# JIV ABHAI PURSHOTTAM v. CHHAGAN KARSON AND OTHERS

- **Citation:** [1962] 1 S.C.R. 568
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Case number:** Civil Appeal No. 153 of 1958
- **Bench:** P. B. Gajendragadkar, K. N. Wanchoo
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jiv-abhai-purshottam-v-chhagan-karson-and-others-2149
- **Pages:** 7

## Headnote

Agricultural Land-Protected tenant-Notice by landlord for
termination of tenancy-Amendment of enactment-AppiicabilityBombay Tenancy and Agricultural Lands Act, 1948 (Hom. LXV II
of 1948), as amended by Amending Act XXXIII of 1952, ss. 34
(2A), 34(1).
Sub-section (2A) of s. 34 of the Bombay Tenancy and Agricultural Lands Act, 1948, as amended by the Amending Act of
1952, applied from the date when the tenancy stood terminated
on expiry of the notice of ejectment served on the tenant by the
landlord under s. 34(1) of the Act and not from the date of the
notice.
The Amending Act could not be said to divest the landlord
of any vested right since he could have none till the period of
notice terminated and the tenancy came to an end.
Consequently, where the landlord gave notice of ejectment
nnder s. 34(1) of the Act, but the Amending Act came into force
before the period of notice expired the landlord could be entitled to possession only after satisfying the provisions of that subsection.
Durlabbhai Fakirbhai v. Jhaverbhai Bhikabhai, (1956) 58 Born.
L. R. 85, referred to.
Jeebankrishna Chakrabarti v. Abdul Kader Choudhitri, (1933)
I.L.R. LX Cal. 1037, distinguished.

## Text

I96I
i'l arch 27.
568
SUPREME COURT REPORTS
[1962]
JIV ABHAI PURSHOTTAM
v.
CHHAGAN KARSON AND OTHERS
(P. B. GAJENDRAGADKAR and K. N. WANCHOO, JJ.)
Agricultural Land-Protected tenant-Notice by landlord for
termination of tenancy-Amendment of enactment-AppiicabilityBombay Tenancy and Agricultural Lands Act, 1948 (Hom. LXV II
of 1948), as amended by Amending Act XXXIII of 1952, ss. 34
(2A), 34(1).
Sub-section (2A) of s. 34 of the Bombay Tenancy and Agricultural Lands Act, 1948, as amended by the Amending Act of
1952, applied from the date when the tenancy stood terminated
on expiry of the notice of ejectment served on the tenant by the
landlord under s. 34(1) of the Act and not from the date of the
notice.
The Amending Act could not be said to divest the landlord
of any vested right since he could have none till the period of
notice terminated and the tenancy came to an end.
Consequently, where the landlord gave notice of ejectment
nnder s. 34(1) of the Act, but the Amending Act came into force
before the period of notice expired the landlord could be entitled to possession only after satisfying the provisions of that subsection.
Durlabbhai Fakirbhai v. Jhaverbhai Bhikabhai, (1956) 58 Born.
L. R. 85, referred to.
Jeebankrishna Chakrabarti v. Abdul Kader Choudhitri, (1933)
I.L.R. LX Cal. 1037, distinguished.
CIVIL APPELLATE JURISDICTION:
Civil Appeal No.
153 of 1958.
Appeal by special leave from the judgment and
order dated January 9, 1956, of the Bombay High
Court in Special Civil Application No. 2258 of 1955.
J. B. Dadachanji, S. N. Andley, and Rameshwar
Nath, for the appellant.
S. P. Sinha, M. I. Khowaja and A.G. Dave, for
respondent No. 1.
1961. March 27.
The Judgment of the Court was
delivered by
WANCHOO, J.-This appeal by special leave against
the judgment of the Bombay High Court raises a
question of the interpretation of s. 34 (2-A) of the
( "
•
..
_,, j
>
l S.C.R. SUPREME COURT REPORTS
569
Bombay Tenancy and Agricultural
Lands Act,
No. LXVII of 1948 (hereinafter called the Act). The
brief facts necessary for present purposes are these:
The appellant is the landlord and tho respondent a pro.
tected tenant. The appellant gave notice of t,ermination of tenancy to the respondent on December 31, 1951,
under s. 34( 1) of the Act. The notice was for one year
as required by s. 34(1) and the tenancy was to terminate from after March 31, 1953.
The landlord
therefore made an application on April 7, 1953, under
s. 29(2) of the Act for obtaining possession of the land
to tho Mamlatdar. In the meantime, an amendment
was made to the Act by the insertion of sub-s. (2-A)
to s. 34 by the Amending Act No. XXXIII of 1952,
which came into force on January 12, 1953. By this
amendment certain further restrictions were placed
on the right of the landlord to terminate the tenancy
of a protected tenant. The relevant part of subs. (2-A) is in these terms:-
"If the landlord bona fide requires the land for any
of the purposes specified in sub-section (1) then his
right to terminate the tenancy shall be subject to
the following conditions, namely-
(l) The land held by the protected tenant on
lease stands in the record of rights in the name of
the landlord on the first day of January, 1952, as
the superior holder.
(2) If the land held by the landlord is in area
equal to the agricultural holding or less, the landlord shall be entitled to terminate the tenancy of
the protected tenant, in respect of the entire area
of such land.
(3) If the land held by the landlord is more than
the agricultural holding in area, the right of the
landlord to terminate the tenancy of the protected
tenant shall be limited to an area which shall, after
such termination, leave with the tenant half the
area of the land leased.
(4) The tenancy in respect of the land left with
the protected tenant after termination under this
section shall not at anv time be liable to ho terminated on the ground that the landlord bona fide
72
]ivabhai
Purshottam
v,
Clihagan Karson
&- Others
Wanchoo j.
Jivabhai
Pursholtani
v.
Chhagan [{arsnn
~ Others
Wanchoo }.
570
SUPREME COURT REPORTS
[1962]
requires the said land for any of the purposes
specified in sub-section (1).
Explanation.-The "agricultural holding" shall
mean sixteen acres of jirayat land or four acres of
irrigated or paddy or rice land, or lands greater or
less in area than the aforesaid areas in the same
proportion:
,,
The restriction contained in sub-s. (2-A) is in addition
to the restrictions in sub-s. (2), which Jays down that
the landlord shall have no right to terminate the
tenancy of a protected tenant, if the landlord at the
date on which the notice is given or at the date on
which the notice expires has been cultivating personally other land fifty acres or more in area, provided
that if the land which is being cultivated personally
is less than fifty acres, the right of the landlord to
terminate the tenancy of the protected tenant and to
take possession of the land leased to him shall be
limited to such area as will be sufficient to make the
area of the land which he has been cultivating to the
extent of fifty acres.
When therefore the landlord applied for possession of
the land under s. 29(2) of the Act, the tenant objected
andclaimed the benefit of the third clause of subs. (2-A), and the question that arose for determination
was whether the tenant was entitled to the protection
contained in this clause .The Mamlatdar to whom the
application under s. 29 (2) was made allowed the
application. The respondent thereupon appealed but
his appeal was dismissed. He then went in revision to
the Revenue Tribunal, which was rejected.
The
tenant then filed an application under Art. 227 of the
Constitution before the High Court and contended that
the provision of s. 34(2-A) should have been taken
into consideration by the Revenue Courts in deciding
the application of the landlord under s. 29(2) and that
the revenue courts were wrong in the view they had
taken that that sub-section did not apply to the present proceedings. The High Court allowed the application of the tenant, relying on its previous Full-Bench
decision in Durlabbhai Fakirbhai v. Jhaverbhai Bhikabhai ('), where it was held that as the tenancy had
(1) (1g56) 58 Bom. L.R. 8;.
f-
..
1 S.C.R. SUPREME COURT REPORTS
571
terminated and the right to obtain possession had
accrued to the htndlord after the coming into force
of the Amending Act, the Amending Act applied and
therefore the landlord, if he fails to satisfy the further
conditions under the Amending Act, would not be
entitled to possession. It further held that the Amending Act would apply to all proceedings where the
period of notice had expired after the Amending Act
had come into force and that what the Amending Act
did was that it imposed a new limitation on 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 so entitled in law as it then stood, he could not
claim relief from the court. It is the correctness of
this view which is being challenged before us in thB
present appeal.
The contention on behalf of the appellant is that
s. 34(1) gives a right to the landlord to terminate the
tenancy by one year's notice, which was given in this
case in December 1951 before the Amending Act came
into force.
Therefore the notice having been given
before the Amending Act came into force, the further
limitation put on the right of the landlord by subs. (2-A), introduced by the Amending Act, would not
apply to notices given before the Amending Act came
into force.
The appellant further contends that the
right to terminate a tenancy having arisen when the
notice was given, the law to be applied, in case of
notices given before the Amending Act came into force,
would be the law existing on the date of notice.
We are of opinion that there is no force in this
contention. If we look at the words of sub-s. (2-A),
it provides certain conditions subject to which the
right to terminate the tenancy shall be exercised.
It may be that s. 34( 1) requires one year's notice
m order to exer01se this right to terminate, but
sub-s. (2-A) imposes restrictions on the landlord's
right to terminate the tenancy and does not speak of
any notice at all. Therefore, when we have to look to
the application of sub-s. (2-A) it is the date on which
1y6r
jiuabhai
Purshotta1n
v.
Chhagan !(arson
· & Others
IVan&hoo J.
jivabhai
l'urshottam
v.
Chhagan J(a1-son
& Others
Wane/zoo ].
572
SUPREME COURT REPORTS
[1962J
the tenancy terminates which dctemines its application. The restriction by sub-s. (2-A) is on the right
to terminate the tenancy and this restriction would
come into play on the day on which the landlord's
right to terminate the tenancy is perfected, namely,
the day on which the tenancy actually terminates in
consequence of the notice given to terminate it.
A
notice under s. 34(1) is merely a declaration to the
tenant of the intention of the landlord to terminate
the tenancy; but it is always open to the landlord not
to carry out his intention. Therefore, for the application of the restriction under sub-s. (2-A) on the
right of the landlord to terminate the tenancy, the
crucial date is not the date of notice but the date on
which the right to terminate matures, that is, the date
o.n which the tenancy stands terminated. It is on that
date that the court has to enforce the right of the landlord arising out of the notice of termination and therefore the court has to see whether the termination is
in accordance with the restrictions imposed by subs. (2-A) on the date the right is to be enforced.
Nor are we impressed by the argument that by
applying sub-s. (2-A) to notices issued before the
Amending Act came into force we would be taking
away the vested right of the landlord. As we have
already pointed out, the notice under s. 34 (1) is
merely a declaration to the tenant of the landlord's
intention to terminate the tenancy and no further
proceedings may be taken by the landlord in consequence thereof. It is only when the period of notice
has expired and the tenancy has terminated that the
landlord acquires a vested right to obtain possession
of the land.
Therefore, t.he Amending Act did not
affect any vested right of the landlords till the tenancy
actually stood terminated after the expiry of the
notice. Consequently, tho provisions of the Amending
Act which came into force before the tenancy stood
terminated by the notice will have to be taken into
consideration in determining the right of the landlord
in the matter of the termination of tenancy, for the
Amending Act put certain fetters on this right oftermination. In the circumstances, we are of opinion
...
..
.. -
1 S.C.R. SUPREME COURT REPORTS
573
that the view taken by the High Court is correct and
sub-s. (2-A) would apply to all cases where notices
might have been given but where the tenancy had not
actually terminated before the coming into force of
1961
jivabhai
Pursholtani
v.
the Amending Act.
Chhagan ,,-a>Son
This view, which appears to us to be plain enough
"'Othm
on the words of sub-s. (2-A), is further enforced by
another consideration, even if there is any doubt as to
the meaning of sub-s. (2-A). That consideration is
that the Amending Act is a piece of beneficent legisfation meant for the protection of tenants. Therefore,
if there is any doubt about the meaning of sub.s. (2-A)
that doubt should be resolved in favour of the tenant,
for whose benefit the Amending Act was passed. In
this view it is obvious that the legislature could not
have intended that the benefit of this beneficent measure should not be extended to tenants in whose cases
the tenancy had not yet terminated, though notices
had been given, when the further restrictions were
being put on the right to terminat,e the tenancy.
Lea.rued counsel for the appellant has drawn our
attention in this connection to J eebankrishna Ghakrabarti v. Abdul Kader Chaudhuri (1).
In that case, the
Bengal Tenancy Act was amended and the amendment provided that a tenant would be liable to ejectment on one year's notice by tho landlord. The earlier
law provided for a notice of ejcctment but did not
provide that the notice should be for one year; it provided no period of notice whatsoever and it was suffi.
cient under it to give notice expiring with the end of
an agricultural year in order to effect ejectment, how .
soever short might be the period of notice. The question therefore arose whether the amendment applied
to notices given under the old law, and the Calcutta
High Court held that it did not. The circumstances
under which that decision was given are entirely
different from the circumstances of the present case.
In that case the contents of notfoe were changed;
while formerly what was required was a notice with.
out any particular period, the amendment required a
notice of one year. There was no provision in the
(r) (1933) I.L.R. LX Cal. ro37.
fVanchoo ].
574
SUPREME COURT REPORTS
[1962]
1961
Amending Act making notices which were in accordance with the previous law ineffective. In these cirJivabkai
h
C l
H h C
Pu,,holtam
cumstances t e
a cutta
ig
ourt was right in
v.
holding that the amendment did not affect notices
Chhagan Ka•son already given. No such question however arises in
& Othm
the present case. The period of notice is the same
before and after the amendment in the present case,
Wanchoo f.
and what we have to sec is whether the crucial date
for the application of the new sub-section (2-A) is the
date of the notice or the date of the termination of
the tenancy. We have already held that that date
must be the date of the termination of the tenancy.
In the circumstances the appeal fails and is hereby
dismissed with costs.
klarc!t 27.
Appeal dismissed.
DARYAO AND OTHERS
v.
THE STATE OF U. P. AND OTHERS
(and Connected Petitions)
(P. B. G.AJENDRAGADKAR, A. K. SARKAR,
K. N. WANCHOO, K. C. DAS GUPTA and
N. RAJAGOPALA AYYANGAR, JJ.)
Fundamental Right-Res juaicata-Dismissal of writ petition
by High Court-If and when bar to petition in Supreme CourtConstitution of India, Arts. 32, 226.
Where the High Court dismisses a writ petition under Art.
226 of the Constitution after hearing the matter on the merits
on the ground that no fundan1ental right was proved or contraw
vened or that its contravention was constitutiona11y justified,
a subsequent petition to the Supreme Court under Art. 32 of the
Constitution on the same facts and for the same reliefs filed by
the same party would be barred by the general principle of res
judicata.
There is no substance in the plea that the judgment of the
High Court cannot be treated as res judicata because it cannot -