Ramvilas Bajaj Vs Ashok Kumar and Anr. On 30 April, 2007

Ramvilas Bajaj vs Ashok Kumar And Anr.
on 30 April, 2007
Andhra High Court Andhra High Court Ramvilas Bajaj vs Ashok Kumar And Anr. on 30 April, 2007 Equivalent citations: 2007 (4) ALD 137, 2007 (4) ALT 348 Author: G Singhvi Bench: G Singhvi, G Yethirajulu, R Ranganathan, G B Prasad, C N Reddy JUDGMENT G.S. Singhvi, C.J. 1. On behalf of the Hon'ble the Chief Justice and the Hon'ble Dr. Justice G. Yethirajulu, the Hon'ble Justice G. Bhavani Prasad and himself). Issue under reference: Whether Section 32(c) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short, 'the Act') as brought into force by Section 3 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control (Amendment) Act, 2005 (hereinafter referred to as 'the Amendment Act') has effect on the cases pending on the date of its coming into force is the question referred for the consideration of the Larger Bench. The Background Facts: 2. Section 32(b) of the Act, which exempted buildings constructed on or after 26-8-1957, was held unconstitutional as being violative of Article 14 of the Constitution of India by the Supreme Court in Motor General Traders v. State of Andhra Pradesh AIR 1984 SC 121. In order to fill up the void created by the said judgment with regard to provision for exemption of new buildings from the application of the Act, the Government of Andhra Pradesh in exercise of its power under Section 26 of the Act issued G.O. Ms. No. 636 dated 29-12-1983, to be applicable on and from 26-10-1983 (the date on which the Supreme Court struck down Section 32(b) of the Act) whereby it exempted from operation of the provisions of the Act, (a) all buildings for a period of 10 years from the date on which the construction is completed, and (b) buildings, the monthly rent of which exceeds Rs. 1,000/-. 3. While the said G.O. was in force, the respondents in all these cases (hereinafter referred to as 'the landlords') filed suits for recovery of the respective demised premises. In all the cases, the monthly rent of the premises was above Rs. 1,000/- and the same fell within the exemption clause provided under G.O. Ms. No. 636 dated 29-12-1983. Some of the suits were decreed and directions for eviction of the tenants were issued, while other suits were pending on the date of enforcement of the Amendment Act i.e. 28-5-2005. For the sake of convenience, the provisions of Section 32 of the Act as it stood prior to 26-10-1983, G.O. Ms. No. 636 dated 29-12-1983, which provided for exemption in place of Section 32(b) consequent on its striking down and Section 32 as introduced by the amendment Act are reproduced below: ------------------------------------------------------------------------------- Section 32 prior G.O. Ms. No. 636, Section 32 as amended by the to 26-10-1983 dated 29-12-1983 Amendment Act 2005 (Exemption from operation of the provisions of the Act) ------------------------------------------------------------------------------32. Act not to (a) All buildings for a 32. Act not apply to apply to certain period of ten years certain buildings : buildings: from the date on which The provisions of this The Provision of their construction is Act shall not
Indian Kanoon - http://indiankanoon.org/doc/889034/ 1
Ramvilas Bajaj vs Ashok Kumar And Anr. on 30 April, 2007
apply,- this Act shall not completed and; (a) to any building belonging apply- to the State Government or the Central Government, or Cantonment Board or any local authority; (a) to any building (b) Buildings the (b) to any building owned by the monthly rent of constructed or substantially Government; which exceeds rupees renovated, either before one thousand. or after the commencement (b) to any building of this Act for a period constructed on or of fifteen years from after the 26th August the date of completion 1957. of such construction or substantial renovation. Explanation I :A building may be said to be substantially renovated if not less than seventy five per cent of the premises is built new in accordance with the criteria prescribed for determining the extent of renovation; Explanation II :-Date of completion of construction shall be the date of completion as intimated to the concerned authority or of assessment of property tax, whichever is earlier, and where the premises have been constructed in stages the date on which the initial building
was completed and an intimation thereof was sent to the concerned authority or was assessed to property tax, whichever is earlier. (c) to any building the rent of which as on the date of commencement of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control (Amendment) Act, 2005, exceeds rupees three thousand and five hundred per month in the areas covered by the Municipal Corporations in the State and rupees two thousand per month in other areas. ------------------------------------------------------------------------------4. A reading of the amended Section 32 makes it clear that Section 32(b) as it originally stood has been substituted with Section 32(c) and with this, G.O. Ms. No. 636 dated 29-12-1983 issued by the State Government under Section 26 of the Act has become redundant. The effect of this amendment is that the limit of monthly rent of Rs. 1,000/-, which was prescribed in G.O. Ms. No. 636, has been raised to Rs. 3,500/-for the purpose of exempting the buildings from the application of the provisions of the Act, and the buildings whose monthly rents are between Rs. 1,000/- and upto Rs. 3,500/- have been brought within the purview of the Act. All the buildings which are the subject-matter of the dispute fall in this category. 5. The tenants in all these cases raised a contention before the learned Single Judge that in view of the amended Section 32, the pending suits cannot be adjudicated by the civil Courts and the decrees already passed cannot be executed because the Courts which passed the decrees will be deemed to have become coram non judice.
6. By an order dated 31-3-2006, the learned Single Judge referred the matters to the Division Bench. 7. The Division Bench noticed the judgments of Supreme Court in S.B.K. Oil Mills v. Subhash Chandra Yograj Sinha , Rafeequnnesa v. Lal Bahadur Chert , Dilip v. Mohd. Azizul Haq AIR 2000 SC 1976 and Kunhipathumma v. Kunhappa 1987 (2) RCR 316, and an unreported judgment of Full Bench of this Court in S.A. No. 532 of 2002 dated 6-1-2005 and felt that the issue raised in the cases needs to be addressed by a Full Bench and accordingly passed order dated 23-8-2006. 8. The Full Bench, after hearing the cases at some length, by an elaborate order, observed that the judgment rendered by a Bench of equal strength in S.A. No. 532 of 2002 requires reconsideration by a Larger Bench in the light of various judgments referred to in the reference order. This is how all these cases have been placed before us. The Statutory Provisions: 9. Before undertaking a detailed discussion on the effect of the amendment on the pending cases, it is necessary to refer to a few relevant provisions of the Act. Section 2(iii) of the Act defines 'Building' as under: Building means any house or hut or part of a house or hut, let or to be let separately for residential or non-residential purposes and includes-(a) the gardens, grounds, garages and outhouses if any, appurtenant to such house, hut or part of such house or but and let or to be let along with such house or hut or part of such house or hut; (b) any furniture supplied or any fittings affixed by the landlord for use in such house or hut or part of a house or hut, but does not include a room in a hotel or boarding house; Section-2(ix) of the Act defined 'Tenant' as: Tenant means any person by whom or on whose account rent is payable for a building and includes the surviving spouse, or any son or daughter, of a deceased tenant who had been living with the tenant in the building as a member of tenant's family upto the death of the tenant and a person continuing in possession after termination of the tenancy in his favour, but does not include a person placed in occupation of a building, by its tenant or a person to whom the collection of rents or fees in a public market, cart-stand or slaughter-house or of rents for shops has been framed out or leased by a local authority. 10. Section 10(1) of the Act which is relevant for the purpose of this case reads as under: 10. Eviction of tenants :--(1) A tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of this section or Sections 12 and 13: Provided that where the tenant, denies the title of the landlord or claims right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in the said sections, notwithstanding that the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded. 11. Section 32 of the Act which is also very much relevant for the disposal of these cases has already been extracted.
The contentions: 12. Sri Vilas V. Afzulpurkar who led the arguments on behalf of the tenants contended as under: (a) The definition of Section 2(ix) of the Act is wide enough to take within its fold not only those whose tenancy was in currency but also those who continue in possession after the termination of tenancy. (b) The amendment brought within its fold of the provisions of the Act the buildings whose rents are upto Rs. 3,500/- and therefore no tenant of such buildings even after the termination of the tenancy continuing in possession shall be evicted whether in execution of decree or otherwise except in accordance with the provisions of Section 10 or Sections 12 and 13 of the Act. The amendment Act applies to all pending cases at whatever stage they are, namely; pre-decree, post-decree, pending appeals and execution stage. (c) Since as a result of the amendment of the exemption provision the cases of tenants are brought within the protective umbrella of Section 10(1) of the Act, the power of civil Courts to evict the tenants in possession of the buildings whose rents do not exceed Rs. 3,500/- is denuded. 13. In support of his contentions the learned Counsel relied on the judgments of Supreme Court in S.B.K. Oil Mills's case (supra), Rafeequnnisa's case (supra), Dilip's case (supra), Lakshmi Narayana Guin v. Niranjan Modak , D.C. Bhatia v. Union of India , East India Corporation Ltd. v. Shree Meenakshi Mills Ltd. , B.V. Patankar v. C.G. Sastry , Parripati Chandrasekhara Rao and Sons v. Alapati Jalaiah , United Bank of India v. Abhijit Tea Co. Pvt. Ltd. , H. Shiva Rao v. Cecilia Pereira , Sadhu Singh and Anr. v. Dharam Dev and Anr. , Dahiben (Widow) Ranchhodji Jeevanji and Ors. v. Vasanji Kevalbhai and Ors. AIR 1995 SC 1215, Mansoor Khan v. Motiram Harebhan Kharat and M. Sreeramulu v. Tahera Yousuf Khadri . 14. Sri Anand Kumar Kapoor, Sri Sharat Sanghi and Sri Basit Ali Yawar, learned Counsel supplemented the arguments of Sri Vilas Afzalpurkar by contending that as a result of the amendment the protection given by the provisions of the Act is made applicable to the buildings occupied by their clients and, therefore, Section 10(1) of the Act bars the jurisdiction of the civil Courts to evict their clients. 15. Sri D. Prakash Reddy, learned senior Counsel appearing for some of the landlords argued that the amendment is prospective in nature and, therefore, it has no effect on the decrees already passed or the cases which were pending on the date of the enforcement of the Amendment Act. He submitted that none of the judgments on which reliance has been placed by the learned Counsel appearing for the tenants have bearing on these cases. He then argued that at the time of filing of the civil suits their buildings were admittedly exempted from the application of the provisions of the Act and a vested right was created in favour of the landlords to seek eviction of the tenants by taking recourse to the common remedy of civil suit available to them and, therefore, in the, absence of any indication either by way of an express provision or by necessary implication that the amended provision is given retrospective operation, such vested right cannot be taken away by the amendment. In support of his contentions, the learned senior Counsel relied on the judgments in Sham Charan v. Sheo Bhai and Anr. , Atmaram Mittal v. Eswar Singh , Motiram v. Suraj Bhan , Shamsunder and Ors. v. Ram Kumar and Keshvlal v. Mohan Lal AIR 1968 SC 1366. 16. Sri V.S.R. Anjaneyulu, learned Counsel appearing for some of the landlords, while supplementing the arguments of Sri D. Prakash Reddy, relied on the judgments in Commissioner of Income Tax v. Sri Dhadi Sahu 1993 AIR SCW 3578 and Kishan v. Manoj Kumar , and contended that the law on the date of filing of
the suit or initiating the proceedings for eviction shall be applicable and the subsequent amendments, unless given retrospective operation either expressly or by necessary implication, shall have no effect on the pending cases. He submitted that the retroactivity of the amendment is not discernible from the language of Section 32 and, therefore, the decrees already passed by the civil Courts will remain unaffected. Discussion: 17. Before dealing with the rival contentions in the light of the judgments relied by the learned Counsel for the parties, we deem it proper to consider the precise nature of rights of the landlord and the tenant in common law and under the provisions of the Act and the law governing the construction of a statutory amendment in determining whether it is prospective or retrospective in nature. (i) Nature of Respective Rights: 18. In Parripatichandra Shekhar Rao and Sons's case (supra), the validity of the notification dated 26-10-1983 (G.O.636) issued by the Government of Andhra Pradesh under Section 26 of the Act whereby the buildings whose rents exceed Rs. 1,000/- were exempted from the provisions of the Act was challenged. Tenant filed 3 applications claiming different reliefs under the provisions of the Act before the Rent Control Court and they were pending when the exemption notification dated 26-10-1983 was issued. In view of the said notification the Rent Controller dismissed the said applications as the rent of the premises was in excess of Rs. 1,000/-. Three revision petitions filed against the said orders were allowed by the High Court by holding that the Rent Controller had jurisdiction to entertain and decide the applications since the notification questioned did not apply to the pending proceedings. The said orders of the High Court were challenged before the Supreme Court. The Supreme Court reversed the orders of the High Court and upheld the orders of the Rent Controller by holding that in view of the notification exempting the buildings from application of the provisions of the Act, the Rent Controller had no jurisdiction to decide the applications filed by the tenant. In that context the Supreme Court drew a distinction between the rights which accrue to the landlord under the common law and the protection which is available to the tenant by the legislation such as the Act. The Supreme Court observed: According to us there is a material difference between the rights which accrue to a landlord under the common law and the protection which is afforded to the tenant by such legislation as the Act. In the former case the rights and remedies of the landlord and tenant are governed by the law of contract and the law governing the property relations. These rights and remedies continue to govern their relationship unless they are regulated by such protective legislation as the present Act in which case the said rights and remedies remain suspended till the protective legislation continues in operation. Hence while it can legitimately be said that the landlord's normal rights vested in him by the general law continue to exist till and so long as they are not abridged by a special protective legislation in the case of the tenant, the protective shield extended to him survives only so long as and to the extent the special legislation operates. In the case of the tenant therefore the protection does not create any vested right which can operate beyond the period of protection or during the period of protection is not in existence. When the protection does not exist, the normal relations of the landlord and tenant come into operation. Hence the theory of the vested right which may validly be pleaded to support the landlord's case is not available to the tenant. It is for this reason that the analogy sought to be drawn by Shri Subbarao between the landlord's and the tenant's rights relying upon the decision of this Court in 1988 Suppl. (2) SCR, 528 : AIR 1988 SC 2031, is misplaced. In that case the landlord's normal right to evict the tenant from the premises was not interfered with for the first ten years of the construction of the premises by an exemption specifically incorporated in the protective Rent Legislation in question. The normal right was obviously the vested right under the general law and once accrued it continued to operate. The protection given to the tenant by the Rent Legislation came into operation after the expiry of the period of 10 years. Hence, notwithstanding the coming into operation of the protection and in the absence of the provisions to the contrary, the proceedings already commenced on the basis of the vested right could not be defeated by mere passage of time consumed by the said proceedings. It is for this reason that the Court there held that the right which had accrued to the landlord being a vested right could not be denied to him by the afflux of time.
19. This ratio is reiterated in Ambalal Sarabhai Enterprises Ltd. v. Amrit Lal & Co. and Anr. , which will be discussed in more detail later. The law is thus well settled that in the case of the tenants whose rights are only protective in nature so long as the concerned legislation continues to offer such protection while a landlord has got a vested right in common law to evict his tenant subject to the contract between the parties and the relevant statutory provisions. (ii) Construction of the statutory amendments: 20. In Garikapati Veeraiah v. M. Subbaiah , the Supreme Court held that the golden rule of construction is that in the absence of anything in the enactment to show that it is to have retrospective operation it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act was passed. The Supreme Court in that case was considering whether the provisions of the Constitution which came into effect and which repealed the Government of India Act, 1935 thereby abolishing the Federal Court had the effect of retrospective operation so as to take away the right of appeal vested in the parties thereto at the time of institution of suit. We feel it necessary to extract Para 25 of the judgment. (25) In construing the Article of the Constitution we must bear in mind certain cardinal rules of construction. It has been said in Hough v. Windus 1884-12 QBD 224 at p.237(V) that "statutes should be interpreted, if possible, so as to respect vested right "the golden rule of construction is that, in the absence of anything in the enactment to show that it is to have retrospective operation it cannot be to construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act was passed. Leeds and County Bank Ltd. v. Walker (1883) 11 QBD 84 at p.91 (W); Moon v. Durden (1848) 2 Ex 22 : 76 RR 479 at p. 495 (X). The following observation of Rankin C. in Sadar Ali v. Dalimuddin, (K) (supra), at p.520 (of ILR Cal) is also apposite and helpful : "Unless the contrary can be shown the provision which takes away the jurisdiction is itself subject to the implied saving of the litigant's right. "In Janardan Reddy v. The State 1950 SCR 940 Kania C. in delivering the judgment of the Court observed that our Constitution is generally speaking prospective in its operation and is not to have retroactive operation in the absence of any express provision to that effect. The same principle was reiterated in Keshavan Madhava Menon v. State of Bombay 1951 SCR 228 and finally in Dajisaheb Mane v. Shankar Rao Vithal Rao , to which reference will be made in greater detail hereafter. 21. After a detailed consideration the Constitution Bench held that the right of appeal which existed at the time of institution of the suit being a substantive right was not taken away by the provisions of the Constitution. 22. In Motiram's case (supra), the landlord filed an application for ejectment before the Rent Controller on 28-8-1956 under Section 13(1) of the East Punjab Urban Rent Restriction Act 1949. A tenant in possession of a building shall not be evicted therefrom except in accordance with the said section or in pursuance of an order made under Section 13 of the Punjab Urban Rent Restriction Act 1947. This section and Section 10(1) of the A.P. Act are similar in effect notwithstanding a slight variation in the language. Before the written statement was filed by the tenant, East Punjab Urban Rent Restriction Act 1949 was amended by amending Act 29 of 1956 on 24-9-1956. Section 13(3)(a)(iii) of the Act as it stood on the date of the application filed by the landlord provided that a landlord may apply to the Rent Controller for an order directing the tenant to put the landlord in possession in the case of any building if he requires it for reconstruction of that building or for its replacement by another building or for erection of other buildings. This provision was substantially modified by the amending Act which stated that in the case of any building or land if the landlord requires it to carryout any building work at the instance of the Government or local authority or any trust under some improvement or development scheme or it has become unsafe or unfit for human habitation, only then the landlord can approach the Rent Controller for putting him in possession. While holding that the amendment which imposed rigorous limit on a landlord's rights to recover possession the Supreme Court held that the said
amendment has no application to the pending proceedings. It was held: It is well settled 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 initially provision under Section 13(1) which is retrospective is attracted in interpreting the amended provision in Section 13(3)(a)(iii). Such contention would of course be wholly untenable. (Emphasis added) The Supreme Court further held: Where the legislature intends to make substantive provisions of law retrospective in operation it generally makes its intention clear by express provision in that behalf. We are therefore satisfied that Section 13(3)(a)(iii) as amended cannot apply to proceedings which were pending before the Rent Controller or before the appellate authority at the time when the amendment was made. (Emphasis added) 23. In Dayavati v. Inderjit , the Supreme Court held that as a general proposition ordinarily a Court of appeal cannot take into account a new law brought into existence after the judgment appealed from has been rendered, because the rights of the litigants in appeal are determined applying the law in force at the date of the suit. It was further held that if the new law speaks a language which expressly or by clear intendment takes in even pending matters the Court of trial as well as the Court of appeal must have regard to the intention so expressed and the Court of appeal may give effect to such a law even after the judgment of the Court of first instance. The Court in that case which was dealing with the provisions of Usurious Loans Act 1918 as amended by Section 5 of the Punjab Relief of Indebtedness Act which was extended to Delhi on 8-6-1956 held that Section 6 of the said amendment Act expressly made the provisions of the Act applicable to all suits pending on or instituted after the commencement of that Act and that appeals being continuation of the suits, the amendment was equally applicable to the appeals. 24. In Atmaram Mittal's case (supra), Section 13 of Haryana Urban (Control of Rent and Eviction) Act 1973 mandates that the tenant in possession of a building or a rented land shall not be evicted therefrom except in accordance with the provisions of that section. In passing, it may be mentioned that this provision also has a similar effect as Section 13(1) of the East Punjab Act considered in Motiram's case (supra), and Section 10(1) of the A.P. Act, since the purport of all these sections is the same, namely, that a tenant shall not be evicted otherwise than in accordance with the provisions contained in the respective rent Acts. Under Section 1(3) of the said Act the buildings the construction of which was completed on or after the commencement of the Act were exempted for a period of ten years from the date of their completion. The landlord filed a suit for recovery of possession of a building within the exemption period. However, during the pendency of the suit the period of ten years expired. The tenant then moved an application for dismissal of the suit on the ground that on the expiry of exemption period the jurisdiction of the civil Courts stands barred. The Supreme Court rejecting the contention of the tenant that the civil Court loses its jurisdiction on the expiry of the period of ten years held: It is well settled that the rights of the parties will have to be determined on the basis of the rights available to them on the date of suit. 25. While dealing with the language of Section 13 which mandates that the tenant in possession of the building or land shall not be evicted therefrom except in accordance with the provisions of that section, the
Supreme Court held that those provisions would not be applicable to a suit filed within ten years from the date of completion of building in question. In Para 9 of the judgment the Supreme Court while referring to Om Prakash Gupta v. Dig Vijendrapal Gupta , held as under: In our opinion, bearing in mind the well-settled principles that the rights of the parties crystalise on the date of the institution, of the suit as enunciated by this Court in Om Prakash Gupta v. Dig Vijendrapal Gupta (supra), the meaningful construction must be that the exemption would apply for a period of 10 years and will continue to be available until suit is disposed of of adjudicated. Such suit or proceeding must be instituted within the stipulated period of 10 years. Once rights crystalise the adjudication must be in accordance with law. (emphasis added) 26. In Dhadi Sahu's case (supra), the case arose under the Income Tax Act. Income Tax Officer initiated proceedings for imposition of penalty under Section 271(1)(c) of the Income Tax Act and the matter was referred to the Inspecting Assistant Commissioner under Section 274(2) of the said Act which as it stood at that time provided that where minimum penalty exceeds a sum of Rs. 1,000/- the Income Tax Officer shall refer the case to the Inspecting Assistant Commissioner for the purpose of imposition of penalty. Pending reference, the provisions of Section 274(2) of the said Act were amended. Under the amended provision the matter is referable to the Inspecting Assistant Commissioner if the amount of income in respect of which the particulars have been concealed or inaccurate particulars have been furnished exceeds a sum of Rs. 25,000/-. Notwithstanding the amendment, Inspecting Assistant Commissioner passed orders imposing penalties. The Tribunal accepted the plea of assessee that the Inspecting Assistant Commissioner lost jurisdiction following the amendment which came into force when the reference was pending and the High Court of Orissa also answered the question referred to it in favour of the assessee. The Supreme Court however while reversing the said decisions held: It may be stated at the outset the general principle is that a law which brings about a change in the forum does not affect pending action unless the intention to the contrary is clearly shown. One of the modes by which such an intention is shown is by making a provision for changeover of proceedings from the Court or the Tribunal where they are pending to the Court or the Tribunal which under the law gets jurisdiction to try them. (Emphasis added) The Court further held: It is also true that no litigant has any vested right in the matter of procedural law but, where the question is of change of forum, it ceases to be a question of procedure only. A forum of appeal or proceedings is a vested right as opposed to pure procedure to be followed before a particular forum. The right becomes vested when the proceedings are initiated in the Tribunal or the Court of first instance and unless the Legislature has, by express words or by necessary implications clearly so indicated, that vested right will continue irrespective of change of jurisdiction of the different Tribunals or forums. (emphasis added) 27. This view was reiterated in Commissioner of Income Tax, Bangalore v. R. Sharadamma . While following the judgment in Dhadi Sahu's (supra), the Supreme Court observed that once the Inspecting Assistant Commissioner was seized of the matter, he did not lose seisin thereof on account of the amended provision. 28. The Constitution Bench of Supreme Court by a majority in K.S. Paripoornan v. State of Kerala and Ors. , while
considering the effect of the amendment made to the Land Acquisition Act 1894 by introducing Section 23(1)(A) by the Land Acquisition (Amendment) Act 1984 on the cases which were pending reference before the reference Court as on the date of commencement of the amendment Act, held: A statute is regarded as retrospective if it operates on cases or facts coming into existence before its commencement in the sense that it affects, even if for the future only, the character or consequence of transactions previously entered into or all other past conduct. By virtue of presumption against retrospective applicability of laws dealing with substantive rights, transactions are neither invalidated by reason of their failure to apply with the formal requirements subsequently imposed, nor open to attack under powers also not rendered valid by subsequent relaxation of the law whether relating to form or substance. Similarly, provisions in which a contrary intention does not appear neither impose new liabilities in respect of events taking place before their commencement, nor relieve persons from liabilities then existing, and the view that existing obligations were not intended to be affected has been taken in varying degrees even of provisions expressly prohibiting proceedings. (See Halsbury's Laws of England, 4th Edn., Vol. 44 Paras 921, 922, 925 and 926). The Supreme Court also quoted Crawford's Statutory Construction at Para 65 and other English authorities at Para 66 which can be usefully reproduced hereunder: 65. These principles are equally applicable to amendatory statutes. According to Crawford: Amendatory statutes are subject to the general principles relative to retroactive operation. Like original statutes, they will not be given retroactive construction, unless the language clearly makes such construction necessary, in other words, the amendment will usually take effect only from the date of its enactment and will have no application to prior transactions, in the absence of an expressed intent or an intent clearly implied to the contrary. Indeed there is a presumption that an amendment shall operate prospectively. (emphasis added) (See Crawford's Statutory Construction, pp.622-623) 66. The dictum of Lord Denman, CJ., in R. v. St. Mary, Whitechapel (1948) 12 QB 120, 127 : 17 LJMC 172 : 116 ER 811, that a statute which is in its direct operation prospective cannot properly be called a retrospective statute because a part of the requisites for its action is drawn from time antecedent to its passing, which has received the approval of this Court, does not mean that a statute which is otherwise retrospective in the sense that it takes away or impairs any vested right acquired under existing laws or creates a new obligation or imposes a new duty or attaches a new disability in respect to transactions or considerations already past, will not be treated as retrospective. In Alexander v. Mercouris (1979) 3 All. ER 305 : (1979) 1 WLR 1270, Goff L.J., after referring to the said observations of Lord Denman, C.J., has observed that a statute would not be operating prospectively if it creates new rights and duties arising out of past transactions. The question whether a particular statute operates prospectively only or has retrospective operation also will have to be determined on the basis of the effect it has on existing rights and obligations, whether it creates new obligations or imposes new duties or levies new liabilities in relation to past transactions. For that purpose it is necessary to ascertain the intention of the Legislature as indicated in the statute itself. (emphasis added) 29. The Supreme Court also quoted the observations of Varadachariar, J., in United Provinces v. Atiqa Begum 1940 FCR 110 : AIR 1941 FC 16, which is relevant to be extracted hereunder: There can be little doubt that there is a well-recognized presumption against construing an enactment as governing the rights of the parties to a pending action. There are two recognized principles, (1) that vested
rights should not be presumed to be affected and (2) that the rights of the parties to an action should ordinarily be determined in accordance with the law as it stood at the date of the commencement of the action. The language used in an enactment may be sufficient to rebut the first presumption, but not the second. Where it is intended to make a new law applicable even to pending actions it is common to find the Legislature using language expressly referring to pending actions. (emphasis supplied) 30. A Constitution Bench of the Supreme Court in Shamsunder's case (supra), considered the effect of the amendment made to Section 15 of the Punjab Pre-emption Act 1913 by Haryana Act 10 of 1995 by substituting Section 15 with a new provision. Section 15 which originally stood gave right of pre-emption in respect of sale of agricultural land and immovable property to the co-sharers. When one of the co-sharers sold his share to third parties, the other co-sharers filed suit before the civil Court concerned by claiming right of pre-emption under the said provision. The said suit was decreed and the said decree was confirmed by the first appellate Court and also by the High Court and the defendants thereafter preferred appeal by way of special leave petition to the Supreme Court. During the pendency of the appeal Section 15 was substituted by taking away the right of co-sharers to preempt a sale and vesting the right of preemption in a tenant. The Supreme Court after an elaborate consideration of the entire case-law including the judgments in Garikapati Veeraiah 's case (supra), Dayavathi's case (supra) and K.S. Paripoornan's case (supra), on the issue and also the acknowledged works of Maxwell, Francis Bennion, Craies and G.P. Singh on Interpretation of Statutes held at Para 28 as under: From the aforesaid decisions the legal position that emerges is that when a repeal of an enactment is followed by a fresh legislation such legislation does not affect the substantive rights of the parties on the date of suit or adjudication of suit unless such a legislation is retrospective and a Court of appeal cannot take into consideration a new law brought into existence after the judgment appealed from has been rendered because the rights of the parties in an appeal are determined under the law in force on the date of suit. However, the position in law would be different in the matters which relate to procedural law but so far as substantive rights of parties are concerned they remain unaffected by the amendment in the enactment. We are, therefore, of the view that, where a repeal of provisions of an enactment is followed by fresh legislation by an amending Act such legislation is prospective in operation and does not affect substantive or vested rights of the parties unless made retrospective either expressly or by necessary intendment. We are further of the view that there is a presumption against the retrospective operation of a statute and farther a statute is not to be construed to have a greater retrospective operation than its language renders necessary, but an amending Act which affects the procedure is presumed to be retrospective, unless amending Act provides otherwise. We have carefully looked into new substituted Section 15 brought in the parent Act by Amendment Act, 1995 but do not find it either expressly or by necessary implication retrospective in operation which may affect the right of the parties on the date of adjudication of suit and the same is required to be taken into consideration by the appellate Court. In Shantidevi (Smt.) v. Hukumchand , this Court had occasion to interpret the substituted Section 15 with which we are concerned and held that on a plain reading of Section 15 it is clear that it has been introduced prospectively and there is no question of such section affecting in any manner the judgment and decree passed in the Suit for pre-emption affirmed by the High Court in the second appeal. We are respectfully in agreement with the view expressed in the said decision and hold that the substituted Section 15 in the absence of anything in it to show that it is retrospective, does not affect the right of the parties which accrue to them on the date of suit or on the date passing of the decree by the Court of first instance. We are also of the view that present appeals are unaffected by change in law so far as it related to determination of substantive rights of the parties and the same are required to be decided in the light of the law of pre-emption as it existed on the date of passing of the decree. The Supreme Court in that case rejected the contention advanced on behalf of the defendant that the amendment Act being a beneficial legislation meant for the general benefit of the citizens, the provision shall be construed as being retrospective in its operation. Their Lordships referring to the judgment in Motiram 's
case (supra), held at Para 37 as under: We are in respectful agreement with the view taken in Moti Ram v. Suraj Bhan (supra). The right of pre-emption may be a weak right but nonetheless the right is recognized by law and can be allowed to be defeated within the parameters of law. A statute which affects the substantive right has to be held prospective unless made retrospective either expressly or by necessary intendment. 31. While referring to H. Shiva Rao's case (supra), relied on by the defendant to support his contention that a beneficial legislation has to be given retrospective effect, the Court distinguished the said judgment by holding that the provision in H. Shiva Rao's case (supra), was ambiguous and that therefore, the Court leaned towards the construction that fulfills the object of the legislation. 32. In Ambalal Sarabhai's case (supra), the Supreme Court followed the dicta laid down in Parripati Chandrashekar Rao's case (supra), in holding that while the landlord has got a vested right under general law and such a right continues so long as it is not abridged by protective legislation, right of the tenant under the Rent Act at the best can be said to be a protective right which cannot be construed to be a vested right. While so holding the Supreme Court rejected the contention of the tenant that with the amendment brought out to the Delhi Rent Control Act during the pendency of the proceedings initiated by the landlord with the Rent Controller, taking away the buildings for which monthly exceeded Rs. 3,500/- from the purview of the Rent Controller, the said amendment had the effect of ousting the jurisdiction of the Rent Controller to adjudicate the pending applications. Thus the Supreme Court declined to construe the amendment enhancing the rent of the building for the purpose of exemption as retrospective in nature so as to affect the pending proceedings before the Rent Controller. Their Lordships also referred to Section 6(c) of the General Clauses Act 1897 and held that the right of the landlord under the repealed provision to seek eviction of a tenant is saved by the said provision of the General Clauses Act 1897. In Para 26 it is held as under: As a general rule, in view of Section 6, the repeal of a statute, which is not retrospective in operation, does not prima facie affect the pending proceedings which may be continued as if the repealed enactment were still in force. In other words such repeal does not affect the pending cases which would continue to be concluded as if the enactment has not been repealed. In fact when a lis commences, all rights and obligations of the parties gets crystallised on that date. The mandate of Section 6 of the General Clauses Act is simply to leave the pending proceedings unaffected which commenced under the unrepealed provisions unless contrary intention is expressed. We find Clause (c) of Section 6, refers the words "any right, privilege, obligation acquired or accrued" under the repealed statute would not be affected by the repealing statute. We may hasten to clarify here mere existence of a right not being 'acquired' or 'accrued', on the date of the repeal would not get protection of Section 6 of the General Clauses Act. 33. In that case the Supreme Court recognized the existence of two categories of rights in the landlord, a vested right de hors the provision of Section 6 of the General Clauses Act and an 'acquired' or 'accrued' right under the provisions of Section 6 of the General Clauses Act 1897 and it held that the Courts are to scrutinize and find out whether a person under repealed statute had any vested right and in case he had such a right then pending proceedings would be saved. It was further held that in cases where Section 6 is applicable it is not merely a vested right but also the acquired or accrued rights under Section 6(a) to (e) of the General Clauses Act 1897 which would enable the party to continue the pending proceedings despite the repeal of the statutory provision. 34. In Mohd. Idris v. Sat Narayana , a Constitution Bench of the Supreme Court examined the effect of Section 23 of the amending Act (U.P. Act 18 of 1956) by which it has abolished U.P. Agriculturists Relief Act and brought into force U.P. Zamindari Abolition and Land Reforms Act 1951. The respondent before the Supreme Court, Sat Narayana, fded an application under Section 12 of the U.P. Agriculturists Relief Act in the Court of Munsiff (East) Allahabad on the allegation that the mortgage debt had been paid off from the usufruct of the land and he was entitled to redeem it. One of the written statements filed by the defendants was
to the effect that they became Sirdars by reason of U.P. Zamindari Abolition and Land Reforms Act which came into force during the pendency of the application. The trial Court passed a decree in favour of Sat Narayana and the said decree was confirmed by the first appellate Court and revision filed before the High Court of Allahabad was dismissed on the ground that the decree was already executed and possession was delivered. Mohd. Idris approached the Supreme Court and contended that the amendment which abolished the U.P. Agriculturists Relief Act applied to the pending proceeding and consequently the Munsiff had no jurisdiction to decide the suit. He relied upon Section 202(c) of the U.P. Zamindari Abolition and Land Reforms Act 1951 and also Schedule-II of the Act which provided that a suit for ejectment of a asaami must go before an Assistant Collector. While rejecting the contention of Mohd. Idris the Supreme Court held as under: This suit was filed on 27-5-1952 when the Abolition Act was not on the statute book. When the Abolition Act was passed it did not repeal the U.P. Agriculturists Relief Act. Both the Acts, therefore, continued on the statute book till 12-7-1958. On that date Act XVI of 1953 was passed. Section 67 of that Act repealed the U.P. Agriculturists Relief Act. While repealing the Act it was not stated whether the repeal was to operate retrospectively or not but by Section 1(2) the amending Act itself was deemed to have come into force from the first day of July, 1952 that is to say, simultaneously with the Abolition Act. It may, therefore, be assumed that the U.P. Agriculturists Relief Act was also repealed retrospectively from 1-7-1952. The question is; whether the right of the plaintiff to continue the suit under the old law was in anyway impaired. Section 6 of the U.P. General Clauses Act lays down the effect of repeal and it is stated there as follows: 6. Effect of repeal, shall Where any Uttar Pradesh Act repeals any enactment hitherto made or hereafter to be made, then unless a different intention appears, the repeal shall not (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 proceedings commenced before the repealing Act shall have come into operation in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; And any such remedy may be enforced and any such investigation or legal proceedings may be continued and concluded; and any such penalty, forfeiture or punishment imposed as if the repealing Act had not been passed. 35. Supreme Court further held that while repealing the Agriculturists Relief Act the new Act does not contain any provision to the effect that the repeal was to operate retrospectively or not and that under Section 1(2) of the amending Act itself was deemed to have come into force from 1-7-1952 by which time the suit instituted on 27-5-1952 was already pending. The Supreme Court also held that there is nothing in the Abolition Act which takes away the right of the plaintiff in respect of pending action. It has also relied upon Section 6(c) to (e) of U.P. General Clauses Act under which inter alia any remedy or any investigation or legal proceedings commenced before the repealing Act came into force are saved unless a different intention appears in the amending Act. It is apt to extract the relevant portion of the judgment herein below: The question is whether a different intention appears in either the Abolition Act or the amending Act XVI of 1953, for otherwise the old proceeding could continue before the Munsif. There is nothing in the Abolition Act which takes away the right of suit in respect of a pending action. If there be any doubt, it is removed when we consider that the U.P. Agriculturists Relief Act was repealed retrospectively from July 1, 1952 only and it is not, therefore, possible to give the repeal further retrospectivity so as to affect a suit pending from before that date. The jurisdiction of the Assistant Collector was itself created from July 1, 1952 and there is no
provision in the Abolition Act that pending cases were to stand transferred to the Assistant Collector for disposal. Such provisions are commonly found in a statute which takes away the jurisdiction of one Court and confers it on another. From these two circumstances it is to be inferred that if there is at all any expression of intention, it is to keep Section 6 of the General Clauses Act applicable to pending litigation. 36. In Manujendra Dutt v. Purenda Prosad Roy Chowdhury and Ors. , also the Supreme Court applied Section 8 of Bengal General Clauses Act 1899 in holding that though Section 29 of the Calcutta Thika Tenancy Act was deleted by Calcutta Thika Tenancy (Amendment) Act, taking away the power and jurisdiction of the Controller to try proceedings under the said Act, the proceedings pending before the Controller as on the date of coming into force of the amendment Act were not affected. The Supreme Court observed that though the amendment Act did not contain any saving clause in view of Section 8 of the Bengal General Clauses Act 1897 the deletion of Section 29 will not have effect on altering the law applicable to the claim in the litigation. 37. The principles that emerge from the various aforementioned judgments can be summarized as under: (i) A landlord has a vested right in common law to recover possession subject to the contract and the relevant statutory provisions. The tenant has a limited protective statutory right which lasts till the protective legislation continues. {Parripati Chandrashekar Rao's case (supra), Ambalal Sarabhai's case (supra). (ii) The amendment dealing with the substantive rights of parties is always construed as prospective in operation unless a clear intention either expressly or by necessary implication is manifested in the amending statute unlike the statutes which deal with procedural aspects or statutes which are declaratory in nature. (Garikapati Veeraiah's case (supra), Dayavathi's case (supra), K.S. Paripoorna's case (supra), Motiram's case (supra) and Shamsunder's case (supra)). (iii) Right to forum is a vested right and it becomes vested when the proceedings are initiated in the Tribunal or the Court of first instance and unless the legislation has by express words or by necessary implication indicated in clear terms the vested right will continue irrespective of change of jurisdiction of different Tribunals/ Courts (Dhadi Sahu's case (supra), R. Sharadamma's case (supra)). (iv) Rights of the parties are crystallized on the date of the institution of the suit and subsequent amendment would not affect the pending proceedings unless the amending Act either expressly or by necessary implication gives retrospective effect to the amended provisions (Atmaram Mittal's case (supra)). (v) Where repeal of enactment is not given retrospective operation the pending proceedings would not be affected by the amending Act so as to take away the vested right or "acquired" or "accrued right" under Section 6 of the General Clauses Act. (Ambalal Sarabhai's case (supra), Mohd. Idris's case (supra) and Manujendra Dutt's case (supra)). Whether Section 32(c) of the Act is prospective or retrospective: 38. Section 2 of the Amendment Act provides that it shall come into force on such date as the State Government may by notification appoint. The State Government issued notification vide G.O. Ms. No. 222 General Administration (Accommodation-A) dated 28-5-2005 and thus the amendment Act came into force from that date. Section 32(c) of the Act provides that the provisions of the Act shall not apply to any building the rent of which as on the date of the commencement of the A.P. Buildings (Lease, Rent and Eviction) Control (Amendment) Act 2005 exceeds Rs. 3,500/-per month in the areas covered by the Municipal Corporations in the State and Rs. 2,000/- per month in other areas. Thus there is nothing in the provisions of the amendment Act which either expressly or by necessary implication suggests that the Act is given retrospective operation.
Indian Kanoon - http://indiankanoon.org/doc/889034/
14
39. One of the tests applied by the Supreme Court in considering whether an amendment is prospective or retrospective is whether the amending Act made any provision for changeover of the pending proceedings from the Court or Tribunal. In Dhadi Sahu 's case (supra), and Atiqa Begum's case (supra), referred to and relied on in K.S. Paripoornan 's case (supra), in the absence of such a provision, the amendments were held to be prospective. In the amendment Act under consideration, no such provision providing for changeover is made. 40. In view of the above, we hold that Section 32(c) of the Act as brought into force by the amendment Act is prospective in its operation. Re-contentions of Sri Vilas Afzalpurkar: 41. We shall now consider the contentions advanced by Sri Vilas Afzalpurkar. The learned Counsel contended that the plain language of Section 10(1) of the Act bars the jurisdiction of the civil Court to evict a tenant in execution of a decree or otherwise and that it is only the fora envisaged in the Act which have jurisdiction to evict a tenant in accordance with the provisions of Sections 10, 12 and 13 of the Act. It is argued by the learned Counsel that all the buildings in respect of which decrees are passed by the civil Courts, as a result of the substituted provision in Section 32(c) of the Act no longer enjoy the exemption provided by the Government of Andhra Pradesh notification dated 29-12-1983 and therefore all the tenants continue to be the tenants within the definition of Section 2(ix) of the Act and are protected by the provisions of Section 10(1) of the Act. In support of this contention the learned Counsel mainly relied upon S.B.K. Oil Mills's case (supra), Rafeequnnisa's case (supra), Laxmi Narayana Guin's case (supra), East India Corporation Limited's case (supra) and B.V. Patankar's case (supra). 42. In S.B.K. Oil Mills's case (supra), when the suit filed by the landlord for possession of the premises before a civil Court was pending, a notification was issued under Section 6 of the Bombay Rents, Hotel and Lodging, House Rates Control Act 1947 applying Part II of the said Act to the area where the property were situate. Under first proviso to Section 50 of the said Act which repealed earlier Acts, it was provided that all suits and proceedings between landlord and tenant relating to recovery or fixing of rent or possession of any premises to which the provisions of Part-II apply and 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 the said Act and that all the provisions of that Act and the rules made therein shall apply to all such suits and proceedings. The plea of the tenant to non-suit the plaintiff on account of the application of the provisions of the Act to the area was rejected by the High Court of Bombay on the premise that the Act did not apply to the pending proceedings. The Supreme Court considered the effect of first proviso to Section 50 and held that the provisions of Section 12(1) and (2) of the Act which gave protection to the tenants apply to the pending proceedings. De hors the said provision it was held that, Section 12(1) and (2) which placed embargo on the landlord to recover possession from the tenant so long as the tenant pays or is ready and willing to pay the amount of the standard rent and permitted increases, applied even to the cases pending when the Act was made applicable to the area in which the demised premises was situate. The Supreme Court while holding that ordinary rule is that substantive right should not be held to be taken away except by express provision or clear implication, it has construed Sub-section (2) of Section 12 which places embargo on recovery of possession and provides for remedy in case of default in payments, as having retrospective operation. 43. Sri Vilas Afzalpurkar contended that Section 10(1) of the Act has a similar effect as that of Section 12(2) of Bombay Rent Act as while the former provision prevents eviction of a tenant except under the provisions of Sections 10, 12 and 13 of that Act the latter prevents landlords from recovering possession except by way of the provisions of Sections 12(2) and (3). He therefore contends that the said judgment applies in all fours to these cases. 44. The fundamental difference between in S.B.K. Oil Mills's case (supra), and the present cases lies in the fact that while in the former case application of the provisions of an enactment was made to a new area while
the cases were pending, repeal and substitution of a statutory provision by way of an amendment is involved in the cases before us. Though the provisions of Section 12(1) and (2) of the Bombay Rents Act and the provisions of Section 10(1) of the Act bar eviction of a tenant except under the respective enactments, it is the amended provision i.e., Section 32(c) of the Act which falls for consideration in these cases. Indeed in Motiram's case (supra), the Supreme Court considered a similar situation. From the highlighted portion of the judgment in Motiram 's case (supra), extracted earlier, it is clear that the Supreme Court while examining whether the amended provision of Section 13(3)(a)(iii) had retrospective effect or not, it excluded from consideration Section 13(1) of the East Punjab Urban Rent Restriction Act, 1949, which was in existence originally in the Act and which contained similar bar as in Section 10(1) of the present Act. This was because the vested rights of the parties shall not be taken away by reading the amendment into the pre-existing provision unless the amendment is expressly made retrospective or it is construed as such by necessary implication. Undisputedly when the landlords filed their suits, the rent prescribed in the notification in force for the purpose of exempting buildings was Rs. 1,000/- and above. The landlords were therefore entitled under common law to approach the civil Courts for seeking eviction of their tenants by availing the remedy of civil suits. In the absence of the amended provision being given retrospective operation, the crystallized rights of the landlords on the dates of their filing the civil suits cannot be taken away by reading the amended provision of Section 32(c) into Section 10(1) of the Act. 45. Section 6 of the General Clauses Act, 1897 to the extent it is relevant reads as under: 6. Effect of repeal :--Where this Act, or any (Central Act) or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not-(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability penalty, forfeiture or punishment as aforesaid. 46. Section 8(d) and (f) of Andhra Pradesh General Clauses Act 1891 are also similar to Section 6(c) and (e) of General Clauses Act 1897. 47. As the amendment Act is not retrospective in operation as has been held by us the pending proceedings are saved by the aforementioned provisions. Therefore, apart from the vested rights acquired by the landlords in these cases, by application of Section 6(c) and (e) of the General Clauses Act, 1897 and Section 8(d) and (f) of the Andhra Pradesh General Clauses Act 1891, the landlords have got acquired or accrued right to continue the proceedings in the same fora despite the coming into force of the amended provision. Indeed, the decision in Atmaram Mittal's case (supra), also squarely applies to the present cases because as in Section 10(1) of the Act in the present cases, Section 13 of the Haryana Urban (Control of Rent and Eviction) Act 1973 also mandates that the tenant in possession of a building or a rented land shall not be evicted there from except in accordance with the provisions of that section. Despite such a statutory mandate the Supreme Court held that the rights of the parties will have to be determined on the basis of the rights available to them on the date of the suit, since on the date of the suit filed by the landlords they had the right to evict the tenants by availing the remedy of civil suits. To the similar effect is the judgment of the Constitution Bench in Shamsunder's case (supra), which also involved amendment of Section 15 of the Punjab Pre-emption Act 1913 by substitution. Though the right of a co-sharer to enforce pre-emption was taken away during the pendency of the suit, the Supreme Court instead of literally construing the amended Section 15 as barring the right of the co-sharer, held that they are entitled to enforce their right of pre-emption under the repealed provision as their rights are required to be decided in the light of the law of pre-emption as it existed on the date of the suit or on the date of the passing of the decree by the Court of first instance. Similar view was taken in Dhadi Sahu's case (supra) and R. Sharadamma's case (supra), and also in the Constitution Bench judgment of the Supreme Court in K.S.
Paripoornan 's case (supra). The ratio in all these cases is squarely attracted to the present cases on hand in favour of landlords, whose rights got crystallized on the dates of filing their respective suits. S.B.K. Oil Mills's case (supra), for the aforementioned reasons has no application to the present cases. 48. In Rafeequnnisa's case (supra), on which the learned Counsel next placed reliance, the landlord filed a suit for recovery of possession from the tenant and it was decreed. When the appeal filed by the tenant in the Court of Sub-Judge, Lower Assam District, Gauhati was pending, Assam Non-agricultural Urban Areas Tenancy Act 1955 was enacted. The Sub-Judge following the judgment of the High Court of Assam wherein it was held that the provisions of the said Act apply even to pending proceedings allowed the appeal of the tenant and after framing additional issue remanded the matter for fresh consideration by the trial Court. The trial Court held in favour of the landlord after remand on the ground that there was no evidence of tenant constructing houses so as to get protection under the Act from eviction. The lower appellate Court allowed the appeal with the finding that the tenant constructed two houses within five years after taking the premises on lease and thereby he was entitled to claim the benefit of the provisions of the Act. The appeal having been summarily dismissed by the High Court the landlord filed appeal before the Supreme Court with the certificate. The Supreme Court considered the provisions of Sections 2 and 5 of the Act and inter alia held in Para 10 of its judgment as under: Bearing in mind these principles, let us look at Section 5. Before doing so, it is necessary to consider Section 2 which provides that notwithstanding anything contained in any contract or in law for the time being in force the provisions of this Act shall apply to all non-agricultural tenancies whether created before or after the date on which this Act comes into force. This provision clearly indicates that the Legislature wanted the beneficent provisions enacted by it to take within their protection not only leases executed after the Act came into force, but also leases executed proper to the operation of the Act. In other words leases which had been created before the Act applied are intended to receive the benefit of the provisions of the Act, and in that sense, the Act clearly affects vested rights of the landlords who had let out their urban properties to the tenants prior to the date of the Act. That is one important fact which is material in determining the scope and effect of Section 5. Apart from the aforementioned reason on the basis of the language of Section 5(1), the Supreme Court came to the conclusion that Section 5(1) operated retrospectively so as to apply to the pending suits. This judgment is also of no avail to the tenants herein as the legislative intent of retrospective operation was clearly evident in the provisions of the Act considered by the Supreme Court in Rafiquennisa's case (supra). This apart like S.B.K. Oil Mills's case (supra), this is also not a case where repeal and substitution of statutory provision is involved. 49. Sri Vilas V. Afzalpurkar also placed reliance on Laxmi Narayana Guin 's case (supra), in which the Supreme Court considered the effect of the provisions of West Bengal Premises Tenancy Act which were extended to the area in which the appeal was pending. In that case the landlord filed a civil suit and succeeded in getting the suit decreed for possession. An appeal filed by the tenant having been dismissed the High Court of Calcutta allowed the second appeal of the tenant by applying the provisions of West Bengal Premises Tenancy Act which were extended to the area concerned during the pendency of the first appeal. Sub-section (1) of Section 13 of the said Act contained a provision to the effect that notwithstanding anything contrary to any other law no order or a decree for recovery of possession of any premises shall be made by any Court in favour of landlord against fee tenant except on one or more of the grounds mentioned therein. The Supreme Court considered two issues in the said case; i) whether the decree mentioned in Sub-section (1) of Section 13 was referable to the decree of trial Court or where an appeal has been preferred, even to an appellate decree, and ii) whether the said provision can be invoked where the suit was instituted before the Act came into force. On the first point the Supreme Court held the issue in favour of tenant holding that the decree included the appellate decree as well. On the second issue placing reliance on S.B.K. Oil Mills's case (supra), and Rafeequennisa's case (supra), the Supreme Court had construed the provisions of Section 13(1) as having retrospective operation. This case being similar to S.B.K. Oil Mills's case (supra), and Rafeequennisa's case
(supra), it has no application to the present cases. 50. Thus the aforementioned judgments on which Sri Vilas Afzalpurkar placed reliance mainly turned on the provisions of the respective Acts which were made applicable for the first time to the pending cases and none of these cases involve repeal or substitution of a provision by way of amendment. The ratio of these cases is therefore not attracted to the present batch of cases under consideration. 51. Sri Vilas Afzalpurkar also placed reliance on Dilip's case (supra), in which the Supreme Court construed Section 13-A of C.P. and Berar Letting of Houses and Rent Control Order 1949 which was to the effect that no decree for eviction shall be passed in a suit or proceeding filed and pending against tenant in any Court or before any authority unless the landlord obtains a written permission of the Controller as required by Sub-clause (1) of Clause 13 as not having retrospective effect but was held to have only retroactive force. In our view this judgment does not support the cases of the tenants in the present cases before us. 52. Similar is the case in H. Shiva Rao's case (supra). With the inclusion of the village concerned within the limits of the cities under the Karnataka Municipal Corporation Act, the provisions of the Rent Control Act were made applicable to property in question. By that time the landlord's suit for recovery of possession was decreed and the revision and review petitions filed by the tenants were dismissed by the High Court of Karnataka. The Supreme Court construing Section 21(1) of the Karnataka Rent Control Act which prohibited passing of any order or decree for recovery of possession by any Court or other authority in favour of the landlord as having the effect of taking away the right vested in the landlord to execute the decree passed even before the application of the provisions of the said Act. It is significant to notice that this conclusion was arrived at by the Supreme Court by holding that the Rent Control Legislation being beneficial to the tenant has to be given a liberal interpretation. 53. This judgment was discussed by the Constitution Bench in Shamsunder's case (supra), and at Para 38 the Supreme Court held that: learned Counsel for the appellant then relied upon a decision of this Court in the case of H. Shiva Rao v. Cecilia. Pereira , for the proposition that a beneficial legislation has to be given retrospective effect. In the said decision it was held that if the expressions are ambiguous, then the construction that fulfils the object of the legislation must provide the key to the meaning. But that is not the case here. We have already held that there is no ambiguity in substituted Section 15 and, therefore, this decision has no application in the present case. We accordingly reject the arguments of the learned Counsel for the appellants. 54. Thus the Supreme Court in Shamsunder's case (supra), distinguished H. Shiva Rao's case (supra), as having been decided with reference to the particular provision found to be ambiguous. As already noted the Constitution Bench in Shamsunder's case (supra), held that there is no such rule of construction that a beneficial legislation always should be retrospective in operation even though such legislation is expressly or by necessary intendment is not made retrospective. 55. In D.C. Bhatia's case (supra), amendment was made to Section 3(c) of the Delhi Rent Control Act whereunder the maximum rent is increased to Rs. 3,500/-for exempting the buildings from the proceedings of the Act. While upholding the constitutional validity of the said amendment, the Supreme Court also repelled the contention of the tenants that they had acquired a vested right. However, in Para 62 of the judgment the Supreme Court observed that on the finding of the appellate Court that the provisions of the amendment Act did not apply to the pending proceedings, it was not expressing any opinion as no arguments were advanced on that point. Therefore, this judgment has no relevance to the present controversy. 56. Mansoor Khan's case (supra), is also a case where during the pendency of suit filed by the landlord for eviction of the tenant, the place where the suit was pending was declared as Municipality attracting the provisions of Central Provinces and Berar Letting of Houses and Rent Control Order, 1949 (for short 'the
Order'). Under Clause 13 of the order a landlord was barred from giving a notice to a tenant or requiring the tenant to vacate by efflux of time without the previous written permission of the Controller. The said provision was considered by the Supreme Court as prospective in the sense that it does not apply to the suits already filed, as what was prohibited was issuance of notice. 57. In M/s. East India Corporation Ltd.'s case (supra), on which Sri Vilas Afzalpurkar placed heavy reliance, the suit filed by the landlord for recovery of possession was decreed by the learned District Munsif and the decree was confirmed in appeal by the first appellate Court as well as by the High Court. The suit filed by the landlord was maintainable at that time as the accrued rent being Rs. 900/- per month the building fell within the exemption clause prescribed under Section 30(ii) of the Tamil Nadu Buildings (Lease and Rent) Control Act 1960. The tenant carried the matter to Supreme Court which granted leave to appeal on 24-9-1984. When the appeal was pending the Supreme Court in Rattan Arya v. State of Tamil Nadu , declared Section 30(ii) as violative of Article 14 of the Constitution and consequently the said provision was struck down. The Supreme Court accepted the plea of the tenant that the effect of the striking down of the exemption provision in Section 30(ii) had the effect of the provision being never brought into force and that the decree passed by the Civil Court was a nullity. The Supreme Court further held that though there was no express bar of jurisdiction of civil Court, the jurisdiction of the civil Court is impliedly barred except to the limited extent as specifically provided by the statute. This judgment also does not support the case of the tenants as with the striking down of Section 30(ii), the provision for exemption was never deemed to be in operation and the civil Court inherently lacked jurisdiction to entertain the suit and pass a decree. 58. In B.V. Patankar's case (supra), the landlord succeeded in getting a decree and also executing the same ex parte. The application filed by the lessee to set aside the ex parte order of delivery of possession was allowed on the ground that the Mysore House Rent and Accommodation Control Order 1948 was in operation on the date of eviction and that under Section 9(1) of the said order a tenant in possession of a house shall not be evicted therefrom whether in execution of a decree or otherwise except in accordance with the provisions of the said section. The lessor who ultimately approached the Supreme Court contended that with the bringing into force of the Part-B States (Laws) Act 1951, the provisions of the Transfer of Property Act were made applicable to the State of Mysore with effect from 1st April, 1951 and that therefore, the House Rent Control Order could not operate on rights of the parties on the date when the executing Court made the order for delivery of possession i.e., on 9-7-1951. This argument was rejected by the Supreme Court by holding that in spite of applying the provisions of Transfer of Property Act in the State of Mysore, the laws of the State applying to leases which would include the Mysore House Rent Control Order of 1948 continued to be in force and applicable to the cases pending till it was repealed by the Mysore Rent Control Act of 1951. The Supreme Court also rejected the contention advanced on behalf of the landlord that ignoring Section 9(1) of the House Rent Control Order was no more an error in exercise of jurisdiction by observing that the said section along with Section 16 imposed a fetter on the executability of the decree. This judgment is also of no help to the tenants since on the facts of the said case a finding was given by the Supreme Court that the Mysore House Rent Control Order 1948 which contained Section 9(1) of the Act continued to be in force till it was repealed by the Mysore House Rent Control Act of 1951 and in the face of Section 9(1) the execution of the decree of civil Court was held to be illegal. 59. Though the learned Counsel Sri Vilas Afzalpurkar referred to other judgments, as mentioned in the earlier part of this judgment, he did not place much reliance on them. In any event we have carefully perused them and we are satisfied that they have no relevance to the cases on hand. 60. Sri. Vilas Afzalpurkar contended that the judgment of the Full Bench of this Court in S.A. No. 532 of 2002 does not lay down correct law and that it is liable to be so declared. The Full Bench in that case was dealing with the case where suit filed by the landlord for eviction and recovery of arrears of rent was decreed by the Court of Principal Junior Civil Judge, Ranga Reddy on 17-4-2000 and when the appeal filed by the tenant was pending before the II Additional District Judge, Ranga Reddy District, the Government of Andhra Pradesh issued G.O. No. 548 dated 27-11-2000 creating a new Municipality known as Gaddiannaram
Municipality and consequently the building which was the subject-matter of the appeal got included within the Gaddiannaram Municipality and thereby provisions of A.P. Buildings (Lease, Rent and Eviction) Control Act became applicable. The appeal having been dismissed by the lower appellate Court a second appeal was filed before this Court. In view of the rival contentions raised on the applicability of the provisions of the Act to the pending appeal, the second appeal was eventually referred to the Full Bench. The Full Bench mainly relied upon Paras 5 and 6 in the judgment in Mansoor Khan's case (supra), in coming to the conclusion that the rights of the parties in a case are to be decided on the date of the suit and that as long as the suit is validly instituted any change of law would not have effect on the said proceedings. The Full Bench also held that unless and until the statute takes away the jurisdiction of the Court by specifically giving the provisions retrospective effect the pending proceedings would not be affected. 61. From the facts of the case considered by the Full Bench as noted above, it is clear that they were similar to the facts of the cases decided by the Supreme Court in S.B.K. Oil Milk's case (supra), Rafeequennisa's case (supra) and Laxmi Narayana Guin 's case (supra), etc., where the repeal and substitution of a statutory provision by way of an amendment was not involved. The cases before us stand on a different footing from the case decided by the Full Bench. Therefore, there is no need to go into the correctness or otherwise of the judgment of the Full Bench in S.A. No. 532 of 2002 as it has no application to the cases before us. Hence we refrain from expressing our opinion in this regard. Conclusion: 62. We answer the reference in the following terms: (a) Section 32(c) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act 1960 as brought into force by Section 3 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control (Amendment) Act 2005 is prospective in operation and this provision does not affect the proceedings pending as on the date of its coming into force before the civil Courts or appellate, revisional or Executing Courts. These cases are required to be decided without reference to and application of the provisions of the amendment Act of 2005. The registry is directed to post all these cases before the respective Benches according to the roaster to hear and dispose of the same on merits. Ramesh Ranganathan, J. 1. S.A. No. 1475 of 2004, preferred against the judgment and decree in A.S. No. 237 of 2003 dated 4-10-2005, was admitted on 16-12-2005. During the pendency of A.S. No. 237 of 2003, on the file of the II Additional Chief Judge, City Civil Court, Hyderabad, Section 32(c) of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960, (hereinafter referred to as Act 15 of 1960) was inserted by Act 17 of 2005 which came into force on 28-5-2005 and the maximum rent of the building, in areas within the limits of Municipal Corporations of the State, to come within the purview of Act 15 of 1960, was enhanced to Rs. 3,500/-per month and in other areas to Rs. 2,000/-per month. 2. The appellant (tenant) claimed protection under the amended Section 32(c) and contended that the suit filed by the landlord before the civil Court, for his eviction, was without jurisdiction. The landlord contended that the amendment did not have retrospective operation and had no application to cases where a decree for eviction had already been passed. 3. The learned Single Judge, by order dated 31-3-2006, held that an important question of law, having a bearing on a large number of cases in the State, had arisen and that the matter should be considered by a Division Bench. After S.A. No. 1475 of 2005 was listed, other similar matters were also listed before the Division Bench.
4. On an unreported judgment of a Full Bench, in G. Anjaneya Prasad v. S. Vinod Kumar SA No. 532 of 2002 dated 6-1-2005, being brought to its notice, the Division Bench was of the view that the questions of law, raised in the second appeals before it, needed to be addressed by a Full Bench of this Court and as such, by order dated 23-8-2006, these batch of cases, in S.A. No. 1475 of 2005 and Batch, were placed before a Full Bench. 5. The earlier Full Bench, in G. Anjaneya Prasad's case (supra), had held that there was nothing in the language of Act 15 of 1960 which barred the jurisdiction of the civil Court to pass a decree for eviction, that the rights of parties in the case was required to be decided on the date of the suit and, as long as the suit was validly instituted, any subsequent change in the law would not affect pending proceedings, unless and until the amendment, taking away such jurisdiction, was specifically given retrospective effect. 6. It was contended before the Full Bench, in SA No. 1475 of 2005 and Batch, that the decision of the earlier Full Bench, in G. Anjaneya Prasad's case (supra), did not lay down the correct law and required reconsideration in the light of the judgments of the Supreme Court in S.B.K. Oil Mills v. Subhash Chandra , Rafiquennessa v. Lal Bahadur Chetri , Lakshmi Narayan Guin v. Niranjan Modak , D.C. Bhatia v. Union of India , Dilip v. Mohd. Azizul Haq AIR 2000 SC 1976 and East India Corporation Ltd. v. Shree Meenakshi Mills Ltd. . The Full Bench agreed that the law laid down by the earlier Full Bench, in G. Anajeya Prasad's case (supra), needed reconsideration in the light of several judgments of the Supreme Court and that the issue deserved to be considered and decided by a Larger Bench as it was bound to affect a large number of cases pending in different civil Courts in various districts of the State. Consequent thereto, a Larger Bench was constituted and these matters were listed before us. 7. The Government of A.P. had earlier issued G.O. Ms. No. 636, General Administration (Accommodation-A), dated 29-12-1983 exempting, with effect on and from 26-10-1983, buildings the monthly rent of which exceeded rupees one thousand from the operation of Act 15 of 1960. Section 32(c), as substituted by Act 17 of 2005 with effect from 28-5-2005, makes Act 15 of 1960 inapplicable to buildings the rent of which, on the date of commencement of the A.P. Buildings (Lease, Rent and Eviction) Control Act (Amendment) Act, 2005, exceeded Rs. 3,500/- p.m. in areas covered by Municipal Corporations of the State and Rs. 2,000/- p.m. in other areas. 8. In all the cases before us, the monthly rent of the buildings, are in excess of Rs. 1,000/- p.m. and below Rs. 3,500/- p.m. in areas covered by Municipal Corporations and below Rs. 2,000/- p.m. in other areas of the State. It is also to be noted that, in all these cases, the civil Court had passed a decree of eviction prior to 28-5-2005, the date on which Amendment Act 17 of 2005 came into force, and the matter is either at the stage of second appeal or revision. While these buildings, under G.O. Ms. No. 636, dated 29-12-1983, were hitherto exempted from the operation of Act 15 of 1960, the question which arises for consideration is whether substitution of Section 32, by Act 17 of 2005, has brought them within the ambit of Act 15 of 1960 resulting in the jurisdiction of the civil Court being ousted. 9. Sri Vilas Afzulpurkar, learned senior Counsel for the appellant-tenants, would submit that, as the definition of a "tenant", under Section 2(ix) of Act 15 of 1960, includes a person who continues in possession after termination of the tenancy and since, under Section 10(1), a tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of Sections 10, 12 or 13 of Act 15 of 1960, the question, whether the amended Section 32(c) is applicable, has to be determined with reference to the date on which the decree is executed and, as prior thereto the amended Section 32(c) has come into force with effect from 28-5-2005, the jurisdiction of the civil Court to evict a tenant, in execution of a decree, is explicitly barred as such a person can only be evicted in accordance with the provisions of Act 15 of 1960 as amended by Act 17 of 2005. Learned senior Counsel would submit that Act 15 of 1960 is a complete code in itself and, since a decree of eviction cannot be executed by the civil Court, its jurisdiction to entertain a suit
for eviction is implicitly barred. Learned senior Counsel would submit that the Legislature intended to give retrospectivity to the amended Section 32 and, as it is a clause in substitution of the pre-amended Section 32, it must be deemed to have existed from the date on which the earlier Section 32 was enacted. According to the learned senior Counsel, as the amended Section 32 is a beneficial provision and must be deemed to have been in force prior to the date of institution of the suit, the civil Court's jurisdiction to entertain petitions for execution of decrees for eviction, from which suits the present batch of second appeals/revisions have arisen, is barred. Learned senior Counsel would submit that, as there is no savings clause in the Amending Act which saves pending suits from the applicability of amended Section 32(c), the Legislature must be presumed to be aware of pending proceedings and the amendment must be held applicable even to pending suits, appeals and revisions. Learned senior Counsel would submit that, as an appeal is in continuation of the suit and, since the jurisdiction of the civil Court to entertain the suit for eviction is barred, the appeals filed by the tenants are required to be allowed and the decrees for eviction passed by the civil Court are liable to be set aside. Learned senior Counsel would submit that if Section 32(c), as amended by Act 17 of 2005, is not given retrospective effect it would run contrary to Section 10 of Act 15 of 1960. Learned senior Counsel would submit that G.O. Ms. No. 636, dated 29-12-1983, whereby the Government had exempted all buildings the monthly rent of which exceeded Rs. 1,000/-p.m. from the operation of the Act, cannot co-exist with Section 32(c) as amended by Act 17 of 2005. He would refer to Moor General Traders v. State of Andhra Pradesh AIR 1984 SC 121, whereunder, while striking down Clause (b) of Section 32 of Act 15 of 1960 as it then existed, the Supreme Court had left it open to the Legislature or the State Government to take action either by Amending Act 15 of 1960 or by issuing a notification under Section 26 of the Act to mitigate the rigours of the Act. Learned senior Counsel would submit that, unlike in the cases relied on behalf of the landlords, in the present batch of cases, the Legislature had intervened during the pendency of the appeals/revisions and that an amendment to a statute would stand on a different footing. 10. Learned senior Counsel would rely on S.B.K. Oil Mills, Rafiquennessa, Lakshmi Narayan Guin, D.C. Bhatia's cases (supra), United Bank of India v. Abhijit Tea Co. Pvt. Ltd. , East India Corporation Ltd.'s case (supra), B.V.Patankar v. C.G. Sastry , Dilip's case (supra), Marti Subrat Jain v. Raja Ram Vohra , Parripati Chandrasekhar Rao v. Alapati Jalaiah , H. Shiva Rao v. Cecilia Pereira ; Sadhu Singh v. Dharam Dev ; Dahiben v. Vasanji Kevalbhai AIR 1995 SC 1215 and M. Sreeramulu v. Tahera Yousuf Kadri . 11. Sri Anand Kumar Kapoor, learned Counsel appearing on behalf of the tenants, would submit that the definition of a "tenant", under Section 2(ix) of Act 15 of 1960, must be examined in the context and collocation of the object of the Act with the purpose for which the provision was made by the Legislature. learned Counsel would submit that since the definition clause in Section 2 of the Act starts with the words "unless the context otherwise requires", the context being both internal and external, the internal context would require the interpreter to situate the disputed words within the section of which they are part of and in relation to the rest of the Act and the external context would involve determining the meaning from ordinary linguistic usage. learned Counsel would place reliance on Pushpa Devi v. Milkhi Ram . He would submit that the term "statutory tenant" has often been used by Courts to denote a tenant whose contractual tenancy has been terminated but who is entitled to continue to remain in possession by virtue of the protection afforded to him by the statutes in question. According to the learned Counsel since Section 32(c), as Amended by Act 17 of 2005, extends protection to buildings, the rent of which does not exceed Rs. 3,500/- p.m. in areas covered by Municipal Corporations in the State and Rs. 2,000/- p.m. in other areas, the tenants of such buildings would be entitled for the protection of Section 10(1) of Act 15 of 1960. He would place reliance on Gian Devi Anand v. Jeevan Kumar . learned Counsel would place reliance on Abhijit Tea Co. Pvt. Ltd.'s case (supra), to submit that it is the duty of the Court, whether it is trying original proceedings or hearing an appeal, to take notice of the change in law affecting pending actions and to give effect to the same. He would rely on Sushil Kumar
Mehta v. Gobind Ram Bohra , to submit that, since the amended Section 32(c) has ousted the jurisdiction of the civil Court in respect of such buildings, a decree passed by a Court without jurisdiction is a nullity and a plea of inherent lack of jurisdiction can be set up whenever and wherever the decree is sought to be enforced or is relied upon even if it be at the stage of execution or in collateral proceedings. learned Counsel would submit that the amended Section 32(c) cannot be characterized as retrospective since the amendment applies only to an act or transaction in the process of completion and not to one which has already been completed. According to the learned Counsel, the process would only be completed on the tenant being evicted from the building which remains in his possession, whereas in the present batch of cases the tenants have not as yet been evicted and continue to remain in possession of the buildings. learned Counsel would place reliance on State Bank's Staff Union (Madras Circle) v. Union of India . 12. Sri Sharad Sanghi and Sri Basith Ali Yavar, learned Counsel also appearing on behalf of the tenants, would submit that the words "any building" as used in the amended Section 32(c) would imply retrospectivity and apply to cases where a decree for eviction has been passed prior to 28-5-2005 when the amendment came into force. 13. Sri D. Prakash Reddy, learned senior Counsel appearing on behalf of the respondent-landlords, would submit that for a tenant to claim protection of Act 15 of 1960 two essential requirements must be satisfied (1) he should be a tenant and (2) the tenancy must be one which is covered by the provisions of the Act. Learned senior Counsel would submit that in all the cases, listed before the Larger Bench, decrees had already been passed and it was only thereafter that the amended Section 32(c) had come into force. Learned senior Counsel would submit that, on a decree being passed, rights of parties crystallize and any amendment subsequent thereto would have no effect on pending proceedings. Learned senior Counsel would submit that even if it were to be assumed that they are tenants under the Act, since the buildings of which they are tenants did not come under the purview of Act 15 of 1960 on the date on which the decrees were passed, the appellants were not entitled to claim protection under the Act. Learned senior Counsel would submit that the amended Section 32(c) is only an extension of protection and not removal of exemption as was the case in M/s. East India Corporation Ltd.'s case (supra), and as such the said judgment has no application to the present case. According to the learned senior Counsel, rights of parties, crystallize on the date of institution of the suit and, in any event, on the date of the decree. Learned senior Counsel would submit that the definition of a "tenant", in Section 2(ix) of Act 15 of 1960, does not include a person who has suffered a decree of eviction and that suits being instituted, or at least decrees being passed, would result in such persons being excluded from the definition of a "tenant". According to the learned senior Counsel the rental value of the building, as on the date of institution of the suit, was alone relevant and the protection, provided by Act 15 of 1960 to a tenant, on the date of institution of the suit was alone applicable. Learned senior Counsel would submit that, since rights of parties crystallize on the date of institution of the suit, or on the date when decrees are passed, vested rights could only be taken away by the Act on it being given retrospective effect either by an express provision or by necessary implication. Learned senior Counsel would submit that, even if a different view was possible, the consistent view taken over a period of time should prevail. He would refer to Clause (b) of Section 32 to submit that there were nothing in Clause (c) of Section 32 to indicate that the Legislature had, by implication, intended to give it retrospectivety. Learned senior Counsel would rely on Shyam Charon v. Sheoji Bhai , Smt. Chander Kali Bai v. Jagdish Singh Thakur , H. Shiva Rao's case (supra), Rafiquennessa's case (supra), Atma Ram Mittal v. Ishwar Singh Punia , Mod Ram v. Suraj Bhan , Shyam Sunder v. Ram Kumar , Keshavlal Jethalal Shah v. Mohanlal Bhagwandas and Southern Road Carriers Ltd. v. Atul Kumar Agarwal . 15. Sri V.S.R. Anjaneyulu, learned Counsel appearing on behalf of the respondent-landlords, would submit that the law as on the date of institution of the suit would alone prevail and any amendment subsequent thereto was of no consequence. learned Counsel would rely on Kishan v. Manoj Kumar , Commissioner of Income Tax v. Shri Dhadi Sahu 1993 AIR SCW 3578 and Mohd. Idris v. Sat Narain .
16. Before examining the aforesaid contentions it is necessary to refer in brief to the relevant provisions of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (Act 15 of 1960) and the amendment thereto by Act 17 of 2005. Clause (iii) of Section 2 of Act 15 of 1960 defines "building" to mean any house or hut or part of a house or hut, let or to be let out separately for residential or non-residential purposes. Clause (iv) defines, "Controller" to mean any person not below the rank of a Tahsildar appointed by the Government to perform the functions of a Controller under the Act. Clause (vi) defines "landlord" to mean the owner of a building and includes a person who is receiving or is entitled to receive the rent of a building or who would so receive the rent or be entitled to receive the rent, if the building were let out to a tenant. Clause (ix) defines "tenant" to mean any person by whom or on whose account rent is payable for a building and a person continuing in possession after the termination of the tenancy in his favour. 17. Section 10 relates to eviction of tenants and, under Sub-section (1) thereof, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of Sections 10, 12 or 13 of the Act. Section 15 relates to execution of orders and provides that every order made under Sections 10, 12, 13 and 14, every order passed in appeal under Section 20 or in revision under Section 22 and every order as to costs under Section 21, shall be executed by the Controller. 18. Section 26 relates to exemption and provides that, notwithstanding anything in the Act, the Government may, by notification in the A.P. Gazette, exempt, subject to such conditions and terms, if any, as they may specify in the notification, any building or class of buildings from all or any of the provisions of the Act. In exercise of the powers conferred under Section 26, the Government of A.P., had issued G.O. Ms. No. 636 dated 29-12-1983, exempting, with effect on or from the 26th of October, 1983, from the provisions of the Act: (a) all buildings for a period of ten years from the date on which their construction was completed; and (b) buildings the monthly rent of which exceeds Rs. 1,000/-. 19. Section 32, which provides for exemption of certain buildings from the applicability of the Act, reads thus: 32. Act not apply to certain buildings :--The provisions of this Act shall not apply,-(a) to any building belonging to the State Government or the Central Government, or Cantonment Board or any local authority; (b) to any building constructed or substantially renovated, either before or after the commencement of this Act for a period of fifteen years form the date of completion of such construction or substantial renovation. Explanation I :--A building may be said to be substantially renovated if not less than seventy five percent of the premises is built new in accordance with the criteria prescribed for determining the extent of renovation; Explanation II :--Date of completion of construction shall be the date of completion as intimated to the concerned authority or of assessment of property tax, whichever is earlier, and where the premises have been constructed in stages the date on which the initial building was completed and an intimation thereof was sent to the concerned authority or was assessed to property tax, whichever is earlier. (c) to any building the rent of which as on the date of commencement of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control (Amendment) Act, 2005, exceeds rupees three thousand and five hundred per month in the areas covered by the Municipal Corporations in the State and rupees two thousand per month in other areas].
20. It must be noted that Section 32, as afore-extracted, is as substituted by Act 17 of 2005. Section 32, prior to its substitution, read thus: 32. Act not to apply to certain buildings: The provision of this Act shall not apply-a. to any building owned by the Government; b. to any building constructed on or after the 26th April, 1957. 21. The rights which accrue to a landlord under the common law is distinct from the protection afforded to a tenant by special legislation such as Act 15 of 1960. In the former, the rights and remedies of the landlord and the tenant are governed by the law of contract and the law governing property relations. These rights and remedies continue to govern their relationship unless they are regulated by protective legislation, such as Act 15 of 1960, in which case the said rights and remedies remain suspended till the protective legislation continues in operation. While the landlord's vested rights under the general law continue to exist as long as they are not abridged by special protective legislation, in the case of a tenant, the protective shield extended to him survives as long as and to the extent the special legislation operates. In the case of a tenant such protection does not create any vested right in his favour which can operate beyond the period of protection or during the period the protection is not in existence. When the protection does not exist, the normal relations of landlord and tenant come into operation. The theory of vested rights which may validly be pleaded to support the landlord's case is not available to a tenant. (Parripati Chandrasekhar Rao & Sons's case (supra)). 22. The right of the landlord to evict a tenant, by way of a suit before a civil Court of competent jurisdiction, continues to exist as long as and to the extent it is not abridged by a special legislation conferring protection in favour of a tenant. Prior to Act 17 of 2005 coming into force on 28-5-2005 a tenant in possession of a building, whose monthly rent was more than Rs. 1,000/- p.m. did not come under the protective umbrella of Act 15 of 1960. The question which we are called upon to examine is the extent of protection which Act 15 of 1960, as amended by Act 17 of 2005, confers on tenants of buildings whose rent is between Rs. 1,000/- and Rs. 3,500/- per month in areas falling within Municipal Corporations of the State and between Rs. 1,000/- and Rs. 2,000/- p.m. in other areas and whether the protection extended by the amended Section 32(c) would apply to such tenants who suffered a decree for eviction prior to 28-5-2005, the date from which the Amendment Act 17 of 2005 came into force. 23. Courts, while construing the provisions of an enactment, often follow decisions where similar provisions of an enactment in pari materia are construed. The object behind the application of the said rule of construction is to avoid contradiction between two statutes dealing with the same subject. Babu Khan v. Nazim Khan . In this context, it is useful to compare the definition of a "tenant", and the provision for eviction, under the East Punjab Urban Rent Restrictions Act, 1949, the Tamilnadu Buildings (Lease and Rent Control) Act, 1960 and the Haryana Urban (Control of Rent and Eviction) Act, 1973 vis-a-vis similar provisions under Act 15 of 1960. Subject East Punjab Urban The Tamilnadu Haryana Urban The A.P. Buildings Rent Restrictions Buildings (Lease (Control of Rent (Lease, R ent and Act and Rent) Control and Evi ction) Eviction) Control Act, 1960 Act, 1973 Act, 1960
Tenant Section 2(i) : Section 2(8): Section 2(h): Section 2 (ix) : "tenant" means any 'Tenant' means any "tenant" means any "Tenant" means any person by whom or person by whom or person by whom or person by whom or on whose account on whose account on whose account on whose account rent is payable for rent is payable rent is payable rent is p ayable a building or for a building and for a building or for a bui lding and rented land and includes the rented land and includes the includes a tenant surviving spouse, includes a tenant surviving spouse, continuing in or any son, or continuing in or any so n or possession after daughter, or the possession after daughter, of a the termination of legal representative the termination deceased tenant the tenancy in his of a deceased tenant of his tenancy who had b een favour, but does not who-(i) in the case and in the event living wi th the include a person of a residential of such person's tenant in the placed in occupation building,had been death, such of his building as a of a building or living with the heirs as are member of tenant's rented land by its tenant in the mentioned in the family up to the tenant, unless with building as a member Schedule appended death of the tenant the consent in of the tenant's to this Act and and a per son writing of the family upto the who were ordinarily continuin g in landlord, or a death of the tenant; residing with him possessio n after person to whom the and (ii) in the case at the time of his the termi nation of collection of rent of a non-residential death". the tenan cy in his or fees in a public building, had been favour, b ut does market, cart-stand in continuous (Extracted from not inclu de a or slaughter house association with the Harish Chand v. person pl aced in
or of rents for tenant for the Kirpa Ram AIR occupatio n of a shops has been purpose of carrying 1986 (P&H) building by its farmed out or on the business of 277) tenant or a person leased by a tenant upto the to whom t he municipal, town or death of the tenant collectio n of rents notified area and continues to or fees i n a public committee; (emphasis carry on such market A cartstand added). Extracted business thereafter, or slaugh ter house from Mani Subrat and a person or of ren ts for Jain, v.Raja Ram continuing in shops has been farmed Vohra AIR 1980 SC possession after the out or le ased by a 299 termination of the local aut hority. tenancy in his favour, but does not include a person placed in occupation of a building by its tenant or a person to whom the collection of rents or fees in a public market cartstand or slaughter house or of rents for shops has been framed out or leased by a
Municipal Council or a Panchayat Union Council or the Municipal Corporation of Madras or the Municipal Corporation of Madurai. Eviction Section 13(1): A Section 10(1): A Section 13(1) : A Section 1 0(1) : A tenant in possession tenant shall not tenant in posses- tenant sh all not of a building or be evicted whether sion of a building be evicte d whether rented land shall in execution of or a rented land in execut ion of a not be evicted a decree or shall not be decree or otherwise therefrom in otherwise except evicted therefrom except in accordance execution of a in accordance with except in with the provisions decree passed the provisions of accordance with of this s ection or before or after the this section or the provisions of Sections 12 and 13: commencement of Sections 14 to 16 this section this Act or Provided that where otherwise and Provided that (Extracted from the tenan t, denies whether before or nothing contained Kishan @ Krishan the title of the after the in the said Kumar v. Manoj landlord or claims termination of the sections shall Kumar AIR 1998 SC right of permanent tenancy, except in apply to a tenant 999. tenancy, the accordance with the whose landlord is Controlle r shall provisions of this the Government: decide wh ether the
section, or in denial or claim is pursuance of an bona fide and if he order made under records a finding to Section 13 of the that effe ct, the Punjab Urban Rent landlord shall be Restriction Act, entitled to sue for 1947, as eviction of the subsequently amended tenant in a civil (emphasis added) Court and the Court may pass a decree Extracted from Mani for evict ion on any Subrat Jain v. Raja of the gr ounds Ram Vohra AIR 1980 mentioned in the SC 299) said sect ions, notwithst anding that the Court finds that such denial does not involve forfeitur e of the lease or
that the claim is un founded. 24. Section 2(ix) of Act 15 of 1960 defines a "tenant" to include a person who continues in possession even after termination of the tenancy. So do Sections 2(i) of the East Punjab Urban Rent Restrictions Act, 1949, Sections 2(8) of the Tamilnadu Buildings (Lease and Rent) Control Act, 1960 and Section 2(h) of the Haryana Urban (Control of Rent and Eviction) Act, 1973. Section 10(1) of Act 15 of 1960 is in pari materia with Section 10(1) of the Tamilnadu Buildings (Lease and Rent Control) Act, 1960 and similar to Section 13(1) of the East Punjab Urban Rent Restrictions Act, 1949, all of which prohibit eviction of a tenant, in execution of a decree or otherwise, except in accordance with the provisions of the Act. Section 13(1) of the Haryana Urban (Control of Rent and Eviction) Act, 1973 which provides for eviction does not, however, contain the words "in execution of a decree", as contained in the East Punjab, Tamilnadu and A.P. Acts. 25. While the provisions of the East Punjab Urban Rent Restrictions Act came up for consideration in Mani Subrat Jain's case (supra), and the provisions of the Tamilnadu Buildings (Lease and Rent Control) Act, 1960 in M/s. East India Corporation Ltd. 's case (supra), the provisions of the Haryana Urban (Control of Rent and Eviction) Act, 1973 were examined in Atma Ram Mittal 's case (supra) and Kishan's case (supra). 26. In Mani Subrat Jain's case (supra), on a suit filed by the landlord seeking possession, the tenant entered into a compromise and agreed to vacate on a certain date on certain terms and conditions. A decree in terms thereof was passed on 9-10-1972. The East Punjab Urban Rent Restrictions Act, 1949 was made applicable to Chandigarh with effect from 4-11-1972. On the question whether the Act was applicable, since a decree was passed prior thereto, the Supreme Court observed: ...The expression tenant includes a tenant continuing in possession after the termination of the tenancy in his favour. It thus includes, by express provision, a quondam tenant whose nexus with the property is continuance in possession. The fact that a decree or any other process extinguishes the tenancy under the general law of real property does not terminate the status of a tenant under the Act having regard to the carefully drawn inclusive clause. Even here, we may mention by way of contrast that Subudhi's case AIR 1968 SC 919, related to a statute where the definition in Section 2(5) of that Act expressly included any person against whom a suit for ejectment is pending in a Court of competent jurisdiction and more pertinent to the point specially excluded a person against whom a decree or order for eviction has been made by such a Court. We feel no difficulty in holding that the text, reinforced by the context, especially Section 13, convincingly includes ex-tenants against whom decrees for eviction might have been passed, whether on compromise or otherwise. The effect of the compromise decree, in counsels submission, is that the tenancy has been terminated. Nobody has a case that the appellant is not continuously in possession. The conclusion is inevitable that he remains a tenant and enjoys immunity under Section 13(1). The execution proceedings must, therefore, fail because the statutory road-block cannot be removed. Indeed, an application under the Act was filed by the landlord defendant which was dismissed because the ground required by the Act was not made out.... (emphasis supplied) 27. In M/s. East India Corporation Ltd.'s case (supra), both at the time of institution of the suit and when leave to appeal was granted by the Supreme Court, the building in question did not come within the purview of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 for the agreed rent was Rs. 900/- per month, and was outside the limit prescribed, of Rs. 400/-per month, under Section 30(ii) of the Act for a residential building to fall within the statutory ambit. Clause (ii) of Section 30 was, however, struck down by the Supreme Court in Rattan Arya v. State of T.N. . The appellant, a tenant, contended that, as a result of this declaration of the constitutional invalidity of Section 30(ii), the Act had to be read as if Clause (ii) of Section
30 was never brought into force, and consequently all residential buildings, which were older than five years (Clause (i) of Section 30) and let out for whatever rent, came within the ambit of the Act. Although the suit was properly instituted in the civil Court without regard to the special provisions of the Act, it was contended, that as a result of the declaration by the Supreme Court of the constitutional invalidity of Clause (ii) of Section 30, the decree of the civil Court was a nullity. The Supreme Court observed: ...Section 10 of the Act, as seen above, prohibits eviction of a tenant whether in execution of a decree or otherwise except in accordance with the provisions of that section or Sections 14 to 16. These provisions as well as the other provisions of the Act are a self-contained code, regulating the relationship of parties, creating special rights and liabilities, and, providing for determination of such rights and liabilities by tribunals constituted under the statute and whose orders are endowed with finality. The remedies provided by the statute in such matters are adequate and complete. Although the statute contains no express bar of jurisdiction of the civil Court, except for eviction of tenants in execution or otherwise, the provisions of the statute are clear and complete in regard to the finality of the orders passed by the special tribunals set up under it, and their competence to administer the same remedy as the civil Courts render in civil suits. Such tribunals having been so constituted as to act in conformity with the fundamental principles of judicial procedure, the clear and explicit intendment of the Legislature is that all questions relating to the special rights and liabilities created by the statute should be decided by the tribunals constituted under it. Although the jurisdiction of the civil Court is not expressly barred, the provisions of the statute explicitly show that, subject to the extraordinary powers of the High Court and this Court, such jurisdiction is impliedly barred, except to the limited extent specially provided by the statute. ...At the time of the institution of the suit, the building in question did not come within the ambit of the Act, owing to the exclusionary provision contained in Clause (ii) of Section 30, but after leave to appeal was granted by this Court, the applicability of the Act was extended to the building by reason of the decision of this Court in Rattan Arya v. State of T.N. AIR 1966 SC 1444, declaring the invalidity of Clause (ii) of Section 30 on account of its inconsistency with Article 14 of the Constitution. Whatever be the consequence of that declaration whether it has rendered the statutory provision null and void and of no effect : , or, merely inoperative, unenforceable and dormant to be revitalised on subsequent removal of the constitutional ban , in either event, the civil Court acting without the aid of the exclusionary provision in Clause (ii) of Section 30, during the period of invalidity, has become coram non-judice and its proceedings resulting in the decree a nullity .... (emphasis supplied) 28. In interpreting a particular provision of an Act, the import and effect of the meaning of the words and phrases used in the statute has to be gathered from the text, the nature of the subject-matter and the purpose and intention of the statute. It is a cardinal principle of construction that the statute should be read as a whole and the provision in question must be construed with reference to the other provisions in the enactment. Anwar Hasan Khan v. Mohd. Shaft . 29. Under Section 2(ix) of Act 15 of 1960, "tenant" is defined to mean a person by whom or on whose behalf rent is payable for a building. Consequent to the amendment of Section 32(c), by Act 17 of 2005, buildings in areas falling within Municipal Corporations of the Sate whose rent exceeds Rs. 3,500/- pm, and buildings in other areas the rent of which is above Rs. 2,000/- p.m., alone are exempted from the provisions of Act 15 of 1960. A person, by whom the rent payable for a building does not exceed the above prescribed limits, would be a "tenant" under Section 2(ix) of the Act. A person, who continues to remain in possession after termination of the tenancy in his favour, is also included within the definition of "tenant" under Section 2(ix) of the Act. Thus, tenants of buildings, the rent of which does not exceed the limits prescribed under the amended Section 32(c), would come within the definition of a "tenant" under Section 2(ix) and enjoy the immunity under Section 10(1) of the Act if they continue to remain in possession of the building when the decree for eviction is sought to be executed. As noted above, the rights and remedies of a landlord, vis-a-vis
his tenant, under the common law are governed by the law of contract and the law governing property relations such as the Transfer of Property Act. The vested rights, which a landlord has under the general law, crystalise on the date of institution of the suit and continue to remain in force as long as and to the extent the tenant is not protected by special legislation, such as Act 15 of 1960. Once a tenant is held to be entitled for protection under the special legislation, the vested rights of the landlord under the general law gets abridged and must yield to the extent the special legislation confers protection. It matters little whether the protection conferred on a tenant under the special legislation is as a result of removing the exemption, as was the in M/s. East India Corporation Ltd. 's case (supra), or is an extension of protection, as is the case under Act 15 of 1960. To the extent Act 15 of 1960 confers protection against the eviction of a tenant, on the execution of a decree, the vested rights of the landlord, which under the general law crystallize on the date of institution of the suit must, necessarily, yield. As held case in Mani Subrat Jain's case (supra), a decree which extinguishes the tenancy, under the general law of contract or transfer of property, does not terminate the status of a "tenant" under Act 15 of 1960 having regard to the inclusive Clause (ix) of Section 2 thereof. In view of the protection extended to such tenants, by the amended Section 32(c) with effect from 28-5-2005, the civil Court must be held, thereafter, to have become coram non judice and its jurisdiction to execute a decree for eviction, and have such tenants evicted from the buildings in their possession, ousted. 30. In Atma Ram Mittal's case (supra), Section 1(3) of the Haryana Urban (Control of Rent and Eviction) Act, 1973, which provided that nothing in the Act would apply to a building the construction of which was completed on or after commencement of the Act for a period of ten years from the date of its completion, came up for consideration. The landlord filed a suit in the civil Court for recovery of possession on expiry of the period of tenancy. The tenant filed his written statement on 15-2-1983. In November, 1984, the tenant moved an application for dismissal of the suit contending that since the shop was constructed in June, 1974 and, as the period of 10 years had elapsed by June, 1984, in terms of Section 1(3) of Haryana Urban (Control of Rent and Eviction) Act, 1973, the immunity from the application of the Act had expired, the suit was not maintainable and the jurisdiction of the civil Court stood barred. The trial Court held that a decree need not be passed within the exemption period of 10 years and dismissed the application. In revision the Punjab and Haryana High Court held that, since the suit had not been decreed within the period of 10 years, the building in question came within the application of the Act and, as the Rent Act was applicable, the civil Court had no jurisdiction. The High Court dismissed the suit pending before the Sub-Judge. The Supreme Court, while holding that no man should suffer because of the fault of the Court or delay in procedure, observed: ...In our opinion, bearing in mind the well-settled principle that the rights of the parties crystalise on the date of the institution of the suit as enunciated by this Court in Om Prakash Gupta v. Digvijendrapal Gupta , the meaningful construction must be that the exemption would apply for a period of ten years and will continue to be available until suit is disposed of or adjudicated. Such suit or proceeding must be instituted within the stipulated period of ten years. Once rights crystalise the adjudication must be in accordance with law.... (emphasis supplied). 31. In Atma Ram Mittal's case (supra), reliance was placed on Om Prakash Gupta v. Dig Vijendrapal Gupta (supra), to hold that the rights of parties crystalise on the date of institution of the suit. In Om Prakash Gupta's case (supra), under Explanation I of Section 2(2) of the U.P. Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, the date of occupation was required to be taken as the date of completion of construction only when there was no report or record of completion of construction or no assessment thereof and, if there was an assessment, the date of first assessment would be the date of completion of construction. The Supreme Court held that, since the building was not more than ten years old when the revision came to be decided by the High Court, the question of giving the benefit of Section 39 of the Act to the tenant did not arise. Section 39 of the Act applied to suits pending on the date when the Act came into force on 15-7-1992. It provided that where the tenant, within one month from the date of commencement of the Act, or within one month from the date of knowledge of the pendency of the suit, deposited the entire rent and damages with interest, no decree of eviction could be passed except on the grounds referred in Section 20. Section 20 was in Chapter IV of the
Act, with the heading "regulation and eviction". Section 20 started with the title "bar of suits for eviction of tenant except on specified grounds". The wording of Section 20 itself provides that "no suit shall be instituted for eviction" which clearly indicated that the restriction put under Section 20 was to the institution of the suit itself. Thus, if the Act applied, no suit for eviction could be instituted except on the grounds specified in the Sub-sections of Section 20. Afortiori, the Act had no application to suits instituted prior thereto. It is in this context that it was held in Atma Ram Mittal's case (supra) and Om Prakash Gupta's case (supra), had enunciated the well settled principle that the rights of parties crystalise on the date of institution of the suit. 32. The law declared in Om Prakash Gupta's case (supra), was explained by the Supreme Court, in Nand Kishore Marwah v. Smt. Sammudri Devi , thus: ...But unfortunately attention of the Court was not drawn to Om Prakash Gupta's case , which specifically considered this Act and the language of Section 39 in particular and is a decision for a Bench of three Judges which is binding on us. THE restriction on the right of a landlord to evict a tenant has been provided for in this Act under Section 20 and the language of Section 20 is also significant. 20. Bar of suit for eviction of tenant except on specified grounds-(1) Save as provided in Sub-section (2) no suit shall be instituted for the eviction of a tenant from a building, notwithstanding the determination of his tenancy by efflux of time or on the expiration of a notice to quit or in any other manner: Provided that nothing in this sub-section shall bar a suit for the eviction of a tenant on the determination of his tenancy by efflux of time where the tenancy for a fixed term was entered into by or in pursuance of a compromise or adjustment arrived at with reference to a suit, appeal, revision or execution proceeding, which is either recorded in Court or otherwise reduced to writing and signed by the tenant. This is put in Chapter IV with the heading "regulation and Eviction" and the section starts with title which is printed in bold "bar of suit for eviction of tenant except on specified grounds" and again in the wording of the section itself it provides : "no suit shall be instituted for eviction" This clearly indicates that the restriction put under Section 20 is to the institution of the suit itself and therefore it is clear that if the provision of this Act applies then no suit for eviction can be instituted except on the grounds specified in the sub-sections of this section. Keeping in view the language of this section if we examine the provisions contained in Sub-section (2) of Section 2 it will be clear that for a newly constructed building the provisions of this Act will not apply for 10 years and therefore so far as the restriction under Section 20 is concerned they will not apply and therefore it is clear that within 10 years as provided for in Clause (2) of Section 2 restriction on the institution of suit as provided for in Section 20 Clause (1) quoted above will not be applicable and it is thus clear that during the pendency of the litigation even if 10 years expired the restriction will not be attracted as the suit has been instituted within 10 years and therefore restriction as provided for in Section 20 cannot be attracted. IN the light of the discussions above, therefore, in our opinion, the contention advanced by learned Counsel for the appellant cannot be accepted. The appellant-tenant could not be given the advantage of the provisions contained in this Act. In this view of the matter therefore the appeal is without any substance and is dismissed.... (emphasis supplied) 33. In Kishan's case (supra), the question which arose for consideration before the Supreme Court was whether the civil Court was barred, by the provisions of the Haryana Urban (Control of Rent and Eviction) Act, 1973, from passing a decree directing the tenant to deliver the properties, scheduled in the suits, to the landlord. The Haryana Urban (Control of Rent and Eviction) Act, came into force on 25-4-1973. When the
suit was instituted by the landlord, the Act was not applicable in view of Section 1(3) of the Act. However, before trial was concluded, the moratorium period of ten years came to an end and the decrees were passed only thereafter. The tenant contended that the civil Court had lost its jurisdiction on the expiry of the ten-years period and the decrees passed thereafter were a nullity. Relying on Section 13(1) of the Act, it was argued that since a special forum had been created, and a specific procedure had been prescribed in the Act, the landlord had to resort to the provisions of the Act without which the tenant could not be evicted from the demised premises. As noted above the definition of a "tenant" included a tenant continuing in possession after expiry of the tenancy. It was contended that, on expiry of the period of ten years set out in Section 1(3) of the Act, the building came within the fold of the Act, the moment the Act became applicable to the building in question the suit in relation thereto had to abate and the remedy of the landlord was to approach the Controller with an application for eviction on any of the grounds set out in the section and that, even if a decree was passed by the civil Court, it was not enforceable and the tenant could not be evicted from the building pursuant to the decree as the bar in Section 13(1) was absolute. 34. On behalf of the landlord it was contended that, on the date when the suit was instituted, the legal rights of the landlord stood crystallized under the law applicable to the building at that time and in the absence of a specific provision in the Act to deprive the civil Court of jurisdiction, it could not be contended that, by mere efflux of the ten years period mentioned in Section 1(3), the civil Court had lost its jurisdiction, that the Act did not contain any provision to bring to an end the right of the plaintiff which had already accrued and put in issue in the suit and that, merely because the Court took a long time to dispose of the matter before it, the party which had approached it could not be made to suffer. The Supreme Court observed: ...There is no provision in the Act taking away the jurisdiction of a civil Court to dispose of a suit validly instituted. There is also no provision preventing the execution of a decree passed in such a suit. Section 13(1) does not expressly refer to execution of a decree for possession. On a reading of all the provisions of the Act, it is evident that it has not prevented a civil Court from adjudicating the rights accrued and the liabilities incurred prior to the date on which the Act became applicable to the building in question. If the Legislature had intended to take away the jurisdiction of the civil Court to decide a suit which had been validly instituted, it would have been worded differently. The purpose for which the exemption is granted statutorily under Section 1(3) is to encourage construction of new buildings. That purpose would be defeated if the owner of the building is deprived of his right to get possession of the building unless he gets a decree within a period of ten years from the date of its completion. In fact the logical consequence of the argument of the appellants if accepted would be that even if a decree is obtained by the landlord within ten years from its completion it cannot be executed after the expiry of the said period of ten years as such execution would not be in accordance with the provisions of the Act. It is common knowledge that a proceeding in a civil Court for recovery of immovable property could be dragged on by the defendant easily for a period of ten years or more and thereby any tenant whose tenancy had been terminated validly before the suit would successfully make the proceeding infructuous by prolonging the litigation. The argument of the appellants cannot be accepted as otherwise the purpose of exemption would get defeated.... ...THUS it is seen that this Court has been consistently taking the view that a suit instituted during the period of exemption could be continued and a decree passed therein could be executed even though the period of exemption came to an end during the pendency of the suit. The only discordant note was struck in Vineet Kumar v. Mangal Sain Wadhera . We have noticed that several decisions subsequent thereto have held that Vineet Kumar is not good law. We have already construed the relevant provisions of the Act and pointed out that there is nothing in the Act which prevents the civil Court from continuing the suit and passing a decree which could be executed.... ...learned Counsel for the appellants attempted to make a distinction between the provisions of Section 20 of the U.P. Act and Section 13 of the present Act. The working in the former is as follows:
Save as provided in Sub-section (2), no suit shall be instituted for the eviction of a tenant from a building, notwithstanding the determination of his tenancy by efflux of time or on the expiration of a notice to quit or in any other manner. According to the learned Counsel bar against the institution of a suit would stand on a different footing from bar against eviction as such which is contained in Section 13 of the Act. In our opinion the difference in language does not help the appellants in any manner. We have already pointed out that Section 13 of the Act does not make any reference to a decree passed in a civil suit. When a suit is validly instituted and the rights of parties which had crystallised on the date of the suit are determined by a decree in that suit the execution thereof cannot be stopped by the provisions of Section 13 of the Act. Hence, we are unable to accept any of the contentions of the appellants.... (emphasis supplied). 35. As noted above both Atma Ram Mittal's case (supra) and Kishan's case (supra), arose under the Haryana Urban (Control of Rent and Eviction) Act, 1973 and Section 13(1) thereof, which related to eviction, did not expressly refer to the execution of a decree for possession. Unlike in the Haryana Act, Section 10(1) of Act 15 of 1960 prohibits eviction of a tenant in execution of a decree. Reliance placed on Atma Ram Mittal's case (supra) and Kishan's case (supra) is, therefore, misplaced. 36. Let us now examine the other judgments cited across the Bar. 37. In Moti Ram's case (supra), proceedings for eviction were instituted not before the civil Court but before the Rent Controller, the designated authority under the East Punjab Urban Rent Restriction Act, 1949. The question as to whether an amendment to the Rent Control legislation ousted the jurisdiction of the civil Court, to execute a decree of eviction passed prior to the amendment, did not arise for consideration therein. 38. In Mohd, Idris's case (supra), an application under Section 12 of the U.P. Agriculturists Relief Act for redemption of mortgage of land, pending at the time of coming into force of the U.P. Jamindari Abolition and Land Reforms Act 1951, was held not to be affected, by the repeal of the Agriculturists Reliefs Act by the Abolition Act, having regard to Section 6 of the U.P. General Clauses Act and in view of the savings clause in Section 23 of the Amendment Act which saved acts already done or suffered or any right already acquired or accrued. 39. In Kesav Lal v. Mohan Lal , prior to its amendment, Section 29 of the Bombay Rents Hotel and Lodging House Rates Control Act, 1947 did not provide for a second appeal and as such a revision was preferred. During the pendency of the revision before the High Court, Section 29(2) was amended enabling the High Court to call for the case in which such decision was taken and pass such orders with respect thereto as it though fit. The question which arose for consideration was whether the amended Section 29(2) applied during the course of hearing of the revision before the High Court. The Supreme Court held that the Legislature had not attempted to legislate in a matter of procedure and had expressly sought to confer on the High Court the power to reopen questions which till then were to be deemed finally decided, that there was nothing in the language of the amended Section 29(2) which indicated that it was intended to be retrospective in operation, and that the amendment was not in the nature of an explanatory legislation. 40. In Sadhu Singh's case (supra), Section 3 of Punjab Pre-emption (Repeal) Act, 1973, which barred a decree being passed in a suit for pre-emption on and from the date of the commencement of the Act fell for consideration. The prohibition was to the passing of a decree and not, as in Act 15 of 1960, for its execution.
35
41. In Lakshmi Narayan Guiun's case (supra), Section 13(1) of the West Bengal Premises Tenancy Act, 1956, which required the Court not to make any order or a decree for possession, subject to the statutory exceptions, came up for consideration. The Supreme Court held that the legislative command under Section 13(1) deprived the Court of its unqualified jurisdiction to make an order or decree. The prohibition under Section 13(1) of the West Bengal Premises Tenancy Act was to the making of a decree and, unlike Section 10(1) of Act 15 of 1960, not to its execution. 42. In H. Shiva Rao's case (supra), Section 21(1) of the Karnataka Rent Control Act provided that, notwithstanding anything to the contrary contained in any other law or contract, no order or decree for recovery of possession of any premises shall be made by any Court or other authority in favour of the landlord against the tenant. The prohibition, in Section 21(1) of the Karnataka Rent Control Act, was against the making of an order or decree for recovery of possession and not for the execution of a decree as is prescribed in Section 10(1) of Act 15 of 1960. 43. In D.C. Bhatia's case (supra), the Supreme Court, while taking note that no arguments were advanced on the question whether Section 3(c) of the Delhi Rent Control Act was applicable to cases which were pending before the Court, made it clear that they had not expressed any opinion on this controversy. 44. Dahiben's case (supra), was a case which arose under the Bombay Tenancy and Agricultural Lands Act, 1948. Section 88(1)(d) of the said Act provided that the Act would not apply to any area which the State Government may, from time to time, by notification in the Official Gazette specify as being reserved for urban non-agricultural or industrial development. Section 88(1)(c), which provided that the 1948 Act would not apply to any area within the limits of the Municipal Burough of Surat and within a distance of two miles of the limits of Burough, was deleted by Bombay Act 33 of 1952. The question which arose for consideration was whether the 1952 Amendment Act applied retrospectively i.e., from the date of coming into force of the 1948 Act, in which event the civil Court in which the suit for eviction was filed would cease to have jurisdiction. The Supreme Court held that the amendment must be held applicable to suits which were pending and that, even if vested rights had accrued to the landlord by the time the 1952 Amendment Act came into force, a view could be taken that the amendment applied retrospectively. 45. In Shyam Sunder's case (supra), Section 50 was introduced, by Haryana Act 10 of 1995, in the Punjab Pre-emption Act, 1913. The amendment came into force during the pendency of the appeal. The questions which arose for consideration before the Supreme Court were whether the right and remedy of the plaintiff stood extinguished thereby, whether the appellate Court was required to notice and consider the subsequent event, viz., loss of qualification by the pre-emptor during the pendency of the appeal and whether, as a result, the suit was required to be dismissed. 46. Mansoor Khan v. Motiram Harebhan Kharat , arose under the C.P. and Berar Letting of Houses and Rent Control Order, 1949. The Supreme Court observed: ...So long as the provisions of the Order are not applicable to any premises, the rights and obligations of landlord and tenant are governed by the provisions of the Transfer of Property Act. Once the Order becomes applicable, a landlord cannot give notice to a tenant determining the lease nor can initiate proceedings for recovery of possession from the tenant except with the previous written permission of the Controller in accordance with Clause 13 of the Order. What is prohibited by the order is initiation of the proceedings by the landlord. In the present case, the proceedings were initiated by filing suit before a civil Court, much before the provisions of the Order became applicable to the suit premises. There is nothing in the Order which makes it applicable to the pending suit for eviction of the tenant.... (emphasis supplied)
36
47. The C.P. and Berar Rent Control Order prohibited filing of a suit before a civil Court. As the suit was instituted before the Rent Control Order came into force, the rent control order was held not applicable to pending suits. Section 10(1) of Act 15 of 1960 does not prohibit institution of a suit. It prohibits eviction of a tenant in execution of a decree. 48. The Full Bench, in G. Anjaneya Prasad's case (supra), followed the judgment of the Supreme Court in Mansoor Khan's case (supra), in holding that the rights of parties in a case was required to be decided on the date of the suit and, as long as the suit was validly instituted, any change in the law would not affect pending proceedings unless and until the statute, taking away the jurisdiction, was specifically given retrospective effect. 49. In Southern Road Carriers Ltd. v. Atul Kumar Agarwal , a Single Judge of this Court, following the judgments of the Supreme Court in Shyam Charan's case (supra), Smt. Chander Kali Bai v. Jagdish Singh Thakur and Atma Ram Mittal's case (supra), held that the rights of the parties crystallized on the date of institution of the suit, that the provisions of Act 15 of 1960 could not be applied for determining the rights and liabilities of the parties in pending suits and that the rights and liabilities of the parties in the suit were governed by the provisions of the Transfer of Property Act. 50. It is necessary to note that the judgments of the Supreme Court in Mani Subrat Jain's case (supra) and M/s. East India Corporation Ltd. 's case (supra), were not brought to the notice of the Full Bench in G. Anjaneya Prasad's case (supra), or before the Single Judge in Southern Road Carriers's case (supra). Both these decisions were rendered prior to the amended Section 32(c) coming into force from 28-5-2005. Reliance placed on these judgments is, therefore, misplaced. 51. Other statutes are merely external aids to the interpretation of a statute and in order to rely upon the provision contained in a different enactment it has to be shown that the two Acts are similar. Harshad S. Mehta v. The State of Maharashtra . It is not a sound principle of construction to interpret the provisions of one enactment following the decisions rendered under a provision in another enactment when the two statutes are not in pari materia (Babu Khan's case (supra)). In Bharat Petroleum Corporation Ltd. v. N.R. Vairamani , the Landlord filed a writ petition before the Madras High Court contending that since he was not willing for renewal of the lease deed in favour of the tenant, it was liable for eviction. The tenant took the stand that certain benefits under the Madras City Tenants Protection Act, 1921 was available to it. Though reliance was placed by the landlord on the decision of the Supreme Court in Hindustan Petroleum Corporation Ltd. v. Dolly Das , the High Court held that where the landlord had rejected the request for extension, the only remedy available was to take appropriate proceedings to evict the tenant by moving the appropriate Court. It was held that the matter could not have been agitated in the writ petition. The landlord filed a writ appeal and the Division Bench of the Madras High Court came to hold that since no factual controversy was involved, therefore, in the background of what had been said in Hindustan Petroleum Corporation Ltd. 's case (supra), an order of eviction should be passed and accordingly allowed the writ petition. Before the Supreme Court, the appellants contended that in Hindustan Petroleum Corporation Ltd. 's case (supra), there was no provision parallel to either Section 3 or 9 of the Tenants Act and the ratio of the said decision had, therefore, no application. The Supreme Court held: ...As rightly submitted by learned Counsel for the appellants, provisions similar to Sections 3 and 9 of the Tenants Act were not under consideration in Hindustan Petroleum's case (supra). Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of a statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for
Judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton 1951 AC 737 (AC at p.761) Lord MacDermott observed: (All ER p.l4 C-D) The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J., as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished Judge.... In Home Office v. Dorset Yacht Co. (1970) 2 All ER 294 (All ER p.297g-h) Lord Reid said, "Lord Atkin's speech... is not to be treated as if it were a statutory definition. It will require qualification in new circumstances". Megarry, J. in Shepherd Homes Ltd. v. Sandham (No. 2) (1971) 1 WLR 1062 observed : "One must not, of course, construe even a reserved judgment of Russell, L.J. as if it were an Act of Parliament." And, in Herrington v. British Railways Board (1972) 2 WLR 537 Lord Morris said : (All ER p.761c) There is always peril in treating the words of a speech or a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case." Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper. The following words of Lord Denning in the matter of applying precedents have become locus classicus: Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive. xxx Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it.... (emphasis supplied) 52. The expression "tenant", in Section 2(ix) of Act 15 of 1960 includes, by express provision, a tenant whose nexus with the property is of continuance in possession. By contrast reference can usefully be made to Shyam Charan's case (supra) and Smt. Chander Kali Bai's case (supra), both of which arose under the Madhya Pradesh Accommodation Act, 1961. Section 2(1) of the Madhya Pradesh Accommodation Act 1961, reads thus: Tenant means a person by whom or on whose account or behalf the rent of any accommodation is, or, but, for a contract express or implied, would be payable for any accommodation and includes any person occupying the accommodation as a subtenant and also, any person continuing in possession after the termination of his tenancy whether before or after the commencement of this Act; but shall not include any person against whom any order or decree for eviction has been made.
38
53. The definition of a "tenant" in Section 2(1) of the Madhya Pradesh Accommodation Act, 1961 specifically excludes a person against whom any order or decree for eviction has been made. Section 2(ix) of Act 15 of 1960 does not specifically exclude a person against whom an order or decree for eviction has been made. 54. The submission that the effect of the decree results in the person suffering the decree ceasing to be a "tenant", under Act 15 of 1960, does not merit acceptance. As held in Mani Subrat Jain's case (supra), while a decree of eviction may extinguish a tenancy under the general law of contract or of transfer of property, it does not terminate the status of a "tenant" in view of the inclusive clause in Section 2(ix) of Act 15 of 1960. The text of Act 15 of 1960, reinforced by the context, especially Sections 2(ix) and 10(1) thereof, includes persons against whom decrees for eviction might have been passed provided, of course, they continue to remain in possession of the building. It is nobody's case that the appellant-tenants, all of whom have suffered a decree of eviction, have ceased to continue to remain in possession of the buildings. The conclusion is inevitable that they remain "tenants" under Section 2(ix) and enjoy immunity under Section 10(1) of Act 15 of 1960, even after they have suffered a decree of eviction, as long as they continue to remain in possession of the building. The execution proceedings, for eviction of such "tenants", must, therefore, fail because the statutory road-block in Section 10(1) has not been removed. 55. The words "no suit shall be instituted for eviction" in Section 20 of the U.P. Buildings (Regulation of Letting, Rent and Eviction), 1972, which fell for consideration in Om Prakash Gupta's case (supra), and a similar provision in the C.P. and Berar Rent Control Order which came up for consideration in Mansoor Khan's case (supra), would exclude suits, instituted prior to the said provision coming into force, from the applicability of the Act and as a result the rights of parties would crystallize on the date of institution of the suit. Similarly the words, "shall not include any person against whom any order or decree for eviction has been made", included in the definition of a "tenant" under Section 2(1) of the Madhya Pradesh Accommodation Act, 1961, which fell for consideration in Shyam Charan's case (supra) and Smt. Chander Kali Bai's case (supra), would result in persons who have suffered a decree of eviction not being entitled for the protection of the Rent Control Legislation, in which event it could be said that the rights of parties crystallized on a decree of eviction being passed. Section 10(1) of Act 15 of 1960, however, provides that a tenant shall not be evicted "whether in execution of a decree or otherwise". It neither provides that "no suit shall be instituted by the landlord to recover possession" nor that "no order or decree shall be made". Since the protection extended to tenants, under Section 10(1) of Act 15 of 1960, is against their eviction in execution of a decree, the vested rights which the landlord has to evict his tenant under the general law stands abridged to this extent. In view of the protection conferred under Section 10(1) on persons, by whom rent payable for a building is within the limits prescribed under Section 32(c), it cannot be said that the rights which the landlord had on the date of institution of the suit, or on the date of the decree, would entitle him to evict such a person. 56. Accepting the submission, made on behalf of the respondent-landlords, that the vested rights of the landlord crystalise on the date of institution of the suit, would require the words "no suit shall be instituted for eviction" to be read into Act 15 of 1960, and the words "whether in execution of a decree or otherwise" in Section 10(1), to be treated as mere surplussage. Similarly accepting their submission that the Landlord's rights crystalise on the date of the decree, and a person who has suffered a decree of eviction stands excluded from the definition of "tenant" and is not entitled for the protection of Act 15 of 1960, would necessitate the words, "shall not include any person against whom any order or decree for eviction has been made", to be read into the definition of "tenant" in Section 2(ix) of Act 15 of 1960. It is not for Courts to supply words either to Section 2(ix) or any other Section of Act 15 of 1960. It is a cardinal principle of interpretation of statutes that the words of a statute must be understood in their natural, ordinary or popular sense and construed according to their grammatical meaning. (Gurudevdatta VKSSS Maryadit v. State of Maharashtra ). The legislature may be safely presumed to have intended what the words plainly say. Bhaiji v. Sub-Divisional Officer, Thandla . What is to be borne in mind is what has been said in the statute and what has not been said. A construction which requires, for its support, addition or substitution of words or which results in rejection of words, has to be avoided. Gwalior Rayons Silk Mfg. (Wvg.) Co. ltd v. Custodian of Vested Forests , Shyam Kishori Devi v. Patna Municipal
Corporation , A.R. Antulay v. Ramdas Sriniwas Nayak , Dental Council of India v. Hari Prakash , J.P. Bansal v. State of Rajasthan and State of Jharkhand v. Govind Singh . 57. The primary rule of construction is that the intention of the Legislation must be found in the words used by the Legislature itself. The question is not what may be supposed and has been intended but what has been said Unique Butyle Tube Industries Pvt. Ltd. v. Uttar Pradesh Financial Corporation . Courts should not, ordinarily, add words to a statute or read words into it which are not there, especially when a literal reading thereof produces an intelligible result. (Delhi Financial Corporation v. Rajiv Anand ). There is a line, though thin, which separates adjudication from legislation. That line should not be crossed or erased. Courts expound the law, they do not legislate. (State of Kerala v. Mathai Verghese , Union of India v. Deoki Nandan Aggarwal AIR 1992 SC 96). A Judge is not entitled to add something more than what is there in the Statute by way of a supposed intention of the Legislature. (Union of India v. Elphinstone Spinning and Weaving Co. Ltd. ). The legislative casus omissus cannot be supplied by judicial interpretative process. (Maruti Wire Industries Pvt. Ltd. v. S.T.O., I.S.T. Circle, Mattancherry , Govind Singh's case (supra)). 58. No construction which requires the words "whether in execution of a decree", in Section 10(1) of A.P. Act 15 of 1960, to be ignored or construed as inapposite surplusage is permissible. Courts have adhered to the principle that effort should be made to give meaning to each and every word used by the legislature and it is not a sound principle of construction to brush aside words in a statute, as being inapposite surplusage, if they can have a proper application in circumstances conceivable within the contemplation of the statute. (Gurudevdatt's case (supra), Manohar Lal v. Vinesh Anand ). When the legislative intent is found specific mention and expression in the provisions of the Act itself, the same cannot be whittled down or curtailed and rendered nugatory (Bharathidasan University v. All India Council for Technical Education (2001) 8 SCC 676). Effect should be given to all the provisions and a construction that reduces one of the provisions to a "dead letter" must be avoided. (Anwar Hasan Khan's case (supra)). 59. On the question, whether Section 32(c) would apply retrospectively to cases where a decree for eviction has already been passed, it is contended on behalf of the respondent-landlords by Sri D. Prakash Reddy, learned senior Counsel, relying on Motiram 's case (supra) and Shyam Sunder's case (supra), that where the amendment affects vested rights, it would operate prospectively unless it is expressly made retrospective or its retrospective operation follows as a matter of necessary implication, that when the repeal of an enactment is followed by fresh legislation such legislation does not affect substantive rights of parties on the date of institution of the suit or on its adjudication unless such legislation is retrospective, that an appellate Court cannot take into consideration a new law brought into existence after the judgment appealed from has been rendered as the rights of parties in an appeal are determined under the law in force on the date of the suit and that the substantive rights of parties remain unaffected by a subsequent amendment in the enactment. Sri V.S.R. Anjaneyulu, learned Counsel also appearing on behalf of the respondent -landlords, would rely on Dhadi Sahu 's case (supra), to submit that a law which brings about a change in the forum does not affect pending actions unless an intention to the contrary is clearly shown, that the question of change of forum ceases to be a question of procedure, that the forum of appeal is a vested right as opposed to pure procedure to be followed before a particular forum, that the right becomes vested when proceedings are initiated in the Court of first instance and unless the legislature has, by express words or by necessary implication, clearly so indicated, vested rights continue in spite of the change of jurisdiction of different Courts or Forums. 60. On the other hand, Sri Vilas Afzalpurkar, learned senior Counsel appearing for the appellants-tenants, would contend, placing reliance on Ram Sarup v. Munshi , Dayawati v. Inderjit , Lakshmi Narayan Guin's case (supra) and Abhijit Tea Co. Pvt. Ltd. 's case (supra), that it is the duty of the Court, whether it is trying an original proceeding or hearing an appeal, to take notice of the change in law
affecting pending actions and to give effect thereto. 61. It must not be lost sight of that the problem concerning retrospectivity of enactments depends on events occurring over a period. If the enactment comes into force during a period it only operates on event occurring then. 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 a 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 imposition of the tax does not mean that a tax is retrospectively imposed. (Commrs. of Customs and Excise v. Thorn Electrical Industries Ltd. (1975) 1 WLR 1661, Dilip's case (supra)). 62. It is not necessary for us to examine whether or not Section 32(c) is retrospective in its application, to determine the questions referred to us. In the cases before us, the suits were instituted long before the amended Section 32(c) came into force on 28-5-2005. We shall proceed on the premise that Section 32(c) applies prospectively. Section 10(1) of Act 15 of 1960 prohibits eviction of a tenant, whether in execution of a decree or otherwise, subject, of course, to the statutory exceptions prescribed therein. The distinction, between the existence of jurisdiction in the civil Court to pass a decree for execution and the executability of such a decree, must be borne in mine (B.V. Patankar's case (supra)). The point of time when Section 10(1) of Act 15 of 1960 comes into operation is when the decree for eviction is sought to be executed. The amendment operates in future in the sense that it governs cases where a decree is sought to be executed after Section 32(c) came into force on 28-5-2005. As noted above, the definition of a "tenant" under Section 2(ix) includes a person who continues in possession of the building after termination of the tenancy. After 28-5-2005 a person, by whom the rent payable for a building does not exceed Rs. 3,500/- p.m. in areas within Municipal Corporations and Rs. 2,000/- within other areas, comes within the definition of a "tenant" under Section 2(ix) of the Act. Where a decree for eviction is sought to be executed against such a person after 28-5-2005 he, being a "tenant" under Section 2(ix) of Act 15 of 1960, is entitled to claim protection under Section 10(1) of the Act. The legislative command in Section 10(1), in effect, deprives the civil Court of its jurisdiction to evict such a tenant in execution of a decree. It is true that when the decree was passed the Court possessed such jurisdiction, but it was divested of that jurisdiction when the amendment was brought into force with effect from 28-5-2005. None of the cases before us relate to matters where decrees for eviction have already been executed. If a decree for eviction of a tenant of such a building is sought to be executed, after the amendment came into force on 28-5-2005, the amendment applies, and such application must necessarily be characterized as prospective. It would be wrong to characterize the operation of Section 32(c) as retrospective merely for the reason that suits were filed and decrees passed prior to its coming into force on 28-5-2005. Even if Section 32(c) is held to be prospective in its application the amendment applies equally both to appeals pending when the amendment came into force, and to suits filed subsequently, since they both relate to a period prior to the decree being executed. The contention that the operation of amended Section 32(c) is limited to suits filed, and decrees passed, after the amendment must, therefore, fail. 63. Under Section 32(b), as amended by Act 17 of 2005, the provisions of Act 15 of 1960 do not apply to any building, constructed either before or after the commencement of the Act, for a period of fifteen years from the date of completion of construction. This exemption applies to buildings constructed before or after Act 15 of 1960 came into force. The exemption is limited for a period of fifteen years from the date of completion of construction and brings within its fold all buildings irrespective of when they were constructed. The mere fact that the words, "either before or after commencement of the Act" in Clause (b) of Section 32, are absent in Section 32(c), and it is only buildings, the rent of which exceeds the limits prescribed as on the date of commencement of the Amendment Act, which are exempted from the provisions of the Act, is of no consequence. Only buildings, the rent of which exceeds the prescribed limits as on the date of commencement of the Amendment Act 17 of 2005 i.e., on 28-5-2005, are exempted from the provisions of the Act. In all the cases before us the rent of the buildings, on or after the date of commencement of the amendment Act i.e., on 28-5-2005, is below the limits prescribed fore being exempted from the provisions of the Act. These buildings are not exempted from the provisions of Act 15 of 1960 from 28-5-2005 onwards, and the tenants of such buildings are, therefore, entitled to claim protection of Act 15 of 1960.
64. It is only in respect of a "building", as defined in Clause (iii) of Section 2, that a person, by whom rent is payable, is defined to mean a "tenant" under Clause (ix) of Section 2. The identity of a "tenant", and the protection extended to him under Act 15 of 1960, is intrinsically linked to the "building". The contention that the rental value of the building, on the date of institution of the suit, is alone applicable and not the enhanced rent prescribed by an amendment subsequent thereto, does not merit acceptance. The protection extended to a tenant against his beipg evicted from the building, under Section 10(1) of Act 15 of 1960, comes into operation when a decree for eviction is sought to be executed. It is with reference to this date, when the decree for eviction is sought to be executed, that it has be determined whether or not the person, who has suffered a decree for eviction, is a "tenant". If, on that date, he comes within the definition of a "tenant", under Section 2(ix) of Act 15 of 1960, he cannot be evicted in the execution of a decree. Since Section 32(c) came into force with effect from 28-5-2005 persons, by whom rent payable for a "building" does not exceed the limits prescribed therein for being exempted from the provisions of the Act, would fall within the definition of a "tenant" under Section 2(ix) of Act 15 of 1960 and would be entitled for the protection of Act 15 of 1960 from 28-5-2005 onwards. Such tenants cannot be evicted in the execution of a decree. The rental value of the building has to be reckoned not on the date of institution of the suit or on the date of the decree but on the date on which decree is sought to be executed. 65. While Section 10(1) prohibits eviction of a tenant by execution of a decree, Act 15 of 1960 does not specifically prohibit a decree of eviction being passed by the civil Court. Act 15 of 1960 is a self-contained code regulating the relationship of parties, creating special rights and liabilities, providing for determination of such rights and liabilities by the tribunals constituted thereunder and whose orders are endowed with finality. The provisions of the Act are complete in regard to the finality of the orders passed by the special tribunals set up under it, and their competence to administer the same remedy as the civil Courts render in civil suits. Such tribunals, having been constituted to act in conformity with the fundamental principles of judicial procedure, the clear intent of the legislature is that all questions relating to the special rights and liabilities created by the Act should be decided by the Tribunals constituted under it. The provisions of Act 15 of 1960 are similar to those in the Tamilnadu Buildings (Lease and Rent) Control Act. As held in M/s. East India Corporation Ltd.'s case (supra), while interpreting the provisions of the Tamilnadu Act, although the jurisdiction of the civil Court is not expressly barred, the provisions of Act 15 of 1960 show that such jurisdiction is impliedly barred, except to the limited extent specially provided for by the Act itself. The civil Court, after the amended Section 32(c) came into force from 28-5-2005, must be held to have become coram non-judice in respect of buildings, the rent of which falls within the limits stipulated under Section 32(c) to come within the statutory ambit of Act 15 of 1960, and its proceedings resulting in the decree a nullity. 66. It is well settled that when a trial Court decrees a suit and the decree is challenged by a competent appeal, the appeal is in continuation of the suit, and when the appellate decree affirms, modifies or reverses the decree on merits, the trial Court decree is said in law to merge in the appellate decree and it is the appellate decree which rules. (Lakshmi Narayan Guin's case (supra), Dilip's case (supra)). The object of Sub-section (1) of Section 10 is to protect the possession of the "tenant", subject to the conditions specified in the section, and that protection ensures that, subject to those exceptions, no decree can be executed by the civil Court in a landlord's suit for possession against a tenant. An appeal is in continuation of the suit and an appeal, arising from a suit which was decided before the amendment came into force, would be governed by the amendment provided, of course, the original or the appellate decree has not been executed by the date the amendment came into force. (Rafiquennessa's case (supra)). Section 10(1) of Act 15 of 1960 can be invoked by such a tenant during the pendency of an appeal against a trial Court decree, since the decree of the trial Court has not, as yet, been executed. If the legislature had intended that the protection of the amended Section 32(c) ought not to be extended to pending suits or appeals it would have been easy for it to say that the tenant shall not be sued in ejectment or that no order or decree for eviction shall be made against him. (Rafiquennessa's case (supra)). The language of Section 10(1), therefore, applies equally to appeals pending on 28-5-2005 when the amended Section 32(c) came into force. (S.B.K. Oil Mills's case (supra)). The result is that, even if at the time of the institution of the suit, or when a decree for eviction was passed, the amended Section 32(c) was not in force but was introduced during the pendency of the appeal, such a tenant in appeal becomes entitled to the
protection of Act 15 of 1960, more particularly Section 10(1) thereof, and the appellate Court divested of its jurisdiction to pass a decree for eviction. (Dilip's case (supra)). 67. It is true that extending the protection of amended Section 32(c), to cases where decrees for eviction or recovery of possession have already been passed and appeal/revisions are pending thereagainst, would inevitably result in all pending actions, in which landlords have applied for possession of their buildings let out to tenants, being set at naught on the ground that the civil Court lacks inherent jurisdiction to try the suits or entertain petitions for execution of decrees. In this context, it is well to remember yet another rule of construction that, when the words of the statute are clear, plain and unambiguous, Courts are bound to give effect to that meaning, irrespective of the consequences. (Guruddevdatta's case (supra)). We answer the reference, declaring that: (i) with effect from 28-5-2005, when the amended Section 32(c) came into force, persons, by whom rent payable for a building does not exceed Rs. 3,500/- p.m. within Municipal Corporations of the State and does not exceed Rs. 2,000/- p.m. in other areas, would come within the definition of "tenant" under Section 2(ix) of Act 15 of 1960. (ii) even if such persons have suffered a decree for eviction prior thereto, they are entitled for the protection of Act 15 of 1960 provided they continue in possession of the building. (iii) after 28-5-2005, such tenants cannot be evicted in execution of a decree in view of the protection conferred on them by Section 10(1) of Act 15 of 1960. (iv) after the amended Section 32(c) came into force, with effect from 28-5-2005, the civil Court must be held to have become coram non-judice, not to have jurisdiction to pass a decree of eviction in respect of buildings the rent of which in areas within Municipal Corporations of the State does not exceed Rs. 3,500/- p.m. and in other areas not exceeding Rs. 2,000/- p.m. and its proceedings, resulting in the decree, a nullity. (v) even if at the time of institution of the suit, or when a decree for eviction was passed, the amended Section 32(c) was not in force, but was introduced during the pendency of the appeal a tenant, who continues to remain in possession of a building whose rent is below the limits prescribed in the amended Section 32(c), for being exempted from the provisions of the Act, is entitled for the protection of Act 15 of 1960, more particularly Section 10(1) thereof, and the appellate Court is divested of its jurisdiction to pass a decree of eviction.
43

Ramvilas Bajaj Vs Ashok Kumar and Anr. On 30 April, 2007

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Ramvilas Bajaj Vs Ashok Kumar and Anr. On 30 April, 2007

Uploaded by

Copyright:

Available Formats

Ramvilas Bajaj vs Ashok Kumar And Anr.

Ramvilas Bajaj vs Ashok Kumar And Anr. on 30 April, 2007

Ramvilas Bajaj vs Ashok Kumar And Anr. on 30 April, 2007

Ramvilas Bajaj vs Ashok Kumar And Anr. on 30 April, 2007

Ramvilas Bajaj vs Ashok Kumar And Anr. on 30 April, 2007

Ramvilas Bajaj vs Ashok Kumar And Anr. on 30 April, 2007

Ramvilas Bajaj vs Ashok Kumar And Anr. on 30 April, 2007

Ramvilas Bajaj vs Ashok Kumar And Anr. on 30 April, 2007

Ramvilas Bajaj vs Ashok Kumar And Anr. on 30 April, 2007

Ramvilas Bajaj vs Ashok Kumar And Anr. on 30 April, 2007

Ramvilas Bajaj vs Ashok Kumar And Anr. on 30 April, 2007

Ramvilas Bajaj vs Ashok Kumar And Anr. on 30 April, 2007

Ramvilas Bajaj vs Ashok Kumar And Anr. on 30 April, 2007

Ramvilas Bajaj vs Ashok Kumar And Anr. on 30 April, 2007

Indian Kanoon - http://indiankanoon.org/doc/889034/

Ramvilas Bajaj vs Ashok Kumar And Anr. on 30 April, 2007

Ramvilas Bajaj vs Ashok Kumar And Anr. on 30 April, 2007

Ramvilas Bajaj vs Ashok Kumar And Anr. on 30 April, 2007

Ramvilas Bajaj vs Ashok Kumar And Anr. on 30 April, 2007

Ramvilas Bajaj vs Ashok Kumar And Anr. on 30 April, 2007

Ramvilas Bajaj vs Ashok Kumar And Anr. on 30 April, 2007

Ramvilas Bajaj vs Ashok Kumar And Anr. on 30 April, 2007

Ramvilas Bajaj vs Ashok Kumar And Anr. on 30 April, 2007

Ramvilas Bajaj vs Ashok Kumar And Anr. on 30 April, 2007

Ramvilas Bajaj vs Ashok Kumar And Anr. on 30 April, 2007

Ramvilas Bajaj vs Ashok Kumar And Anr. on 30 April, 2007

Ramvilas Bajaj vs Ashok Kumar And Anr. on 30 April, 2007

Ramvilas Bajaj vs Ashok Kumar And Anr. on 30 April, 2007

Ramvilas Bajaj vs Ashok Kumar And Anr. on 30 April, 2007

Ramvilas Bajaj vs Ashok Kumar And Anr. on 30 April, 2007

Ramvilas Bajaj vs Ashok Kumar And Anr. on 30 April, 2007

Ramvilas Bajaj vs Ashok Kumar And Anr. on 30 April, 2007

Ramvilas Bajaj vs Ashok Kumar And Anr. on 30 April, 2007

Ramvilas Bajaj vs Ashok Kumar And Anr. on 30 April, 2007

Ramvilas Bajaj vs Ashok Kumar And Anr. on 30 April, 2007

Ramvilas Bajaj vs Ashok Kumar And Anr. on 30 April, 2007

Indian Kanoon - http://indiankanoon.org/doc/889034/

Ramvilas Bajaj vs Ashok Kumar And Anr. on 30 April, 2007

Indian Kanoon - http://indiankanoon.org/doc/889034/

Ramvilas Bajaj vs Ashok Kumar And Anr. on 30 April, 2007

Ramvilas Bajaj vs Ashok Kumar And Anr. on 30 April, 2007

Indian Kanoon - http://indiankanoon.org/doc/889034/

Ramvilas Bajaj vs Ashok Kumar And Anr. on 30 April, 2007

Ramvilas Bajaj vs Ashok Kumar And Anr. on 30 April, 2007

Ramvilas Bajaj vs Ashok Kumar And Anr. on 30 April, 2007

Ramvilas Bajaj vs Ashok Kumar And Anr. on 30 April, 2007

Ramvilas Bajaj vs Ashok Kumar And Anr. on 30 April, 2007

Indian Kanoon - http://indiankanoon.org/doc/889034/

You might also like