J.M. Shelat, J.
1. [His Lordship after stating the facts observed:]
Before I deal with the submission made by Mr. Shah on behalf of the defendants, it would be expedient to state a few facts which are hardly in dispute. As I have said, the suit lands were leased out to the defendants on the 4th of May 1946. At that time although the Bomba Tenancy Act of 1939 had already been enacted it had not been applied to the District of Ahmedabad. By Bombay Act XXVI of 1946 that Act was made applicable to the suit lands and by Section 5(3) of that Act it was provided that every tenant shall on the expiry of one year from the date of the coming into force of that Act be deemed to be a protected tenant for the purposes of the Act and his rights as such protected tenant shall be recorded in the record of rights. Act XXVI of 1946 was brought into force oh the 8th of November 1946. It is clear therefore that the tenancy created on the 4th of May 1946 was governed by the Bombay Tenancy Act 1939 as modified by Act XXVI of 1946. It is not in dispute that as a result of the 1939 Act being made applicable to the suit lands the defendants were protected tenants as provided for in Section 3A of the 1939 Act. As I have said it is no longer in dispute now though the defendants at one stage did challenged that facts that the suit lands are situate within two miles from the limits of the Ahmedabad Borough Municipality as it was then called prior to the enactment of the Bombay Provincial Corporation Act 1949 Thereafter the Bombay Tenancy and Agricultural ands Act 1948 enacted and that Act was brought into operation as from the 28th of December 1948. Under Section 89 the Tenancy Act of 1939 was repealed except Sections 3 3 and 4 as modified in the manner stated in the schedule there of. Section 31 of the 1948 Act also provided that for the purposes of the Act a person should be recognised to be a protected tenant if such a person has been deemed to be a protected tenant under Sections 33 and 4 of the Bombay Tenancy Act 1939 In view of these provisions the defendants must he said to be persons who continued to be protected tenants in respect of the suit lands.
2. Mr. Shah for the defendants argued that when the lease was made in respect of the suit lands the Act of 1939 was already enacted and though in May 1946 that Act was not made applicable to these areas Bombay Act XXVI of 1946 brought into operation the Act of the 1939 as from the 8th of November 1946. Therefore the suit lands and the lease created in respect thereof were governed by the provisions of the Act of 1939 and the defendants became entitled to the rights of protected tenants. Mr. Shah contended that these rights as protect tenants became vested in the defendants by reason of the 1939 Act having been made applicable to the suit lands. Sec, 88 of the 1948 Act however provides that the provisions of the Act shall not apply amongst other areas to any area within the limits of the Municipal Borough of Ahmedabad and to areas within a distance of two miles of the limits of the Borough Municipality of Ahmedabad. The provisions of Section 88(1)(c) therefore took out of the purview of the 1943 Act the suit lands. Bat Mr. Shah contended that though this section exempted the suit lands from the operation of the 1948 Act the rights as protected tenants which where already vested in the defendants would continue by reason of Section 31 of the Act and therefore the plaintiffs were not entitled to terminate, the tenancy as they have done or to maintain the present suit.
3. It is no doubt true that by enacting Section 31 in the 1948 Act the igislature would seem to have desired to continue the rights of protected tenants acquired under the earlier Act. But Section 89(1) which repealed the Bombay Tenancy Act 1939 except to the extent of Sections 3 3 and 4 thereof provided by Sub-section (2) that nothing in the 1939 Act shall save as expressly provided in this Act affect or be deemed to affect (i) any right title interest obligation or liability already acquired accrued or incurred before the commencement of this Act. Sub-section (2) of Section 89 of this Act has not saved any rights of tenants as protected tenants assuming that such rights can be said to be rights accrued before the commencement of the 1948 Act. This very question arose in Sakharam Narayan Sanas v. Manikchand Shah 57 Bom. L.R. 223 where it was observed that though the Bombay Tenancy Act of 1939 was repealed Sections 3 3 and 4 of that Act had been saved after making certain modifications therein. Having done so the Legislature recognised those persons under Section 31 who were protected tenants under the Act of 1939 as protected tenants under the 1948 Act thereby conferring upon such persons who were recognised as protected tenants under the Act of 1939 the rights and privileges available to protected tenants under the Act of 1948. But the learned Judges have also observed that if Section 88 of the Act of 1948 had not been enacted by the Legislature the defendants who were recognised as protected tenants under the Act of 1939 would be entitled to claim the rights which were conferred upon them by the Act of 1939 and affirmed by the Act of 1948. But the Legislature has however excluded from the Act of 1948 certain classes of leases and lands situate in specified areas. Therefore once that exclusion is made whatever rights may be deemed otherwise to have been conferred by Section 31 upon protected tenants must be regarded as ineffective if the lands were to be of the description mentioned in Section 88 or the lands were to be within the areas specified in that section. It is also observed there that though the Legislature by Sub-sections (2) of Section 89 has purported to protect the right title and interest of persons who were governed by the Tenancy Act of 1939 notwithstanding the repeal of that Act yet it is provided that those rights or privileges would not be exercisable if there is an express provision to the contrary made in the Act. According to this decision the Legislature has provided by Section 88 that the lands situate in the specified areas would not be governed by the provisions of the Act of 1948 and this must be regarded as an express provision to the contrary. Consequently the rights acquired under the Act of 1939 cannot be exercised if the lands in respect of which they are claimed are situate within the areas specified in Section 88(1)(c) of the 1948 Act. They also held that these rights as protected tenants were rendered illusory in the light of the provisions of Section 89(2)(b) (ii) of the 1948 Act whereby the Legislature has authorised the continuance and disposal of legal proceedings in respect of rights titles interests obligations or liabilities already acquired accrued or incurred under the Act of 1948 as if that Act was not passed. But so far as the institution of proceedings is concerned the Legislature has not protected the rights titles interests obligations or liabilities acquired accrued or incurred under the Act of 1939 If a legal proceeding or remedy in respect of any such right title interest obligation or liability acquired or incurred is sought to be instituted after the Act of 1948 came into operation it will have to be instituted and dealt with in accordance with the provisions of the 1948 Act even though the liability was under the Act of 1939. Thus even if it were to be assumed that the rights as protected tenants remained vested in the defendants after the commencement of the 1948 Act those rights in their enforcement were rendered illusory as proceedings in which a question as to their enforcement would arise if instituted after the 1948 Act came into operation must be governed under the 1948 Act and not under the 1939 Act. Consequently the provisions of Section 88(1)(c) would apply in respect of tenants holding leases of lands situate in the areas specified therein. Besides these considerations as observed in the Full Bench decision of the High Court of Bombay in Patel Maganbhai Jethabhai v. Somabhai Sursang 60 Bom. L.R. 1383 it cannot be argued that the defendants had acquired vested rights by reason of the enactment of the 1939 Act. A right given by an enactment itself which has not been acquired by the parties or which has not accrued to the parties is not a vested right in the sense in which vested right is understood. It is no doubt a legal right which such party can assert in a Court of law. But as observed by Chagla C.J. in that judgment when we talk of a vested right we are not talking of a right in that wide sense but a vested right is a right used in the sense in which the Privy Council has defined and described (in Abbott v. Minister for Lands (1895) A.C. 425 viz. a right which a party claiming it has availed himself under the statute by doing any act and not merely by relying on the right conferred by the statute itself. It is nowhere the case of the defendants that they as tenants did any act or in any way changed their position as a result of the Tenancy Acts which made them acquire a vested right or whereby a vested right accrued to them. The defendants therefore; cannot be said to have acquired any vested right by reason of the Tenancy act having been enacted or which vested rights as argued by Mr. Shah continued after the enactment of the Act of 1948. The other contention of Mr. Shah viz. that Section 88(1)(c) cannot take away such vested rights of the defendants also cannot in this view prevail.
4. But it was contended by Mr. Shah that even if the tenants had no such vested right as protected tenants the plaintiffs were not entitled to file the present suit in a Civil Court and were not entitled to a decree for possession in as much as by the time the suit came to be decided the Legislature had amended Section 88 by the amendment Act of 1952. As I have already pointed out the notice terminating the tenancy was given on the 24th of December 1951 and the defendants were thereunder asked to deliver possession of the suit lands three months thereafter on the 31st of March 1952 or if according to the defendants that was not the proper date at the end of the Tenancy year which would be the 3rd of May 1952. As the defendants failed to comply with this demand the plaintiffs instituted the present suit on the 6th of October 1957. The suit however remained pending until the 28th of January 1955 when the learned trial Judge passed the decree aforesaid. While the suit was thus pending Bombay Act XXXIII of 1952 was enacted and it was brought into force on the 12th of January 1953. It was therefore argued by Mr. Shah that when the learned trial Judge passed the decree on the 28th of January 1955 it would be the law prevailing on that day which would apply to the suit and that if that be so a Civil Court would have no jurisdiction to pass a decree directing the defendants to deliver possession of the suit lands. Section 6 of the Bombay Act XXXIII of 1952 provides that in Section 88 of the 1948 Act in Sub-section (1)(a) for Clause (c) the following shall be substituted namely (a) to any area within the limits of Greater Bombay within the limits of the Municipal Corporation constituted under the Bombay Provincial Municipal Corporations Act 1943 within the limits of the municipal boroughs constituted under the Bombay Municipal Boroughs Act 1925 and within the limits of any cantonment. It is evident that the effect of enacting Section 16 of Bombay Act XXXIII of 1952 was that the lands situate within the distance of two miles from the limits of the Borough Municipality of Ahmedabad which by then was the Municipal Corporation of Ahmedabad were taken out of the exclusion provided in Section 88 (I) as it stood prior to this amendment and therefore the lands including the suit lands which were situate within two miles of the limits of the Borough Municipality of Ahmedabad as it was prior to the Act of 1949 came to be under the operation of the Bombay Tenancy and Agricultural Lands Act 1948 Obviously therefore the tenancy in suit would be affected by the provisions of the Tenancy Act of 1948 and therefore a Civil Court would not by reason of Section 29 of the Act have the jurisdiction to pass a decree for possession the Mamlatdar being the exclusive tribunal under that section. The question that arises for determination is whether it would be the law prevailing on the date of the decision in this suit that would apply to the present suit or whether it would be the law which was in force at the date of the institution of the present suit that would apply. If the former position were to be correct it is clear that a Civil Court would have no jurisdiction to try the present suit and to pass a decree for possession. The second question that would arise would be whether Act XXXIII of 1952 which amongst other things amended Section 88(c) can be said to be of a retrospective character and as such has taken away any rights which had accrued due to the plaintiffs by reason of the operation of Section 88(1)(c) of the Act of 1948. Mr. Thakkar for the plaintiffs cited the decisions reported in Rajasab Wallid Imamsab Begwan v. Harishchandra Honawar 56 Bom. L.R. 638 Prithviraj Chunilal Sand v. Hari Ganesh Parkhe 56 Bom. L.R. 1076 and Dayaram Bhaktibhai v. Maganlal Sunderji A.I.R. 1906 Bom. 172. These decisions are however not applicable to the facts before me as these cases were filet before the Act of 1948 came into force and therefore those suits were regarded in these decisions as pending proceedings which were expressly saved by Section 89(2)(ii) of the Act of 1948. These decisions therefore would not help in the determination of the question arising in this appeal. In an unreported judgment of Chainani J. (as he then was) and Patel J. in Bhikhenrao Desmukh v. Supidu Sonu Chaudhari Civil Revision Application No. 120/1957 decided on December 20 1357 the High Court of Bombay took the view that strong and distinct words are required in order to alter the vested rights of a litigant as they stood at the commencement of the action. They also observed that in the case before them the rights of the tenant had been affected by his tenancy having been terminated by a notice given to him by the plaintiffs-landlords at a time when the Tenancy Act did not apply to the suit lands and that consequently there was no legal bar of the tenancy being brought to an end by an appropriate notice given by the landlords to the tenant. According to this decision the landlords having given a valid notice terminating the tenancy of the tenant which they were entitled to do when the Tenancy Acts were not in force and were not applicable to the tenancy in suit and the suit lands the landlords had acquired a right not only to terminate that tenancy but the right to recover possession from the defendant-tenant. Correspondingly an obligation or a legal liability had been incurred by the tenant by reason of the termination of that tenancy by means of a valid notice and therefore the consequent amendment of the law though brought into force while the action instituted by the plaintiffs was still pending would not and cannot affect the rights which had already accrued and obligations or liabilities already incurred. Although the decision in that case was not fully approved of by the Full Bench in Maganbhai Patel v. Somabhai 60 Bom. L.R. 1353 the disapproval was not in connection with the observations above quoted but was in respect of the effect and consequence of the proviso to Section 43(1)(c) inserted in the Tenancy Act of 1948 by the amendment Act of 1955. In Maganbhais case the learned Judges constituting the Full Bench have themselves observed that the general principle of law was that when a new law is passed it cannot affect pending litigation and that the Court must apply to the facts the law which was in force at the date when the action was brought before the Court and that that is the material point of time and that it is that law prevailing at that point of time which must determine the rights of the parties.
5. That principle applies to all legislation which is not retrospective. Thay however added that the Legislature may pass a law which would apply not only to cases which were filed subsequent to the passing of the law but to cases which are already on the file. In that event a Court may be compelled to take notice of the law which was passed before it passes its final judgment to mould its judgment in accordance with the law recently enacted. So far as the present suit is concerned ordinarily the law that would be applicable in deciding the suit would be the law which was prevalent when the suit was instituted and not the law which was in force at the time when the suit was decided unless the Court comes to the conclusion that the Bombay Act XXXIII of 1952 is of a retrospective character or debars a litigant of the rights vested in him. In fairness Mr. Shah conceded that there was nothing in Section 16 of the Bombay Act XXXIII of 1952 or any other provision of that Act to indicate that the Legislature intended that Act to be retrospective. There is also nothing in that Act to show that it is intended to be retrospective either by express words or by necessary intendment. There is also no provision which affects or deprives a litigant of the rights which had already accrued due to him prior to its coming into force. That being the position the conclusion must be that the suit was governed by the law which was in force at the date when it was filed namely the 6th of October 1952. Act XXXIII of 1952 having been brought into operation on the 12th of January 195 and as held by me it not being of a retrospective nature Section 85(1)(c) of the 1948 Act must apply to the present suit. That being so the suit lands were clearly not within the preview of the Bombay Tenancy and Agricultural Lands Act 1945 and therefore the Civil Court had jurisdiction to try the suit. The contention of Mr. Shah that the trial Court had no jurisdiction to try the suit cannot therefore be accepted.