Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subbash Chandra Yograj Sinha

Judgment

· "Were the evacuee to come back he could demand to take possession of the siteJ and so it cannot be G kh R said that the right has ceased to exist. The right 01 ;, am _ ceases only if the ocqupier leaves the village permacustodian General nently with no intention of returning, ... " of India, Delhi It was nobody's case that Fakira and his son had left Raghubar the village temporarily and were to return. lt was Dayal ;. said in paragraph 5 of the written statement of respondents 1 to 3 that Fakira abandoned the house only in 194 7 at the time of partition. The entire case was that Fakira had migrated to Pakistan and had abandoned the village. We are therefore of opinion that Fakira did not possess any such right in the land in -suit which could vest in the Custodian and that therefore the property in suit is not 'evacuee property'.

We therefore allow the appeal with costs throughout and, setting aside the order of the Court below, allow the petition and quash the order of the Custodian General dated June 17, 1952, declaring the property in suit to be evacuee property. Appeal allowed. SHAH BHOJRAJ KUVEI~JI.OIL MILLS AND GINNING FACTORY SUBBASH CHANDRA YOGRAJ SINHA (S. K. DAs, J. L. KAPUR, M. HIDA YATULLAH, J. C. SHAH and T. L. VENKATARAMA AIYAR, JJ.) Rent Control-Landlord's right to recover possession-Statutory bar-If prospective or retrospective in operation- Bombay Rents, Hotel and Lodging House RattJs Control Act, 1947 (Bom. 57 of 1947), ss. 6, 12(1). On the expiry vf the appellant's tenancy for the occupation of the premises-in dispute, the respondent who was the landlord filed a suit for possession of the premises. Meanwhile under s. 6 of the Bombay Rents, Hotel and Lodging House Rates Control Ig6I ti962]

I96r Act, 1947, a notification was issued applying Part II of the Act to the area where the property was situated. The appellants Shah Bhoj1aj claimed protection of s. 12, Part II of the Act, which deprived Kuve1ji Oil Mills the landlord of the right of possession under certain circum- & Ginning Factrry stances. The Court of first instance decided the suit against the appellant and the High Court ruled that s. 12 was prospective Subbash Chandra in character and did not apply to pending suits or proceedings. Yograj Sinha On appeal by special leave Held, that the point of time when sub-s. (r) of s. !2 operates is when the decree for recovery of possession has to be passed.

The language of the sub-section which provides that the landlord is not entitled to recover possession if the tenant pays or shows his willingness to pay the standard rent and to observe the other conditions of the tenancy is such that it applies equa11y to suits pending when Part Ir. comes into force and those to be filed sub.jeq uen.tly and is not limited only to suits filed after the Act comes into force in a particular area. A section may be prospective in one part and retrospective in another .part. Sub-sections (2) and (3) of s. 12 were clearly prospective but the words of the first sub-section showed retrospective operation. Nilkanth Ram Chandra v. Rasiklal, (1949) 51 Born. L.R. 280 and Chandra Singh M anibhai v. Surjitlal Sudhamal Chhabda, [1951] S.C.R. 221, distinguished. Rhonda Urban Council v. Taff Vale Railway, [1909] A.C. 253, Mullins v. Treasury of Surrey, (r88o) 5 Q.B.D. 170 and Fitzgerald v. Champne:ys, (1861) 70 E.R. 958, referred to. CIVIL APPELLATE JuRISDICTION:

Civil Appeal No. 49 of 1961. Appeal by special leave from the judgment and order dated August II, 1960, of the Bombay High Court in Civil Revision Application No. 320 of 1959. M. C. Setalvad, AttorneywGeneral for India, Rameshwar Nath, S. iV. Andley and P. L. Vohra, for the appellants. C. ]{. Daphtary, Solicitor-General of India, Naushir Barucha and ]{, R. Choudhuri, for the respondent. 1961. April 21. The Judgment of the Court was delivered by Hidayatullah ]. HIDAYATULLA.H, J.-This is a tenant's appeal, with the special leave of this Court, against an order of Naik, J., of the High Court of Bombay in Civil Revision Application No. 320 of 1959, by which he r disallowed certain rale&s raised by the appellants. The 196I res0 pon 8 dent isbthe andlord. 11 Shah Bhojraj n eptem er 11, 1942, the appe aD;ts a exe.cute Kuverji Oil Mills a rent note, under which they were In occupatiOn of 0- Ginning Factory the premises in dispute.

The period of the tenancy was 15 years, and it expired by efflux of time on Subbash Chandra March 14, 1957. The landlord thereupon filed a snit Yograj Sinha on April 25, 1957, for possession of the premises, in l-iidayatullah J. the Court of the Joint Civil Judge (Junior l)ivision), Erandol. Meanwhile, under s. 6 of the Bombay Re~ts, Hotel and Lodging House Rates Control Act., 1947, (to be called the Act, in this judgment), a notification was issued, applying Part II of the Act to the area where the property is situated. The appellants claimed protection of s. 12 in Part II of the Act, which deprived the landlord of the right of possession under certain circumstances. The Civil Judge framed three preliminary Issues, which were as follows: "

1Whether this Court has jurisdiction to try the suit?

2Whet}:ler the plaintiff's suit for possession of the suib property is maintainable in view of the Notification issued by the Government of Bombay on 16th August, 1958, applying Part II of the Bombay Rents, Hotel and Lodging House Rates Control Act? If not, what order should be passed?

3What order?". These Issues were decided against the appellants. They filed a revision petition before the High Court of Bombay, which was dismissed by the order under appeal. Naik, J., who heard the revision, followed a previous Full Bench ruling of the Bombay High Court reported in N ilkanth Ramachandra v. Rasiklal (1). In that case, Chagla, C. J. (Gajendragadkar and Tendolkar, JJ., concurring) had held that s. 12 of the Act was prospective and did not apply to pending cases. Reliance was also placed by N aik, J ., on the decision of this Court in Ohandrasingh Manibhai v. Surjit Lal Sadhamal Chhabda (2), where the opinion of the Full Bene~ of the Bombay High Court was approved.- (r) (1949) 51 Born. L.R. z8o. (2) [1951] S.C.R. 221. [1962] I96I Two questions have been raised in this appeal, and Sh h nh . . they are (1) whether by virtue of the first proviso to Kuve:ji oi?;;~lls ~· 50 of the Act; all the provisions of Pa~t II includM &-Ginning Factory 1ng s.

12 were not expressly made applicable to all suits; and (2) whether by virtue of s. 12(1) of the Act, Su&uash. Ch~ndra which applied independently by the extension of the Yogra; Smha Act to the area where the property is situate, the suit Hidayatullah J. was not rendered incompetent and the landlord deprived of his remedy of possession. Before we deal with these contentions, it is neces· sary to see some of the relevant provisions of this Act. The Act was not the first to be passed ontthe subject of control of houses, etc. Pre-yiously, there were two other Acts in force in the State of Bombay, viz., the Bombay Rent Restriction Act, 1939 and the Bombay Rents, Hotel Rates and Lodging House Rates (Control) Act, 1944. By s. 50 of the Act, these Acts were repealed.

The first proviso, however, enacted (omitting unnecessary parts)~ "Provided that all suits and proceedings between a landlord and a tenant relating to the recovery or fixing of rent or possession of any premises to which the provisions of Part II apply ............ which are pending in any Court, shall be transferred to and continued before the Courts which would have jurisdiction to try· such suits or proceedings under this Act or shalJ be continued in such Courts, as the case may be, and all the provisions of this Act and the rules made thereunder shall apply to all such suits and proceedings." It is this proviso which, it is claimed, has retrospective effect and s. 12 of the Act which is in Part II is said to apply to all pending cases, whenever the Act is extended to freRh areas. Section 12 of the Act reads as follows: "12. (I)

A landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay, the amount of the standard rent and permitted increa~ ses, if any, and observes and p(jrforms the other conditions of the tenancy, in so far as they are con· sistent with the provisions of this Act. (2} No suit for recovery of possession shall be instituted by a landlord against a tenant on the Shah Bhojraj groun o non-payment o t e stan ar rent or K .. 0 ., M"ll uver;t permitted Increases due, unttl the exptration of one Q>. Ginning Factory month next after notice in writing of the demand of the standard rent or permitted increases has Subbash Chandra been served upon the tenant in the 1nanner pro- YograJ Sinha vided in section 106 of the Transfer of Property a· --~, 1 Act, 1882. 1dayatu ah (3) (a)

Where the rent is payable by the month and there is no dispute regarding the amount of standard rent or permitted increases, if such rent or increases are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub-section (2), the Court may pass a decree for eviction in any such suit for recovery of possession. (b) In any other case, no decree for eviction shall be passed in any such suit if, on the first day of hearing of the snit or on or before such other date as the Court may fix, the tenant pays or tenders in Court the standard rent and permitted increases then due and thereafter continues to pay or tender in Court regularly such rent and permitted increa. ses till the suit is finally decided and also pays costs of the suit as directed by the Court. (4)

Pending disposal of any such suit, the Court may out of any amount paid or tendered by the tenant pay to the landlord such amount towards payment of rent or permitted increases due to him as the Court thinks fit. Explanation.-In any caRe where there is a dis. pute as to the amour..t of standard rent or permitted increases recoverable under this Act the tenant shall be deemed to be ready and willing to pay such amount if, before the expiry of the period of one month after notice referred to in sub-section (2), he makes an application to the Court under sub-section (3)· of section II a.nd thereafter pays or tenders the amount of rent or permitted increases specified in the order made by the Court." [1962] r961 By sub-sa.

(1) and (2) of the second section, which 5 ). h Bh . . dealt with the extent of the application of the Act, it o;ra' 'd d h p I d IV f th A t h II Kuvsrji Oil Mills was prov1 e t at arts . an, o e c s a ~Ginning Factory extend to the pre-Reorgan1satwn State of Bombay, excluding transferred territories, and Parts II and III Subbash. Ch~ndra shall extend respectively to the areas specified in YograJ s~nha Scbs. I and II to the Act, and shall continue to extend Hidayatullah J. tod anybsucfh hareda, no~wi.thstahndi~g that.6 thde areBa ceabse to e o t e escr1ptwn t ere1n spem e . y su . s. (3}, the State Government was authorised, by notification in the Official Gazette, to extend to any other area, any or all the provisions of Part II or Part III or of both. It would appear from this that Parts I and IV came into operation throughout the territories of the pre-Reorganisation State of Bombay.

Part II came to bf3 extended to this area by the notification, and after that extension, Part-s I, II and IV of the Act began to apply, while the suit was pending. We are not concerned in this appeal with Part III. The contention on behalf of the appellants is that by the latter part of the proviso to s. 50, relevant portions of which have been quoted earlier, all the provisions of Part II were extended to this area, and that all pending suits and proceedings were governed, no matter when filed. The notification extending Part II of the Act to this area had, it is contended, also the same effect independently of the first proviso to s. 50. It is contended, therefore, that sub-s. (1) of s.

12, which prohibits a landlord from recovering possession of any premises so long as the tenant pays or is ready and willing to pay the amount of the standard rent and permitted increases, if any, and is also observing the other conditions of the tenancy in so far as they are not inconsistent with the provisions of the Act, applies to the present case and the tenants are protected. It is also contended that if the first proviso to s. 50 was limited to such suits only as were pending on the date of the passing of the Act, s. 12(1), on its own terms, is applicable to the present case, and being retrospective in character, lea.ds to the same result. These two contentions were apparently-raised in the Court of the Civil Judge and before the High Court. The High Court, however, ruled that s. 12 was I961 prospective in character and did not apply to pending Shah Bhojraj suits or proceedings.

Kuverji Oil Milis It is contended by the learned Attorney.General & Ginning Faetory what the construction placed by the High Court upon v the first proviso to s. 50 is erroneous. Though he Subbash Cnandn~ concedes that the proviso must be read as qualifying Yograj Sinha what the substantive part of s. 50 enacts, he urges that Hidayatullah 1. the proviso goes beyond that purpose and enacts a substantive law of its own. He relies upon the following observations of Lord Loreburn, L. C., in Rhondda Urban Council v. Taff Vale Railway (1), where a proviso to s. 51 of the Railway Cla.uses Consolidation Act, 1845, was under consideration: "It is true that s. 51 is framed as a proviso upon preceding sections.

But it is also true that the latter half of it, though in form a proviso, is in substance a fresh enactment, adding to• and not merely qualifying that which goes before.", and contends that the latter portion of the proviso, in question, being a substantive enactment, compre. hends not only those suits which were pending on the date of repeal but also those cases, which came within the language of the latter part of the proviso, whenever the Act was extended to new areas. On behalf of the landlord, the learned Solicitor-General a1·gues that the pro-viso should be read as a proviso only to the substantive enactment, and must be taken to qualify the substantive portion of s. 50 only to the extent to which it makes an exception to the repeal and but for the proviso would be governed by the repealed Acts. He relies upon Craies on Statute Law, 5th Edn., pp. 201-202, where the following passage occurs:

"The effect of an excepting or qualifying proviso, according to the ordinary rules of construction, is to ~xcept out of the preceding portion of the enactment, or to qualify something enacted therein, which but for the proviso would be within it: and such a proviso r.annot be construed as enlarging thA scope of an enactment wht\Jl it can be fairly and (r} (1909) A.C. 253. 258. [1962] z96 properly construed without attributing to it that effect." K~:,:;i ~~;J;;~lls He also. relies _upon the following obser;ations of &Ginninz Factory Lush, J., In Mulltn.s v. Treasurer of Surrey ( ): "When one finds a proviso to a section, the Subbash Chandra natural presumption is that, but for the proviso, the Yograj Sinha e·nacting pat't of the section would have included Hidayatullah f. the subject-matter of the proviso.,' The law with regard to provisos is well-settled and well-understood.

As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment, and ordinarily, ·a proviso is not interpreted as stating a general rule. But, provisos are often added not as exceptions or qualifications to the main enactment but as savings clauses, in which cases they will not be construed as controlled by the section. The proviso which has been added to s. 50 of the Act deals with the effect of repeal. The sn bstantive part of the sec~ tion repealed two Acts which were in force in the St,ate of Bombay. If nothing more had been said, s. 7 of the Bombay Gcrwral Clauses Act would have applied, and all pending suits and proceedings would have continued under t.he old law, as if the repealing Act had not been passed. The effect of the proviso was to take the matter out of s. 7 of tho Bombay General Clauses Act and to provide for a special saving. It cannot be used to decide 'vhether s. 12 of tho Act is retrospective.

It was observed. by Wood, V. C., in Fitzgerald v. Champneys(2} that saving clauses are seldom used t.o construe Acts. These clauses are introduced into Acts which repeal others, to safeguard rights which, but for the savingf;, would be lost. Tho proviso here saves pending suits and proceedings, and furthur enacts that suits and proceedings then pending arc t.o be transferred to the Courts designated in the Act and an~ to continue under the Act and any or all the provisions of the Act are to apply to them. The learned Solicitor-General contends that the savings clause enacted by the proviso, even if treated as su~stantive law, must be taken to (t) (t88o) 5 Q.B.D. 170, 173 (2) (t86t) 2 J. & H. 31: 70 E .R. 958. 2 S.C.R. SUPRE~IE COUl"tT REPOHTS apply onJy to snits anrl proceedings pending at the x96x tiu1e of the repeal w hi'ch~ but for the p1·oviso, would Sh h 8 , . 1 th ''OJraJ be governe y t 1~ ct rcpcn. e~_. ~cor 1ng .to .e l\uverji Oil Mills learned Attorney -Genera.

I, t.lw effect of t.he savings 18 & Ginning Factory much widm·, and. it applie-s t.o such cases as come \\·ithio the 'vords of the proviso, whenever t.he Act is Sttubash Chat•dra extended to new a·reas. Yogtaj Sinha These argun1eut.~ n.re interesting, nnd much can be Tlidayatullah J. said on both sidrs, particularly ~s the Legislature has by a subsequent. an1endtncnt changed the proviso. But2 in our opinion, they need noL be considered in this caso, in view of what we have d~cided on the second point. The second contention urgod by t.he learned Attorney-General t.hat s. 12(1) applied from the date on which the Act ~was extended to t.he area. in question is, in our opinion,. sound. Section 12( 1) enacts a rule of decision, and it su.ys that a landlord is not entitled to po~session if the tenant pays or shows his readiness and willingness to pay the st-andard rent and to observe the other conditions of the 'tenancy.

Tl}e word "tenant" is defined in the Act to include not only ·a tenant, 'vhose ten~ncy subsists• but also any person remaining, after the determination of the lease, in possession with OJ.' without ·the assent of the landlord. The present app~llants, as statutory tenants, were within tho rule enacted by s. 12(1) and entitled to its protection, if the sub-section could be held applicable to this 'suit. Both the Bombay High Court and' this Court bad, on the previous occasiun~, observed that s. 12 of the Act was p.rospective. ln those. cases, the learned Judges were concerned with the interpretation of subss. (2) and (3) only, whieh, a.s the words of those subsections thou existing sl)ow, were·cleariy prospective, a.nrl were applicable .f.o suit.s to ·be instituted after the comiug into force of tlw Act.

J3ut a section may he pro~pectiye in some pa.rt.s n.nd retrospective in ot.her parts. \ V hile it is the ordinary .. rule that suust~ntiv~ rights should not be held to be taken a wa.y except by express provision or clear implication, man}' Acts, though. proapective in form, HiS SUPR~ME COURT REPORTS (1962] I96I have been given retrospective operation, if the in· tention of the legislature is apparent. This is more Shah Bhojt'aj bl" KuTnrji 011 Mills so, w e~ cts are passe o p_rotec t e pu w against ~Ginning Factory some evil or abuse. (See Crates on Statute Law, 5th Edn., p. 365). The sub-section says that a landlord Subbash Chandra shall not be entitled to the recovery of possession of Yograj Sinha any premises so long as the tenant pays or is ready H .d , 11 h 1 and willing to pay the standard rent etc., and obser. 1 aya u a d' · ves an per1orms t e ot er con 1t10ns o t e tenancy.

In other words, no decree can be passed granting possession to the landlord, if the tenant fulfils the conditions above mentioned. The Explanation to s. 12 makes it clear that the tenant in case of a dispute may make an application to the Court under sub-s. (3) of s. 11 for fixation of a standard rent and may thereafter pay or tender the amount of rent or permitted increases specified in the order t.o be made by the Court. The tenants; in the present case, have expressed their readiness and willingness to pay, and it is clear that they fulfil the requirements of sub~s. (I) of s. 12, and the landlord is, therefore, not entitled to the relief of possession. Both the High Court as well as this Court in their previous decisions, referred to above, were not called upon to interpret sub*s. (1) of the Act. They were dealing with appeals arising out of decrees already passed. The observations that s.

12 was prospective were made with reference to sub-ss. {2) and (3) and not with respect to sub-s. (1), which did not even find a mention in those judgments. The question then wa.s whether s. 12 by itself or read with the proviso to s. 50 was applicable retrospectively to appeals. Tha.t is not the question which has arisen here. Then again, s. 12( l) enacts that the landlord shall not be entitled to recover possession, not "no suit shall be instituted by the landlord to recover possession". The point of time when the sub-section will operate is when the decree for recovery of possession would have to be passed. Thus, the language of the sub-section applies equally to suits pending when Par~ II comes into force and those to be filed subsequently. The contention of the respondent that the operation of s. 12(1) is limited to suits filed after the Act comes into force· 1 961 in a particular area cannot be accepted. The conclu- ... h 1 l"~ .

1 ~ u 1 JiiOJtaJ s1on must o1 ow t 1at the present SUlli cn.nnot e- 11·uverji Oil Mills creed in favour of the respondent. The decision!:! of & Gim1ing Factory the High Court and the Court of First Instance are thus erroneous, and must be set aside. · Subbaslt CJiandra In the result, the appeal is allowed, and the two Yograj Sinha preliminary Issues are answered in favonr of the Hidayatullah 1. appellants. Under the orders of this Court, the judgment of the Civil Judge was stayed. The suit will now be decided in conformity with our judgment. The respondent shall pay the costs of this Court and of the High Court. Appeal allowed. P. J. IRANI THE STATE OF MADRAS (B. P. SINHA, C. J., S. I{. Das, A. IC SaRKAR, N. RAJAGOPALA AYYANGAR and J. R. MunHOLKAR, JJ.)

Rent Control-Restrictions on evictio1l--Statute empJwering Government to exemp~ any premises from restrictions -C onstitutionality-Order exempting premises-Validity-When can be challenged-Practice, whether respondent can raise questiot~ decided against Mm~M adras Buildings (Lease and Rent Control) Act, I949 (Mad. XXV of I949L s. IJ-Constitution of India. Art. I4. One C had obtained a lease of a cinema house which was to expire in May 1942. In the m~.::antime litigation ensuerl. between the owners of the cinema house, and the High Court appointed receivers to administer the property. In 1940 one I offered to take a lease of the cinema house for zr years. The High Court offered C the option of taking the lease for 2 r years but C was willing to take it only for 7 years upto May 1947· Thereupon the High Court ordered that a lease be given to C upto May 1947, and thereafter the lease be given to I upto May rg6r.

In accordance with this order the receivers executed two leases, one in favour of C and a reversionary lease in favour of ~. Before the lease in favour of C expired the Madras (Lease & Rent Control) Act, 1946, came into force which protected tenants in 2l April 21.