# 2 S.C.R. SUPREME COURT REPORTS SAKHARAM: @ BAPUSAHEB NARAYAN SANAS AND ANOTHER v. MANIKCHAND MOTICHAND SHAH AND ANOTHER

- **Citation:** [1962] 2 S.C.R. 59
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Bench:** B. I'. Sinha, K. SunnA RAo, Raghubar Dayal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/2-s-c-r-supreme-court-reports-sakharam-bapusaheb-narayan-sanas-and-another-v-2277
- **Pages:** 10

## Headnote

59
Agricultural Lands-Protected Tenants, Rights of-Acquisition
under repealed statute-Repealing statute, if affects such rightsBombay Tenancy Act, r939 (Bom. 29 of r939), as amended by the
Bombay Tenancy (Amendment) Act, r946 (Born. 26 of r946),
s. 3A(1) -
Bombay Tenancy and Agricultural Lands Act, r948
(Bom. LXV II of r948), ss. JI, 85, 89.
The appellants had acquired the rights of protected tenants
under s. 3A(r) of the Bombay Tenancy Act, 1939, as amended by
the Bombay Tenancy (Amendment) Act, 1946, and their rights
as protected tenants were recorded in the Record of Rights.
That Act was repealed by the Bombay Tenancy and Agricultural Lands Act, r948, which by s. 31 recognised the rights of a
protected tenant acquired under the Act of r939 for its own
purposes, by s. 88(r)(c) provided, that nothing in the foregoing
provisions of the Act should apply to any area within the limits
of the Municipal borough of Poona City and Suburban as also
some other boroughs and within a distance of two miles of the
limits of such boroughs, and bys. 8g(2) that
"nothing in this Act or any repeal effected thereby ........ .
(b) shall, save as expressly proviJed in this Act, affect or be
deemed to affect
(i) a:iy 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 hPfore the commencement of this Act, and any such
proceeding shall be continued and disposed of, as if this Act
was not passed ......... ".
The lands in dispnte were situated within two miles of the
limits of the Poona Municipal Borough, i.e. Poona City and
Suburban, and the question was whether the rights of the
appellants as protected tenants therein were affected by the
repeal.
Held, that the provisions ()f s. 88 of the Bombay Tenancy and
Agricultural Lands Act, 1948, arc entirely prospective and apply
to such lands as are described in els. (a) to (d) of s. 88(1) from
April I9.
Ig6r
Sakharani @
Hapusaheb
Narayan Sanas
v.
AI anikchand
ll! otichand Shah
60
SUPREME COURT REPORTS
[1962]
the date on which the Act. came into operation i.e.· December 28,
1948, and are not of a confiscatory nature so as to take away
from the tenant the status of a protected tenant already .accrued
to him.
Section 89(2)(b) of the Act clearly intends to conserve such
rights as were acquired or .accrued before its commencement and
that any legal proceeding in respect of such rights was to be.
disposed of in terms of the .Act of 1939.
Abbot v. The Minist.er for Lands, [1895] A.C. 425, distinguished.
·
·
CIVIL
APPELLATE .JURISDICTION: . Civil
Appeal
No. 185 ofl956.
Appeal by special leave .from the judgment and
decree dated November 25, 1954, of the Bombay
High Court in Second Appeal No. 1003 of 1952.
H. R. Gokhale, J. B. Dadachanji, S. N. Andley,
Rameshwar Nath and P. L. Vohra, for the appellants.
0. B. Agarwala and A.G. Ratnaparkhi, for the respondent No. I.
1961. April 19. The Judgment of the Court was
delivered by
Sinha c. J.
SINHA, C. J.-The only question for determinatfon
in this appeal is whether the defendants-appellants
are 'protected tenants' within the meaning of the
Bombay Tenancy Act (Bombay Act XXIX of 1939)
(which hereinafter will be referred to, for the sake of
brevity, as the Act of 1939), whose rights a3 such were
not affected by the repeal of that Act by the Bombay
Tenancy and Agricultural Lands Act (Bombay Act
LXVII of 1948) which hereinafter will be referred to
as the Act of 1948). The Courts below have decreed
the plaintiff's suit for possession of the lands in dispute, holding that the defendants were not entitled to
the protection claimed by them as 'protected tenants'.
This appeal is by special leave granted by this Court
on April 4, 1955.
.
.
.
The facts of this case are not in dispute. Shortly
stated,

## Text

t
2 S.C.R. SUPREME COURT REPORTS
SAKHARAM: @ BAPUSAHEB NARAYAN
SANAS AND ANOTHER
v.
MANIKCHAND MOTICHAND SHAH
AND ANOTHER
(B. I'. SINHA, C. J., K. SunnA RAo and
RAGHUBAR DAYAL, JJ.)
59
Agricultural Lands-Protected Tenants, Rights of-Acquisition
under repealed statute-Repealing statute, if affects such rightsBombay Tenancy Act, r939 (Bom. 29 of r939), as amended by the
Bombay Tenancy (Amendment) Act, r946 (Born. 26 of r946),
s. 3A(1) -
Bombay Tenancy and Agricultural Lands Act, r948
(Bom. LXV II of r948), ss. JI, 85, 89.
The appellants had acquired the rights of protected tenants
under s. 3A(r) of the Bombay Tenancy Act, 1939, as amended by
the Bombay Tenancy (Amendment) Act, 1946, and their rights
as protected tenants were recorded in the Record of Rights.
That Act was repealed by the Bombay Tenancy and Agricultural Lands Act, r948, which by s. 31 recognised the rights of a
protected tenant acquired under the Act of r939 for its own
purposes, by s. 88(r)(c) provided, that nothing in the foregoing
provisions of the Act should apply to any area within the limits
of the Municipal borough of Poona City and Suburban as also
some other boroughs and within a distance of two miles of the
limits of such boroughs, and bys. 8g(2) that
"nothing in this Act or any repeal effected thereby ........ .
(b) shall, save as expressly proviJed in this Act, affect or be
deemed to affect
(i) a:iy 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 hPfore the commencement of this Act, and any such
proceeding shall be continued and disposed of, as if this Act
was not passed ......... ".
The lands in dispnte were situated within two miles of the
limits of the Poona Municipal Borough, i.e. Poona City and
Suburban, and the question was whether the rights of the
appellants as protected tenants therein were affected by the
repeal.
Held, that the provisions ()f s. 88 of the Bombay Tenancy and
Agricultural Lands Act, 1948, arc entirely prospective and apply
to such lands as are described in els. (a) to (d) of s. 88(1) from
April I9.
Ig6r
Sakharani @
Hapusaheb
Narayan Sanas
v.
AI anikchand
ll! otichand Shah
60
SUPREME COURT REPORTS
[1962]
the date on which the Act. came into operation i.e.· December 28,
1948, and are not of a confiscatory nature so as to take away
from the tenant the status of a protected tenant already .accrued
to him.
Section 89(2)(b) of the Act clearly intends to conserve such
rights as were acquired or .accrued before its commencement and
that any legal proceeding in respect of such rights was to be.
disposed of in terms of the .Act of 1939.
Abbot v. The Minist.er for Lands, [1895] A.C. 425, distinguished.
·
·
CIVIL
APPELLATE .JURISDICTION: . Civil
Appeal
No. 185 ofl956.
Appeal by special leave .from the judgment and
decree dated November 25, 1954, of the Bombay
High Court in Second Appeal No. 1003 of 1952.
H. R. Gokhale, J. B. Dadachanji, S. N. Andley,
Rameshwar Nath and P. L. Vohra, for the appellants.
0. B. Agarwala and A.G. Ratnaparkhi, for the respondent No. I.
1961. April 19. The Judgment of the Court was
delivered by
Sinha c. J.
SINHA, C. J.-The only question for determinatfon
in this appeal is whether the defendants-appellants
are 'protected tenants' within the meaning of the
Bombay Tenancy Act (Bombay Act XXIX of 1939)
(which hereinafter will be referred to, for the sake of
brevity, as the Act of 1939), whose rights a3 such were
not affected by the repeal of that Act by the Bombay
Tenancy and Agricultural Lands Act (Bombay Act
LXVII of 1948) which hereinafter will be referred to
as the Act of 1948). The Courts below have decreed
the plaintiff's suit for possession of the lands in dispute, holding that the defendants were not entitled to
the protection claimed by them as 'protected tenants'.
This appeal is by special leave granted by this Court
on April 4, 1955.
.
.
.
The facts of this case are not in dispute. Shortly
stated, they are as follows. By virtue of a lease dated
October 30, 1939, the defendants obtained a lease of
the disputed lands from the plaintiff for a period of
10 years, expiring on October 30, 1949. The lands in t
•
2 S.C.R. SUPREME COURT REPORTS
61
dispute have been found to lie within two miles of the
r96r
limits of Poona Municipality. The landlord gave
.
0
b
22 1948 t
'
t'
th t
Sai<hamm @
notrne on
cto er
· ,
, ermma mg
e e?ancy
Bapusaheb
as from October 30, 1949.
As the defendants did not Na.-ayan sanas
vacate the land, in terms of the notice aforesaid, the
"·
plaintiff instituted the suit for ejectment in the Court
Manikchand
of the Civil Judge, Junior Division, at Poona in Civil Motichand Shah
Suit No. 86 of 1950. The Act of 1939 became law
on March 27, 1940, but the Act was applied to
Sinha c. f.
Poona area with effect from April ll, 1946. Under
s. 3 of the Act, a tenant shall be deemed to be
a 'protected tenant' in respect of any land if he
has held such land 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, (added by the Amending Act of 1946)
and has cultivated such land personally during the
aforesaid period. It is not disputed that the defendants-appellants became entitled to the status of 'protected tenants' as a result of the operation of the Act,
as amended by the Bombay Tenancy (Amendment)
Act, 1946 (Bombay Act XXVI of 1946), and under
s. 3A(l) the defendants were deemed to be 'protected
tenants' under the Act and their rights as such were
recorded in the Record of Rights. Sections 3 and
3A(l), aforesaid, are set out below:-
"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 aperiod 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) has cultivated such land personally during
the aforesaid period.
3A(l) Every tenant shall, on the expiry of one year
from the date of the coming into force of the Bombay
Tenancy Amendment Act of 1946, 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
within the said period made an application to
Sal~haram (f.i;
Bapusaheb
J..r arayan Sanas
v.
1\1 anikchand
]J,f otichaud Shah
Sinha C. j.
62
SUPREME COURT REPORTS
[1962]
the Mamlatdar within whose jurisdiction the land
is situated for a declaration that the tenant is not a
protected tenant".
Under s. 3A(l) aforesaid, it was open to the landlord, within one year of the date of the commencement of the Amending Act of 1946, to make an application to the J)lamlatnnr for a declaration that the
t('aant was not a 'protected tenant'. No such proceeding appcarn to have been taken. As a result of
the expiration of one year from November 8, 1946thc date of the coming into operation of the Amending Act of l!H(i-the defendants were deemed to be
'protec~ed teaants' r.nd it is not disputed that they
were recorded as mch. Section 4 of the Act, with
which we are not concerned in the present case, made
furthflr provisions fur recovery of possession by tenants who had been evicted from their holdings in circumstances set out in that section. The Act, therefore,
in its terms, was intended for the protection of tenants
in certain areas in the Province of Bombay (as it then
was). If nothing had happened later, the defon<lants
would have had the status of 'protected tenants' and
could not have been evicte<l from their holdings, except in aocordance with the provisirms of the Tenancy
Law.
But tlje Act of 1939 wtts replaced by the Act
of 1948.
The question that arises now for determina"
tion is whether the Act of 1948 wiped out the defendant's status as 'prc)tccted tenants'. For determining
this question, we have naturally to examine the relevant provisions of the later Act.
The Act of 1948, by s. 2 cl. (14) prior to its amendment by Bombay Aet XIII of 1956, provides that
"'protected tenant' means a. person who is recognised
to be a protected tenant under section 31 ". Section 31
runs as follows:-
" ]'or the purposes of this Act, a person shall be
recognised to be a protected tenant if such person
has been deemed to be a protected tenant under section 3, 3A or 4 of the Bombay Tenancy Act, 1939."
The force and effect of s. 31 will
h~.ve to be discussed later while dealing with the arguments raised
2 S.C.R. SUPREME COURT REPORTS
63
on behalf of the landlord-respondent. The next relevant provisions of the Act of 1948 are those of
s. 88(l)(c) which i·eads:-
"N othing in the foregoing provisions of this Aot
sho.11 apply:-
Sakharam @
Bapusaheb
nr ara)''an
Sana.~
v.
M anil1chand
A1otichand .Shah
(c) to any area within the limits of Greater BornSinha c..r.
bay and within the limits of the municipal boroughs
of Poona City and Suburban, Ahmedabad, Sholapur, Surat and Hubli and within a distance of two
miles of the limits of such boroughs; or ...... ".
As already observed, the lands in dispute in the
present controversy have been found to be situate
within two miles of the limits of the Poona Municipal
Borough, which, for the purpose of this case, has been
equated to 'Borough of Poona City and Suburban'. It
has been contended on beha,lf of the respondent that
under the later Act the disputed lands are outside the
purview of tho Act and that, therefo1·e, the defendants-appellants n.rc not entitled to daim the status of
'prot.ected tenants'. The appellants have answered
this contention by reference to the provisions of s. 89,
which may now be set out (in so far as they are necessary for the purpose of this case):-
"89(1) The enactment specified in the Schedule is
hereby repealed to the extent mentioned in the
fourth column thereof.
(2) But nothing in this Act or any repeal effected
thereby-
(b) shall, save as expressly provided in this Act,
affect or be deemed to affect,
(i) any right, title, interest, obligation or liability
already acquired, accrued or incurred before the
commencement of this Act, 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 proceeding shall be
continued and disposed of, as if this Act was not
d "
passe ....
64
SUPREME COURT REPORTS
[1962]
'96'
It has been contended on behalf of the appellants that
Sakharam @
the repealing s. 89, read with the Schedule, makes it
Hapusaheb
clear that the whole of ss. 3, 3A and 4 of_ the Act of
Narayan Sanas 1939 have been saved, subject to certain modifications,
v.
which are not relevant to the present purpose; and
Manikchand
that sub-s. 2(b) of s. 89 has in terms, saved the appelMotichand Shah l
, · h
d
, b
ants rig ts as 'protects tenants ecause those rights
Sinha c. J.
had already accrued to thBm under the Act of HJ39.
But this contention is countered by the learned
counsel for the plaintiff-respondent on three grounds,
namely, (1) thats. 88 expressly provides that ss. 1 to
87 of the later Act shall not apply to lands situate in
the Municipal Borough of Poona City and Suburban
and within a distance of two miles of the limits of such
borough; (2) that what has been saved by cl. (b) of
sub-s. (2) of s. 89 is not eve,ry right but only such rights
as had been actually exercised and recognised; and
(3) that the terms of the saving clause, as contained
s. 89{2)(b) were not identical with s. 7 of the Bombay
General Clauses Act, inasmuch as cl. (b) aforesaid only
speaks of such proceedings being continued and
disposed of, without reference to the institution of
such proceedings.
Shortly put, the arguments on behalf of the appellants is that the taking away of the status of a
'protected tenant' from certain lands, as specified in
s. 88, is only prospective and not retrospective, whereas
the argument on behalf of the respondent is that the
repeal was with retrospective effect and only so much
was saved as would come directly within the terms of
cl. (b) of s. 89(2), and that the right claimed by the
appellants was in express terms taken away by s. 88.
The argument based on the second ground may be
disposed of at the outset in order to clear the ground
for a further consideration of the effect of ss. 88 and
89, on which the whole case depends. The learned
counsel for the plaintiff-respondent placed strong
reliance upon the following observations of the Lord
Chancellor in the case of Abbot v. The Minister for
1
Lands (1):
"They think that the mere right (assuming it to
(1) [1895] A.C. 425, 431.
~
2 S.C.R. SUPREME COURT REPORTS
65
be properly so called) existing in the members of the
community or any class of them to take advantage
of an enactment, without any act done by an individual towards. availing himself Of that right, cannot
properly be. deemed a "right accrued" within the
meaning of the enactment."
The ·contention is that in order that the defendantsappellants .could ·claim the status of 'protected tenants'
as a right a.cc.rued under the Act of 1939, they should
have taken certain steps to enforce that right and got
the relevant authorities to pronounce upon those
· rights, and as no such steps had admittedly been taken
by the appellants, they could not claim that they had a
'right accrued' to them as claimed. In our opinion,
there is no substance in this contention. The observations, quoted above, made by the Lord Chancellor,
with all respect, are entirely correct, but have been
made in the context of the statute under which the
controversy had arisen. In that case, the appellant had
obtained a grant in fee-simple of certain lands under
the Crown Lands Alienation Act, 1861. By virtue of
the original grant, he would have been entitled to
claim. settlement of additional areas, if he satisfied
certain conditions laid down in the relevant provisions
of the statute. The original settlee had the right to
claim the additional settlements, if he so desired, on
fulfilment of those conditions. He had those rights to
acquire the additional lands under the provisions of
the Crown Lands Alienation.Act, 1861, but the Crown
. Lands Act of 1884, repealed t.he previous Act, subject
to a saving provision to the. effect that all .rights
accrued by virtue of the repealed enactment shall,
.subject to any express provisions of the repealing Act
in relation thereto, remain unaffected by such rQpeal.
The appellarrts' contention that under the . saving
clause of the repealed enactment he had the right to
make additional conditional purchases and that was a
'right accrued' within the meaning of the saving clause
contained in the repealing Act of 1884, was negatived
by the Privy Council. It is, thus, clear that the context
in which the observations relied upon by the respondent, as quoted above, were made is entirely different
9
1961
Sakliaram@
Bapusaheb
Narayan Sanas
v.
Manikcha~d
Motichand Shah
Sinha C. ].
66
iSUl>REME COUR'.I' REPOR'l'S
(1962]
z96z
from the context of the present controversy. That
decision is only authority for the proposition that 'the
s~~Pa;;.~,~ mere right, existing at thP: ~ate of a repealing statute,
Narayan sanas to take advantage of prov1s1ons of the statute repealed
v.
is not a 'right accrued' within the meaning of the
M~nikchand
usual saving clause'. In that ruling, their Lordships of
Motichand Shah the Privy Council assumed that the contingent right
--
of the original grantee was a right bnt it was not a
Sinha c. 1 ·
'right accrued' within the meaning of the repealed
statute. It was held not to have accrued because the
option given to the original grantee to make additional purchases had not been exercised before the repeal.
In other words, the right which was sought to be
exercised was not in existence at the date of the
repealing Act, which had restricted those rights. In
the instant case, the right of a 'protected tenant' had
accrued to the appellants while the Act of 1939 was
still in force, without any act on their part being
necessary. That right had been recognised by the
public authorities by making the relevant entries in
the Record of Rights, as aforesaid. On the other hand,
as already indicated, s. 3A(l) of the Act of 1939 had
given the right to the landlord-respondent to take
proceedings to have the necessary declaration madE
by the mam.latdar that the tenant had not acquired
the status of a 'protected tenant'. He did not proceed
in that behalf. Hence, it is clear that so far as tbe
appellants were concerned, their status as 'protected
tenants' had been recognised by the public authorities
under the Act of 1939, and they had to do nothing
more to bring their case within the expression 'right
accrued', in cl. (b) of s. 89(2) of the Act of 1948.
It having been held that the second ground of
attack against the claim made by the appellants is not
well-founded in law, it now remains to consider
whether the first ground, namely, that there is an
express provision in s. 88, within the meaning of
s. 89(2)(b), taking away the appellants' right, is
supported by the terms of ss. 88 and 89. In this
connection, it was pointed out on behalf of the respon-
~
dent thats. 88(1) in terms provides that ss. 1 to 87 of
j
a
2 S.C.R. SUPREME COURT REPORTS
67
the Act of 1948 shall not apply to lands of the situaz96z
tion of the disputed lands; and s. 31 has been further
pressed in aid of this argument.
Section 31 has
S~k~ra~ ~
already been quoted, and it begins with the words Nara~•:'•; ••• ,
"For the purposes of this Act". The provisions of the
v.
Act of 1948 relating to the rights and liabilities of a
Manikchand
'protected tenant' are not the same as those under the Motichand Shah
Act of 1939. Hence, though the provisions of ss. 3,
--
Sinha C.J.
3-A and 4 of the earlier Act of 1939 have been adopted by the later Act, it has been so done in the context
of the later Act, granting greater facilities and larger
rights to what are described as 'protected tenants'. In
other words s. 31 has been enacted not to do away
with the rights contained in ss. 3, 3-A and 4 of the
earlier statute, but with a view to apply that nomenclature to larger rights conferred under the Act of
1948. The provisions of s. 88 are entirely prospective.
They apply to lands of the description contained in
els. (a) to (d) of s. 88(1) from the date on which the
Act came into operation, that is to say, from December
28, 1948. They are 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'. On the
other hand, s. 89(2)(b), quoted above, clearly shows an
intention to conserve such rights as had been acquired
or had accrued before the commencement of the
repealing Act. But it has further been contended on
behalf of the respondent, in ground 3 of the attack,
that sub-cl. (ii) of cl. (b) of s. 89(2) would indicate that
the legislature did not intend completely to re-enact
the provisions of s. 7 of the Bombay General Clauses
Act. This argument is based on the absence of the
word 'instituted' before the words 'continued and
disposed of'. In our opinion there are several answers
to this contention. In the first place, sub-cl. (i) is
independent of sub-cl. (ii) of cl. (b) of s. 89(2). Therefore, sub-cl. (ii), which has reference to pending litigation, cannot cut down the legal significance and ambit
of the words used in sub-cl. (i).
Sub-cl. (ii) may have
reference to the forum of the proceedings, whether the
Civil Court or the Revenue Court shall have seizin of
68
SUPREME COURT REPORTS
[1962]
'96'
proceedings taken under the repealed Act. We have
5 kh
@
already held that the expression 'right accrued' in
~.;:;a~eb · sub-cl. (i) does not exclude the rights of 'protected
Narayan sanas tenants' claimed by the appellants. It is well settled
v.
that where there is a right recognised by law, there is
M~nikchand a remedy, and, therefore, in the absence of any special
Motichand Shah provisions indicating the particular forum for enforc-
-
ing a particular right, the g· eneral law of the land will
Sinha C. J.
naturally take its course. In this connection, it is
relevant to refer to the observations of the High Court
that "even if it were to be assumed that the right as a
'protected tenant' remained vested in the defendants
even after the enactment of s. 88(1), that right, in its
enforcement against the plaintiff, must be regarded as
illusory". In our opinion, those observations are not
well-founded.
Courts will be very slow to assume a
right and then to regard it as illusory, because no
particular forum has been indicated. Lastly, the legal
effect of the provisions of sub-cl. (ii) aforesaid is only
this that any legal proceeding in respect of the right·
claimed by the defendants shall be continued and
disposed of as if the Act of 1948 had not been passed.
Applying those words to the present litigation, the
inference is clear that the controversy has to be resolved with reference to the provisions of the repealed
statute. That being so, in our opinion, the intention
of the legislature . was that the litigation we are now
•.
dealing with should be disposed of in terms of the
.
repealed statute of 1939. It has not been disputed
before us that if that is done, there is only one answer
to this suit, namely, that it must be dismissed with
costs. Accordingly, we allow the appeal, set aside the
judgments below and dismiss the suit with costs
throughout, to the contesting defendants-appellants.
Appeal allowed.