1965 (8) TMI 75 - SC - Indian Laws

Supreme Court remands case for exclusive Revenue Court determination, directs payment of appeal costs.

The Supreme Court set aside the decrees of the High Court and District Court, remanding the case to the District Court. The District Court was instructed ... Retroactive restoration of statutory tenancy rights - proviso to section 43C - saving of tenant's rights - exclusive jurisdiction of Revenue Court under combined operation of sections 70 and 85 - referral of issues from Civil Court to competent authority under section 85A - continuation of suits instituted in Civil Court pending referralProviso to section 43C - saving of tenant's rights - retroactive restoration of statutory tenancy rights - Whether the proviso to section 43C of Act 13 of 1956 protects and restores to tenants the rights acquired under the Bombay Tenancy and Agricultural Lands Act, 67 of 1948, notwithstanding the earlier amendment by Act 33 of 1952. - HELD THAT: - The Court construed the proviso to s. 43C as a substantive protective enactment which restores retrospectively the rights acquired by persons as tenants under Act 67 of 1948 on or after 28 December 1948, notwithstanding the application of Act 33 of 1952 or the amendments effected by Act 13 of 1956 (save as expressly provided in s. 43D). The proviso was held to operate to preserve the tenancy status and the attendant statutory rights (including those derivable from ss. 5, 14, 29 and the protections available to protected tenants) already vested before the operation of the 1952 amendment, thereby enabling a person sued before the 1956 amendment came into force to plead entitlement to rights under the principal Act. The Court agreed with the Bombay High Court decision in Patel Maganbhai Jethabhai that the proviso affords such protection and that a tenant may claim those rights in pending proceedings.Proviso to s. 43C restores and protects rights acquired under Act 67 of 1948 with retrospective effect and is available to the respondent.Exclusive jurisdiction of Revenue Court under combined operation of sections 70 and 85 - referral of issues from Civil Court to competent authority under section 85A - Whether issues which, under Act 67 of 1948, are required to be settled, decided or dealt with by the Mamlatdar or other revenue authority are triable by the Civil Court, and the proper procedure where such issues arise in a civil suit. - HELD THAT: - The Court held that by the combined effect of ss. 70 and 85 the Mamlatdar (as a Revenue Court) has exclusive jurisdiction to determine whether a person is a tenant or a protected tenant under the Act and other issues the Act requires the Revenue Court to decide. After enactment of Act 13 of 1956 the Legislature has made clear (including by s. 85A) that where a suit in a Civil Court involves issues required to be decided by the competent authority under the Act, the Civil Court must stay the suit and refer those issues to that authority, which will decide them and communicate its findings to the Civil Court for disposal of the suit in accordance with those findings. The Civil Court is therefore not competent to adjudicate such issues itself; the proper course is referral and continuation of the civil proceedings in light of the Revenue Court's determinations.Issues triable exclusively by the Revenue Court under the Act must be referred by the Civil Court to the Mamlatdar/competent authority and decided by that authority; the Civil Court cannot itself try those issues.Continuation of suits instituted in Civil Court pending referral - referral of issues from Civil Court to competent authority under section 85A - Whether a suit properly instituted in a Civil Court before the coming into force of Act 13 of 1956 must be dismissed for want of jurisdiction after that Act's amendments restored tenants' rights, and the consequent remedy. - HELD THAT: - The Court rejected the view that such suits must be dismissed. There is nothing in Act 67 of 1948 or its amendments which prevents the continuation of a suit already instituted. However, where issues arise which are exclusively triable by the Revenue Court (by operation of ss. 70 & 85 and s. 85A), the Civil Court should refer those issues to the Mamlatdar for decision and thereafter proceed to dispose of the suit in accordance with the Revenue Court's findings. Dismissal by the Civil Court for lack of jurisdiction is not the correct remedy; instead the appropriate procedural step is referral and continuation.Suit pending in Civil Court need not be dismissed; issues within the exclusive jurisdiction of the Revenue Court must be referred and the civil suit disposed of in the light of the Revenue Court's decision.Remand for determination by Mamlatdar - exclusive jurisdiction of Revenue Court under combined operation of sections 70 and 85 - What order should be made in the present proceedings given the District Judge's dismissal of the ejectment suit. - HELD THAT: - The Court found that the District Judge erred in dismissing the suit and that the correct course is to set aside the decrees below and remit the matter to the District Court with directions to restore the appeal to its original number and proceed according to law. Where issues in the suit are exclusively triable by the Mamlatdar, those issues must be referred to the Mamlatdar for decision; the Civil Court should then decide the suit in accordance with the Mamlatdar's findings. The Court therefore remanded the matter for referral and further proceedings rather than affirming dismissal.Decrees of the courts below set aside; matter remanded to District Court with direction to refer the relevant issues to the Mamlatdar and proceed according to law.Final Conclusion: The proviso to s. 43C of Act 13 of 1956 retroactively restores and protects rights acquired by tenants under Act 67 of 1948; issues which the Act allocates exclusively to the Mamlatdar/Revenue Court must be referred by the Civil Court (under ss. 70, 85 and s. 85A) for determination and the pending civil suit continued and disposed of in the light of those determinations. The decrees below are set aside and the suit is remanded to the District Court with directions to refer the relevant issues to the Mamlatdar; costs of this appeal are awarded against the appellant's legal representatives. Issues Involved:1. Termination of tenancy rights.2. Jurisdiction of Civil Court to grant a decree for possession.3. Interpretation and application of statutory provisions under the Bombay Tenancy and Agricultural Lands Act, 1948, and subsequent amendments.Issue-wise Detailed Analysis:1. Termination of Tenancy Rights:The appellant granted tenancy rights for agricultural purposes in 1939, which continued under fresh agreements year after year. The appellant issued a notice to terminate the tenancy on November 2, 1955, and sought possession of the land by March 31, 1956. The appellant filed a suit for ejectment and mesne profits on April 4, 1956. The Civil Judge initially decreed in favor of the appellant, but the District Judge reversed this decision, holding that the respondent's tenancy rights were protected by the Bombay Tenancy and Agricultural Lands Act, 1948, as amended by Act 13 of 1956. The District Judge concluded that the Civil Court lacked jurisdiction to grant possession due to the proviso to Section 43C of the amended Act, which protected the respondent's tenancy rights retrospectively.2. Jurisdiction of Civil Court to Grant a Decree for Possession:The appellant contended that the respondent's tenancy rights were extinguished by the enactment of Bombay Act 33 of 1952 and were not restored by Act 13 of 1956. The appellant argued that the Civil Court was competent to grant a decree for possession. However, the Supreme Court held that the Civil Court could not try issues exclusively triable by the Revenue Court, as mandated by Sections 70 and 85 of the Bombay Tenancy and Agricultural Lands Act, 1948. The proper procedure was for the Civil Court to refer such issues to the Revenue Court and then proceed based on the Revenue Court's findings.3. Interpretation and Application of Statutory Provisions:The Supreme Court examined the legislative history and amendments to the Bombay Tenancy and Agricultural Lands Act, 1948. The Court noted that the respondent acquired protected tenancy rights under the 1948 Act, which were preserved despite the Act's repeal. The amendments by Act 33 of 1952 excluded lands within municipal boroughs from the Act's operation, but Act 13 of 1956 restored these rights retrospectively. The proviso to Section 43C of the amended Act protected the respondent's tenancy rights acquired under the 1948 Act, notwithstanding the amendments made by Act 33 of 1952 and Act 13 of 1956.The Supreme Court clarified that the proviso to Section 43C, although clumsily drafted, aimed to protect tenancy rights acquired under the 1948 Act from being affected by the subsequent amendments. The Court rejected the appellant's reliance on Section 89(2)(b) of the 1948 Act and Section 7 of the Bombay General Clauses Act, 1904, as these provisions did not apply to rights acquired after the commencement of the 1948 Act.The Supreme Court agreed with the Bombay High Court's decision in Patel Maganbhai Jethabhai's case, which held that the proviso to Section 43C protected tenants' rights retrospectively. However, the Court found that the District Judge erred in dismissing the suit outright. Instead, the Civil Court should have referred the relevant issues to the Revenue Court for determination.Conclusion:The Supreme Court set aside the decrees of the High Court and the District Court and remanded the case to the District Court. The District Court was directed to restore the appeal to its original number and proceed according to law, referring issues exclusively triable by the Revenue Court to that authority. The appellant's legal representatives were ordered to pay the costs of the appeal to the respondent, with costs in the District Court to abide by the final decision.Separate Judgment:Mudholkar, J., concurred with the majority opinion but emphasized the procedural aspects of referring issues to the Mamlatdar (Revenue Court) for determination. He reiterated that the Civil Court must stay proceedings and refer issues related to tenancy status to the Mamlatdar, who has exclusive jurisdiction under Sections 70 and 85 of the Act. The suit should be decided based on the Mamlatdar's findings.