NANDLAL D. MEHTA v. KANTILAL JESHANKER VYAS — 1974 DIGILAW 59 (GUJ)

S. H. SHETH, J. ( 1 ) THE plaintiff-landlord filed against the defendant tenant the present suit for recovering possession of the suit premises on the ground that the defendant has acquired vacant possession of a suitable residence. The plaintiff tried to place his case under sec. 13 (1) (1) of the Rent Act. The defendant in defence raised the contention that he is not the tenant in respect of the suit premises but that his father is the tenant. He also impugned the validity of the statutory notice. ( 2 ) THE learned Trial Judge negatived the defendants contention that he is not the tenant in respect of the suit premises and that his father is the tenant. The learned Trial Judge also negatived the defendants contention that the statutory notice was not valid. He upheld the contention raised by the plaintiff that the defendant has acquired vacant possession of a suitable residence. He therefore passed in favour of the plaintiff decree for possession. ( 3 ) THE defendant appealed to the District Court against the decree. The learned District Judge confirmed all the findings recorded by the learned Trial Judge and dismissed the appeal. ( 4 ) IT is that appellate decree which is called in question by the defendant in this Civil Revision Application ( 5 ) THE next contention which Mr. Shah has raised turns upon the merits of the case. He has tried to argue it in three aspects. The first argument which he has raised is that the right to recover possession of the suit premises which accrued to the plaintiff under the Saurashtra Rent Act did not survive its repeal. In the alternative he has argued that if it survived its repeal it in any case did not survive the remainder of the life of Saurashtra Rent Control Act as if it had not been repealed with effect from 1st January 1964. Sec. 13 of the Saurashtra Rent Control Act 1951 provided that:-NOTWITHSTANDING anything contained in this Act a landlord shall be entitled to recover possession of any premises if the Court is satisfied. . . . . . . . . . that the tenant after the coming into operation of this Act has built acquired vacant possession of or been allotted a suitable residence. The opening words of sec. . . . . . . . . . that the tenant after the coming into operation of this Act has built acquired vacant possession of or been allotted a suitable residence. The opening words of sec. 13 clearly show that the right of the landlord to recover possession of his premises depended upon the satisfaction of anyone or more grounds specified in sec. 13 so far as the grounds other than the ground of arrears of rent were concerned. It has not been disputed before me that the defendant built in 1957 a suitable residence in the City of Rajkot where the suit premises are situate Therefore on a bare reading of sec. 13 (1) (1) of the Saurashtra Rent (Control Act it appears to me that the action of the defendant in building in suitable residence for him conferred upon his landlord the right to recover possession of the suit premises. The question which therefore arises in light of the arguments raised by Mr. Shah is whether that right has survived the repeal of the Saurashtra Rent Control Act 1951 The Saurashtra Rent Control Act was repealed with effect from 1st January 1964 and upon its repeal the Bombay Rent Act came into force or was made applicable to the Saurashtra region of the State of Gujarat. Sec. 51 of the Bombay Rent Act provides for the effect of repeal of the Saurashtra Rent Control Act 1951 It inter alia provides that the repeal of the said Saurashtra Act shall not. . . . . . . . . affect any right privilege obligation or liability acquired accrued or incurred under any law so repealed. . . . . . affect any investigation legal proceeding or remedy in respect of any such right privilege obligation liability penalty forfeiture or punishment as aforesaid. . . . It appears to me from the language of sec. 51 that not only the rights which accrued to the landlords under the Saurashtra Rent Control Act 1951 have been saved but also the remedies in respect thereof. That is the view which I have taken in Civil Revision Application No. 1217 of 1970 decided on 30th June 1974. Mr. Shah has tried to impugned the soundness of that decision on the strength of the decision of the Supreme Court which he has cited before me. That is the view which I have taken in Civil Revision Application No. 1217 of 1970 decided on 30th June 1974. Mr. Shah has tried to impugned the soundness of that decision on the strength of the decision of the Supreme Court which he has cited before me. He has submitted that if the decision which I have recorded in Civil Revision Application No. 1217 of 1970 is not in accord with the decision of the Supreme Court in Qudrat Ullah v. municipal Board Bareilly A. I. R. 1974 Supreme Court 396 I should refer this matter to a Division Bench. Mr. Shah is eminently justified in making this submission if the decision which have recorded in the aforesaid Civil Revision Application is noting accord with the principle laid down by the Supreme Court in the aforesaid decision. In Qudrat Ullahs case (supra) the supreme Court was considering the effect of sec. 6 of U. P. General Clauses Act. It came to be considered in the context of repeal of the U. P. (Temporary) Control of Rent and Eviction Act 1947 It was contended on behalf of the appellant Act would not be taken away by its repeal since the repealing Act was noting terms retrospective one. Relying upon the provision of sec. 6 of the U. P. General clauses Act the Supreme Court negatived that contention. The principle laid down in the decision cannot be applied to the instant case because the language of sec. 6 of the U. P. General Clauses Act 1904 is materially different from the language of sec. 51 of the Bombay Rent Act in so far as it is material to the facts of the instant case Sea. 6 of the U. P. General Clauses Act inter alia provided thus :-WHERE any (Uttar Pradesh) Act repeals any enactment hitherto made or thereafter to be made then unless a different intention appears the repeal shall not. . . . . . . . . . . . . . . 6 of the U. P. General Clauses Act inter alia provided thus :-WHERE any (Uttar Pradesh) Act repeals any enactment hitherto made or thereafter to be made then unless a different intention appears the repeal shall not. . . . . . . . . . . . . . . affect any right privilege obligation or liability acquired accrued or incurred under any enactment so repealed; or affect any remedy or any investigation or legal proceeding commenced before the repealing Act shall have come into operation in respect of any such right privilege obligation liability penalty forfeiture or punishment as aforesaid :-AND any such remedy may be enforced and any such investigation or legal proceeding may be continued and concluded and any such penalty forfeiture or punishment imposed as if the repealing Act had not been passed. (Emphasis mine ). So far as the saving of the remedies in respect of rights which accrued to a person under a repealed act is concerned sec. 6 of the said U. P. Act saves only such remedies as were commenced before the repealing Act came into force. In other words what really and in substance it saves are the pending proceedings. The language of sec. 51 of the Bombay Rent Act is materially different in this respect. It provides that the repeal of the Saurashtra Rent Control Act 1951 shall not affect any investigation legal proceeding or remedy in respect of any such right privilege obligation liability penalty forfeiture or punishment as aforesaid. I do not find in sec. 51 of the Bombay Rent act anything to show or suggest that it has saved merely the remedies which were commenced. If that was so it could have been probably said that what it saved were only the pending proceedings or the remedies commenced or resorted to and nothing else. In my opinion the effect of repeal which sec. 51 of the Bombay rent Act provides for is materially different from the effect of repeal which the U. P. General Clauses Act provides for. The principle laid down in that decision therefore cannot be applied to the instant case. Therefore the contention raised by Mr. Shah cannot be upheld. ( 6 ) ANOTHER decision of the Supreme Court on which Mr. The principle laid down in that decision therefore cannot be applied to the instant case. Therefore the contention raised by Mr. Shah cannot be upheld. ( 6 ) ANOTHER decision of the Supreme Court on which Mr. Shah has relied is in Jivabhai Purshottam v. Chaggan Karsan and other 2 G. L. R. 33 (S. C.) The Supreme Court was considering in that case certain provisions of the Bombay Tenancy and Agricultural lands Act 1948 In the context for the scheme of that Act it has been laid down that it is only when the period of notice has expired and the tenancy has been terminated that the landlord acquires a vested right to obtain possession of the land. This decision he has cited in order to make good his contention that the right to recover possession accrued to the plaintiff only when he determined the defendants tenancy. It is not in dispute that the plaintiff determined the defendants tenancy subsequent to the repeal of the Saurashtra Rent Control Act 1951 and the application of the Bombay Rent Act. The language of sec. 13 (1) (1) of the Saurashtra Rent Control Act clearly suggests that on the happening of the event specified in that clause right would accrue to a landlord to recover possession of his premises from his tenant. Indeed a landlord cannot make good that right unless he determines the tenancy of his tenant. Termination of the tenancy of a tenant by a landlord is surely a voluntary act. he may or may not do so. If he terminates the tenancy of his tenant he can institute proceedings to recover possession of the premises let out to his tenant. If he chooses not to terminate his tenancy he cannot exercise that right of his. The statutory requirement to determine the tenancy of a tenant before a landlord seeks possession of the premises let out to his tenant on any of the grounds specified in sec. 13 is at the most an impediment in the way of the landlord which he at his sweet-will and desire can remove at any time. It is wrong therefore to say that so far as the scheme of sec. 13 of the Saurashtra Rent Control Act 1951 (corresponding to sec. 13 is at the most an impediment in the way of the landlord which he at his sweet-will and desire can remove at any time. It is wrong therefore to say that so far as the scheme of sec. 13 of the Saurashtra Rent Control Act 1951 (corresponding to sec. 13 of the Bombay Rent Act) is concerned the right to recover possession accrues only upon the determination of the tenancy of a tenant. The right to the landlord to recover possession of the premises let out to his tenant in my opinion accrues to him as soon as inter alia one of the events specified in sec. 13 happens. However the landlord can make good his right only if he satisfies the condition precedent viz. if he determines the tenancy of his tenant. The two aspects which Mr. Shah has raised before me are therefore without any substance. ( 7 ) THE next aspect which Mr. Shah has raised before me is that if any right accrued to the plaintiff under sec. 13 (1) (1) of the Saurashtra Rent Control Act and if that right and the plaintiffs remedy in respect thereof were saved by sec. 51 of the Bombay Rent Act they were saved only for the remainder of the life of the Saurashtra Rent Control Act 1951 as if it was not repealed and as if it was allowed to run its normal life. The Saurashtra Rent Control Act was repealed on 1st January 1964. It was a temporary statute. If it was not so repealed and if its life had not been renewed it would have run out its life on 31st December 1964. This proposition which Mr. Shah has tried to place before me is based upon the principle laid down by the Supreme Court in Qudrat Ullahs case (supra ). Whether a right which accrued to a person under a repealed statute has been saved or not and whether his remedy in respect thereof has also been saved or not and if it has been saved whether it has been saved for a specified duration or otherwise depends upon the effect of repeal which a statute provides for. If there is a section which provides for a special effect of repeal it has got to be given effect to. If there is a section which provides for a special effect of repeal it has got to be given effect to. If there is no such special section then resort has got to be had to the General Clauses Act. In the instant case sec. 51 of the Bombay Rent Act is a special provision which provides for the effect of the repeal of the Saurashtra Rent Control Act. On scanning the language of sec. 51 of the Bombay Rent Act clearly and minutely I do not find anything therein which lends even the remotest support to the argument raised by Mr. Shah. In my opinion the remedy saved by sec. 51 of the Bombay Rent Act in respect of the right which accrued to the plaintiff under the Saurashtra Rent Control Act repealed on 1st January 1964 could be availed of by him without being limited in any manner whatsoever by a particular period of time. ( 8 ) THESE are all the contentions which Mr. Shah has raised before me. I do not find any substance in any of them. I must however note that so far as sec. 13 (1) (1) of the Bombay Rent Act is concerned it will not govern the present case because it provides that the tenant after the coming into operation of this let has built acquired vacant possession of or been allotted a suitable residence. (emphasis mine.) The aforesaid words which I have emphasized go to show that sec. 13 (1) (1) will be applicable to cases where a tenant has built a suitable residence acquired Vacant possession of or been allotted a suitable residence after the Bombay Rent Act came into force in a particular area. There is no doubt or dispute about the fact that the Bombay Rent Act came into force in the Saurashtra region of the State of Gujarat with effect from 1st January 1964 The case therefore would not be covered by sec. 13 (1) (1) of the Bombay Rent Act. However since I have held that the plaintiff is entitled to take advantage of the Saurashtra Rent Control Act read with-sec. 51 of the Bombay Rent Act and since the plaintiff has proved his claim against the defendant the decree for possession passed by the Courts below in favour of the plaintiff is perfectly in order and justified. However since I have held that the plaintiff is entitled to take advantage of the Saurashtra Rent Control Act read with-sec. 51 of the Bombay Rent Act and since the plaintiff has proved his claim against the defendant the decree for possession passed by the Courts below in favour of the plaintiff is perfectly in order and justified. ( 9 ) IN the result I find no substance in this Civil Revision Application. The Revision Application fails and is dismissed and Rule is discharged with costs. Application dismissed. .