# MANEKJI EDULJI MISTRY AND ORS v. MANEKSHA ARDESHIR IRANI & ANR

- **Citation:** [1972] 1 S.C.R. 334
- **Court:** Supreme Court of India
- **Decided:** 1971-08-20
- **Case number:** Civil Appeal No. 2435 of 1966
- **Bench:** C. A. Vaidialingam, A. N.Ray, D. G. Palbkaii
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/manekji-edulji-mistry-and-ors-v-maneksha-ardeshir-irani-anr-5360
- **Pages:** 12

## Headnote

Bombay Tenancy and Agricultural Lands Act, 1948-.l'ection 5 as
amended by Bombay Act XXXllI of 1952-lf' applied to protecteti
tenancy.
The respondents were lessees of the appellants for a period of 5 years
from March 1, 1943. They were protected tenants under the Bombay
Tenancy and Agricultural Lands Act, 1948. They contended
that the
appellants-landlords could not claim eviction, because,
being
protected
tenants their lease was extended by statute up to February 28, 1953, and
as a result of the amendment of s. 5 of the 1948 Act by amendillg Act
of 1952 the period of lease was further extended
upto
February 28,
1963.
On the question whether a protected tenant could claim the benefit of
s. 5 as amended by amending Act of 1952,
HELD: Section 5 of the 1948 Act as amended in 1952 did not apply
to protected tenancy.
The principal reason was that the tenancy of a protected tenant under
the j948 Act was of unlimited time.
Whereas a tenant other than a
protected tenant had a security only for 10 years and it was only under
s. 5 as amended in 1952 that a tenant other than a protected tenant became entitled to renewal of the tenancy for a period of 10 years in succession as mentioned in the said section. Any such renewal, for periods of
ten years, of a protected tenancy, would be destructive of the
protected
tenant's unlimited security as to duration of tenancy. Secondly, if s. 5 as
amended in 1952 applied to protected tenants the manner of termination of
tenancy mentioned in s. 5, namely, by giving one year's notice in writing
before the end of each period of ten years would have been totally inconsistent with the manner of termination of tenancy of a protected tenant.
The tenancy of a protected tenant could be terminated by one year's
notice on the grounds mentioned in s. 34 whereas the tenancy of one other
than a protected tenant, could be terminated on the grounds mentioned in
s. 34( 1) only at the end of each period of ten years. Thirdly, if the word
tenancy occurring in s.5 as amended in 1952 related to protected tenancy
the words "as if such a tenant was a protected tenant in s. 5(2) would
not have been necessary". And finally, s. 5 as amended in 1952 was in Ch. 11
which contained general provisions regarding tenancies and ss. 31 and 34
of 1948 Act which related to protected tenants, occurred in Ch. III of the
1958 Act. [341 H-342 HJ
Trimbak Damodhar Rajpukar v. Assaram Patil, [1962] Supp. 1 S.C.R.
700, referred to.

## Text

834
MANEKJI EDULJI MISTRY AND ORS.
v.
MANEKSHA ARDESHIR IRANI & ANR.
August 20, 1971
[C. A. VAIDIALINGAM, A. N.RAY AND D. G. PALBKAII., JJ.)
Bombay Tenancy and Agricultural Lands Act, 1948-.l'ection 5 as
amended by Bombay Act XXXllI of 1952-lf' applied to protecteti
tenancy.
The respondents were lessees of the appellants for a period of 5 years
from March 1, 1943. They were protected tenants under the Bombay
Tenancy and Agricultural Lands Act, 1948. They contended
that the
appellants-landlords could not claim eviction, because,
being
protected
tenants their lease was extended by statute up to February 28, 1953, and
as a result of the amendment of s. 5 of the 1948 Act by amendillg Act
of 1952 the period of lease was further extended
upto
February 28,
1963.
On the question whether a protected tenant could claim the benefit of
s. 5 as amended by amending Act of 1952,
HELD: Section 5 of the 1948 Act as amended in 1952 did not apply
to protected tenancy.
The principal reason was that the tenancy of a protected tenant under
the j948 Act was of unlimited time.
Whereas a tenant other than a
protected tenant had a security only for 10 years and it was only under
s. 5 as amended in 1952 that a tenant other than a protected tenant became entitled to renewal of the tenancy for a period of 10 years in succession as mentioned in the said section. Any such renewal, for periods of
ten years, of a protected tenancy, would be destructive of the
protected
tenant's unlimited security as to duration of tenancy. Secondly, if s. 5 as
amended in 1952 applied to protected tenants the manner of termination of
tenancy mentioned in s. 5, namely, by giving one year's notice in writing
before the end of each period of ten years would have been totally inconsistent with the manner of termination of tenancy of a protected tenant.
The tenancy of a protected tenant could be terminated by one year's
notice on the grounds mentioned in s. 34 whereas the tenancy of one other
than a protected tenant, could be terminated on the grounds mentioned in
s. 34( 1) only at the end of each period of ten years. Thirdly, if the word
tenancy occurring in s.5 as amended in 1952 related to protected tenancy
the words "as if such a tenant was a protected tenant in s. 5(2) would
not have been necessary". And finally, s. 5 as amended in 1952 was in Ch. 11
which contained general provisions regarding tenancies and ss. 31 and 34
of 1948 Act which related to protected tenants, occurred in Ch. III of the
1958 Act. [341 H-342 HJ
Trimbak Damodhar Rajpukar v. Assaram Patil, [1962] Supp. 1 S.C.R.
700, referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2435 of
1966.
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Appeal fdom the judgment an order dated November 6, and
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December 6, 1962 of the Bombay High Court in First Appeal No.
453 of 1960.
,
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MANEKJI V. MANEKSIIA (Ray, J.)
V. S. Desai, R. G. Samant, P. C. Bhartari and J. B. Dada-.
chanji, for the appe'lants.
V. M. Tarkunde, K. R. Chaudhuri. K. Rajendra Chaudhuri
and Hari Singh, for the respondents.
The Judgment of the Court was delivered by
'
Ray, J.
This appeal is by certificate against the judgment
dated 6 November/6 December, 1962 of the Bombay High Court
dismissing the appellants' suit filed on 14 September, 1959 against
the respondents, inter alia, for possession of suit property.
By an indenture of lease dated 16 March, 1944 the respondents became lessees of the appellants for a period of 5 years
from 1 March 1943 in respect of the agricultural lands belonging.
'to Jivanji Jamasji Mistry's Adarian Charities .. The app•;:llants
terminated the tenancy of the respondents by notice to quit dated
25 October, 1955. The notice to quit was effective on the expiry
of 31 March, 1957. The appellants without prejudice to the
October, 1955 notice gave another notice to qui'! dat·~d 10 June,
1958 to deliver possession within 7 days.
'Ifie respondents contended that they were protecfed t·~nants
under the Bombay Tenancy Acts 1939 and 1948 and, therefore,.
the appellants would not be entltled to possession.
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The trial Court held that after 31 March, 1957 the· respondents continued in posession and the appellams allowed the respondents to continue in posession by extending the term of the·
lease at least for one year up to 31 March, 1958. The trial Court
held that the notice dated 25 October, 1955 terminating the tenancy with effect from 31 March, 1957 could not therefore be
F
relied on by the appellants. As to the notice dated 10 June, 1958
the trial Court held that it was not a valid notice and a proper
three months notice expiring with the year on 31 March, should.
h~ve been given by the appellants.
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On appeal the High Court held that it was not necessary to·
consider whether the respondents had acquired the status of protected tenants.
The High Court held that the lease which was
operative from 1 March, 1943 for a period of 5 years was under
section 23(1)(b) of the. Bombay Tenancy Act, 1939 as amended
in 1946 deemed to be for a period of not less than 1 O years. The
lease was therefore effective up to 28 February, 1953. Meanwhile·
the Bombay Tenancy and Agricultural Lands Act; 1948 came
into force on 28 December, 1948. The High Court held that
section 5 of the Bombay Act, 1948 as it originally stood was in
terms similar to section 23 of the 1939 Act but as a result of
amendment of section 5 of the 1948 Act by the Bombay 'Act
336
SUPREME COURT REPORTS
(19 i2] 1 S.C.R.
XXXIll of 1952 the period of the lease was renewed up to 28
A
February, 1963 and therefore the appellants could not obtain a
.decree for posession.
Though section 5 of the 1948 Act as apiended by the Bom1;>ay
Act of 1952 was repealed by Bombay Act XIII of 1956 the High
.Court held that the tenants had acquired the vested right of proB
tection against termination of tenancy merely on the ground of .
.expiry of the duration fixed by agreement. The High Court said
.that it was not necessary to decide whether the respondents had
acquired the status of protected tenants.
The High Court held
that by reason of the provisions of section 5 of the 1948 Act as
amended in 1952 the respondents acquired renewed tenancy up to C
28 February, 1963 and unless the plaintiff-landlord could show
:that rights so acquired had ended they could not claim possession.
When the appeal came up for hearing before this Court on
13 February, 1970 this Court sent the matter back to the High
Court for submitting a report on two questions. First, whether
·on 1 March, 1953 the respondents were proteeted tenants.
D
Second, if the respondents were protected tenants on 1 March,
1953 whether on that account the respondents had the right 1to
claim the benefit of section 5 and other releva111t sections of fhe
Bombay Tenancy and Agricultural Lands Act 67 of 1948.
The High Court recorded the findings on 27 January, 1971.
The High Court recorded the answers that 1the respondents were
E
protected tenants on 1 March, 1953 and, secondly, the respondents did not have the right to claim the benefit of section 5 or
·other relevant &ections of fhe Bombay Tenancy and Agricultural
Lands Act, 1948. The respondents challenged the second finding of the High Court.
The Bombay Tenancy Act, 1939 came into effect on 2 April,
F
1940. Section 3 of fhe 1939 Act spoke of a tenant who would
·be deemed to be a protected tenant if he held land continuously
for a period of not less than 6 years immediately preoeding 1
January, 1938 and cultivated such land personally during the said
i>eriod. The Bombay Tenancy Amendment Act, 1946 introduced changes illlto the 1939 Act. These were sections 3A and 23.
G
Under section 3A of the 1946 Amendment Act every tenant on
the expiry of one year from .the date of the coming into force of
the 1946 Amendment Act would be deem~ to be a protected
tenant for the purpose of the Act and his rights
as
protecte.d
tenant would be recorded in the Record of Rights, unless his landlord has within fhe said period made an application to fhe releH
vant authority for a .declaration that he was not a protected tenant.
Under section. 23 of the 1946 Amendment Act no lease of any
land after the coming into force of the said section jn the relevant
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MANEK.TI V. MANEKSHA (Ray, !.)
337
area was to be for a period of less than 10 years and secondly
every lease subsisting on the said date, namely, coming into force
of-the Ac't or made after the said date in respect of any land in
such area shall be deemed to be for a period of not less than 10
years. Th.e leases subsisting on the date when the 1946 Amendment Act' came into force could not be 1te1minated bdore the expiry of the period of 10 years only on the ground that the period
of lease had expired but such a lease could be terminated by a
tenant by surrendering the lease.
The Bombay Tenancy Amendment Act 1946 was brought
into force from 8 November, 1946 throughout the Province of
Bombav. The effoct of the 1946 Amendment Act in the present
case was that the lease which was subsisting on -that date, viz., 8
November, 1946 was deemed 1to be for a period of not less than
10 years from 1 March, 1943 when the lease came into effect.
The other important change as a result of the 1946 Amendment
Act was that under section 3A of the Act the tenant was deemed
to be a protected tenant for the purpose of this Act and his rights
were •to be recorded in the Record of Rights. The facts found by
the High Court in the present case are that the tenant-respondents'
rights were recorded and the appellants did not make an application after the coming into force of the 1946 Amendment Act that
the respondents were not protected tenants. Therefore, the respondents were protected tenants and the lease was effecive for
1 O years from the date of the lease. . This extension of the lease
for 5 years beyond the period of 5 years mentioned i11 the lease
was by virtue of the provisions in the statute.
The Bombay Tenancy Act,
1939 was repealed by the·
Bombay Tenancy and Agricultural Lands Act, 1948 referred t<>
as the 1948 Aot.
It may be stated here that the 1948 Act re~
F
pealed the whole of the Bombay Tenancy Act, 1939 except sec-·
tions 3, 3A and 4 which were also modified in the manner mentioned in Schedule I to the 1948 Act.
In the present case, the
High Court has recorded the finding that the respondents were
protected tenants on 1 March, 1953. That finding is not chalG
lenged by either ·side in the present appeal.
The respondents have challenged the other finding of the High
Court that the respondents did not have the right to claim the
benefit of section 5 or other relevant sections of the 1948 Act.
The rival contentions in the present appeal are on the effect
of section 5 of the 1948 Act which was introduced as an amendH
ment by Bombay Act 33 of 1952 in subgtitution of section 5 as it
originally stood in the 1948 Act. On behalf of the respondents
it is said that they were protected tenants under the 1948 Act and
the lease of the respondents which had come into existence on
338
SUPREME COURT REPORTS
[19i2] 1 S.C.R.
1 March 1943 was extended up to 28 February, 1953 and as a A
result of' an amendment of section 5 by the 1952 Amending Act
the period of the lease was extended up ito 28 February, 1963,
and therefore, the appellants could not claim eviction.
The
appellants on the other hand contended 'that the respondents who
had a subsisting lease dated 1 March, 1943 for 5 yea!'S received
the benefit of statutory exP~nsion of the period by another 5 years
B
up to 28 February, 1953, and on 1 March, 1953 the respondents
were protected tenants who had an unlimited period of tenancy
which could be terminated in accordance with the provisions of
section 34 of the 1948 Act. It was also said on behalf of the
appellants that section 5 which was introduced into the 1948 Act
by the Amending Act of 1952 which came into effect on 12 c
January, 1953 did not at all apply to protected tenants but only
to ordinary tenants.
Even if it were assumed that section 5 of
the 1948 Act as amended by the 1952 Act applied, rt was said
on behalf of the appellants that as a result of the Bombay Amending Act 13 of 1956 which came into effect on 1 August, 1956
section 88B introduced by the Amending Act of 1956 removed
0
section 5 from the statute and the appellants were not entitled to
invoke any protection under that section of the statute.
In order to appreciate these contentions it is necessary 'to refer to s-~ction 5 which was introduced into the 1948 Act by 'the
Amending Act of 1952 which is as follows-
"5 (I) No tenancy of any land shall be for a period of less
than ten years.
Provided that art the end of the said period and
thereafter at the end of each period of ten years in succession, the tenancy shall, subject to the provisions of
sub-sections (2) and (3); be deemed to be renewed for
a further period of ten years on the same terms and
conditions notwithstanding any agreement of the
contrary.
(2) The landlord may, by giving the tenant one
year's notice in writing before the end of each of the
period referred to in sub-section
( 1), terminate the
tenancy with effeot from the thirty-first day of March
in the la~t year of each of the said period: if he bona
fide reqmres the land for any of the purposes s]J'~cified
in sub-section ( 1) of section 34, but subject to 'the provisions of sub-sections ( 2) and ( 2A) of the said section, as if such tenant was a protected tenant.
( 3) Notwithstanding anything contained in
subsection ( 1) ;-
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MANEKJJ V. MANEKSHA (Ray, J,)
(a) every tenancy shall, subject to the provisions of
sections 24 and 25, be liable to be terminated at
any tinie on any of the grounds mentioned in
section 14; and
(b) a tenant may termina'te the tenancy at any time
by surrendering his interest as a tenant in favour
of the landlord :
Provided that such surrender shall be in writing and
shall be verified before the Mamlatdar in the prescribed
manner".
339
The question in the forefront is whether section' 5 introduced
by the Amending Act of 1952 applied to protected tenants.
Counsel on behalf of the respondents contended not only that the
said section 5 applied rto protected tenants but also that if the said
section 5 were held to be applicable only to ordinary tenants the
respondents who were protected tenants could claim the benefit
of ordinary tenants by virtue of their position of contractual
tenants.
The 1948 Act recognised a tenant to be a protected tenant
if such person had been deemed to be a protected tenant under
sections 3, 3A or 4 of the Bombay Tenancy Act, 1939. Section
34 of the 1948 Act provided that notwithstanding anything contained in section 14 a landlord might terminate the tenancy of a
protected tenant on the grounds and in the manner as provided in
that section. It therefore follows that a protected tenant had been
given security under the 1948 Act for an unlimited duration and
he could be ejected either on grounds mentioned in section 14
or for grounds mentioned in section 34 of the 1948 Act. A protected tenancy therefore did not come to an end on the expiration
of any particular period. A protected tenancy could be brought
to termination only on tho~ grounds and in the manner mentioned
in sections 14 and 34 of the 1948 Act. It is also noticeable that
no new protected tenancy could come into existence under the
1948 Act.
Section 5 of the 1948 Aot as it originally stood provided that
no tenancy could be for a period of less than ten years and no
tenancy was to be terminated before the expiry of the period of
10 years except on the grounds mentioned in section 14. There·
fore, under section 5 of the 1948 Act as it orig'.nally stood,
tenants other than protected rtenants were given a security to the
extent of I 0 years only.
Persons other than protected tenants
could under sections 14 ( 2) and 15 of the 1948 Act be allowed
340
SUPREME COURT REPORTS
[1972] l S.C.R..
to hold over and in such case of holding over the tenancy '\if
such a tenant shall be deemed to have been renewed for a further
period of 10 years from the date of the expiry on the same terms
and conditions".
A
Therefore, under the 1948 Act prior to the amendment in
1952 there was on the one hand a protected tenant with a security
B
for an unlimited perlod whose tenancy could be terminated for
grounds and in the manner mentioned in sections 14 and 34 of
the 1948 Act and on the other hand a person other than protected
tenant who had a security for a period of 10 years with the possibility of a landlord allowing such a tenancy to hold over in which
case he would have a further period of 10 years. Unless the tenancy was terminated in accordance with the provisions of the Act.
It is in this context that section 5 was introduced into the Act
by the Amending Act of 1952. The effect of the amended section 5 came up for consideration by this Court in Trimbak
Damodhar Raipurkar v. Assaram Hiraman Patil & Ors.(1) The
facts in that' case were <these.
A tenancy came into existence on
5 February, 1953 for 5 years. Under the provisions of section
23 (1 )(b) of the 1939 Act as amended in 1946 the subsisting
lease was deemed to be for a period of not less than 10 years.
During the subsistence of the tenancy the 1948 Act came into
existence. A natice was given to the tenants calling upon them to
deliver possession after expiration -of the period of tenancy on 31
March, 1953.
Meanwhile, the 1952 Amending Act had come
into effect on 12 January, 1953. The tenant in that case relied
on section 5 as amended in 1952. That case was of an ordinary
tenant and not, of a protected tenant. This Court held •that the
Amending Act 1952 repealed section· 14(2) of the 1948
Act,
amended section 5 of the 1948 Act and the effect of the amend-·
ment in that case was stated as follows :-
"Shortly stated the effect of this
amendment was
that the tenancy of the respondents, who were till then
ordinary tenants as distinct from protected tenants,
could not be terminated on the expiry of their tenancy
except by giving one. year's notice and that too on the
ground that the lands were requiI>~d by the landlord for
bona fide personal cultivation and that the income of
the said lands would be the main source of income of
the landlord".
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Prior to the Amending Act of 1952 the tenancy of an ordinary
tenant could be terminated on the grounds mentioned 1n section
14 before the exp.fry of <the period of 10 years. An ordinary tenant however could hold over under section 14(2) of the 1948
H
Act. After the amendment of section 5 and the repeal of section
0) (1962] supp. I S. C.R. 700
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MANEKJI V. MANEKSHA (Ray, J.)
341
14 ( 2) of the 1948 Act a itenancy contemplated in section 5 of
the Act would at the end of each period of 10 years subject to,
the provisions of sub-sections (2) and (3) be deemed to be renewed for a further period of 10 years. This was a new protec-
•tion afforded to tenancies mentioned in section 5 of the Act. The
second sub-section of section 5 as amended in 1952 provided that
the landlord. by giving one year's notice in writing before the end
of each period of ten years referred to in ·section 5 ( 1) of the Act
could 'terminate the tenancy with effect from the thirty-first day
of March in the last year of each of the said period, if the landlord bona fide required the land for any of the purposes specified
in section 34(1) but:subject to the provisions of sub-sections (2)
and (2A) as if such tenant was a protected tenant. On the one
hand a tenant under section 5 as amended in 1952 could have a
renewal of a further period of 10 years and on the other the land--
lord could terminate the tenancy at 1the end of the period of 1 O·
years by giving a notice as mentioned in section 5 ( 2) of the Act
as amended fn 1952.
The decision of this Court in Trimbak Damodhar Raipurkar's.
case (supra) noticed 1the distinction between ordinary tenants and
protected tenants and applied section 5 as amended in 1952 to .
the case of an ordinary renant as distinct from a protected tenant.
This decision also held that there was a statutory extension of the
duration of the lease by virtue of the provisions of the Act. rt
could not be said that when a lease for 5 years was extended as
a result of the provision of the s•tatute that extension was' in terms
of the contract. In Trimbak Damodhar Rajpurkar's case (supra)
this Court held that before the lease could expire on 31 March,
1953 in that case •the period of the lease had been extended for
10 years as a result of the amendment of section 5 by the Amending Act of 1952 which came into effect on 12 January, 1953, and
it could not be terminated save and except as specified by a valid
notice or a surrender. The notice given in the month of March,
1952 in that case which called upon the tenant to deliver poss·~s
sion on ithe expiry of .the statutory period of 10 years on 31
March, 1953 proved abortive by reason of the operation of the
amendment of section 5 renewing the term of the' tenancy for the
period of ten y-~ars.
The principal reason as to why section 5 as amended in 1952
does not apply to a protected tenant is that the tenancy of a protected •tenant under the 1948 Act was of unlimited time and the
tenant other than a protected tenant had a security only for 1 O
H yems and it is only under section 5 as amended in 1952 ·that such
a t1~nant other than a protected tenant became entitled to renewal
of 'the tenancy for a further period of 10 years in succession as
mentioned in the said section. Secondly, section 5 and, in parti-
342
SUPREME COURT REPORTS
[1972] 1 S.C.ll
cular, sub-sectiou t2) th~reof as amended in 1952 spoke of terA
mination of tenancy by the landlord by giving the tenarrt one
year's notice in writing if the landlord bona fide required the land
for any of the purposes specified in sub-section ( 1) of section 34
but subject to the provisions of sub-sections ( 2) and ( 3) of the
said section as if such a tenant was a protected tenant. The words
'as if such a tenant was a protected tenant' indicate that the legisB
lature treated section 5 as applying to tenancies other than protected tenancies. If the word 'tenancy' occurring in section 5 of the
Act as amended in 1952 related to protected tenancy the words
'as if such a tenant was a protected tenant' in section 5 (2) would
not have been necessaiy.
In the third place, section 5 of the
1948 Act as amended in 1952 was in Chapter II of the Act.
Chapter II related to general provisions
regarding tenancies.
Sections 31 and 34 of the 1948 Act which related to protected
tenaD'ts occurred in Chapter III of the 1948 Act. The heading
of Chapter III of the 1948 Act before the amendment therel!Jf in
1956 was 'Protected tenants their special rights and privileges'.
The recognrtion of protected tenant was only under section 31
of the 1948 Act.
The ~~rmination of a tenancy of a protected
tenant was specifically provided for only in section 34 ot the Act.
Section 34 itself pro\~ded that notwithst~nding anything contained
in section 14 the tenancy of a protected tenant could be termiplated as mentioned in section 34 of the Act.
It is true that secti9n 14 of the Act occurred in Chapter II but that section was
attracte.i:I only for termination of tenancy of a protected tenant
because of 'the grounds mentioned in s. 14.
These were
specific provisions for protected tenants.
Fourthly, the termination
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of tenancy of a person other thain a protected tenant after the
amendment of section 5 in 1952 on the grounds mentioned in
sectio,n 34 of the Act was by applying the grounds as if such
tenant was a protected tenant.
It is, therefore, manifest that if F
section 5 as amended in 1952 applied to protected tenants the
manner of termi.nation of tenancy mentioned in section 5, namely, by giviin:g one year's notice in writing before the end of each
period of ten years would have been totally inconsisteint with
the manner of termination of tenancy of a protected tenant. A
protected teinant had unlimited security of tenure wth the exception of termination by one year's notice on the grounds mentioned in section 34 whereas the teinancy of one other than a proienant would continue to bi:: renewed for a period of ten years
section 34 ( 1) 0tnly at the end of each period of ten years. Fifthly, under the 1948 Act no new protected tenancy could come
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into existence whereas a tenancy other than that of a protected
1enant would continue to be renewed for a period of ten years
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in successi<111 unless the tenancy was terminated at the end of one
·such period of ten years.
Finally, if a protected tenancy
of
MANEKJI v. MANEKSHA (Ray, J.)
343
A unlimited time was brought within the ambit of section 5 as
amended in 1952 the protected tl1Jlancy would be contemplated
to be renewed for periods of ten years in successi?n. Any such
renewal for periods of ten years would be destrucuve of the protected tenant's lljlliirnited security as to duration of tenancy.
B
In view of our conclusion that sects0ill5 of the 1948 Act as
amended in 1952 does not apply to protected tenency for the
reasons indicated above, it is not necessary to consider another
contention advanced on behalf of the respondents that apart from
protected tenancy secliion 5 of the 1948 Act as amended could
be invoked as a part of cO)!ltractual tenancy.
The reason
is
c obvious.
The protection afforded by section 30 of
the
1948
Act to contractual terms of tenancy is that the rights or privileges vested in the tenancy under any contract cannot be abridged
or limited.
The provisions contained in section 5 of the 1948
Act as amended are provisio,ns of the statute not applicable to
protected tenants and a protected tenant cannot therefore claim
the protection of such a statutory provision far less on the ground
D · that it is a right or privile!!:es arising out of any contract. It has
to be borne in mind that section 5 as amended in 1952 speaks of
the fictional renewal of a tenancy for periods of ten years.
A
protected tenaint on the
other hand acquired
the statutory
"Status or irremovability" when the 1948 Act recognised a protected tenant and nothing more was required to be done td reE new or extend the duration of statutory tenure.
To apply the
renewal of tenancy for periods of ten years under the amended
section 5 would be to rob the protected tenancy of its u11limited
security and truncate it into tenancy for period of ten years renewable as mentioned the1tLt.
In the present case the tenancy under the lease which was for
F a 5 years commencing 1 March, 1943 was operative in duration
upto 29 February, 1948. The responde.nts by virtue of secliion
23 (1 )(b) of the Tenancy Act of 1939 as amended in 1946 became entitled to an extension of 5 years under the statutory provisions. This Court in Trimbak
Damodhar Raipurkar'>
case
(supra) nolliced that the extension of the duration of the lease
G was virtue of a statute.
This is described as a 'Statory security
of tenure". "Various statutes give security of tenure to tenants.
The co-called statutory tenancy created under the Rent Acts
........ upon the determination of contractual tenancy is not
properly speaking, a species of tenancy, it is a.
person"al right
in the tenant not to have an order for possession made
a<>ainst
11 him unless certain specified conditions are fulfilled; it is a
"status of irremovabi!ity" (See Woodfall Landlord and Tenant,
27th Edition, Vol. I paragraph 703 pp. 295 to 296). An ordinary tenant could invoke in aid the provisions of section S of the
344
SUPREME COURT REPORTS
(1972] I S.C.R.
1948 Act as amended in 1952 and even in that case the extended terms would be under the statute and /IlOt as part of the contractual term. A protected tenant, as is the case here, is disentitle to be within the scope of the amended section 5.
A
The 1948 Act was amended by the Bombay Amending Act
B
13 of 1956 which came ipto effect on 1 August. 1956. As a result of the 1956 amendment section 5 which had been introduced into the Act by the amended Act of 1952 ceased to be on
the statute and a new section 5 was substi'tued. But the
new
section 5 substituted in 1956 has no relevance to the
present
appeal.
The contention qn behalf of the respondents was that
C
section 5 as amended in 1952 had conferred a vested right on
the respondents and therefore the deletion of the amended section
5 by the 1956 amendment could not take away the vested rights
of the respondents.
The contention on behalf of the appellants as to the effect
D
of substitution of the amended section 5 by a totally different
section 5 of 1956 was first that section 5 did not apply and even
if it applied it did not create a ve!l!ed right and secondly if the
statute conferred any protection or privilege the statute could
'lake away such a protection or· privilege.
E
This Court in Sidram Narsappa Kamble v. Sholapur Borough
Municipality & Anr.(1) considered the
effect of the
1956
Amendment Act in relation to protected tenants. In the present
appeal, in view of our conclusion that section 5 of the 1948 Act
as amended in 1952 did not apply 1o prot»...cted tenants. it is not F
necessary to consider the contention advanced on b~half of the
respondents whether they had any vested right in the amended
section 5.
For these reasons the findings of the High Court dated 27
January, 1971 are upheld and the judgment dated 6 November/
G
6 December, 1962 is set aside.
/
Counsel for both the parties submitted that the matter that
matter .would have to be remanded to the High Court for coosideration as to whether there was a valid termination of tenancy.
The matter is remanded 'to the High Court for decision of the
II
appeal as to whether there was a valid termination of tenll!ncy.
(1) [1966] 1 S.C.R. 618.
A
MANEKJI v. MANEKSHA (Ray, J.)
345
In view of tbe fact that this is an old litigation we hope that the
matter will be heard as soon as is convenient to the High Cou~t.
The order of costs passed by the High Court is set aside.
Costs of this appeal will abide the result of the decision of the
High Court. The successful party would be fl!ilitled to costs.
K.B.N.