Moti Ram Vs. Suraj Bhan & Ors
 INSC 15 (3 February 1960)
GUPTA, K.C. DAS
CITATION: 1960 AIR 655 1960 SCR (2) 896
CITATOR INFO :
RF 1963 SC 499 (6) D 1968 SC1336 (6) RF 1984
SC1164 (14) RF 1988 SC1060 (6)
Rent Control-Ejectment-Statute Permitting
ejectment for reconstruction of building-Subsequent amendment making of
Provision more stinget-Whether retrospective-Statute making appellate order
final-Before making of order statute amended by providing revision to High
Court-If amendment applies to Pending appealed Punjab Urban Rent Restriction
Act, 1949 (E.P. 3 Of 949, SS. 13(3)(a)(iii) and 14(4)-East Punjab Urban Rent
Rcstriction (Amendment) Act, 1956. (Punj. 29 Of 1956). SS. 2 and 3.
On August 28, 1956 the respondent i applied
to the Rent Controller for the eviction of the appellant from a shop under S.
I3 of the East Punjab Urban Rent Restriction Act, 1949, inter alia on the
ground that he wanted to reconstruct the shop. On the date, s. 13(3) (a)(iii)
of the Act provided that a landlord may apply for the eviction of his tenant if
he required the building f or reconstruction or f or its re placement by
another building or for the erection of other building. Section 15 provided for
an appeal from the order of the Rent Controller and sub-s. (4) Of s. 15
provided that the decision of the appellate authority, and subject only to such
decision, the order of the Controller shall be final. By Amending Act 29 Of
1956, which came into force on September 24, 1956, ss. 13(3)(a)(iii) and 15
were amended; amended S. 13(3)(a)(iii) permitted ejectment if the landlord
required it to carry out any building work at the instance of the Government or
Local Authority or any Improvement Trust under some improvement or development
scheme or if It had become unsafe or unfit for human habitation ; and new s.
15(5) introduced by the amending Act, gave to the High Court power to call for
and examine the records relating to any order passed under the Act for
satisfying itself as to the legality or propriety of such order. The
application for eviction was dismissed by the Rent Controller and an appeal to
the appellate authority also failed. Respondent i went to the High Court in
revision and the High Court decreed eviction holding that the shop was required
for 897 reconstruction within the meaning of the unamended s. 13(3)(a) (iii).
The appellant contended that the amended provisions of S. 15 which permitted a
revision to be filed before the High Court were inapplicable as the case was
governed by the law as it stood on the date when the application for ejectment
was made and that Respondent i was not entitled to the decree as the case did
not fall within the provisions of amended s. 13(3)(a)( ... ) which were
retrospective and were applicable to the case.
Held, that the revision application before
the High Court was competent and the High Court had jurisdiction to interfere.
Finality could be attached to the decision of the appellate authority only
after the decision was made and not before. But at the time when the appellate
authority decided the matter in the present case the amending section had come
into force and the appellate order could not claim finality under the earlier
Indira Sohanlal v. Custodian of Evacuee
 2 S.C.R. III7, followed.
Delhi Cloth and General Mills Co. Ltd. v.
Income-tax Commis- sioner, (1924) L.L.R. 9 Lah. 284; Colonial Sugar Refining
Co. Ltd. v. Irving, (1905) A.C. 369, and Garikapatti Veeraya v. N. Subbiah
Choudhury,  S.C.R. 488, referred to.
Held, further that the provisions of amended
s. 13(3)(a)(iii) were not retrospective and did not apply to the present case.
The amendment was in regard to a matter of substantive law as it affected the
substantive rights of the landlord. An amendment which affected vested rights
operated prospectively unless it was made retrospective expressly or by
Ram Parshad Halwai, Ludhiana v. Mukhtiay
Chand, I.L.R. 1958 Pun. 1553, approved.
Civil Appellate Jurisdiction: Civil Appeal
No. 524 of 1959.
Appeal by special leave from the judgment and
order dated August 7,1959 of the Punjab High Court in Civil Revision No.
613 of 1958, arising out of the Judgment and
order dated the August 19,1958 of the District Judge, Gurgaon, in Civil Appeal
No. 14/14 of 1958.
N. S. Bindra and P. C. Aggarwala, for the
Achhru Ram and K. P. Gupta, for respondent
1960 February 3. The Judgment of the Court
was delivered by GAJENDRAGADKAR, J.-This appeal by special leave arises from
ejectment proceedings taken by Suraj Bhan (respondent 1) against the appellant
Moti Ram in respect of a shop situated in the urban area of 898 Gurgaon which
has been in the occupation of the appellant as a tenant for more than twenty
years on a monthly rental of Rs. 20. Respondent 1 purchased the shop on June
15, 1956, and soon thereafter he applied to the Rent Controller for the
eviction -of the appellant under s. 13 of the East Punjab Urban Rent Restriction
Act, 1949 (3 of 1949) (hereinafter called the Act). This application was based
on four grounds. it was urged that the appellant was a habitual defaulter and
was in arrears of rent, that the return of the money invested by respondent 1
in the purchase of the shop was not adequate, that respondent 1 apprehended
that the godown and the shop of which he was in possession as a tenant would be
sold off and he may be dispossessed therefrom, that is why he would require the
shop in the present proceedings for his personal use and that respondent I
wanted to reconstruct the shop for which necessary sanction had been obtained
by him from the Municipal Committee of Gurgaon and the plan prepared in that
behalf had been duly approved. This claim was resisted by the appellant who
disputed the correctness and the validity of all the pleas taken by respondent
1. The Rent Controller upheld the contentions of the appellant and rejected all
the pleas made by respondent 1. In regard to the plea that the respondent
wanted to reconstruct the shop the Rent Controller found that the evidence
adduced by respondent 1 in support of the said plea "had been created as a
camouflage and that the said plea was a false pretext to obtain the eviction of
the appellant. On these findings the application made by respondent I for
evicting the appellant was dismissed.
Respondent I then appealed to the District
Court against the said decision. His appeal, however, failed since the
appellate court confirmed all the findings made by the Rent Controller. In
respect of the last plea raised by respondent I about the rebuilding of the
shop the appellate court observed that respondent I had got the plan approved
and had also got the sanction from the Municipal Committee to re- construct the
building so as to be able to make a 899 ground for getting the appellant
ejected from the shop.
This appellate decision was challenged by
respondent I by his revisional application in the High Court of Punjab at
Chandigarh. The High Court confirmed the findings of the courts below on the
first three pleas raised by respondent
1. The last plea raised by respondent 1,
however, was upheld by the High Court with the result that the revisional
application preferred by respondent I was allowed and his claim for evicting
the appellant was decreed. It is this decree which is challenged before us by
the appellant in the present appeal.
Before dealing with the contentions raised by
Mr. Bindra on behalf of the appellant it is necessary to mention one material
fact. The application for ejectment was made on August 28, 1956. Before the
written statement was filed by the appellant on November 14, 1956, the Act was
amended by amending Act 29 of 1956 on September 24, 1956. In the present appeal
we are concerned with amendments made in ss.
13 and 15 of the Act. Section 13(1) provides
inter alia that a tenant in possession of a building shall not be evicted
therefrom except in accordance with the provisions of this section, or in
pursuance of an order made under s. 13 of the Punjab Urban Rent Restriction
Act, 1947 as subsequently amended. Section 13, sub-s. (2) provides for an
application to be made by a landlord who seeks to evict his tenant for a
direction in that behalf. It then proceeds to prescribe conditions on the
satisfaction of which a decree for ejectment can be passed in favour of the
landlord. We are not concerned with these conditions in the present appeal.
Section 13(3)(aXiii) as it stood at the date of the application made by
respondent I provided that a landlord may apply to the Controller for an order
directing the tenant to put the landlord in possession in the case of any
building if he requires it for the reconstruction of that building or for its
.replacement by another building or for the erection of-other buildings. By the
amending Act this proviision -has, been substantially. modified. Section
13(3)(a) (iii))as amended reads thus "In the casee of any 900 building or
rented land, if he requires it to carry out any building work at the instance
of the Government or Local Authority or any Improvement Trust under some
improvement or development scheme or it has become unsafe or unfit for human
habitation." One of the questions which we have to consider in this appeal
is whether this amended provision applies to the present proceedings.
The other relevant section is s. 15, sub-s.
(4). Under s. 15, sub-s. (4) as it stood on the date when the application was
filed provided that the decision of the appellate authority, and subject only
to such decision, an order of the Controller shall be final and shall not be
liable to be called in question in any court of law whether in a suit or any
other proceeding by way of appeal or revision. This has been subsequently
amended by deleting the last clause in sub-s. (4) and substituting in its place
the words "except as provided in sub-s. (5) of this section." Sub-s.
(5) which has been added reads thus:
"The High Court may, at any time, on the
application of any aggrieved party or on its own motion,, call for and examine
the records relating to any order passed or proceedings taken under this Act
for the purpose of satisfying itself as to the legality or propriety of such
order or proceedings and may pass such order in relation thereto as it may deem
fit." On behalf of the appellant it is urged before us that this amended
provision which permits a revisional application to be filed before the High
Court is inapplicable to the present proceedings.
Let us first deal with the point about the
competence of the revisional application. The appellant's case is that under s.
15, sub-s. (4) as it stood at the time when the present proceeding commenced,
the decision of the appellate authority was final, and it could not be
questioned in suit or other proceedings by way of appeal or revision. In other
words, a revisional application against the appellate decision was expressly
excluded. If at the time when the present proceedings commenced the decision of
the appellate authority was final in the eyes of law the 901 subsequent
amendment by which a revisional application has been allowed cannot affect that
position. It was the appellant's right as a party to the proceedings to claim
the benefit of the finality of the appellate order so far as the present
proceedings are concerned. Put in a different form the contentions that the
provision for a revisional application which has now been made by the amending
Act cannot retrospectively affect the proceedings which were pending at the
time when the amending Act was passed.
Unfortunately for the appellant this point is
concluded by the decision of this Court in the case of Indira Sohanlal v.
Custodian of Evacuee Property, Delhi (1). In
that case the appellant who was a displaced person from Lahore was the owner of
a house there and had arranged to have it exchanged with certain lands in a
village in the State of Delhi belonging to an evacuee 'M'. On February 23,
1948, the said owner made an application to the Additional Custodian of Evacuee
Property (Rural) Delhi for the confirmation of the transaction of exchange
under s. 5-A of the East Punjab Evacuees' (Administration of Property) Act,
1947 as amended in 1948 and applied to the State of Delhi. Under s. 5 of the
said Act an order if passed by the Custodian or Additional Custodian was not
subject to appeal or revision and was to become final and conclusive. However,
the application in question was not disposed of until March 20, 1952, on which
date the Additional Custodian passed an order confirming the exchange.
Meanwhile the relevant provisions of the law had been amended and ultimately
Central Act XXXI of 1950 was passed which, among other things, conferred
revisional powers on the Custodian-General by s. 27. In exercise of these
revisional powers the Custodian-General after hearing the parties set aside the
order of confirmation and directed that the matter should be reconsidered by
the Custodian. The appellant urged before this Court that the order of
confirmation originally passed was not open to revision on the ground that at
the date when she filed the application in 1948 she got a vested right to have
it deter- (1) [1955) 2 S.C.R. 1117, 902 mind under s. 5-A with the attribute of
finality and conclusiveness under s. 5-B attaching such determination.
Her argument was that the subsequent repeal
and reenactment of the said provisions cannot affect such a right in view of s.
6 of the General Clauses Act and s. 58(3) of Act XXXI of 1950. This contention
was rejected and the revisional order impugned by the appellant was confirmed.
It is true that the decision of this court was founded on two grounds. The
first of these related to the effect of the provisions of s.
6 of the General Clauses Act read in the
light of s. 58(3) of Act XXXI of 1950. The other ground, however, was one of
general importance and it is clear that it is on this latter ground that this
Court based its decision. According to this decision then the finality
prescribed by s. 5-B came into operation after the order in question was made
and not before. " Even if there be in law any such right at all ",
observed Jagannadhadas J., who delivered the unanimous opinion of the Court,
" it can in no sense be a vested or accrued right. It does not accrue
until the determination is in fact made when alone the right to finality
becomes an existing right as in Delhi Cloth and General Mills Co. Ltd. v.
Income tax Commissioner (I-). We are, therefore, of the opinion that the
principle of Colonial Sugar Refining Co. Ltd. v. Irving (2) cannot be invoked
in support of the case of the kind we are dealing with ". Having regard to
this decision it is impossible to accede to Mr. Bindra's argument that the
finality of the appellate decision could be invoked by the appellant before the
said appellate decision was actually recorded. If no finality could be claimed
at an earlier stage it is clear that at the time when the appellate authority
decided the matter the amending section had come into force and when the
appellate order was actually passed it could not claim the finality under the
earlier provision. We may incidentally point out that the said principle laid
down in the case of Indira Sohanlal (3) has been cited by this Court in
Garika_patti Veeraya v. N. Subbiah Choudhury (4) and it has been observed that
the question which was left open by the court on the earlier occasion fell to
be considered in the case of (1) (1927) I.L.R. 9 Lah 284.
(3) [1955) 2 S.C.R. 1117 (2) (19O5) A.C. 369
(4) [19571 S.C.R. 488 903 Garikapatti Veeraya (1) and was in fact considered
and decided. Mr. Achru Ram, for the respondent, has suggested that the very
passage in the case of Indira Sohanlal (2) which enunciated the principle
appears to have been cited with approval. However that may be, we are bound by
the decision of this Court in the case of Indira Sohanlal (2 ) and that decision
is clearly against the contention of the appellant that the amended provision
in respect of revisional jurisdiction of the High Court was inapplicable.
That takes us to the other contention that
the amended provision of s. 13(3) (a) (iii) applies. There is no doubt that if
this amended provision applied to the present case respondent I would not be
entitled to obtain an order of ejectment. It is plain that by the amendment
Legislature has imposed rigorous limitations on a landlord's right to recover
possession in the case of any building or rented land. The question is whether
this amendment can be said to be retrospective in operation. It is clear that
the amend- ment made is not in relation to any procedure and cannot be
characterized as procedural. It is in regard to a matter of substantive law
since it affects the substantive rights of the landlord. It may be conceded
that the Act is intended to provide relief to the tenants and in that sense is
a beneficial measure and as such its provision should be liberally construed;
but this principle would not be material or even relevant in deciding the
question as to whether the new provision is retrospective or not. It is
wellsettled that where an amendment affects vested rights the amendment would
operate prospectively unless it is expressly made retrospective or its
retrospective operation follows as a matter of necessary implication. The
amending Act obviously does not make the relevant provision retrospective in
terms and we see no reason to accept the suggestion that the retrospective
operation of the relevant provision can be spelt out as a matter of necessary
implication. We ought to add that Mr. Bindra has not argued that the initial
provision in s. 13(1) which is retrospective is (1)  S.C.R. 448. (2)
 S.C.R. 1117.
I15 904 attracted in interpreting the amended
provision in s. 13(3) (a) (iii). Stich a contention would of course be wholly
There is another consideration to "
which reference may be made. If the new provision is held to be retrospective
in its operation what would be the consequence ? Inevitably all pending actions
in which landlords may have applied for possession of their buildings let out
to the tenants under the provisions of s. 13(3) (a) (iii) as it stood before the
amendment would automatically fail because they would not satisfy the tests
imposed by the amended provision. If such a drastic consequence was really
intended by the Legislature it would certainly have made appropriate provisions
in express terms in that behalf.
Where the Legislature intends to make
substantive provisions of law retrospective in operation it generally makes its
intention clearly expreress provisions in that behalf. We are, therefore
satisfied that s. 13(3) (a) (iii) as amended cannot apply to proceedings which
were pending either before the Controller or the appellate authority at the
time when the, amendment was made. In this connection we ought to add that when
the revisions application was argued the High Court it was admitted by the
appellant that it was the old law which was in force before the date of the
amendment that applied to the case. Even so we have allowed Mr. Bindra to raise
the point before us but we see no substance in it. This point has been
considered by the Punjab High Court in Ram Parshad Halwai Ludhiana v. Mukhtiar
Chand (1) and it appears that the Punjab High Court has taken the same way
about the effect of the amendment made in s. 13(3) (a) (iii).
There is one more point which remains to be
considered. Mr Bindra has argued that the High Court was in error in coming to
its own conclusion as to whether the retirement of s 13(3) (a) (iii) has been
satisfied. As we have already pointed out the finding of the Rent Controller-
and the appellate authority was that the claim made by respondent I that lie
(1) I.L.R, (1958) Punjab 1553 905 required the shop for the purpose of
reconstuction was not bona fide. The High Court has reversed this conclusion
and Mr. Bindra challenges the correctness or the propriety of the said conclusion.
The revisional power conferred upon 'the High Court under s. 15(5) is wider
than that conferred by s.115 of the Code of Civil Procedure, Under s. 15(5) the
High Court has jurisdiction to examine the legality or -propriety of the order
under revision and that would clearly justify the examination of the propriety
or the legality of the finding made by the authorities in the present case
about the requirement of the landlord under s. 13(3)(a) (iii). The High Court
no doubt has accepted the appellant's argument that the requirement in question
must be bona fide but it has observed that there was no legal evidence on which
it could be said that the landlord's requirement was not bona fide. Indeed it
is obvious that the tests applied both by the Rent Controller and the appellate
authority in dealing with the question were based on the assumption that the
amended provision of s. 13(3)(a) (iii) applied to the present proceedings.
Otherwise it was irrelevant to enquire whether the property in question had become
unsafe or unfit for human habitation as they have done. All the relevant
evidence available on the record on this point clearly sustains the view taken
by the High Court that the -case made by the landlord under s. 13(3) (a) (iii)
was bona fide. Soon after he purchased the house he decided to reconstruct the
building, moved the Municipality with his plan and obtained its sanction. It is
difficult to understand how on these facts it would be permissible to hold that
the landlord is acting mala fide. That is the view which the High Court took
and we see no substance in the argument that in 'taking the said view the High
Court has acted either irregularly or improperly.
In the result the appeal fails and is
dismissed with costs.