Sinha, C. J. - (1.) The only question for determination in this appeal is whether the defendants-appellants are 'protected tenants' within the meaning of the Bombay Tenancy Act (Bombay Act XXIX of 1939) which hereinafter will be referred to for the sake of brevity, as the Act of 1939), whose rights as such were not affected by the repeal of that Act by the Bombay Tenancy and Agricultural Lands Act (Bombay Act LXVII of 1948) which hereinafter will be referred to as the Act of 1948). The Courts below have decreed the plaintiff's suit for possession of the lands in dispute holding that the defendants were not entitled to the protection claimed by them as 'protected tenants.' This appeal is by special leave granted by this Court on April 4, 1955.
(2.) The facts of this case are not in dispute. Shortly stated, they are as follows. By virtue of a lease dated October, 30, 1939, the defendants obtained a lease of the disputed lands from the plaintiff for a period of 10 years, expiring on October 30, 1949. The lands in dispute have been found to lie within two miles of the limits of Poona Municipality. The landlord gave notice on October 22, 1948, terminating the tenancy as from October 30, 1949. As the defendants did not vacate the land, in terms of the notice aforesaid, the plaintiff instituted the suit for ejectment in the Court of the Civil Judge, Junior Division at Poona in Civil Suit No. 86 of 1950. The Act of 1939 became law on March 27, 1940, but the Act was applied to Poona area with effect from April 11, 1946. Under S. 3 of the Act, a tenant shall be deemed to be a 'protected tenant' in respect of any land if he has held such land continuously for a period of not less than six years immediately preceding either the first day of January, 1938 or the first day of January 1945 (added by the Amending Act of 1946) and has cultivated such land personally during the aforesaid period. It is not disputed that the defendants-appellants became entitled to the status of 'protected tenants' as a result of the operation of the Act, as amended by the Bombay Tenancy (Amendment) Act, 1946 (Bombay Act XXVI of 1946), and under S. 3A (1) the defendants were deemed to be Protected tenants' under the Act and their rights as such were recorded in the Record of Rights. Sections 3 and 3A(1), aforesaid, are set out below - "3. A tenant shall be deemed to be a protected tenant in respect of any land if (a) he has held such land continuously for a period of not less than six years immediately preceding either (i) the first day of January 1938 or (ii) the first day of January 1945 and (b) has cultivated such land personally during the aforesaid period. 3A (1) Every tenant shall, on the expiry of one year from the date of the coming into force of the Bombay Tenancy Amendment Act of 1946, be deemed to be a protected tenant for the purposes of this Act and his rights as such protected tenant shall be recorded in the Record of Rights, unless his landlord has within the said period made an application to be Mamlatdar within whose jurisdiction the land is situated for a declaration that the tenant is not a protected tenant." Under S. 3A(1) aforesaid, it was open to the landlord, within one year of the date of the commencement of the Amending Act of 1946, to make an application to the Mamlatdar for a declaration that the tenant was not a 'protected tenant.' No such proceeding appears to have been taken. As a result of the expiration of one year from November 8, 1946 -- the date of the coming into operation of the Amending Act of 1946 -- the defendants were deemed to be 'protected tenants' and it is not disputed that they were recorded as such. Section 4 of the Act, with which we are not concerned in the present case, made further provisions for recovery of possession by tenants who had been evicted from their holdings in circumstances set out in that section. The Act therefore, in its terms, was intended for the protection of tenants in certain areas in the Province of Bombay (as it then was). If nothing had happened later, the defendants would have had the status of 'protected tenants' and could not have been evicted from their holdings, except in accordance with the provisions of the Tenancy Law. But the Act of 1939 was replaced by the Act of 1948. The question that arises now for determination is whether the Act of 1948 wiped out the defendants' status as 'protected tenants.' For determining this question, we have naturally to examine the relevant provisions of the later Act.
(3.) The Act of 1948, by S. 2 cl. (14) prior to its amendment by Bombay Act XIII of 1955, provides that "'protected tenant' means a person who is recognised to be a protected tenant under 5. 31". Section 31 runs as follows: "For the purposes of this Act a person shall be recognised to be a protected tenant if such person has been deemed to be protected tenant under S. 3, 3A or 4 of the Bombay Tenancy Act, 1939." The force and effect of S. 31 will have to be discussed later while dealing with the arguments raised on behalf of the landlord-respondents. The next relevant provisions of the Act of 1948 are those of S. 88 (1) (c) which reads:- "Nothing in the foregoing provisions of this Act shall apply:- ********** ********** (c) to any area within the limits of Greater Bombay and within the limits of the municipal boroughs of Poona City and Sub-urban, Ahmedabad, Sholapur, Surat and Hubli and within a distance of two miles of the limits of such boroughs; or.... " As already observed, the lands in dispute in the present controversy have been found to be situate within two miles of the limits of the Poona Municipal Borough, which, for the purpose of this case, has been equated to Borough of Poona City and Suburban.' It has been contended on behalf of the respondent that under the later Act the disputed lands are outside the purview of the Act and that, therefore, the defendants-appellants are not entitled to claim the status of 'protected tenants.' The appellants have answered this contention by reference to the provisions of S. 89, which may now be set out (in so far as they are necessary for the purpose of this case):- "89 (1) The enactment specified in the Schedule is hereby repealed to the extent mentioned in the fourth column thereof. (2) But nothing in this Act or any repeal effected thereby -- ********** (b) shall, save as expressly provided in this Act, affect or be deemed to affect, (i) any right, title, interest, obligation or liability already acquired, accured or incurred before the commencement of this Act, or - (ii) any legal proceeding or remedy in respect of any such right, title, interest, obligation, or liability or anything done or suffered before the commencement of this Act, and any such proceeding shall be continued and disposed of, as if this Act was not passed...." It has been contended on behalf of the appellants that the repeating S. 89, read with the Schedule, makes it clear that the whole of Ss. 3, 3A and 4 of the Act of 1939 have been saved, subject to certain modifications, which are not relevant to the present purpose; and that sub-s. (2) (b) of S. 89 has in terms, saved the appellants' rights as 'protected tenants' because those rights had already accrued to them under the Act of 1939. But this contention is countered by the learned counsel for the plaintiff-respondent on three grounds, namely, (1) that S. 88 expressly provides that Ss. 1 to 87 of the later Act shall not apply to lands situate in the Municipal Borough of Poona City and Suburban and within a distance of two miles of the limits of such borough; (2) that what has been saved by cl. (b) of sub-sec. (2) of S. 89 is not every right but only such rights as had been actually exercised anal recognised; and (3) that the terms of the saving clause, as contained S. 89 (2) (b) were not identical with S. 7 of the Bombay General Clauses Act, inasmuch as cl. (b) aforesaid only speaks of such proceedings being continued and disposed of, without reference to the institution of such proceedings. ;