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1969 DIGILAW 103 (KAR)

JAMKHANDI MUNICIPALITY v. LAXMAVVA VENKAPPA

1969-10-30

SOMNATH IYER

body1969
( 1 ) THE Jamkhandi Municipality constituted under the Bombay District municipal Act, 1901, is the defendant No. 1 in the suit out of which this rsa. 662/65 from RA. 58/64 Civil Judge, Bijapur. second appeal arises. That was a suit brought by the plaintiff for an injunction restraining the Municipality froni disturbing her possession and enjoyment of the suit property and from creating a fresh lease in respect of it. It is admitted that there was a lease of the suit property by the Municipality to the plaintiff on the 6th of June 1957. The term of that lease was five years and on its expiry, the Municipality purported to terminate the lease by a notice issued in that regard and announced a sale of the lease right by public auction. It was at that stage the plaintiff brought her suit. ( 2 ) IT was asserted by the plaintiff that under S. 4b o'f the Bombay Tenancy and Agricultural Lands Act, it was not within the competence of the municipality to terminate the lease in her favour merely on the ground that the term of the lease had expired and that she had a right to continue to be in possession of the property. But the Municipality contended that the provisions of BT. and AL. Act do not govern the lease granted by it and that in any event the suit which was not preceded by the issue of a notice under S. 167a of the Bombay District Municipal Act was not maintainable. ( 3 ) IT was also maintained by the Municipality that the jurisdiction to decide the question whether the land was agricultural land so as to attract the provisions of the BT. and AL. Act did not reside in the Civil Court and that that issue had to be referred to a Tenancy authority under S. 85a of the BT. and AL. Act. The Courts below repelled these defences to the suit and gave the plaintiff the decree which she wanted and so the Municipality appeals. It is abundantly clear that the argument advanced on behalf of the municipality that the Courts below had no jurisdiction to decide whether the land was agricultural land is without substance. S. 88b of the BT. and al. It is abundantly clear that the argument advanced on behalf of the municipality that the Courts below had no jurisdiction to decide whether the land was agricultural land is without substance. S. 88b of the BT. and al. Act exempts leases granted by a local authority from all the provisions of that Act other than those expressly enumerated in that section, which reads :"88b: Nothing in the foregoing provisions except Ss. 3, 4b, 8, 9, 9a, 9b, 9c, 10, 10a, 11, 13 and 27 and the provisions of Chapters VI and VIII in so far as the provisions of the said Chapters are applicable to any of the matters referred to in the sections mentioned above, shall apply- (a) to lands held or leased by a local authority, or a University established by law in the pre-Reorganisation State o'f Bombay, excluding the transferred territories: s. 85 which prohibits a Civil Court from exercising jurisdiction in respect of questions which could be decided by the tenancy authorities constituted under the Act and S. 85a, which insists on a reference of those issues by the Civil Court to such tenancy authorities are not among those sections expressly enumerated in S. 88b and so have no application to a lease granted by a local authority. That being so, although under the provisions of BT. and AL. Act, the question whether a land is an agricultural land could be decided only by the concerned tenancy authority and that question if it arose before a Civil Court could not be decided by it, but has to be referred to a tenancy authority, that prohibition to the exercise of jurisdiction by a Civil Court in that sphere does not extend to and lease granted by a local authority. The Courts below were, in my opinion, therefore right in reaching the conclusion that they had the jurisdiction to' decide that issue and their finding was that the land was an agricultural land so as to attract the attention of BT. and AL. Act. That finding being, a finding on a pure question of fact, is not open to discussion by the Court. ( 4 ) THE Courts below next proceeded to point out that since the land was an agricultural land, the lease created by the Municipality in favour of the plaintiff was governed by the provisions of S. 4b of that Act. That finding being, a finding on a pure question of fact, is not open to discussion by the Court. ( 4 ) THE Courts below next proceeded to point out that since the land was an agricultural land, the lease created by the Municipality in favour of the plaintiff was governed by the provisions of S. 4b of that Act. The provisions of S. 4b, which therefore became applicable to the lease in favour of the plaintiff reads:"no tenancy of any land shall be terminated merely on the ground that the period fixed by agreement or usage for its duration has expired. "it is undisputed that the only ground on which the Municipality terminated the plaintiff's lease was that the term of the lease has come to an end and it is perfectly manifest from this section that such termination was beyond the competence of the Municipality and so was illegal. The plaintiff, therefore, became entitled, if nothing else could be said about it, to the injunction sought for by her. ( 5 ) IT was however unsuccessfully contended before the Courts below that the plaintiff's suit which was not preceded by notice under S. 167a of the bombay District Municipal Act could not succeed. That section insists on the issue of a notice as a condition precedent to the institution of a suit where the suit is in respect of an act done in pursuance or execution or intended execution of the Bombay District Municipal Act. The view taken by the Courts below was that the illegal termination of the plaintiff's lease was not an act done in pursuance or execution or intended execution of the bombay District Municipal Act within the meaning of those words occurring in S. 167 of that Act and that they were right in taking that view is clear from the enunciation made by the Supreme Court in Poona City municipal Corporation v. Dattatraya Nagesh , AIR 1963 SC 555 that what is plainly prohibited by the Act is not done or purported to be done in pursuance or execution or intended execution of the Act. Although the words 'purported to be done' did not occur in S. 167a of the Bombay District Municipal Act, the words "done in pursuance of Intended execution of the Act" are in it and the enunciation therefore means that if the act to which the suit relates is prohibited by the Bombay District Municipal Act, the provisions of s. 167a of the Act can have no application and so the notice on which it insists becomes unnecessary. ( 6 ) BUT Mr. Joshi, however, maintained that since the prohibition to the termination of the plaintiff's lease merely on the ground that its term has expired, is to be found only in S. 4b of the B. T. and A. L. Act and is not a prohibition which the Bombay District Municipal Act Incorporates, the termination which was made in pursuance of the Bombay District Municipal act and which is not prohibited bv that Act could not be regarded as one not made in pursuance of the Bombay District Municipal Act. ( 7 ) IT is obvious that this contention has merely to be stated to be dismissed for its unreasonableness. A notice under S. 167a is necessary only when the suit concerns something which Is done in pursuance of the bombay District Municipal Act. If the act against which there is a complaint in the suit is not within the competence of the Municipality, either because the Bombay District Municipal Act forbids it or because there is another statutory provision like Section 4b oi the b. T. and A. L. Act, which introduces a fetter on the power exercisable by the Municipality under the Bombay District Municipal Act, it cannot be said that although the act is forbidden by the Tenancy Act, it is nevertheless permissible under the Municipal Act. A lease created under the Municipal Act is as much subject to the provisions of that Act as it is subject to the provisions of a special statute like B. T. and A. L. Act which creates a special provision which regulates that statutory lease. To that special statutory provision, the general provisions of the general Act thus become subjected and so what is prohibited by the special Act is equally prohibited by the general Act. To that special statutory provision, the general provisions of the general Act thus become subjected and so what is prohibited by the special Act is equally prohibited by the general Act. ( 8 ) IN that view of the matter, the termination of the plaintiff's lease merely oil the ground that its term, had expired was beyond the competence of the Municipal Council and what was thus impermissible for the Municipality could not be said to be something done in pursuance of the Municipal Act. So, this case is one which is fully within the enunciation made by the Supreme Court i therefore dismiss this appeal. In the circumstances, I direct each party to bear its/ his / her costs in all the three Courts. --- *** --- .