Saturday, 14 December 2019

Whether civil court can pass decree against tenant of open plot under Transfer of property Act?

All these three judgments conclusively show that right of landlord which got eclipsed on account of Rent Control Legislation revives after the Rent Control Legislation is removed and the landlord therefore can prosecute his suit further under the General Law i.e. as per the provisions of Transfer of Property Act.
 In view of these observations, it is clear that the present controversy is squarely covered by said judgment. The right of landlord to proceed as per provisions of Transfer of Property Act, stood eclipsed from 1989 to 2000 and then revived again after coming into force Maharashtra Rent Control Act, 1999. The Civil Court, therefore, can pass a decree or execute a decree against a tenant of open plot under General law.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal Nos. 291 and 349 of 2018

Decided On: 30.04.2019

 Greenland Agencies Vs.   Nivedita and Ors.

Hon'ble Judges/Coram:
R.B. Deo, J.

Citation: 2019(6) MHLJ 752


1. Heard Shri Anand Jaiswal, the learned Senior Counsel for the appellants in Second Appeal 349 of 2018 and Shri A. Shelat, the learned Advocate for the appellant in Second Appeal 291 of 2018 and Shri R.L. Khapre, the learned Advocate for the respondent 1.

2. These appeals, which emanate from the judgment and decree of possession in Regular Civil Suit 312 of 1979 which is confirmed by judgment and decree dated 06.02.2018 rendered by the District Judge-3, Akola in Regular Civil Appeal 75 of 2004 are heard and decided by this common judgment.

3. Factual matrix:

3.1.] Smt. Rukmini Goenka executed an Indenture of Lease dated 15.07.1964 in favour of M/s. Caltex (India) Limited by and under which the lessee was permitted to erect structure and carry on the business of running petrol pump and sell of petroleum products with ancillary activity of service station.

3.2.] On 16.10.1965 Smt. Rukmini Goenka executed a Deed of Gift in respect of the said property in favour of Smt. Nivedita Jain.

3.3.] On 13.12.1976 by and under "[Acquisition of Shares of Caltex Oil Refining (India) Limited and of the Undertakings in India of Caltex (India) Limited) Act, 1977" the right, title, interest and liabilities of M/s. Caltex (India) Ltd., stood transferred and vested in the Central Government. Contemporaneously, the Government of India issued notification directing that the right, title, interest and liabilities of M/s. Caltex (India) Ltd., shall continue and vest in Caltex Oil Refinery (India) Ltd. By an order dated 09.05.1978 issued under section 396 of the Companies Act, 1956 the Caltex Oil Refinery (India) Ltd., stood transferred and vested in Hindustan Petroleum Corporation Limited.

3.4.] Respondent 1 in these appeals Smt. Nivedita Jain-who shall be referred to as the landlord instituted Regular Civil Suit 312 of 1979 in the Court of 8th Civil Judge, (Junior Division), Akola seeking decree of possession, arrears of rent and enquiry into mesne profit. The appellant in Second Appeal 349 of 2018 Hindustan Petroleum Corporation Limited was impleaded as defendant 1 and the appellants in Second Appeal 291 of 2018 were impleaded as defendants 2 and 3. On the premise that the provisions of the C.P. Berar Letting of Houses and Rent Control Order, 1949 ("Rent Control Order") do not apply to open site, the suit was instituted under the general law after issuance of notice under section 106 of the Transfer of Property Act, 1882 ("T.P. Act") in view of the expiry of the lease by efflux of time. The landlord averred that while Hindustan Petroleum Corporation Limited is the lessee, the petrol pump is run by defendant 3 M/s. Onkarmal Rungta and the defendant 2 M/s. Greenland Agencies which is a partnership firm and sister concern of M/s. Onkarmal Rungta is running a "Tea Stall" in portion of the suit property.

3.5.] By judgment dated 01.12.1987 the Appellate Court decreed the suit.

3.6.] The defendants assailed the judgment and decree of the trial Court in Regular Civil Appeal 132 of 1988 which was preferred on 28.04.1988.

3.7.] During the pendency of Regular Civil Appeal 132 of 1988 the Government of Maharashtra, in exercise of power under section 2 of the C.P. Berar Regulation of Letting of Accommodation Act, 1946 amended the Rent Control Order. The word "house" was substituted by the word "premises" by amendment order dated 27.06.1989 which extended the protection of the Rent Control Order to open plots. Clause (4A) of the definition clause defines "premises" to mean:

(4A) "Premises" means-

(a) any land not being used for agricultural purposes,

(b) any building or part of a building (Other than a farm building) let or given on licence [for residence or for the purpose of practising any profession or carrying on any occupation therein] and includes,-

(i) The garden grounds, garages and out houses, if any, appurtenant to such building or part of a building;

(ii) any furniture supplied by the landlord for use in such building or part of a building; and

(iii) any fittings affixed to such building or part of a building for the more beneficial enjoyment thereof;

but does not include a room or other accommodation in a hotel or lodging house;]

3.8.] By the second amendment order dated 27.10.1989 Clause 13-A was inserted in the Rent Control Order which read thus:

13-A. No decree for eviction shall be passed in a suit or proceeding filed and pending against the tenant in any court or before any Authority unless the landlord produces a written permission of the Controller as required by sub-clause (1) of clause 13.

3.9.] Regular Civil Appeal 132 of 1988 came to be dismissed 30.06.1999.

3.10.] The lessee and the agents preferred Second Appeal 356 of 1989 and Second Appeal 340 of 1999. During the pendency of the second appeal the Maharashtra Rent Control Act, 1999 ("Rent Act") was brought on the statute book w.e.f. 31.03.2000. The Rent Control Order was repealed and section 58 which is the Repeal and Saving Clause reads thus:

58. Repeal and saving

(1) On the commencement of this Act, the following laws, that is to say --

(a) the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947;

(b) the Central Provinces and Berar Regulation of Letting of Accommodation Act, 1946 including the Central Provinces and Berar Letting of Houses and Rent Control Order, 1949; and

(c) the Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954; shall stand repealed

(2) Notwithstanding such repeal--

(a) all applications, suits and other proceedings under the said Acts, pending, on the date of commencement of this Act before any Court, Controller, Competent Authority or other office or authority shall be continued and disposed of, in accordance with the provisions of the Acts so repealed, as if the said Acts had continued in force and this Act had not been passed;

(b) the provisions for appeal under the Acts so repealed shall continue in force in respect of applications, suits and proceedings disposed of thereunder;

(c) any appointment, rule and notification made or issued under any of the repealed Acts and in force on the date of commencement of this Act shall, in so far as they are not inconsistent with the provisions of this Act, be deemed to have been made or issued under this Act and shall continue in force until it is superseded or modified by any appointment, rule or notification made or issued under this Act;

(d) all prosecutions instituted under the provisions of any of the repealed Acts shall be effective and disposed of in accordance with the law.

3.11.] By judgment dated 20.03.2014 this Court partly allowed the second appeal and remitted Regular Civil Suit 302 of 1979 to the trial Court for decision afresh.

3.12.] By judgment and decree dated 31.07.2014 the 8th Joint Civil Judge, (Junior Division), Akola decreed the suit, the defendants were directed to deliver the vacant possession of the suit property to the landlord and enquiry into mesne profit was directed.

3.13.] The defendants preferred Regular Civil Appeal 75 of 2014 on 15.10.2014 before the District Judge, Akola.

3.14.] The District Judge-3, Akola by judgment and decree dated 06.02.2018 dismissed the appeal.

4. Indubitably, as on 06.08.1979 when the landlord took recourse to the general law to recover possession of the suit property and on 20.03.2014 when the suit for possession was decreed the protective umbrella of the special legislation did not extent to tenancies of open plots. The Rent Act is not applicable to open plots. The Rent Control Order, which is repealed by the Rent Act did regulate the tenancies qua open plots from 27.06.1989 to the date of coming into force of the Rent Act i.e. 31.03.2000. The thrust of the submission canvassed by the learned Senior Counsel Shri Anand Jaiswal and Shri Shelat is that the protection available to the tenant of open plot from 27.06.1989 to 30.03.2000 and the statutory disability of the landlord would translate into a corresponding right or privilege which is saved in view of the provisions of section 7 of the Maharashtra General Clauses Act which correspondence to section 6 of the General Clauses Act, 1897. In fairness to the learned Senior Counsel Shri Anand Jaiswal, section 58 of the Rent Act which is the Repeal and Saving Clause is not invoked. Shri Anand Jaiswal would however, submit that the Repeal and Saving Clause in the Rent Act is not exhaustive of the right and privileges saved nor is the Repeal and Saving Clause in the Rent Act a legislative intention to the contrary as would exclude the applicability of section 7 of the Maharashtra General Clauses Act.

5. Shri R.L. Khapre would submit that the Rent Control Order was essentially a temporary legislation and the nature of the legislation would exclude the applicability of section 7 of the General Clauses Act. Shri R.L. Khapre would extend the submission by emphasizing that the Rent Control Order was essentially a piece of delegated legislation and the parent act conferred the power to put an end to the delegated legislation upon the executive which would clearly indicate the temporary nature of the delegated legislation. Shri R.L. Khapre would then submit that the existence of the Repeal and Saving Clause and the statutory scheme of the Rent Act which repealed the Rent Control Order is a legislative expression of contrary intention excluding the applicability of section 7 of the General Clauses Act. Shri R.L. Khapre would conclude with the submission that even if it is assumed, arguendo, that the Rent Control Order was not a temporary legislation and that section 58 of the Rent Act is not a legislative expression to the contrary as would exclude the applicability of section 7 of the General Clauses Act would take the case of the lessee no further. Shri R.L. Khapre would submit that the statutory disability of the landlord, who under the special legislation was procedurally bound to obtain the permission of the Rent Controller before determining the tenancy would not bestow upon the lessee a corresponding right nor can the statutory protection which was available, and which is withdrawn with the repeal of the Rent Control Order, be considered a privilege which would survive the repeal of the Rent Control Order.

6. Erudite and elaborate submissions are advanced on the nature of the Rent Control Order. Shri R.L. Khapre invites my attention to the decision of the Full Bench of this Court in Eknath Bhanudas Utane Shankarrao Deorao Jumde and another reported in MANU/MH/0001/1971 : AIR 1971 Bombay 1 to buttress the submission that the Rent Control Order was essentially a temporary legislation. In rebuttal, the learned Senior Counsel Shri Anand Jaiswal would rely on the decision of the Apex Court in District Mining Officer and others v. Tata Iron and Steel Co. and another reported in MANU/SC/0412/2001 : (2001) 7 SCC 358 in support of the submission that the decision of the Full Bench militates against the enunciation of law by the Apex Court that a legislation would not be temporary legislation unless the legislature clearly specifies a period or time for its expiry. Equally laborious submissions are advanced on the effect and implication of the existence of the Saving Clause in the Rent Act, the bone of contention being whether the Saving Clause is indicative of a contrary intention as would exclude the applicability of section 7 of the General Clauses Act.

7. In my considered opinion, it would not be necessary to make any decisive observation on the nature of the Rent Control Order or the effect and implication of the Saving Clause in the Rent Act. Assuming arguendo that the learned Senior Counsel Shri Anand Jaiswal is justified in invoking section 7 of the General Clauses Act, the decree of possession would not be vulnerable unless the statutory disability of the landlord in view of the protection extended to the tenancies of open plots is held to be a right or privilege acquired or accrued as would bring section 7 of the General Clauses Act into play. For reasons spelt out infra, I have no hesitation in holding that the eclipse of the right of the landlord under the general law to determine the tenancy of open plot and the statutory liability does not bestow a corresponding right or privilege upon the lessee.

8. In my opinion, notwithstanding the argument of the learned Senior Counsel Shri Anand Jaiswal to the contrary, the issue which falls for consideration is not res integra. In Boddington v. Wisson reported in 1951 (1) All England Law Report the Court of Appeal considered regulation 62 (4-A) of the Defence (General) Regulation, 1939 which reads thus:

"Where the whole or any part of an agricultural holding is subject to a contract of sale made since Sept. 3, 1939, or has been sold in pursuance of a contract of sale made since that date, any notice to quit that holding or any part thereof given to the tenant so as to expire at any time after the end of the year 1941 shall be null and void: Provided that this paragraph shall not apply to any notice if (whether before or after the giving thereof) the Minister of Agriculture and Fisheries consents in writing thereto."

Sir Raymond Evershed held that the tenant's protection under the regulation could not be described as a right or privilege nor could the limitation of the landlord right be described as an obligation or liability within the meaning of section 38 of the Interpretation Act, 1889 which would survive the revocation of regulation 62 by the Defence Regulation (No. 3) Order, 1948. Sir Raymond Evershed articulates thus:

"I do not think that that paragraph can assist the tenant, nor do I think that the tenant's protection under the regulation could be fairly described in the words of sub-s. (2) (c) as a "right" or "privilege", or the limitation of the landlord's right be fairly described as an "obligation" or "liability", nor do I think that it is a penalty or a punishment in respect of an offence within para. (d). Counsel for the tenant put forward an argument of some ingenuity on para. (e), which says that the repealing Act shall not

"affect any investigation in respect of any such right, privilege, obligation, liability .. as aforesaid."

If there is here no right or privilege--and I have said that, in my view, there is not--the case cannot be covered by "investigation" because the only investigations referred to are in respect of such rights as are previously mentioned. The argument has failed to satisfy me that the investigation which reg. 62(4A) supposes the Minister will, if he performs his ministerial duties aright, undertake before giving his consent is an investigation, as envisaged by the final words of para. (e). Nor do I think the landlord's right to ask for consent could be described as a right within para. (c) or as a right to require an investigation within para. (e)."

9. The observations of Sir Raymond Evershed are referred to by the Apex Court in Qudrat Ullah v. Municipal Board, Bareilly reported in MANU/SC/0418/1973 : AIR 1974 SC 396. One of the questions which fell for consideration before the Apex Court was whether the disability of the landlord by virtue of section 3 of the repealed United Provinces (Temporary) Control of Rent and Eviction Act, 1947 bestows a corresponding right upon the tenant as would attract section 6 of the General Clauses Act. Section 3 which fell for consideration reads thus:

"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.....".

The Apex Court assumes arguendo that section 6 of the General Clauses Act applies and then articulates thus:

"20. Let us assume that S. 6 of the General Clauses Act applies. Even so, what is preserved is (a) the previous operation of the repealed enactment, (b) rights, privileges, obligations and liabilities acquired, accrued or incurred under the enactment repealed and (c) investigations, legal proceedings and remedies in respect of any such right, privilege, obligation or liability. According to Shri Sarjoo Prasad for the respondent, the defendant had no right or privilege under the repealed Act, since S. 3 is only a procedural restriction and does not create a substantive right. All that S. 3 therein laid down was that:

"No suit shall, without the permission of the District Magistrate, be filed in any civil Court against a tenant for his, eviction from any accommodation except on one or more of the following grounds......"

It is more a procedural dis ability that is cast, not a substantive cause of action that is created. Citing the authority in Haripada Pal Ghosh v. Tofajaddi Ijiardar, ILR 60 Cal 1438-(AIR 1934 Cal 80(2)), he argued that by operation of the repeal, the restriction on his right is removed and so he can now support his present action even if previously the Act had barred it. It is true that a Division Bench of the Calcutta High Court in the case cited, dealing with a situation where an Act had been repealed by another, observed:

"The disability, which was imposed by the previous law having been removed, there was nothing that stood in the way of the plaintiffs recovering rent at the contract rate, when the cause of action for the same arose. The effect of substitution of the new section 48 for the old Section 48 by Section 31 of Act IV of 1928, was that the old section was repealed. The effect of repeal of a statute in the absence of saving clauses is that it has to be considered as if the statute, so repealed, had never existed."

There is force in this submission.

The Apex Court observes that the requirement to obtain the permission of the District Magistrate before instituting eviction proceedings against the tenant is more a procedural disability that is cast and not a substantive cause of action that is created.

10. The learned Senior Counsel Shri Anand Jaiswal would however, submit that the decision in Qudrat Ullah v. Municipal Board, Bareilly revolves on the factual matrix and the observations made therein are in the context of a temporary legislation. I am not persuaded to agree. The Apex Court assumes that section 6 of the General Clauses Act applies and then proceeds to hold that the statutory disability cast on the landlord would not be a right or privilege nor would the statutory protection conferred upon the tenant be a corresponding obligation or liability of the landlord. The Apex Court has drawn support from the decision of the Court of Appeal in Boddington v. Wisson and has observed thus:

21. A. ruling which lends more support to the position we take may be referred to here. Boddington v. Wisson, (1951) All ER 166, 169 dealt with a case where the landlord of a holding served on the tenant a notice to quit without the consent in writing of the Minister of Agriculture and Fisheries, as required by Regulation 62 (4A) of the Defence (General) Regulations, 1939. Before the period of notice expired, the Defence Regulations Order, 1948 revoked the earlier regulation. Dealing with S. 38 of the Interpretation Act, 1889, which corresponds to Section 6 of the General Clauses Act, Evershed, M.R., disposed of the contention of the tenant, that the repeal would not affect anything duly done under another statute thus:

"...... nor do I think that the tenant's protection under the regulation could be fairly described in the words of sub-s. (2)(c) as a "right" or "privilege", or the limitation of the landlord's right be fairly described as an "obligation" or "liability", nor do I think that it is a penalty or a punishment in respect of an offence within para (d)".

11. Shri R.L. Khapre has drawn my attention to the decision of a learned Single Judge in Civil Revision Application 654 of 1995 Shri Jamnadas s/o Jeeraj Lohana v. Subhashchandra s/o Bajrangbali Agrawal and in particular to the following observations:

6. Advocate Shri Haq, points out the judgment in the case of Marutrao Pandurang Zende vrs. Eknath Shivram Jagtap (MANU/MH/0295/1977 : 1980 Mh.L.J. 238), in which in similar circumstances, this court has found that disability of landlord in relevant Rent Legislation in removing the tenant from the suit premises does not bestow a corresponding right upon the tenant to remain in possession of the suit premises. If the provision of Rent Act are withdrawn the disability upon the landlord is removed and landlord can proceed against the tenant in accordance with the general law as if protection under the Rent Act is not available to the tenant. It has been observed that if during the pendency of the appeal, provision of relevant Rent Act are withdrawn from the area in question, the appeal has to be disposed of in accordance with general law and in accordance with the provisions of Rent Act. This court has relied upon the judgment of Hon'ble Apex Court reported at MANU/SC/0418/1973 : AIR 1974 SC 396 (Qudrat Ullah vrs. Municipal Board, Bareilly), in support of the conclusions drawn. Recently this court has in 2006 (2) All M.R. 133 (Maharaji wd/o Bajrangi Vishwakarma vrs. Sayeedabi Haji Sayyad Gani), has again taken similar view and in this judgment, the provisions of Maharashtra Rent Act, 1999 with provisions of C.P. and Berar Letting of Houses and Rent Control Order, 1949 are looked into.

7. All these three judgments conclusively show that right of landlord which got eclipsed on account of Rent Control Legislation revives after the Rent Control Legislation is removed and the landlord therefore can prosecute his suit further under the General Law i.e. as per the provisions of Transfer of Property Act. In the present matter, the suit was filed by the respondent/landlord on 5.5.1984 when the Rent Control Legislation was not applicable to open plots. At that time C.P. and Berar Regulation of Letting of Accommodation Act, 1946 with 1949 Order there under (hereinafter referred to as "1946 Act" and "1949 Order") only regulated the tenancies of houses. In the year 1989 for the first time open plots were added in the 1949 Order and thus tenants of open plots also were protected. Hence when application was moved by the applicant tenant in 1995 the protection was available even to the tenants of open plots. However, with the repeal of the 1946 Act and 1949 Order, by virtue of provisions of Maharashtra Rent Control Act, 1999 the said requirement is now not in existence. Thus the protection which was available to the revision applicant/tenant from 1989 till the year 2000 is now no longer available. The right of landlord to proceed as per general law stood eclipsed from 1989 to 2000, but as on the date of filing of the suit there was no such protection to the tenant filing a suit itself was not barred. After coming into force of the provisions of Maharashtra Rent Act, 1999 the revision applicant ceased to enjoy said protection. Jurisdiction of Civil Court to pass decree of eviction and execute it is restored and hence the respondent landlord therefore, can proceed further with his suit in accordance with the general law.

The other decision in which the question squarely fell for consideration is Mohd. Aziz-Ul-Haq Mohammad Abdul Haq (since deceased through L.Rs.) & ors. v. Dilip Murlidhar Lohiya reported in MANU/MH/1238/2008 : 2009 (2) ALL Mr. 813 and the relevant observations read thus:

10. In this respect, it is to be noted that by first amendment effected on 21.7.1989, the word "house" appearing in Rent Control Order was replaced by word "premises" and then on 26.10.1989 clause 13A came to be added to Rent Control Order. As per that clause 13A, the landlord was prohibited from obtaining a decree or from executing a decree in relation to open plots without first obtaining permission of Rent Controller, as contemplated by clause 13(3) thereof. Clause 13(3) enumerates various grounds under which the landlord can move Rent Controller and seek permission to terminate the tenancy of the tenant. Those grounds are not very relevant for consideration in this writ petition. This position was prevailing even on 27.10.1994 when the lower appellate Court decided the appeal of the respondent. However, the provisions of Maharashtra Rent Control Act, 1999, then came into force on 31.3.2000 and the requirement of obtaining permission of Rent Controller even for determining the tenancy of open plots ceased to apply. When this amendment came into force, the matter was pending before this Court in Civil Revision Application, which has been later on converted into Writ Petition.

11. This position is considered by me in Civil Revision Application No. 654 of 1995 Date of Decision: 29.08.2008. The relevant observations as contained in paras 6 & 7 of said judgment. Those observations are as under:

6. Advocate Shri Haq, points out the judgment in the case of (Marutrao Pandurang Zende vrs. Eknath Shivram Jagtap)6, MANU/MH/0295/1977 : 1980 B.C.I. 31: 1980 Mh.L.J. 238, in which in similar circumstances, this court has found that disability of landlord in relevant Rent Legislation in removing the tenant from the suit premises does not bestow a corresponding right upon the tenant to remain in possession of the suit premises. If the provision of Rent Act are withdrawn the disability upon the landlord is removed and landlord can proceed against the tenant in accordance with the general law as if protection under the Rent Act is not available to the tenant. It has been observed that if during the pendency of the appeal, provision of relevant Rent Act are withdrawn from the area in question, the appeal has to be disposed of in accordance with general law and in accordance with the provisions of Rent Act. This court has relied upon the judgment of Hon'ble Apex Court reported at MANU/SC/0418/1973 : 1973 DGLS (soft) 377: AIR 1974 SC 396: 1974(1) SCC 202. (Qudrat Ullah vrs. Municipal Board, Bareilly)7, in support of the conclusions drawn. Recently this court has in 2006 (supp) Bom. C.R. 747 (N.B.): 2006(2) All M.R. 133 (Maharaji wd/o Bajrangi Vishwakarma Vs. Sayeedabi Haji Sayyad Gani)8, has again taken similar view and in this judgment, the provisions of Maharashtra Rent Act, 1999 with provisions of C.P. and Berar Letting of Houses and Rent Control Order 1949 are looked into.

7. All these three judgments conclusively show that right of landlord which got eclipsed on account of Rent Control Legislation revives after the Rent Control Legislation is removed and the landlord therefore can prosecute his suit further under the General Law i.e. as per the provisions of Transfer of Property Act. In the present matter, the suit was filed by the respondent/landlord on 5.5.1984 when the Rent Control Legislation was not applicable to open plots. At that time C.P. and Berar Regulation of Letting of Accommodation Act, 1946 with 1949 Order there under (hereinafter referred to as "1946 Act" and "1949 Order") only regulated the tenancies of houses. In the year 1989 for the first time open plots were added in the 1949 Order and thus tenants of open plots also were protected. Hence when application was moved by the applicant tenant in 1995 the protection was available even to the tenants of open plots. However, with the repeal of the 1946 Act and 1949 Order, by virtue of provisions of Maharashtra Rent Control Act, 1999 the said requirement is now not in existence. Thus the protection which was available to the revision applicant/tenant from 1989 till the year 2000 is now no longer available. The right of landlord to proceed as per general law stood eclipsed from 1989 to 2000, but as on the date of filing of the suit there was no such protection to the tenant filing a suit itself was not barred. After coming into force of the provisions of Maharashtra Rent Act, 1999 the revision applicant ceased to enjoy said protection. Jurisdiction of Civil Court to pass decree of eviction and execute it is restored and hence the respondent landlord therefore, can proceed further with his suit in accordance with the general law.

12. In view of these observations, it is clear that the present controversy is squarely covered by said judgment. The right of landlord to proceed as per provisions of Transfer of Property Act, stood eclipsed from 1989 to 2000 and then revived again after coming into force Maharashtra Rent Control Act, 1999. The Civil Court, therefore, can pass a decree or execute a decree against a tenant of open plot under General law. In view of this position, it is apparent that in changed circumstances, the judgment and decree dated 27.10.1994 delivered by Joint District Judge, Akola, in Regular Civil Appeal No. 193 of 1989 is unsustainable. The same is accordingly quashed and set aside. The judgment and decree dated 27.4.1989 delivered in Small Cause Civil Suit No. 268 of 1987 by 5th Joint Civil Judge, Junior Division, Akola, is hereby restored.

12. The effect of the repeal of the Rent Control Order and the withdrawal of the protection to the tenant of open plot is considered and answered by this Court relying on the decision of the Apex Court in Qudrat Ullah v. Municipal Board, Bareilly. The statutory disability from which the landlord suffered while the tenant of open plot was extended the protective umbrella of the Rent Control Order is held not to bestow a corresponding right or privilege to the tenant as would bring into play the provisions of section 7 of the General Clauses Act. It is in view of this settled position of law that, I have considered it unnecessary to delve in the submission that the Rent Control Order was a temporary legislation or in the submission that the existence of the repeal and saving clause in the Rent Act is an expression of different or contrary intention as would rule out the applicability of the General Clauses Act.

13. The learned Senior Counsel Shri Anand Jaiswal would however, submit that the decision of the Apex Court in Isha Valimohamed and another v. Haji Gulam Mohamad and Haji Dada Trust reported in MANU/SC/0387/1974 : (1974) 2 SCC 484 strikes a different chord. I am afraid, I cannot concur.

The question before the Division Bench of the High Court which heard the reference from a learned Single Judge was thus:

Whether the landlord is entitled to maintain a suit for recovery of possession from the tenant, on the ground of sub-letting under Section 13(1) (e) of the Bombay Rent Act (No. 57 of 1947), as applied to Gujarat State on December 31, 1963, where the sub-letting was made during the pendency of the Saurashtra Rent Control Act and neither the notice to terminate the contract was given nor the suit was filed before the date on which the Saurashtra Rent Control Act repealed?

The Division Bench held that the suit to recover possession of the premises was competent under section 13(1)(e) of the Saurashtra Act notwithstanding the repeal of the Act as the landlord had an accrued right within the meaning of section 51, proviso (2) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 ("Bombay Act").

The tenant sub-let the premises while the Saurashtra Act was in force. Section 15 of Saurashtra Act prohibited sub-letting notwithstanding anything contained in any law and sub-letting was a ground for ordering eviction under section 13(1)(e) of the Saurashtra Act. The submission on behalf of the tenant was that since the landlord did not issue the notice of termination of tenancy before the repeal of the Saurashtra Act the landlord did not have the accrued right to recover possession which could survive the repeal.

The Apex Court observes that if a notice under the provisions of the Transfer of Property Act was necessary to determine the tenancy on the ground of sub-letting, the High Court was not right in its view that the landlord had an accrued right to recover possession on the ground of subletting. It would be relevant to reproduce the following observations of the Apex Court in the said decision:

10. If a notice under the provisions of the Transfer of Property Act was necessary to determine the tenancy on the ground of sub-letting, we do not think that the High Court was right in its view that a right accrued to the landlord to recover possession of the premises under Section 13(i)(e) of the Saurashtra Act merely because the tenant sub-let the premises and that was prohibited by Section 15 of that Act. In other words, if the assumption of the High Court that a notice terminating the tenancy on the ground of sub-letting was necessary for filing a suit under Section 13(1)(e) of the Saurashtra Act was correct, then we do not think that the respondent-landlord had an accrued right which would survive the repeal of that Act unless the notice was issued determining the tenancy during the currency of that Act. We do not think that the right of a landlord to recover possession on the ground that the tenant has sub-let the premises is an accrued right before the issue of a notice, if under any law it was necessary for the landlord to issue the notice to determine the tenancy on the ground of sub-letting.

11. In Hamilton Cell v. White Atkin L.J. said that the provision of Section 28(2)(c) of the English Interpretation Act, corresponding to Section 51, proviso (2), of the Bombay Act, was not intended to preserve abstract rights conferred by the repealed Act and that it applies only to the specific rights given to an individual upon the happening of one or more events specified in the statute. The Court held in that case that a tenant's general right to compensation for disturbance would not survive the repeal of the Agricultural Holdings Act, 1908. But, where a landlord, before the repeal, had given his tenant notice to quit, the tenant had 'acquired a right' which would 'accrue' when he quitted his holding -- the right to receive compensation. In Abbott v. Minister of Lands where the appellant claimed that as a purchaser of Crown land in New South Wales in 1871 he became entitled under the Crown Lands Alienation Act 1861 to make further purchases of Crown land adjoining his original holding. The Act of 1861 was repealed by the Crown Lands Act, 1884 which, however, provided that notwithstanding the repeal 'all rights accrued' by virtue of the repealed enactment should remain unaffected. The Judicial Committee held that the mere right existing at the date of the repealing statute to take advantage of the provisions of the Act repealed was not a 'right accrued' within the meaning of the saying clause. In Director of Public Works v. Ho Po Sang, the Privy Council has had to consider the question. It was 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, so that the lessee had no more than a hope that it would be granted. Lord Morris of Borth-y-Gest said:

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."

In Free Lanka Insurance Co. Ltd. v. Ranasinghe Lord Evershed said that the distinction between what was, and what was not, a right must often be one of great finance and the Court held that a claim given by the Ceylon Motor Car Ordinance of 1936 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".

12. We do not, however, think that the right of the landlord to terminate the tenancy by giving a notice on the ground that the tenant has sub-let the premises was an accrued right within the meaning of Section 51 of the Bombay Act which would survive the repeal of the Saurashtra Act.

It was then contended on behalf of the landlord that even if it assumed that the landlord did not have an accrued right he did have a privilege which would survive the repeal. The Apex Court considers the submission thus:

14. We think that the respondent-landlord had the legal freedom as against the appellants to terminate the tenancy or not. The appellants had no right or claim that the respondent should not terminate the tenancy and the respondent had, therefore, the privilege of terminating it on the ground that appellants had sub-let the premises. This privilege would survive the repeal. But the problem would still remain whether the respondent had an accrued right or privilege to recover possession of the premises under Section 13(1) of the Saurashtra Act on the ground of the sub-letting before the repeal of that Act. The fact that the privilege to terminate the tenancy on the ground of sub-letting survived the repeal does not mean that the landlord had an accrued right or privilege to recover possession under Section 13(1) of that Act as that right or privilege could arise only if the tenancy had been validly terminated before the repeal of the Saurashtra Act.

However, the Apex Court noted that it was not necessary for the landlord to issue notice under the Transfer of Property Act to terminate the tenancy on the ground of subletting and on this premise the Apex Court concludes that the landlord was entitled to recover possession of the premises under section 13(1) of the Saurashtra Act which right would survive the repeal of the said Act in view of the proviso (2) of section 51 of the Bombay Act.

The decision is not an authority for the proposition that the statutory disability cast on the landlord to obtain permission from the Rent Controller before initiating eviction proceedings creates a corresponding right or privilege in favour of the tenant.

14. To conclude, these appeals do not involve any substantial question of law, and are dismissed with no order as to costs.

15. The possession of the lessee shall stand protected for a period of eight weeks to enable the lessee to approach the Hon'ble Apex court.


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