Gujarat High Court
Savarga vs Prabhubhai on 16 December, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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SA/48/1984 60/ 60 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND
APPEAL No. 48 of 1984
With
SECOND
APPEAL No. 49 of 1984
To
SECOND
APPEAL No. 51 of 1984
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.K.RATHOD
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
SAVARGA
BHAKTIBHAI DULLABHAI STHAPIT BHAKTA PATIDAR & 1 - Appellant(s)
Versus
PRABHUBHAI
DAHYABHAI BHKTA & 3 - Defendant(s)
=========================================================
Appearance
:
MR
SR DIVETIA for
Appellant(s) : 1 - 2.
MR GM JOSHI for Defendant(s) : 1,
RULE
SERVED for Defendant(s) : 2 -
4.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 16/12/2010
ORAL
JUDGMENT
1. Heard learned advocate Mr.S.R.Divetia on behalf of appellants and learned advocate Mr.G.M.Joshi for respondents in each appeal.
2. These four appeals involve one question of law as to whether notice served by plaintiffs to respondents - tenants under Section 84 of Bombay Land Revenue Code while terminating tenancy of agricultural lands giving three months' time is legal and valid or not and whether suit notice under Section 106 of Transfer of Properties Act is necessary in spite of two reported judgments as relied by learned advocate Mr.S.R.Divetia, of this Court; one is in case of Arya Satyadev Dhanjibhai & Anr. v. Bhailalbhai Ishwarbhai, reported in 1972 (13) GLR 398 and another in case of Motibhai Nathabhai v. Ramchandra Martandray Vahivatdar Trustee of Ramji Mandir, Baroda, reported in 1974 (15) GLR 18 and further question was whether lower Courts were right in law in following reported judgment of Bombay High Court in case of Manekji Edulji Mistry v. Maneksha Ardeshir Irani, reported in 1972 Vol.LXXV BLR 609.
3. Learned advocate Mr.S.R.Divetia in his submissions relying upon two decisions of this Court, as referred above, submitted that notice issued by plaintiffs to respondents - tenants while terminating tenancy giving three months' time under Section 84 of the Bombay Land Revenue Code (for short "the Code") is legal and valid and therefore, finding given by both below Courts are contrary to binding decision of this Court. He further submitted that both below Courts have committed error of law in relying upon judgment of Division Bench of Bombay High Court, as referred above. He emphasized that out of two decisions, one is Division Bench of this Court and another is of learned Single Judge of this Court where this very question has been examined and that decision is not followed which is binding to subordinate Courts. Therefore, according to his submissions, these four appeals are required to be allowed while setting side judgment and decree passed by below Courts.
4. Learned advocate Mr.G.M.Joshi for respondents submitted that aforesaid both decisions of this Court have been rightly considered and distinguished by below Courts, and in facts of this case, provisions of Sections 83 and 84 of Code is ceased to be applied means not applicable because tenancy in respect to agricultural lands, provisions of Bombay Tenancy and Agricultural Lands Act,1948 (for short "the Tenancy Act") is applicable. He also submitted that in such circumstances, the finding given by below Courts that notice under Section 106 of Transfer of Properties Act must have to be given which requires for terminating tenancy for a period of six months notice, which was undisputedly not given. Therefore, according to his submissions, decision given by both below Courts is perfectly justified considering amended provisions of 1 August, 1956 in Bombay Land Revenue Code. He also submitted that decision of Bombay High Court is squarely covered the issue which has been rightly relied by below Courts and for that, no error is committed.
5. I have considered submissions made by both learned advocates and also perused order passed by trial Court deciding preliminary issue in Regular Civil Suit No.168/78 Exh.49, Regular Civil Suit No.16/80 Exh.10, Regular Civil Suit No.154/80 Exh.8 and Regular Civil Suit No.115/80 Exh.8 dated 27.2.1981 and also perused judgment and order passed by appellate Court in Regular Civil Appeal Nos.106 to 109.1981, decided on 30.6.1983. That four appeals preferred by original plaintiffs are dismissed with costs while confirming judgment and decree passed by trial Court.
6. Brief facts leading to present case are that present appellant No.1 is a registered education Trust. The appellant Nos.2 to 6 and respondent Nos.2 and 3 in Appeal No.106 of 1981 are trustees of above Trust, who had filed aforesaid civil suits in Court of Civil Judge (JD), Vyara against present respondent No.1 of Appeal No.106 of 1981 and sole respondent in Trust of the appeal. The plaintiff - Trust is owner of lands as described in Para.2 of plaint of each case. These lands are exempted from provisions of Section 88(B) of Bombay Tenancy and Agricultural Lands Act and Trust is exempted from provisions Tenancy Act. The defendants in all the suits had no right in respect of aforesaid lands. However, they have encroached upon aforesaid lands. So defendants in all suits are in unlawful possession of suit lands and hence, defendants have no right to retain possession. However, defendants are claiming tenancy rights against present appellants. So notice under Section 84 of Bombay Land Revenue Code was served upon defendants in each suit and tenancy of defendants was terminated w.e.f. 31.3.1972. The defendants in each suit received notice on or before 31.12.1971 but, as defendants did not comply with notice and did not hand over possession of suit lands, the original plaintiffs had filed suit and claimed possessions and mense profit of last three years along with future mense profit. The defendants resisted all the suits and raised various contentions, out of which one was that the suit notice in all the suits is illegal. The trial Court has framed issues regarding legality of notice as a preliminary issue as per application made by defendants under Order 14 Rule 2(b) of CPC. The trial Court has held that as per Section 106 of Transfer of Properties Act, six months' notice is necessary for terminating such tenancy but, as the suit notice is only of three months, the notices in each suit is illegal. So suit has been failed on that preliminary law point and accordingly, all the suits have been dismissed by trial Court against plaintiffs. Therefore, plaintiffs have preferred appeals before Extra Assistant Judge, Surat.
7. In this case, certain provisions of Bombay Land Revenue Code, Bombay Tenancy and Agricultural Land Act and Transfer of Properties Act are relevant, therefore, they are quoted as under :
" Section 83 and 84 of Bombay Land Revenue Code.
83. Amount of rent payable by tenant. :- A person placed, as tenant, in possession of land by another, or in that capacity, holding, taking, or retaining possession of land permissively from or by sufferance of another shall be regarded as holding the same at the rent or for the services agreed upon between them; or in the absence of satisfactory evidence of such agreement at the rent payable or services renderable by the usage of the locality, or, if there be no such agreement or usage, shall be presumed to hold at such rent as, having regard to all the circumstances of the case, shall be just and reasonable.
Duration of tenancy. - And where by reason of the antiquity of a tenancy, no satisfactory evidence of its commencement is forthcoming, and there is not any such evidence of the period of its intended duration, if any, agreed upon between the landlord and tenant, or those under whom they respectively claim title or any usage of the locality as to duration of such tenancy, it shall, as against the immediate landlord of the tenant be presumed to be co-extensive with the duration of the tenure of such landlord and of those who derive title under him.
Presumption as to tenure.- And where there is no satisfactory evidence of the capacity in which a person in possession of land in respect of which he renders service or pays rent to the landlord receives, holds or retains possession of the same, it shall be presumed that he is in possession as tenant.
Saving clause. - Nothing contained in this section shall affect the right of the landlord (if he have the same either by virtue of agreement, usage or otherwise), to enhance the rent payable or services renderable by the tenant, or to evict the tenant for non-payment of the rent or non-rendition of the services, either respectively originally fixed or duly enhanced as aforesaid.
84. Annual tenancy terminates on the 31st March :-
Annual tenancy shall in the absence of proof of the contrary be presumed to run from the end of one cultivating season to the end of the next. The cultivating season may be presumed to end on the 31st March.
Three months' notice of termination of tenancy to be given by landlord to tenant, or vice versa. - An annual tenancy shall in the absence of any special agreement in writing to the contrary require for its termination a notice given in writing by the landlord to the tenant, or by the tenant to the landlord, at least three months before the end of the year of tenancy at the end of which it is intimated that the tenancy is to cease. Such notice may be in the form of Schedule E, or to the like effect.
84IA.
Sections 83 and 84 not to apply to certain tenancies.
:-
The provisions of sections 83 and 84 shall cease to apply to tenancies to which the provisions of the Bombay Tenancy and Agricultural Lands Act, [1948 (Bombay LXVII of 1948), or as the case may be, of the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, 1958 (Bombay XCIX of 1958), apply.]
- Section 84IA was inserted by Bom. LXVII of 1948, S.90 read with Bom.13 of 1956.
Section 90 of Tenancy Act (by amending Act, 1.8.1956) Schedule II, 4 th Column.
90. Enactments amended :-
The enactments specified in Schedule II shall be amended to the extent mentioned in the fourth column thereof.
- This section was inserted by Bom.13 of 1956,S.50.
[Schedule I] ENACTMENT REPEALED (SEE SECTION
89) Year No. Short Title Extent of repeal 1 2 3 4 1939 XXIX The Bombay Tenancy Act,1939 The whole except sections 3, 3A and 4 as modified in the following manner, namely:-
[Schedule II] (SEE SECTION10A and 90) Year 1 No. 2 Short Title 3 Extent of Amendment.4 1879
V Section 83 and 84 not to apply to certain tenancies "84-I-A. The provision of sections 83 and 84 shall cease to apply to tenancies to which the provisions of the Bombay Tenancy and Agricultural Lands Act,1948, apply."
Section 88 (B) (1)(b) of Tenancy Act.
88B.
Exemption from certain provisions to and of local authorities Universities and trusts :-
(1) Nothing in the foregoing provisions, except sections 3, 4B, 8, 9, 9A, 9B, 9C, 10, 10A, 11, 13 and 27 and the provisions of Chapters VI and VIII in so far as the provisions of the said Chapters are applicable to any of the matters referred to in the sections mentioned above, shall apply
(a) ... ... ...
(b) to lands which are the property of a trust for an educational purpose a hospital, Panjrapole, or Gaushala;
Section 106 of Transfer of Properties Act.
106. Duration of certain leases in absence of written contract or local usage. :-
(1) In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice.(2)
Notwithstanding anything contained in any other law for the time being in force, the period mentioned in sub-section (1) shall commence from the date of receipt of notice.
(3) A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that subsection, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section.
(4) Every notice under sub-section (1) must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to u conspicuous part of the property.
Section-3 of Tenancy Act.
3. Application of Chapter V of Transfer of Property Act :-
The provisions of Chapter V of the Transfer of Property Act, 1882 (IV of 1882), shall in so far as they are not inconsistent with the provisions of the Act, apply to the tenancies and leases of land to which this Act applies.
8. Learned advocate Mr.S.R.Divetia has relied upon decision of Division Bench of this Court in case of Arya Satyadev Dhanjibhai & Anr. v. Bhailalbhai Ishwarbhai, reported in 1972 (13) GLR 398, as referred above. Relevant discussion made in Para.8, 9 and 16 are quoted as under :
"8. It is an admitted position that under sec. 88B(2), the present plaintiffs have obtained a certificate and that certificate is conclusive evidence. That sub-section reads :
"For the purposes of this section, a certificate granted by the Collector, after holding an inquiry, that the conditions in the proviso to sub-sec. (1) are satisfied by any trust shall be conclusive evidence in that behalf."
That proviso reads : "Provided that"
(I) such trust is or is deemed to be registered under the Bombay Public Trusts Act, 1950, and
(ii) the entire income of such lands is appropriated for the purposes of such trust."
Sec.
4B of the Act reads :
"No tenancy of any land shall be terminated merely on the ground that the period fixed by agreement or usage for its duration has expired."
It is submitted by Mr. Shah that the only consequence of the application of sec. 4B to the suit lands would be that the tenancy of such lands could not be terminated merely on the ground that the period of the lease had expired.
9. Sec. 111 of the Transfer of Property Act provides several modes of terminating the tenancy. One of such modes of determination of lease of immovable property is that a lease of immovable property determines by efflux of the time limited thereby. That is contemplated by clause (a) of sec. 111 of the Transfer of Property Act. There are other clauses (b) to (h) of that sec. 111 which contemplate other modes of determination of the tenancy. Clause (h) which is material for our purposes reads that a lease of immovable property could be determined by giving a requisite notice to determine the lease. That clause reads :
"111.
A lease of immovable property determines"
(h) on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other."
Sec.
4B of the Act only restricts the power of the landlord to determine the tenancy on the ground that the period of lease has expired. It does not restrict the right of the landlord to determine the tenancy by adopting other modes referred to in clauses (b) to (h) of sec. Ill of the Transfer of Property Act.
16. J.
B. Mehta, J., in the aforesaid unreported decision, has held that in view of the provisions of sec. 3 of the Act, the provisions of Chapter V of the Transfer of Property Act, 1882 will apply to such agricultural leases and it will not be necessary in view of these provisions that a notification should have been issued by the Government as contemplated by sec. 117 of the Transfer of Property Act. After referring to the provisions of sec. 88B of the Act, our learned Brother J. B. Mehta, J., has considered a similar submission made before him. The relevant observations made are :
"Mr. Amin next argued that even if sec. 88B applied to the suit lands, which was the property of the Ramji Mandir Public Trust, there was no exemption from the provisions of sec. 4B of the Act, because that section was specifically excluded from the other foregoing provisions from which exemption was granted under sec. 88B(1). Sec. 4B provides that no tenancy of any land shall be terminated merely on the ground that the period fixed by agreement or usage for its duration has expired. This section could not help Mr. Amin because it creates a bar of termination of tenancy only on the ground that the period fixed by agreement or usage for its duration had expired. This is only one of the modes of the determination of the leases under see. Ill of the Transfer of Property Act which provides in sec. 111(a) that a lease of immoveable property shall be determined by efflux of time limited thereby. This section, however, does not prohibit termination of the lease on other ground or by other modes. Sec. 111(h) specifically provides for termination of lease on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other. In the present case the lease had been terminated not on the ground that the period fixed by agreement or usage for its duration had expired, but on the ground that notice to terminate the lease had been given as required under sec. 84. This mode of termination by notice to quit is not prohibited under sec. 4B of the Act."
In our opinion, this is the correct view taken. Merely because the Legislature provided for the availability of benefits contemplated by sec. 8 of the Act in regard to fixation of maximum and minimum rent, fixation of rent by Mamlatdar under sec. 9 of the Act, quantum of rent payable by tenant to landlord under sec. 9A of the Act, stipulating that the landlord would not be liable to make any contribution towards the cost of cultivation under sec. 9B, liability of tenant to pay the agreed rent to the landlord until rent is fixed under preceding sections under sec. 9-C of the Act, refund of rent recovered in contravention of the provisions of the Act and other penalties under sec. 10 of the Act, liability of tenant to pay land revenue and certain other cesses under sec. 10A, disability of the landlord to recover any cess, etc. under sec. 11 of the Act from the tenant, in respect of such land, will not necessarily lead to a deduction that the Legislature intended the fixity of tenure, that is, security or protection of tenancy in respect of such lands also. No such intention can be gathered from the relevant provisions of the Act. By enacting this sec. 4B, as said earlier, the Legislature only provides that the relationship of a landlord and tenant will not cease or will not be terminated merely on the ground that the lease period has expired. Other modes of determining the tenancy would be available to the landlord in respect of such lands. In the instant case, the landlords have adopted one of such modes, viz. mode contemplated under sec. Ill, clause (h) of the Transfer of Property Act. That mode is available to the landlord. The learned trial Judge has rightly, in our opinion, held that the tenancy was terminated by the notice, Ex. 35, and the plaintiffs were entitled to get possession of the suit lands from the respondent-defendant."
9. Learned advocate Mr.S.R.Divetia has relied upon decision a decision of coordinate Bench of this Court in case of Motibhai Nathabhai v. Ramchandra Martandray Vahivatdar Trustee of Ramji Mandir, Baroda, reported in 1974 (15) GLR 18, as referred above. Relevant discussion made in Para.6, 7 and 8 are quoted as under :
"6. So far as the first contention raised by Mr. Patel is concerned, the plaintiff himself has stated in the plaint that the defendant was an annual tenant in respect of the suit lands. Ex. 30 is the exemption certificate granted to the plaintiff in respect of the suit lands under sec. 88B of the Tenancy Act. It is dated April 26, 1958. Now, sec. 88B, so far as it is relevant for the purpose of the present case, provides as under :-
"Nothing in the foregoing provisions except Secs. 3, 4B, 8, 9, 9A, 9B, 9C, 10, 10A, 11,13 and 27 and the provisions of Chapters VI and VII in so far as the provisions of the said Chapters are applicable to any of the matters referred to in the sections mentioned above, shall apply-
(a)..................
(b) to lands which are the property of a trust............or an institution for public religious worship;
(o)...............
Provided that-
(i) such trust is or is deemed to be registered under the Bombay Public Trusts Act, 1950, and
(ii) the entire income of such lands is appropriated for the purposes of such trust.
(2) For the purposes of this section, a certificate granted by the Collector, after holding an inquiry, that the conditions in the proviso to sub-sec. (1) are satisfied by any trust shall be conclusive evidence in that behalf."
It has not been disputed before me that the two requirements of the proviso to sub-sec, (i) of sec. 88B are satisfied in as much as the Ramji Mandir trust has been registered under the Bombay Public Trusts Act, 1950, and the entire income of the said lands is appropriated for the purposes of that trust. The certificate of registration issued under the Bombay Public Trusts Act, 1950, has been produced at Ex. 31. The certificate of exemption, Ex. 30, in its turn states that these two requirements of the proviso to sub-sec. (1) of sec. 88B are satisfied. Under sub-sec. (2) of sec. 88B, the certificate of exemption, Ex. 30, is the conclusive evidence of the facts stated therein. I, therefore, hold that so far as the proviso to sub-sec. (1) of sec. 88B is concerned, its requirements are fully satisfied in the instant case. If that is so, what is the effect of the certificate of exemption granted under sub-sec. (1) of sec. 88B on the suit lands? The effect is that only the provisions of sec. 3, 4B, 8,9, 9A, 9B, 9C, 10, 10A, 11, 13 and 27 and such of the provisions contained in Chapters VI and VIII of the Tenancy Act as are applicable to matters specified in the aforesaid sections apply to the suit lands. The remaining provisions of the Tenancy Act do not apply. Mr. Patel has relied upon Secs. 3 and 4B of the Tenancy Act in support of his contention. These are some of the sections which are applicable to the suit lands. Now, sec. 3 of the Tenancy Act provides as under :-
"The provisions of Chapter V of the Transfer of Property Act, 1882, shall, in so far as they are not inconsistent with the provisions of this Act, apply to the tenancies and leases of land to which this Act applies".
Basing his arguments on this section, he has urged that sec. 106 of the Transfer of Property Act (which is in Chapter V) governs the termination of the tenancy in respect of the suit lands. In other words, his contention is that the plaintiff ought to have served upon the defendant six months' notice expiring with the end of the year of the tenancy for the purpose of termination of his tenancy. He has overlooked the provisions of sec. 117 of the Transfer of Property Act, which provides that none of the provisions of Chapter V shall apply to leases for agricultural purposes, except in so far as the State Government may, by notification published in the Official Gazette, declare all or any of such provisions to be so applicable in the case of all or any of such leases, together with, or subject to, those of the local law, if any, for the time being in force. Sec. 3 of the Tenancy Act has inter alia brought both these sections into force. If both are in force, then sec. 106 cannot apply to the instant case unless there is a notification issued by the State Government under sec.
117. He has not been able to show me any such notification. Therefore, sec. 106 of the Transfer of Property Act has no application to the lease in respect of the suit lands. If sec. 106 has no application to the instant case under the aforesaid circumstances, it does not become applicable merely by virtue of the provisions of sec. 3 of the Tenancy Act. By virtue of sec. 3 of the Tenancy Act, such provisions of Chapter V of the Transfer of Property Act are applicable as are otherwise applicable to agricultural leases or are otherwise made applicable to such leases. The argument raised by Mr. Patel, on the strength of sec. 3 of the Tenancy Act, therefore, fails and is rejected.
7. Mr. Patel has next argued that sec. 4B of the Tenancy Act hits the present suit. It provides as under-
"No tenancy of any land shall be terminated merely on the ground that the period fixed by agreement or usage for its duration has expired."
Tenancy has been defined by sec. 2(17) in the following terms :-
"
"Tenancy" means the relationship of landlord and tenant".
Sec. 4B militates against the termination of the tenancy only in so far as it is sought to be done on the ground that the period or duration for which the tenancy was granted has expired or the period during which the tenant could be in possession has expired. In the instant case, the notice served by the plaintiff upon the defendant does not seek to terminate the tenancy on the ground of afflux of time. There are several other grounds, which are stated in the notice. He has alleged that in Survey No. 583, which is one of the suit lands, the defendant has constructed a permanent building and that he has been tethering cattle therein and that therefore, he has been causing waste of the suit lands. According to the plaintiff, the waste or damage to the suit land caused by the defendant has been permanent. The second ground, which he has stated, is that the trees, which had been standing on the suit lands, have been cut away by the defendant and that, therefore, he has caused permanent damage to the suit lands. He has next alleged that the defendant has not been personally cultivating the suit lands and that he has been giving them to others for cultivation and that, therefore, he has been causing waste of the suit lands. The next ground, which he has urged, is that the defendant has not paid rent for the years from 1956-57 to 1958-59. It is, therefore, clear that the plaintiff has terminated the tenancy of the defendant on grounds other than afflux of time. Sec. 4B of the Tenancy Act, therefore, does not come in the way of the plaintiff. Mr. Patel's argument based on sec. 4B, therefore, fails and is rejected. The first contention raised by Mr. Patel has, therefore, no substance whatsoever.
8. In support of the second contention, he has invited my attention to sec. 89 of the Tenancy Act, the material part of which is as follows:-
"(1) The enactment specified in Schedule I is hereby repealed to the extent mentioned in the fourth column thereof. (2) But nothing in this Act or any repeal effected thereby-
(a)..................
(b) shall, save as expressly provided in the 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, 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 proceedings shall be continued and disposed of, as if this Act was not passed."
He has not relied upon any other sub-section of sec. 89. So far as sub-Secs. (1) and (2) of sec. 89 are concerned, he has placed reliance only upon the effect of repeal provided in sub-sec. (2) in so far as rights which accrued to the defendant under the Bombay Tenancy Act, 1939, are concerned. The question, therefore, which arises is this; What were the rights which the defendant acquired under the Bombay Tenancy Act, 1939 and what are the rights which have been saved by sub-Secs. (1) and (2) of sec. 89 of the Tenancy Act ? Mr. Patel has not argued before me that the defendant had acquired more or higher rights under the Bombay Tenancy Act, 1939 than the rights which have been saved to him under Secs. 3, 3A and 4 of the Bombay Tenancy Act, 1939 as modified and incorporated in Schedule I to the Tenancy Act of 1948. Therefore, the question of comparing the rights which accrued to him under the Bombay Tenancy Act of 1939 with those which the modified Secs. 3, 3A and 4 of that Act (vide Schedule I to the Tenancy Act of 1948) continue in force for him does not arise. So also the question of considering the effect of repeal, in so far as this aspect of the case is concerned, does not arise. He has proceeded on the basis that the defendant had only those rights which the aforesaid three modified sections continued in force for him. Mr. Patel has placed reliance upon the said Secs. 3 and 3A of the Bombay Tenancy Act, 1939. Sec. 4 of the said Act has indisputably no application to the instant case. Sec. 3 provides as under :-
"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) he has cultivated such land personally, during the aforesaid period.
Explanation /.-If the person who held such land on the first day of January 1938 or the first day of January 1945, as the case may be, came to hold the same by inheritance or succession from another person or if he has held such land as a tenant and is an heir to such other person, the period during which such other person held such land as a tenant shall be included in calculating the period of six years under this section.
Explanation If the person who held such land on the first day of January 1938 or the first day of January 1945, as the case may be, held as a tenant at any time within six years before the said date from the same landlord in the same village any other land which he cultivated personally, the period during which he held such other land shall be included in calculating the period of six years under this section. Explanation Where any land is held by two or more persons jointly as tenants, all such persons shall, if any one of them cultivated and continues to cultivate such land personally and if the other conditions specified in this section are fulfilled, be deemed to be protected tenants in respect of such land."
Sec. 3A provides as under -
Every tenant shall, from the eighth day of November 1947 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 prior to the aforesaid date made an application to the Mamlatdar for a declaration that the tenant is not a protected tenant.
Explanation-A person shall not be deemed to be a protected tenant if such person has been on an application made by the owner of the land as provided in sec. 3-A of the Bombay Tenancy Act, 1939, declared by a competent authority not to be a protected tenant."
It is clear that before a tenant invokes the provisions of the said Secs. 3 and 3A of the Bombay Tenancy Act, 1939, it must be proved that he had held the land in question 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 and that he had cultivated such land personally during the aforesaid period. The learned Appellate Judge has dealt with this aspect of the case in the following terms :-
"Undoubtedly there is no controversy that the tenancy of the appellant had commenced prior to 1946 and consequently under the terms of the old Act of 1939 he was to be counted a protected tenant and therefore ordinarily the appellant would have enjoyed the status of a protected tenant but for the consideration that this sec. 4A was excepted from the body of sec. 88B(i) of the Act and so far as sec. 88B(i) was concerned this sec. 4A was not included therein."
Therefore, according to the learned Appellate Judge, the defendant was a protected tenant within the meaning of Secs. 3, 3A and 4 of the Bombay Tenancy Act, 1939 (as modified and incorporated in Schedule I to the Tenancy Act, 1948). In cases where sec. 4A applies - and it applies in a very large number of cases- the tenancies protected under Bombay Tenancy Act, 1939 are recognised under the Tenancy Act, 1948 and continue in force with all the protection which the latter Act accords to them. However, since sec. 4A of the Tenancy Act does not apply to cases in which exemption certificates have been granted under sec. 88B (vide sec. 88B - it excludes the application of sec. 4(A), the protected tenancy of the defendant cannot be recognised. While this is the position on one hand, on the other hand, his tenancy cannot be terminated on the ground of efflux of time because sec. 4B which applies to such cases bars such a termination. Excepting the ground of efflux of time, the defendant's tenancy can be terminated on any other ground not under sec. 106 of the Transfer of Property Act because, as stated above, it has no application to agricultural leases, but under sec. 84 of the Bombay Land Revenue Code. Indeed it shall be a ground other than the ground of efflux of time which is barred by sec. 4B. The notice, Ex. 36, served by the plaintiff upon the defendant states grounds which are not hit by sec. 4B. I have referred to them in the foregoing parts of this judgment. They are completely de hors the forbidden field and prohibited area carved out by sec. 4B. Therefore, sec. 4B does not come in way of the plaintiff and does not hit the termination of the defendant's tenancy by the plaintiff in any manner whatsoever. Out of abundant caution, however, let us see whether Secs. 8, 9, 9A, 9B, 9C, 10, 10A, 11, 13 and 27 which, in addition to Secs. 3 and 4B, govern cases of lands exempted under sec. 88B of the Tenancy Act, grant any protection to the defendant in this behalf. Sec. 8 provides for the maximum and the minimum of the rent payable by a tenant to his landlord notwithstanding any law, custom, usage, agreement or the decree or order of a court. Sec. 9 deals with the rate of rent payable by a tenant to his landlord. Sec. 9A deals with the quantum of rent payable by a tenant to his landlord. Sec. 9B exempts a landlord from any liability to make contribution to the cost of cultivation. Sec. 9C provides for payment of rent by a tenant to his landlord until the rent is fixed in accordance with the provisions of the Tenancy Act. Sec. 10 provides for refund to a tenant of such rent as has been recovered by his landlord in contravention of the provisions of the Tenancy Act and for incidental matters. Sec. 10A provides for a tenant's liability to pay land revenue and certain other ceases. Sec. 11 abolishes the payment of all ceases, howsoever described, by a tenant to his landlord except the rent and those ceases which have been specified in sec. 10A. Sec. 13 provides for suspension and remission of rent, payable by a tenant to his landlord, under the circumstances specified therein. Sec. 27 prohibits sub-division, subletting or assignment of a land by a tenant. This brief reference to the said sections shows that they protect a tenant in matters relating to rent payable by him to his landlord and protect the land against sub-division, subletting and assignment which, in their turn, protect the landlord who has a right to recover possession, prevent fragmentation and development of absentee landlordism. If, therefore, a landlord has a right to terminate his tenant's tenancy in order to recover its possession, the said sections do not come in the way of the landlord. Chapters VI and VIII of the Tenancy Act apply only in so far as they or any part of them is applicable "to any of the matters referred to in the sections mentioned above." In this view of the matter, it is clear that the defendant has no special protection at all against the termination of his tenancy and recovery of possession by his landlord. The second contention raised by Mr. Patel, therefore, fails and is rejected."
10. The below Courts have discussed and referred the decision of coordinate Bench of this Court in case of Ramdas Narottam & Ors. v. Thakorbhai Shankarbhai Patel & Ors., reported in 1966-67(IV) GLT 143. Therefore, relevant observations are quoted as under:
"Transfer of Property Act-Secs.106, 117- Bombay Land Revenue Code-Sec.84-Bombay Tenancy and Agricultural Lands Revenue Code-Sec.3-No notifications issued under sec.117, T.P. Act- Whether provisions of Chapter V.T.P. Act applicable to the tenancies under Tenancy Act-Cultivating season under Revenue Code-Sec.84, Revenue Code prevails over sec.106 T.P.Act.
Per Mehta, J.
Held that in view of sec.3, Bombay Tenancy Act, the provisions of Ch.V of the Transfer of Property Act are applicable to the tenancies and leases of lands to which the Tenancy Act applied, even though no notification has been issued under sec.117 of the T.P. Act.
Even on the above construction it cannot be said that the statutory notice in question is illegal on the ground that the six months' notice expiring with the end of the year must be given to terminate the agricultural lease under sec.106, Transfer of Property Act. Sec.106 provides for a statutory fiction. The said fiction would arise only in the absence of a contract or a provision of a local law to the contrary. If, therefore, the contract of tenancy or some provision of local law provides a shorter notice, this statutory provision of six months' notice would not apply. Sec.84 of the Bombay Land Revenue Code requires only a minimum three months' notice for termination of annual tenancy in the absence of any such agreement in writing to the contrary. This being a specific provision to the contrary contained in a local law governing agricultural lease, it will prevail over the provision made in sec.106 of the T.P. Act.
Sec.84, Land Revenue Code, provides that the cultivating section shall be presumed to end on 31st March only in the absence of proof to the contrary.
Bombay Land Revenue Code-Sec.84-Bombay Tenancy and Agricultural Lands Act- Secs. 4A, 4B-Notice to quite given under sec.84, Revenue Code-Whether prohibits under sec.4B, Tenancy Act- Exemption also applies in case of public religious trust.
In the present case the lease had been terminated not on the ground that the period fixed, by agreement or usage for its duration, had expired, but on the ground that notice to terminate the lease had been given as required under sec.84 of the Code. This mode of termination by notice to quit is not prohibited under sec.4B of the Tenancy Act.
What is true for sec.88(1)(a), Tenancy Act, for lessees from local authority would in terms apply to lessees of properties of such public trusts. On a parity of reasoning, as sec.88B(1) has also created a similar exemption in respect of the foregoing provisions, except certain sections mentioned therein, and as sec.4A is not one of the sections which is made applicable, the exemption is clearly provides from sec.4A in case of lessees of properties of such a public religious trust. Therefore, in view of the decision of the Supreme Court in S.M. Kamble v.Sholapur Borough Municipality, A.I.R. 1966 S.C.538, it cannot be urged that any rights as protected tenants acquired under the previous law were saved."
11. In light of aforesaid decisions which has been relied by learned advocate Mr.Divetia which decisions have been considered by below Courts while deciding the question whether notice to terminate tenancy of defendants given by plaintiffs are legal and valid or not. The reasoning given by trial Court in Para.4 to 7 is also equally relevant, therefore, same has been quoted as under :
"4. Learned advocate Mr.B.N.Desai appearing for the defendants has argued that the amending Act of August -1956 introduced for the first time Section-90 of the Act and Section-90 says that the enactments specified in schedules-II shall be amended to the extent mentioned in the fourth column thereof and in column-4 the new section 841A is inserted and it provides that the provisions of sections-841A is inserted and it provides that the provisions of sections 83 and 84 shall cease to apply to tenancies to which the provisions of the Bombay Tenancy and Agricultural Lands Act,1948 apply. He argued that in view of the provisions of section 84-1 A, sections 83 and 84 of the Bombay Land Revenue Code cease to apply to the tenancies governed by section-88B(A) of the Bombay Tenancy and Agricultural tenancy Act. He has argued that section 84-1A effecting unqualified repeal inasmuch as section 83 and 84 of the Land Revenue Code cease to apply to the tenancies governed by section 88B(1)(b) also. He has argued that to the tenancies governed by Section 88B(1)(b) of the Act, Section 106 of the Transfer of Properties Act, which is made applicable by section-3 of the Bombay Tenancy and Agricultural Lands Act, provides for duration and termination of such tenancies and, therefore, the provisions of section 106 of the TP Act becomes the provisions of Bombay Tenancy and Agricultural Lands Act regarding duration and termination of tenancy, that is to say section 106 forms part of the Act and if it so, section 84 of the Code ceases to apply to such tenancies also and this being so, there is no local law available for the termination of such tenancies and, therefore, section 106 which provides six months' notice for termination of the agricultural tenancies is made applicable to such tenancies. Then he has argued that admittedly, in all the four suits the tenancy of the defendants has been terminated by three months' notice as provided in Section 84 of the Code and in view of the amending Act of August 1, 1956 the tenancy can be terminated by six months' notice as provided in Section 106 of Transfer of Properties Act and as the tenancy is not terminated in conformity of the provisions of Section 106 of the Transfer of Properties Act, the notices in all the four suits are not legal and valid and in the result, all the suits which are based on such notices require to be dismissed. In support of his arguments, he relied upon the Division Bench decision of the Bombay High Court in Manekji Edulji Mistry v. Maneksha Ardesha Irani, Vol.LXXV (1973) BLR 609. He urged before me that the learned advocate for the plaintiff may cite the decision of Gujarat High Court in Ramdas Narottamdas and Ors. v. Thakorbhai Shankerbhai Patel and Ors, 4 GLT 334. But that decision cannot be applied to this case because in that decision, His Lordships has not considered the amending Act of August 1, 1956, by which Section 90 of inserted in the Bombay Tenancy and Agricultural Lands Act and accordingly, by inserting sections 841-A of the Land Revenue Code, the provisions of Section 83 and 84 are made not applicable to the tenancies to which the provisions of the Bombay Tenancy and Agricultural Lands Act apply.
5. Mr.M.B.Patel learned advocate appearing for the plaintiff in all the four suits has argued that the notice under Section 84 of the Bombay Land Revenue Code is sufficient to terminate the tenancy of the defendants of all the suits and notice u/s.106 of Transfer of Properties Act is not required because Section 106 provides for statutory fixation and said fixation would arise only in the absence of contract of local law to the contrary. Then he argued that as there is a local law in the shape of Bombay Land Revenue Code available for the termination of the tenancy of the defendants, Section 106 is not attracted because three months' notice as provided in Section 84 of the Code is legal and valid. In support of his arguments, he relies upon the decision of Gujarat High Court reported in 4 GLT 334 (supra) and the decision of the Asst. Judge, Surat in Regular Civil Appeal Nos.139 to 144, 146-147-193 and 194 of 1970 decided by the common judgment dated 16th December, 1971 of which copy is placed before be herein the reliance is placed on the Gujarat High Court (Supra) and decision of Bombay high Court reported in Shri Gopalkrishna Dev of Girvi v. Gujabrao Bhausha Hedkadas the Tenancy Law Reporter Vol.17 323 in Second Appeal No. 494 of 1972 dated 9.10.1969.
6. Now, it is no doubt true that His Lordships Justice J.B.Mehta has held in the aforesaid decision that three months' notice as provided u/s.84 of the Bombay Land Revenue Code is valid to terminate the tenancy. But, it may be stated that on perusal of the said decision, it will be clear that His Lordships has not considered the provision of Section 90 of the Bombay Tenancy and Agricultural Lands Act which was introduced by the amending Act of 1956 and if that amending provision was brought to the notice of His Lordships, the decision would have come otherwise. As the amending provision of August 1, 1956 is not considered by His Lordships in the said decision, I am of the opinion that the said decision cannot be said to be binding on me even though it supports the arguments of Mr.M.B.Patel learned advocate for the plaintiff. Then, as regards the decision of the Asst. Judge, Surat it may be stated that His Honour has based his judgment on the judgment of Gujarat High Court (Supra) and the judgment of Bombay High Court, of which reference is already made above by me. As regards the judgment of Gujarat High Court, I have already stated that it is not applicable to this case. As regards the decisions of the Bombay High Court, it may be stated that decision has been overruled by the Division Bench decision of Bombay High Court (supra) relied upon by Mr.B.N.Desai and in such circumstances, the decision of Asst. Judge, Surat also does not helpful to the advocate Mr.M.B.Patel.
7. Now, in these cases admittedly three months' notice u/s.84 of the Code is served on the defendants of all the suits and thereby, their tenancy is terminated. It will be clear that all the notices have been issued after the amending Act of 1956 came into force. Now, the effect of Section 90 of the Bombay Tenancy Act is to amend the provision of Section 84 of the Bombay Land Revenue Code as mentioned in Schedule II and Schedule II introduces Section 841-A which says that the provisions of Sections 83 and 84 shall cease to apply to tenancies to which the provisions of the Bombay Tenancy and Agricultural Lands Act,1948 apply. It has been observed in the aforesaid decision of the Bombay High Court (supra) that the plain meaning of the Act apply, the provisions of Section 83 and 84 of the Code shall cease to apply. Then, it is observed that if, therefore, the provisions contained in Sections 3, 4B, 8, 9, 9A, 9B, 10-A, 11 to 13 and 27 and provisions of Chapter IV, VIII in so far as the provisions are made applicable to the tenancies governed by Section 88B (1) of the Act considering the plain meaning of the provisions of Section 841 of the Code., it follows that the provisions of the Act apply to these tenancies and, therefore, the provisions of Sections 83 and 84 of the Code will cease to apply to them. Then, it has also been held that Section 84-1-A of the Code effects an unqualified repeal of Sections 83 and 84 of the Code in respect of the tenancies to which the provisions of the Act apply and so far as the tenancies falling u/s. 83 of the Act are concerned, Section-3 of the Act being made applicable to such tenancies section 106 of the Transfer of Properties Act applies to such tenancies in the matters of duration and termination of such tenancy and section 84 of the code ceases to apply to such tenancies. Thus, from these decisions it become clear that in case of tenancies governed by Section 88-B the tenancy in our case cease, the notice terminating the tenancy must be in conformity with the provisions of Section 106 of the Transfer of Properties Act. Admittedly, in the cases before us the three months' notice are given to terminate the agricultural tenancy of the defendants. In view of the aforesaid decision, three months' notice u/s.84 of the Code is not sufficient to terminate the tenancy. Thus, in all the cases the tenancy of the defendants is not legally terminated in view of the aforesaid decision. Therefore, all the suits which are based on such notices are not maintainable. Therefore, I answer the preliminary issue No.4(a) in negative. In the result, the suits required to be dismissed on this law point."
12. The observations made by lower appellate Court in Regular Civil Appeal in Para.8 to 18 are quoted as under :
"POINT NO.1
8. Admittedly, initially lower Court, did not draw decree and passed impugned judgment. So, appellants were obliged to file these appeals without decree. These appellants applied to this Court to direct lower Court to draw decree in all these suits and as per order passed by my learned brother my predecessor Extra Assistant Judge, Surat Shri NN Desai below Exh-4, lower Court was directed to draw the decree within 10 days and accordingly, the lower Court subsequently drawn decree in all the suits, and the decrees are considered part of these appeals.
9. As per section 96 of the CPC, an appeal shall lie from every decree passed by the Court. In this connection, Shri BN Desai, learned advocate of respondent No.1 has drawn my attention to a decision of our own High Court given in case of STATE OF GUJARAT V. LALJIBHAI CHATURBHAI, reported in Vol VII, GLR, page 120, in which his Lordship Hon'ble Mr. Justice VB Raju (as he then was) has held that there is distinction between judgment and decree and when decree is not drawn up, the order passed by the lower Court accepting the report of commissioner in a partition sui and directing sale of properties by public auction is not appealable. It is true that when the order is not an appealable order. Appeal cannot lie and when decree has not followed judgment, appeal without decree is not intainable as per Civil Procedure Code, by Amendment Act, 1975, Rule 6(A) every endeavour shall be made to ensure that the decree is drawn up as expeditiously as possible, but where the decree is not drawn, the Court shall, if requested so to do by a party desirous of appealing against the decree, certify that the decree has not been drawn up and indicate in the certificate the reason for the delay and there upon an appeal may be preferred against the decree without filing a copy of the decree and in such a case, the last paragraph of the judgment shall for the purpose of R.1 of Order 41 be treated as the decree and so long as the decree is not drawn up the last paragraph of the judgment shall be deemed to be the decree. There was no such provision in the Old CPC, but admittedly, the appellant did not submit any such written application and did not obtain such certificate of the Code.
10. As per section 33 of the CPC, a decree shall follow judgment. So, when decree is required to be drawn up, it becomes a duty of the Court to draw a decree. In the present case, it appears that the plaintiff drawn attention of the lower Court and requested the lower Court to draw a decree, so that they can prefer an appeal, but learned trial Judge, for reasons best known to him, did not draw decree though he was bound to draw a decree in such cases, hence, upon application of appellants, this Court directed lower Court to draw decree and accordingly decree is drawn in each case and these decrees are considered part of these appeals. So, initial technical error which was there when these appeals were instituted, is now ractified. Moreover, rules of procedure have been engrafted in the CPC and elsewhere to advance cause of justice and not to throttle its cause at the threshold. Here, how can we blame appellants for fault of the learned trial Judge in not drawing decree, though it was obligatory upon him and though his attention was drawn by the appellant and he was requested to draw the decree. So, when the appeals are regularized by subsequent decree, he cannot take such highly technical view to uphold above contentions of the respondents to throttle cause of justice at the threshold. In view of this position, appeals are maintainable. I, therefore, answer point No.1 in negative.
"POINT NO.2
11. In these cases, admittedly three months' notice as per section 84 of Code is given but as per section 90, Schedule II of the Tenancy Act, provisions of section 84 do not apply to tenancies to which provisions of the Tenancy Act apply. To these suits, provisions of the Tenant Act, apply so for termination of tenancy, section 106, TP Act applies and as per that section, 6 months' notice is necessary for terminating such tenancy.
12. No doubt, in case of Arya Satyadev Dhanjibhai and another Vs. Bhailalbhai Ishwarbhai reported in Vol. XIII GLR page 398, a Division Bench of our own High Court relying upon earlier decision of Hon'ble Justice JB Mehta given in case of Patel Ramdas Narottamdas v. Thakorbhai Shankarbhai, has held that mode of termination by notice to quit as per section 84 is not prohibited under section 40 of the Act. In that case, section 48 and 88(B) of Tenancy Act and section 111 of TP Act were for interpretation before their Lordships. Attention of the Court was not drawn to section 90 of the Tenancy Act and effect of that section is not considered, by their Lordships. So that decision does not help the appellants.
13. Second decision cited on behalf of the appellant is rendered in case of Motibhai Nathabhai vs. Ramchandra Martandray, Vahivatdar Trustee of Ramji Mandir Baroda in Vol. XV GLR page 18, in which His Lordship Hon'ble Justice SH Sheth, (as he then was) has held as under:
"The effect of the certificate of exemption granted under Subsection 1 of Section 88B of the Bombay Tenancy Act is that only the provisions of Sections 3, 4B, 8, 9, 9A, 9C, 10, 10A, 11, 13 and 27 and such of the provisions contained in Chapter VI and VIII of the Tenancy Act as are applicable to matters specified in the aforesaid Sections apply to the suit lands. The remaining provisions of the Tenancy Act do not apply.
Section 4B of the Tenancy Act militates against the termination of the tenancy only in so far as it is sought to be done on the ground the period or duration for which the tenancy was granted has expired or the period during which the tenant could be in possession has expired. If the tenancy has been terminated on the ground other than efflux of time, Section 4B of the Tenancy Act does not come in the way of the plaintiff and does not hit the termination of the defendant's tenancy by the plaintiff in any manner whatsoever. A brief reference to Section 8 to 27 of the Tenancy Act also shows that they protect a tenant in matters relating to rent payable by him to his landlord and protect the land against subdivision, subletting and assignment which in their turn protect the landlord who has a right to recover possession, prevent fragmentation and development of absentees landlordism. If therefore a landlord has a right to termination to his tenant's tenancy in order to recover its possession the said sections do not come in the way of the landlord. Chapters VI and VIII of the Tenancy Act apply so far as they or any part of them is applicable to any of the matters referred to in Sections mentioned above. In this view of the matter, it is clear that the tenant has no special protection at all against the termination of tenancy and recovery of possession by his landlord.
14. In that case also attention of the High Court was not drawn to Section 90 of the Tenancy Act and effect of Section 90 was not considered by His Lordship. So that decision also does not help appellant.
15. It is cardinal rule for the construction of the Act that it should be construed according to the intention expressed in the Act itself and the Court has to determine the intention as expressed by the words used.
16. As we saw above, Section 90 read with Schedule II of Tenancy Act clearly lays down that Section 84 of the Code do not apply to such tenancy. So we cannot uphold the contention of the appellant that in this case as per Section 84 of the Code only three months notice is necessary. IN all such cases, express provisions made in the statute prevails and it is very much clear that six months notice as required by Section 106 of T.P.Act is necessary to determine the tenancy. On this point, considering the amendment introduced by Section 90, Schedule II in the Tenancy Act, Division Bench of Bombay High Court in case of Manekji Edulji Mistry v. Maneksha Addeshir Irani reported in Vol.LXXV, Bombay Law Reporter page 609 as held as under:
"Section 84 - 1A of the Bombay Land Revenue Code 1979 effects an unqualified report of Section 84 of the Code in respect of the tenancies to which the provisions of the Bombay Tenancy and Agricultural Lands Act 1948 apply, and so far as the tenancies falling under Section 88B of the Act are concerned, Section 3 of the Act being made applicable to such tenancies, Section 106 of the Transfer of Properties Act, 1882, and not Section 84 of the Code apply to such tenancies."
17. Thus, it is very much clear that such tenancy is terminable by six months notice as per Section 106 T.P.Act is subject to contrary provisions made in any other law; but after amendment made in Section 90, provisions of Section 84 of the Code do not apply to such tenancy. So, there is no other contrary provision for termination of such leases and hence cases are governed by Section 106 T.P. Act.
18. In the above circumstances, suit notice, given in all suits, of three month's is illegal and invalid. So, finding of the learned trial Judge is quite legal and valid and there is no legal ground to interfere with it. From aforesaid provisions, it is very much clear that six month's notice as required by Section 106 T.P.Act is necessary to determine tenancy of respondent no.1 in each case. Hence, I answer point no.2 in affirmative."
13. The below Courts have considered decision of Division Bench of Bombay High Court in case of Manekji Edulji Mistry v. Maneksha Ardeshir Irani, reported in 1972 Vol.LXXV BLR 609, where Division Bench of Bombay High Court has come to conclusion that, "we are therefore of the view that Section 84I(A) of the code effects and unqualified repeal of Sections 83 and 84 of the code in respect of the tenancy to which provisions of the Act apply and so far as tenancies falling under Section 88B of the Act are concerned, Section 3 of the Act then made applicable to such tenancies Section 106 of the Transfer of Properties Act,1882 and not Section 84 of the Code applies to such tenancies." In said decision, earlier unreported decision of learned Single Judge (Gante,J.) of Bombay High Court in case of Gopal Krishna Dev v. Gulabrao Bapusaheb in Second Appeal No.494 of 1962 decided on 9.10.1969 has been overruled by Division Bench of Bombay High Court.
13.1 The aforesaid conclusion based on a long discussion on the issue which has been considered by Division Bench of Bombay High Court looking to facts in all four cases, which is relevant and important, therefore, same is quoted as under:
" Turning to the arguments advanced by the learned counsel on both the sides, it cannot, we think, be disputed, that a notice under S.34 of the Act is merely a declaration of intention. It is open to a landlord giving such a notice not to carry out his intention. The intention becomes effective conferring right on a landlord to obtain possession on termination of tenancy only on the day when the period specified in the notice expires. In other words, on the date of issuance of notice, the right to possession on termination of tenancy is an inchoate right. It becomes perfect only on the date on which the period in the notice expires. It is only on this latter date that the right to possession on termination of tenancy becomes vested in the landlord. The learned counsel Mr. Samant says that the right having been conferred on the landlord by S.34 of the Act, the right becomes vested in him on the date on which he issues notice. In support of this argument, he has drawn our attention to Janga Raoji v. Nasarat Jahan. We, however, do not find anything in that decision to support the learned counsel Mr. Samant when he says that s.34 confers the right to terminate the tenancy on the landlord and on the date on which he issues such a notice in accordance with the provisions of this section, the right to terminate the tenancy and obtain possession, becomes vested in him. In our opinion, the right to terminate the tenancy is a common law right and what s.34 of the Act has done is to put restrictions on that right so far as the landlord is concerned. It is no doubt true that in Janga Raoji's case, we have the following passage at p.7 of the report :
"Now, the true position as it seems to us is that a right or privilege was conferred upon a landlord under s.34 and that was to get possession from his protected tenant provided he required it bona fide for personal cultivation and provided he gave one year's notice. That is s.34(1). Having conferred that right and privilege upon the landlord, the Legislature hedged it in with various conditions."
We do not think that this passage enables the learned counsel Mr. Samant to contend that this decision lays down the proposition that s.34 confers a right to terminate tenancy on a landlord fro the first time. In fact, at p.5, the Court, which spoke through the then learned Chief Justice who delivered the judgment, while considering the scheme of the Act, says that the rights that the landlord possessed under the ordinary law were considerably curtailed by the Legislature enacting ss.14 and 34 of the Act. Their Lordships of the Supreme Court also, in Trimbak Damodhar v. Assaram, have observed at p.568 that the right of a landlord to obtain possession on termination of tenancy does not accrue to him merely on the giving of a notice. It is only after the period specified in the notice is over and the tenancy has in fact expired that the landlord gets a right to eject the tenant and obtain possession of the land. It is, therefore, extremely difficult to accept the argument of the learned counsel Mr. Samant that s.34 of the Act confers a right to terminate tenancy on the landlord, that the right to terminate the tenancy and obtain possession became vested in the appellants on October 25, 1955 - the date on which they have the notice terminating the tenancy, and that therefore the amending Act cannot render the notice ineffective.
Coming to the arguments of the learned counsel Mr. Abhyankar for the respondents, it cannot be doubted that the right to obtain possession on termination of tenancy accrued to the appellants on April 1, 1957 when the period specified in the notice expired on March 31, 1957. However, before this right accrued to the appellants, the amending Act No.13 of 1956 stepped in and the question is whether this amending Act deprived them of that right by requiring them to comply with any new statutory requirements as to a valid notice which has to be given for ejecting tenants. We have already pointed out that one of the major changes introduced by the amending Act is that before August 1, 1956 notice was required to be given under s.34 of one year duration and certain conditions were required to be satisfied before the landlord could terminate the tenancy. It was not necessary under s.34 to terminate such a tenancy on a particular date. But after August 1, 1956 if s.106 of the Transfer of Property act applied to these tenancies by virtue of s.3 of the Act which applied to the tenancies in respect of the lands belonging to the trust, not only the period required to be specified in the notice is reduced from one year to six months but even the tenancy is required to be terminated by the end of the year of the tenancy. However, if s.84 of the Code which is a local law contemplated in s.106 of the Transfer of Property Act applies, the period of notice is reduced to three months and the tenancy is required to be terminated by the end of 31st March of the year of tenancy. Whether s. 106 of the Transfer of Property Act applies or s. 84 of the Code applies, in either case the amending Act having provided for new requirements to be satisfied as to a valid notice which is to be given for ejecting tenants, the appellants must be held to have been deprived of the right under s.34 of the Act and, therefore, before they can claim the right to possession on termination of tenancy, they must satisfy the statutory requirements of the amending Act regarding valid notice. This view, it seems to us, is supported by the decisions in Durlabbhai v. Jhaverbhai, Jivabhai v. Chhagan and Trimbak Damodhar v. Assaram, cited above and relied upon by the learned counsel for the respondents.
In Durlabbhai v. Jhverbhai, the landlord had given a notice of termination of lease to his tenant on March 6, 1952 under s.34 of the Act on the ground that he needed the land bona fide for his personal cultivation. The notice expired on March 31, 1953 and thereafter the landlord filed an application for possession under s. 29 of the Act. The tenant contended that the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1952, which came into force on January 12, 1953, applied to the facts of the case, and therefore, as the landlord on the termination of the tenancy on March 31, 1953 had failed to satisfy the further conditions laid down in the amending Act before he could obtain possession, he was prevented from obtaining possession of the land. This Court held that as the tenancy had terminated and the right to obtain possession had accrued to the landlord after the coming into force of the amending Act, the amending Act applied and, therefore, the landlord, who had failed to satisfy the further conditions under the amending Act, was not entitled to possession. The Court also held that what the amending Act did in that case was to impose a new limitation upon the right of the landlord to obtain possession, and if the landlord failed to satisfy the Court at the date when the tenancy expired and he became entitled to possession that he was entitled to possession in law as the law then stood, he could not obtain relief from the Court. It is no doubt true that that was the case where the amending Act imposed further limitation on the right of the landlord to obtain possession on termination of the tenancy, while in the instant case almost all the limitations put on the right of the landlord are removed by the amending Act. But nevertheless the amending Act, in the instant case, provides for altogether different statutory requirements to be satisfied as regards valid notice which is necessary before the appellants become entitled to possession on termination of tenancy. The fact remains that on April 1, 1957 when the right to obtain possession on termination of tenancy accrued to the appellants, the law applicable, viz., the amending Act which came into force the respondents because of the new statutory requirements regarding valid notice which is necessary before the right to possession can accrue. The view taken by this Court in Durlabbhai v. Jhaverbhai was approved by their Lordships of the Supreme Court in Jivabhai v. Chhagan. The Supreme court held that s.34 (2-A) of the Act (inserted by the Bombay Tenancy and Agricultural Lands (Amendments) Act, 1952, which came into force on January 12, 1953) applied to all cases where notices might have been given but where the tenancy had not actually terminated before the coming into force of the amending Act of 1952. Their Lordships further held that for the application of the restriction under sub section (2-A) of s.34 of the Act on the right of the landlord to terminate the tenancy, the crucial date was not the date of notice but the date on which the tenancy stood terminated. It was on that date that the Court had to enforce the right of the landlord arising out of the notice of termination and, therefore, the Court had to see whether the termination was in accordance with the restriction imposed by sub section (2-A) on the date the right was to be enforced. In Trimbak Damodhar v. Asharam, the respondents who were the tenants of the appellant executed a rent note for five years in respect to certain lands in favour of the appellant on February 5, 1943. Before the expiration of the lease, the Act of 1939 was applied to the area where the lands were situated on April 11, 1946, and under Section 23(l)(b) of the Act, the stipulated five years period was extended to ten years, as behave in the instant case. During the subsistence of the tenancy, the Bombay Tenancy and Agricultural Lands Act, 1948, came into force and on March 11, 1952 the appellant gave notice to the respondents intimating to them that the period of the rent note executed by them would expire on March 31, 1953 and called upon them to deliver possession of the lands to him immediately thereafter. On January 12, 1953, the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1952 came into operation. On the question whether the appellant was entitled to eject the respondents without complying with the statutory requirements as to the valid notice prescribed by the amending Act of 1952, the Supreme Court held that before the lease in favour of the respondents could expire on March 31, 1953, by virtue of the proviso to Section 5 (l) of the amending Act, 1952, it got extended for ten years as it was not terminated by a valid notice as specified in the amending Act of 1952, and also that before the right accrued to the appellant to eject the respondents, the amending Act of 1952 stepped in and deprived him of the right as he had not complied with the statutory requirement as to a valid notice. It is no doubt true that in that case, the amending Act, which provided for compliance of the statutory requirement as to the valid notice, came into force while the contractual tenancy was subsisting and the notice was given by the landlord also when this contractual tenancy was subsisting. But we do not think that this would make any different in the instant case, because in the instant case also the amending Act came into force while the protected tenancy of unlimited duration was subsisting and the notice, Ex.34, was issued by the appellants also when this protected tenancy of unlimited duration was subsisting. The fact, however, remains that in both these cases after the notices terminating the respective tenancies were given and before the right to possession on termination of these tenancies could accrue to the respective landlords, the respective amending Acts stepped in requiring the landlords to comply with the new statutory requirements as to a valid notice prescribed by the respective amending Acts. We, therefore, think that this decision of the Supreme Court also supports the respondents. We, therefore, hold that the amending Act having come into force on August 1, 1956 before the right to possession on termination of tenancy could accrue to the appellants and the amending Act having provided for the requirements to be satisfied as to a valid notice before the appellants could successfully eject the respondents, the notice, Exh.34, already given by them to the respondents became ineffective.
The learned counsel Mr. Samant also relied upon s.7(b) of the Bombay General Clauses Act,1904, and contended that the issuance of notice, Exh.34, being an act duly done before the amending Act came into force on August 1, 1956, the amending Act which repealed s.34 so far as such tenancies are concerned, would not affect the notice. In support of this argument, he relied upon The Queen v. Justices of the West Riding of Yorkshire. It is, however, argued by the learned counsel Mr.Abhankar for the respondents that the act duly done within the meaning of that expression used in s. 7(b) of the Bombay General Clauses Act,1904, must be a completed act or a completed transaction, and inasmuch as the act of issuing notice terminating tenancy does not confer any right on a landlord issuing the notice until the period specified in the notice expired and the tenancy is in fact terminated, such an act cannot be considered as a completed act or a completed transaction. The learned counsel Mr.Abhayankar also contended that an act duly done must be an act which brings into existence an enforceable right. He also drew our attention to Lala Soni Ram v. Kanhaiya Lal, where their Lordships of the Privy Council have held that an acknowledgment of liability only extends the period of limitation within which a suit must be brought and does not confer title and therefore, is not a thing done within the meaning of s.6 of the General Clauses Act. In our view, however, it is not necessary to discuss in detail the question regarding the application of s.7(b) of the Bombay General Clauses Act,1904, raised by the learned counsel Mr.Samant. Section 7(b) of the Bombay General Clauses Act,1904, so far as it is relevant here, provides thus :
"Where this Act, or any Bombay Act or Maharashtra Act, made after the commencement of this Act, repeals any enactments hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not--
(a) ... ... ...
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or
(c) ... ... ...
(d) ... ... ...
(e) ... ... ..."
It is, therefore, clear that the repeal does not affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder, unless a different intention appears. In our judgment, in view of the discussion we have made above, the amending act, which provides for statutory requirements to be fulfilled as to a valid notice before a trust becomes entitled to possession of the lands from its tenant, indicates different intention and, therefore, it does not affect anything duly done before the commencement of the amending Act viz. the issuance of notice, Exh.34. The appellants, therefore, cannot take the assistance of the provisions of s.7(b) of the Bombay General Clauses Act,1904.
The learned counsel Mr.Samant also attempted to rely upon the provisions of Sub.s
(c) of s.7 of the Bombay General Clauses Act,1904. He argued that s.24 of the Act conferred the right to terminate tenancy and obtained possession on the landlord and therefore, on October,25, 1955 when the appellants gave notice to the respondents, the right to terminate tenancy and obtained possession accrued to them and therefore, the same is saved by the provisions of s.7(c) of the Bombay General Clauses Act,1904. We have already discussed the first of the argument of the learned counsel and we have found that a notice issued under s. 34 of the Act does not confer any right on the landlord to terminate the tenancy and obtained possession and such a right accrues to him only when the tenancy is in fact terminated on the expiry of the period specified in the notice. In the instant case, therefore, the right to terminate the tenancy and obtained possession accrued to the appellants only on April 1, 1957 on the expiry of the period of one year specified in the notice on March 31, 1957. Section 7(b) of the Bombay General Clauses Act,1904, therefore, cannot help the appellants.
The question then arises that if after the amending Act came into force on August 1, 1956, a fresh notice is necessary complying with the statutory requirements of the amending Act regarding valid notice, what is the law under which such a notice is to be given by a pubic trust coming under s. 88B(1)(b) of the Act, because s.106 of the Transfer of Property Act,1882, which is made applicable by virtue of s.3 of the Act which is one of the sections mentioned in s.88B(1) of the Act, applies only in the absence of a contract or local law or usage to the country ? In the instant case, admittedly there is no question of any contract or usage. The argument advanced on behalf of the appellants is that in the instant case, the local law viz. the Bombay Land Revenue Code,1879, being available , s.84 of the Code would apply. On behalf of the respondents, however, it is contended that the amending Act having amended the Bombay Land Revenue Code by enacting s. 84-IA which repeals SS.83 and 84 of the Code, the provisions of s.84 of the Code are not available to the landlord and, therefore, it was incumbent on the appellants to give notice under s.106 of the Transfer of Property Act terminating the tenancy by six months' notice expiring with the end of the year of the tenancy. The question for consideration, therefore, is whether s.84 of the Code or s.106 of the Transfer of Property Act applies to the tenancies governed by s.88B(1)(b) of the Act.
The amending Act along with other provisions also introduced for the first time s.90 of the Act which says that the enactments specified in Schedule II shall be amended to the extent mentioned in the fourth column thereof. Now Schedule II column 4, so far as it is relevant here, runs thus :
Year 1 No. 2 Short Title 3 Extent of Amendment.4 5 1879
V The Bombay Land Revenue Code,1879 Bom.LXVII of 1948.(1)
After section 84 the following section shall be inserted, namely-
"84-I-A. The provisions of sections83 and 84 shall cease to apply to tenancies to which the provisions of the Bombay Tenancy and Agricultural Lands Act,1948, apply."
Sections 83 and 84 not to apply to certain tenancies.
Now, on behalf of the appellants Mr.Samant contended that s.84-I-A effects a qualified repeal of ss.83 and 84 of the Code. His argument is that SS.83 and 84 of the Code provide for duration and termination of agricultural tenancies. When, therefore, s.84-I-A says that the provisions of SS.83 and 84 of the Code shall cease to apply to tenancies to which the provisions of the Act apply, all that it means is that the provisions of SS.83 and 84 of the Code cease to apply to tenancies to which the provisions regarding duration and termination of tenancies of the Act apply. Now, according to the learned counsel, after the amending Act came into force, so far as the tenancies other than those governed by s.88B(1)(b) of the Act are concerned, there being a provision made in the Act for duration and termination of tenancies, SS.83 and 84 of the Code shall cease to apply because there is no provision in the Act regarding duration and termination of tenancies applicable to such tenancies. It is in this sense that the learned counsel says that s.84-I-A of the Code effects qualified repeal of the of SS.83 and 84 of the Code. On behalf of the respondents, however, it is contended that s.84-I-A effects unqualified repeal, inasmuch as SS.83 and 84 of the Code cease to apply not only to the tenancies other than those governed by that section. The argument is that so far as the first category of the tenancies is concerned, the Act already provides for duration and termination of such tenancies. As regards the second category of tenancies which come under s.88B(1)(b) of the Act, s.106 of the Transfer of Property Act provides for duration and termination of such tenancies because if the interpretation regarding unqualified repeal is accepted; ss.83 and 84 of the Code will cease to apply and, therefore, there would no local law which would be available for terminating such tenancies. There can be no dispute regarding the position that s.3 of the Act being made applicable to such tenancies, s.106 of the Transfer of Property Act regarding duration and termination of tenancies become the provisions of the Act. The learned counsel for the respondents, therefore, argued that even for the tenancies coming under s.88B of the Act, there is a provision in the Act itself regarding duration and termination of such tenancies, inasmuch as s.106 of the Transfer of Property Act forms part of the Act.
Now, s.84-I-A of the Code, regarding the interpretation of which there is a controversy between the parties, reads thus :
84-I-A. The provisions of sections 83 and 84 shall cease to apply to tenancies to which the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948, apply."
The plain meaning of this section is that the tenancies to which the provisions of the Act apply, the provisions of SS.83 and 84 of the Code shall cease to apply. We have already pointed out that s.88B(1) of the Act makes certain provisions of the Act applicable to the tenancies governed by s.88B(1) of the Act. This provisions are contained in SS.3,4B,8,9,9A,9B,9C,10,10A,11, 13 and 27 and the provisions of Chapters VI and VII in so far as the provisions of these Chapters are applicable to any of the matters mentioned in the said sections. If, therefore, these provisions are made applicable to the tenancies governed by s.88B(1) of the Act, considering the plain meaning of the provisions of s.84-I-A, of the Code, it follows that the provisions of the Act apply to these tenancies and, therefore, the provisions of ss.83 and 84 of the Code will cease to apply to them. It is true, as the learned counsel Mr. Samant has pointed out, that if this interpretation is accepted, it may not create any difficulty in the application of s.83 of the Code to the tenancies other than those coming under s.88B(I) of the Act, because after the amending Act we have s.2(10A) introduced by the amending Act defining "Permanent tenant" and cl.(b) of the section embodies substantially the gist of s.83 of the Code. Likewise, the amending Act has also made the necessary changes in s. 70(b) of the Act. However so far as the tenancies governed by s. 88B (l) are concerned, if after August 1, 1956 as a result of s. 84 IA of the Code s. 83 of that Code ceases to apply, the tenants of such tenancies, if they want to claim the status of a permanent tenant, would be deprived of the benefit of the presumption contained in s. 83 of the Code. This contention is not without any substance. But we do not think that on that account the interpretation regarding qualified repeal can become more acceptable. If speculation is permissible, it is possible to say, as the learned counsel Mr. Kotwal, appearing on behalf of the appellants in the companion Letters Patent Appeal No. 72 of 1969, in which the same point arises for consideration, has argued, that the whole protection given by the Act being withdrawn and thus the status of irremovability being taken away, these tenancies are now governed by the Transfer of Property Act, 1882 and, therefore, the Legislature may have intended to deprive such tenants of the benefit of presumption contained in s. 83 of the Code. Of course, even though s. 83 of the Code ceases to apply to such tenancies, a tenant claiming the status of a permanent tenant after the coming into force of the amending Act can go to a civil court and prove his status of a permanent tenant without the aid of s. 83 of the Code. The only effect, therefore, of this interpretation regarding unqualified repeal would be to deprive tenants claiming the status of a permanent tenant of the benefit of presumption contained in s. 83 of the Code. The learned counsel Mr. Kotwal has also argued that though s. 2 of the Act which defined various words and expressions including the expression "permanent tenant" is not made applicable specifically to the tenancies governed by s. 88 B (l) of the Act, inasmuch as that section does not find its place in s. 88B(l), still the definition of words and expressions contained in s. 2 of the Act being only a dictionary of the words and expressions provided by the Act in order to understand those words and expressions used in the various [provisions of the Act, a tenant of a tenancy coming under s. 88B(l) of the Act, if he wants to claim the status of a permanent tenant, can take the advantage of the definition of a permanent tenant in s. 2 (10A) of the Act and thus he would be able to show that he is a permanent tenant by the Act and thus he would be able to show that he is a permanent tenant by establishing that the commencement or duration of his tenancy can not satisfactorily be proved by reason of antiquity. We are not impressed by this argument because in the first place s. 88B(l) of the Act does not make the provisions of s. 2 applicable to the tenancies governed by that section. Secondly, if s. 2 of the Act is made applicable to the tenancies governed by s. 88B(l) of the Act, it would result in confusion, because in such an event it would be difficult to determine the forum for deciding the disputes between the landlords and tenants of such tenancies in respect of the matters which are outside the scope of the various sections mentioned in s. 88B(l) of the Act and made applicable to the tenancies governed by that section. It would also result in adding various other sections such as s. 4 and s. 70(b) to the list of sections mentioned in s. 88B(l) of the Act. We, are, therefore, unable to accept this argument advanced by the learned counsel Mr. Kotwal. Nevertheless, we are inclined to hold that though the interpretation regarding unqualified repeal may result in a conceivable case in deprivation of the benefit of s. 83 of the Code, still this interpretation appears to us to be more acceptable. As regards s. 84 of the Code, obviously this interpretation does not present any difficulty because s. 106 of the Transfer of Property Act being incorporated in the Act by virtue of s. 3 which is made applicable to the tenancies governed by s. 88B(l) of the Act, even if ss. 83 and 84 of the Code cease to apply such tenancies, s. 106 of the Transfer of Property Act would apply in the matters of duration and termination of such tenancies.
The learned counsel Mr. Kotwal has also drawn our attention to the provisions of s. 88 of the Act and has argued that the Legislature has made a distinction between the tenancies in respect of the lands governed by s. 88(l)(a) and (b) of the Act and those in respect of the tenancies governed by s. 88B(l) of the Act, in that, ss. 83 and 84 of the Code will apply to the tenancies governed by s. 88(l) (a) and (b) of the Act, while they cease to apply to the tenancies governed by s. 88B(l) of the Act, because so far as the tenancies governed by s. 88 are concerned, nothing in the foregoing provisions (viz. From ss 1 to 87A) of the Act is to apply to such tenancies, while s. 88B says that nothing in the foregoing provisions (viz. From ss. 1 to 88A) except ss. 3, 4B, 8, 9 9A, 9B, 9C, 10, 10A, 11, 13 and 27 and Chapters VI and VIII of the Act is to apply to the tenancies governed by that section. The result is that in the absence of application of any provisions of the Act to the tenancies governed by s. 88 of the Act, ss 83 and 84 of the Code would apply, while to the tenancies governed by s. 88B of the Act the provisions of the Act including s. 3 being made applicable ss. 83 and 84 of the Code shall cease to apply as a result of the provisions of s. 84-IA of the Code. If the Legislature wanted to apply ss. 83 and 84 of the Code even to the tenancies coming under s. 88B of the Act, they could have done so either by omitting s. 3 of the Act being made applicable to such tenancies or by suitably drafting s. 84-IA of the Code. But the Legislature has done neither and has deliberately maintained the distinction between the tenancies governed by s. 88(l)(a) and (b) and those governed by s. 88B(l) of the Act. We think that this argument also to some extent lends support to the interpretation of unqualified repeal sought to be put on s. 84-IA of the Code.
Turning to the interpretation of qualified repeal attempted by the learned counsel Mr. Samant, he has first contended that the words provisions of the Bombay Tenancy and Agricultural Lands Act, 1948", used in s. 84-IA of the Code must mean the provisions of that Act regarding duration and termination of tenancies, because the provisions of ss. 83 and 84 of the Code relate to the duration and termination of agricultural tenancies. Obviously, if this interpretation is accepted, we will have to add the words "regarding duration and termination of tenancies" in the clauses "the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948, apply"
after the figure "1948" and before the word "apply", in which case it would be impossible to give effect to the plain, grammatical and literal meaning of the provisions of s. 84-IA of the Code. Secondly, such an interpretation, in our opinion, would reduce s. 84-IA of the Code to an absurdity so far as the tenancies coming under s. 88B of the Act are concerned, because in such a case s. 106 of the Transfer of Property Act being made applicable to such tenancies and in view of the provisions of ss. 83 and 84 shall cease to apply to such tenancies, we will have to apply the local law viz. ss. 83 and 84 of the Code. In other words, if the interpretation put forward by the learned counsel is accepted, so far as the tenancies governed by s. 88B of the Act are concerned, s. 84-IA of the Code would mean that the provisions of ss. 83 and 84 shall cease to apply to tenancies to which the provisions of ss. 83 and 84 apply. Thirdly, if the Legislature had intended that ss. 83 and 84 of the Code shall continue to apply to the tenancies falling under s. 88B of the Act, the result would have been achieved simply by omitting the application of s. 106 of the Transfer of Property Act, because in such a case there being no provisions regarding duration and termination of tenancies contained in the Act, ss. 83 and 84 of the Code would have been applicable.
The learned counsel Mr. Samant in support of his interpretation has also drawn attention an unreported decision of a single Judge of this Court in Ahmed, Manulal Daruwalla V. Shri Deosthan Chinchwad. That was also a case of a tenancy governed by s. 88B(l)(b) of the Act. The tenancy was terminated by a notice dated October, 26, 1957 with effect from the end of March 31, 1958. The notice was served on the tenant on November 8, 1957. It was contended on behalf of the tenant that in view of the repeal of ss. 83 and 84 of the Code by the Act and in view of the provisions of s. 3 of the said Act specifying that the provisions of Chapter V of the Transfer of Property Act, 1882, shall in so far as they are not inconsistent with the provisions of the Act apply to the tenancies and leases of lands to which the Act applies, the duration of the notice of termination of tenancy should be six months as provided under s. 106 of the Transfer of Property Act. The learned Judge, however, took the view that s. 84-IA of the Code did not effect an unqualified repeal of the provisions of ss. 83 and 84 of the Code. In his opinion, the lands belonging to the trust and coming under s. 88B of the Act were exempt from certain provisions of the Act including those relating to the termination and duration of tenancies and, therefore, the provisions of ss. 83 and 84 of the Code did not cease to apply to such lands and that section provided that the provisions of the Transfer of Property Act in so far as they were not inconsistent with the Tenancy Act would apply to all tenancies to which the Tenancy Act applied and therefore, the provisions of s. 106 of the Transfer of Property Act must apply and hence a six months notice of termination of tenancy was necessary. The answer given by the learned Judge to this argument was that the provisions of s. 106 of the Transfer of Property Act applied only in the absence of a contract or local law or usage to the contrary. In other words, agricultural tenancies which were governed by the Transfer of Property Act would be terminated in the manner provided under s. 106 unless there was a contract, local law or usage to the contrary. In this State the Land Revenue Code being a local law providing to the contrary in the matter of the termination of tenancies, by the terms of s. 106 itself the period of termination of tenancies would have to be as provided by the local law, that is to say, s. 84 of the Code, and not by s. 106. In our opinion, this view is clearly against the plain, grammatical and literal meaning of the provisions of s. 84-IA of the Code and does not give full effect to the words "the provisions of section 83 and 84 shall cease to apply" used in that section. We have already given our reasons why the interpretation regarding qualified repeal is not possible to be accepted. We, therefore, with respect, are unable to agree with this view. This view was followed in another decision of a single Judge in Shri Gopal Krishna Dev Vs. Gulabrao Bapusaheb. It is this decision which is the subject matter of the companion Letters Patent Appeal No. 72 of 1969. The learned Judge appears to have accepted the view expressed in the aforesaid decision for the same reason which he has reproduced in his judgment. The last decision is also an unreported one decided by a single Judge in Shri Dagadu Bala Aher v. The Charity Commissioner. In that case also, contention regarding the application of s. 106 of the Transfer of Property Act was raised and the learned Judge observed at the end of the judgment that since s. 106 of the Transfer of Property Act itself created an exception in favour of the local law, the contention must fail. We do not find any reasons in the judgment for the view expressed by the learned Judge in favour of the application of s. 84 of the Code to the tenancies governed by s. 88B of the Act. The learned counsel Mr. Kotwal on the other hand, has relied upon another unreported decision of a single Judge of this Court in Dhondi Genu Bhoskar V. Nagesh Dattatraya Ayachit in support of his contention that s. 84-IA of the Code effects an unqualified repeal of ss. 83 and 84 of the Code. In this case, after discussing how s. 106 of the Transfer of Property Act becomes a part of the provisions of the Act, it is observed thus:
"....If the view I have taken above is correct, the clause 'to which the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948, apply' in section 84-IA of the Code, would necessarily mean the Act including the provisions of section 106 of the Transfer of Property Act, 1882, so far as they are not inconsistent with its provisions, and in that case these provisions (of section 106) being made applicable to the tenancies in respect of the lands belonging to the trust for public religious worship, by virtue of the provisions of section 88B read with section 3 of the Act, sections 83 and 84 of the Bombay Land Revenue Code, 1879, will cease to apply to such tenancies and those tenancies will have to be terminated by notice to quit under section 106 of the Transfer of Property Act, 1882. It seems to me, therefore, that s. 3 read with s. 88B of the Act effects repeal of ss. 83 and 84 of the Code so far as the tenancies in respect of the lands belonging to the trust are concerned.
It is true that section 106 applied in the absence of a contract or local law or usage to the contrary. Admittedly, there is no question of any contract or local usage to the contrary in this case. As regards local law, if sections 83 and 84 of the Code cease to apply, there is no other local law except the Act itself and in the view discussed above, the local law viz. The Act, having provided for termination and duration of such tenancies, there is no question of any local law being to the contrary".
Thus, it is held that after coming into force of the amending Act, ss. 83 and 84 of the Code cease to apply to the tenancies governed by s. 88B of the Act. For the reasons we have already discussed, we think that the view quoted above is correct.
The learned counsel Mr. Samant has then argued that the word "provisions" in s. 84-IA of the Code where it occurs for the second time means "all provisions". Alternatively, he has argued that s. 1 of the Act not being made applicable to the tenancies falling under s. 88B of the Act, the Act itself does not apply and, therefore, ss. 83 and 84 of the Code apply to these tenancies. We do not think that there is any substance in either of these contentions. As regards the first, we do not see any reason why the word "all" should be added to s. 84-IA of the Code in between the words "the provisions of section 83 and 84 shall cease to apply to tenancies to which" and the words "the provisions of the Bombay tenancy and Agricultural Lands Act, 1948, apply". If without adding any word the provisions of a particular enactment appear to be quite clear, we would not be justified in adding any such word which the Legislature deliberately omitted. Regarding the second contention, it is enough to state that though the whole of the Act does not apply, s. 88B says that the provisions specified in it do apply to such tenancies. It is, therefore, impossible to accept the contentions that because s. 1 of the Act is not made applicable to such tenancies, none of the provisions of the Act apply to such tenancies.
Lastly, the learned counsel has argued that if there is any doubt regarding the application of s. 84 of the Code to the tenancies governed by s. 88B of the Act, the interpretation should be in favour of the public trust, inasmuch as the object of s. 88B of the Act is to withdraw the protection given to the tenants of the public trust and to confer corresponding benefit on such trust. In the first place, we do not think that the interpretation of s. 84-IA of the Code is really a matter of doubt. Secondly, the interpretation we have accepted enables to trustees of a public trust to terminate tenancies by giving only six months notice under s. 106 of the Transfer of Property Act instead of three months notice under s. 84 of the Code. It is no doubt true that there may be a few cases like the present one in which the trustees have already issued notices under s. 34 of the Act terminating the tenancies will have to give fresh notices under s. 106 of the Transfer of Property Act. But, in our opinion, individual hardship in such cases is no answer to the interpretation which appeared to us to be quite clear.
We are, therefore, of the view that s. 84-IA of the Code effects an unqualified repeal of ss. 83 and 84 of the Code in respect to the tenancies to which the provisions of the Act apply, and so far as the tenancies falling under s. 88B of the Act are concerned, s. 3 of the Act being made applicable to such tenancies s. 106 of the Transfer of Property Act, 1882, and not s. 84 of the Code applies to such tenancies."
14. In view of aforesaid observations made by Division Bench of this Court and while considering reasoning given by below Courts, finding given by below Courts that provisions of Section 84 of Code do not apply to tenancies, to which provisions of Tenancy Act apply in light of Section 90, Schedule II of Tenancy Act and considering amendment made as per Section-84I-A in amending Act of 1.8.1956 in Bombay Land Revenue Code which authorizes landlord to terminate tenancy or tenancy can be terminated by six months' notice as provided under Section 106 of Transfer of Properties Act. The effect of amending Act of 1.8.1956 in Bombay Land Revenue Code and considering Section-3 of Tenancy Act, the decision which has been given by below Courts is perfectly deciding correct legal position, which aspect of amending Act of 1.8.1956 in Bombay Land Revenue Code has not been examined by Division Bench of this Court in a decision Arya Satyadev Dhanjibhai & Anr. v. Bhailalbhai Ishwarbhai, reported in 1972 (13) GLR 398 and another in case of Motibhai Nathabhai v. Ramchandra Martandray Vahivatdar Trustee of Ramji Mandir, Baroda, reported in 1974 (15) GLR 18. This Court has not decided correct legal position as ignored amending Act,1956 84I-A of Bombay Land Revenue Code. Therefore, below Courts have rightly not considered as binding decisions of this Court including decision of learned Single Judge (J.B.Mehta,J.), as referred above. That aspect has been properly and rightly considered by below Courts and rightly come to conclusion that aforesaid both decisions though binding to subordinate Courts but, are not applicable to facts of present appeals where amending Act 1.8.1956 in Bombay Land Revenue Code as well as Section-3 of Tenancy Act and decision of Division Bench of Bombay High Court has squarely decided pure legal issue. The decision of learned Single Judge (J.B.Mehta,J.) (supra) is also not applicable to facts of this case because in all three decisions of this Court, as referred above, amending provisions of Section 84I-A of Bombay Land Revenue Code (1.8.1956) was not considered by answering Section 84I (A) where Sections 83 and 84 of Code not to apply to certain tenancies and shall cease to apply to tenancy to which provisions of Tenancy Act or as the case may be of Tenancy Act apply. Therefore, contentions raised by learned advocate Mr.Divetia relying upon aforesaid three decisions of this Court cannot be accepted and according to my opinion, reasoning given by below Courts considering amending Act 1.8.1956 of Bombay Land Revenue Code, Section-3 of Tenancy Act and Section 84I (A) of Code, notice issued by landlord plaintiffs requires six months' period and not three months' period. Therefore, below Courts have rightly held that notice of terminating tenancy of defendants in each case, is not legal and valid. Accordingly, suits filed by plaintiffs has been rightly dismissed and appellate Court has rightly confirmed the same. For that, no error is committed by below Courts. Therefore, substantial question of law raised in these four appeals is answered that notice issued by plaintiffs under Section 84 of Code is not legal and valid and Section 106 of Transfer of Properties Act is applicable and notice under that Section is necessary and below Courts have rightly considered decision of Division Bench of Bombay High Court. For that, no error is committed which requires interference by this Court. Therefore, there is no substance in present four appeals and accordingly, four appeals are dismissed. Notice is discharged. Interim relief, if any, granted earlier stands vacated. No order as to costs.
(H.K.RATHOD,J.) (vipul) Top