Full Judgment Text
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PETITIONER:
SAFALI ROY CHOUDHURY & ORS.
Vs.
RESPONDENT:
AMARENDRA KUMAR DUTTA
DATE OF JUDGMENT06/05/1976
BENCH:
GUPTA, A.C.
BENCH:
GUPTA, A.C.
BHAGWATI, P.N.
FAZALALI, SYED MURTAZA
CITATION:
1976 AIR 1810 1976 SCR 595
1976 SCC (3) 602
ACT:
Interpretation of statutes-Repeal and saving provision-
Intention of Legislature-Whether saving provision can
override new rights created by repealing statute.
Transfer of Property Act, 1882-Sec. 5-52-Transfer of
Property-List Pendens-If applies to rights created by a
statute.
West Bengal Premises Rent Control (Temporary
Provisions) Act 1950- West Bengal Premises Tenancy Act 1956-
Sec. 2(h),16 and 40.
HEADNOTE:
The respondent was the tenant of the suit premises and
Dilip Narayan Roy Choudhury was his sub-tenant. The tenant
instituted a suit against the subtenant when the West Bengal
Premises Rent Control (Temporary Provisions) Act, 1950 was
in force seeking to evict the sub-tenant on the ground that
he was a defaulter in payment of rent. After the suit was
instituted. West Bengal Premises Tenancy Act, 1956, was
brought into operation. Section 40 of the subsequent Act
repealed the 1950 Act and further provided that not-
withstanding the repeal of the said Act any proceedings
pending on the date of the repeal may be continued as if the
said Act had been in force and had not been repealed or had
not expired. Section 16 of the 1956 Act confers on the sub-
tenant, on his complying with certain conditions the right
to become a tenant directly under the landlord and authorise
the Rent Controller to pass necessary orders directing that
the sub-tenant shall become tenant directly under the
landlord from the date of the order. The sub-tenant adopted
proceedings under section 16 of the Act against the superior
landlord and in February, 1957, the Rent Controller held
that the sub-tenant was entitled to the declaration asked
for over-ruling the objections raised by the tenant. An
appeal filed by the tenant against the said order was
dismissed. Thereafter, the sub-tenant amended his written
statement in the suit for eviction filed by the tenant
against him and pleaded that the relationship of the
landlord and tenant between the tenant and the sub-tenant no
longer subsisted. The Munsiff dismissed the application for
eviction filed by the tenant on the ground that in view of
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he order passed under the 1956 Act declaring the sub-tenant
to be a direct tenant under the landlord the relationship of
landlord and tenant between the parties ceased. In a
revision, the High Court maintained the order rejecting the
application for eviction but set aside the finding that the
relationship of the landlord and tenant between the tenant
and the sub-tenant ceased. The High Court held that in spite
of section 40 of the repealing Act, section 16(3) of the
Repealing Act must be given effect to. The High Court,
however, took the view that the proceedings under section
16(3) having been initiated during the pendency of the suit
the principle of lis pendens would apply and, accordingly,
the order under s. 16(3) would not govern the suit.
In an appeal by special leave by the heirs of the sub-
tenant, the counsel for the respondent did not rely on s. 52
of the Transfer of Property Act but sought to support the
decree on the ground that in view of s. 40 of the Repealing
Act the entire proceedings under s. 16 was without
jurisdiction.
Allowing the appeal,
^
HELD: (1) The doctrine of lis pendens can have no
application to this case. The doctrine of lis pendens means
that no party to the litigation can alienate the property in
dispute so as to affect the other party and rests upon the
foundation that it would plainly be impossible that any
action or suit could be brought to a successful termination
after alienation pendente lite. Section
596
5 of the Transfer of Property Act defines transfer of
property as an act by which a living person conveys property
to another. When the Legislature in exercise of its
sovereign powers regulates or alters the rights of landlord
and tenant, what it does is not transfer of property
attracting the doctrine of lis pendens. [599B, C-F]
(2) It is true that in view of s. 40 of the Repealing
Act a pending proceeding may be continued as if the
Repealing Act was not passed. This, however, does not mean
that even if the 1956 Act created a new right in favour of
the tenant, he would be denied this right because a suit for
ejectment was pending against him when the Act came into
force. The intention of the Legislature, which is paramount,
is clear to upgrade the sub-tenant and make him a tenant
directly under the superior landlord. A sub-tenant is a
tenant within the meaning of s. 2(h) of the Repealing Act.
Thus, the suit must continue under the 1950 Act but the
right acquired by the sub-tenant under 1956 Act has to be
given effect to and the suit decided accordingly. Therefore,
the relationship of landlord and tenant ceased between the
parties on the date when the order under s. 16 was made.
[599F-H, 600B-C]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1599 of
1968.
Appeal by Special Leave from the Judgment and Order
dated the 16th February 1968 of the Calcutta High Court in
Civil Rule No. 1030 of 1967.
D. N. Mukherjee and N. R. Chaudhury for the Appellants.
Sukumar Ghosh for the Respondent.
The Judgment of the Court was delivered by
GUPTA, J. This appeal by special leave is directed
against a Judgment of the Calcutta High Court setting aside
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in revision the finding of the trial court on the issue
whether the relationship of landlord and tenant subsisted
between the parties in a suit for ejectment. The issue which
arises on the interaction of two statutes, the West Bengal
Premises Rent Control (Temporary Provisions) Act, 1950 and
the West Bengal Premises Tenancy Act, 1956, which repeals
the earlier Act but keeps it alive for proceedings pending
on the date of repeal, involves the question, is the right
conferred on the sub-tenant by the 1956 Act of being
declared a tenant directly under the superior landlord
available to a sub-tenant against whom a suit for ejectment
was pending when that Act came into force ? The appeal turns
on the answer to this question.
The material facts leading to the impugned order are
these. The respondent was a tenant of premises No. 17/1E
Gopal Nagar Road, Alipore, Calcutta, and his landlord was
one Jagabandhu Saha, the owner of the house, Dilip Narayan
Roy Chowdhury was a sub-tenant under the respondent in
respect of the ground floor flat paying a monthly rent of
Rs. 75/-. The respondent instituted a suit in the Munsif’s
court at Alipore on March 21, 1956 when the West Bengal
Premises Rent Control (Temporary Provisions) Act, 1950 was
in force, seeking to evict Roy Choudhury on the ground that
he was a defaulter in payment of rent. This Act was a
temporary statute due to expire on March 31, 1956, but on
that date the West Bengal Premises Tenancy Act, 1956 was
brought into operation repealing the
597
temporary Act before it expired. The material part of
section 40 of the 1956 Act which repealed the 1950 Act is as
follows:
"Repeal and savings.-(1) The West Bengal Premises
Rent Control (Temporary Provisions) Act, 1950 (in this
section referred to as the said Act), is hereby
repealed.
(2) Notwithstanding the repeal of the said Act:-
(a) any proceeding pending on the 31st day
of March, 1956, may be continued, or,
(b) x x x x x
as if the said Act had been in force and had not
been repealed or had not expired :"
Section 16 of the 1956 Act confers on the sub-tenant the
right to become a tenant directly under the landlord. Sub-
section (2) of section 16 provides inter-alia that where
before the commencement of this Act, the tenant, with or
without the consent of the landlord, has sublet any premises
either in whole or in part, the tenant and every sub-tenant
must give notice to the landlord of such subletting within
the prescribed period. Sub-section (3) of section 16
provides that in any such case where the landlord had not
consented in writing or denies that he gave oral consent,
the Rent Controller on an application made to him either by
the landlord or the sub-tenant shall make an order declaring
that the tenant’s interest in so much of the premises as has
been sublet shall cease and that the sub-tenant shall become
a tenant directly under the landlord from the date of the
order. The Rent Controller is also required to fix the rent
payable by the sub-tenant to the landlord from the date of
the order. Sub-tenant Roy Choudhury served a notice under
section 16(2) of the 1956 Act upon the superior landlord and
applied under section 16(3) for being declared a tenant
directly under him. On July 31, 1956 the Rent Controller
recorded a finding on this application that Roy Choudhury
was entitled to the declaration asked for overruling the
objections raised by the respondent. On February 23, 1957
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the Rent Controller concluded the proceeding under section
16(3) by finally declaring that the sub-tenant was a tenant
directly under the superior landlord with effect from that
date, and fixing the rent payable by him. The appeal
preferred by the respondent from this order was dismissed by
the appellate authority.
In the meantime, on August 21, 1956 the respondent had
made an application under section 14(4) of the 1950 Act in
the suit for eviction which was pending. Section 14(4) of
the 1950 Act permitted the landlord to make an application
in the suit for an order on the tenant to deposit month by
month the rent at the rate at which it was last paid and
also the arrears of rent, if any, and provided that on
failure to deposit the arrears of rent or the rent for any
month within the period prescribed for such deposits, the
court would make an order striking out the tenant’s defence
against ejectment so that the tenant would be in he same
position as if he had not defended the claim to
598
ejectment. On this application the Munsif on September 26,
1956 directed the appellant to deposit a certain sum as
arrears of rent and also rent month by month at the rate of
Rs. 75/-. After the declaration of tenancy under section
16(3), Roy Choudhury was permitted to amend his written
statement in the suit by adding a paragraph questioning the
relationship of landlord and tenant between the respondent
and himself. It is unnecessary to refer to the various
proceedings in the suit that followed, in the course of
which the High Court was moved more than once by either
party. On January 24, 1965 Roy Choudhury died and the
present appellants were substituted in his place in the suit
as his heirs and legal representatives. On November 1, 1965
the Munsif framed an additional issue, being issue No. 9,
which was as follows:
"Has the alleged relationship of landlord and
tenant between the parties been determined by final
orders dated 31-7-56 and 23-2-57 passed by the R. C.
(Rent Controller) Calcutta in Case No. 243B of 1956 ?"
The Munsif took up for consideration the application under
section 14(4) and the additional issue No. 9 together and by
his order dated February 20, 1967 found that the Rent
Controller had jurisdiction to pass the order under section
16(3) declaring the defendant to be a direct tenant under
the superior landlord, and that the relationship of landlord
and tenant between the parties ceased by virtue of the order
made under section 16(3). The additional issue No. 9 was
accordingly decided in favour of the defendant and the
application under section 14(4) of the 1950 Act was
dismissed. The plaintiff moved the High Court in revision
against this order. The revision case was disposed of on
February 16, 1968, the learned Judge maintained the order
rejecting the application under section 14(4) but set aside
the finding on issue No. 9 and held that "for the purposes
of the present suit for ejectment there is a relationship of
landlord and tenant". The propriety of this order is
challenged by the tenant defendants.
In the course of his Judgment the learned Judge
recorded the following findings:
(i) "The validity or the binding nature of the
order under section 16(3) of the 1956 Act
cannot be challenged nor can it be found in
this suit to be inoperative".
(ii) The rights arising out of a valid proceeding
under section 16(3) cannot be overlooked in
spite of the non-obstante clause in section
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40 of the 1956 Act and the effect of the
order under section 16(3) has to be
considered in the suit.
(iii)As the proceeding under section 16(3) was
started during the pendency of the suit, the
principle underlying section 52 of the
Transfer of Property Act should apply to this
case and "the decision made in the proceeding
under section 16(3) would not control the
decision in the ejectment suit".
599
It thus appears that the High Court was of the view
that in spite of section 40 providing that a pending
proceeding would continue to be governed by the provisions
of 1950 Act as if that Act had not been repealed or had not
expired, the order made under section 16(3) of the 1956 Act
must be given effect to. The High Court however held that
the proceeding under section 16(3) having been initiated
during the pendency of the suit, the principle of lis
pendens should apply and accordingly the order under section
16(3) would not govern the suit Before us, counsel for the
respondent did not rely on section 52 of the Transfer of
Property Act, but sought to support the decree on the ground
that in view of section 40, the entire proceeding under
section 16(3) was without jurisdiction. The doctrine of lis
pendens can of course have no application to this case.
Section 52 of the Transfer of Property Act forbids
alienations pendente lite providing inter alia that the
property forming the subject matter of a pending suit cannot
be transferred or otherwise dealt with by any party to the
suit so as to affect the rights of any other party under any
decree or order which may be made therein, except under the
authority of the court and on such terms as it may impose.
The doctrine of lis pendens means that no party to the
litigation can alienate the property in dispute so as to
affect the other party, and rests "upon this foundation,
that it would plainly be impossible that any action or suit
could be brought to a successful termination if alienations
pendente lite were permitted to prevail". [observation of
Turner L. J. in Belamy v. Sabine, (1857) 1 D. & J. 566 (584)
quoted with approval by the Privy Council in Faiyaz Husain
Khan v. Munshi Prag Narail & others, 34 I.A. 102 (105).] But
a sub-tenant who avails of the provisions of section 16(3)
which extinguishes the tenant’s interest in the portion of
the premises sublet and confers on the sub-tenant the right
to hold the tenancy directly under the superior landlord,
cannot be said to have alienated proporty pendente lite.
Section 5 of the Transfer of Property Act defines transfer
of property as an act by which a living person conveys
property to another. When the legislature in exercise of its
sovereign powers regulates the relations of landlord and
tenant, altering or abridging their rights, what it does is
not transfer of property attracting the doctrine of lis
pendens.
As stated already, counsel for the respondent put his
case on the provisions of section 40 of the 1956 Act.
According to him the suit must continue to be governed by
the 1950 Act even after its repeal in view of section 40,
unaffected by the provisions of the 1956 Act Section 40 of
the 1956 Act keeps alive a proceeding pending on the date
when the 1950 Act was repealed as if it is still in force
and has not been repealdd. This however does not mean that
even if the 1956 Act created a new right in favour of the
sub-tenant, he would be denied this right because a suit for
ejectment was pending against him when the Act came into
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force. ’Tenant’ as defined in section 2(h) of the 1956 Act
includes a person continuing in possession after the
termination of his tenancy until a decree or order for
eviction has been made against him. A sub-tenant is also a
tenant, and when the order under section 16(3) was made no
decree or order for eviction had been passed against him.
That being so, we do not see why he
600
should not be entitled to the benefit conferred by section
16(3). The intention of the legislature, which is paramount,
is clear-to upgrade the subtenant and make him a tenant
directly under the superior landlord. This is a new right
given to the sub-tenant, and though the pending proceeding
may continue to be regulated by the repealed statute in view
of section 40, there is nothing in that section to suggest
that the sub-tenant against whom a suit was pending will be
denied this additional right. The High Court has held that
the effect of the order under section 16(3) must be
considered in the suit. Thus the suit may continue in spite
of the repeal of the 1950 Act, but the right acquired by the
sub-tenant under the 1956 Act has to be given effect to and
the suit decided accordingly. It must therefore be held that
the relationship of landlord and tenant ceased between the
parties on the date when the order under section 16(3) was
made.
The appeal is allowed, the order of the High Court
appealed from is set and that of the trial court restored.
The appellants will be entitled to their costs in this Court
and in the High Court.
P.H.P. Appeal allowed.
601