Dilip
Vs. Mohd. Azizul Haq & ANR [2000] INSC 129 (14 March 2000)
S.S.M.Quardi,
S.Rajendra Babu
RAJENDRA
BABU, J. :
Leave
granted in S.L.P. (C) Nos. 6767-6768 of 1999.
Respondent
No. 1 filed a civil suit against the appellant regarding the plot in Civil Suit
No. 268 of 1987 on the ground that the premises is open land and the provisions
of C.P. and Berar Letting of Houses and Rent Control Order, 1949 [hereinafter
referred to as the Order] was not applicable to the said premises and that the
tenancy of the appellant stood terminated by efflux of time followed by a
notice dated 8th March, 1986 with effect from 1st April, 1986. The appellant
took the stand that the premises in question is not an open plot but is a house
as defined in the Order as the said land is a part and parcel of the
residential house and the residential house cannot be used without the said
land. Further it was contended that permission to construct a shed had been
granted, the open land was no longer an open land as such shed had been constructed
with permission. There is a well also situate in this land which is for the use
of the occupants of the house in the premises and, therefore, clause 13-A of
the Order would dis-entitle the respondent from obtaining the relief of a
decree. The Civil Judge, Akola, passed a decree. The appellant
preferred an appeal challenging the findings of the trial court that the
premises in possession of the appellant is an open plot and not a house as
defined in clause 13 of the Order. On 27th June, 1989 the Order was amended by
substituting the word premises for the word house, wherever it occurs, and by
this amendment, sub- clause (4-A) was also inserted in clause 2 whereby lands
not being used for agricultural purposes also stood included in the definition
of the premises. Thereafter the State of Maharashtra made another amendment
which became effective from 26th October, 1989 and introduced clause 13-A in
the Order to the effect that no decree for eviction shall be passed in a suit
or proceeding filed and pending against the tenant in any court or before any
authority unless the landlord produces a written permission of the Controller
as required by sub- clause (1) of clause 13. At that stage, the appellant filed
an application under Order 7 Rule 11 of the Civil Procedure Code to contend
that in view of the amendment introduced by insertion of clause 13-A read with
the definition of premises in clause 2(4-A) the Order stood extended to open
plots and, therefore, even on the basis of the plaint allegations the same was
liable to be rejected. In the meanwhile, the respondent filed a Writ Petition
before the High Court of Judicature at Bombay, Nagpur Bench, challenging the
validity of clause 2(4-A) and clause 13-A of the Order on the ground that the
same are ultra vires Section 2 of the C.P. and Berar Regulation of
Accommodation Act, 1947 [hereinafter referred to as the Act]. The High Court
stayed the proceedings in the appeal pending before the District Court. A
Division Bench of the High Court declared the said provisions in clause 2(4-A)
and clause 13-A of the Order ultra vires the Act. The appellant preferred an
appeal by special leave to this Court. This Court allowed the said appeal and
the matter stood remanded to the High Court with a direction that the High Court
to restore to its file the original Writ Petition and to decide the question
with regard to the applicability of clause 2(4-A) and clause 13-A of the Order
to the facts as available in the present case and to dispose of the Writ
Petition afresh as to the vires of the clauses, if so warranted. In the
meanwhile, Joint District Court, Akola, allowed the appeal filed by the appellant and the suit filed by the
respondent No. 1 was dismissed. A revision application was filed before the
High Court questioning the correctness of the order made in the appeal which is
pending consideration by the High Court.
After
remand in the writ petition, the High Court took the view that there was no
appeal filed or pending against the tenant on 26th October, 1989 when the second
amendment was published and hence it has to be inferred that no proceedings are
filed or pending against the tenant as on that date and thus the amendment was
not applicable to the instant case as the tenancy in respect of the open plot
was deemed to have expired immediately on 10th April, 1986 in view of Section
106 of the Transfer of Property Act and the suit plot was not covered under the
provisions of the Central Provinces and Berar Regulation of Letting of
Accommodation Act, 1946 and the suit was decreed. The second amendment brought
into force on 26th
October, 1989 was not
applicable to the plot as the same would be prospective and not retrospective.
On that basis the High Court held that clause 2(4-A) and clause 13-A of the
Order would not be applicable to the suit land and disposed of the writ
petition. This order is in challenge before us.
A
contention has been raised before us that the expression house would also
include land appurtenant to such building and, therefore, it is a part of the
house and even if the amendment is not held applicable, the High Court should
have examined the question whether the premises in question is a house as
defined under the Act or not.
Further
at the time of hearing, a point, which was put forth before us, is that clause
13-A is applicable to a pending appeal even filed by a tenant. On behalf of the
appellants reliance is placed on three decisions Amarjit Kaur v.
Pritam
Singh & Ors., 1974 (2) SCC 363; Lakshmi Narayan Guin & Ors. v. Niranjan
Modak, 1985 (1) SCC 270, and H. Shiva Rao & Anr. v. Cecilia Pereira &
Ors., 1987 (1) SCC 258, to contend that if a rent Act is made applicable during
pendency of an appeal irrespective of the fact whether the appeal is preferred
by the landlord or by the tenant, such appeal would be governed by the Act and
its provisions would operate from the date of the filing of the suit and if the
suit filed not in terms of the ground specified in the rent Act, the suit would
be incompetent and, therefore, the appeal must be disposed of accordingly. Shri
V.A. Mohta, the learned senior Advocate appearing for the respondents,
submitted that the Act provides for regulating the letting and sub-letting of
accommodation in the State of Madhya Pradesh
of which Akola town was a part prior to the reorganisation
of the States and that the Act is applicable.
Government
under Section 2 of the Act could, by an order, extend by a notification for
regulating the letting and sub-letting of any accommodation or class of
accommodation whether residential or non-residential, whether furnished or
unfurnished and whether with or without board and, inter alia, providing for
preventing the eviction of tenants or sub-tenants from such accommodation in
specific circumstances. Therefore, it was argued that the Order is only an
administrative order and cannot have retrospective effect and relied upon the
decisions of this Court to support this proposition in The Income Tax Officer,
Alleppy v. M.C. Ponnoose & Ors. etc., 1969 (2) SCC 351; The Cannanore
Spinning and Weaving Mills Ltd. v.. Collector of Customs and Central Excise,
Cochin & Ors., 1969 (3) SCC 112, and Bakul Cashew Co. & Ors. v. Sales
Tax Officer, Quilon & Anr., 1986 (2) SCC 365. It was further contended that
the accommodation would only mean a residential or dwelling house and can never
mean open plot of land; that the definition of house could not have been
replaced by premises and, therefore, the said provision is ultra vires. It was
further submitted that the appeal was filed only against the decree and thus the
bar under clause 13-A was only in respect of passing of a decree and inasmuch
as a decree had already been passed, it would not be applicable to a proceeding
in an appeal or a revision petition. Shri A.K. Sanghi, the learned counsel for
the respondents, adopted these arguments of Shri Mohta as to the interpretation
of the provisions and added by submitting that there had been a surrender of
the premises which, however, was not supported by any material on record.
The
vires of the provisions are not in issue before us. Now what we have to
consider in this proceeding is whether the provisions of clause 13-A would be
applicable to the present case or not. The High Court proceeded on the basis
that there is no appeal filed or pending against the tenant on 26th October, 1989 when the amendment came into force
and, therefore, it has to be inferred that no proceedings were filed or pending
against the tenant as on that date. This view of the High Court does not take
note of the language of clause 13-A of the Order. The effect of a decree passed
by a court against which an appeal is filed has been considered in Lachmeshwar
Prasad Shukul v. Keshwar Lal Chaudhuri, 1940 FCR 84, wherein the Federal Court
explained that once a decree passed by a court has been appealed against the
matter became sub-judice again and thereafter the appellate court acquired
seisin of the whole case. It has been a principle of legislation in India at
least from 1861 onwards that a court of appeal shall have the same powers and
shall perform as nearly as may be the same duties as conferred and imposed on
courts of original jurisdiction. Such a view was taken even before the Civil
Procedure Code was introduced in Kristnama Chariar v.
Mangammal,
1902, ILR 26 Mad 91, that the hearing of an appeal is under the processual law
of the country being in the nature of a re-hearing and it is on the theory of
an appeal being in the nature of a re-hearing that the courts in this country
have, in numerous cases, recognised 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. As an appeal is a re-hearing, it must follow that if an appellate
court dismisses an appeal it would be passing a decree affirming eviction and
thereby passes a decree of its own, and in the event it upsets the decree of
the trial court, it would be again passing a decree of its own resulting in
merger of decree of the trial court with that of the appellate court. In
Garikapati v.
Subbiah
Chowdhry, AIR 1957 SC 540, this Court enunciated that the legal pursuit of a
remedy, suit, appeal and second appeal are really but steps in a series of
proceedings all connected by an intrinsic unity and one to be regarded as one
legal proceeding.
After
we heard the arguments, the learned counsel for the respondents circulated a
decision Motiram Ghelabhai v.
Jagan
Nagar, 1985 (2) SCC 279, to contend that when a provision is amended or
repealed in respect of a pending suit the principle that an appeal is a
continuation of the suit, cannot invoked so as to apply to appeals. In that
case, when the appeal was pending, Part II of the Bombay Rents, Hotel and
Lodging Housing Rates Control Act, 1947 was made applicable to the area
directly covered by the proviso to Section 50 with a separate paragraph added
thereto and the appeal was liable to be decided and disposed of as if the 1947
Act had not been passed, that is to say, the appeal had to be disposed of in
accordance with the law then applicable to it. Therefore, in those
circumstances, this Court made the observation that the language of Section 50
of the 1947 Act read with the proviso thereto was an ordinary repealing clause
and it was held that the principle that the appeal is a continuation of the
suit could not be invoked inasmuch as such a provision prevails over a general
provision affording protection to tenants. Otherwise, we cannot reconcile this
decision with the three decisions referred to earlier in this order and relied
on by the learned counsel for the appellants. Hence, the learned counsel for
the respondents cannot derive any support from this decision.
In
theory the appeal is only a continuation of the hearing of the suit.
Accordingly, the word suit in the Order has to be understood to include an
appeal. The result is that at the time of the institution of the suit for
eviction clause 13-A was not in force, but at the time of appeal such a clause
is introduced, the tenant in appeal becomes entitled to its protection. We draw
support for these propositions from the three decisions of this Court cited by
the learned counsel for the appellants. Therefore, we are of the view that the
High Court was not justified in holding that there was no appeal filed or pending
against the tenant. In this case, although a decree for eviction had been
passed in the suit, that decree was under challenge in a proceeding arising out
of that suit in appeal and was pending in a court. Thus an appeal being a
re-hearing of the suit, as stated earlier, the inference drawn by the High
Court that no proceedings were filed or pending against the tenant as on the
date would not be correct..
The
High Court further concluded that the amendments have no retrospective effect.
The provision came into force when the appeal was pending. Therefore, though
the provision is prospective in force, has retroactive effect.
This
provision merely provides for a limitation to be imposed for the future which
in no way affects anything done by a party in the past and statutes providing
for new remedies for enforcement of an existing right will apply to future as
well as past causes of action. The reason being that the said statutes do not
affect existing rights and in the present case, the insistence is upon
obtaining of permission of the Controller to enforce a decree for eviction and
it is, therefore, not retrospective in effect at all, since it has only
retroactive force.
The
problem concerning retrospectivity concerning enactments depends on events occurring
over a period. If the enactment comes into force during a period it only
operates on those events occurring then. We must bear in mind that the
presumption against retrospective legislation does not necessarily apply to an
enactment merely because a part of the requisites for its action is drawn from
time antecedent to its passing. The fact that as from a future date tax is
charged on a source of income which has been arranged or provided for before
the date of the imposition of the tax does not mean that a tax is
retrospectively imposed as held in Commissioners of Customs and Excise v.
Thorn
Electrical Industries Ltd., 1975 (1) WLR 1661.
Therefore,
the view of the High Court that clause 13-A is retrospective in effect is again
incorrect.
The
High Court further took the view that the expression premises in the Act does
not state as to when the amendment was to be effective as it does not state
whether the amendment was retrospective or prospective. The same is on the
statute book on the date on which the suit or proceeding is pending for purpose
of eviction and cannot ignore the provision on the statute book. Therefore, the
view of the High Court on this aspect of the matter also, is incorrect. The
arguments advanced on behalf of the respondents that these amendments are
retrospective in character and could not have been made in the absence of an
authority under the main enactment by virtue which such order is made is
untenable.
For
the aforesaid reasons, the appeals are allowed, the order made by the High
Court is set aside and the matter is remitted to the High Court for a fresh
consideration in accordance with law. There will be no order as to costs.
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