Full Judgment Text
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CASE NO.:
Appeal (civil) 5706 of 2001
Appeal (civil) 5707 of 2001
PETITIONER:
M/S. AMBALAL SARABHAI ENTERPRISES LTD.
Vs.
RESPONDENT:
M/S. AMRIT LAL & CO. & ANR.
DATE OF JUDGMENT: 27/08/2001
BENCH:
A.P. Misra & D.P. Mohapatra
JUDGMENT:
J U D G E M E N T
MISRA, J.
Leave granted.
It is unfortunate, an eviction petition which was filed on the 13th
September 1985 still the parties are battling to find which court would
have the jurisdiction. Whether the court of Rent Controller under
Delhi Rent Control Act or ordinary Civil Court having jurisdiction
over the subject matter in issue? As discipline and culture in every
walk of life is essential for smooth functioning in all its activities,
similarly judicial culture and discipline has to be followed in order to
achieve the desired result viz. to give litigant justice in the shortest
period of time. Every legislation legislates for the benefit of its
subject but many a times, raising issues for every thing and stretching
it too long percolates the very objective for which it is made. With
the increasing complexities of laws coupled with faulty legislation,
using inappropriate language, a stress is created which the courts
through its judicial interpretations have been attempting to simplify it.
In spite of this the hope for an early adjudication has been eluding like
a mirage. With the advancement of legal studies there is sharpening
of the acumen of advocacy. Every word of a statute, if interpreted
when equipped with such dynamism, could be intellectually misused,
hence interpreters including counsel, has to keep balance not to let this
misuse surface. As knife in the hand of a murderer and doctor has
different roles to play, so the interpreters have to select to play the role
of a doctor to confer benefit to the subject. The words in a statute are
dynamic, not static, hence has to be interpreted to subserve to the
objectives of an Act. Such Judicial discipline in interpreting has to be
followed for yielding legislative intent. Similarly judicial culture has
to be cultivated even by counsels appearing for a cause, who has to
see that the judicial system does not rust or get stains for a delayed
justice.
To win a battle for a client is the legitimate expectation of all
but in doing so deliberations should not be such which lengthens the
litigation, even if it confers temporary gain to ones client in a lis.
Every member of the judicial fraternity has to play its role with the
main object to find the truth and render justice to the litigant. This
judicial culture has not to be lost sight. The present case is one of such
cases, which causes concern in this regard.
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The aforesaid appeals raise an interesting but somewhat
complex question for adjudication with reference to the jurisdiction of
the court. The question for consideration is, what is the effect of the
amendment which incorporated Section 3(c) in the Delhi Rent Control
Act, hereinafter referred to as the Rent Act in the pending eviction
proceedings. Section 3(c) of the Rent Act was brought through
amendment which became effective from 1.12.1988 which reads as
under:
3. Act not to apply to certain premises
Nothing in this Act shall apply;
.
(c) to any premises, whether residential or not,
whose monthly rent exceeds three thousand and
five hundred rupees;
In effect it makes Rent Act inapplicable to the tenancies whose
monthly rent exceeds Rs.3500/-. It is not in dispute, in the present
case, the rate of monthly rent is Rs.8625/- per month and proceeding
for the eviction was pending under the Rent Act when the said
amendment came into force. In order to appreciate the controversy
effectively we are hereunder giving certain essential matrix of facts.
The aforesaid two appeals arise out of judgment and order dated
29th November, 1999 passed by the High Court. The first being from
an order in second appeal from order No.5/1999 and the second being
from an order in Civil Revision No. 10/1998.
The High Court allowed landlords second appeal from order
but dismissed the revision of the tenant. Hence both these appeals are
filed by the tenant. The respondent-landlord filed an eviction petition
against the appellant on the ground of sub-letting as enumerated in
Section 14(1)(b) of the Delhi Rent Control Act, in the court of Rent
Controller Delhi on the 13.9.1985. When this petition was pending,
as aforesaid, Section 3(c) was brought in, through amendment w.e.f.
1.12.1988 by which it excluded the jurisdiction of Rent Controller
with respect to those tenancies fetching monthly rent exceeding
Rs.3500/-. In effect it took away such tenancies from the purview of
the aforesaid Act. Thereafter the landlord sent a notice on 11.9.1991
terminating the tenancy of the appellant under Section 106 of the
Transfer of Property Act. On 18.11.1991 landlord filed a suit for
recovery of possession in the Delhi High Court in its original side
which is registered as suit No. 390/1995. When this fact was brought
to the notice of the Additional Rent Controller that the landlord has
already filed a suit appellant prayed that this eviction petition be
dismissed or in the alternative its proceedings be stayed. However,
the Rent Controller rejected such a request by his order dated
23.11.1992 relying on the ratio of D.C. Bhatia & Ors. vs. Union of
India & Anr. 56 (1994) DLT 324. Thereafter in the suit the appellant
filed an application under Order 7 Rule 11 CPC to reject the plaint as
parallel proceedings cannot be continued both before the Rent
Controller and the Civil Court. The Trial Court on 18.10.1997
rejected appellants aforesaid application. Aggrieved by that the
appellant filed revision before the High Court.
As aforesaid, in the meanwhile the appellant moved an
application before the Additional Rent Controller under Section 9 read
with Section 151 CPC praying that the court of Rent Controller has no
jurisdiction to proceed with the matter under the aforesaid Act in view
of the amendment brought in the year 1988. The Rent Controller
dismissed this application. The Rent Control Tribunal allowed the
appellants appeal and quashed eviction proceedings. Aggrieved by
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that landlord filed second appeal from order in the High Court which
was allowed which is the subject matter of one of the aforesaid appeal
before us.
So far the appeal arising out of revisional order, the High Court
held the protection enjoyed by the tenant on account of statute was no
more in operation and in such a case parties would be governed by the
ordinary common law, hence respondent-landlord was fully justified
in filing a suit for possession before the competing civil court having
jurisdiction. In other words High Court held respondent-landlord
rightly filed suit before the Civil Court.
We may point out here that learned counsel for the appellant, in
view of his submissions which he is making in appeal arising out of
judgment and order in second appeal from order, which we shall be
dealing hereinafter, does not want to press this appeal, viz., Civil
Appeal No/2001 (Arising out of S.L.P. (C ) No.4233 of 2000),
hence it is dismissed.
This takes us to consider only the other appeal. The appellant-
tenant submits, it is the Civil Court alone which has the jurisdiction
after the aforesaid amendment and not the Rent Controller, while
respondent-landlord submits, notwithstanding the aforesaid
amendment it is the Rent Controller which would have the
jurisdiction. From these submissions, following questions arise:
(1) Whether the landlord and tenant are relegated to
seek their rights and remedies under the common law
once the protection given to a tenant under rent control
legislation is withdrawn through amendment?
(2) Can a ground of eviction based on illegal
subletting under proviso (b) to Section 14 of the said Act
be claimed by a landlord as a vested right?
(3) In case a protection given to a tenant under the
Rent Act is said to be not a vested right and if that
protection is withdrawn, can a landlord claim any ground
of eviction under the Rent Act to be his vested right?
Thus question for our consideration is, whether proceedings
which were initiated before the Rent Controller having jurisdiction
could continue before it even after the said amendment. Submission
for tenant is, since tenant has no vested right on the date when
amendment came into force and amendment is not retrospective in
operation hence it is only the Civil Court which would have
jurisdiction. On the other hand submission on behalf of the landlord
is, even if it could be said tenant has no vested right, landlord has
vested right under the Rent Act and further in view of Section 6 of
the General Clauses Act, the pending proceedings would continue
before the Rent Controller as if the amending provision has not come
into play. Further it is submitted, Section 6 spells out, where this Act
or any Central Act repeals any enactment then unless a different
intention appears, the repeal shall not affect any right, privilege
accrued or incurred under any such enactment so repealed. Since
landlord in addition to his vested right under the Rent Act, by virtue of
this Section 6 has in any case right under the repealing provision
hence the pending proceeding would continue, as there is nothing in
the amending Act showing any different intention. So the case of
tenant-appellant is that amendment covers pending cases while
respondent landlord case is it does not cover hence it would not apply
to the pending cases.
First we proceed to examine, whether tenant has any vested
right.
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Submission on behalf of the tenant is, a tenant has no vested
right under the Rent Act. If tenants have no vested rights under the
Rent Control Act, the pending proceedings would not be saved from
the effect of the repealing Act. In Mohinder Kumar and Ors. vs. State
of Haryana and Anr. (1985) 4 SCC 221 this was observed by this
Court:
The argument that the tenants have
acquired a vested right under the Act prior to its
amendment is without any substance. Prior to the
amendment of Section 1(3) by the Amending Act
of 1978, the provision as it originally stood cannot
be said to have conferred any vested right on the
tenants. The provision, as it originally stood prior
to its amendment, might not have been
constitutionally valid as the exemption sought to
be granted was for an indefinite period. That does
not necessarily imply that any vested right in any
tenant was thereby created. The right claimed is
the right to be governed by the Act prior to its
amendment. If the Legislature had thought it fit to
repeal the entire Act, could the tenant have
claimed any such right? Obviously, they could not
have; the question of acquiring any vested rights
really does not arise.
D.C. Bhatia and Ors. vs. Union of India and Anr. (1995) 1 SCC
104, is also a case under the Delhi Rent Control Act where the same
Section 3(c) which we are considering was brought in through the
same Delhi Rent Control (Amendment) Act, 1988. In this case also
submission was, that since the amending Act is not retrospective, it
would not affect the rights conferred on the tenants under the repealed
provisions of the Rent Control Act. This submission was rejected by
this Court. The Court held:
We are unable to uphold this contention for
a number of reasons. Prior to the enactment of the
Rent Control Act by the various State Legislature,
the legal relationship between the landlord and
tenant was governed by the provisions of the
Transfer of Property Act. Delhi Rent Control Act
provided protection to the tenants from drastic
enhancement of rent by the landlord as well as
eviction, except on certain specific grounds. The
legislature by the Amendment Act No. 57 of 1988
has partially repealed the Delhi Rent Control Act.
This is a case of express repeal. By Amending Act
the legislature has withdrawn the protection
hitherto enjoyed by the tenants who were paying
Rs.3500 or above as monthly rent. If the tenants
were sought to be evicted prior to the amendment
of the Act, they could have taken advantage of the
provisions of the Act to resist such eviction by the
landlord. But this was nothing more than a right to
take advantage of the enactment. The tenant
enjoyed statutory protection as long as the statute
remained in force and was applicable to him. If
the statute ceases to be operative, the tenant cannot
claim to continue to have the old statutory
protection.
In the instant case, the legislature has
decided to curtail or take away the protection of
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the Delhi Rent Control Act from a section of the
tenants. The tenants had not acquired any vested
right under the Delhi Rent Control Act, but had a
right to take advantage of the provisions of the
repealed Act so long as that law remained in force.
In view of the aforesaid, we are unable to
uphold the contention that the tenants had acquired
a vested right in the properties occupied by them
under the statute.
[Emphasis supplied]
Thus this case holds that the tenant under the Rent Act had no
vested right.
Parripati Chandrasekharrao & Sons vs. Alapati Jalaiah (1995)
3 SCC 709. This case deals with the similar provision but under the
A.P. Rent Control Act. This Court held:
Shri Sitaramiah, leaned counsel appearing
for the appellant-landlord contended that on the
coming into operation of the said notification from
26.10.1983, the protection given to the tenant
stood withdrawn and, therefore, whatever rights he
had under the provisions of the Act, stood
extinguished on and from the said date. As against
this, it was contended by Shri Subba Rao for the
tenant that the tenant had acquired vested rights
under the Act and they were alive when the
applications were made and he could not be
divested of the same by the notification which
came into operation from a subsequent date.
According to us there is a material
difference between the rights which accrue to a
landlord under the common law and the protection
which is afforded to the tenant by such legislation
as the Act. In the former case the rights and
remedies of the landlord and tenant are governed
by the law of contract and law governing the
property relations. These rights and remedies
continue to govern their relationship unless they
are regulated by such protective legislation as the
present Act in which case the said rights and
remedies remain suspended till the protective
legislation continues in operation. Hence while it
can legitimately be said that the landlords normal
rights vested in him by the general law continue to
exist till and so long as they are not abridged by a
special protective legislation in the case of the
tenant, the protective shield extended to him
survives only so long as and to the extent the
special legislation operates. In the case of the
tenant, therefore, the protection does not create any
vested right which can operate beyond the period
of protection or during the period the protection is
not in existence. When the protection does not
exist, the normal relations of the landlord and
tenant come into operation. Hence, the theory of
the vested right which may validly be pleaded to
support the landlords case is not available to the
tenant. It is for this reason that the analogy sought
to be drawn by Shri Subbarao between the
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landlord’s and the tenants rights relying upon the
decision of this Court in Atma Ram Mittal is
misplaced. In that case the landlords normal right
to evict the tenant from the premises was not
interfered with for the first ten years of the
construction of the premises by an exemption
specifically incorporated in the protective rent
legislation in question. The normal right was
obviously the vested right under the general and
once accrued it continued to operate. The
protection given to the tenant by the rent
legislation came into operation after the expiry of
the period of ten years. Hence, notwithstanding
the coming into operation of the protection and in
the absence of the provisions to the contrary, the
proceedings already commenced on the basis of
the vested right could not be defeated by mere
passage of time consumed by the said proceedings.
It is for this reasons that the Court there held that
the right which had accrued to the landlord being a
vested right could not be denied to him by the
efflux of time."
The aforesaid decision holds that tenants have no vested right
under the Rent act. In effect, the law is well settled. Prior to the
enactment of the Rent Act the relationship between the landlord and
the tenant is governed by the general law, may be Transfer of Property
Act or any other law in relation to the property. The Rent Act merely
provides a protection to a tenant as against unbridled power of the
landlord under the general law of the land. The Rent Act gives
protection to the tenant from being ejected except on the grounds
referred under the Rent Act. In other words, it protects the tenant
from ejectment, it protects a tenant from the drastic enhancement of
the rent by the landlord which may otherwise landlord could do under
the general law. Thus the right of a tenant under the Rent Act at the
best could be said to be a protective right which cannot be construed
to be a vested right. In effect, in view of this special enactment of the
Rent Act, the right and remedies available to a landlord under the
general law remains suspended. In other words the landlords vested
right under the general law continue so long it is not abridged by such
protective legislation, but the moment when this protection is
withdrawn the landlords normal vested right reappears which could
be enforced by him.
In Kolhapur Canesugar Works Ltd. vs. Union of India and
Ors. (2000) 2 SCC 536, this Court held:
The position is well known that at common
law, the normal effect of repealing a statute or
deleting a provision is to obliterate it from the
statute book as completely as if it had never been
passed, and the statute must be considered as a law
that never existed.
Relying on this the submission for the tenant is, if repealing
statute deletes the provisions, it would mean it never existed hence
pending proceedings under the Rent Act cannot continue. This
submission has no merits. This is not a case under the Rent Act, also
not a case where Section 6 of the General Clauses Act is applicable.
This is a case where repeal of rules under Central Excise Rule was
under consideration. This would have no bearing on the question we
are considering, whether a tenant has any vested right or not under a
Rent Act?
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Submission on behalf of the respondent-landlord is, even if
tenant have no vested right landlord has a vested right under the Rent
Act by virtue of Section 14 of the Delhi Rent Act. Section 14 is
quoted hereunder:
14. Protection of tenant against eviction (1)
Notwithstanding anything to the contrary
contained in any other law for contract, no order
or decree for the recovery of possession of any
premises shall be made by any court or Controller
in favour of the landlord against a tenant:
Provided that the Controller may, on an
application made to him in the prescribed manner,
make an order for the recovery of possession of
the premises on one or more of the following
grounds only, namely:-
(a) that the tenant has neither paid or
tendered the whole of the arrears of
the rent legally recoverable from him
within two months of the dte on
which a notice of demand for the
arrears has been served on him by the
landlord in the manner provided in
Section 106 of the Transfer of
Property Act, 1992 (4 of 1882);
(b) that the tenant has, on or after the 9th
day of June, 1942, sublet, assigned or
otherwise parted with the possession
of the whole or any part of the
premises without obtaining the
consent in writing of the landlord;
(c) that the tenant has used the premises
for a purpose other than that for which
they were let
(i) if the premises have been let on or
after the 9th day of June, 1952,
without obtaining the consent in
writing of the landlord; or
(ii) if the premises have been let
before the said date without
obtaining his consent;
(d) that the premises were let for use as a
residence and neither the tenant nor
any member of his family has been
residing therein for a period of six
months immediately before the date
of the filing of the application for the
recovery of possession thereof;
(e) that the premises let for residential
purposes are required bona fide by the
landlord for occupation as a residence
for himself or for any member of his
family dependent on him, if he is the
owner thereof, or for any person for
whose benefit the premises are held
and that the landlord or such person
has no other reasonably suitable
residential accommodation;
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Explanation For the purposes of this
clause, premises let for residential
purposes include any premises which
having been let for use as a residence are,
without the consent of the landlord, used
incidentally for commercial or other
purposes;
(f) that the premises have become unsafe
or unfit for human habitation and are
required bona fide by the landlord for
carrying out repairs which cannot be
carried out without the premises being
vacated;
(g) that the premises are required bona
fide by the landlord for the purpose of
building or re-building or making
thereto any substantial additions or
alterations and that such building or
re-building or addition or alteration
cannot be carried out without the
premises being vacated;
(h) that the tenant has, whether before or
after the commencement of this Act,
acquired vacant possession of, or been
allotted, a residence;
(hh) that the tenant has, after the
commencement of the Delhi Rent
Control (Amendment) Act, 1988,
built a residence and ten years have
elapsed thereafter;
(i) that the premises were let to the tenant
for use as a residence by reason of his
being in the service or employment of
the landlord, and that the tenant has
ceased, whether before or after the
commencement of this Act, to be in
such service or employment;
(j) that the tenant has, whether before or
after the commencement of this Act,
causes or permitted to be caused
substantial damage to the premises;
(k) that the tenant has, notwithstanding
previous notice, used or dealt with the
premises in a manner contrary to any
condition imposed on the landlord by
the Government or the Delhi
Development Authority or the
Municipal Corporation of Delhi while
giving him a lease of the land on
which the premises are situate;
(l) that the landlord requires the premises
in order to carry out any building
work at the instance of the
Government or the Delhi
Development Authority or the
Municipal Corporation of Delhi in
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pursuance of any improvement
scheme or development scheme and
that such building work cannot be
carried out without the premises being
vacated.
Under Clause (a) landlord could evict a tenant if he defaults in
the payment of rent. Under Clause (b) if he sublets the premises in
question, under Clause (c) if he uses the premises other than that for
which it was let, under Clause (d) if he or any member of his family is
not residing therein for a period of 6 months, under (e) premises is
bonafide required by landlord, under (f) premises is unfit for human
habitation, under (g) premises is required for rebuilding, under (h) he
has acquired an alternative accommodation, under (hh) he built
residence and 10 years have expired after 1988 amending Act, under
(i) he has ceased to be in service of the landlord, under (j) he caused
substantial damage to the property, under (k) he has used the premises
contrary to the condition of lease given by the Government or local
bodies to the landlord, and under (l) where the landlord is required to
carry out any construction therein as requirement by the Government
or local bodies. These various sub-clauses under Section 14 is our
considered opinion cannot be construed to be a vested right of a
landlord. In fact, Section 14 gives complete protection to a tenant
against his eviction but relaxes it on one of the grounds referred to
under its proviso. These sub-clauses are only part of this proviso of
Section 14. The heading of this Section itself is;
Protection of tenant against eviction. Sub-
section (1) expressly states;
Notwithstanding anything to the contrary
contained in any other law or contract, no order or
decree for the recovery of possession of any
premises shall be made by any court or controller
in favour of landlord against a tenant.
This section thus gives complete protection to a tenant. The
right which is sought to be inferred as vested right is only under its
proviso. Proviso cannot enlarge the main section. When main section
is only a protective right of a tenant, various sub-clauses of its proviso
cannot be construed as it gives vested right to a landlord. The right if
at all could be said of the landlord it flows only under the protective
tenants umbrella which cannot be enlarge into a vested right of a
landlord. Hence in our considered opinion by no stretch of
imagination it could be held that the landlord has any vested right by
virtue of Section 14 of the Rent Act.
This leads us to the question, whether in a case where Section 6
of the General Clauses Act is applicable, what effect it would have on
a pending proceeding, when repealing provisions come into operation.
It is not in dispute in the present case that the Delhi Rent Act is the
Central Act hence Section 6 of the General Clauses Act is applicable.
We may also record here, in none of the aforesaid decisions cited by
the learned counsels application of Section 6 of the General Clauses
Act was considered.
We may quote here Section 6 of the General Clauses Act, 1897:
Section 6: Effect of repeal
Where this Act, or any (Central Act) or
Regulation made after the commencement of this
Act, repeals any enactment hitherto made or
hereafter to be made, then, unless a different
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intention appears, the repeal shall not
(a) revive anything not in force or existing at
the time at which the repeal takes effect; or
(b) affect the previous operation of any
enactment so repealed or anything duly done
or suffered thereunder; or
(c) affect any right, privilege, obligation or
liability acquired, accrued or incurred under
any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment
incurred in respect of any offence committed
against any enactment so repealed; or
(e) affect any investigation, legal proceeding or
remedy in respect of any such right,
privilege, obligation, liability, penalty,
forfeiture or punishment as aforesaid, and
any such investigation, legal proceeding or
remedy may be instituted, continued or
enforced, and any such penalty, forfeiture or
punishment may be imposed as if the
repealing Act or Regulation had not been
passed.
The opening words of Section 6 specify the field over which it
is operative. It is operative over all the enactment under the General
Clauses Act, Central Act or Regulations made after the
commencement of General Clauses Act. It also clarifies in case of
repeal of any provision under the aforesaid Act or regulation, unless a
different intention appears from such repeal, it would have no affect
over the matters covered in its sub-clauses, viz., (a) to (e). It clearly
specifies that the repeal shall not revive anything not in force or in
existence or effect the previous operation of any enactment so
repealed or anything duly done or suffered or affect any right,
privilege, obligation or liability acquired, accrued or incurred under
the repealed statute, affect any penalty, forfeiture or punishment
incurred in respect of any offence committed under the repealed
statute and also does not affect any investigation, legal proceeding or
remedy in respect of any such right, privilege, obligation, liability,
penalty, forfeiture or punishment as aforesaid. Thus the Central
theme which spells out is that any investigation or legal proceeding
pending may be continued and enforced as if the repealing Act or
Regulation had not come into force.
As a general rule, in view of Section 6, the repeal of an statute,
which is not retrospective in operation, does not prima facie affect the
pending proceedings which may be continued as if the repealed
enactment were still in force. In other words such repeal does not
effect the pending cases which would continue to be concluded as if
the enactment has not been repealed. In fact when a lis commences,
all rights and obligations of the parties gets crystalised on that date.
The mandate of Section 6 of the General Clauses Act is simply to
leave the pending proceedings unaffected which commenced under
the unrepealed provisions unless contrary intention is expressed. We
find Clause (c) of Section 6, refers the words any right, privilege,
obligation. acquired or accrued under the repealed statute would
not be affected by the repealing statute. We may hasten to clarify here,
mere existence of a right not being acquired or accrued, on the date
of the repeal would not get protection of Section 6 of the General
Clauses Act.
At the most such a provision can be said to be granting a privilege to
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the landlord to seek intervention of the Controller for eviction of the tenant
under the Statute. Such a privilege is not a benefit vested in general but is a
benefit granted and may be enforced by approaching the Controller in the
manner prescribed under the statute. On filing the petition for eviction of
the tenant the privilege accrued with the landlord is not affected by repeal of
the Act in view of section 6(c) and the pending proceeding is saved under
section 6(e) of the Act.
This Court in Isha Valimohamad and another vs. Haji Gulam
Mohamad & Haji Dada Trust (1974) 2 SCC 484) held, inter alia, that the
right of a landlord to recover possession on the ground that the tenant has
sub-let the premises is not an accrued right within the meaning of section
51 of the Bombay Rents, Hotel and Lodging Houses Rates Control Act, (57
of 1947). But the landlord had the legal freedom as against the tenants to
terminate the tenancy or not. The tenants had no right or claim that the
landlord should not terminate the tenancy and the landlord is therefore the
privilege of terminating it on the ground that tenant has sub-let the premises.
This privilege would survive the repeal.
In para 16 of the judgment this Court summed up the position as
follows:
Under the Transfer of Property Act, mere sub-letting, by
a tenant, unless the contract of tenancy so provides, is no
ground for terminating the tenancy. Under that Act a
landlord cannot terminate a tenancy on the ground that
the tenant had sub-let the premises unless the contract of
tenancy prohibits him from doing so. The respondent-
landlord therefore could not have issued a notice under
any of the provisions of the Transfer of Property Act to
determine the tenancy, as the contract of tenancy did not
prohibit sub-letting by the tenant. To put it, differently,
under the Transfer of Property Act, it is only if the
contract of tenancy prohibits sub-letting by tenant that a
landlord can forfeit the tenancy on the ground that the
tenant has sub-let the premises and recover possession
of the same after issuing a notice. Section 111 of the
Transfer of Property Act provides that a lease may be
determined by forfeiture if the tenant commits breach of
any of the conditions of the contract of tenancy which
entails a forfeiture of the tenancy. If sub-letting is not
prohibited under the contract of tenancy, sub-letting
would not be a breach of any condition in the contract of
tenancy which would enable the landlord to forfeit the
tenancy on that score by issuing a notice. If that be so,
there was no question of the respondent landlord
terminating the tenancy under the Transfer of Property
Act on the ground that the tenant had sub-let the
premises. It is only under Section 13(1)(e) of the
Saurashtra Act that a landlord was entitled to recover
possession of the property on the basis that the tenant had
sub-let the premises; and, that is because, Section 15 of
that Act unconditionally prohibited a tenant from sub-
letting. The Saurashtra Act nowhere insists that the
landlord should issue a notice and terminate the tenancy
before instituting a suit for recovery of possession under
S 13(1) (e) on the ground that the tenant had sub-let the
premises. The position, therefore, was that the landlord
was entitled to recover possession of the premises under
Section 13(1) of the Saurashtra Act on the ground that
the tenant sub-let the premises. It would follow that a
right accrued to the landlord to recover possession under
Section 13(1) of the Saurashtra Act when the tenant sub-
let the premises during the currency of that Act and the
right survived the repeal of that Act under proviso (2) to
Section 51 of the Bombay Act and, therefore, the suit for
recovery of possession of the premises under Section
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13(1) read with clause (e) of the Saurashtra Act after the
repeal of that Act on the basis of the sub-letting during
the currency of the Saurashtra Act was maintainable. In
this view, we think that the judgment of the High Court
must be upheld and we do so.
In this connection the decision of this Court in M.S.Shivananda
vs. Karnataka State Road Transport Corporation and others (1980) 1
SCC 149 may be seen. Para 15 of the judgment which is relevant is
quoted hereunder:
The distinction between what is, and what is not a
right preserved by the provisions of Section 6 of the
General Clauses Act is often one of great fineness.
What is unaffected by the repeal of a statute is a
right acquired or accrued under it and not a mere
hope or expectation of, or liberty to apply for,
acquiring a right. In Director of Public Works v. Ho
Po Sang Lord Morris speaking for the Privy
Council, observed:
It may be, therefore, that under some
repealed enactment, a right has been
given but that, in respect of it, some
investigation or legal proceeding is
necessary. The right is then unaffected
and preserved. It will be preserved even
if a process of quantification is
necessary. But there is a manifest
distinction between an investigation in
respect of a right and an investigation
which is to decide whether some right
should be or should not be given. On a
repeal, the former is preserved by the
Interpretation Act. The latter is not.
(Emphasis supplied)
It must be mentioned that the object of Section
31(2)(i) is to preserve only the things done and
action taken under the repealed Ordinance, and not
the rights and privileges acquired and accrued on
the one side, and the corresponding obligation or
liability incurred on the other side, so that if no right
acquired under the repealed Ordinance was
preserved, there is no question of any liability
being enforced.
In the case of Bansidhar and others vs. State of Rajasthan and others
(1989) 2 SCC 557) a Constitution Bench of this Court interpreting the
provisions of section 6 of the Rajasthan Tenancy Act, 1955, which is pari-
material with section 6 of the Act, it was observed :
This takes us to the next question whether in the present
cases even if the provisions of Section 6 of the Rajasthan
General Clauses Act, 1955, are attracted, the present
cases did not involve any rights accrued or obligations
incurred so as to attract the old law to them to support
initiation or continuation of the proceedings against the
landholders after the repeal. It was contended that even
if the provisions of the old Act were held to have been
saved it could not be said that there was any right accrued
in favour of the State or any liability incurred by the
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landholders in the matter of determination of the ceiling
area so as to attract to their cases the provision the old
law. The point emphasised by the learned counsel is that
the excess land would vest in the State only after the
completion of the proceedings and upon the landholder
signifying his choice as to the identity of the land to be
surrendered. Clauses (c) and (e) of Section 6 of the
Rajasthan General Clauses Act, 1955, provide,
respectively, that the repeal of an enactment shall not,
unless a different intention appears, affect any right,
privilege, obligation or liability, acquired, accrued or
incurred under any enactment so repealed or affect any
investigation, legal proceeding or remedy in respect of
any such right, privilege, obligation, liability, fine,
penalty, forfeiture or punishment as aforesaid.
For purposes of these clauses the right must be
accrued and not merely an inchoate one. The
distinction between what is and what is not a right
preserved by Section 6 of the General Clauses Act, it is
said, if often one of great fineness. What is unaffected by
the repeal is a right acquired or accrued under the
repealed statute and not a mere hope or expectation of
acquiring a right or liberty to apply for a right.
In Commissioner of Income-Tax, Bombay City-1 vs. Godavari
Sagar Mills Ltd. 1967 (1) SCR this Court observed:
We proceed to consider the next contention
of the appellant that s.13 of the 1949 Act repealed
the Ordinance completely and the effect of this
section was that the Ordinance was obliterated
from the Statute Book as if it never existed and,
therefore, there was no bar in the way of the
Income-tax Officer to make the order on March
11, 1955.
Mr. S.T. Desai is not right in his contention
that the effect of s.13 of the 1949 Act is to
obliterate the Ordinance completely from the
Statute Book. Section 6 of the General Clauses
Act (Act 10 of 1897) states as follows:
6. Whereas this Act, or any Central Act or
Regulation made after the commencement of this
Act, repeals any enactment hitherto made or
hereafter to be made, then, unless a different
intention appears, the repeal shall not -
(a) revive anything not in force or existing at
the time at which the repeal takes effect; or
(b) affect the previous operation of any
enactment so repealed or anything duly done
or suffered thereunder; or
(c) affect any right, privilege, obligation or
liability acquired, accrued or incurred under
any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment
incurred in respect of any offence committed
against any enactment so repealed; or
(e) affect any investigation, legal proceeding or
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remedy in respect of any such right,
privilege, obligation, liability, penalty,
forfeiture or punishment as aforesaid;
and any such investigation, legal proceeding or
remedy may be instituted, continued or enforced,
and any such penalty, forfeiture or punishment
may be imposed as if the repealing Act or
Regulation had not been passed.
The reason for enacting s.6 of the General Clauses
Act has been described by this Court in State of
Punjab v. Mohar Singh as follows:
Under the law of England, as it stood
prior to the Interpretation Act of 1889, the
effect of repealing a statute was said to be to
obliterate it as completely from the records
of Parliament as if it had never been passed,
except for the purpose of those actions,
which were commenced, prosecuted and
concluded while it was an existing law. A
repeal therefore without any saving clause
would destroy any proceeding whether not
yet begun or whether pending at the time of
the enactment of the Repealing Act and not
already prosecuted to a final judgment so as
to create a vested right. To obviate such
results a practice came into existence in
England to insert a saving clause in the
repealing statute with a view to preserve
rights and liabilities already accrued or
incurred under the repealed enactment.
Later on, to dispense with the necessity of
having to insert a saving clause on each
occasion, section 38(2) was inserted in the
Interpretation Act of 1889 which provides
that a repeal, unless the contrary intention
appears, does not affect the previous
operation of the repealed enactment or
anything duly done or suffered under it and
any investigation, legal proceeding or
remedy may be instituted, continued or
enforced in respect of any right, liability and
penalty under the repealed Act as if the
Repealing Act had not been passed. Section
6 of the General Clauses Act, as is well
know, is on the same lines as Section 38(2)
of the Interpretation Act of England.
Section 13 of the 1949 Act is almost identical in
language with s.11 of Punjab Act XII of 1948
which was the subject-matter of consideration in
State of Punjab v. Mohar Singh and for the reason
given by this Court in that case the provisions of s.
6 (c), (d) and (e) of the General Clauses Act are
applicable to this case since there is no contrary
intention appearing in the repealing statute.
In M.S. Shivananda vs. Karnataka State Road Transport
Corporation and Ors. (1980) 1 SCC 149, this Court observed:
If, however, the right created by the statute is of
an enduring character and has vested in the person,
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that right cannot be taken away because the statute
by which it was created has expired. In order to
ascertain whether the rights and liabilities under
the repealed Ordinance have been put an end to by
the Act, the line of enquiry would be not whether
the new Act expressly keeps alive old rights and
liabilities under the repealed Ordinance but
whether it manifests an intention to destroy them.
Another line of approach may be to see as to how
far the new Act is retrospective in operation.
Thus we find Section 6 of the General Clauses Act
covers wider field and saves wide range of proceedings referred to in
its various sub-clauses. We find two sets of cases, one where Section
6 of the General Clauses Act is applicable and other where it is not
applicable.
In cases where Section 6 is not applicable, the courts have to
scrutinise and find, whether a person under a repealed statute had any
vested right. In case he had, then pending proceedings would be
saved. However, in cases where Section 6 is applicable, it is not
merely a vested right but all those covered under various sub-clauses
from (a) to (e) of Section 6. We have already clarified right and
privileges under it is limited to those which is acquired and
accrued. In such cases pending proceedings is to be continued as if
the statute has not been repealed.
In view of the aforesaid legal principle emerging, we come to
the conclusion since proceeding for the eviction of the tenant was
pending when repealing Act came into operation, Section 6 of the
General Clauses Act would be applicable in the present case. As it is
Landlords accrued right in terms of Section 6. Sub-section (c) of
Section 6 refers to any right which may not be limited as a vested
right but is limited to be an accrued right. The words any right
accrued in Section 6 (c) is wide enough to include landlords right
to evict a tenant in case proceeding was pending when repeal came in.
Thus a pending proceeding before the Rent Controller for the eviction
of a tenant on the date when the repealing Act came into force would
not be affected by the repealing statute and will be continued and
concluded in accordance with the law as existed under the repealed
statute.
In view of the aforesaid findings we conclude, by recording our
findings on the question posed earlier by holding:
(1) A landlord or tenant are relegated to seek their rights and
remdies under the common law once the protection given to a tenant
under the Rent Act is withdrawn, except in cases where Section 6 of
the General Clauses Act, 1897 is applicable;
(2) A ground of eviction based on illegal subletting under
proviso (b) to Section 14 of the Rent Act would not constitute to be a
vested right of a landlord, but it would be a right and privilege accrued
within the meaning of Section 6 (c) of the General Clauses Act in a
matter if proceeding for eviction is pending;
(3) When tenant has no vested right under a Rent Act having
only protective right, withdrawal of such protection would not confer
on a landlord a vested right to evict a tenant under Rent Act except
where sub-clause (c) of Section 6 of the General Clauses Act is
applicable.
In view of these findings we hold landlord has a right under the
repealed Rent Act by virtue of Section 6 (c) of the General Clauses
Act, which would save the pending proceedings before the Rent
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Controller, which may continue to be proceeded with as if repealed
Act is still in force.
In view of our aforesaid findings, since Rent Controller has the
jurisdiction over the subject-matter, it will not be right for the landlord
to continue with two parallel proceedings; one under the General Law
and other before the Rent Controller. Hence we further order that the
respondent-landlord to withdraw one of the two proceedings within a
period of 6 weeks from today.
For the aforesaid reasons, the present appeals fail and are
dismissed. Costs on the parties.
..J
(A.P. Misra)
..J
(D.P. Mohapatra)
August 27, 2001