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Mr. Padhye says that these observations of the learned Chief Justice would indicate that the right that the defendant got under the Tenancy Acts of 1939 and 1948 was not a vested right, and if that was so, the provisions of Section 88 could apply retrospectively. It is true that the judgment of the learned Chief Justice shows that the Full Bench was inclined to accept the contention that the rights which a tenant gets under the Tenancy Act are not vested rights. But as the judgment itself shows, the Full Bench did "not Hunk it necessary expressly to decide that point, in view of the interpretation that the Full Bench put on the proviso to b. 43(c) of the Tenancy Act as amended in 1956. In our opinion, that question also need not be decided in the present case because, in our judgment, Section 88 of the Tenancy Act which in terms exempts lands falling within the limits of Greater Bombay from the provisions of Sections 1 to 87 of the Act, constitutes an express provision as contemplated under Section 89(2)(6) of the Act. In Sakharam Narayan v. Manikchand Motichand (1954) 57 Bom. L.R. 223 a Division Bench of this Court held that a suit by a landlord to recover possession of Agricultural lands situated within the limits of a Municipal Corporation. which lands are excluded from the operation of The Bombay Tenancy and Agricultural Lands Act, 1948, can lie in a Civil Court, even though the defendant sets up the plea that he is a protected tenant under the Bombay Tenancy Act, 1939. The facts of that case may be briefly stated. The plaintiffs there had filed a suit in the Court of the Joint Civil Judge, Junior Division, Poona, against four defendants, for a decree for possession of certain agricultural lands which were within the limits of the Poona Municipal Corporation. The defendants contended inter alia that the Civil Court had no jurisdiction to try the suit, as it was governed by the provisions of the Bombay Tenancy Act. That contention was negatived by the trial Court as well as by the appellate Court, and this Court upheld their decision on the ground that the effect of Section 88, Sub-section (1), Clause (c), of the Tenancy Act of 1948 was to excluded from the operation of Sections 1 to 87 of the Act those areas which are specified in that sub-section and therefore, to land situate in the area specified in the sub-section, even if it be used for agricultural purposes, the provisions of the Act do not apply and the lights of the parties to a dispute relating to that land are govern-d by the ordinary law of the land and are unaffected by the provisions of the Tenancy Act of 1948,. It is true that this case was concerned with the 'question of jurisdiction of the ordinary Civil Court to try the suit. But that necessarily led to the consideration of the question raised by the defendants in that case, viz., whether they were entitled to set up their rights as protected tenants in respect of the lands so as to defeat the plaintiff's claim for possession of the lands which are excluded by Section 88 from the operation of the Act, in other words, whether the defendants were entitled to set up rights and privileges of the protected tenant acquired under the Act of 1939 in respect of lands which were no longer governed by the provisions of the Tenancy Act of 1948. On this point, Mr. Justice Shah, who delivered the judgment in that case, observed as follows (p. 225) :

10. Then Mr. Joseph contended that even assuming that Sections 1 to 87 of the Tenancy Act of 1948 do not apply to the lands in suit by reason of Section 88(1)(c), defendant's protected tenancy rights which arose under the Tenancy Act of 1939 cannot be affected because of the provisions of Section 89 of the Tenancy Act of 1948. It is contended that Section 89 of the Act retains three sections of the Tenancy Act of 1939, though the other provisions of that Act are repealed. If that be so, Mr. Joseph contends, his client, by virtue of the provisions of Section 3A of the Tenancy Act of 1939 and the Explanation to that section, would be deemed to be a protected tenant and that right cannot be adversely affected by anything in the provisions of Section 88. We are not persuaded to uphold this argument also. It is not disputed that if Sections 1 to 87 do not apply to the lands in suit, Section 2(14), which defines a protected tenant, as well as Section 31 would not have any operation so far as the suit lands are concerned. Though under Section 3A of the Tenancy Act of 1939 a tenant is to be deemed to be a protected tenant from November 8, 1947, he can only be recognised to be a protected tenant by virtue of Section 31 of the Tenancy Act of 1948. If Section 31 cannot apply, we fail to see how the rights of the defendant can be regarded as anything but illusory, even assuming that Section 3A of the Tenancy Act of 1939 stands independently of the provisions of the Tenancy Act of 1948. But, as already pointed out, Section 89(1) of the Tenancy Act of 1948 while repealing the Tenancy Act of 1939 has preserved three sections of the old Act, but the rights arising under those three sections can only be rendered effective by virtue of the other provisions of the Tenancy Act of 1948. We are not, therefore, prepared to accept the argument of Mr. Joseph that his client is entitled to defeat the plaintiffs' suit by virtue of his right as a protected tenant under the Tenancy Act of 1939 even though Sections 1 to 87 of the Tenancy Act of 1948 cease to have any operation by virtue of Section 88(1)(c) of the Act.

11. Then Mr. Joseph has raised a further contention on the basis of the amending Tenancy Act 13 of 1956. Now, Act 13 of 1956 came into force on August 1, 1956. Under that Act, the original Section 88 was considerably modified and the relevant section for our present purpose in the amending Act is Section 88(b). By virtue of the present Section 88(b), Sections 1 to 87 of even the amending Act would not apply to any area which the State Government may from time to time by notification in the Official Gazette specify as reserved for non-agricultural or industrial development. This Act came into force on August 1, 1956, and on that very day, in exercise of the powers conferred by Clause (b) of Section 88 the State Government issued a notification No. TNC 5156/101965-P specifying areas within the limits of Greater Bombay as being reserved for non-agricultural and industrial development. There" is no dispute that on August 1, 1956, the village of Paspoli was within the limits of Greater Bombay. If that be so, by virtue of this notification the provisions of Sections 1 to 87 would continue to cease 1o have any operation with regard to the lands in suit. Mr. Joseph's argument is that a notification issued by the State Government could not destroy the protected tenancy rights of his client, because such a notification cannot be given retrospective effect. In support of his argument, Mr. Joseph has relied on the case of Tamboli Boghalal v. Mohanlal Chunilal (1958) 59 Bom. L.R. 274. where Mr. Justice Vyas took the view that the tenancy rights created in favour of a tenant before the coming into force of the Bombay Tenancy and Agricultural Lands Act, 1948, and enjoyed by a tenant after the Act came into force, are not affected as the result of a notification issued by the State Government under Section 88(1)(d) of the Tenancy Act of 1948, specifying the lands as reserved for urban, non-agricultural or industrial development. According to this decision, although competence is given to the State Government under Section 88(1)(d) of the Tenancy Act of 1948 to issue a notification reserving certain lands for urban, non-agricultural or industrial development, the said competence is prospective and not restrospective and it does not extend to the taking away of the already vested valuable rights of the tenants. Now, it must be observed in the first instance that this decision is based on the view that the rights acquired by the tenant under the Tenancy Act are vested rights. That view cannot now be regarded as above question in view of the observations of the learned Chief Justice in the Full Bench case of Maganhhm Jethabhai Patel v. Somabhai, to which we have already made a reference, though the Full Bench has refrained from giving its final opinion on that point. In the case with which Mr. Justice Vyas was dealing, the lands were situated in the former State of Baroda which merged in the Bombay State on August 1, 1949. On the same day the Tenancy Act came into force in that area and the tenants became protected tenants from August 1, 1950, which was the date mentioned in the provisions of the Tenancy Act, as were made applicable to Baroda State, instead of November 8, 1947. Sixteen months thereafter, on April 24, 1951, the State Government issued a notification under Section 88(1)(d) reserving an area within the limits of the Municipal Borough of Baroda City and within a distance of two miles of the limits of the said Borough for urban, non-agricultural or industrial development. Mr. Justice Vyas held that as this area came to be within the exemption by virtue of the notification issued by Government, the notification could not be given any retrospective effect. In the present case, according to our view, from April 15, 1950, the defendant ceased to have any effective tenancy rights because as the village in which the suit land is situate came within the limits of Greater Bombay, the provisions of Sections 1 to 87 ceased to apply to the suit land. Till August 1, 1956, the original Section 88(1)(c) continued and that section came to be replaced by Section 88(b) of the Tenancy Act of 1948 as amended by Act 13 of 1956 and on the very day that the new Act came into operation on August 1, 1956, the Government issued a notification continuing the exemption in respect of the lands in Greater Bombay from the operation of Sections 1 to 87 of the Tenancy Act of 1948, as amended in 1956. It cannot, therefore, be said that the notification issued by the State Government on August 1, 1956, introduced any new exemption. All that it did was that it continued the exemption which was already in force under Section 88(1)(c) since April 15, 1950, so far as the suit land is concerned. "We are not, therefore, prepared to accept the argument that the notification issued by the State Government on August 1, 1956, cannot affect the defendant's rights.

The short argument of Mr. Joseph is that the defendant had acquired his right as a protected tenant and continued to be such a tenant till at any rate April 15, 1950, and that right would be saved by reason of the proviso to Section 43C. In support of this argument Mr. Joseph relied on the Pull Bench case, already referred to, Maganbhai Jethabhai Patel v. Somabhai. Now, the Full Bench in that case was concerned with certain lands situated in the Borough Municipality of Baroda and by virtue of the amending Act of 1952 the lands in that case came to be excluded from the operation of the Tenancy Act of 1948 from January 1953. The landlord after giving notice to the tenant filed a suit for possession before the Mamlatdar and his suit was decreed. A revision was filed by the tenant before the Prant Officer. Pending the revision application, the Tenancy Act of 1948 was amended by the Amending Act, 1955 (Act 13 of 1956), and the Prant Officer set aside the order of the Mamlatdar relying on the proviso to Section 43C. On the question whether the effect of the proviso to Section 43C was such that notwithstanding the decree passed by the Mamlatdar, the tenant could claim protection under the Act of 1948 and resist the landlord's suit for eviction, it was held by the Full Bench that the right of the tenant under the Tenancy Act of 1948 was, by a legal fiction introduced by the proviso to Section 43C, continued and was not affected by the Amending Act of 1952 and that the proviso to Section 43C was applicable to the case as there was no final judgment against the opponent in the sense that the judgment given by the Mamlatdar was subject to revision, and the revisional Court was bound to take notice of the change in law effected by the proviso. On facts, the present case is distinguishable from the case which the Full Bench was considering. But before I deal with that distinction, it is necessary to note that even the legal fiction introduced by the proviso to Section 43C does not appear to be an absolute fiction which would save the rights of a tenant in every case. That seems to be clear from the subsequent decision of another Full Bench of this Court in Dhundi-raj Jayaram v. Dhondu Anaji F.B. where it was held that the legal fiction introduced by the proviso to Section 430 did not permit the tenant to claim rights which he did not have at the date when a litigation had finally ended by a decree for possession passed by a competent Court against him. In that case, the landlord of certain lands situated in a Municipal Borough had filed a suit in a Civil Court for ejectment against his tenant who was a protected tenant under the Tenancy Act of 1948. Previous to the coming into operation of the amending Act of 1956, a decree was passed in favour of the landlord on April 22, 1955, and in execution of that decree the landlord obtained possession on April 24, 1955. Thereafter, the amending Tenancy Act came into force and the tenant applied under Section 84 of the Act claiming possession from the landlord by virtue of the proviso to Section 43C. On these facts it was held by the Full Bench that a decree having been passed by a competent Court, the tenant could not claim any rights by virtue of the proviso to Section 43C. In the present case, the protected tenancy rights of the defendant have not been acquired under the Tenancy Act of 1948, but by virtue of Section 3A of the Tenancy Act of 1939. Further these rights are not affected by the amending Act of 1952 but were affected by virtue of the provisions of Section 88(1)(c) of the Tenancy Act of 1948 on April 15, 1950, when the village of Paspoli came within the limits of Greater Bombay. The proviso to Section 43C will not consequently be applicable. What is contemplated under the proviso to Section 43C is, in our opinion, the right which a tenant has acquired on or after December 28, 1948, and which continued to be intact and effective till the coming into force of the amending Act of 1952 or the amending Act of 1955 (Act 13 of 1956). In the present case, the tenancy rights were already affected in April 1950 and were not for the first time affected either by the amending Act of 1952 or by the notification issued by the State Government under Section 88(b) on August 1, 1956. In our judgment, therefore, Mr. Joseph's argument that the defendant's rights as a protected tenant cannot be deemed to have been affected because of the proviso to Section 430 of the amending Tenancy Act cannot also be accepted.