r 2 S.C.R, We are therefore of opinion that the finding 1' of the High Court that the loss took place due to the negligence of the railway servants and, conse- q11ently, of the railway administration, is justified.
We therefore dismiss the appeal with costs. Appeal dismissed. MOHANLAL CHUNILALKOTHARI TRIBHOVAN HARIBHAI TAMBOLI (B. p. SINHA, c. J.; P. B. GAJENDRAGADKAR, K. N. WANCHOO, N. RAJA'.GOPALA AYYANGAR and
T. L. VENKATARAMA AIYAR, JJ.) Suit-Decree-Law changed during pendency of apP<al- ·i Appdlate Oourt, if bound to apply changed law-Rettospecti•• ) operation-Bombay Tenancy and Agricultural
Lands Act (Bom. LXVI of 1948, •· 88 (l)(d)-Bombay Tenancy Ace, W~&UW. Certain )ands were situated in the erstwhile State of Baroda before it became a part of the State of Bombay by mer- ger. The Bombay Tenancy and Agricultural Lands Act, 1948,
was extended to Baroda on August I, 1949. Suits were filed in the Civil Court by appellants-landlords against the respond- ents who were their tenants on the ground that the latter
became trespassers with effect from the beginning of the new / agricultural season in May, 1951. . Decrees for possession were passed by the Civil Court in favour of landlords and the same were confirmed by the first appellate court.
Ho\vever, the High Court accepted the appeals and dismissed the suito. It was held that under the provisions of s. 3A( 1) of the Born· bay Tenancy Act, 1939, as amended, a tenant would be
deemed to be a protected tenant from August.I, 195() and ihat vested right. could not be affected by the notificaiion dated ¥ April 24,.1951 issued under s. 89 (I) (d) of the Act of 1948 by ,- which the land in suit was exclud_ed from the operation of the Act.
The notification dated April 24, 1951 had no rc,trospective effect and did not take away the protection_ J96Z Union qf Ind/• y, M/s. Udho Ram &1 Sorn RavAubar D•J•I J. Moy2. Moltwtlal Clu111llol
40C/Jcri Tril>Aoo.,,. H ribl<Oi l'.mboli SUPREME OOURT REPORTS [1963] afforded to tenants by s. 3A. The landlords came to this Court by spedal leave. It was conceded that the appellants' suits for possession would fail if the Act applied to the ten· ancies in question, because in that c:1se only revenue courts had jurisdiction to try them.
However, reliance was plated on notification dated April 24, 1951 which excluded the land in suit from the operation of the Act. It was also contended on behalf of appellants that the subsequent notification cancelling the first one, could not take away the rights which had
accrued to them as a result of the first notification. Held, that the notification dated April 24, 1!151 was cancelled by another notification dated January 12, 1953. The second notification was issued when the matter was still pending in the first court of appeal. The suits had therefore to be decided on the basis that there was no notification in existence which would take the disputed lands out of the
operation of the Act. The first appellate court was wrong in holding that the suits had to be decided on the basis of facts in existence on the date of filing of the suits. Held, further, that the second ,;otification cancelling the first one did not take away any rights which had accrued to the landlords. If the landlords had obtained an effective
decree and had succeeded in ejecting the tenants as a result • of that decree which may have become final between the parties, that decree may not have been re-opened and the execution taken thereunder may not have been recalled.
However, it was during the pendency of the suit at the ap· pellate stage that the second notification was issued cancel- ling the first a.nd the r.ourt was bound to apply the law as it was on the date of its judgment.
HeW., also, that clauses (a), (b) and (c) of s. 88(1) applied to things as they were on the date of the commence- ment of the Act of 194-8 whereas clause (d) authorised the State Government to specify certain areas as being reserved for urban non~agricultural or industrial
development, by notification in the Official Gazette, from time to time. It was specifically provided in clauses (a) to (c) that the Act, from its inception, did not apply to certain areas then identified, whereas clause ( d) had reference to the future. The State Government could take out of the operation of the Act such areas as In its opinion should be reserved for urban non·
agricultural or industrial development. Clause (d) would come into operation only upon such a notification being -1 issued by the State Government. In Sukhaiam's case, this Court never intended to lay down that the provisions of
s.c.R .. ·~-. \ ,, clause ( d) were only prospective and had no retrospective ' operation. Unlike clauses (a) to. (c) which were clearly prospective, clause (d) hi.d retrospective operation in the sense that it would apply to land which would be covered by the notification· to be ismed by the Government from time to time so ·as to take that land 'out of the operation of the Act of 1948: granting the protection. ··So far as clauses (a) .to (c) were concerned., the Act of 1948 would not apply .·at all •to lands covered by them, but that would not take away the
rights conferred by the Act of 1939 which wai repealed by the , Act of 19~8. Section 89(2) specifically -preserved the ·exist- ' "' ing rights under the repealed Act. Sukharam's case was
about the effect of clause (c) on the existing rights under the Act of I 939 and· it was in that connection that this Court . observed that s. 88 was prospective. However clause ( d) is about the future,· and unless it has the limited retrospective effect indicated earlier, it will be rendered completely nugat• ory. , The intention . of the legislature qbviously was to take away all the benefits arising out of the Act of 1948 (but not those arising from the Act" of 1939) as soon as the notifica-· tion was made under clause (d).
Sakharam v. Manikchand Motichand Shah, (1962)" 2 S.C.R. 59, explained. 4-) Civil APPELLATE JURISDIOTION: Civil 'Appeal . Nos. 282 & 283 of 1959. Appeals by special leave from the judgment·
and decree dated ]Je<iember 18, 1956, of the Bom- bay High Court at Bombay in Second Appeals Nos., 233 and 181\ of 1955 respectively. G. 8. Pathak, O. 0. Mathur, J. B. Dadachanji and Ravinder Narain, for the appellants:
i " S. G. ,Patwardhan and K .. R. Ohoudhri, for, the :l"espondents. 1962. May 2. The Judgment of• the Court was delivered by · SrnHA, C.J.-These two appeals, by special leave, directed against the judgment and decree of
a single Judge of the Bombay High Court, raise a ~ common question of law, and have, therefore, been heard together.· This judgment will govern both the oases. The aprellants were plaintiff-landlords,
11161 Mohanlal CnunUal Kothati v. ~riblwuan Haribbai Tamboli Sinha C. J. 1118' JI 11tanltJ1 Cbnilal XotMri Hari!J/uJI fambo// sw.ac. J. and the respondents were tenants-in-po88eBSion of •
oerhin lands which were situate in the erstwhile State of Baroda before it became part of the State of Bombay, by merger. The Bombay Tenancy and Agricultural Lande Act (Bombay Act LXVII of
11148)-whioh hereinafter will he referred to a.e the Aot-wa.e extended to Baroda. on August l, 1949. The suits out of which these a.ppea.le a.rise ha.d been instituted by the a.ppella.nte on the ba.eie that the •
tena.nte-reepondents ha.d become treep8.88ere on the service of notice in Ma.roh 1950, with effect from the beginning of the new agricultural section in Ma.y 1951. Ae the defendants did not oomply with
the terms of the notice a.nd continued in poBSeSHion of the lands, to' which they had been inducted, the landlords instituted suite for poBSeeeion in the Civil Court. The Trial Courts a.nd the Court
of Appeal decreed the suite for posseBSion. But on second appeal by the ·tenants, the learned Single Judge. who heard the second appeals, allowed the .o a.ppea.le and diemiaeed the suits with costs through·
out. It ie not disputed that if the provisions of the Act were applicable to the tenancies in question, the pla.intifl'e' suits for poeeeBBion must fa.ii, because these were instituted in the Civil Courts, which have
Jurisdiction to try the suite only if the defendente were ~respaeeere. It ie equally olea.r that if the tenants could take a.dva.nta.ge of the provisions of • the Act, a.ny suit for poBBeseion a.ga.inet a. tenant
would lie in the Revenue Courts a.nd not in the Civil Courts. But reliance wa.e placed upon the notifica.tion issued by the Bombay Government on April 24, 1951, to the following effect :
"In exercise of th~ powers conferred by clause (d) ufeub-eection (l)of Section88 ofthe Bombay Tenancy a.nd Agriculture.I Lande Act, 1948 (Bombay LXVII of 1948) the Govern- ment of Bombay i11 pleased to specify the area.
2 S.C.R. SCJPREME COURT REPORTS within the limits of the Munioip'lol Borough of Baroda City and within the distance of two miles of the limits of the said Borough, as being reserved for Urban, non-agricultural or
industrial development" The learned Judge of the High Court, in disagreement with the Courts below, held that under provisions of s. 3A(l) of the Bombay Tenancy Act, 1939, as a.mended, a tenant would be deemed to be
a protected tenant from A'1gust 1, 1950, and that that vested right could not be affected by the notification aforesaid, issued by the Government under s. 88( l)(d), which had the effect of putt.ing
the lands in question · out of the operation of the Act. In other words, the learned Judge held the notification had no retrospective effect so as to take a.way the protection afforded to
the tenants by s. 3A, aforesaid. The learned counsel for the appellants con· tended, in the first instance, that the notification, set out above, under s. 88 ( l)(d) operated with effect
from December 28, 1948, when the Act ca.me into force. In this connection, reliance was placed upon the decision of this Court, pronounced by me sitting in a Division Court, in the case of Bakharam v.
Manikohand Motiahand Shah,(') in these words:. "The provisions of s. 88 a.re entirely pro- spective. They apply to lands of the descrip· tion contained in els. (a) to (d) of s. 88(1) from
the date on which the Act came into opera- tion, that is to say, fr im December 28, 1948. They a.re not intended in any sense to be of a confiscatory character. They do not show' an
intention to take away what had already accrued to tenants acquiring the status of 'protected tenants". MoAanlal Cllunilal K"ehati v. T riMo""" B crib/Jal 1amboli SinhaC. J. 196t Mehan/al Chunilol
Xo1/wri f"ribhown Haribltai Tomboli Sin"" C. J. It is necessary, therefore, to make some observa- tions explaining the real position. In that case, the ' question then in controversy had particular reference
to s. 88(l)(c), which is the only provision quoted at page 2 of the blue print of the judgment. That case had nothing to do with cl. (d) of s. 88(1). In that case, the lands in dispute lay within two miles of
the limits of Poona Municipality. It is clear, there· fore, that the inclusion of cl. (d) of s. 88(1) was a slip and certainly was n9t relevant for considera- tion in that case. The provisions of s. 88( I) a.re as
follows: "Nothing in the foregoing provisions of this Act sha.ll a.pply :- (a) to la.nds held on lease from the Govern· ment a local authority or a. co-operative society; (b) to la.nds hold on lease for the benefit of
a.n industrial or commercial undertaking; (c) to a.r..y area. within the limits of Greater ' Bombay and within the limits of tho Municipal boroughs of Poona. City and Suburban, Ahmedabad, Sholapur, Surat
and Hubli and within a. distance of two miles of the Umits of such boroughs; or (d) to any area which the :Sta.to Government ma.y, from time to time, by notification in tbe Official Gazette, specify as being',
reserved for urban non-agricultural or industrial development. It will be noticed that els. (a), (b) a.nd (c) of s. 88( I) apply to things as they were at the date of the enactment, wherea.a cl. (d) only authorised the
State Government to specify certain areas as being seeerved for urban non-agricultural or industrial ' development, by notification in the Official Gazette, 2 S.C.R. SUPREME .COURT REPORTS
from time to time. Under els. (a) to (c) ofs. 88(1) y it is specifically provided that the Act, from its inception, did not apply to · certain. areas then identified; whereas ol. (rl) has reference to the
future. Hence, the State Government could take out of the operation of the Act such areas as it would deem should come . within the desorip- tion of urban non-agrioultural or for indu~tri!'l
development. Clause (d), therefore, would come into operation only upon such a notification being Y issued by the State· Government. . The portion of the judgment, quoted itbove, itself makes it ole&r
that the provisions of s. 88 were never intE>nded to divest vested interests. To that extent the decision of this Court is really against the appellants.: It is olear that the appellants cannot take advantage of
what was a mere slipin so far, as ol. (d) was added to the other clauses of s.88(1), when that clause really and did noto:fall to be considered with refere- nce to the controversy in that oase. In other
. words, this Court never intended in its judgment ill 11 Sakharam's QtiBe(') to lay down that th~ provisiens of 01.1 d) of s.88 ( 1) afo~esaid were only prospective and had no retrospective operation.· Unlike els. (a), (b)
and (c) of s.88(1), which this Court held to be clearly prospective, those of ol.(d) would in the context have retrospective operation in the sense that it would apply to land which could be oovered by the
notification to be issued by the Government from time to time so as to . take those lands out of the r operation of the Act· of 1948, granting the protec- tion. So far as ols. (a), (b) and (c) are concerned,
the Act of 1948 would not apply at all to lands cov- ered by them. But that would not take away the rights.conferred by the .earlier Act of 1939 which was· being repealed; by the Act of 194!:!. This is
made clear by the provision in s.89(<!) which preser- .7 ves existing rights · under · the repealed Act. Sakharam' s case (') was about the effect of ol. ( o) on (1) (1962) 7 S.C.R.. S9.
I96B –·- Mohanra1 C~u11ia Koth ITT T1ibhova'1 Harib ai Tamboli Sinha C. J, JI ohoolal CAllllilol Kot/lari v. Triblumon H aribhai Tamboli SiMa C, .J. the existing right.a under the Act of 1939 and it was
in that connection that this Court observed that s.88 ' was prospective. But cl. (d) is about the future and unless it has the limited retrospective effect indioated earlier it will be rendered completely
nugatory. The intention of the legislature obviously waa to take away all the benefit.a arising out of the Aot of 1948 (but not those arising from the Aot of 1939) as soon as the notification was made under
ol. (d). This is the only way to harmonise the other • provisiona of the 1948-Act, conferringoertain bene- fit.a on tenant.a with the provisions in cl. (d) which is meant to foster urban and industrial development.
The observationa of the High Court to the contrary are, therefore, not correct. But the matter does not rest there. The notification of April 24, 1951, was cancelled by the State Government by the ronowing notification
dated January 12, 1953: "Revenue Department, Bombay Castle, 12th January, 1953. Bombay Tenanoy and Agricultural Lands Act, 1948. No.9361/49: In exercise of the powers conferred by olauae ( d) of sub-aeotion ( l) of
Section 88 of the Bombay Tenancy and Agri- cultural Lande Act, 1948 (Bombay LXVII of 1948). The Government of Bombay is pleas- ed to cancel Government Notification in the . Revenue Department No.9361/49 dated the
24th/25th April, 1951". It would thus appear that when the matter was still pending in the Court of Appeal, the judg- ment of the lower Appellate Court being dated September 27, 1954, the notification cancelling
the previous notification· was issued. The suit had, therefore, to be deoided on the basis that there was , no notification in existence under s.88(l)(d), which could take the disputed lands out of the operation
t 2 S.C.R. llfB of the Act. This matter was brought to the notice of the learned Assistant Judge, who took the view J1111 .. 1o1c1um11a1 that though, on the merger of Baroda with Bombay
Ir•.":'" in 1949, the defendants had the protection of the Tribhooon HariblrJI Act, that protection had been taken a.way by the Ta.W.li first notification, which was cancelled by the second.
That Court wa.s, of the opinion that though the A,ppellate Court we.a entitled to take notice of the subsequent events, the suit had to be determined as on the · state of f&cts in existence on the date
of the suit, and not a.a · they existed during the pendency of the a.ppea.l. In that view of the · matter, the learned Appellate Court . held · that . the tenants-defendants could not
take advantage of the provisions of the Act, and could not resist the suit for possession. In our opinion, that was a. mistaken view of. the legal position. When the judgment' of the lower Appel-
late Court was rendered, tbe poeition in. fe.ct and la.w was that there was.no· notification under cl.(d) · of s.88(1) in operation so as to make the land in question immune from the benefits ·conferred by
the Tenancy La.w. In other words, the teilenta could claim the protection afforded by the la.w against eviction on the·ground that the term ~f the lease ha.d expired. But it wa.s argO:ed on behalf of
the a.pP.6llanta. that the · sribsequent notification, cancelling the first one, .could not take away the righta which ha.d' &corned to thein as a. result .of the . first notification. In . our opinion,· this argument is
without any.force~ If the landlords. h~ .,obt.ained an eifecti.ve decree. and had . succeeded in, ejecting· the tenant.a 88 a. result of' that decree, which may have become final betwe~n the •parties, that decne
ma.y not have bee~; 1':C>J>&ned a.nd the e:teoution, ta.ken thereunder may not have been r-lled .. · Bllt it W88 during.the pendency of t~e sui~ a.t th& ~ppel- la.te stage that the aeeOnd noti1ica.t1on was l881led .
cancellirig the ftret. Hence, the Court was bOund to ., M olioalol Chunilal Ko4horft Triblt""1'1 Ha,ibhai Tamboli Sinha C. J. May2. !UPREME COURT REPORTS [1963] apply the law a~ it was found on the date of its
judgment. Hence, there is no question of taking a.way any vested rights in the landlords. It does not appear that the second notification, cancelling the first notification, had been brought to the notice
of the learned Single Judge, who heard and decided the second appeal in the High Court. At any rate, there is no reference to the second notification. Be that as it may, in our opinion, the learned Judge
came to the right conclusion in holding that the tenantll could not be ejected, though for wrong reasons. The appeals are accordingly dismissed, but there would be no order as to costs in this
Court, in view of the fact that the respondents had not brought the second notification cancelling the first to the pointed attention of the High Court. (P. Appeal dismissed. BIRLA COTTON SPINNING &
WEAVING MILLS v. WORKMEN AND OTHERS B. GAJXNDRAGADKAR, K. SUllBA RAO, K. N. WANOHOO, J. C. SHAH and N. RAJAGOPALA AYYANGAR, JJ,) . lr1duatrial Diapute-Standardisatwn of wage alt'Uclure-
Duignation of toorkm<n. The dispute between the respondents and the appellants regarding mistries and line jobbers was referred to the Tribunal regarding the increase and standardi<ation of wages and regar- ding the designation of workmen doing th~ work of fancy
j(>hbers and their pay. The appellant contended that an rarlier award of I 951 had not been terminated and that the reference was incompetent. The Tribunal directed s!andardi· sation on the basis of the Bombay Scheme. The Tribunal