# [1963] 2 S.C.R. 707

- **Citation:** [1963] 2 S.C.R. 707
- **Court:** Supreme Court of India
- **Decided:** 1963
- **Bench:** B. p. SINHA, c. J.; P. B. GAJENDRAGADKAR, K. N. Wanchoo, N. Raja'.Gopala Ayyangar, T. L. Venkatarama Aiyar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1963-2-s-c-r-707-2538
- **Pages:** 10

## Headnote

Suit-Decree-Law changed during pendency of apP<al-
·i Appdlate Oourt, if bound to apply changed law-Rettospecti••
) operation-Bombay
Tenancy
and
Agricultural
Lands
Act (Bom. LXVI of 1948, •· 88 (l)(d)-Bombay Tenancy Ace,
W~&UW.
.
.
Certain )ands were situated in the erstwhile State of
Baroda before it became a part of the State of Bombay by merger. The Bombay Tenancy and Agricultural Lands Act, 1948,
was extended to Baroda on August I, 1949. Suits were filed in
the Civil Court by appellants-landlords against the respondents who were their tenants on the ground that the latter
became trespassers with effect from the beginning of the new
/ agricultural season in May, 1951. . Decrees for possession
were passed by the Civil Court in favour of landlords and the
same were confirmed by the first appellate court.
Ho\vever,
the High Court accepted the appeals and dismissed the suito.
It was held that under the provisions of s. 3A( 1) of the Born·
bay Tenancy Act, 1939, as amended, a tenant would be
deemed to be a protected tenant from August.I, 195() and ihat
vested right. could not be affected by the notificaiion dated
¥ April 24,.1951 issued under s. 89 (I) (d) of the Act of 1948 by
,- which the land in suit was exclud_ed from the operation of
the Act.
The notification
dated April 24, 1951 had no
rc,trospective effect and did not take away the protection_
J96Z
-~
Union qf Ind/•
y,
M/s. Udho Ram
&1 Sorn
RavAubar D•J•I J.
1962
Moy2.
Moltwtlal Clu111llol
40C/Jcri
••
Tril>Aoo.,,. H ribl<Oi
l'.mboli
708
SUPREME OOURT REPORTS [1963]
afforded to tenants by s. 3A.
The landlords came to this
.,
Court by spedal leave. It was conceded that the appellants'
suits for possession would fail if the Act applied to the ten·
ancies in question, because in that c:1se only revenue courts
had jurisdiction to try them.
However, reliance was plated
on notification dated April 24, 1951 which excluded the land in
suit from the operation of the Act.
It was also contended on
behalf of appellants that the subsequent notification cancelling
the first one, could not take away the rights which had
accrued to them as a result of the first notification.
Held, that the notification dated April 24, 1!151 was
~
cancelled by another notification dated January 12, 1953.
The second notification was issued when the matter was still
pending in the first court of appeal. The suits had therefore
to be decided on the basis that there was no notification in
existence which would take the disputed lands out of the
operation of the Act. The first appellate court was wrong in
holding that the suits had to be decided on the basis of facts
in existence on the date of filing of the suits.
Held, further, that the second ,;otification cancelling the
first one did not take away any rights which had accrued to
the landlords. If the landlords had obtained an effective
decree and had succeeded in ejecting the tenants as a result •
of that decree which may have become final between the
parties, that decree may not have been re-opened and the
execution taken thereunder may not have been recalled.
However, it was during the pendency of the suit at the ap·
pellate stage that the second notification was issued cancelling the first a.nd the r.ourt was bound to apply the law as it
was on the date of its judgment.
HeW., also, that clauses (a), (b) and (c) of s. 88(1)
applied to things as they were on the date of the commencement of the Act of 194-8 whereas clause (d) authorised the
State Government to specify certain areas as being reserved
for urban non~agricultural or industrial
development, by
notification in the Official Gazette, from time to time. It was
specifically provided in clauses (a) to (c) that the Act, from
its inception, did not apply to certain areas then identified,
whereas clause ( d) had reference to the future. The State
Government could take out of the operation of the Act such
areas as In its opinion should be reserved for urban non·
agricultural or industrial development.
Cl

## Text

r
~
'
2 S.C.R,
SUPREME COURT REPORTS
707
'
We are therefore of opinion that the finding
1' of the High Court that the loss took place due to
the negligence of the railway servants and, conseq11ently, of the railway administration, is justified.
We therefore dismiss the appeal with costs.
Appeal dismissed.
MOHANLAL CHUNILALKOTHARI
TRIBHOVAN HARIBHAI TAMBOLI
(B. p. SINHA, c. J.; P. B. GAJENDRAGADKAR, K. N.
WANCHOO, N. RAJA'.GOPALA AYYANGAR and
T. L. VENKATARAMA AIYAR, JJ.)
Suit-Decree-Law changed during pendency of apP<al-
·i Appdlate Oourt, if bound to apply changed law-Rettospecti••
) operation-Bombay
Tenancy
and
Agricultural
Lands
Act (Bom. LXVI of 1948, •· 88 (l)(d)-Bombay Tenancy Ace,
W~&UW.
.
.
Certain )ands were situated in the erstwhile State of
Baroda before it became a part of the State of Bombay by merger. The Bombay Tenancy and Agricultural Lands Act, 1948,
was extended to Baroda on August I, 1949. Suits were filed in
the Civil Court by appellants-landlords against the respondents who were their tenants on the ground that the latter
became trespassers with effect from the beginning of the new
/ agricultural season in May, 1951. . Decrees for possession
were passed by the Civil Court in favour of landlords and the
same were confirmed by the first appellate court.
Ho\vever,
the High Court accepted the appeals and dismissed the suito.
It was held that under the provisions of s. 3A( 1) of the Born·
bay Tenancy Act, 1939, as amended, a tenant would be
deemed to be a protected tenant from August.I, 195() and ihat
vested right. could not be affected by the notificaiion dated
¥ April 24,.1951 issued under s. 89 (I) (d) of the Act of 1948 by
,- which the land in suit was exclud_ed from the operation of
the Act.
The notification
dated April 24, 1951 had no
rc,trospective effect and did not take away the protection_
J96Z
-~
Union qf Ind/•
y,
M/s. Udho Ram
&1 Sorn
RavAubar D•J•I J.
1962
Moy2.
Moltwtlal Clu111llol
40C/Jcri
••
Tril>Aoo.,,. H ribl<Oi
l'.mboli
708
SUPREME OOURT REPORTS [1963]
afforded to tenants by s. 3A.
The landlords came to this
.,
Court by spedal leave. It was conceded that the appellants'
suits for possession would fail if the Act applied to the ten·
ancies in question, because in that c:1se only revenue courts
had jurisdiction to try them.
However, reliance was plated
on notification dated April 24, 1951 which excluded the land in
suit from the operation of the Act.
It was also contended on
behalf of appellants that the subsequent notification cancelling
the first one, could not take away the rights which had
accrued to them as a result of the first notification.
Held, that the notification dated April 24, 1!151 was
~
cancelled by another notification dated January 12, 1953.
The second notification was issued when the matter was still
pending in the first court of appeal. The suits had therefore
to be decided on the basis that there was no notification in
existence which would take the disputed lands out of the
operation of the Act. The first appellate court was wrong in
holding that the suits had to be decided on the basis of facts
in existence on the date of filing of the suits.
Held, further, that the second ,;otification cancelling the
first one did not take away any rights which had accrued to
the landlords. If the landlords had obtained an effective
decree and had succeeded in ejecting the tenants as a result •
of that decree which may have become final between the
parties, that decree may not have been re-opened and the
execution taken thereunder may not have been recalled.
However, it was during the pendency of the suit at the ap·
pellate stage that the second notification was issued cancelling the first a.nd the r.ourt was bound to apply the law as it
was on the date of its judgment.
HeW., also, that clauses (a), (b) and (c) of s. 88(1)
applied to things as they were on the date of the commencement of the Act of 194-8 whereas clause (d) authorised the
State Government to specify certain areas as being reserved
for urban non~agricultural or industrial
development, by
notification in the Official Gazette, from time to time. It was
specifically provided in clauses (a) to (c) that the Act, from
its inception, did not apply to certain areas then identified,
whereas clause ( d) had reference to the future. The State
Government could take out of the operation of the Act such
areas as In its opinion should be reserved for urban non·
agricultural or industrial development.
Clause (d) would
come into operation only upon such a
notification being -1
issued by the State Government.
In Sukhaiam's case, this
Court never intended to lay down that the provisions of
,,
s.c.R
SUPREME COURT REPORTS
709
.. ·~-. \
,, clause ( d) were only prospective and had no retrospective
' operation. Unlike clauses (a) to. (c) which were clearly
prospective, clause (d) hi.d retrospective operation in the
sense that it would apply to land which would be covered by
the notification· to be ismed by the Government from time to
time so ·as to take that land 'out of the operation of the Act
of 1948: granting the protection. ··So far as clauses (a) .to (c)
were concerned., the Act of 1948 would not apply .·at all •to
lands covered by them, but that would not take away the
rights conferred by the Act of 1939 which wai repealed by the ,
Act of 19~8. Section 89(2) specifically -preserved the ·exist- '
"' ing rights under the repealed Act.
Sukharam's case was
about the effect of clause (c) on the existing rights under the
Act of I 939 and· it was in that connection that this Court
. observed that s. 88 was prospective. However clause ( d) is
about the future,· and unless it has the limited retrospective
effect indicated earlier, it will be rendered completely nugat•
ory. , The intention . of the legislature qbviously was to take
away all the benefits arising out of the Act of 1948 (but not
those arising from the Act" of 1939) as soon as the notifica-·
tion was made under clause (d).
·
~.
Sakharam v. Manikchand Motichand Shah, (1962)" 2
S.C.R. 59, explained.
4-)
Civil APPELLATE JURISDIOTION: Civil 'Appeal
. Nos. 282 & 283 of 1959.
.
.
Appeals by special leave from the judgment·
and decree dated ]Je<iember 18, 1956, of the Bombay High Court at Bombay in Second Appeals Nos.,
233 and 181\ of 1955 respectively.
·
. :
·
G. 8. Pathak, O. 0. Mathur, J. B. Dadachanji
and Ravinder Narain, for the appellants:
i "
I
S. G. ,Patwardhan and K .. R. Ohoudhri, for, the
:l"espondents.
·
·
1962. May 2. The Judgment of• the Court
was delivered by ·
,
·
· "
SrnHA, C.J.-These two appeals, by special
leave, directed against the judgment and decree of
a single Judge of the Bombay High Court, raise a
~ common question of law, and have, therefore, been
heard together.· This judgment will govern both
the oases. The aprellants were plaintiff-landlords,
11161
Mohanlal CnunUal
Kothati
v.
':.
~riblwuan Haribbai
Tamboli
Sinha C. J.
1118'
JI 11tanltJ1 Cbnilal
XotMri
••
T~
Hari!J/uJI
fambo//
sw.ac. J.
710
SUPREME COURT REPORTS [1963]
and the respondents were tenants-in-po88eBSion of •
oerhin lands which were situate in the erstwhile
State of Baroda before it became part of the State
of Bombay, by merger. The Bombay Tenancy and
Agricultural Lande Act (Bombay Act LXVII of
11148)-whioh hereinafter will he referred to a.e the
Aot-wa.e extended to Baroda. on August l, 1949.
The suits out of which these a.ppea.le a.rise ha.d been
instituted by the a.ppella.nte on the ba.eie that the •
tena.nte-reepondents ha.d become treep8.88ere on the
service of notice in Ma.roh 1950, with effect from
the beginning of the new agricultural section in
Ma.y 1951. Ae the defendants did not oomply with
the terms of the notice a.nd continued in poBSeSHion
of the lands, to' which they had been inducted,
the landlords instituted suite for poBSeeeion in
the Civil Court. The Trial Courts a.nd the Court
of Appeal decreed the suite for posseBSion.
But on
second appeal by the ·tenants, the learned Single
Judge. who heard the second appeals, allowed the
.o
a.ppea.le and diemiaeed the suits with costs through·
out.
It ie not disputed that if the provisions of the
Act were applicable to the tenancies in question,
the pla.intifl'e' suits for poeeeBBion must fa.ii, because
these were instituted in the Civil Courts, which have
Jurisdiction to try the suite only if the defendente
were ~respaeeere. It ie equally olea.r that if the
tenants could take a.dva.nta.ge of the provisions of •
the Act, a.ny suit for poBBeseion a.ga.inet a. tenant
would lie in the Revenue Courts a.nd not in the
Civil Courts. But reliance wa.e placed upon the
notifica.tion issued by the Bombay Government on
April 24, 1951, to the following effect :
"In exercise of th~ powers conferred by
clause (d) ufeub-eection (l)of Section88 ofthe
1
Bombay Tenancy a.nd Agriculture.I Lande Act,
1948 (Bombay LXVII of 1948) the Government of Bombay i11 pleased to specify the area.
I
\·
2 S.C.R.
SCJPREME COURT REPORTS
711
within the limits of the Munioip'lol Borough of
Baroda City and within the distance of two
miles of the limits of the said Borough, as
being reserved for Urban, non-agricultural or
industrial development"
The learned Judge of the High Court, in
disagreement with the Courts below, held that under
provisions of s. 3A(l) of the Bombay Tenancy Act,
1939, as a.mended, a tenant would be deemed to be
a protected tenant from A'1gust 1, 1950, and that
that vested right could not be affected by the
notification aforesaid, issued by the Government
under s. 88( l)(d), which had the effect of putt.ing
the lands in question · out of the operation
of
the Act.
In other words,
the learned
Judge held the notification had no retrospective
effect so as to take a.way the protection afforded to
the tenants by s. 3A, aforesaid.
The learned counsel for the appellants con·
tended, in the first instance, that the notification,
set out above, under s. 88 ( l)(d) operated with effect
from December 28, 1948, when the Act ca.me into
force. In this connection, reliance was placed upon
the decision of this Court, pronounced by me sitting
in a Division Court, in the case of Bakharam v.
Manikohand Motiahand Shah,(') in these words:.
"The provisions of s. 88 a.re entirely prospective. They apply to lands of the descrip·
tion contained in els. (a) to (d) of s. 88(1) from
the date on which the Act came into operation, that is to say, fr im December 28, 1948.
They a.re not intended in any sense to be of a
confiscatory character. They do not show' an
intention to take away what had already
accrued to tenants acquiring the status of
'protected tenants".
•:
1952
MoAanlal Cllunilal
K"ehati
v.
T riMo""" B crib/Jal
1amboli
SinhaC. J.
196t
Mehan/al Chunilol
Xo1/wri
••
f"ribhown Haribltai
Tomboli
Sin"" C. J.
712
SUPREME COURT REPORTS [19H3]
It is necessary, therefore, to make some observations explaining the real position. In that case, the '
question then in controversy had particular reference
to s. 88(l)(c), which is the only provision quoted at
page 2 of the blue print of the judgment. That case
had nothing to do with cl. (d) of s. 88(1). In that
case, the lands in dispute lay within two miles of
the limits of Poona Municipality. It is clear, there·
fore, that the inclusion of cl. (d) of s. 88(1) was a
slip and certainly was n9t relevant for consideration in that case. The provisions of s. 88( I) a.re as
follows:
"Nothing in the foregoing provisions of
this Act sha.ll a.pply :-
(a) to la.nds held on lease from the Govern·
ment a local authority or a. co-operative
society;
(b) to la.nds hold on lease for the benefit of
a.n industrial or commercial undertaking;
(c) to a.r..y area. within the limits of Greater '
Bombay and within the limits of tho
Municipal boroughs of Poona. City and
Suburban, Ahmedabad, Sholapur, Surat
and Hubli and within a. distance of two
miles of the Umits of such boroughs; or
(d) to any area which the :Sta.to Government
ma.y, from time to time, by notification
in tbe Official Gazette, specify as being',
reserved for urban non-agricultural or
industrial development.
It will be noticed that els. (a), (b) a.nd (c) of
s. 88( I) apply to things as they were at the date of
the enactment, wherea.a cl. (d) only authorised the
State Government to specify certain areas as being
seeerved for urban non-agricultural or industrial '
development, by notification in the Official Gazette,
2 S.C.R.
SUPREME .COURT REPORTS
713
from time to time. Under els. (a) to (c) ofs. 88(1)
y it is specifically provided that the Act, from its
inception, did not apply to · certain. areas then
identified; whereas ol. (rl) has reference to the
future. Hence, the State Government could take
out of the operation of the Act such areas as it
would deem should come . within the desoription of urban non-agrioultural or for indu~tri!'l
development. Clause (d), therefore, would come
into operation only upon such a notification being
Y issued by the State· Government. . The portion of
the judgment, quoted itbove, itself makes it ole&r
that the provisions of s. 88 were never intE>nded to
divest vested interests. To that extent the decision
of this Court is really against the appellants.: It is
olear that the appellants cannot take advantage of
what was a mere slipin so far, as ol. (d) was added
to the other clauses of s.88(1), when that clause
really and did noto:fall to be considered with reference to the controversy in that oase. In other
. words, this Court never intended in its judgment ill
11 Sakharam's QtiBe(') to lay down that th~ provisiens of
01.1 d) of s.88 ( 1) afo~esaid were only prospective and
had no retrospective operation.· Unlike els. (a), (b)
and (c) of s.88(1), which this Court held to be clearly
prospective, those of ol.(d) would in the context
have retrospective operation in the sense that it
would apply to land which could be oovered by the
notification to be issued by the Government from
time to time so as to . take those lands out of the
r operation of the Act· of 1948, granting the protection. So far as ols. (a), (b) and (c) are concerned,
the Act of 1948 would not apply at all to lands covered by them. But that would not take away the
rights.conferred by the .earlier Act of 1939 which
was· being repealed; by the Act of 194!:!. This is
made clear by the provision in s.89(<!) which preser-
.7
ves existing
rights · under · the repealed Act.
Sakharam' s case (') was about the effect of ol. ( o) on
(1) (1962) 7 S.C.R.. S9.
I96B
--·-
Mohanra1 C~u11ia
Koth ITT
••
T1ibhova'1 Harib ai
Tamboli
Sinha C. J,
I
1961
JI ohoolal CAllllilol
Kot/lari
v.
Triblumon H aribhai
Tamboli
SiMa C, .J.
714
SUPREME COURT REPORTS [1963)
the existing right.a under the Act of 1939 and it was
in that connection that this Court observed that s.88 '
was prospective. But cl. (d) is about the future
and unless it has the limited retrospective effect
indioated earlier it will be rendered completely
nugatory. The intention of the legislature obviously
waa to take away all the benefit.a arising out of the
Aot of 1948 (but not those arising from the Aot of
1939) as soon as the notification was made under
ol. (d). This is the only way to harmonise the other •
provisiona of the 1948-Act, conferringoertain benefit.a on tenant.a with the provisions in cl. (d) which is
meant to foster urban and industrial development.
The observationa of the High Court to the contrary
are, therefore, not correct.
But the matter does not rest there. The
notification of April 24, 1951, was cancelled by the
State Government by the ronowing notification
dated January 12, 1953:
"Revenue Department, Bombay Castle,
12th January, 1953. Bombay Tenanoy and
Agricultural Lands Act, 1948.
No.9361/49: In exercise of the powers
conferred by olauae ( d) of sub-aeotion ( l) of
Section 88 of the Bombay Tenancy and Agricultural Lande Act, 1948 (Bombay LXVII of
1948). The Government of Bombay is pleased to cancel Government Notification in the
. Revenue Department No.9361/49 dated the
24th/25th April, 1951".
It would thus appear that when the matter
was still pending in the Court of Appeal, the judgment of the lower Appellate Court being dated
September 27, 1954, the notification cancelling
the previous notification· was issued. The suit had,
therefore, to be deoided on the basis that there was ,
no notification in existence under s.88(l)(d), which
could take the disputed lands out of the operation
'
t
2 S.C.R.
SUPREME COURT REPORTS
715
llfB
of the Act. This matter was brought to the notice
of the learned Assistant Judge, who took the view
J1111 .. 1o1c1um11a1
that though, on the merger of Baroda with Bombay
Ir•.":'"
in 1949, the defendants had the protection of the Tribhooon HariblrJI
Act, that protection had been taken a.way by the
Ta.W.li
first notification, which was cancelled by the second.
That Court wa.s, of the opinion that though the
A,ppellate Court we.a entitled to take notice of the
subsequent events, the suit had to be determined as
on the · state of f&cts in existence on the date
of the suit, and not a.a · they existed during
the
pendency of the a.ppea.l.
In that view
of the · matter, the learned Appellate Court .
held · that . the tenants-defendants
could not
take advantage of the provisions of the Act, and
could not resist the suit for possession. In our
opinion, that was a. mistaken view of. the legal
position. When the judgment' of the lower Appellate Court was rendered, tbe poeition in. fe.ct and
la.w was that there was.no· notification under cl.(d) ·
of s.88(1) in operation so as to make the land in
question immune from the benefits ·conferred by
the Tenancy La.w. In other words, the teilenta
could claim the protection afforded by the la.w
against eviction on the·ground that the term ~f the
lease ha.d expired. But it wa.s argO:ed on behalf of
the a.pP.6llanta. that the · sribsequent notification,
cancelling the first one, .could not take away the
righta which ha.d' &corned to thein as a. result .of the .
first notification. In . our opinion,· this argument is
without any.force~ If the landlords. h~ .,obt.ained
an eifecti.ve decree. and had . succeeded in, ejecting·
the tenant.a 88 a. result of' that decree, which may
have become final betwe~n the •parties, that decne
ma.y not have bee~; 1':C>J>&ned a.nd the e:teoution,
ta.ken thereunder may not have been r-lled .. · Bllt
it W88 during.the pendency of t~e sui~ a.t th& ~ppella.te stage that the aeeOnd noti1ica.t1on was l881led .
cancellirig the ftret. Hence, the Court was bOund to .,
1961
M olioalol Chunilal
Ko4horft
••
Triblt""1'1 Ha,ibhai
Tamboli
Sinha C. J.
1961
May2.
716
!UPREME COURT REPORTS [1963]
apply the law a~ it was found on the date of its
judgment. Hence, there is no question of taking
a.way any vested rights in the landlords. It does
not appear that the second notification, cancelling
the first notification, had been brought to the notice
of the learned Single Judge, who heard and decided
the second appeal in the High Court. At any rate,
there is no reference to the second notification. Be
that as it may, in our opinion, the learned Judge
came to the right conclusion in holding that the
tenantll could not be ejected, though for wrong
reasons. The appeals are accordingly dismissed,
but there would be no order as to costs in this
Court, in view of the fact that the respondents had
not brought the second notification cancelling the
first to the pointed attention of the High Court.
(P.
Appeal dismissed.
BIRLA COTTON SPINNING &
WEAVING MILLS
v.
WORKMEN AND OTHERS
B. GAJXNDRAGADKAR, K. SUllBA RAO, K. N.
WANOHOO, J. C. SHAH and N. RAJAGOPALA
AYYANGAR, JJ,)
. lr1duatrial Diapute-Standardisatwn of wage alt'UclureDuignation of toorkm<n.
.
The dispute between the respondents and the appellants
regarding mistries and line jobbers was referred to the Tribunal
regarding the increase and standardi<ation of wages and regarding the designation of workmen doing th~ work of fancy
j(>hbers and their pay. The appellant contended that an
rarlier award of I 951 had not been terminated and that the
reference was incompetent. The Tribunal directed s!andardi·
sation on the basis of the Bombay Scheme. The Tribunal