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1960 DIGILAW 19 (MP)

Jarbai v. Phirojsha Bairamji

1960-01-15

K.L.PANDEY, P.V.DIXIT

body1960
ORDER P.V. Dixit, C.J. This order will also govern Second Appeals Nos. 348 of 1957, 70, 78, 234, 299, 415, 432, 454, 465 and 522all of 1958, and 75, 107, 120 all of 1959, Misc. (S) Appeal No. 122 of 1959, and Second Appeals Nos. 239 and 253 of 1959. All these appeals have come before us by way of cases referred by our learned brothers sitting singly and raise a question of the construction to be placed on Sections 16 and 17 of the Madhya Pradesh Accommodation Control Act, 1955, hereinafter referred to as the Act, and Section 6 of the Madhya Pradesh Extension of Laws Act, 1958. All these appeals, with the exception of Miscellaneous (Second) Appeal No. 122 of 1959, arise out of suits for eviction instituted in the Mahakoshal, Vindhya Pradesh and Bhopal regions of the State of Madhya Pradesh before the coming into force of the M. P. Accommodation Control Act, 1955, on the 1st January 1959. The excepted appeal arises out of execution proceedings of a decree for ejectment passed on 23rd July 1957 by the Subordinate Judge, Bhopal, against a tenant. Some of the Appellants before us are landlords and the others are tenants. Immediately before 1st January 1959, different Acts regulating rent and letting of accommodation were in force in the Mahakoshal, Madhya Bharat Vindhya Pradesh and Bhopal regions. In Mahakoshal, the C. P. and Berar Regulation of Letting of Accommodation Act, 1946, was in force. The same Act, as adapted by the former State of Vindhya Pradesh was in force in that area. In Madhya Bharat, the M. B. Accommodation Control Act, 1955, was operative, and in Bhopal the relevant Act in force was the Bhopal State Bent Control Act, 1956. The Madhya Pradesh Extension of Laws Act, 1958, extended to the whole of Madhya Pradesh inter alia the Madhya Bharat Accommodation Control Act, 1955, with certain modifications from 1st January 1959. Section 6 of the M. P. Extension of Laws Act runs as follows: 6. The Madhya Pradesh Extension of Laws Act, 1958, extended to the whole of Madhya Pradesh inter alia the Madhya Bharat Accommodation Control Act, 1955, with certain modifications from 1st January 1959. Section 6 of the M. P. Extension of Laws Act runs as follows: 6. (1) If immediately before the appointed day, there is in force in any region of the State any law corresponding to any of the Act a now extended to that region, that law shall, save as otherwise expressly provided in the Act, stand repealed: Provided that the repeal shall not affect (a) the previous operation of any law so repealed or anything done or suffered thereunder, or (b) any right, privilege, obligation or liability acquired, accrued or incurred under any law so repealed, or (c) any penalty, forfeiture or punishment incurred in respect of any offence committed against any law so repealed, or (d) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if this Act had not been passed: Provided further that, subject to the preceding proviso, anything done or any action taken (including any appointment or delegation made, notification, order, instruction or direction issued, rule, regulation, form, bye-law or scheme framed, certificate obtained, patent, permit or licence granted or registration effected) under any such law shall be deemed to have been done or taken under the corresponding provision of the Act as now extended to that region, and shall continue to be in force accordingly, unless and until superseded by anything done or any action taken under the said Act. (2)........ Section 4 of the Act lays down the grounds on which a suit for the eviction of a tenant from any accommodation can be filed. Sections 16 and 17 of the Act are as follows: 16. No decree for the eviction of a tenant from any accommodation passed before the date of commencement of this Act shall, in so far as it relates to the eviction of such tenant, be executed against him so long as this Act remsins in force, except on any of the grounds mentioned in Section 4: Provided that the tenant pays to the landlord the rent payable under the decree. 17. In all suits for eviction of tenants from any accommodation pending on the date of the commencement of this Act, no decree for eviction shall be passed except on one or more of the grounds mentioned in Section 4 of this Act. In all these cases, after the extension of the Act on 1st January 1959 to the whole of Madhya Pradesh, the tenants raised the contention that the landlords could not obtain a decree or order for possession of the rented out accommodation without showing any of the grounds mentioned in Section 4 of the Act. The common question, therefore, raised in these appeals is whether a landlord is entitled to evict his tenant without establishing any of the grounds mentioned in Section 4 of the Act. In other words, the common question is whether in suits for eviction pending on 1st January 1959 or in appeals arising out of eviction suits and pending on that date or in execution proceedings of a decree for eviction obtained before 1st January 1959, the tenant can claim the benefit of the protection given by Section 4 of the Act. Unfortunately in none of these appeals any specific question has been referred to us for decision by the referring Judge. This should have been done. The departure from the normal procedure has made it necessary for us to formulate the common question arising in these appeals. We would have been justified in referring back the oases to the learned single Judges for stating the question or questions desired to be decided by a Division Bench. Bat as there are numerous eviction suits pending in the subordinate Courts, and as there seems to be some misconception in the mind of the subordinate judiciary as to the true meaning and scope of Sections 16 and 17 of the Act and Section 6 of the Extension of Laws Act, 1958, we propose to express our views on the question thus informally presented. The language of Sections 16 and 17 of the Act is plain enough to show that in terms the provisions of those sections and the grounds of ejectment enumerated in Section 4 of the Act are to apply to suits pending on 1st January 1959 and to the execution of a decree for eviction obtained before 1st January 1959.It has not been contended before us that Sections 16 and 17 of the Act standing by themselves have not this effect. What has been contended is that the provisions of the C. P. and Berar Regulation of Letting of Accommodation Act, 1946, and the Bhopal State Bent Control Act, 1956, in the matter of the control of rent, procedure for eviction of a tenant, and the grounds on which he could he evicted, were different from the provisions of the extended Act; that not being identical, they were not corresponding laws which could be said to have been repealed by virtue of Section 6 of the M. P. Extension of Laws Act, and that, therefore, pending suits and execution of decrees for eviction obtained on 1st January 1959 bad to be decided or disposed of in accordance with the old laws and not according to Sections 16 and 17 of the extended Act. It was further said that even if the aforesaid Acts were taken to have been repealed by Section 6 of the Extension of Laws Act, the repeal could not affect the rights which vested in the parties on the institution of suits for eviction before the 1st January 1959 or on the obtaining of a decree for eviction before the 1st January 1959, and that consequently Section 16 was not applicable to such decrees and Section 17 could not be applied to pending suits. This contention, if accepted, would altogether render Sections 16 and 17 of the Act redundant and purposeless and cannot be accepted. It is true that the provisions of the C. P. and Berar Regulation of Letting of Accommodation Act, 1946, and the Bhopal State Rent Control Act, 1956, differ from those of the new Act. But those Acts as well as the new are all concerned with the regulation and control of rent, letting of accommodation and restrictions on eviction. In order that two laws may be corresponding, it is not necessary that one should be identical in every respect with the other. But those Acts as well as the new are all concerned with the regulation and control of rent, letting of accommodation and restrictions on eviction. In order that two laws may be corresponding, it is not necessary that one should be identical in every respect with the other. What has to be seen is whether one law deals with the same subject-matter in omnibus as the other. There can be no doubt that the Acts referred to are Acts corresponding to the extended Act; and if, as we think, they are so, then clearly they stand repealed on the extension of the new Act to the whole of Madhya Pradesh on the 1st January 1959. The proviso to Section 6 of the M. P. Extension of Laws Act no doubt says that the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any repealed law. Under this proviso, the rights vested in the parties on the institution of suits for eviction before the 1st January 1959 and on the passing of a decree for eviction before that date are no doubt not affected by the repeal. But from that it does not follow that the provisions of the new Act also cannot affect such vested rights. What the proviso says is that the 'repeal 'shall not affect' and not that 'nothing in the extended Act or any repeal effected by the substantive provision of Section 6 shall affect'. The proviso to Section 6 of the Extension of Laws Act was inserted by way of abundant caution. In the absence of the proviso, Section 10 of the M. P. General Clauses Act, 1957 would have applied. The question whether the new Act keeps alive old rights and liabilities or whether it destroys them has to be decided by the provisions of the new Act itself and not by the repealing provision viz, Section 6 of the M. P. Extension of Laws Act, 1958. The question whether the new Act keeps alive old rights and liabilities or whether it destroys them has to be decided by the provisions of the new Act itself and not by the repealing provision viz, Section 6 of the M. P. Extension of Laws Act, 1958. That, this is the principle to be applied when the repeal of an enactment is followed by a fresh legislation is now authoritatively settled by the decisions of the Supreme Court in State of Punjab v. Mohar Singh AIR 1955 SC 84 and Indira Sohanlal v. Custodian of Evacuee Property AIR 1956 SC 77 , In the former case, it was observed at page 88: 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 a 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. This principle was reiterated in Indira Sohanlal v. Custodian of Evacuee Property AIR 1956 SC S77. Applying these principles here, it is manifest that the vested rights which a party may have acquired on the institution of a suit for eviction before 1st January 1959 or on the passing of a decree for eviction have not been kept alive but expressly destroyed. The proviso to Section 6 of the Extension of Laws Act no doubt saved these rights. The proviso to Section 6 of the Extension of Laws Act no doubt saved these rights. But their continuance is plainly incompatible with the express provisions of Sections 16 and 17 of the Act destroying those rights by making the grounds for ejectment specified in Section 4 applicable to pending-suits and decrees obtained before 1st January 1959. It was urged that the expression "save as otherwise expressly provided in the Act" occurring in Section 6 of the Extension of Laws Act read with the opening sentence of Section 2-A of the Act, which provides that the M. P. Accommodation Control Act shall come into force throughout Madhya Pradesh "subject to the provisions of Section 6" indicated that pending suits and decrees obtained before the coming into force of the Act have not been affected by the new Act. We do not agree. The plain meaning of the expression "save as otherwise expressly provided in the Act" is that if there is an express provision to the contrary in the M. P. Accommodation Control Act, 1955, about the repeal of the corresponding laws, then the corresponding laws shall not, to the extent provided by the contrary provision, stand repealed. There is no such provision in the extended Act saving to any extent the repeal of the corresponding laws effected by Section 6 of the Extension of Laws Act. Section 2- A of the Act is not such a provision. The reference to Section 6 at the very beginning of Section 2-A of the Act is to Section 6 of the Act itself and not to Section 6 of the Extension of Laws Act. It will be seen that Section 6 of the Act, which deals with the compensation payable to a tenant in case of eviction from any non-residential accommodation, applied in the first instance only to the cities of Lashkar (including Gwalior and Morar), Indore, Ujjain and Ratlam. Sub-section (2) of Section 6 gives to the Government the power to apply the provisions of that section to any other city or town. It is thus plain that Section 2-A of the Act is not a provision excluding pending suits and decrees obtained before 1st January 1959 from the ambit of the provisions against ejectment in the new Act. Sub-section (2) of Section 6 gives to the Government the power to apply the provisions of that section to any other city or town. It is thus plain that Section 2-A of the Act is not a provision excluding pending suits and decrees obtained before 1st January 1959 from the ambit of the provisions against ejectment in the new Act. On the clear and plain language of Sections 16 and 17, it seems clear to us that the bar to ejectment mentioned in Section 4 of the Act applies to pending suits as also to decrees passed before the Act came into force. It was then said on behalf of the landlords that Section 17 was confined to suits only and that it did not apply to pending appeals arising out of such suite for ejectment. We do not think so. No doubt, Section 17 does not expressly include or exclude from 'pending suits' pending appeals. But a suit and all the appeals arising out of it are but one legal proceeding and an appeal is but a continuation of a suit. The mere fact that a decree has been passed cannot preclude the Court of Appeal from taking into consideration the change in law affecting retrospectively the proceedings and applying the new provisions to the appeal and passing a decree according to that law. In our view, Section 17 applies to pending appeals also. Indeed, when the decrees passed before the 1st January 1959 and the pending suits on that date have been brought within the ambit of Section 4 and when no suit can be filed after the coming into force of the Act except on any of the grounds mentioned in Section 4, it would be altogether anomalous to hold that in pending appeals the benefit of the grounds for ejectment stated in Section 4 cannot be availed of by the tenants. One other argument put forward on behalf of the landlords requires a passing mention. It was said on the strength of Bankelal v. Sant Sharan 1959 MPLJ 589 that secticn 17 could not be applied to pending suits inasmuch as a person whose tenancy had come to an end before the commencement of the Act was not a tenant for the purposes of the Act and could not claim the protection given thereunder. It was said on the strength of Bankelal v. Sant Sharan 1959 MPLJ 589 that secticn 17 could not be applied to pending suits inasmuch as a person whose tenancy had come to an end before the commencement of the Act was not a tenant for the purposes of the Act and could not claim the protection given thereunder. In Bankelal's case 1959 MPLJ 589 it has been held that a person whose tenancy has come to an end before the commencement of the Act is not entitled to claim protection under the Act and that the expression 'tenant' for the purpose of the Act covers only those cases where the tenancy was determined after the coming into force of the Act and not earlier. This question is the subject-matter of a specific reference in S. A. No. 33 of 1959, which is not before us. The contention will have to be dealt with when that appeal comes up for hearing before us. For the present, it is sufficient to say that the view taken in Bankelal'a case 1959 MPLJ 589 runs counter to the observations of the Supreme Court in Dr. K. A. Dhairyawan v. J. R. Thakur AIR 1958 8 C 789 in relation to the Bombay Kent, Hotel and Lodging House Bates Control Act, 1947. It was observed by the Supreme Court (at p. 794): All that the Act does is to give to the person who continues to remain in possession of the land, although the period of the lease had come to an end, the status of a statutory tenant. That is to say, although the lease had come to an end but the lessee continued to remain in possession without the consent of the lessor, he would nonetheless be a tenant of the land and could not be evicted save as provided by the Act. Krishnan J., who delivered the main judgment in Bankelal's case 1959 MPLJ 589 , did not notice this decision of the Supreme Court. Khan J. noticed it but distinguished it on facts. It may also be mentioned that the reasoning given in the order of reference in the case of Bhagwandas v. Ramchandra 1954 MBHCR 616, which the learned Judges who decided Bankelal'a case 1959 MPLJ 589 did not regard as sound, was followed by this Court in Diwan Ramrao v. Sheoratan Shivgovind 1957 MPLJ 738. It may also be mentioned that the reasoning given in the order of reference in the case of Bhagwandas v. Ramchandra 1954 MBHCR 616, which the learned Judges who decided Bankelal'a case 1959 MPLJ 589 did not regard as sound, was followed by this Court in Diwan Ramrao v. Sheoratan Shivgovind 1957 MPLJ 738. We are, therefore, of the opinion that in all pending suits for eviction or in pending appeals arising out of suits for eviction, no decree for eviction can be passed except on one or more of the grounds mentioned in Section 4 of the Act and that a decree for eviction obtained before the 1st January 1959 cannot be executed against a tenant so long as the Act is in force, except on any of the grounds mentioned in Section 4, With this opinion, we direct that all these appeals shall now be placed before the referring Judges for disposal according to law.