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1967 DIGILAW 4 (DEL)

SHAKUNTALA v. BHAGWAN DASS

1967-01-06

S.K.KAPUR

body1967
( 1 ) BHAGWAN Dass respondent obtained a decree for possession of the land in question on November 11, 1964. The Slum Areas (Improvement and Clearance) Amendment Act, 1964 (Act No. XLIII of 1964) came into force on 27th February, 1965. Before 27th February, 1965, however, the landlord filed an application for execution of the decree and warrants for eviction of the tenant were issued. The bailiff, however, returned the warrants with a report that there was apprehension of breach of peace and possession could not be delivered without police aid. The said Amendment Act came into force in the meantime The judgment-debtor Bled an application under S. 19 of the Slum Areas (Improvement and Clearance) Act, 1956, objecting to the execution of the decree without permission from the Competent Authority under the said Act as amended in 1964. The short controversy that arises between the parties is whether it is necessary for a decree-holder to obtain permission of the Authority under the said Act before executing the decree? The trial Court by judgment dated 10th December, 1965, decided that Cl. (b) of S. 19 as amended by Act XLIII of 1964 applied only to decrees or orders obtained after coming into force of the Amending Act in suits and proceedings instituted before the said Amending Act and since in this case the decree had been obtained earlier it could be executed without such permission. IT accordingly dismissed the objections of the judgment-debtor. The lower appellate Court by judgment dated 8th February. 1966, upheld the view of the trial Court and consequently dismissed the appeal. ( 2 ) IT may be pointed out that the decree is for possession of the land. Section 19. as it stood before the amendment and as amended. reads as under- Before Amendment: "19 (1) Notwithstanding anything contained in any other law for the time being in force. no person who has obtained any decree or order for the eviction of a tenant from any building in a slum area shall be entitled to execute such decree or order except with the previous permission in writing of the competent authority. (2) Any person desiring to obtain the permission referred to in sub-section (1) shall make an application in writing to the competent authority in such form and containing such particulars as may be prescribed. (2) Any person desiring to obtain the permission referred to in sub-section (1) shall make an application in writing to the competent authority in such form and containing such particulars as may be prescribed. (3) On receipt of such application the competent authority, after giving an opportunity to the tenant of being heard and after making such summary inquiry into the circumstances of the case as it thinks fit. shall by order in writing either grant such permission or refuse to grant such permission. (4) Where the competent authority refuses to grant the permission it shall record a brief statement of the reasons for such refusal and furnish a copy thereof to the applicant. After amendment: "19. Proceedings for eviction of tenants not to be taken without permission of the competent authority (1) Notwithstanding anything contained in any other law for the time being in force , no person shall, except with the previous permis- sion in writing of the competent authority, (a) Institute, after the commencement of the Slum Areas (Improvement and Clearance) Amendment Act, 1964, any suit or proceeding for obtaining any decree or order for the eviction of a tenant from any building or land in a slum area; or (b) where any decree or order is obtained in any suit or proceeding instituted before such commencement for the eviction of a tenant from any building or land in such area, execute finch decree or order. (2) livery person desiring to obtain the permission referred to in sub-section (1) shall make an application in writing to the compe- tent authority in such form and containing such particulars as may be prescribed. (3) On receipt of such application, the competent authority, after giving an opportunity to the parties of being heard and after making such summary inquiry into the circumstances of the case as it thinks fit, shall by order in writing, either grant or refuse to grant such permission. (4) In granting or refusing to grant the permission under sub-section (3), the competent authority shall take into account the fol- lowing factors, namely,: (a) whether alternative accommodation within the means of the tenant would be available to him if he were evicted; (b) whether the eviction is in the interest of improvement and clearance of the slum areas: (c) sucli other factors, if any. as may be rescribed. as may be rescribed. (5) Where the competent authority refuses to grant the permission, it shall record a brief statement of the reasons for such refusal and furnish a copy thereof to the applicant " ( 3 ) THE perusal of the amended section would show that it became applicable to lands also Section 19 (l) (a) admittedly does not apply to this case because the suit was instituted before the commencement of the Amendment Act, 1964. The question is whether Cl (b) of sub-section (l) of S. 19 applies. The construction of S. 19, as amended, came up for consideration before their Lordships of the Supreme Court in an unreported judgment in Vijendra Nath v. Jagdish Rai Aggarwal, Civil Appeal No. 1314 of 1966, dated 2-12-1966: ( AIR 1967 SC 600 ). In that case the owner of a building obtained a decree for eviction of the tenant on December 5, 1960. By this decree the tenant was allowed time to vacate till March 2, 1963. On June 19, 1964, the landlord obtained the permission for the execution of the decree from the Competent Authority under S 19 of the Slum Areas (Improvement and Clearance) Act, 1956. On July 22, 1961, the landlord applied for execution of the decree and objections against execution were dismissed on August 7, 1964. The appeal and revision at the instance of the tenant were also dismissed on March 19. 1965. and March 24. 1965 respectively. THE question before the Supreme Court was whether in view of the amended section 19 (1) (b) of the said Act a fresh permission was necessary for executing the decree for evictionof the tenant from a building in a slum area. The Supreme Court decided that the new S. 19, inserted by the Amending Act, did not affect the pending execution proceedings either expressly or by necessary implication and made no change in the law applicable to the proceedings. From the decision of the Supreme Court it would follow that if a decree is obtained before coming into force of the Amending Act and execution application also filed before the said Act, S. 19 as amended would not create any bar to the execution. From the decision of the Supreme Court it would follow that if a decree is obtained before coming into force of the Amending Act and execution application also filed before the said Act, S. 19 as amended would not create any bar to the execution. The suggestion of the learned counsel for the appellant is that S. 19 (1) (b) applies to all decrees, whether obtained before or after the coming into force of the Amendment Act, 1964, provided the suit or proceeding is instituted before such commencement. The result of accepting this argument would be that the said amended section will divide the decree-holders into two categories (i) those who had applied for execution before the Amending Act came into force; and (ii) those who applied thereafter. In the case of first category of landlords no permission would be necessary while S. 19 (l) (b) would operate as a bar to execution in other cases That could not have been contemplated by the Legislature, If, on the. other hand. the argument of the learned counsel for the respondent is accepted and it is held that S. 19 (l) (b) applies only to those cases where decrees or orders are obtained after the commencement of the Amendment Act, 1964, on a suit or proceeding instituted before such commencement, there will not arise any unfair treatment to the landlords only on the basis of the date of the execution application IT is an accepted rule that retrospective legislation is looked upon with disfavour because of its tendency to be unjust and suppressive. Ancillary to this rule is another rule that no law should be given greater retrospective effect than its language clearly expresses or implies. Bearing these rule in mind, I am of the opinion that S. 19 (1) (b) of the said Act does not affect the rights of the decree holders to execute decrees obtained before the commencement of the said Amendment Act and applies only to decrees or orders obtained thereafter. Since land was Included in S. 19 for the first time by the Amendment Act, 1964, the landlord was entitled to execute the decree without permission of the Competent Authority. In this view this appeal must fall and Is dismissed with no order as to costs.