PARMA MOTIJI HARJI Vs. ANAND PRASAD HIRALAL TRIVEDI
HIGH COURT OF GUJARAT
PARMA MOTIJI HARIJI
ANAND PRASAD HIRALAL TRIVEDI
Referred Judgements :-
ABBOTT V. MINISTER FOR LANDS
PRITHVIRAJ CHUNILAL SAND V. HARI GANESH PARKHE
NARAYAN SANAS V. MANIKCHAND SHAH
RAJASAB WALLID IMAMSAB BEGWAN V. HARISHCHANDRA HONAWAR
DAYARAM BHAKTIBHAI V. MAGANLAL SUNDERJI
PATEL MAGANBHAI JETHABHAI V. SOMABHAI SURSANG
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(1.)Before I deal with the submission made by Mr. Shah on behalf of the defendants it would be expedient to state a few facts which are hardly in dispute. As I have said the suit lands were leased out to the defendants on the 4th of May 1946. At that time although the Bombay Tenancy Act of 1939 had already been enacted it had not been applied to the District of Ahmedabad. By Bombay Act XXVI of 1946 that Act was made applicable to the suit lands and by sec. 5(3) of that Act it was provided that every tenant shall on the expiry of one year from the date of the coming into force of that Act be deemed to be a protected tenant for the purposes of the Act and his rights as such protected tenant shall be recorded in the record of rights. Act XXVI of 1946 was brought into force oh the 8th of November 1946. It is clear therefore that the tenancy created on the 4th of May 1946 was governed by the Bombay Tenancy Act 1939 as modified by Act XXVI of 1946. It is not in dispute that as a result of the 1939 Act being made applicable to the suit lands the defendants were protected tenants as provided for in sec. 3A of the 1939 Act. As I have said it is no longer in dispute now though the defendants at one stage did challenged that facts that the suit lands are situate within two miles from the limits of the Ahmedabad Borough Municipality as it was then called prior to the enactment of the Bombay Provincial Corporation Act 1949 Thereafter the Bombay Tenancy and Agricultural ands Act 1948 enacted and that Act was brought into operation as from the 28th of December 1948. Under sec. 89 the Tenancy Act of 1939 was repealed except secs. 3 3 and 4 as modified in the manner stated in the schedule there of. Sec. 31 of the 1948 Act also provided that for the purposes of the Act a person should be recognised to be a protected tenant if such a person has been deemed to be a protected tenant under secs. 3 3 and 4 of the Bombay Tenancy Act 1939 In view of these provisions the defendants must he said to be persons who continued to be protected tenants in respect of the suit lands.
(2.)Mr. Shah for the defendants argued that when the lease was made in respect of the suit lands the Act of 1939 was already enacted and though in May 1946 that Act was not made applicable to these areas Bombay Act XXVI of 1946 brought into operation the Act of the 1939 as from the 8th of November 1946. Therefore the suit lands and the lease created in respect thereof were governed by the provisions of the Act of 1939 and the defendants became entitled to the rights of protected tenants. Mr. Shah contended that these rights as protect tenants became vested in the defendants by reason of the 1939 Act having been made applicable to the suit lands. Sec. 88 of the 1948 Act however provides that the provisions of the Act shall not apply amongst other areas to any area within the limits of the Municipal Borough of Ahmedabad and to areas within a distance of two miles of the limits of the Borough Municipality of Ahmedabad. The provisions of sec. 88(1)(c) therefore took out of the purview of the 1943 Act the suit lands. Bat Mr. Shah contended that though this section exempted the suit lands from the operation of the 1948 Act the rights as protected tenants which where already vested in the defendants would continue by reason of sec. 31 of the Act and therefore the plaintiffs were not entitled to terminate. the tenancy as they have done or to maintain the present suit.
(3.)It is no doubt true that by enacting section 31 in the 1948 Act the Legislature would seem to have desired to continue the rights of protected. tenants acquired under the earlier Act. But section 89(1) which repealed the Bombay Tenancy Act 1939 except to the extent of sections 3 3 and 4 thereof provided by sub-section (2) that nothing in the 1939 Act shall save as expressly provided in this Act affect or be deemed to affect (i) any right title interest obligation or liability already acquired accrued or incurred before the commencement of this Act. Sub-section (2) of section 89 of this Act has not saved any rights of tenants as protected tenants assuming that such rights can be said to be rights accrued before the commencement of the 1948 Act. This very question arose in Sakharam Narayan Sanas v. Manikchand Shah 57 Bom. L. R. 223 where it was observed that though the Bombay Tenancy Act of 1939 was repealed sections 3 3 and 4 of that Act had been saved after making certain modifications therein. Having done so the Legislature recognised those persons under section 31 who were protected tenants under the Act of 1939 as protected tenants under the 1948 Act thereby conferring upon such persons who were recognised as protected tenants under the Act of 1939 the rights and privileges available to protected tenants under the Act of 1948. But the learned Judges have also observed that if section 88 of the Act of 1948 had not been enacted by the Legislature the defendants who were recognised as protected tenants under the Act of 1939 would be entitled to claim the rights which were conferred upon them by the Act of 1939 and affirmed by the Act of 1948. But the Legislature has however excluded from the Act of 1948 certain classes of leases and lands situate in specified areas. Therefore once that exclusion is made whatever rights may be deemed otherwise to have been conferred by section 31 upon protected tenants must be regarded as ineffective if the lands were to be of the description mentioned in section 88 or the lands were to be within the areas specified in that section. It is also observed there that though the Legislature by sub-sections (2) of section 89 has purported to protect the right title and interest of persons who were governed by the Tenancy Act of 1939 notwithstanding the repeal of that Act yet it is provided that those rights or privileges would not be exercisable if there is an express provision to the contrary made in the Act. According to this decision the Legislature has provided by section 88 that the lands situate in the specified areas would not be governed by the provisions of the Act of 1948 and this must be regarded as an express provision to the contrary. Consequently the rights acquired under the Act of 1939 cannot be exercised if the lands in respect of which they are claimed are situate within the areas specified in section 88(1) (c) of the 1948 Act. They also held that these rights as protected tenants were rendered illusory in the light of the provisions of section 89 (2) (b) (ii) of the 1948 Act whereby the Legislature has authorised the continuance and disposal of legal proceedings in respect of rights titles interests obligations or liabilities already acquired accrued or incurred under the Act of 1948 as if that Act was not passed. But so far as the institution of proceedings is concerned the Legislature has not protected the rights titles interests obligations or liabilities acquired accrued or incurred under the Act of 1939 If a legal proceeding or remedy in respect of any such right title interest obligation or liability acquired or incurred is sought to be instituted after the Act of 1948 came into operation it will have to be instituted and dealt with in accordance with the provisions of the 1948 Act even though the liability was under the Act of 1939. Thus even if it were to be assumed that the rights as protected tenants remained vested in the defendants after the commencement of the 1948 Act those rights in their enforcement were rendered illusory as proceedings in which a question as to their enforcement would arise if instituted after the 1948 Act came into operation must be governed under the 1948 Act and not under the 1939 Act. Consequently the provisions of section 88(1) (c) would apply in respect of tenants holding leases of lands situate in the areas specified therein. Besides these considerations as observed in the Full Bench decision of the High Court of Bombay in Patel Maganbhai Jethabhai v. Somabhai Sursang 60 Bom. L. R. 1383 it cannot be argued that the defendants had acquired vested rights by reason of the enactment of the 1939 Act. A right given by an enactment itself which has not been acquired by the parties or which has not accrued to the parties is not a vested right in the sense in which vested right is understood. It is no doubt a legal right which such party can assert in a Court of law. But as observed by Chagla C. J. in that judgment 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 in which the Privy Council has defined and described (in Abbott v. Minister for Lands (1895) A. C. 425) viz. a right 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. It is nowhere the case of the defendants that they as tenants did any act or in any way changed their position as a result of the Tenancy Acts which made them acquire a vested right or whereby a vested right accrued to them. The defendants therefore; cannot be said to have acquired any vested right by reason of the Tenancy act having been enacted or which vested rights as argued by Mr. Shah continued after the enactment of the Act of 1948. The other contention of Mr. Shah viz. that section 88(1)(c) cannot take away such vested rights of the defendants also cannot in this view prevail.
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