Jamandass v. Gokuldass — 1983 DIGILAW 6 (RAJ)

S.K. MAL LODHA, J.—This revision has been referred by one of us (Agrawal, J.) to the Division Bench as it involves an important question of law whether the amendments introduced in s. 6 of the Rajasthan Premises (Control of Rent and Eviction) Act (No. XVII of 1950) (for short the Act) by which the Rajasthan Premises (Control of Rent and Eviction) Amendment Ordinance, 1975 (Ordinance No. XXII of 1975) (hereinafter referred to as the Ordinance) which was promulgated on Sept. 29, 1975 and which was subsequently replaced by the Rajasthan Premises (Control of Rent and Eviction) (Amendment) Act, 1976 (the Amendment Act hereinafter) fall in the category of amendments which are intended to have retrospective operation or they fall in the category of amendments which do not have retrospective operation. 2. We may first notice the material facts the non-petitioner (plaintiff-tenant) instituted a suit on April 29, 1970 against the petitioner (defendant land lord) under s. 6 of the Act for fixation of standard rent in respect of the shop which was let out by the petitioner to the non-petitioner. The shop was first let out by the petitioner in 1957 to Radhamal Sindhi at a rent of Rs.40/- per month. Radhamal Sindhi vacated the shop in 1959 and thereafter, it was let out to Jodhpur April 29, 1959 at a rent of Rs. 50/- per month. Jodhraj also vacated the shop and it was given on rent to the non-petitioner on November 1, 1965 at a rent of Rs, 115/- per month and that the said rent was increased to Rs. 125/- per month under a rent note executed on November 17, 1966. The non-petitioner claimed that the basic rent for the shop was Rs. 40/- per month inasmuch as the shop had been let for the first time after January 1, 1946 at the rent of Rs, 40/- per month and that the standard rent for the shop also should be fixed at Rs. 40/- per month. 3. The suit was contested by the petitioner (landlord). It was stated that the shop was let for the first time on February 20, 1958 to Radhamal Sindhi at a rent of Rs. 55/- per month, that the petitioner had spent a considerable amount on the shop and thereafter, it was let out to the non-petitioner (tenant) at the rent of Rs. It was stated that the shop was let for the first time on February 20, 1958 to Radhamal Sindhi at a rent of Rs. 55/- per month, that the petitioner had spent a considerable amount on the shop and thereafter, it was let out to the non-petitioner (tenant) at the rent of Rs. 115/-per month and from November 1, 1966, the non-petitioner raised the rent to Rs. 125/- per mensem. The learned Additional Munsif, Udaipur, by his judgment and decree dated February 21, 1975 fixed the standard rent at Rs. 69/- per month and held that the shop was first let to Radhamal Sindhi in 1958 after January 1, 1943 at the rent of Rs. 55/- per month and that according to the Explanation to sub-sec. (2) of sec. 6 of the Act, the basic rent of the premises was Rs. 55/- per month and so in view of the first proviso to sub-s (2) of s. 6 of the Act, the standard rent of the premises could not exceed the basic rent. He also took into consideration an additional amount of Rs. 2200/- which was spent by the petitioner on the repairs of the shop and at the rate of 7-1/2% in accordance with the provisions of s. 10 of the Act on the aforesaid amount,, he added Rs. 14/- per month to the basic rent of Rs. 55/-p.m. and thus, fixed the standard rent at Rs. 69/-per month. The petitioner as well as the non-petitioner both filed separate appeals against the aforesaid judgment and decree dated February 21, 1975 of the Additional Munsif and both these appeals (Civil Appeal No. 4 and 13 of 1975) were dismissed vide Judgment and decree dated January 14, 1977 by the Civil Judge, Udaipur and the Judgment and decree dated February 21, 1975 of the Additional Munsif were affirmed. Being dissatisfied with the appellate judgment and decree dated January 14, 1977 of the Civil Judge, the petitioner (landlord) has filed this revision petition. 4. During the pendency of the appeals of the petitioner and the non-petitioner before the Civil Judge, the Act was amended by the Ordinance which was subsequently, replaced by the Amendment Act. 5. Being dissatisfied with the appellate judgment and decree dated January 14, 1977 of the Civil Judge, the petitioner (landlord) has filed this revision petition. 4. During the pendency of the appeals of the petitioner and the non-petitioner before the Civil Judge, the Act was amended by the Ordinance which was subsequently, replaced by the Amendment Act. 5. In support of his appeal, before the Civil Judge, on behalf of the petitioner it was submitted that the amendments introduced in s.6 of the Act by the Amendment Act should be construed as having retrospective operation and that if thus construed the petitioner was entitled to take the benefit of the amendments introduced in the first proviso to sub-s. (2) of s. 6 of the Act and that as the shop was given on rent of Rs. 115/-per month after January 1, 1965, the standard rent for the premises should have been fixed at Rs. 115/-per month. The Civil Judge rejected the contention holding that even if it was assumed that the amendments introduced in s. 6 by the Amendment Act are construed as having retrospective operation, the basic rent had been rightly fixed at Rs. 55/-p.m. by the Addl. Munsif as the shop had been first let on this rent to Radha Mal Sindhi. He. however, held that the first proviso to sub-s. (2) of s. 6 of the Act had no application to the present case inasmuch as the shop was not first let after January 1, 1965. 6. Before the learned single Judge on the basis of the judgment reported in Jagdish Pd. vs. Kapoor Chand (1) it was submitted that the amendments introduced by the Ordinance and for that matter by the Amendment Act in s. 6 of the Act are retrospective in operation and that the standard rent for the shop should have been determined in the light of the aforesaid amendments. The contention of the learned counsel was that the first proviso to sub-s. (2) of s. 6 of the Act could not have been applied to the present case in view of the amendments introduced in it by the Ordinance and the Amendment Act and that by applying cl. (b) of sub-s.(2) of s. 6 of the Act, the standard rent should have been fixed at two and a half times the basic rent. (b) of sub-s.(2) of s. 6 of the Act, the standard rent should have been fixed at two and a half times the basic rent. On behalf of the non-petitioner (tenant) it was argued that the amendment introduced in s. 6 of the Act by the Ordinance do not have retrospective operation and as such the said amendments are not applicable to the suit as well as the appeal of the petitioner arising out of the suit, which was pending before the Civil Judge at the time when the Ordinance was promulgated and the Amendment Act came into force. Learned counsel for the non-petitioner questioned the correctness of Jagdish Pd.s case (supra) and submitted before the learned single Judge that it needs re-consideration. This has led to the reference to the Division Bench as stated above. 7. S. 6 of the Act as it stood prior to the Ordinance is as follows : "Section 6-Fixation of standard rent-(l) Where no rent has been agreed upon or where for any reason the rent agreed upon is claimed to be excessive, the landlord or the tenant may institute a suit in the lowest court of competent jurisdiction for fixation of standard rent for any premises. (2) The Court shall, after holding such summary inquiry as it may consider just and necessary, determine the standard rent for such premises and shall, in doing so, act according to the following principles, namely- (a) Where the premises are let for residential purposes or for any of the purposes of the public hospital, aushadhalaya or dawakhana, a recognised educational institution a public library or reading room or any orphanage, the standard rent shall exceed the basic rent increased by fifty percent thereof; and (b) Where the premises are let for any other purpose, the standard rent shall not exceed two and a half times the basic rent thereof; Provided that where the premises have been first let after the first day of January, 1946, the standard rent shall not exceed the basic rent thereof : Provided further that where the fair rent or standard rent for any premises has been determined or redetermined by any authority under any law or order repealed by section 30 of this Act and the amount of such fair rent or standard rent is the same as would be determinable as standard rent by the Court under this section, the fair rent or standard rent previously determined or redetermined, shall not be disturbed. Explanation-For the purposes of this sub-section, the basic rent of any premises shall mean the rent at which the premises were let on the first day of Jan. 1943 and, if not let on that day, the rent at which they were first let after that day. (3) Where for any reason it is not possible to determine the standard rent of any premises on the principles set out in sub-section (2); the Court shall determine such rent, having due regard to the pre-war rent, the prevailing rent or standard rent for similar premises in the same locality, the various amenities such as electricity, water connection, sanitary fittings, and the like attached to the premises, the cost of construction, maintenance and repairs thereof, the special reasons, if any; proved by the plaintiff and other relevant consideration. (4) In fixing the standard rent for any premises under this section, the Court shall determine such rent in respect of the premises in on unfurnished state but may also determine additional charge to be payable on account of fittings or furnishing, and it shall be lawful for the landlord to recover such additional charge from the tenant. (5) In every case in which the Court determines the standard rent of any premises under this section it shall appoint a date from which the standard rent so determined shall be deemed to have effect: Provided that such date shall, in the case of a tenant who institutes a suit under this section after the expiration of six months from the commencement of his tenancy on the ground of the rent agreed upon being excessive, be the date of the institution of such suit or such later date as the Court may in the circumstances of the case deem reasonable." S.4 of the Ordinance introducing amendments in S. 6 of the Act reads as under:- "4. Amendment of section 6, Rajasthan Act 17 of 1950-. In section 6 of the principle Act,— (i) in sub-section (1), between the words "to be" and the word "excessive", the words "low or" shall be inserted; (ii) in sub-section (2).— (a) in the first proviso, for the year "1946" the year "1965" shall be substituted; (b) in the second proviso, between the words "determined or re-determined" and the words "by any authority", the words "by any court under this Act or" shall be inserted and for the expression "of this Act", the expression "before the commencement of the Rajasthan Premises (Control of Rent and Eviction) (Amendment) Ordinance, 1975" shall be substituted; and (c) in the Explanation, for the year "1943" the year "1962" shall be substituted; and (iii) in sub-section 3, the words and punctuation marks "the per-war rent", shall be omitted." 8. Learned counsel for the petitioner reiterated the submission before us which was made before the learned single Judge. He contended that the amendments introduced in s. 6 of the Act by the Ordinance and the Amendment Act apply retrospectively and the learned Civil Judge should have decided the appeal of the petitioner keeping in view the amendments introduced in s 6 of the Act. This was strongly opposed by the learned counsel for the non-petitioner. 9. He contended that the amendments introduced in s. 6 of the Act by the Ordinance and the Amendment Act apply retrospectively and the learned Civil Judge should have decided the appeal of the petitioner keeping in view the amendments introduced in s 6 of the Act. This was strongly opposed by the learned counsel for the non-petitioner. 9. In order to appreciate the rival contentions arising out of the submissions made by the learned counsel for the parties, it will be useful to reproduce in extenso amended sub-s. (2) of s. 6 of the Act. It runs as under: "S.6 (2). The Court shall after holding such summary inquiry as it may consider just and necessary, determine the standard rent for such premises and shall, in going so, act according to the following principles, namely- (a) where the premises are let for residential purposes or for any of the purposes of the public hospital, aushadhalaya or dawakhana, a recognised educational institution, a public library or reading room or any orphanage the standard rent shall not exceed the basic rent increased by fifty percent thereof; and (b) where the premises are let for any other purposes, the standard rent shall not exceed two and a half times the basic rent thereof: Provided that where the premises have been first let after the first day of January, 1965, the standard rent shall not exceed the basic rent thereof: Provided further that where the fair rent or standard rent for any premises has been determined or redetermined by any court under this Act or by any authority under any law or order repealed by section 30 before the commencement of the Rajasthan Premises (Control of Rent and Eviction Amendment) Ordinance 1975 and the amount of such fair rent or standard rent is the same as would be determinable as standard rent by the Court under this section, the fair rent or standard rent previously determined or redetermined, shall not be disturbed. Explanation-For the purposes of this sub-section, the basic rent of any premises shall mean the rent at which the premises were let on the first day of January, 1962 and, if not let on that day, the rent at which they were first let after that day." Before the amendments, according to s, 6, the basic rent would be rent at which the premises were let on January 1, 1943 and if not let on that day, the rent at which they were first let after that day and that in cases where the premises had been first let after January 1, 1946, the standard rent could not exceed the basic rent but in cases where the premises had not been first let after January 1, 1946, the standard rent could not exceed two and a half times the basic rent thereof. On account of the amendments introduced in s.6 of the Act, the basic rent would be the rent at which the premises were first let on January 1,1962 and if not let on that day, the rent at which they were first let after that day and the standard rent cannot exceed the basic rent only in respect of the premises which were first let after January 1, 1965 and in cases where the premises were first let before January 1, 1965, the standard rent can be fixed upto two and a half times the basic rent. In the case on hand, if the suit is governed by the provisions of the sec. 6 of Act, as they stood before its amendment, the standard rent cannot exceed the basic rent in view of he first proviso to sub-s. (2) of s. 6 of the Act inasmuch as the premises had been first let after January 1, 1946 but if amendments introduced in s. 6 of the Act are held to be applicable then the proviso to sub-s. (2) of s.6 of the Act would not be applicable and the main part of cl. (b) of sub-s. (2) of s.6 of the Act would apply and the standard rent can be fixed upto two and a half times the basic rent. (b) of sub-s. (2) of s.6 of the Act would apply and the standard rent can be fixed upto two and a half times the basic rent. In these circumstances, the important question that crops up is whether the amendments introduced in s. 6 of the Act by the Amendment Act are retrospective in operation so as to be applicable to the suits and appeals which were pending on the date the said amendment came into force. 10. It is well settled that when the law is altered during the pendency of an action, the rights of the parties are decided according to law, as it existed when the action was begun, unless the new statute shows a clear intention to vary such rights (See Maxwell on Interpretation of Statutes 10th Edn. page-221). A statute will not affect rights which had accrued before it came into force unless there are express words in the statute affecting such rights or where a retrospective effect to the statute is inevitable by necessary intendment or implication. It is cardinal rule of interpretation that statutes should be interpreted, if possible, so as to respect vested rights. It is not to be presumed that interference with existing rights is intended by the Legislature and if a statute be ambiguous, the Court should lean to the interpretation which should support existing rights. Rights of the litigants are to be governed by the law in force when the action is commenced. The amendments introduced in s.6 of the Act relate to substantive law as opposed to adjective law. They could not affect pending actions unless the Legislature has indicated otherwise either expressly or by necessary implication. 11. S.R. Das, C.J. in Garikapati V. Subbaiah Chowdhary (2) observed as follows: "The golden rule of construction is that, in the absence of any thing in the enactment to show that it is to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act was passed." As regards the amendments introduced in the Act by the Ordinance and the Amendment Act, it may be stated that some are intended to be applicable to pending suits, appeals, revisions and other proceedings also whereas other amendments are not to have any retrospective operation and thus not applicable to pending matters. S.13-A (a) specifically makes mention of any proceeding pending on the date of commencement of the Ordinance. S. 13-A (b) also makes mention that the proceedings shall be disposed of as if tenant had not committed any default. By S.13-A(c)the provisions of S. 13-A (a) and (b) have, mutatis mutandis, been made applicable to all appeals, or applications for revisions preferred or made after the commencement of the Ordinance. 12. A learned single Judge of this Court in M/s Carona Sahu Co. vs. Vinod Kumar Goyal (3) while considering the provisions of s.13 and 13-A (a) and (b) of the Act held that the provisions of sub-ss. (3), (4), (5) of s. 13 of the Act as amended by Ordinance No. XXVI of 1975 and subsequently replaced by Amending Act No. XIV of 1976 only apply in a suit filed on or after coming into force of the Ordinance. It was observed as under: "However, the legislature was fully aware to deal with the pending suits and other proceedings by way of appeals, applications for revisions etc., pending on the day of the commencement of the amending Ordinance and for which special provisions have been laid down by enacting S. 13-A. It is a well settled proposition of law that where there are both special as well as general provisions with regard to a matter special provisions prevail over the general provisions." In M/s General Auto Agencies vs. Hazari Singh (4), a Division Bench of this Court had occasion to consider whether the provisions of s. 14(2) of the Act are retrospective? After considering the language of s. 14(2) of the Act, it was held that the point of time when s. 14 (2) requires a finding on the question of comparative hardship is at the time when a decree for eviction is to be passed and as the appeal was being heard, s. 14 (2) of the Act cannot be ignored. A decree for eviction cannot be passed without a finding on the question of comparative hardship and as such, the amended provisions of s. 14 (2) of the Act were held to have retrospective operation. 13. A decree for eviction cannot be passed without a finding on the question of comparative hardship and as such, the amended provisions of s. 14 (2) of the Act were held to have retrospective operation. 13. Before Sachar, J. in Smt. Kishan Pyari vs. Smt. Shanti Devi (5), a question cropped up whether the amendment made by incorporating sub-s. (3) in s. 14 of the Act by means of the Ordinance as replaced by the Amendment Act will apply to suits for eviction which had been filed before coming into force of the said amendment. The learned Judge after considering the various decisions of the Supreme Court as well of this Court held that s. 14(3) of the Act as amended by the Ordinance and replaced by the Amendment Act is prospective in operation and cannot apply to suits which had already been filed before coming into force of the Ordinance. 14. The principle that can be deduced from the decisions of the Supreme Court as well as of this Court is that until and unless there is any thing in the provision or statute to indicate that the legislature intended it to give effect retrospectively, retrospective effect cannot be given. 15. Mr. N.N. Mathur, learned counsel for the petitioner has placed strong reliance on Jagdish Pd case (supra) where a contention was raised that the amendments introduced in s. 6 of the Act are retrospective in operation and that the standard rent for the premises should be determined in the light of the afore said amendments. In that case, the premises were let out in Smt. 1987 at a rent of Rs. 8/- per mensem. The owner made substantial changes in the premises and the rent of the premises was raised to Rs. 50/- p.m. A rent note was executed by the tenant on April 2, 1961 and the rent was raised to Rs. 80/- p. m. Shortly, the tenant filed a suit for fixation of standard rent. The Munsif held that Rs. 18/- p. m. should be taken to be the basic rent for the purposes of Explanation to sub-sec. (2) of sec. 6 of the Act and, accordingly, he fixed standard rent at Rs. 80/- p. m. On appeal, it was held by the Additional Civil Judge that Rs. 8/- p.m. was the basic rent and he, accordingly, determined the standard rent under sec. (2) of sec. 6 of the Act and, accordingly, he fixed standard rent at Rs. 80/- p. m. On appeal, it was held by the Additional Civil Judge that Rs. 8/- p.m. was the basic rent and he, accordingly, determined the standard rent under sec. 6 (2) (b) of the Act at Rs. 20/- per month. A revision was filed in this Court and during its pendency, sec. 6 of the Act was amended by the Ordinance as replaced by the Amendment Act. The learned Judge allowed the revision petition holding that the application for revision must be taken as a continuation of the suit i.e., the suit must be regarded as still pending for purposes of s. 6 of the Act. He opined that the Court is bound to take into consideration the amended provisions of the Explanation for purposes of the determination of" the basic rent and the basic rent for purposes of determination of standard rent, must be the rent agreed upon between the parties on the first day of January, 1962. The learned Judge, accordingly, fixed the standard rent at Rs. 80/- per month. This view was taken on the basis of Lachmeshwar v. Keshwarlal (6) wherein it was held that the hearing of an appeal under the procedural law of India is in the nature of re-heating and, therefore, in moulding the relief to be granted in a case on appeal, the appellate court is entitled to take into account even facts and events which have come into existence after the decree appealed against, and consequently, the appellate court is competent to take into account legislative changes since the decision in appeal was given and that its powers are not confined only to see whether the lower courts decision was correct according to the law as it stood at the time when its decision was given. According us, the principle laid down in Lachme Shwar case (supra) is that the appellate or revisional court should take note of any change in law which takes place during the pendency of the appeal or revision but it does not mean that the enquiry as to whether the change in law is applicable to pending suits and proceedings or not is dispensed with. The question whether the amendments introduced in s. 6 of the Act are retrospective in operation was not considered at all in Jagdish Pds case (supra inasmuch as the learned Judge observed: "Thus the court is bound to take notice of a change in law. Explanation, which is in the nature of a definition clause, having been amended, the rights of the parties must necessarily be governed by the amended Explanation." It may be mentioned here that in Jagdish Pds case (supra) the question as to whether the said amendments are retrospective in operation so as to be applicable to pending suits or proceedings was not examined. 16. In Venkateswarlu v. Motor & General Traders (7), Lachmeshwars case (supra) was referred to and it was laid down therein that the Court while exercising its appellate jurisdiction is bound to consider any change, either in fact or in law which has supervened since the judgment was entered. It only means that the appellate court or the revisional court should take into consi-deration any change in the law which has been made after the suit was decided and during the pendency of the appeal or revision provided the aforesaid change in the law is intended by the Legislature to be applicable to suits or proceedings pending on the date on which the amendment is introduced in the law. There may be amendments which are retrospective in operation so as to be applicable to the pending proceedings also and there may be amendments which do not touch pending proceedings and may apply only to future proceedings. It is only in respect of amendments which are intended to apply to the pending proceedings that the appellate Court or the revisional court is required to apply the law, as amended, while disposing of the appeal or revision pending before it. Where the amendment in law is not intended to be applicable to pending proceedings, the said amendments would have no bearing on the appeal or the revision which is pending and the appellate or revisional court is not required to take note of the said change in the law. Where the amendment in law is not intended to be applicable to pending proceedings, the said amendments would have no bearing on the appeal or the revision which is pending and the appellate or revisional court is not required to take note of the said change in the law. Even according to the principles laid down in Lachmeshwars case (supra), it would be further necessary to ascertain whether the amendments which have been introduced in s. 6 of the Act by the Ordinance and the Amendment Act are intended to be retrospective in operation so as to apply to suits, appeals and applications or revision pending on the date, when the said amendments were introduced. We have examined the amendments which have been introduced in s. 6 of the Act. There is nothing in the amendments to indicate that the Legislature expressly or by necessary implication intended the amendments to be retrospective in operation. 17. It will be relevant here to refer the second proviso to sub-s. (2) of s. 6 of the Act. We have examined the amendments which have been introduced in s. 6 of the Act. There is nothing in the amendments to indicate that the Legislature expressly or by necessary implication intended the amendments to be retrospective in operation. 17. It will be relevant here to refer the second proviso to sub-s. (2) of s. 6 of the Act. "Provided further that where the fair rent or standard rent for any premises has been determined or redetermined by any court under this Act or by any authority under any law or order repealed by section 30 before the commencement of the Rajasthan Premises (Control of Rent and Eviction Amendment) Ordinance, 1975 and the amount of such fair rent or standard rent is the same as would be determinable as standard rent by the Court under this section, the fair rent or standard rent previously determined or redetermined, shall not be disturbed." Second proviso to sub-s. (2) of s. 6 of the Act says (1) where the fair rent or standard rent for any premises has been determined; or (2) where the fair rent standard rent has been determined by any Court under this Act or by any authority under any law or order repealed by s. 30 of the Act before the commencement of the Rajasthan Premises (Control of Rent and Eviction is Amendment) Ordinance, 1975 and the amount of such fair rent or standard rent the same as would be determinable as standard rent by the Court under s. 6, the fair rent or standard rent previously determined or re-determined shall not be disturbed and such fair and standard rent shall be recognised as the standard rent of such premises for the purpose of sub-s.(2) of s. 6 of the Act. The fair or standard rent so determined or re-determined as contemplated by this proviso shall be deemed to have been a standard rent fixed for the purpose of the section and shall be respected to as if it has been validly fixed by the court in accordance with the provisions of the Act as denoted in the definition of the word standard rent under s. 3 (vi) of the Act. S, 6 (2) of the Act further fortifies us that the amendments introduced in s. 6 of the Act are not retrospective in operation. The contention raised by the learned counsel for the petitioner cannot be accepted. S, 6 (2) of the Act further fortifies us that the amendments introduced in s. 6 of the Act are not retrospective in operation. The contention raised by the learned counsel for the petitioner cannot be accepted. We are, therefore, of the opinion that the amendments introduced in s. 6 of the Act have no retrospective effect so as to be applicable to the suits or proceedings pending on the date when the Ordinance came into force. The contrary view taken in Jagdish Pds case (supra) is overruled. 18. No other point was pressed for our consideration. 19. In view of the aforesaid conclusion, the revision petition has no force. It is, accordingly, dismissed without any order as to costs.