Shah Bhojraj Kuverji Oil Mills and
Ginning Factory Vs. Subbash Chandra Yograj Sinha [1961] INSC 173 (21 April
1961)
HIDAYATULLAH, M.
AIYYAR, T.L. VENKATARAMA DAS, S.K.
KAPUR, J.L.
SHAH, J.C.
CITATION: 1961 AIR 1596
CITATOR INFO :
E 1968 SC1109 (9) D 1973 SC1227 (55) R 1985
SC 111 (8) R 1985 SC 582 (32) E 1985 SC 709 (4,6,7,13) R 1987 SC2117 (25) RF
1991 SC1654 (43)
ACT:
Rent Control-Landlord's right to recover
possessionStatutory bar-If Prospective or retrospective in operationBombay
Rents, Hotel and Lodging House Rates Control Act, 1947 (Bom. 57 of 1947), ss.
6, 12(1).
HEADNOTE:
On the expiry of the appellant's tenancy for
the occupation of the premises in dispute, the respondent who was the landlord
filed a suit for possession of the premises.
Meanwhile under s. 6 of the Bombay Rents,
Hotel and Lodging House Rates Control 160 Act, 1947, a notification was issued
applying Part 11 of the Act to the area where the property was situated. The
appellants claimed protection of s. 12, Part 11 of the Act, which deprived the
landlord of the right of possession under certain circum stances. The Court of
first instance decided the suit against the appellant and the High Court ruled
that s. 12 was prospective in character and did not apply to pending suits or
proceedings. On appeal by special leave Held, that the point of time when
sub-s. (1) of S. 12 operates is when the decree for recovery of possession has
to be passed. The language of the sub-section which provides that the landlord
is not entitled to recover possession if the tenant pays or shows his
willingness to pay the standard rent and to observe the other conditions of the
tenancy is such that it applies equally to suits pending when Part It comes
into force and those to be filed subsequently and is not limited only to suits
filed after the Act comes into force in a particular area.
A section may be prospective in one part and
retrospective in another part. Sub-sections (2) and (3) of s. 12 were clearly
prospective but the words of the first sub-section showed retrospective
operation.
Nilkanth Ram Chandra v. Rasiklal, (1949) 51
Bom. L.R. 280 and Chandra Singh Manibhai v. Surjitlal Sudhamal Chhabda, [1951]
S.C.R. 221, distinguished.
Rhonda Urban Council v. Taff Vale Railway,
[1909] A.C. 253, Mullins v. Treasury of Surrey, (1880) 5 Q.B.D. 170 and
Fitzgerald v. Champneys, (1861) 70 E.R. 958, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 49 of 1961.
Appeal by special leave from the judgment and
order dated August 11, 1960, of the Bombay High Court in Civil Revision
Application No. 320 of 1959.
M.C. Setalvad, Attorney-General for India,
Ramesh. war Nath, S. N. Andley and P. L. Vohra, for the appellants.
C.K. Daphtary, Solicitor-General of India,
Naushir Barucha and K. R. Choudhuri, for the respondent.
1961. April 21. The Judgment of the Court was
delivered by HIDAYATULLAH, J.-This is a tenant's appeal, with the special leave
of this Court, against an order of Naik, J., of the High Court of Bombay in
Civil Revision Application No. 320 of 1959, by which he 161 disallowed certain
pleas raised by the appellants. The respondent is the landlord.
On September 11, 1942, the appellants had
executed a rent note, under which they were in occupation of the premises in dispute.
The period of the tenancy was 15 years, and it expired by efflux of time on,
March 14, 1957. The landlord thereupon filed a suit on April 25, 1957, for
possession of the premises, in the Court of the Joint Civil Judge (Junior
Division), Erandol. Meanwhile, under s. 6 of the Bombay Rents, Hotel and
Lodging House Rates Control Act, 1947, (to be called the Act, in this
judgment), a notification was issued, applying Part II of the Act to the area
where the property is situated. The appellants claimed protection of s. 12 in
Part 11 of the Act, which deprived the landlord of the right of possession
under certain circumstances. The Civil Judge framed three preliminary Issues,
which were as follows:
"1. Whether this Court has jurisdiction
to try the suit? 2.Whether the plaintiff's suit for possession of the suit
property is maintainable in view of the Notification issued by the Government
of Bombay on 16th August, 1958, applying Part II of the Bombay Rents, Hotel and
Lodging House Rates Control Act? If not, what order should be passed? 3. What
order?".
These Issues were decided against the
appellants. They filed a revision petition before the High Court of Bombay,
which was dismissed by the order under appeal. Naik, J., who heard the
revision, followed a previous Full Bench ruling of the Bombay High Court
reported in Nilkanth Ramachandra v. Rasiktal (1). In that case, Chagla, C. J. (Gajendragadkar
and Tendolkar, JJ., concurring) had held that s. 12 of the Act was prospective
and did not apply to pending cases. Reliance was also placed by Naik, J., on
the decision of this Court in Chandrasingh Manibhai v. Surjit Lal Sadhamal
Chhabda (2), where the opinion of the Full Bench of the Bombay High Court was
approved.
(1) (1949) 51 Bom. L.R. 280.
(2) [1951] S.C.R. 221.
21 162 Two Questions have been raised in this
appeal, and they are (1) whether by virtue of the first proviso to s. 50 of the
Act, all the provisions of Part 11 including s. 12 were not expressly made
applicable to all suits; and (2) whether by virtue of s. 12(1) of the Act,
which applied independently by the extension of the Act to the area where the
property is situate, the suit was not rendered incompetent and the landlord
deprived of his remedy of possession.
Before we deal with these contentions, it is
necessary to see some of the relevant provisions of this Act. The Act was not
the first to be passed on the subject of control of houses, etc. Previously,
there were two other Acts in force in the State of Bombay, viz., the Bombay
Rent Restriction Act, 1939 and the Bombay Rents, Hotel Rates and Lodging House
Rates (Control) Act, 1944. By s. 50 of the Act, these Acts were repealed. The
first proviso, however, enacted (omitting unnecessary parts):
"Provided that all suits and proceedings
between a landlord and a tenant relating to the recovery or fixing of rent or
possession of any premises to which the provisions of Part 11 apply............
which are pending in any Court, shall be transferred to and continued before
the Courts which would have jurisdiction to try such suits or proceedings under
this Act or shall be continued in such Courts, as the case may be, and all the
provisions of this Act and the rules made there under shall apply to all such
suits and proceedings." It is this proviso which, it is claimed, has
retrospective effect and s. 12 of the Act which is in Part II is said to apply
to all pending cases, whenever the Act is extended to fresh areas. Section 12
of the Act reads as follows:
"12. (1) A landlord shall not be
entitled to the recovery of possession of any premises so long as the tenant
pays, or is ready and willing to pay, the amount of the standard rent and
permitted increases, if any, and observes and performs the other conditions of
the tenancy, in so far as they are consistent with the provisions of this Act.
163 (2)No suit for recovery of possession
shall be instituted by a landlord against a tenant on the ground of non-payment
of the standard rent or permitted increases due, until the expiration of one
month next after notice in writing of the demand of the standard rent or
permitted increases has been served upon the tenant in the manner provided in
section 106 of the Transfer of Property Act, 1882.
(3)(a) Where the rent is payable by the month
and there is no dispute regarding the amount of standard rent or permitted
increases, if such rent or increases are in arrears for a period of six months
or more and the tenant neglects to make payment thereof until the expiration of
the period of one month after notice referred to in sub-section (2), the Court
may pass a decree for eviction in any such suit for recovery of possession.
(b)In any other case, no decree for eviction
shall be passed in any such suit if, on the first day of hearing of the suit or
on or before such other date as the Court may fix, the tenant pays or tenders
in Court the standard rent and permitted increases then due and thereafter
continues to pay or tender in Court regularly such rent and permitted increases
till the suit is finally decided and also pays costs of the suit as directed by
the Court.
(4)Pending disposal of any such suit, the
Court may out of any amount paid or tendered by the tenant pay to the landlord
such amount towards payment of rent or permitted increases due to him as the
Court thinks fit.
Explanation.-In any case where there is a dispute
as to the amount of standard rent or permitted increases recoverable under this
Act the tenant shall be deemed to be ready and willing to pay such amount if,
before the expiry of the period of one month after notice referred to in
sub-section (2), he makes an application to the Court under sub-section (3) of
section II and thereafter pays or tenders the amount of rent or permitted increases
specified in the order made by the Court." 164 By sub-ss. (1) and (2) of
the second section, which dealt with the extent of the application of the Act,
it was provided that Parts I and IV of the Act shall extend to the
pre-Reorganisation State of Bombay, excluding transferred territories, and
Parts II and III shall extend respectively to the areas specified in Schs. I
and II to the Act, and shall continue to extend to any such area,
notwithstanding that the area ceased to be of the description therein
specified. By sub s. (3), the State Government was authorised, by notification
in the Official Gazette, to extend to any other area, any or all the provisions
of Part II or Part III or of both. It would appear from this that Parts I and
IV came into operation throughout the territories of the pre-Reorganisation
State of Bombay. Part II came to be extended to this area by the notification,
and after that extension, Parts 1, 11 and IV of the Act began to apply, while
the suit was pending. We are not concerned in this appeal with Part 111.
The contention on behalf of the appellants is
that by the latter part of the proviso to s. 50, relevant portions of which
have been quoted earlier, all the provisions of Part II were extended to this
area, and that all pending suits and proceedings were governed, no matter when
filed. The notification extending Part II of the Act to this area had, it is
contended, also the same effect independently of the first proviso to s. 50. It
is contended, therefore, that sub-s. (1) of s. 12, which prohibits a landlord
from recovering possession of any premises so long as the tenant pays or is
ready and willing to pay the amount of the standard rent and permitted
increases, if any, and is also observing the other conditions of the tenancy in
so far as they are not inconsistent with the provisions of the Act, applies to
the present case and the tenants are protected.
It is also contended that if the first
proviso to s. 50 was limited to such suits only as were pending on the date of
the passing of the Act, s. 12(1), on its own terms, is applicable to the
present case, and being retrospective in character, leads to the same result.
These two contentions were apparently raised in the Court of the Civil Judge
and before the High 165 Court. The High Court, however, ruled that s. 12 was
prospective in character and did not apply to pending suits or proceedings.
It is contended by the learned
Attorney-General what the construction placed by the High Court upon the first
proviso to s. 50 is erroneous. Though he S. concedes that the proviso must be
read as qualifying what the substantive part of s. 50 enacts, he urges that the
proviso goes beyond that purpose and enacts a substantive law of its own. He
relies upon the following observations of Lord Loreburn, L. C., in Rhondda
Urban Council v. Taff Vale Railway (1), where a proviso to s. 51 of the Railway
Clauses Consolidation Act, 1845, was under consideration:
"It is true that s. 51 is framed as a
proviso upon preceding sections. But it is also true that the latter half of
it, though in form a proviso, is in substance a fresh enactment, adding to and
not merely qualifying that which goes before.", and contends that the
latter portion of the proviso, in question, being a substantive enactment, comprehends
not only those suits which were pending on the date of repeal but also those
cases, which came within the language of the latter part of the proviso,
whenever the Act was extended to new areas. On behalf of the landlord, the
learned Solicitor-General argues that the proviso should be read as a proviso
only to the substantive enactment, and must be taken to qualify the substantive
portion of s. 50 only to the extent to which it makes an exception to the
repeal and but for the proviso would be governed by the repealed Acts.
He relies upon Craies on Statute Law, 5th
Edn., pp. 201-202, where the following passage occurs:
"The effect of an excepting or
qualifying proviso, according to the ordinary rules of construction, is to
except out of the preceding portion of the enactment, or to qualify something
enacted therein, which but for the proviso would be within it and such a
proviso cannot be construed as enlarging the scope of an enactment when it can
be fairly and (1) [1909] A.C. 253, 258.
166 properly construed without attributing to
it that effect." He also relies upon the following observations of Lush,
J., in Mullins v. Treasurer of Surrey (1):
"When one finds a proviso to a section,
the natural presumption is that, but for the proviso, the enacting part of the
section would have included the subject-matter of the proviso." The law
with regard to provisos is well-settled and well understood. As a general rule,
a proviso is added to an enactment to qualify or create an exception to what is
in the enactment, and ordinarily, 'a proviso is not interpreted as stating a
general rule. But, provisos are often added not as exceptions or qualifications
to the main enactment but as savings clauses, in which cases they will not be
construed as controlled by the section. The proviso which has been added to s.
50 of the Act deals with the effect of repeal. The substantive part of the
section repealed two Acts which were in force in the State of Bombay. If
nothing more had been said, s. 7 of the Bombay General Clauses Act would have
applied, and all pending suits and proceedings would have continued under the
old law, as if the repealing Act had not been passed. The effect of the proviso
was to take the matter out of s. 7 of the Bombay General Clauses Act and to
provide for a special saving. It cannot be used to decide whether s. 12 of the
Act is retrospective. It was observed by Wood, V. C., in Fitzgerald v.
Champneys (2) that saving clauses are seldom used to construe Acts. These
clauses are introduced into Acts which repeal others, to safe. guard rights
which, but for the savings, would be lost. The proviso here saves pending suits
and proceedings, and further enacts that suits and proceedings then pending are
to be transferred to the Courts designated in the Act and are to continue under
the Act and any or all the provisions of the Act are to apply to them. The
learned Solicitor-General contends that the savings clause enacted by the
proviso, even if treated as substantive law, must be taken to (1) (1880) 5 Q.B.D.
170, 173.
(2) (1861) 2 J. & H. 31:70 E.R. 958.
167 apply only to suits and proceedings
pending at the time of the repeal which, but for the proviso, would be governed
by the Act repealed. According to the learned Attorney General, the effect of
the savings is much wider, and it applies to such cases as come within the
words of the proviso, whenever the Act is extended to new areas.
These arguments are interesting, and much can
be said on both Bides, particularly as the Legislature has by a subsequent
amendment changed the proviso. But, in our opinion, they need not be considered
in this case, in view of what we have decided on the second point.
The second contention urged by the learned
Attorney-General that s. 12(1) applied from the date on which the Act was
extended to the area in question is, in our opinion, sound.
Section 12(1) enacts a rule of decision, and
it says that a landlord is not entitled to possession if the tenant pays or
shows his readiness and willingness to pay the standard rent and to observe the
other conditions of the tenancy. The word "tenant" is defined in the
Act to include not only a tenant, whose tenancy subsists but also any person
remaining, after the determination of the lease, in possession with or without
the assent of the landlord. The present appellants, as statutory tenants, were
within the rule enacted by s. 12(1) and entitled to its protection, if the
sub-section could be held applicable to this suit.
Both the Bombay High Court and this Court
had, on the previous occasions, observed that s. 12 of the Act was prospective.
In those cases, the learned Judges were concerned with the interpretation of
sub ss. (2) and (3) only, which, as the words of those subsections then
existing show, were clearly prospective, and were applicable to suits to be
instituted after the coming into force of the Act.
But a section may be prospective in some
parts and retrospective in other parts. While it is the ordinary rule that
substantive rights should not be held to be taken away except by express
provision or clear implication, many Acts, though prospective in form, 168 have
been given retrospective operation, if the intention of the legislature is
apparent. This is more so, when Acts are passed to protect the public against
some evil or abuse. (See Craies on Statute Law, 5th Edn., p. 365). The
sub-section says that a landlord Shall not be entitled to the recovery of
possession of any premises so long as the tenant pays or is ready and willing
to pay the standard rent etc., and observes and performs the other conditions
of the tenancy. In other words, no decree can be passed granting possession to
the landlord, if the tenant fulfils the conditions above mentioned. The
Explanation to S. 12 makes it clear that the tenant in case of a dispute may
make an application to the Court under sub-s. (3) of S. 11 for fixation of a
standard rent and may thereafter pay or tender the amount of rent or permitted
increases specified in the order to be made by the Court. The tenants, in the
present case, have expressed their readiness and willingness to pay, and it is
clear that they fulfill the requirements of sub-s. (1) of S. 12, and the
landlord is, therefore, not entitled to the relief of possession.
Both the High Court as well as this Court in
their previous decisions, referred to above, were not called upon to interpret
sub-s. (1) of the Act. They were dealing with appeals arising out of decrees
already passed. The observations that S. 12 was prospective were made with
reference to sub-ss. (2) and (3) and not with respect to sub-s. (1), which did
not even find a mention in those judgments. The question then was whether S. 12
by itself or read with the proviso to S. 50 was applicable retrospectively to
appeals. That is not the question which has arisen here. Then again, S. 12(1)
enacts that the landlord shall not be entitled to recover possession, not
"no suit shall be instituted by the landlord to recover possession".
The point of time when the sub-section will operate is when the decree for recovery
of possession would have to be passed. Thus, the language of the subsection
applies equally to suits pending when Part 11 comes into force and those to be
filed subsequently. The contention of the respondent that the operation of S.
12(1) 169 is limited to suits filed after the Act comes into force in a
particular area cannot be accepted. The conclusion must follow that the present
suit cannot be decreed in favour of the respondent. The decisions of the High
Court and the Court of First Instance are thus erroneous, and must be set
aside.
In the result, the appeal is allowed, and the
two preliminary Issues are answered in favour of the appellants.
Under the orders of this Court, the judgment
of the Civil Judge was stayed. The suit will now be decided in conformity with
our judgment. The respondent shall pay the costs of this Court and of the High
Court.
Appeal allowed.
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