ANJUMAN-E ISLAM v. GANAPATLAL SHIVALAL JAMADAR — 1971 DIGILAW 344 (KAR)

( 1 ) THIS is a revision petition under Sec. 50 of the Mysore Rent Control act, 1961, (which I will call the Mysore Act' ). ( 2 ) A shop premises bearing CTS. No. 3358 in Hubli Town, owned by the petitioner Trust was leased in favour of the first respondent Ganapatlal on a monthly rent of Rs. 25. He had a book stall in the said premises. He transferred his entire interests in the lease-hold premises together with the business and the stock in trade and goodwill thereof in favour of gangadar, the second respondent as per Ext. 30 dt. 9-12-1962. The petitioner filed an application for an order of eviction of the tenant on the ground that he has sublet the premises in favour of the second respondent. The second respondent admitted the transfer but contended that it was valid under the notification No. 5975|33 dt. 21-9-1948 issued by the erstwhile Government of Bombay under the provisions of the Bombay rents, Hotel and Lodging House Rates (Control) Act, 1947 (shortly called the Bombay Rent Act ). ( 3 ) THE learned Munsiff held that the said notificatibn ceased to be operative after the repeal of the Bombay Rent Act by the Mysore Act and passed the order of eviction of the respondents. On appeal, the learned district Judge, Dharwar held that the said notification was saved by the mysore Act and continues to be in force. On this finding, he allowed the appeal preferred by Gangadhar; dismissing the application for eviction. Hence the revision petiton by the landlord. ( 4 ) THE question raised by this revision petition is whether after the repeal of the Bombay Rent Act, the notification in question survives. ( 5 ) THE facts are not in dispute; the Mysore Act came into force on 31st Dec. 1961. It is only thereafter the tenant transferred his leasehold rights in favour of the second respondent. If the notification does not come to his rescue, the transfer becomes unlawful and would be a ground for his eviction as provided by clause (f) to the proviso to sub-sec. (1) of S. 21 of the Mysore Act. 1961. It is only thereafter the tenant transferred his leasehold rights in favour of the second respondent. If the notification does not come to his rescue, the transfer becomes unlawful and would be a ground for his eviction as provided by clause (f) to the proviso to sub-sec. (1) of S. 21 of the Mysore Act. ( 6 ) IT is convenient to refer at this stage to the relevant part of the said notification:" The Government of Bombay has permitted in all areas to which part II of this Act extends all transfers and assignments by lessees of their interests in leasehold premises as, and to the extent specified in the Schedule as under: (1)*** (2) Transfer or assignment incidental to the sale of a business as a going concern together with the stock in trade and the goodwill thereof, provided that the transfer or assignment is of the entire interest of the transferor or assignor in such leasehold premises together with the business and the stock-in-trade and goodwill thereof. "the notification was issued by the erstwhile Government of Bombay, in exercise of the powers conferred by sub-sec. (1) of S. 15 of the Bombay rent Act. The said sub-section so far as it is relevant provides as follows:" 15. In absence of contract to the contrary, tenant not to sublet or transfer (1) Notwithstanding anything contained in any law, but subject to any contract to the contrary, it shall not be lawful after the coming into operation of this Act, for any tenant to sublet the whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein: provided that the State Government may, by notification in the official Gazette, permit in any area the transfer of interest in premises held under such leases or class of leases and to such extent as may be specified in the notification. "it is admitted that the notification was in force permitting the subletting before the Mysore Act came into force, in the area of the new state of Mysore which formed part of the erstwhile State of Bombay. ( 7 ) LET me now turn to the relevant provisions of the Mysore Act. sub-section (1) of Section 23 provides:. . . . " 23- Tenant not to sub-let or transfer after commencement of this part. ( 7 ) LET me now turn to the relevant provisions of the Mysore Act. sub-section (1) of Section 23 provides:. . . . " 23- Tenant not to sub-let or transfer after commencement of this part. (1) Notwithstanding anything contained in any law, but subject to any contract to the contrary, it shall not be lawful after the coming into operation of this part for any tenant to sub-let the whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein: provided that the State Government may, by notification, permit in any area the transfer of interest in premises held under such leases or class of leases and to such extent as may be specified in the notification: * * * * it is seen that the above povisions are identical with those of sub-sec. (1) of S. 15 of the Bombay Rent Act. S. 62 so far as it is relevant provides:"62. Repeal and saying. The Bombay Rents, Hotel and Lodging house Rates Control Act, 1947 (Bombay Act LVII of 1947), as in force in the Bombay Area;. . . . . . . . . . . . . , are hereby repealed: provided that the provisions of S. 6 of the Mysore General clauses Act, 1899, shall be applicable in respect of the repeal of the said enactments and Sections 8 and 24 of the said Act shall be applicable as if the said enactments were permanent Mysore Acts and had been repealed and re-enacted by this Act. " ( 8 ) RELYING on the above provisions, Sri T. S. Ramachandra, learned counsel for the petitioner contended that there is an express prohibition for subletting by S. 23 of the Mysore Act and therefore, the notification issued under sub-section (1) of S. 15 of the Bombay Rent Act, does not survive after the repeal of the Bombay Rent Act. For a proper appreciation of the contention, it is necessary to have regard to the provisions of S. 24 of the Mysore General Clauses Act, 1899. It provides:" 24 Continuation of orders etc. For a proper appreciation of the contention, it is necessary to have regard to the provisions of S. 24 of the Mysore General Clauses Act, 1899. It provides:" 24 Continuation of orders etc. issued under enactments repealed and re-enacted Where any enactment is, after the commencement of this Act, repealed and re-enacted with or without modification, then, unless it is otherwise expressly provided, any appointment, notification, order, scheme rule, form or bye-law made or issued under the repealed enactment, shall, so far as it is not inconsistent with the provisions reenacted, continue in force and be deemed to' have been made or issued under the provisions so re-enacted, unless and until it is superseded by any appointment, notification, order, scheme, rule, form or bye-law made or issued under the provisions so re-enacted. " ( 9 ) THE Mysore Act is an Act passed to provide for the control of rents and evictions, for the leasing of buildings, to control rates of hotels and lodging houses and for certain other matters. By its enactment, the other Rent Acts operative in the different areas comprised in the new state of Mysore were repealed. By proviso to S. 62 of the Mysore Act, Ss. 8 and 24 of the Mysore General Clauses Act, 1899, are made applicable in respect of the enactments repealed, as if the said enactmensts were permanent mysore Acts and had been repealed and re-enacted by the Mysore act. There is, therefore, no doubt as to the applicability of the provisions of s. 24 of the said General Clauses Act. The real question here concerned is whether the said notification was inconsistent with the provisions of the mysore Act. In my opinion, it is not; it is clearly in accordance with the scheme and purpose of the Mysore Act. By the first proviso to sub-sec. (1) of S. 23, the Slate Government may permit by notification in any area the transfer of interest in premises held under a lease or class of leases and to such extent as may be specified in the notification. These provisions are similar to the provisions of S. 15 (1) of the Bombay Rent Act. There is no other provision express or implied in the Mysore Act, which is inconsistent with the corresponding provisions of the Bombay Rent Act or to the notification in question. These provisions are similar to the provisions of S. 15 (1) of the Bombay Rent Act. There is no other provision express or implied in the Mysore Act, which is inconsistent with the corresponding provisions of the Bombay Rent Act or to the notification in question. It has therefore to be stated that the Mysore act does not stand in the way of the full operation of S. 24 of the General clauses Act. ( 10 ) A reference to the passage in the judgment of the Supreme court in Chief Inspector of Mines v. Karam Chand Tapar, AIR. 1961 SC. 838 makes the matter further clear. The question for consideration in that case was whether the Mines Regulations, 1926, framed as they were under S. 29 of the Mines Act, 1923, survived after the repeal of the Mines Act, 1923, by the Mines Act, 1952. Das Gupta, J. , speaking for the Court observed as follows:" The present is a case, where the Mines Act, 1923, was repealed, and was re-enacted with modifications as the Mines Act, 1952: S. 29 of the 1923 Act empowering the Central Government to make regulations consistent with the Act for specified purposes was re-enacted in the 1952 Act as S. 57; regulations were made in 1926 under S. 29 of the 1923 Act, but at the relevant date, in 1955, no regulation had been made under S. 57 of the 1952 Act, so that in 1955 the Mines Regulations, 1926, had not been superseded by any regulations made under the reenacted provisions of S. 57 of the 1952 Act. Therefore, if S. 24 of the general Clauses Act is operative, the Mines Regulations, 1926, were in force at the relevant date in 1955, and shall be deemed to have been made under S. 57 of the 1952 Act, as there is no provision express or otherwise, in the later Act to the contrary, and the regulations are not inconsistent with the re-enacted provisions (P. 842 ). "continuing, the learned Judge said at page 845;" The true position appears to be that the Rules and Regulations do not lose their character as rules and regulations, even though they are to be of the same effect as if contained in the Act. "continuing, the learned Judge said at page 845;" The true position appears to be that the Rules and Regulations do not lose their character as rules and regulations, even though they are to be of the same effect as if contained in the Act. They continue to be rules subordinate to the Act, and though for certain purposes they are to be treated as if contained in the Act, their true nature as subordinate rules is not lost. Therefore, with regard to the effect of a repeal of the Act, they continue to be subject to the operation of s. 24 of the General Clauses Act. "it may be stated that S. 24 of the Central General Clauses Act, 1897, to which a mention was made in the above judgment is similar to S. 24 of the Mysore General Clauses Act, 1899. ( 11 ) LEARNED Counsel for the petitioner referred me to the decision of this Court in Union of India v. T. R. Rao, (1970) 1 Mys. L. J, 434. where the question for consideration was whether the notification dt. 12-9-1962 issued under S. 20 of the Mysore House Rent and Accommodation Control Act, 1951, by the rajapramukh of Mysore survived after the repeal of the said Act by the mysore Act, Chandrashekhar, J. , held that there was no provision in the mysore Act corresponding to S. 20 of the repealed Act empowering the government to exempt any class of buildings; that it must be held to manifest a ' different intention from the repealed Act and that therefore, the notification did not survive after the repeal of the parent Act. ( 12 ) BUT the present case is clearly distinguishable. As I have held above, on the question before us, the Mysore Act does not contain any provision expressing a different intention from the purpose or scheme of the Bombay Rent Act. The notification in question is also not inconsistent with the object of the Mysore Act. ( 12 ) BUT the present case is clearly distinguishable. As I have held above, on the question before us, the Mysore Act does not contain any provision expressing a different intention from the purpose or scheme of the Bombay Rent Act. The notification in question is also not inconsistent with the object of the Mysore Act. I have, therefore no hesitation in holding that in consequence of the operaiton of S. 24 of the Mysore General clauses Act, the notification in question which continued to be in force at the relevant date has to be deemed to be the notification issued under the Mysore Act, operative in the area of the new Mysore State which formed part of the erstwhile State of Bombay before the reorganisation of the States. ( 13 ) THE above said notification is reallv in the interest of the trade and business communities. It is for the State Government to extend similar benefits to such leases or class of leases in other areas of the State by issuing appropriate notification under the proviso to sub-section (1) of section 23 of the Mysore Act. ( 14 ) THE rpvision petition therefore fails and is dismissed without an order as to costs. --- *** --- .