Monday 7 May 2018

Whether it is necessary to issue quit notice as per S 106 of transfer of property Act in case of exempted premises?

It is well-settled that when an eviction of a tenant is sought for in terms of the provisions of the Rent Legislation in force in the State, the procedure for the purpose of eviction of such tenant being specifically provided under such rent legislation itself, there is no need to take resort to the provisions of the general law i.e., the Transfer of Property Act and therefore the question of service of notice under Section 106 of the Transfer of Property Act in such cases does not arise. However, that is not the case in hand. Once the provisions of the new Rent Act are being exempted from their applicability to the premises in occupation of the petitioners, or the protection under the new Rent Act is being made as not available to the petitioners, nevertheless, the character or status acquired by the petitioners as the deemed tenant continues, the lessor or lessee relationship continues to exist between the parties and therefore unless the same is put to an end by the procedure known to law, i.e., by taking resort to the provisions of the Transfer of Property Act, it cannot be said that the petitioners can be evicted from the suit premises. Admittedly, in the case in hand, the petitioners have not been served wit any notice of termination of tenancy as is otherwise required under Section 106 of the Transfer of Property Act and therefore the suit filed without termination of tenancy of the petitioners cannot entitle the respondents to evict the petitioners from the suit premises.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 469 of 2003

Decided On: 26.02.2003

 Hindustan Ferrodo Ltd. Vs. Hari Lachman Hasija

Hon'ble Judges/Coram:
R.M.S. Khandeparkar, J.

Citation: 2003(4) MHLJ 50,2003(5) BOM CR790, 2003(3) ALLMR 201



1. Heard the learned Advocates for the parties. Rule. By consent, the rule is made returnable for the with.

2. The petitioners are challenging the judgment and order dated 2-5-2002 passed by the Appellate Bench of the Small Causes Court at Mumbai in Appeal No. 600 of 2001 whereby the appeal filed by the petitioners against the order of the trial Court has been dismissed. The trial Court by its judgment and order dated 28-8-2001 had decreed the suit filed by the respondents and had directed the petitioners to deliver vacant and peaceful possession of the suit premises, comprising of Flat No. 7, situated on the 4th floor in a building known as Kalpataru Apartments Co-operative Housing Society Limited, 39th Peddar Road, Mumbai-400026. The said decree was passed in a suit filed by the respondents on the ground that under the agreement of leave and licence dated 11-8-1970, the petitioners were allowed to occupy the suit premises in consideration of compensation to the extent of Rs. 1250/- per month, in addition to Rs. 100/ per month for the use of the garage. The said licence was for a temporary period and on expiry thereof there was repeated demand for vacant possession of the suit premises by the respondents. However, the petitioners continued to occupy the same. Meanwhile, a new Section 15A was inserted in the Bombay Rents, Hotels and Lodging Houses Rates (Control) Act, 1947, hereinafter referred to as "the old Rent Act" and under the said Section 15A of the old Rent Act, a status of deemed tenancy came to be granted to the licensees who were in occupation of the premises to the licensees who were in occupation of the premises on or before 1-2-1973 and consequently the petitioners claimed protection under the Old Rent Act. However, with effect from 31-3-2000 the Maharashtra Rent Control Act, 1999, hereinafter called "the new Rent Act" came into force in terms of Section 58 of the new Rent Act, the old Rent Act was repealed without specific provision specifying the reservation of any right that might had accrued in favour of any person under the old Rent Act. Besides, in terms of Section 3(1)(b), the provisions of the new Rent Act were not made applicable to any premises let out or sub-let to the banks or the corporations established under the Act, private limited companies as well as public limited companies having paid up share capital of rupees one crore or above and the petitioners being undisputedly a public limited company, having paid up share capital of more than rupees one crore, the provisions of the Rent Act are not applicable to the suit premises and therefore contending that the petitioners have lost the status of deemed tenancy, which was granted to the petitioners under the old Rent Act consequent to its repeal without saving any right in that regard, the petitioners have regained the status of licensee and the appropriate notice for vacating the premises and termination of licence was issued to the petitioners by the respondents and that therefore sought eviction of the petitioners on account of non-compliance of the said notice. The claim of the respondents was contested by the petitioners mainly contending that irrespective of the repeal of the old Rent Act and non-availability of the protection under the new Rent Act, the petitioners still continue to be the deemed tenant and therefore without terminating the tenancy of the petitioners by following the procedure known to law, no action for the eviction of the petitioners from the suit premises can lie in any Court and therefore the petitioners cannot be evicted and for the same reason the order of eviction would be bad. The trial Court rejected the contention of the petitioners and decreed the suit and the same has been confirmed by the lower Appellate Court. Hence the present petition.

3. Drawing attention to Sections 15A and 3(3) of the old Rent Act as well as to Section 7(5) r/w Sections 58 and 3(1)(b) of the new Rent Act, it is sought to be contended on behalf of the petitioners that though the old Rent Act has been repealed and the protection which was assured under the old Rent Act is ceased to be available to the petitioners in view of the repeal of the old Rent Act, nevertheless, the character of deemed tenancy acquired by the petitioners under the old Rent Act continues even under the new Rent Act and though the protection available otherwise to the tenant and deemed tenant under the new Rent Act is not available to the petitioners, yet the petitioners cannot be evicted without following the provisions of the general law governing the relationship of the landlord and the tenant. It is contended that in terms of Section 7(5) of the new Rent Act, the petitioners have been assured the status of deemed tenant even under the new Rent Act as the definition specifically includes the deemed tenant under the provisions of the old Rent Act and mere non-availability of the protection under the new Rent Act to the premises occupied by the petitioners on account of the provisions contained in Section 3(1)(b) thereof, the character of the petitioners as the deemed tenant in relation to the suit premises would not change. In short, the repeal of the old Rent Act and introduction of the new Rent Act, even in the absence of availability of the protection under the new Rent Act to the petitioners, it would not change the relationship of the landlord and the tenant between the respondents and the petitioners respectively, unless it is specifically terminated by taking resort to the provisions of the Transfer of Property Act. On the other hand, it is sought to be contended that the status of deemed tenant granted to the petitioners under the old Rent Act was specifically in terms of Section 15A of the old Rent Act and it specifically provided that the same was for the purpose of the old Rent Act and therefore irrespective of the provisions of law contained under Section 3(3) of the old Rent Act and Section 7(5) of the new Rent Act, the said status of character of the petitioners would not continue after the repeal of the old Rent Act. It is also contended that undisputedly the old Rent Act was a Act, it stands obliterated from the statute book and being so, no right can be claimed to have accrued under the provisions of the said Act. With the repeal of the old Rent Act and the non-applicability of the new Rent Act to the petitioners, the petitioners cannot claim to be the tenant or deemed tenant in relation to the suit premises and further that with the repeal of the old Rent Act the provisions of Section 15A thereof also stands repealed and therefore the status or character of the petitioners is resorted to that of the licensees. As the petitioners licence was duly terminated by issuing a notice and the suit having been filed thereafter under Section 41 of the Small Causes Court Act, no fault can be found with the impugned order of eviction. Various reported decisions have been relied upon on behalf of the parties to the petition in support of rival contentions.

4. Upon hearing the learned Advocates and on perusal of the records, the point which arise for consideration is in relation to the status or character of the petitioners in the suit premises pursuant to the repeal of the old Rent Act and enforcement of the new Rent Act. While considering the same, the provisions of law referred to by the learned counsels will have to be perused and analysed.

5. It is not in dispute that prior to 1-2-1973 the petitioners were inducted in the suit premises as the licensees and the petitioners acquired the character of the deemed tenant with effect from 1-2-1973 pursuant to the statutory provisions incorporated in the old Rent Act by the Maharashtra Act No.17 of 1973 whereby Section 15A provided that:

"Notwithstanding anything contained elsewhere in this Act or anything contrary in any other law for the time being in force, or in any contract where any person is on the 1st day of February 1973 in occupation of any premises, or any part thereof which is not less than a room, as a licensee he shall on that date be deemed to have become, for the purpose of this Act, the tenant of the landlord, in respect of the premises or part thereof, in his occupation."
Apparently, it was by direction of law that the licensee who was in occupation of the premises was granted the status of tenant with effect from 1-2-1973 and consequently the petitioners also acquired the said status from that day. Section 3(3) of the old Rent Act provides that Section 7 of the Bombay General Clauses Act, 1904, would apply upon expiry of the old Rent Act or any provision thereof ceasing to be in force in any area, as if it has been repealed by a Maharashtra Act. Section 7 of the Bombay General Clauses Act, 1904 is in pari materia with Section 6 of the General Clauses Act, 1897 and it provides that:

"7. Where this Act, or any Bombay Act 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-

(a) .....

(b) .....

(c) affect the right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed: or"

Apparently, therefore, in terms of the provisions of Section 7 of the Bombay General Clauses Act, 1904, if any right is acquired under the provisions of the old Rent Act, the same cannot be said to be affected on account of its repeal. However, whether in fact in the case in hand, by virtue of this provision, the right of being the deemed tenant which is claimed to have been accrued to the petitioners under the old Rent Act would survive and would not be affected on account of repeal of the old Rent Act has to be considered after considering the contentions by the respondents that the old Rent Act was a temporary statute and secondly that the status of tenant bestowed upon the licensee under Section 15A was only "for the purpose" of the old Rent Act. Before considering the same, however, it will be appropriate to refer to the relevant provisions of the new Rent Act.

6. Section 58(1) of the new Rent Act provides that on the commencement of the new Rent Act, the old Rent Act shall stand repealed. Sub-section (2) thereof saves all the proceedings which were pending under the old Rent Act on the date of commencement of the new Rent Act, including the proceeding of and in relation to the appeals pertaining to orders passed under the old Rent Act. Section 7(15) of the new Rent Act deals with the definition "tenant". It states that tenant means any person by whom or on whose account rent is payable for any premises and includes such person, who is a tenant, or who is a deemed tenant, or who is a sub-tenant as permitted under a contract or by the permission or consent of the landlord, or who has derived title under a tenant, or to whom interest in premises has been assigned or transferred as permitted by virtue of, or under the provisions of, any of the repealed Acts. Clause (b) of Section 7(15) provides that a tenant would also mean an person who is deemed to be a tenant under Section 25 of the new Rent Act and Clause (c) thereof provides that a person to whom interest in premises has been assigned or transferred as permitted under Section 26 would also be a tenant. As already seen above, the old Rent Act falls in the category of "repealed Act" referred to in Section 7(15) of the new Rent Act as the old Rent Act has been specifically referred to the in the repealing Section 58 of the new Rent Act. Besides, the expressions "repealed Act" or " repealed Acts" under the new Rent Act have been specifically defined to be those Act or Acts mentioned in Section 58 in terms of Section 7(12) of the new Rent Act. Section 3(1)(b) specifically exempts the applicability of the new Rent Act to the premises let out or sub-let to companies like that of the petitioners having a paid up share capital of rupees one crore or more.

7. Before adverting to the arguments and the point in relation to cessation of the character of the petitioners as that of the tenant or deemed tenant or as to whether the said character was only for the purpose of the provisions of the old Rent Act, it will be appropriate to scan through the various decisions relied upon and relevant for the decision in the matter in hand.

8. In Marutrao Pandurang Zende v. Eknath Shivram Jagtap and Anr, reported in MANU/MH/0295/1977 : 1980 Mh. L.J. 238, it was held that the old Rent Act was a temporary statute and therefore the provisions corresponding to Clause 7 of the Bombay General Clauses Act would not apply to the same being a temporary statute and the said position is well settled in terms of various decisions, including that of the Apex Court. However, considering the same the Legislature had made a provision under Sub-section (3) of Section 7 that Section 7 of the Bombay General Clauses Act would apply upon the expiry of the old Rent Act or any provision thereof ceasing to be in force in any area, as if it had been repealed by the Maharashtra Act and therefore it is clear that it any provision which was applicable to any particular area is repealed or ceases to be in force in any area pursuant to a notification issued by the State Government, under Section 2(4) of the old Rent Act, the provisions of Section 7 of the Bombay General Clauses Act would come into play. Section 2(4) of the old Rent Act empowers the State Government to direct, at any time by issuance of notification that any of the provisions of the said Act would cease to apply to such area as may be specified in such notification. This decision, however, was sought to be relied upon by the learned Advocate for the respondents for drawing attention to the observations in para 11 thereof wherein reference is made to the decision of the Apex Court in Qudrat Ullah v. Municipal Board, Barielly, reported in MANU/SC/0418/1973 : [1974]2SCR530 , and to contend that provisions of the old Rent Act, be it Section 15A or any other provision, it only provides for a procedural disability to the landlord and it does not create any substantive right as such in favour of the person claiming to be a tenant. In other words, it is the contention of the learned Advocate for the respondents that the protection which was granted to a person by fiction of law under Section 15A was to the extent of creating procedural disability to the landlord to seek eviction of such person from the premises during the subsistence of the temporary statute and nothing more than that and therefore it does not create any right as such in favour of such person claiming to be the tenant.

9. In Qudrat Ullah's case (supra) the Apex Court dealing with the provisions of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, and the effect of the repeal thereof pursuant to enforcement of the U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972, including the provisions of repeal contained in Section 43 of the subsequent Act i.e., the Act of 1972, observed that the general principle is that an enactment which is repealed is to be treated, except as to transactions passed and closed, as if it had never existed. However, the operation of this principle is subject to any saving which may be made, expressly or by implication, by the repealing enactment. Further, referring to Section 3 of the repealed Act, which provided that "No suit shall, without the permission of the District Magistrate, be filed in any civil Court against a tenant for his eviction from any accommodation except on one or more of the following grounds...." It was held that it was more a procedural disability that was case, not a substantive cause of action that was created, while approving the observations of the Calcutta High Court in Haripada Pal Ghosh v. Tofajaddi Ijardar, reported in MANU/WB/0201/1933 : AIR1934Cal80 that:

"The disability, which was imposed by the previous law having been removed, there was nothing that stood in the way of the plaintiffs recovering rent at the contract rate, when the cause of action for the same arose. The effect of substitution of the new Section 48 for the old Section 48 by Section 31 of the Act IV of 1928, was that the old section was repealed. The effect of repeal of a statute in the absence of saving clauses is that it has to be considered as if the statute, so repealed, had never existed."
It is, therefore, pertinent to note that the Apex Court has dealt with a case wherein the contention was pertaining to the procedural disability on account of specific provision of law under which the rights of the landlord to seek eviction of a tenant were regulated and restricted to the extent that eviction proceedings could not have been initiated without the prior permission of the District Magistrate and in that regard the procedural disability was taken into consideration while deciding the matter. Secondly, the decision in Qudrat Ullah's case is not in relation to a provision in the U.P. (Temporary) Control of Rent and Eviction Act, 1947 on par with Section 15A of the old Rent Act. Neither any such reference to such section is available in the said statute nor there is any discussion in that regard in the judgment in Qudrat Ullah's case. In Marutrao's case (supra), it was a matter wherein the issue before the Court was relating to the applicability of the old Rent Act to the proceedings which were initiated at the time when the provisions of the old Rent Act were not extended to the area wherein the premises in respect of which the eviction of the tenant was sought for in the said case were situated. The suit premises therein were situated at Saswad in Purandar Taluka of Poona District and pursuant to notice dated 2-7-1970, the tenancy of the tenant therein was sought to be terminated with effect from 31-7-1970 and thereafter the suit for recovery of possession was filed. However, during the pendency of the trial the provisions of the old Rent Act were made applicable to the area covered by the suit premises. However, during the pendency of the appeal, the provisions of the old Rent Act were withdrawn and ceased to be applicable to the area wherein the suit premises in the said case were situated. In that context, the effect of Section 3(3) r/w Section 7 of the Bombay General Clauses Act was sought to be ascertained and it was ruled that though the old Rent Act is a temporary measure and the Bombay General Clauses Act would not normally be applicable but because of the provisions of Section 3(3) of the old Rent Act, the said provision of Section 7 of the Bombay General Clauses Act would not normally be applicable but because of the provision of Section 3(3) of the old Rent Act, the said provision of Section 7 of the Bombay General Clauses Act would come into play and therefore the suit was held to be required to be heard and disposed of in terms of the provisions of the old Rent Act. Apparently, the decision is in relation to the procedure to be followed for the disposal of the case of eviction of the tenant in cases where the provisions of the old Rent Act ceases to be applicable during the pendency of the proceedings. The decision is not on the point as to whether the status or character of tenant acquired in terms of provision of Section 15A would survive after the repeal of the old Rent Act or after the provisions of the old Rent Act ceases to be applicable to a particular area in the State of Maharashtra.

10. The decision in M/s. Allahabad Theatres (Pvt.) Ltd. and Ors. v. Smt. Kusum Kumari, reported in MANU/UP/0013/1974 : AIR1974All73 , is again in relation to the procedure to be followed for disposal of a suit or appeal commenced under the provisions of the U.P. (Temporary) Control of Rent & Eviction Act, 1947, subsequent to enforcement of the U.P. Urban Building (Regulation of Letting, Rent and Eviction) act, 1972 and therefore is of no help in the case in hand.

11. At this stage, it is also necessary to take into consideration some other decisions which are relevant in the matter. In State of Punjab v. Mohar Singh Pratap Singh, reported in AIR 1955 SC 84, while dealing with the provision of Section 6 of the General Clauses Act, 1897, it was observed that:

"Of course, the consequences laid down in Section 6 of the Act will apply only when a statute or regulation having the force of a statute is actually repealed. It has no application when a statute, which is of a temporary nature automatically expires of afflux of time. The Ordinance in the present case was undoubtedly a temporary statute but it is admitted that the period during which it was to continue had not expired when the Repealing Act was passed. The repeal therefore was an effective one which would normally attract the operation of Section 6 of the General Clauses Act."
It was further ruled that:

"Whenever there is a repeal of an enactment, the consequences laid down in Section 6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention.

The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. We cannot therefore subscribe to the broad proposition that Section 6 of the General Clauses Act is ruled out when there is repeal of an enactment followed by a fresh legislation. Section 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section. Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new law and the mere absence of a saving clause is by itself not material."

12. In Isha valimohamad and Anr. v. Haji Gulam Mohamad & Haji Dada Trust, reported in MANU/SC/0387/1974 : [1975]1SCR720 , dealing with the subject of difference between privileges available under the Act and the rights accrued under the Act, the Apex Court had taken note of various decisions of the Privy Council and the English Courts. One of the decisions referred to therein is a leading case in the matter of Director of Public Works and Anr. v. Ho Po Sang and Ors., reported in (1961) 2 All E.R. 721, wherein the Privy Council had held that the fact that the Director of Public Works had given a Crown lessee notice of his intention to grant a rebuilding certificate, which would enable the lessee to recover vacant possession from the persons in occupation of the premises, did not confer any right to the certificate on the lessee, since various conditions had remained to be fulfilled before the certificate could be granted. In that connection, observations by Lord Morris of Borth-y-Gest were quoted and they read thus:

"It may be, therefore, that under some repealed enactment a right has been given but that in respect of it some investigation or legal proceeding is necessary. The right is then unaffected and preserved. It will be preserved even if a process of quantification is necessary. But there is a manifest distinction between an investigation in respect of a right and an investigation which is to decide whether some right should or should not be given. Upon a repeal the former is preserved by the Interpretation Act. The latter is not."
Further, in Free Lanka Insurance Co. Ltd. v. Ranasinghe, 1964 AC 541, Lord Evershed said that the distinction between what was, and what was not, a right must often be one of great fineness and the Court held that a claim given by the Ceylon Motor Car Ordinance of 1938 to an injured person against the other party involved in an accident was "something more than a mere hope or expectation...he had in truth a right.... although that right might fairly be called inchoate or contingent".

13. In M.S. Shivananda v. The Karnataka State Road Transport Corporation and Ors., reported in MANU/SC/0371/1979 : (1980)ILLJ77SC , referring to Section 6 of the General Clauses Act, it was held that, "What is unaffected by the repeal of a statute is a right acquired or accrued under it and not a mere hope or expectation of, or liberty to apply for, acquiring a right." Referring to the decision in Director of Public Works and Anr. v. Ho Po Sang and ors. (supra) and Section 31(2)(i) of the Karnataka Contract Carriages (Acquisition) Act, 1976, it was observed that it is to preserve only the things done and action taken under the repealed Ordinance, and not the rights and privileges acquired and accrued on the one side, and the corresponding obligation or liability incurred on the other side, so that if no right acquired under the repealed Ordinance was preserved, there is no question of any liability being enforced. Therein the provision under Section 31(2)(i) which was considered reads thus:

"31(2) Notwithstanding such repeal:-

(i) anything done or any action taken under the said Ordinance, shall be deemed to have been done or taken under the corresponding provisions of this Act."

14. Reverting to the case in hand and the points canvassed, there is no doubt that Section 15A of the old Rent Act speaks of licensees to be deemed as tenants "for the purpose of this Act". In other words, the provision on the face of it prescribes that the status of tenancy granted to the licensees is for the purpose of the old Rent Act but at the same time Section 3(3) of the old Rent Act r/w Section 7 of the Bombay General Clauses Act ensures that the right accrued under the old Rent Act would remain unaffected consequent to repeal of the old Rent Act. Contention was sought to be raised that with the repeal of the old Rent Act, even the provision of Section 3(3) would cease to have the effect. However, at this stage, it is also necessary, as rightly submitted by the learned Advocate for the petitioners, to consider the provision of Section 7(15) of the new Rent Act, which specifically provides that a tenant under the new Rent Act would include a deemed tenant under the repealed Act. Reading together the provisions of Section 15A and Section 3(3) of the old Rent Act and Section 7(15) of the new Rent Act, therefore, would apparently disclose that apart from the protection granted under Section 7 of the Bombay General Clauses Act as regards the right accrued, the status acquired under the old Rent Act by virtue of the provision of Section 15A thereof is expressly protected in terms of Section 7(15) of the new Rent Act, while repealing the provision of Section 15A of the old Rent Act. The Section 15A of the old Rent Act does not speak about any procedural disability of the landlord to seek eviction of the person who was earlier licensee and to whom the status of deemed tenant had been assured. It only transforms the character of the relationship of the licensor and the licensee into lessor and lessee by fiction of law and to that extent creates a right in the form of deemed tenant in favour of the licensee but does not by itself prescribes for any procedural disability to the landlord to seek eviction of such person. The procedural disabilities were provided elsewhere in the old Rent Act, particularly in Section 13 and others as regards the eviction of such persons. Section 15A thereof cannot be construed to be in relation to the procedural disability imposed upon the landlord under the old Rent Act but as necessarily deals with the right of tenancy being created in favour of the licensees who were in occupation of the premises on or prior to 1-2-1973. Apart from the applicability of the provision of Section 7 of the Bombay General Clauses Act, and whereby the rights accrued under such statute having been protected, an express provision having been made in the form of Section 7(15) to ensure the continuation of the status of tenant to such persons who were deemed tenants under the old Rent Act, the decision of this Court in Marutrao's case or the Apex Court's in Qudrat Ullah's case can be of no help to the respondents to contend that the petitioners would not be entitled to claim the status of tenant after the repeal of the old Rent Act.

15. The respondents have also relied upon the decision of the Apex Court in the matter of S.N. Kamble v. The Sholapur Borough Municipality and Anr., reported in MANU/SC/0331/1965 : [1966]1SCR618 . The Apex Court therein while considering the provisions of law in Sections 3, A and 4 of the Bombay Tenancy Act of 1939 and Sections 31 and 88 of the Bombay Tenancy and Agricultural Lands Act, 1948, had taken note of the fact that the 1939 Act was repealed in 1948. Section 31 of the 1948 Act provided that for the purposes of that Act a person shall be recognised to be a protected tenant under Section 3, 3A or 4 of the 1939 Act, and considering the question as to whether there was anything express in the 1948 Act which could take away the interest of a protected tenant acquired before its commencement, has ruled that the benefits granted under the provisions of the 1939 Act by virtue of being a protected tenant were not available after the repeal thereof. However, while arriving at the said conclusion, the Apex Court has taken into consideration the provisions of Sections 31, 88 and 89 of the 1948 Act and observed thus:

".... If there is an express provision in the 1948 Act, that will prevail over any right, title or interest acquired before its commencement. Further the words "save as expressly provided in this Act" also qualify the words "any repeal effected thereby" and even in the case of repeal of the provisions of the 1939 Act if there is an express provision which affects any title, right or interest acquired before the commencement of the 1948 Act that will also not be saved."
It was further observed that:-

"....Now there is no doubt that Section 88 when it laid down inter alia that nothing in the foregoing provisions of the 1948-Act shall apply to lands held on lease from a local authority, it is an express provision which takes out such leases from the purview of Sections 1 to 87 of the 1948-Act. One of the provisions therefore which must be treated as non-existent where lands are given on lease by a local authority is in Section 31. The only provision in the 1948-Act which recognised protected tenants is Section 31 and if that section is to be treated as non-existent so far as lands held on lease from a local authority are concerned, it follows that there can be no protected tenants of lands held on lease from a local authority under the 1948-Act. It is true that Section 88 does not in so many words way that the interest of a protected tenant acquired under the 1939-Act is being taken away so far as lands held on lease from a local authority are concerned; but the effect of the express provision contained in Section 88(1)(a) clearly is that Section 31 must be treated as non-existent so far as lands held on lease from a local authority are concerned and in effect therefore Section 88(1)(a) must be held to say that there will be no protection under the 1948-Act for protected tenants under the 1939-Act so far as lands held on lease from a local authority are concerned. it was not necessary that the express provision should in so many words say that there will be no protected tenants after the 1948-Act came into force with respect to lands held on lease from a local authority. The intention from the express words of Section 88(1) is clearly the same and therefore there is no difficulty in holding tat there is an express provision in the 1948-Act which lays down that there will be no protected tenant of lands held on lease from a local authority. ....."
The Apex Court has further held that:-

".......It may very well be that the legislature though that the status of a protected tenant should not be given to lessees of lands from a local authority, in the interest of the general public and therefore took away that interest by the express enactment of Section 88(1)(a). the status was after all conferred by the 1939-Act and we can see no difficulty in its being taken away by the 1948-Act. It may be mentioned that Section 88(1)(a) applies not only to lands held on lease from a local authority but also to lands held on lease from the State and one can visualise situations were the State may need to get back lands leased by it in public interest. It must therefore have been in the interest of the public that a provision like Section 88(1)(a) was made wit respect to lease from a local authority of the State who had become protected tenants under the 1939-Act. ......."
Section 31 of the 1948 Act provided that "for the purpose of this Act a person shall be recognised to be a protected tenant if such person had been deemed to be a protected tenant under Sections 3, 3A or 4 of the 1939 Act". Section 88 of the 1948 Act provided that

"(1) Nothing in the foregoing provisions of this Act shall apply:-

(a) to lands held on lease form the Crown, a local authority or a co-operative society;

(b) ......"

Section 89(2)(b) of the 1948 Act reads thus:-

"But nothing in this Act or any repeal effected thereby-

(a) .......

(b) shall, save as expressly provided in this Act affect or be deemed to affect,

(i) any right, title, interest, obligation or liability already acquired, accrued or incurred before the commencement of this Act, or

(ii) ........"

The facts of the said case disclosed from para 2 of the decision of the Apex Court reveal that the respondent therein had given notice to the appellant terminating his tenancy and had filed suit for possession. The suit was dismissed holding that the appellant was entitled for the benefit of the provisions of the 1948 Act. The respondent preferred appeal to the District Court and during the pendency of the appeal, an application by the appellant was filed for a declaration that he was a protected tenant of the land and also for fixation of the rent in terms of the provisions of the 1948 Act. By the compromise arrived at in the Appellate Court, the decree of disposal of the suit was set aside and the matter was remanded with the direction that the suit be stayed and disposed of after the decision by the Mamlatdar on the issue of tenancy with the express agreement between the parties that if the appellant was to be held a tenant by the authorities under the 1948 Act, the suit ought to be dismissed and if the decision of the authorities under the Tenancy Act is against the appellant, the suit ought to be decreed. The Mamlatdar held the appellant to be a tenant under Section 70(b) of the 1948 Act while in the appeal to the Collector, it was held that the Mamlatdar had no jurisdiction to decide the appellant to be a tenant and in the revision before the Revenue Tribunal, referring to Section 88-B introduced by way of the Amendment Act of 1956, it was held that the revenue Court had jurisdiction to decide the appellant to be a tenant and therefore the matter was remanded to the Collector for decision on the question as to whether the appellant was a tenant or a protected tenant on merits. Apparently, the main issue before the Apex Court in S.N. Kamble's case (supra) was whether the appellant therein, who was claiming to be a protected tenant under the 1939 Act and being assured continuation of the same status in terms of Section 31 of the 1948 Act, would be entitled for the privileges to be protected tenant under the 1948 Act. The issue before this Court in the case in hand is not whether the petitioners being deemed tenant so declared in terms of Section 15A under the old Rent Act and continued to be so in terms of Section 7(15) under the new Rent Act would be entitled to the privileges and protection under the new Rent Act but a limited issue as to whether the character or the status acquired by the petitioners as the deemed tenant under the old Rent Act continues under the new Rent Act or not.

16. The learned Advocate for the respondents, however, referring to Section 3(1)(b) has sought to contend that the decision in S.N. Kamble's case squarely replies the issue which is sought to be raised in the case in hand in as much as that the Apex Court in S.N. Kamble's case referring to continuation of protection assured under the 1948 Act and considering the provision of repeal and specifically the non-applicability of the provisions of the 1948 Act to certain premises, had held that "The status was after all conferred by the 1939-Act and we can see no difficulty in its being taken away by the 1948-Act." However, it is pertinent to note that the said observation was made considering the provisions of Section 88 and 89 of the 1948 Act. Section 88 of the 1948 Act specifically provided that "Nothing in the foregoing provisions of this Act shall apply to lands held on lease from the Crown, a local authority or a co-operative society." The entire discussion and the ruling of the Apex Court therefore in relation to the status of the appellant therein was to consider the applicability of the provisions of the 1948 Act and not to consider whether independently the status acquired by the tenant under the 1939 Act would also continue after the repeal thereof. In the case in hand, it is nobody's case that the petitioners are claiming protection from eviction from the premises in terms of the provisions of the new Rent Act. Their only contention is that the status of the deemed tenant which was acquired by the petitioners in terms of Section 15A of the old Rent Act and the said status having been acquired under the said provision of law, and further assured under Section 3 of the old Rent Act r/w Section 7 of the Bombay General Clauses Act and further conferred upon them under Section 7(15) of the new Rent Act remains undisturbed irrespective of the provisions of Section 58 and Section 3(b) of the new Rent Act. Similar point did not arise for consideration before the Apex Court in S.N. Kamble's case. The entire discussion in that case was in relation to the claim of the appellant therein for protection under the 1948 Act pursuant to the provision contained in Section 31 of the 1948 Act assuring continuation of the status of protected tenant which they had acquired by virtue of the provisions of the Bombay Tenancy Act of 1939. Had it been the case of the petitioners that pursuant to the provisions of Section 15A and Section 3 of the old Rent Act r/w Section 7(15) of the new Rent Act that the petitioners are entitled for protection under the new Rent Act, certainly the decision of the Apex Court in S.N. Kamble's case would have been a fitting answer, to negate the contention of the petitioners. Being so, the decision of the Apex Court in S.N. Kamble's case is also of no much assistance to the respondents to deny the status of deemed tenant to the petitioners in relation to the suit premises.

17. The learned single Judge of this Court in Dattaram Tukaram Bordekar, by his LRs. v. Prakash Dattatraya Tiwatane, reported in 1992 Mh.L.J. 944, while dealing with the provision of Section 4(1) of the old Rent Act has observed that: "Mr. Naik is perfectly correct in so far as on and from the date when the Bombay Municipal Corporation has become the owner of the premises, the provision of Section 4 will apply to the premises. One cannot dissect and separate the premises in occupation and possession of a sub-tenant from those in occupation and possession of a tenant because, in the first instance, the sub-tenant is claiming through the tenant and most importantly because Section 4 applies to the premises and not to parties or persons. The Bombay Municipal Corporation being a public authority, a special provision is made in respect of properties belonging to such an authority and, therefore, it would be impermissible for a sub-tenant of the premises to contend that even though the provisions of the Rent Act would not apply to the tenant, they would still apply in his case. Logically, such an argument would be irrational and would have ridiculous consequences because it would confer on a sub-tenant certain protections which a tenant does not enjoy. This dichotomy is not recognised by law. Mr. Naik has placed strong reliance on the celebrated judgment of a Division Bench of this Court consisting of Chagla, C.J. and Gajendragadkar, J. in the case of Rampratap Jaidayal v. Dominion of India, reported in 54 BLR 927, wherein all the Court has interpreted the provision of Section 4(1) and has very clearly enunciated the principles that it is unnecessary that the original tenancy or lease should have been created by the Government or a public authority. The section would be equally applicable in cases where the property has been subsequently acquired by a local authority." Referring to the said decision, the learned Advocate for the petitioners has drawn attention to the difference in the phraseology used in Clause (a) that from Clause (b) of Sub-section (1) of Section 3 of the new Rent Act. Clause (a) refers to any premises belonging to the Government or a local authority or apply as against the Government to any tenancy, licence or other like relationship created by a grant from a licence given by the Government in respect of premises requisitioned or taken on lease or on licence by the Government, including any premises taken on behalf of the Government on the basis of tenancy or of licence or other like relationship byu, or in the name of any officer subordinate to the Government authorised in that behalf; but it shall apply in respect of premises let, or given on licence, to the Government or a local authority or taken on behalf of the Government on such basis by, or in the name of, such officer. Clause (b) refers to any premises let or sub-let to banks, or any Public Sector Undertakings or any Corporation established by or under any Central or State Act, or foreign missions, international agencies, multinational companies, and private limited companies and public limited companies having a paid up share capital of rupees one crore or more. Referring to these clauses, it was sought to be contended that Clause (a) relates to leases to persons whereas Clause (b) refers to the premises which are subject-matter of leases. The controversy sought to be raised about the differentiation of phraseology in Clause (a) wit reference to Clause (b) of Section 3(1) does not call for any adjudication in the present petition. Suffice to observe that prima facie I do not find any such differentiation between the two clauses, as is sought to be made by the learned Advocate for the petitioners, nor the decision of the learned single Judge in Dattaram Tukaram Bordekar's case (supra) can be of help to canvass the said argument. Clause (a) as well as Clause (b) begins with the specific expression "to any premises". Section 3 speaks of exemption of the premises from the applicability of the Act and it does not speak of non-applicability of the Act to the tenant or landlord. With due respect to the learned Advocate, it will be absurd to think that the provisions of the Act would apply in such a case to the landlord of the premises but would not apply to the tenant of the same premises. If the provisions of the Act would apply to the tenant, it will equally apply to the landlord of the same premises. Being so, the applicability or non-applicability will have to be dealt with reference to the premises which is the subject-matter of lease and in that context it cannot be said that the Act would apply only to the landlord of such premises but would not apply to tenant of such premises or vice-a-versa.

18. As already stated above, the law as it stands today, therefore, is that the status of deemed tenant granted to the licensees who were in occupation of the premises on 1-2-1973 by virtue of Section 15A of the old Rent Act and considering the assurance to the continuation of such right acquired by such persons in terms of the provisions of Section 3 of the old Rent Act r/w Section 7 of the Bombay General Clauses Act and further confirmation of such right under Section 7(15) of the new Rent Act, and applying the same to the case in hand, the petitioners having been in possession of the suit premises prior to 1-2-1973 as the licensees and having acquired the status of deemed tenant from that date, their status as the deemed tenant is not taken away or put to an end by virtue of the provisions of Section 58 or Section 3 of the new Rent Act. Undoubtedly, since the petitioners are a company which fall within the ambit of Clause (b) of Sub-section (1) of Section 3 of the new Rent Act, the leased premises being occupied by the said company, the same will not be entitled to claim benefits, privileges or the protection under the new Rent Act, even though they have acquired the status of the deemed tenant. Undoubtedly, in such cases, as rightly submitted by the learned Advocate for the petitioners, the general law governing the relationship of landlord and tenant would apply and therefore in order to evict the petitioners from the suit premises the provisions of the Transfer of Property Act would apply.

19. The respondents, however, in this case in that regard have sought to rely upon the decisions of the Apex Court in the matters of Puwada Venkateshwara Rao v. Chidamana Venkata Ramana, reported in MANU/SC/0493/1976 : [1976]3SCR551 , Firm Sardarilal Vishwanath and Ors. v. Pritam Singh, reported in MANU/SC/0377/1978 : [1979]1SCR111 and M. Vijayalaxmi v. G. Goverdhan Reddy, reported in : (1997)11SCC358 . None of these decisions are of any help to the petitioners. In Puwada Venkateshwara Rao's case (supra), it was held that the Andhra Pradesh High Court was justified in applying the principle laid down by its Division Bench in Ulligappa v. S. Mohan Rao, reported in (1962) 2 And.L.T. 268 wherein the Division Bench had held that the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 provided a procedure for eviction of tenants which was self-contained so that no recourse to the provision of Section 106 of the Transfer of Property Act was necessary. In Firm Sardarilal Vishwanath's case (supra), it was held that for the purpose of eviction of a tenant under the East Punjab Rent Restriction Act, 1949, notice of termination of tenancy under Section 106 was not necessary. In M. Vijayalaxmi's case (supra), it was a case where the tenancy was for a fixed period of 11 months and it had come to an end by efflux of time and therefore no notice of termination of tenancy under Section 106 of the Transfer of Property Act was required for the purpose of filing a suit as the respondent therein could not be treated as tenant holding over in view of the express indication given by the appellant by her notice which was issued to the effect that she did not propose to continue the tenancy of the respondent.

20. It is well-settled that when an eviction of a tenant is sought for in terms of the provisions of the Rent Legislation in force in the State, the procedure for the purpose of eviction of such tenant being specifically provided under such rent legislation itself, there is no need to take resort to the provisions of the general law i.e., the Transfer of Property Act and therefore the question of service of notice under Section 106 of the Transfer of Property Act in such cases does not arise. However, that is not the case in hand. Once the provisions of the new Rent Act are being exempted from their applicability to the premises in occupation of the petitioners, or the protection under the new Rent Act is being made as not available to the petitioners, nevertheless, the character or status acquired by the petitioners as the deemed tenant continues, the lessor or lessee relationship continues to exist between the parties and therefore unless the same is put to an end by the procedure known to law, i.e., by taking resort to the provisions of the Transfer of Property Act, it cannot be said that the petitioners can be evicted from the suit premises. Admittedly, in the case in hand, the petitioners have not been served wit any notice of termination of tenancy as is otherwise required under Section 106 of the Transfer of Property Act and therefore the suit filed without termination of tenancy of the petitioners cannot entitle the respondents to evict the petitioners from the suit premises.

21. In the result, therefore, the petition succeeds. The decree of eviction passed against the petitioners is set aside for the reasons stated above. Rule is made absolute accordingly with no order as to costs.




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