- (1.) This appeal on special leave is against the judgment and decree made on October 4, 1971 in S. A. No. 313 of 1963 by the High Court of Gujarat whereby it was held that in view of the retrospective effect given by virtue of the notification issued under sec. 88(1)(b) of the Bombay Tenancy and Agricultural Lands Act, 1948 the provisions of the said Tenancy Act were not applicable in respect of lands within the municipal limits of the City of Baroda and as such the Civil Court was competent to determine the reasonable rent in respect of the lands in question taken settlement of by the defendant on the basis of the Kabuliyat executed on 2nd June, 1956 for a period of three years from 1956 to 1958.
(2.) The admitted facts of this case are that the defendant Kashiram Jaiswal, since deceased, took possession of the lands measuring 20 acres 27 gunthas in S. No. 707 of Baroda Kasba situated behind Kirti Mandir in the City of Baroda from the respondent by executing a Kabuliyat dated June 2, 1956 for a period of three years from 1956 to 1958 at an annual rent of Rs. 2,225/-. The said Kabuliyat was, however, not registered. The defendant paid in total a sum of Rs. 970.31 in respect of arrears of rent of the said years 1956-57 and 1957-58. The plaintiff who is a trustee of the temple Kirti Mandir instituted a Regular Suit No. 143 of 1959 in the Court of 3rd Joint Civil Judge, Baroda for recovery of arrears of rent at Rs. 3,479-69 setting off the amount paid already. The defence was that the suit was not entertainable in the Civil Court inasmuch as even though the Tenancy Act ceased to apply on the issue of the notification under sec. 88(1)(b) of the said Act in respect of lands within the Municipal limits of City of Baroda yet the rights of the tenant in respect of the suit land which accrued .before the said notification subsisted or in other words the same was not affected by the said notification. It has been further contended that since the Mamlatdar has determined the fair rent in accordance with the provisions of Secs. 8 and 9 of the said Act at Rs. 375/- and 5 annas lawfully payable in respect of the said land the plaintiff could not recover any amount in excess of the said sum. The trial Court held that the Tenancy Act was applicable to this case and since the Mamlatdar has already determined the reasonable rent in respect of the lands in question the Civil Court was not competent to determine the same once again. The suit was accordingly dismissed. On appeal the District Judge, Baroda dismissed the appeal and affirmed the judgment and decree of the Court below. Against this judgment and decree S. A. No. 313 of 1963 was preferred in the High Court of Gujarat. The High Court on considering the decision of this Hon'ble Court in S. N. Kamble's case (1966 (1) SCR 618) held that in view of the notification issued under sec. 88(1)(b) of the said Act the provisions of the Tenancy Act will not apply retrospectively in view of the notification issued under sub-sec, (1)(b) of sec. 88 of the Act 30 of 1956 issued on May 21, 1958. The High Court, therefore, framed the following issue : "At what rate is the plaintiff entitled to claim rent in respect of the land in occupation of deceased defendant Surajmal Kashiram for the two years 1956-57 and 1957-58 having regard to the rent that may be considered reasonable in the light of the evidence that may be adduced before the Court." And sent the records to the trial Court for determination of the said issue on allowing the parties to adduce evidence. The trial Court was also directed to return the evidence together with its findings thereon to the High Court of Gujarat. The trial Court after considering the evidence adduced by both the parties held that the reasonable rent of the land in question was Rs. 2,225/- per annum. With these findings of the trial Court the records were returned to the High Court of Gujarat. On 4-10-1971 the High Court of Gujarat allowed the appeal setting aside the judgment and decree passed by the Courts below decreeing the suit for a sum of Rs. 3,479-69 paise as rent to be recovered from the legal heirs of the defendants-respondents.
(3.) The sole question that poses itself for consideration before this Court is whether the issuance of notification under sub-sec. (1)(b) of sec. 88 Act No. 30 of 1956 on May 21, 1958 making the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 inapplicable to the lands reserved for non-agricultural or industrial development in the Municipal limits of the City of Baroda retrospectively. Or in other words whether the said Act will not at all apply to lands within the Baroda Municipality which have been reserved for non-agricultural or industrial development by the aforesaid notification dated May 21, 1958 published in the Official Gazette. If the Act does not at all apply then the determination of rent of the suit land as made by the Mamlatdar under the provisions of Secs. 8 and 9 of the said Act will be of no avail and the Civil Court will be competent to determine the rent payable by the defendant-tenant in respect of these lands in question to the respondent on the basis of the Kabuliyat by the defendant-appellant or in case the Kabuliyat is held to be inadmissible in evidence because of non-registration the reasonable rent payable in respect of the said land is to be determined. To determine this question it is pertinent to refer to the provision of sec. 88(1)(b) which is quoted hereinbelow : "Sec. 88(1). Save as otherwise provided in sub-sec. (2) nothing in the foregoing provisions of this Act shall apply- (b) to any area which the State Government may, from time to time, by notification in the Official Gazette, specify as being reserved for non-agricultural or industrial development." On a plain reading of the provisions of sec. 88(1) it is crystal clear that issuance of the notification under sec. 88(1 )(b) on May 21, 1958 reserving the land within the Municipal limits of the city of Baroda for non-agricultural or industrial development the provisions of the Tenancy Act were made inapplicable retrospectively subject to the exception provided in sub-sec. (2) of sec. 88. Another section very relevant to be considered in this connection is sec. 89 of the said Act. Sub-sec. (2)(b) of the said section further provides that save as expressly provided in this Act nothing in this Act or any repeal effected thereby shall be deemed to affect any right, title, interest, obligation or liability already acquired, accrued or incurred before the commence- ment of this Act. It was tried to be contended before us on behalf of the appellant that in view of this provision the right of the defendant -tenant to pay rent as determined by the Mamlatdar under the provisions of Secs. 8 and 9 of the Bombay Tenancy and Agricultural Lands Act, 1948 will not be affected by the retrospective effect given by sec. 88 of the said Act. It has been further urged that the reasonable rent in respect of the lands in question has already been determined by the Mamlatdar and the Civil Court is not competent to decide reasonable rent once again and the determination made by the Civil Court is ineffective.;