Qudrat Ullah Vs. Municipal Board,
Barelly  INSC 225 (29 November 1973)
SARKARIA, RANJIT SINGH
CITATION: 1974 AIR 396 1974 SCR (2) 530 1974
SCC (1) 202
CITATOR INFO :
RF 1975 SC1758 (27) RF 1975 SC2299 (607) R
1976 SC1860 (9) RF 1988 SC 184 (10) R 1988 SC1845 (11) RF 1990 SC 678 (6,7,8) R
1992 SC1239 (22)
U.P. (Temporary) Control of Rent and Eviction
Act, 1947- Whether contract was alease or licence or a composite
one-Interpretation-Repeal and replacement of an earlier Act by a later
Act-Whether right under the temporary Act outlives the Act itself.
The appellant's father had been collecting
"tahbazari' dues under a contract from the Municipal Board. Under the
terms of the contract the contractor had the right of use of sheds and shops as
enjoyed by the Municipal Board as proprietor and the contractor was empowered
to let them to sub-tenants on rent. In addition, the contract granted certain
other strips which were the flanks of the central road strip running between
the stalls. In 1951, the Municipal Board filed a suit against the contractor
praying that the Board be put in absolute proprietary possession over certain
sheds, passages and some shops on the ground that the contract was a licence.
The contractor pleaded the status and
protection of a tenant under the U. P. (Temporary) Control of Rent &
Eviction Act (U. P. Act 3 of 1947).
The trial court dismissed the suit, having
regard to the then existing rent control law. The High Court held that the
contract was a combination of a lease and licence, a lease with respect to
sheds and shops and licence as regards patois or footpaths adjoining the roads;
that a pavement could not be said to be "accommodation" as defined in
the Rent Control & Eviction Act and that the contractor was a mere licensee
with respect to the pavements. Both the parties appealed to this Court.
Additional ground was urged by the Board that the 1947 Act having been revealed
by the Uttar Pradesh Urban Buildings (Regulations of Letting, Rent and
Eviction) Act, 1972, the Board was entitled to an ejectment decree even if the
contract was a lease.
HELD : (1) There is no simple litmus test to
distinguish a lease as defined in s. 105, Transfer of Property Act from a
licence as defined in s. 52, Easements Act, but the character of the
transaction turns on the operative intent of the parties. If an interest in
immovable property entitling the transferor to enjoyment is created, it is a
lease; if permission to use land without right to exclusive possession is alone
granted, a licence is the legal result.
[533H] In the instant case, though the
purpose of the transactions was not to grant regular leases of land but to make
over to the contractor the right to collect Municipal market dues only, it is
not possible to ignore the effect of clear recitals transferring to the
contractor more rights than a mere licence implies. The shops and sheds
referred to in the contract are the subject matter of a lease not licence only.
The contract presupposes the application of the Act which is compatible only
with the creation of a lease.
Associated Hotels case,  S.C.R. 265,
(2)The High Court was not right in holding
that the agreement was a mere licence as regards the patris or footpaths
adjoining the roads. The earlier contract says that "those in yellow
colour shall remain in possession of the first party". Further the bazar
dues constitute a benefit arising out of the land and may be immovable property
which can be leased out. [536H; 537E] Ramjiwan v. Hanoman Parshad, I. L. R. 16
Lucknow 191, referred to.
(3)By definition 'accommodation' includes
gardens, grounds and outhouses, if any, appurtenant to such building or part of
a building. While the pavements were appurtenant to the shops or sheds leased,
the paths and walks are separate entities and not in fact or law attached to
them. These are no appendages, no adjuncts, no space so bound to the use of the
buildings as to be treated as belonging 531 to them. Since the patris and pavements
were not appurtenances, they fell outside the contours of
"accommodation" let out and constitute the subject of a distinct,
though connected demise incorporated in the same documents. Every nexus is not
an appurtenance. The law connotes principal and subsidiary items integrated by
use which is absent in the present case. Since the contract covers one of the
leases which is protected by the Act, ejectment in respect of the unprotected
lease must follow.
The decree for eviction granted by the High
Court, except for certain portions of the pavement, was correct. [538 A-C]
(4)The general principle regarding the consequence of repeal of a statute is
that the enactment which is repealed is to be treated, except as to
transactions past and closed, as if it had never existed. The operation of this
principle is subject to any savings which may be made expresly or by
implication by the repealing enact-past transactiopn it is this provisioon that
will determine the liability under the repealed enactment survives or it is
extinguished. Section 6 of the Uttar Pradesh General Clauses Act applies
generallly in the absence of a fresh saving provision in the repealing statute.
Where a repeal is followed fresh legislation on the object the Court has to
look to the provisions of the new Act to see whether they indicate a
differentintention. Sec. 43 (2) (h) makes it clear that even if the power
forrecovery of possession be one under the earlier Rent Control Law the later
Act will apply and necessary amendments in the pleadings can be made.
This in dicates that it is the later Act that
must govern pending proceedings for recovery of possession or recovery or
fixation of rent. In the instant case the suit was not even one under the Act
but proceeds on the footing that the contractor was only a licensee and so none
of the savings clauses in s. 43 (2) applies. [539 B; 540 A-D] HariPadaPal Ghosh
v. Tofajaddi Ijardar, 601. L. R.  Cal. 1438 and Boddington v. Wisson,
 1 All E.R. 166;
169, referred to.
The nature of the 1947 Act being temporary
the right comes to an end when the temporary Act expires at least by efflux of
time, if not by premature repeal. The so called right is short lived and its
longevity, where it is derived under a temporary statute, cannot exceed the duration
of the statute itself. [541F] Even if it was assumed that s. 3 of the 1947 Act
has conferred a right on the tenant, the survival of the right or the
continuation of the operation of the Act to the pro- ceedings is all that is
ensured, not the expansion or extension of that right. The dispossession of the
tenant was permissible only if the grounds in s. 2 were satisfied by landlord.
This right was circumscribed in content to conditions set out and limited in
duration to the period beyond which the Act did not exit.To hold otherwise
would be to give more quantum of right to the party enjoyed had the repeal not
been made. Not to affect the previous not be converted into sanctioning
subsequent operation. To read postpartum operation into a temporary Act because
of premature repeal of it was wrong. On this footing the right, if any, that
thee contractor claimed terminated with the expiration of that temporary
statute. [541 G-H] Thus (a) the disability of the Municipal Board to enforce
its cause of action under the ordinary law might not necessarily be transmuted
into a substantive right in the contractor (b) the rights of a statutory tenant
created under a temporary statute go to the extent of merely preventing the
eviction so long as the temporary statute lasts (c) the provisions of s.43 did
not preserve, subsequent to repeal, any right to rebuff the Board's claim for
eviction and (d) s. 6 of the U.P. General Clauses Act did not justify anything
larger or for any time longer than s. 2 of the 1947 Act confers or lasts. [543
B_C] Indira Sohanlal v. Custodian of Evacuee Property, Delhi and others, A.I.R.
1956 S. C., 77 at 84, Lachmeshwar Prasad Shukul and others v. Keshwar Lal
Chaudhuri and others, A. I.
R. 1941 Federal Court Vol. 28, p. 5 at 6,
State of Orissa v.
Bhupendra Kumar, A. I. R. 1962 S.C., 945,
CIVIL APPELLATE JURISDICTION : Civil Appeal
Nos. 1727-1728 of 1968.
Appeal from the judgement and order dated the
29th September 1964 of the Allahabad High Court in First Appeal No. 320 of
532 A.K. Sen, Yogesh war Prasad, R. C.
Jaiswal, S. K. Bagga, S. Bagga, for the appellant (in C.A. 1727/68) and
respondent (in C.A. 1728/68).
Sarjoo Prasad and C. P. Lal, for the
respondent (in C.A. 1727/68) and appellant (in C.A. No. 1728/68).
The Judgment of the Court was delivered by-
KRISHNA IYER, J.-This litigation, started in 1951, has lived long, although the
main point on which the fate of the case rests is the contraction of a contract
between the Municipal Board, Bareilly (the respondent in Civil Appeal No. 1727
of 1968) and the The kedar under it of the Municipal market, one Habibullah
(the father of the appellant in Civil Appeal No. 1727 of 1968). The present
appellant is the legal representative of the defendant and has himself filed an
appeal (C.A. No. 1728 of 1968) where the Board is the sole respondent. Instant
or early justice seems impossible without radical reorientation and systematic
changes in the judicial process, as these two appeals, which have survived two
decades, sadly illustrate.
Now, a brief narration of the facts. Although
the canvass has been spread out, the relevant dispute lies in a narrow compass,
and can be resolved by a close look at the terms of Ex. '1' (substantially
repeated in Ex. '4') and by applying settled rules which tell off a lease from
a licence when the deed is ambiguous. It is unfortunate that legal drafting by
the respondent's lawmen has left the key documents in a blurred. state, so much
so, the trial Judge and the learned judges in appeal have had to diverge in their
conclusions, and before us long arguments have been hopefully addressed to help
us designate the contract with certitude a lease or license.
The defendant (the appellant's father) had
for several years been collecting 'tahbazari' dues from the market in Patelganj
under contracts from the Municipal Board, the last of which, according to the
plaintiff, was executed on 19-11- 44 (Ex. "1"). The defendant's case
is that on the expiration of the term of Ex. '1', a fresh contract dated
31-12-47, Ex. '4' was entered into between the parties, substantially repeating
the same terms and conditions. On the basis that Ex. '4' had not materialised
into a binding contract for want of Government approval, the plaintiff
ineffectually demanded of the defendant, by notice Ex. '6' of 1951, to desist
from realising the market dues and followed it up with a suit praying for many
reliefs of which the crucial one runs thus "(a) The plaintiff may be put
in absolute proprietary possession after dispossessing the defendants over the
sheds and passage shown in green and shops bearing Nos. 17 to 20 and 24 to 28
and 31 and 32 situate in Bazar Patelganj known as Cambellgunj Sabzimandi
Bareilly as shown in the map attached to the plaint." The plaintiff claims
Ex. '1' to be a licence which, if correct, undoubtedly entitles him to the
relief while the defendant pleads the status and 533 protection of a tenant
under the U.P. (Temporary) Control of Rent and Eviction Act (U.P. Act of 1947)
(hereinafter referred to as the Act). The decision of this case largely depends
on Ex. '1' being a lease or a licence. We are satisfied from the evidence on
record that the finding of the Courts below that Ex. '4' is binding on the
plaintiff is sound but since the effect of both the documents is fairly the same
we may as well proceed to interpret them straightaway. In this Court, however,
an additional ground has been urged by the respondent that the Act having been
repealed by the Uttar Pradesh Urban Buildings (Regulation of letting, rent and
eviction).Act, 1972 (Act of 1972) (for short, called the later Act), the Board
is entitled to an ejectment decree even if Exs. '1' and '4' are leases.
The trial court held that Ex. '1' and '4'
were demises of the Municipal market and dismissed the suit having regard to the
Rent Control Law then extant which did not exempt municipal buildings from the
operation thereof. The High Court expressed its view that "On going
through the entire document, we have come to the conclusion that Ex. 1 is a
combination of a lease and a license. It is a lease with respect to the sheds
and eleven shops. But the agreement was a mere license as regards the parties
or footpaths adjoining the roads." Holding Ex. '1' to be a composite deed,
the learned Judges declined ,the relief relating to the shops and sheds but put
a different construction on the pavements and patois included in the Ex. '1'
The court observed :- "A pavement cannot be said to be an accommodation as
defined by section 2 of the Rent Control & Eviction Act. We have held that
the defendant was merely a licensee with respect to the pavements. So the
requirements of section 106 Transfer of Property Act do not came into play as
regards the plaintiff's claim for ejectment from the patois. Neither the Rent
Control and Eviction Act, nor section 106 Transfer of Property Act saves the
defendant as regards plaintiff's claim for ejectment from the patris".
Consequent modifications in the monetary part
of the decree were also made, following upon a decree for possession to the
limited extent of patris and pavements.
Both sides have appealed but we have
proceeded, for the sake of convenience, to treat the parties as appellant and
respondent as in Civil Appeal, No. 1727 of 1968. The primary bone of contention
is the lease-licence controversy but even if we decide in favour of Ex. '1' and
'4', being settings, the question of the impact of the later Act remains to be
There is no simple litmus test to distinguish
a lease as defined in s. 105 Transfer of Property Act from a licence as defined
in s. 52, Easements Act, but the character of the transaction turns on the
operative intent of the parties.
To put it pithily, if an interest in
immovable 534 property, entitling the transferees to enjoyment, is created, it
is a lease; if permission to use land without right to exclusive possession is
alone granted, a licence is the legal result. Marginal variations to this broad
statement are possible and Ex. '1' and '4' fall in the gray area of unclear
recitals. The law on the point has been stated by this Court in the Associated
Hotels' case(1). In Halsbury's Laws of England, Volume 23, the distinctive
flavor, the deceptive labels and the crucial considerations in a lease- versus
licence situation have been stated and excepts therefrom may serve as guidelines
(see pages 427, 428 and 429):
" 1022. PRINCIPLES FOR DETERMINING
WHETHER AGREEMENT CREATES LEASE OR LICENCE. In determining whether an agreement
creates between the parties the relationship of landlord and tenant or merely
that of licenser and licensee the decisive consideration is the intention of
the parties. The parties to an agreement cannot, however, turn a lease into a
licence merely by stating that the document is to be deemed a licence or
describing it as such the relationship of the parties is determined by law on a
consideration of all relevant provisions of the agreement; nor will the
employment of words appropriate to a lease prevent the agreement from
conferring a licence only if from the whole document it appears that it was
intended merely to confer a licence. In the absence of any formal document the
intention of the parties must be inferred from the circumstances and the
conduct of the parties.
1023. NATURE OF GRANT OF EXCLUSIVE POSSES-
SION. The fact that the agreement grants a right of exclusive possession is not
in itself conclusive evidence of the existence of a tenancy, but it is a
consideration of the first importance.
In deciding whether a grantee is entitled to
exclusive possession regard must be had to the substance of the agreement. To
give exclusive possession there need not be express words to that effect; it is
sufficient if the nature of the acts to be done by the grantee requires that he
should have exclusive possession.
The grant of an exclusive right to a benefit
can, however, be inferred only from language which is clear and explicit. If an
exclusive right of possession is subject to certain reservations or to a
restriction of the purposes for which the premises may be used, the
reservations or restriction will not necessarily prevent the grant operating as
1024. WHEN GRANT CONFERRING EXCLUSIVE
POSSESSION OPERATES MERELY AS LICENCE. A grant which confers the right to
exclusive possession may operate as a licence in the following circumstances
which negative the intention to create a lease, (1)  S.C.R. 265.
535 1025. INSTANCES OF AGREEMENTS CREATING
LICENCES'. A licence is normally created where a person is granted the right to
use premises without becoming entitled to exclusive possession thereof, or the
circumstances and conduct of the parties show that all that was intended was
that the grantee should be granted a personal privilege with no interest in the
land. If the agreement is merely for the use of the property in a certain way
and on certain terms while the property remains in the possession and control
of the owner, the agreement will operate as a licence, even though the
agreement may employ words appropriate to a lease".
Not so much the law as the figment of the
terms of a deed into the, legal could makes the forensic essay none too easy.
Decisions are legion to prove the relevant propositions we have indicated
above,. but we do not think it necessary to cite them all except to mention
that apart from Mrs. Clubwala's case (2) referred to by the High Court,. a few
more cases were also referred to at the Bar.
With these factual-legal background, we may
formulate the points we are called upon to decide, ignoring minor matters which
do not deflect the ultimate issue one way or the other.
(1) Is Ex '1' (or Ex, '4') a lease or only a
licence or a composite one ? (2) If lease, does it embrace a demise of an
'accommodation" as defined in the Act, or more ? if it covers more than an
'accommodation', is the portion of the deed dealing with 'non- accommodation'
severable so ;is to warrant a.
decree for possession confined to that
portion ? Similarly,. if Ex. '1' is in part a licence as the High Court has
held, what is the relief the Court can grant to the plaintiff ? (3) If Ex. '1'
is a lease wholly of an accommodation, can the, plaintiff claim possession
based on the repeal of the Act by the later Act during the pendency of the pre-
sent appeal ? Before proceeding to discuss these matters, it is proper to state
that the maps attached to Ex.1 and Ex. 4 are integrated into the deeds we may
also indicate that legal attention and cartographic precision appear to have
gone into the preparation of the two the kanamas. While it is fair to infer
that the purpose of these transactions was not to grant regular leases of land but
to make over the right to collect municipal market dues only, even so, it is
not possible to ignore the effect of clear recitals transferring more rights
than a mere licence implies, to the the kadar.
Clause 1 itself is tell-tale,clause 2
clinches and clause 4 virtually designates the transaction relating to the
shops and sheds as letting.. They speak for themselves thus :
(1)  Madras Law Journal Reports,
Supreme Court Section, p. 83.
536 "During the entire period of Theka,
the first party shall have all the rights and powers, as per conditions laid
down in the auction sale and agreement in respect of use of sheds and shops as
enjoyed by the second party as proprietor on possession of the said property'.
"The first party shall have possession
of the sheds aforesaid detailed in the said map and 11 shops aforesaid".
"In all the eleven shops included in the
Theka, I, the Thekadar , would be empowered to let them to the subtenants on
rents mutually settled between us".
All these provisions relate to the shops and
Shri Sarjoo Prasad, appearing for the
respondent Board, drew our attention to the controls and regulations vested in
the Board. These marginal restrictions cannot cancel the effect of the clauses
already read which cannot be reconciled with a straightforward grant of a mere
'right to realise market fees. The municipal mind., if we may say so, went
beyond the area of prudence if a licence was the intent. We are satisfied that
the shops and sheds in Ex. 1 and as reconstructed by the time of Ex. 4 are the
subject matter of a lease, not licence only. It is not without significance'
that Ex. 4 presupposes, when making reference to the expiry of the term, the
application of the Act, which is compatible only with the creation of a lease.
These two deeds, however, cover other areas,
and 'there is the rub'. The thekanama relates to patris (sidewalks) and
footpaths. Out of the totality of space mapped out in the attached plans the
municipal board excluded 2 categories from the transaction viz. the red and
blue coloured portions i.e. the roads, the meat market and the shop buildings
let out to others. Ex. 1 expressly granted to the appellant's father i.e. the
first party in Ex. 1, the yellow portions which were made up of two categories
viz. shops and sheds, and strips marked 4, 7, 8 :and 9 which were really the
flanks of the red coloured central strips running between the stalls. It is
clear that the width of these internal roads was originally 9 feet but only a
middle ribbon of 31 was now left open for free passage, the belts of 31 on
either side marked yellow being converted into Walks and vending sites. One
question on which there was divergence of findings between the courts below was
as to whether these yellow belts were leased out or only licensed for
collection of Tahbazari. The High Court argued :- "Admittedly, the public
has right of passage over roads indicated in the map in red colour.
Footpaths in question are situate between
shops and the public road. It is unlikely that the agreement was intended to
interfere with the right of the public to pass over the footpaths adjoining the
and concluded that 'the agreement was a mere
licence as regards the patris or footpaths adjoining the roads'. We do not
agree. Maybe it was reasonable, having regard to the nature of these yellow
strips and their use, not to grant leases thereof Maybe there are stricter
regulations regarding the rates of fees to be levied from vendors and 537
pedlars using those spaces; maybe the municipal board had the right to
construct gates or chabutras (i.e. minor structures which are a facility for
the display of wares);
maybe it was not wise to part with possession
over pavements and paths. But no legal bar to giving a lease, imprudent- though
it be, was pointed out to us. We would have been reluctant, having regard to
the social consequences, to read more than a licence into Ex. 1 and 4 but for
compelling grounds already referred to. The map or the deed does not make any
distinction as between yellow sheds and shops on the one hand and yellow
partris on the other. 'Those in yellow colour shall remain in possession of
first party' says,. Ex. 1. The very need for a recital that the thekadar will
have no objection to the municipality, constructing chabutras and iron gates implies
the former's possession, not mere use. The reference in the map to the green
pavements and roads 2 and 3 as 'land leased out but public has got right of
easement over it' has a clear 'demise' impact over the extra space beyond the
shops and sheds. It may be mentioned that there was a fire in the market place
which gutted many structures.. On extensive reconstruction some yellow strips
and the 'green' roads 2 and 3 were obliterated and yet these reconstructed
buildings were made over to the contractor. There are other features pressed by
one side or, the other, but the over-all effect is that the green and yellow
portions outside the shops and buildings in Ex. 1 were also leased out. The
green areas though not expressly specified in Ex. 1 or Ex. 4 are clearly
covered by the lease, for the reference at the foot of the map. and the
circumstance that on reconstruction after the fire the roads Nos. 2 and 3
marked green were built upon and made over to the thekedar are sufficient to
hold that way.
Internal, connecting walks within a market or
a park or entertainment complex cannot be equated with public streets and
highways but have a quasi-private touch although vested in a public body. The
bazar dues constitute a benefit arising out of the land and may be immovable
property which can be leased out (vide s. 3 (26) General Clauses Act, 1897 and
(Ram Jiwan. v. Hanoman Pershad The further point is whether the terms of Ex. 1
and 4 warrant the-lease of the whole as too integrated to be severable or
sufficiently individualised that we can spell out a lease of the pavements and
pathways as a separate item. If these were possible the next consideration is
about the concept of 'accommodation, in the Act and the liability to eviction
of the non-accommodation segment of the composite deed.
The built-up area and the open spaces are
dealt with differently in regard to both the lessor's control over the lessee
and the latter's,rights vis-a-vis the temporary occupants. Moreover, the two
parts, are not so enmeshed or inter-dependent as to be treated as unun quid.
While the 'green' pavements are appurtenant to the shops or sheds leased, the
paths and walks are separate entities and not in fact or law attached to them.
These are no appendages, no adjuncts, no space so bound to the use of the
buildings as to be treated as belonging to them. Such being the sense of
appurtenance, we have to examine whether. these open areas are part of the
'accommodation, let out to the defendant.
By definition 'accommodation' includes
gardens, grounds (1) I.L.R. 16 Lucknow 191.
538 and out-houses if any, appurtenant to
such building or part of a building. Since we have held that the parties and
pavements marked yellow and not rebuilt upon by the time of Ex. 4, are not
appurtenances, they fall outside the contours of the 'accommodation' let out
and constitute the subject of a distinct, though connected, demise incorporated
in the same document Ex. 1 (and Ex. 4). Every nexus is not an appurtenance. The
latter connotes principal and subsidiary items integrated by use, absent in the
Holding, as we do, that the thekaname covers
a couple of leases as it were and further that only one of them is protected by
the Act, ejectment in respect of the unprotected lease must follow. Even on the
defendant's case, it expired in 1952 and obviously the suit for recovery having
been instituted (earlier), there was no holding over.
The result is that though on a different
basis the decree for eviction granted by the High Court, except for the green
coloured pavements, is correct.
Now comes the additional ground taken before
us based on the passage of the later Act. It is admitted that, by frequent
amendments, the duration of the Act was extended from time to time till at last
it was to expire on September 30, 1972.
Some time before this date the later Act, a
permanent statute, was put on the Statute Book which by s. 43 repealed the Act
of 1947 and by s. 2 excluded from the scope of the protection of the Act
accommodation belonging to local bodies. It is useful to extract ss. 2 and 43
at this stage :
"2' Exemptions from operation of
Act.-(1) Nothing in this Act shall apply to- (a) any building belonging to or
vested in the State Government or the Government of India or any local
authority; or * * * * * "43. Repeal and savings.-(1) The United Provinces
(Temporary) Control of Rent and Eviction Act, 1947 (U. P. Act No. III of 1947)
is hereby repealed.
(2 ) Notwithstanding such repeal- * * * * *
We havein this case a temporary Act which would have died a natural death by
the end of September, 1972 but before its life had run out was extinguished by
statutory repeal on 22nd July, 1972 on which date the later Act came into
Surely, there has been a repeal of the Act
which was relied upon successfully by the defendant and his legal
representative the appellant, throughout the litigation.
But now that defence or protection is no
However, counsel for the appellant contends
that a right has accrued to him under the Act which cannot be taken away by its
repeal since the later Act is not in terms a retrospective one. Actually, it is
correct to say that, s.
43 has not been made retrospective. Even so,
the counsel for the respondent submits that, on the repeal of the Act, the
disability which his clients suffered has disappeared and he is entitled to
enforce his cause of action.
According to him, the, Act did not confer any
right on the tenant but imposed a disability on the landlord in enforcing his
right to evict and that a mere defence cannot be described 539 as a right in
the defendant. According to him, the 'right' referred to under s. 6 of the General
Clauses Act or s. 43 of the repealing Act is a substantive right and not a
defensive plea. We have to examine these rival positions in some detail.
Certain propositions are clear regarding the
consequence of repeal of a statute. The general principle is that an enactment
which is repealed is to be treated, except as to transactions Past and closed,
as if it had never existed.
However, the operation of this principle is
subject to any savings which may be made, expressly or by implication' by the
repealing enactment (vide Halsbury's Laws of England, Vol. 36 paragraph 714).
The U. P. General Clauses Act (Act 1 of 1904) provides for the consequences of
a repeal under s. 6, the relevant parts of which may be reproduced here :
"6. EFFECT OF REPEAL.-Where any (Uttar
Pradesh) Act repeals any enactment hitherto made or thereafter to be made,
then, unless a different intention appears, the repeal shall not- (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 (e)
affect any remedy, or any investigation or legal proceeding commenced before
the repealing Act shall have come into operation in respect of any such right,
privilege, obligation, liability; penalty, forfeiture or punishment as
and any such remedy may been forced and any
such in investigation or legal proceeding may be continued and concluded, and
any such penalty, forfeiture or punishment imposed as if the repealing Act had
not been passed." If a contrary intention appears from the repealing
statute, that prevails. It was pointed out to us that s. 2 of the later Act
specifically states that :
"Nothing in this Act shall apply to- (a)
any building belonging to or vested in............ any local authority."
Even so, we have to read this provision in conformity with s. 43 which repealed
the Act viz. U. P. Act No. 3 of 1947.
Section 43(2) is the savings clause. If the
repealing enactment, as in this case, makes a special provision regarding
pending or past transactions it is this provision that will determine whether
the liability arising under the repealed enactment survives or is extinguished.
(See I. L.
R. 1955 Cuttack, 529, I. L. R. 1963 (1)
Kerala, 402 and A.I.
R. 1960 Cal.,388). Section 6 of the General
Clauses Act applies generally in the 540 absence of a special saving provision
in the repealing statute, for when there is one then a different intention is
indicated. In any case where a repeal is followed by a fresh legislation on the
subject, the Court has to look to the provisions of the new Act to see whether
they indicate a different intention.
Section 43 (2) (h) states that
notwithstanding the repeal of the earlier Act any Court before which any suit
or other proceeding relating to the............. eviction from any building is
pending immediately before the commencement of this Act may, on an application
being made to it within 60 days from such commencement, grant leave to any
party to amend its pleadings in consequence of the pro-. visions of this
Act." It is, therefore, clear that even if the statute for recovery of
possession be one under the earlier Rent Control Law the later Act will apply
and necessary amendments in the pleadings can be made. This definitely
indicates that it is the later Act that must govern pending proceedings for
recovery of possession or recovery or fixation of rent. However, the suit with which
we are concerned is not even one under the Act, but proceeds on the footing
that the defendant is only a licensee. So much so, none of the savings clauses
in s. 43 (2) applies. The result is that the application of the old Act is
repelled by the general rule that on repeal a statute is deemed not to have
been on the Statute Book at all.
Let us assume that s. 6 of the General
Clauses Act applies.
Even so, what is preserved is (a) the
previous operation of the repealed enactment, (b) rights, privileges,
obligations and liabilities acquired, accrued or incurred under the enactment
repealed and (c) investigations, legal proceedings and remedies in respect of
any such right, privilege, obligation or liability. According to Shri Sarjoo
Prasad for the respondent, the defendant had no right or privilege under the
repealed Act, since s. 3 is only a procedural restriction and does not create a
substantive right. All that s. 3 therein laid down was that :- "No suit
shall, without the permission of the District Magistrate, be filed in any civil
Court against a tenant for his, eviction from any accommodation except on one
or more of the following grounds........................" it is more a
procedural disability that is cast, not a substantive cause of action that is
created. Citing the authority in Haripada Pal Ghosh v. Tofajaddi Ijardar (1),
he argued that by operation of the repeal,. the restriction on his right is
removed and so he can now support his present action even if previously the Act
had barred it. It is true that a Division Bench of the Calcutta High Court in
the case cited, dealing with a situation where an Act had been repealed by
another, observed:-- "The disability, which was imposed by the previous
law having been removed, there was nothing that stood in the way of the
plaintiffs recovering rent at the contract rate, when (1) 60 I.L.R.  Cal.
541 the cause of action for the same arose.
The effect of substitution of the new section 48 for the old section 48 by
section 31 of Act IV of 1928, was that the old section was repealed. The effect
of repeal of a statute in the absence of saving clauses is that it has to be
considered as if the statute, so repealed, had never existed." There is
force in this submission.
A ruling which lends more support to the
position we take may be referred to here. Boddington v. Wisson (1) dealt with a
case where the landlord of a holding served on the tenant a notice to quit
without the consent in writing of the Minister of Agriculture and Fisheries, as
required by Regulation 62 (4A) of the Defence (General) Regulations, 1939.
Before the period of notice expired, the Defence Regulations Order, 1948
revoked the earlier regulation.
Dealing with s. 38 of the Interpretation Act,
1889, which corresponds to S. 6 of the General Clauses Act, Evershed, M.
R. disposed of the contention of the tenant
that the repeal would not affect anything duly done under another statute thus
"...... nor do I think that the tenant's
protection under the regulation could be fairly described in the words of
sub-s. (2) (c) as a "right" or "privilege", or the.
limitation of the landlord's right be fairly
described as an "obligation" or "liability", nor do I think
that it is a penalty or a punishment in respect of an offence within para
(d)." The Court eventually concluded that the notice to quit was valid
since the regulation requiring consent had been revoked and the landlord was
entitled to possession.
Moreover, the nature of the Act being
temporary, the right, if we can attribute that quality to a disability of the
other party to enforce his right unless additional grounds were made out, comes
to an end when the temporary Act expires at least by efflux of time, if not by
premature repeal. The so-called right is short-lived and its longevity, where
it is derived under a temporary statute, cannot exceed the duration of the
Let us assume for argument's sake that s. 3
of the Act has conferred a right on the tenant in which case it survives by
virtue of s. 6 of the General Clauses Act. What follows ? The survival of the
right or the continuation of the operation of the Act to the proceedings is all
that is ensured, not the expansion or extension of that right. For the normal
life of the Act i.e. till September 30, 1972, the dispossession of the tenant
is permissible only if the grounds in s. 2 are satisfied by the landlord. This
right is circumscribed in content to conditions set out and limited in duration
to the period beyond which the Act does not exist. To hold otherwise would be
to give more quantum of right to the party than he would have enjoyed had the
repeal not been made. Not to affect the previous operation cannot be converted
into sanctioning subsequent operation.
To read postmortem operation (1)  1 All
E.R. 166; 169.
602 Sup CI/74 542 into a temporary. Act
because of a premature repeal of it is wrong. To adopt the words Jagannadhadas,
J. in Indira Sohanlal v. Custodian of Evacuee Property, Delhi and others (1)
has observed :- "What in effect, learned counsel for the appellant
contends for is not the "previous operation of the repealed law" but
the "future operation of the Previous law." On this footing the
right, if any, that the defendant claims terminates with the expiration of that
The only further question is whether it is
permissible for this Court to take note of the extinguishment of the statutory
tenancy at this stage and grant relief to the appellant accordingly. The
leading case of Lachmeshwar Prasad Shukul and others v. Keshwar Lal Chaudhuri
and others (2) lays down the law on the point. Gwyer, C. J., quoted with
approval the following observations of Hughes, C.J.
"We have frequently held that in the
exercise of our appellate jurisdiction we have power not only to correct error
in the judgment under review but to make such disposition of the case as
justice requires. And in determining what justice does require, the Court is
bound to consider any change, either in fact or in law, which has supervened
since the judgment was entered." Justice Varadachariar, J. in the same
case stated that in this country the Courts have recognised an appeal to be in
the nature of a rehearing and that "in moulding the relief to be granted
in a case on appeal, the Court of appeal is entitled to take into account even
facts and events which have come into existence after the decree appealed
against." This appellate obligation is almost jurisdictional. In a sense,
the multi-decked mechanism of the legal process, at every tier, is the
handmaid, not the mistress of justice.
We may mention as an additional reason for
our conclusion that the provisions of s. 6 of the General Clauses Act in
relation to the effect of repeal do not ordinarily apply to a temporary Act.
Stating this proposition, Gajendragadkar, J., as he then was, indicated the
consequence of repeal of a temporary Act. In State of Orissa v. Bhupendra Kumar
(3), the learned Judge continued "As observed by Patanjali Sastri, J., as
he then was, in S. Krishnan v. State of Madras, 1951 SCR 621 (AIR 1951 SC 301),
the general rule in regard to a temporary statute is that in the absence of
special provision to the contrary, proceedings which are being taken against a
person under it will ipso facto terminate as soon as the statute expires.
That is why the Legislature can and often
does, avoid such an anomalous consequence by enacting in the temporary statute
a saving provision, the effect of which is in some res- pects similar to that
of s. 6 of the General Clauses Act.
(1)A.I.R.1956 C.Vol 43,77at84.
(2) A.I.R. 1941 Federal Court Vol. 28, p. 5
(3) A.I.R. 1962 S.C. Vol. 49, 945.
543 The U. P. Act , 1947, however, expressly
attracts s. 6 of the U. P. General Clauses Act 1 of 1904 (vide s. 1 (4)) and
that is why we have discussed the position even with reference to the Genera '
From what we have stated above, it follows
that the argument of any vested right in the defendant being taken away does
not hold good; nor is there any foundation for the contention that the later
Act is being applied retrospectively. All that we hold is (a) that a disability
of the plaintiff to enforce his cause of action under the ordinary law may not
necessarily be transmuted into a substantive right in the defendant, (b) that
rights of a statutory tenant created under a temporary statute, as in this case,
go to the extent of merely preventing the eviction so long as the temporary
statute lasts, (c) that the provisions of s. 43 do not preserve, subsequent to
repeal, any right to rebuff the plaintiff's claim for, eviction and (d) that S.
6 of the General Clauses Act does not justify anything longer or for any time
longer than s. 2 of the Act confers or lasts. It-is appropriate for a Court to
do justice between parties to the litigation and in moulding the relief in the
light of the subsequent developments, to take note of legislative changes. A
court of justice should, if it could, adjudicate finally and not leave the door
ajar for parties to litigate again. In the present case, it is not seriously
disputed that if the plaintiff were to sue for recovery of possession today,
the Rent Control Law does not stand in the way. Therefore, it is manifestly a
measure of doing justice between the parties and ending litigation which has
seen two decades pass, to conclude it here by taking cognizance and adjusting
the relief in the light of the later Act and repeal of the earlier Act.
Nevertheless, it is contended that the present suit cannot be decreed in view
of the provisions of the U. P Public Premises (Eviction of Unauthorised
Occupants) Act, 1972. This statute 'which provides for summary eviction of
unauthorised occupants cannot obstruct the suit for eviction of a tenant. The
far-fetched submission has hardly any substance and we reject it.
In the result, C.A. 1727 of 1968 is dismissed
and C.A. No. 1728 of 1968 is allowed. It falls to be observed that a public
body statutorily charged with running a public market should have been party to
an ambiguous deed resulting in waste of public money in long-lived litigation
Had sufficient care been bestowed at the formative stages of the transaction,
these could have been averted. We are not satisfied that the defendant is
solely to blame for the suit and appeals and therefore, direct that parties
will bear their costs throughout.
P.B. R. C. A. 1727168dismissed.
C. A. 1728168 allowed.