection was given to him by statute and that protection could not be taken away by the repeal of that statute without the Legislature expressly providing that vested rights were sought to be affected. It may further be said that no person has a vested right to any law continuing on the statute book. No citizen can say that a protection given to him by the Legislature must indefinitely continue and cannot be taken away unless, as we have just pointed out, by reason of the presence of that law on the statute book he has acquired some right, he has taken some action, he has changed his position which has brought into existence some right which is vested in him.