NEMANI IRAPPA HUNDRE v. BELGAUM MUNICIPAL COUNCIL — 1974 DIGILAW 77 (KAR)

( 1 ) THE appellant is the judgment-debtor. Respt. is the decree-holder. The decree-holder is the Belgaum Municipal Council. Certain agricultural lands belonging to the Municipality were leased to the judgment-debtor by the decree-holder tor one year on 22-4-1949. Thereafter the decree-holder filed the sun OS. No. 166 50 for possession of the suit lands from the judgment-debtor in the Court of the Civil Judge, JD. , Shahapur. This suit was dismissed by the trial Court. But on appeal, in CA. 128,52 the Dist. Judge, belgaum, reversed the findings of. the trial Court, allowed the appeal and decreed the suit on 16-2-1954 Thereafter the judgment-debtor filed a second appeal to the High Court of Bombay. That appeal was transferred to this Court after the reorganisation oi States and was numbered as SA. No. 31/56 (B ). That second appeal was dismissed on 16-2-1966. But the issue with regard to tenancy of the judgment-debtor was kept open. ( 2 ) THE decree was sought to be. executed in Execution Case 197 66 in the Court of the, II Addl Munsiff, Belgaum. The judgment-debtor raised objection that he was the tenant of the land entitled to protection under the Mysore Land Reforms Act. That objection was over-ruled and the court ordered delivery of possession. Thereupon, the judgment-debtor filed Execution Appeal 17 71 in the Court of the II Addl. Civil Judge, Belgaum. That appeal was also dismissed. The present second Appeal has been filed against that qrder. ( 3 ) THE contention of Mr. S. L. Benadikar is that under S. 91 of the mysore Land Reforms (Amendment) Act, 3973, Karnataka Act 1 of 1974, which has come into force on 1st day of March 1974, the jurisdiction of the civil Court has been taken away with retrospective effect and that the issue with regard to tenancy must be tried de novo by the authority prescribed under the Mysore, Land Reforms Act as amended by the Karnataka act 1 of 1974. But Mr. J. S. Gunjal, appearing fqr the Respt. , has relied on s. 72 of the Karnalaka Act 1 of 1974 under which S. 107 of the Mysore land Reforms Act 10 of 1962 has been amended. But Mr. J. S. Gunjal, appearing fqr the Respt. , has relied on s. 72 of the Karnalaka Act 1 of 1974 under which S. 107 of the Mysore land Reforms Act 10 of 1962 has been amended. His contention is that except S. 8 of the other provisions of the Mysore Land Reforms Act, as aniended by Act 1 of 1974, do not apply to the lands which are the subject matter of the Execution Case, since the lands belong to a local authority namely, the Belgaum Municipality. ( 4 ) THE relevant portion of S 107 as amended by Act 1 of 1974 reads as follpws : " 107. Act not to apply to certain lands.- * * * * * " it is clear, therefore, that after the amendment, under S. 107 the provisions of the Mysore Land Reforms Act except Sec. 8 do not apply to the lands belonging to or held on lease from a local authority. ( 5 ) THE relevant portion of S. 91 of the Act 1 of 1974 reads as follows. "91. Disposal of pending proceedings.- * * * * *" hence with regard to proceedings commenced before 1-3-1974 and pending before any Cpurt, Tribunal or other authority the provisions of the Mysore land Reforms Act as amended by Act 1 of 1974 shaft be, applicable as if the principal Act as amended was in force when the right accrued or liability was incurred. This means that S. 107 as amended must be deemed to have been in force when the right accrued to the decree-holder to, take possession of the property and the liability to hand over possession was incurred by the judgment-debtor. In other words, on the date when the execution Court ordered delivery of possession, none of the provisions of the Mysore Land Reforms Act applied to the lands possession of which is to be sought by the decree-holder except Section 8. ( 6 ) MR. Gunjal has also relied on the decision of the Supreme Court in Kamble v. Sholapur Municipality, AIR. 1966 SC. 538. In that case ajso the tenancy was in respect of lands situated within the municipal limits of the Sholapur borough Municipality and belonged to the Municipality. The Bombay tenancy Act, 29 of 1939, was applied to this area. Under S. 3a of that act the tenant became a protected tenant. 1966 SC. 538. In that case ajso the tenancy was in respect of lands situated within the municipal limits of the Sholapur borough Municipality and belonged to the Municipality. The Bombay tenancy Act, 29 of 1939, was applied to this area. Under S. 3a of that act the tenant became a protected tenant. The 1939 Act was repealed in 1948 by the Bombay Tenancy and Agricultural Lands Act LXVII of 1948. S. 31 of the 1948 Act provided that for the purposes of this Act, a person shall be recognised to be a protected tenant if such person had been deemed to be a, protected tenant under the 1939 Act. But, S. 88 of the 1948 Act provided that nothing in the foregoing provisions of the 1948 Act shall apply to lands held on lease from a local authority. The tenant however relied on S,89 (2) of the 1948 Act which provided for the repeal of the 1939 Act except for Ss. 3, 3a and 4 which continued as modified in Sch. I of the 1948 act. That sub-section provided that nothing in the 1948 Act or any repeal effected thereby shall, save as expressly provided in that Act affect or be deemed to affect any right, title, interest, obigation or liability already acquired, accrued or incurred before the commencement of the 1948 Act. But the clause "nothing in this Act shall affect cr be deemed to affect" under S. 89 (2) (b) was held to have been qualified by the words "save as expressly provided in this Act ". It was therefore, held that if there is an express provision in the 1948 Act, that will prevail over any right, title or interest etc. , acquired before its commencement and that even in the case of repeal of the provisions of the 1939 Act if there is an express provision which affects any title, right or interest acquired bofore the commencement of the 1948 Act that will also not be saved. Tt was observed as follows : " (9 ). . . . . . On the other hand, it is urged on behalf of the appellant that Sec. 88 does not in express terms lay down that the interest acquired by a protected tenant under the 1939 Act is being taken away and therefore it should not be treated as an express provision. . . . . . On the other hand, it is urged on behalf of the appellant that Sec. 88 does not in express terms lay down that the interest acquired by a protected tenant under the 1939 Act is being taken away and therefore it should not be treated as an express provision. Now there is no doubt that S. 88 when it lays dawn inter alia that nothing in the foregoing provisions of the 1948 Act shall apply to. lands held on lease from a local authority, it is an express provision which takes out such leases from the purview of Ss 1 to 87 of the 1948 Act. One of the provisions therefore which must be treated as non-existent where lands are given on lease by a local authority is in S. 31. The only provision in the 1948 Act which recognised protected tenants is S. 31 and if that section is to be treated as non-existent so far as lands held on lease from a local authority are concerned, it follows that there can be no protected tenants of lands held on lease frqm a local authority under the 1948 Act. It is true that S. 88 does not in so many words say that the interest of a protected tenant acquired under the 1939 Act is being taken away so far as lands held on lease from a local authority are concerned; but the effect of the express provision contained in S-88 (1) (a) clearly is that S. 31 must be treated as non-existent so far as lands held on lease from a local authority sq-e concerned and that effect therefore s. 88 (1) (a)must be held to say that there, will be ho protection under the 1948 Act for protected tenants under the 1939 Act so far as lands held on lease from a local authority are concerned. It was not necessary that the exprress provision should in so many words say that there will be no protected tenants after the 1948 Act came into force with respect to lands held on lease from a local authority. It was not necessary that the exprress provision should in so many words say that there will be no protected tenants after the 1948 Act came into force with respect to lands held on lease from a local authority. The intention from the express words of S. 88 (1) is clearly the same and therefore there is no difficulty in holding that there is an express provision in the 1948 Act which lays down that there will be no protected tenant of lands held on lease from a local authority. In view of this express provision contained in S. 88 (1) (a)the appellant cannot claim the benefit of S. 31; nor can it be said that his interest as protected tenant is saved by S. 89 (2) (b ). This in our opinion is the plain effect of the provisions contained in Ss. 31, 88 and 89 (2) (b) of the 1948 Act. " it was further held that the words 'held on lease' under S. 88 are only descriptive of the lands and are not confined to lands held on lease on the date the Act came into force; they equally apply to lands leased before or alter the Act became law that the observation to the contrary in the earlier decision in Mohanlalct Chiinilal Kotlian's case, AIR1963 SC 358, was not correct and that Sec. 88 is an evpress provision which takes away th'c interest of protected tenants under the 1939 Act. Those observations apply equally to the present case. Under S. 107 of the Land Reforms Act, as it originally stood, there was no exemption in case of lands belonging to or held on lease from a local authority from the provisions of the Act. Under S. 105 lands leased by or to local authorities were exempted from the application of Ss. 14 to 20 and 44 to 61 of the Act. Under S 70 of the Act 1 of 1974 it is provided that S. 105 of the principal Act shall be omitited Under s. 107, as now amended, no other provision of the Mysore Land Reforms act apply except S. 8 since retrospective effect is given to S 107 also by virtue of S. 91 of Act 1 of 1974. Under S 70 of the Act 1 of 1974 it is provided that S. 105 of the principal Act shall be omitited Under s. 107, as now amended, no other provision of the Mysore Land Reforms act apply except S. 8 since retrospective effect is given to S 107 also by virtue of S. 91 of Act 1 of 1974. Lands beloging to or held or leased from a local authority are exempted and must be deemed to have been exempted from the application of the provisions of the Mvsore Land Reforms Act except S. 8 on the date of the order of the Lower Court. S 8 relates to the fixation of rent. ( 7 ) IT is contended by Mr. Benadjkar that once a tenant raises a contention that he is a tenant entitled to protection from eviction under the provisions of the Mysore, Land Reforms Act, the Court must refer the same to the prescribed authority under the provisions of the Act and that inspite of the fact that Sec. 107 exempt's lands belonging to a local authority, the Civil Court has no jurisdiction to decide the question whether the judgment-debtor is a tenant or not. In Bhimaji v. Dundappa, AIR. 1966 SC 166, it has been held that with regard to suits and proceedings by a land-owner for possession of agricutural lands, the combined effect of Ss. 29. 70, 85 and 85a of the bombay Tenancy and Agricultural Lands Act (67 of 1948) is that the mamalatdar has no jurisdiction to try a suit by a land owner for recovery of possession of agricultural lands from a trespasser or from a mortgagee on redemption of a mortgage and the Civil Court has jurisdiction to entertain such suit. But if the defendant he suit pleads that he is a tenant or a protected tenant or a permanent tenant and an issue arises whether he is such a tenant, the Court must refer the issue to the Mamlatdar for determination, and must stay the suit pending such determmaton. But in that case the suit lands were agricultural lands within the meaning of the bombay Tenancy and Agricultural Lands Act (67 of 1948 ). They were not lands which were exempted from the application of the provisions of the said Act. Hence that decision does not apply to. the present case. But in that case the suit lands were agricultural lands within the meaning of the bombay Tenancy and Agricultural Lands Act (67 of 1948 ). They were not lands which were exempted from the application of the provisions of the said Act. Hence that decision does not apply to. the present case. ( 8 ) THE Civil Court has jurisdicion to determine the question of its own jurisdiction. It is true that if a question arises whether the defendant or a party to a suit or proceedings is a tenant within the meaning of the provisions of the Mysore Land Reforms Act, the Civil Court must be deemed to have had no jurisdiction to try the suit in view of the retrospective effect given to the amending Act 1 of 1974 under S. 91 of the Amending act. But in view of the exemption given under S. 107 as amended, the lands belonging to or held on local from a local authority are exempted from the application of the provisions of the Mysore Land Reforms Act, except S. 8 relating to fixation of rent, and since S. 107 must be deemed to have been in force on the date the Execution Court ordered the delivery of possession, the Execution Court must be deemed to have had jurisdiction to pass the order. Since the term 'local Authority' is defined to include a 'municipality' under ihe Mysore Genera] Clauses Act 1899, the Civil court has jurisdiction to decide whether the provisions of the Mysore Land reforms Act apply to the lands in question. Since the provisions of the act which take away the jurisdiction of the Court to determine the question of tenancy are not applicable to the lands in question, the execution Court had jurisdicton to order delivery of possession. It is true thar it has gone into the question whether the judgment-debtor is a tenant or not. But on the dale of its decision it hod jurisdiction to decide that question also under the law as it then stood. But the jurisdiction to decide the question of tenancy has been taken away from the Civil Court with retrospective effect by virtue of S. 91 of Act 1 of 1974. But on the dale of its decision it hod jurisdiction to decide that question also under the law as it then stood. But the jurisdiction to decide the question of tenancy has been taken away from the Civil Court with retrospective effect by virtue of S. 91 of Act 1 of 1974. But the protection which the judgement-debtor could claim if he was entitled to do so under the provisions of the Mysore Land Keforms Art. has been taken away with retrospective effect, since retrospective effect has been given to S. 107 also as amended. Fence it may be deemed that the Execution court had jurisdiction to order delivery of possession on the date it did i. e. , 5-4-1971. ( 9 ) THIS second appeal is. therefore, dismissed. No costs. --- *** --- .