Judgment :- (This House Rent Revision Petition is filed under Section 46 (1) of Karnataka Rent Act against the Order dated 17.8.2006 passed in HRC No.11/2005 on the file of the VII Additional Small Causes Judge, Bangalore (SCCH-3), dismissing the petition filed under Section 27(2)(a) of KR Act for recovery of possession of the suit schedule premises.) Heard the Counsel for the parties. 2. The petitioners are said to be the owners of property bearing no.445 (old no.32), OPH Road, Bangalore. The said premises measuring about 8’ x 11’ was leased to the father of the respondents by the father of the petitioners, on a monthly rent of Rs.14/- which stood enhanced and was Rs.40/-at the time of presentation of the petition before the trial Court. The petitioners are brothers and have obtained the subject property as their share at a partition in terms of a compromise decree in a civil suit, OS 4327/2003, before the Court of the City Civil Judge, Bangalore. The petitioners had filed the eviction petition under section 27(2)(a) and (j) of the Karnataka Rent Act, 1999 (hereinafter referred to as the ‘1999 Act’). The petitioners had raised a further specific plea that the respondents had continued in occupation of the subject premises after the death of the original tenant, in their capacity as his successors. Hence, in terms of Section 5 of the 1999 Act, their right to such occupation stood extinguished after the expiry of five years from the date of such death of the tenant. Incidentally, the petitioners herein had, along with their elder brother who is no more, preferred an eviction petition earlier in respect of the very premises in case No.HRC 10352/1983 under Section 21(1)(a)(h) and (p) of the Karnataka Rent Control Act, 1961 (hereinafter referred to as the ‘1961 Act’). The same was dismissed on merits by order dated 12.4.1989, and was confirmed in a revision petition before this Court in HRRP 4879/1989, by an order dated 30.3.1995. The respondent had entered appearance before the trial Court and contested the petition under the 1999 Act. The trial Court has rejected the petition. The trial Court has opined that the plea insofar as the right of the respondents to continue in occupation of the premises having stood extinguished five years after the death of the original tenant in the year 1987, not having been raised in case no. The trial Court has rejected the petition. The trial Court has opined that the plea insofar as the right of the respondents to continue in occupation of the premises having stood extinguished five years after the death of the original tenant in the year 1987, not having been raised in case no. HRC 3051/1989, the petitioners are deemed to have waived their claim to seek repossession. The trial Court has held that the ground under Section 27(2) is not established. The trial Court has further opined that the requirement of the premises for the occupation of the petitioners was also not established as the question had attained finality in the earlier petition and stood confirmed by this Court in HRRP 4879/1989. And for the very same reason has held that the ground raised under Section 27(2)(j) was barred by res-judicata in terms of Section 61 of the 1999 Act. 3. Shri Shaker Shetty appearing for the petitioners contends that the right of the petitioners has crystallized in the year 2003, on a partition having been effected, and their legal status and circumstances stood varied pursuant to the same. The finding of the trial Court that they are yet bound by the earlier order of dismissal of the eviction petition brought by the petitioners as members of a joint family is hence erroneous. It is contended that the presumption of requirement contemplated under the provisions of the 1999 Act has been overlooked by the trial Court. The trial Court has committed an error of law in holding that the petitioners are deemed to have waived their right to invoke Section 5 of the 1999 Act as no such plea was raised in the earlier proceedings. As the last of the contentions of Shri Shetty was apparently a circumstance that has been addressed by the trial Court with reference to the legal position, the matter was heard at length. 4. It is contended that a specific plea was raised invoking Section 5 of the Karnataka Rent Act, 1999 to contend that the respondents’ right to continue in occupation stood extinguished five years after the death of the original tenant. 4. It is contended that a specific plea was raised invoking Section 5 of the Karnataka Rent Act, 1999 to contend that the respondents’ right to continue in occupation stood extinguished five years after the death of the original tenant. The trial court has negated this plea as follows: “It is not shown to me that if the petitioners have raised this plea available under Section 5 of the Karnataka Rent Act, 1999 in HRC 3051/1989 filed by the respondents.” It is submitted that the 1999 Act having been brought into force with effect from 31.12.2001, it is inexplicable that the trial court should opine as to such a plea being raised in a petition of the year 1989 and further, when that was a petition under Section 19 of the 1961 Act, which stood disposed of, by an order dated 15.9.1990, in favour of the respondents. It is pointed out, that as settled by a division bench judgment of this Court in Mercury Press and Others vs. Ameen Shacoor and others, ILR 2002 Kar.2304, it is held while interpreting the scope of Sections 70(2) and 70(3) vis-à-vis Section 6 of the Mysore General Clauses Act, 1899 as follows: “If any Act is reported, without specifying the consequences of the repeal, Section 6 of the General Clauses Act will apply and the repeal will not affect any legal proceedings or remedy in respect of any right, privilege, obligation and liability acquired, accrued or incurred under the repealed Act and any legal proceedings or remedy may be instituted, continued or enforced as if the repealing Act has not been passed. But where the repeal is accompanied by fresh legislation on the same subject, the provisions of the new Act will have to be looked into to determine whether and how far the new Act evinces a contrary intention affecting the operation of Section 6 of the General Clauses Act.” And further, would submit that this court in the case of Shahwar Basheer and others vs. Veena Mohan and others, ILR 2003 Kar.4732 has held as follows: “13. Thus, where the essential pre-requisite to be sustained to get relief under Section 5 of the present Act is merely to show to the satisfaction of this Court that the successors had outstayed the maximum period of inheritance permitted under Section 5, this Court cannot seek proof of any other ground provided for eviction of the tenant under Section 27 of the Act for granting relief of possession of the petition premises as it would automatically follow under Section 5 as the possession of the premises by the successors of the tenant becomes indefensible after the expiry of 5 years provided under Section 5. Even if the landlord had suffered a negative finding in so far as his claim for self-occupation on the grounds hitherto available to him under the repealed Act and no exception could be taken to the order so passed by the Court below with reference to the provisions of the repealed Act declining the prayer for self-occupation, still, it would be open for the landlord to stake claim under Section 5 and obtain possession of he premises in the occupation of the successors of the tenant after the expiry of the term permitted under Section 5 because it is a new substantive remedy provided for the enforcement of an existing rights. May be, the orders impugned in this revision cannot be faulted on the ground of lack of application of relevant principles governing the issue and on the ground of want of proper consideration. But, because the provisions of the present Act, especially Section 5 were not in existence at the time the orders were passed and more still as there is no consideration of the material on record with reference to the altered law that governs the field now, this Court sitting in revision can adjudicate the matter in terms of the altered law as subsequent developments and altered circumstances are relevant at all stages of the proceedings.” In Taradevi and another vs. Sakku Bai and another, 2003(1) KCCR 714 it has been held that in terms of Section 3(n), of 1999 Act, to extend the meaning assigned to a ‘tenant’ under the 1961 Act to persons who inherit tenancy with the coming into force of the new Act would render Section 5 redundant and meaningless. The statutory right of tenancy that may have accrued to the legal representatives under the 1961 Act is taken away by the repeal of that Act though the new Act is prospective in its nature. Attention is also drawn to the decision in K.S. Nagamma v. Mrs. M.P. Manekshah, ILR 2004 Kar 2309. 5. The Counsel for the respondents, on the other hand, would submit that the judgment of this court in Kiran Bai Others vs. K.V.Jayachandra Setty and Others, ILR 2006 Kar. 212 has categorically held that the view taken by this Court in the decisions in K.S. Nagamma vs. M.P. Manekshah, supra and Shahwar Basheer and others vs. Veena Mohan and Others, supra, is not correct and that a tenant cannot be evicted solely on the basis of Section 5 of the new Rent Act, except following the procedure provided in Chapter-VI of the new Rent Act. The decisions cited by the Counsel for the petitioners is, therefore, no longer good law and in the present case, the original tenant having died in the year 1987 and the respondents having continued in occupation well beyond the period of five years after such, death, and their rights as tenants being protected under the provisions of the 1961 Act, as they fall within the definition of ‘tenant’ under Section 3(r) of that Act and having continued in possession as protected tenants with the coming into force of the 1999 Act, the rigour of Section 5 cannot be applied with retrospective effect to seek eviction of the respondents in terms of the said Section. A fallacy was committed by this court in applying Section 5 in respect of cases where the original tenant had died five years prior to the coming into force of the new Act, and was completely outside the scope of Section 5 as has now been laid down by this Court in Kiran Bai’s case. 6. The Counsel for the respondents would seek to place reliance on a judgment of the Supreme Court in Dena Bank vs. Bhikhabhai Prabhudas Parekh & Co. (2005) 5 SCC 694, to contend that a legislation made to commence from a date previous to the date of its enactment is retrospectively. 6. The Counsel for the respondents would seek to place reliance on a judgment of the Supreme Court in Dena Bank vs. Bhikhabhai Prabhudas Parekh & Co. (2005) 5 SCC 694, to contend that a legislation made to commence from a date previous to the date of its enactment is retrospectively. In the absence of Section 5 indicating that it would operate even prior to the date of coming into force of the 1999 Act, the rigour of Section 5 would apply only from the date of commencement of the Act and cannot be applied to a situation where the original tenant had died and his legal representatives had succeeded to the tenancy as tenants in terms of Section 3(r) of the 1961 Act. The right vested cannot be taken away be reference to a legislation which is silent as to its retrospectively and therefore, there can be no eviction petition under Section 5, read with any of the grounds set out under Section 27 of the 1999 Act. He also places reliance on the judgment in Brindavan Roller Flour Mills Pvt.Ltd. vs. Joint Commissioner of Commercial Taxes, ILR 1994 Kar. 2196, in support of his contention that it is a cardinal principle of construction that every Statute is presumed to be prospective unless it is expressly or by necessary implication made retrospective in operation and every decision of the Supreme Court declaring the law is retrospective, unless it is expressly or by necessary implication restricted to prospective operation. He would further contend that the Court cannot enlarge the scope of legislation when the language is plain and unambiguous. The Court cannot add words or read words into it and for this proposition, places reliance on Union of India v. Deoki Nandon Agarwal, AIR 1992 SC 96 . The Counsel also places reliance on Section 6 of the General Clauses Act, 1897 and the corresponding provision under the Mysore General Clauses Act, 1899, to contend that the effect of repeal of the 1961 Act would not affect any right or privilege acquired under the enactment so repealed. The Counsel also places reliance on Section 6 of the General Clauses Act, 1897 and the corresponding provision under the Mysore General Clauses Act, 1899, to contend that the effect of repeal of the 1961 Act would not affect any right or privilege acquired under the enactment so repealed. And the Counsel would submit that in terms of Section 5 of the 1999 Act, even if a cause of action arises to a landlord, since the Section does not provide for eviction or afford the circumstance as a ground for eviction under the provisions of the Act, the landlord would necessarily be relegated to seek his rights under the common law once the protection given to a tenant under the Rent Act is withdrawn or limited as contemplated under Section 5. Therefore, even assuming that the cause of action arose by virtue of Section 5, the petitioner would necessarily have to pursue their remedies in common law and not under the 1999 Act. For this proposition, Counsel places reliance on the ratio of the decision in Ambalal Sarabhai Enterprises Ltd Vs. Amritlal and Company and another, (2001) 8 SCC 397 . 7. By way of reply, the Counsel for the petitioner would submit that the decisions of this court in Shahwar Basheer and K.S. Nagamma supra, having been held to be incorrect by a learned Single Judge of coordinate jurisdiction is contrary to the settled principles as reiterated by the Supreme Court in Central Board of Dawoodi Bodra Community and another vs. State of Maharashtra and another, (2005) 2 SCC 673 , Hence, it would not fetter this Court from taking a view as to the applicability of Section 5 in line with the judgments rendered by this court in K.S. Nagamma and in Shahwar Basheer, supra. 8. On a close examination of the rival contentions and the decisions cited in Shahwar Basheer and others vs. Veena Mohan and others, a learned Single Judge of this court has referred to the decision in S.N. Kapoor vs. Basani Lal Khairi, 2001 AIR SCW 4753, to conclude that the essential prerequisite to be substantiated to get relief under Section 5 of the 1999 act was merely to show to the satisfaction of the Court that the successors had overstayed the maximum period of inheritance permitted under Section 5. This is a new substantive remedy provided for the enforcement of an existing right. This is a new substantive remedy provided for the enforcement of an existing right. Further in Taradevi and another vs. Sakkubai supra, the very same learned Single Judge has reiterated the position while affording the following reason. The definition of tenant under Section 3 (n) of the 1999 Act eschews from within its ambit the legal representatives of the deceased tenant and if the meaning assigned to a tenant under the old Act were to be extended to persons who inherited the tenancy before the coming into force of the 1999 Act, then Section 5 would be rendered redundant, as then Section 5 could be enforced only five years after the death of every one of the legal representatives of the original tenant, because if they are to be treated as tenants under the new Act, the tenancy would devolve in favour of all the successors. Therefore, persons who could claim to be tenants in their own rights prior to the coming into force of the Act, cannot, after the Act has come into force, lay claim to the said status. In holding that the said decisions have incorrectly laid down the law, another learned Single Judge of this Court in Kiran Bai’s case has assigned certain reasons. It is useful, therefore, to refer to the facts of that case before setting out the reasons assigned by the learned Single Judge in proceedings to disagree with the view taken earlier. Kiran Bai And Others Vs. K.V. Jayachandra Setty And Others, ILR 2006 KAR. 212 The facts in that case were, an eviction petition was filed in the year 1989, under Section 21(1)(h) of the Karnataka Rent Control Act, 1961 (hereinafter referred to as the 1961 Act). During the pendency of the petition, the tenant died as on 10.3.1991. His legal representatives were brought on record. The petition was ultimately allowed on merits by an order dated 16.9.1995. The tenants challenged the same in revision before the Court of the District Judge. The revision petition was allowed and the order of eviction was set aside on 28.1.1998. On a further revision petition before this Court, the matter was remanded to the District Court to reconsider the revision petition. During the pendency of the same the landlord died. His legal representatives had sought amendment of the grounds in the eviction petition to claim the premises as being required for establishing their business. On a further revision petition before this Court, the matter was remanded to the District Court to reconsider the revision petition. During the pendency of the same the landlord died. His legal representatives had sought amendment of the grounds in the eviction petition to claim the premises as being required for establishing their business. The amendment was allowed and the matter was remanded to the trial Court for a fresh consideration of the eviction petition. Before the trial Court on interlocutory application was moved under Section 5of the Karnataka Rent Act, 199 (hereinafter referred to as the 1999 Act) as on 16.9.2003 to urge that the right of the tenants to continue in occupation, after the expiry of five years form the date of death of the tenant under whom they claimed, stood extinguished and for a direction to handover possession. The application was allowed. The same was challenged by way of a revision petition before the Court of the District Judge. The order of the trial Court was affirmed. The same was challenged before this Court. This Court has held as follows:- “That the eviction petition was filed under the 1961 Act. On the original tenant’s death as on 10.3.1991, his legal representatives succeeded him as tenants protected under the Act in terms of Section 3(r) of the said Act.” And in interpreting the scope of Section 5 of the 1999 Act has, after extracting the text of Section 5, held as following: “The language employed in Section 5(I) that “in the event of death of a tenant indicates that it does not provide for retrospective effect. In other words it says that in the event of death of a tenant, the rights of tenancy shall devolve for a period of 5 years from the date of death of the tenant to his successors in the order of (a) spouse: (b) son or daughter both of them. (c) parents and (d) daughter-in-law being the widow of his predeceased son subject to provisos. Thus, it regulates the tenancy in the event of death of a tenant. Section 5 of the New Rent Act does not provide for eviction of a tenant. As a matter of fact, Sections 27 to 46 under Chapter-VI deals regarding regulation of eviction. (c) parents and (d) daughter-in-law being the widow of his predeceased son subject to provisos. Thus, it regulates the tenancy in the event of death of a tenant. Section 5 of the New Rent Act does not provide for eviction of a tenant. As a matter of fact, Sections 27 to 46 under Chapter-VI deals regarding regulation of eviction. Section 27 of the New Rent Act provides protection to the tenants against eviction except in the prescribed manner: whereas Sections 28,29,30 and 31 confers special right on certain landlords/person to recover immediate possession of the tenanted premises. None of these Sections viz., 27 to 31 refer to Section 5 of the New Rent Act. I have gone through the decision reported in Shahwar Basheer’s Case (Supra) And Smt. K.S. Nagamma Vs Mrs. M.P. Manekshah Case (Supra). In these cases, the Learned Judge of this Court has given retrospectives effect to Sections of the new rent Act. The Learned Single Judge of this Court has not considered the right of the L.Rs. of the tenant under the old rent act. Which was in force when the tenant dies. In my opinion retrospective effect cannot be given to Section 5 of the Act in the absence of provision to that effect. Therefore, in my opinion, with great respect to the learned Single Judge, the view taken by him in the decision reported in Smt.K. S. Nagamma Vs Mrs. M. P. Manekshah (Supra) And Shahwar Basheer And Others Vs. Veena Mohan And Others is not correct. Further, a tenant cannot be evicted solely on the basis of Section 5 of the New Rent Act, except following the procedure provided in Chapter VI of the New Rent Act. Therefore, the impugned order is not sustainable in the eye of law.” And accordingly allowed the revision petition and remanded the matter to the trial Court for a fresh consideration on other grounds. 9. The controversy as to which of the views taken by the learned judges of this Court would be the correct view and in the light of the divergent opinions, whether this Court ought to refer the issue for decision by a larger bench is what would seem apparent at first blush. 9. The controversy as to which of the views taken by the learned judges of this Court would be the correct view and in the light of the divergent opinions, whether this Court ought to refer the issue for decision by a larger bench is what would seem apparent at first blush. However, neither the judgments in Shahwar Basheer, Taradevi, etc., while holding that Section 5 can be applied even in cases where the original tenant has died before the coming into force of the Act or in the later decision in Kiran Bai have the learned Single Judges addressed the principle which is, in fact, enunciated in the case of Dena Bank supra, cited hereby the Counsel for the respondents, which is applied therein as follows:- “16. The learned counsel for the appellant submitted that sub-section (2-A) of Section 15 of the Karnataka Sales Tax Act could not be given a retrospective operation. This submission is misconceived. A legislation may be made to commence from a back date, i.e., from a date previous to the date of its enactment. To make a law governing a post period on a subject is retrospectivity. A legislature is competent to enact such a law. The ordinary rule is that a legislative enactment comes into operation only on its enactment. Retrospectivity is not to be inferred unless expressed or necessarily implied in the legislation, specially those dealing with substantive rights and obligations. It is a misnomer to say that sub-section (2-A) of Section 15 of the Karnataka Sales Tax Act is being given retrospective operation, Determining the obligation of the partners to pay the tax assessed against the firm by making them personally liable is not the same thing as giving the amendment a retrospective operation. In Principle of Statutory Interpretation (by Justice G.P. Singh, 7th Edn., 1999, at P. 369) it is stated: “The rule against retrospective construction is not applicable to a statute merely ‘because a part of the requisites for its action is drawn from a time antecedent to its passing’. If that were not so, every statute will be presumed to apply only to person born and things come into existence after its operation and the rule may well result in virtual mollification of most of the statutes. If that were not so, every statute will be presumed to apply only to person born and things come into existence after its operation and the rule may well result in virtual mollification of most of the statutes. An amending Act is, therefore, not retrospective merely because it applies also to those to whom pre-amended Act was applicable if the amended Act was applicable if the amended Act has operation from the date of its amendment and not from an anterior date.” 17. There is, therefore no question of sub-section (2-A) of Section 15 of the Karnataka Sales Tax Act being given a retrospective operative. It is prospective. However, it does not make any difference of the facts of the present case.” (emphasis supplied) The quotation cited in the above judgment from the Principles of Statutory Interpretation by G.P. Singh, enunciating the rule that an enactment is not retrospective merely because, a part of the requisites for its action is drawn from a time before it was passed was the principle laid down in R. V. St. Mary, Whitechapel (Inhabitants) (1848) 12QB 127 where this principle was stated by Lord Denman, C.J., in very concise language. Thus: The Poor Removal Act, 1846, Section 2 provided that “… no woman residing in any parish with her husband at the time of his death shall be removed .. form such Parish, for twelve calendar months next after his death, if she so long continued a window.” It was sought to remove within the twelve months, a widow whose husband had died before the Act came into force. It was argued that make the Act apply, in such a case was to construe it retrospectively. The right to remove was, it was argued, a vested right which accrued on his death. It was argued that make the Act apply, in such a case was to construe it retrospectively. The right to remove was, it was argued, a vested right which accrued on his death. The court held otherwise and LORD DENMAN, C.J., used these words: “… we have before shown that the statute is in its direct operation prospective, as it relates to future removals only, and that it is not properly called a retrospective statute because a part of the requisites for its action is drawn from time antecedent to its passing.” (See also to the same effect Master Ladies Tailors Organisation v. Minister of Labour and National Service, [1950] 2 All ER 525, Brindle v. H.W. Smith (Cabinets) Ltd., [1973] I All ER 230, [1972] I WLR 1653, Customs and Excise Commissioners v. Thorn Electrical Industries Ltd, [1975]3 All ER 881, Alexander vs. Mercuris [1979]3 All ER 305, Secretary of State for Social Security v. Tunnicliffe, [1991]2 All ER 712, (overruled on grounds not effecting this dictum by Plewa vs. Chief Adjudication Officer, [1994]3 All ER 323). This principle has been applied by the Supreme Court beginning with - RaoShiv Bahadur Singh and another vs. State of Vindhya Pradesh, AIR 1953 SC 394 In this case one of the questions that arose for consideration were that the charges as against the two appellant referred to offences committed as having been under several Sections of the Indian Penal Code as adopted in the United State of Vindhya Pradesh by Ordinance 48 of 1949, which was passed on 11.9.1949 while the offences themselves were said to have been committed several months prior to the Ordinance. It was hence, urged that the convictions which were made, after the Constitution came into force, are in respect of an ex post facto law creating offences after the Commission of the acts charged as such offences. This required the Supreme Court to consider the construction of Article 20 of the Constitution of India. It was held that the prohibition under Article 20 of the Constitution is not confined to the passing or the validity of the law, but extends to the conviction or the sentence and is based on its character as an ex post facto law. The fullest effect must be given to the actual words used in the article. It was held that the prohibition under Article 20 of the Constitution is not confined to the passing or the validity of the law, but extends to the conviction or the sentence and is based on its character as an ex post facto law. The fullest effect must be given to the actual words used in the article. Nor does such a construction of Article 20 result in giving retrospective operation to the fundamental right thereby recognized. All that it amounts to is that the future operation of the fundamental right declared in Article 20 may also in certain cases result from acts and situations which had their commencement in the pre-constitution period, while re-iterating the principle laid down in Queen Vs. St. Mary Whitechapel (Supra) to the effect that a statute which in its direct operation is prospective cannot properly be called a retrospective statute because a part of the requisites for its action is drawn from a time antecedent to its passing. Reference may also be made to, Union of India vs. Madan Gopal Kabra, AIR 1954 SC 158 The dispute which arose for consideration in that case was in the following circumstances: The scheme of the Indian Income Tax Act, 1922 was to tax a person resident in the taxable territories during the previous year on all his income of the previous year. The scheme of the Indian Income Tax Act, 1922 was to tax a person ‘resident’ in the taxable territories during the previous year on ‘all’ his income of the previous year whether accruing ‘within’ or ‘without’ the taxable territories, and to tax a person ‘not resident’ in the taxable territories upon his income accruing within the taxable territories during the previous year. Residence in the taxable territories was to be determined in accordance with the provisions of Section 4-A which, in the case of an individual, took into account his having been in such territories within the five years preceding the year of assessment. If Rajasthan was a taxable territory in the year 1949-50, the respondent was chargeable in respect of his income whether derived within or without Rajasthan. If Rajasthan was a taxable territory in the year 1949-50, the respondent was chargeable in respect of his income whether derived within or without Rajasthan. It was, however, argued on his behalf that Section 3 of the Finance Act, 1950, having substituted the amended clause (14-A) “with effect from the first day of April 1950,” Rajasthan was not a taxable territory during the Accounting Year 1949-50, and that no income tax being admittedly leviable in that State on the income accruing there in that year, the new clause (14-A) should not be construed so as to impose liability to pay Indian income tax on such income. It was argued that the word “assessment” employed in the relevant proviso of the Section must be taken to mean only computation of income and not the imposition of liability. And the Court held, while placing reliance on the principle in Queen vs. St. Mary Whitechapel as follows: “15. Nor can it be said, in strictness, that the Finance Act, 1950 is retroactive legislation. That Act, as already noticed, purports by Section 2 to charge income tax and super tax at specified rates “for the year beginning on the 1st day of April, 1950.” The case is thus one where the statute purpose to operate only prospectively, but such operation has, under the scheme of the Indian Income tax law, to take into account income earned before the statute came into force. Such an enactment cannot, strictly speaking, be said to be retroactive legislation, though its operation may affect acts done in the past.” Reference may also be made to -The State of Bombay vs. Vishma Ramchandra, AIR 1961 SC 307 In this case, the Court had to consider whether Section 57 of the Bombay Police Act, 1951, created a new offence or made Punishable that which was not an offence. The Section provided that a person who had been convicted of certain offences and if the authorities, specified under the Section, had reason to believe that such a person is likely again to engage himself in the Commission of a similar offence, he could be directed to remove himself outside the area of the authority’s jurisdiction. The Court held that the Section does not create a new offence nor make punishable that which was not an offence. The Court held that the Section does not create a new offence nor make punishable that which was not an offence. The Section only enables the authorities to take note of earlier convictions and put such persons outside the area of their activities. And that: “An Offender who has been punished may be restrained in his acts and conduct by legislation which takes note of his antecedents; but so long as the action taken against him is after the Act comes into force the statute cannot be said to be applied retrospectively. The Act in question was thus not applied retrospectively but prospectively.” -In Sajjan Singh vs. State of Punjab, AIR 1964 SC 464 The principle that a statute cannot be said to be retrospective “because a part of requisites for its actions is drawn from a time antecedent to its passing” was quoted from Maxwell on Interpretation of Statutes, 11th edition, page 211 and also the above case reported in AIR 1961 SC 307 was followed in this case. -In Bishnu Narain Misra vs. State of Uttar Pradesh and others, AIR 1965 SC 1567 The appellant was in the service of the State of Uttar Pradesh as a Sub-Registrar. He was born in December 1905 and was recruited in July 1933. At the time of his recruitment age of retirement for Government servants of his Class was 55 years. Therefore, he would normally have retired by December 1960. But by a Notification dated November 1957. The Government raised the age of retirement to 58 years. By this the appellant would have retired in December 1963. In May 1961, the Government again reduced the age of retirement to 55 years. One of the grounds on which the action of the Government was questioned was that the rule was retrospective and was hence bad in law as no notification could be made to operate retrospectively. The Court held that there was no retrospectivity. The rule provided that from the date it comes into force the age of retirement would be 55 years. It would apply from that date to all Government servants, even though they may have been recruited before 1961 in the same way as the rule of 1957 which increased the age from 55 years to 58 years applied to all Government servants even though they were recruited before 1957. It would apply from that date to all Government servants, even though they may have been recruited before 1961 in the same way as the rule of 1957 which increased the age from 55 years to 58 years applied to all Government servants even though they were recruited before 1957. -KS Paripooran vs. State of Kerala, AIR 1995 SC 1012 This was a case decided on a reference made by a Division Bench of the Supreme Court in K.S. Paripooran v. State of Kerala (1992 AIR SCW 1580) to consider the correctness of the decision in Union of India v. Zora Singh (1992) I SC 673 In this case, the Supreme Court considered whether Section 23(1-A) of the Land Acquisition Act, 1894, which was inserted by the Land Acquisition (Amendment) Act 1984, was retrospective in operation or whether the benefit should be restricted to matters referred to in Clauses (a) and (b) of Section 30(1) of the Land Acquisition (Amendment) Act, 1984 or whether the additional compensation could be awarded in every case where a reference was pending before the reference Court on 24.9.1984 (the date of commencement of the Amending Act), irrespective of the date on which the award was made by the Collector. The majority view of three of the five judges constituting the bench, was that Section 23(1-A) cast an obligation to pay an additional amount by way of compensation. Such an obligation did not exist prior to the enactment of the provision by the amending Act. If the provision is applied to acquisition proceedings which commended prior to its enactment. The provision would be operating retrospectively in respect of transactions already past. In this regard, as the parliament has clearly indicated in terms of Section 30(1) of the amending Act indicating the intention of parliament as to the extent to which the provision of Section 23(1-A) would apply to pending proceedings, Section 23 (1-A) could not be read in isolation without reference to Section 30(1) of the amending Act. The minority view by Justice Sawant was that Section 23(1-A) enjoins the reference Court to give the benefit of the same in awards made by it on or after the date of commencement of the amending Act. The minority view by Justice Sawant was that Section 23(1-A) enjoins the reference Court to give the benefit of the same in awards made by it on or after the date of commencement of the amending Act. Section 23 of the Principal Act does not make any distinction between acquisition proceedings commenced prior to and after 30.4.1982 or inhibits the power of the reference Court, unlike the provisions of Section 30(1), which deal with the powers of the Collector. Justice Sahai, also dissenting with the majority, held that the earlier decisions in Zora Singh and K.S. Paripoornan had not taken notice of the expression “the Court shall in every case” award the amount. The use of the word “shall” imposes a mandatory obligation on the Court to be discharged in every case. In the absence of any expression limiting the exercise of power in only those cases where a notification is issued after September 1984 or making it retrospective so as to apply to every case in which proceedings for acquisition had started before coming into force of the Act, the provision has to be applied to every case which was pending for award of compensation on or after the date when the section became operative. It is thus clear that the majority view was of the opinion that the statute itself clearly intended to be to some extent retrospective, it is not to be construed as having greater retrospective effect than its language renders necessary. And that therefore, there was no scope for extending the ambit of retrospective operation of sub-section (1-A) of Section 23 beyond the limits specified in Section 30 (1) of the amending Act. And the majority view while dealing with the scope of Sub-section (1-A) of Section 23 of the Land Acquisition Act, 1894 has held as follows: -Per Justice S.C. Agrawal, J. for himself, M.N. Venkatachalaiah, C.J and S.P. Barucha J., “42. In view of the submissions that have been advanced the first question which needs to be examined is whether sub-section (1-A) of Section 23 has been correctly construed in Zora Singh (1992(1)SCC 673) (supra) to apply on its own force to matters in which acquisition proceedings were initiated prior to the commencement of the amending Act and were pending on the date of said commencement. 43. 43. Zora Singh (1993(1)SCC 673(supra) proceeds on the basis, and rightly so, that Section 23(1-A) deals with substantive right to claim additional amount calculated as set out in the said sub-section in the circumstances set out therein. The applicability of the said provisions to proceedings for acquisition which were pending on the date of coming into force of the said provision has, therefore, to be examined keeping in view the aforesaid nature of the provision. 44. A statue dealing with substantive rights differs from statute which relates to procedure or evidence or is declaratory in nature in as much as while a statute dealing with substantive rights is prima facie prospective unless it is expressly or by necessary implication made to have retrospective effect, a statute concerned mainly with matters of procedure or evidence or which is declaratory in nature has to be construed as retrospective unless there is a clear indication that such was not the intention of the Legislature. A statute is regarded as retrospective if it operates on cases or facts coming into existence before its commencement in the sense that it affects, even if for the future only, the character or consequences of transactions previously entered into or of other past conduct. By virtue of the presumption against retrospective applicability of laws dealing with substantive rights transactions are neither invalidated by reason of their failure to comply with formal requirements subsequently imposed, nor open to attack under powers of avoidance subsequently conferred. They are also not rendered valid by subsequent relaxation of the law, whether relating to form or to substance. Similarly, provision in which a contrary intention does not appear neither impose new liabilities then existing, and the view that existing obligations were not intended to be affected has been taken in varying degrees even of provisions expressly prohibiting proceedings. [See Halsbury’s Laws of England, 4th edn., Vol. 44. Paras 921, 922, 925 and 926]. 45. These principles are equally applicable to amendatory statutes. According to Crawford; “Amendatory statutes are subject to the general principles relative to retroactive operation. Like original statues, they will not be given retroactive construction, unless the language clearly makes such construction necessary. [See Halsbury’s Laws of England, 4th edn., Vol. 44. Paras 921, 922, 925 and 926]. 45. These principles are equally applicable to amendatory statutes. According to Crawford; “Amendatory statutes are subject to the general principles relative to retroactive operation. Like original statues, they will not be given retroactive construction, unless the language clearly makes such construction necessary. In other words, the amendment will usually take effect only from the date of its enactment and will have no application to prior transaction, in the absence of an expressed intent or an intent clearly implied to the contrary. Indeed there is a presumption that an amendment shall operate prospectively. [See Crowford’s Statutory Construction pp.622.[23] 46. The dictum of Lord Denman, CJ. in the Queen v. St. Mary, White chapel (1848 (12) QB 120) (supra) that a statue which is in its direct operation prospective cannot property be called a retrospective statute because a part of the requisites for its action is drawn from time antecedent to its passing, which has received the approval of this Court, does not mean that a statute which is otherwise retrospective in the sense that it takes away or impairs any vested right acquired under existing laws or creates a new obligation or imposes a new duty or attaches a new disability in respect to transactions or considerations already past, will not be treated as retrospective. In Alexander v. Mercouris (1979(3) All ER 305) (supra), Goff. LJ, after referring to the said observations of Lord Denman, C.J. has observed that a statute would not be operating prospectively if it creates new rights and duties arising out of past transaction. The question whether a particular statute operates also will have to be determined on the basis of the effect it has on existing rights and obligations, whether it creates new obligations or imposes new duties or levies new liabilities in relation to past transactions. For that purpose it is necessary to ascertain the intention of the Legislature as indicated in the statute itself”. For that purpose it is necessary to ascertain the intention of the Legislature as indicated in the statute itself”. (emphasis supplied) Sawant J. In his dissenting view has however, referred to the principle that a statute is not retrospective merely because it affects rights; nor it is retrospective merely because a part of the requisites for its action is drawn from a time antecedent to its passing and the same having been applied in Shivbahadar Singh’s case supra, T.K. Lakhman Iyer, v. State of Madras, AIR 1968 SC 1489 and in Trimbak Damodar Raipurkar, AIR 1966 SC 1758 where it was observed, “ Where a statute operates in future it cannot be said to be retrospective merely because within the sweep of its operation all existing rights are includd”. Reference is also made to Bishma Narain Mishra Supra. R.M. Sahai .J has, in his view, also referred to the very principle and has further observed that the decision in Alexander v. Mercouris (1979) 3 All ER turned on the explicit language used in the Section therein, as follows: “ 68. In St. Whitechapel, (1848 (12) QB 120) (supra) the law intended to secure that a widow residing in a parish with her husband shall not be removed for twelve months after his death. The benefit of the law was extended even when the husband had died before coming into force of the Act and it was observed, “It was said that the operation of the statue was confined to persons who had become widows after the Act was passed, and that the presumption against a retrospective statute being intended supported this construction; but we have shown before that the statute is in its direct operation prospective, as it relates to future removals only, and that it is not properly called a retrospective statute because a part of the requisites for its action is drawn from time antecedent to its passing. In this case the words ‘shall be removed were thus found appropriate to cover all cases of future removals irrespective of whether the husband has died prior to the Act but they were not found wide enough to nullify completed removals prior to the Act, even if the widow was removed within twelve months of her husband’s death”. This observation was made as the literal and abstract construction would have resulted in hardship. This observation was made as the literal and abstract construction would have resulted in hardship. Any legislation specially a legislation enacted to mitigate social mischief is normally construed to serve public good. Principles of interpretation are only the guideline, they are not conclusive. The sure and safe way is to interpret the provision on the necessity and requirement as appears from the objective of the Act and the words used by the Legislature. Reliance was placed on observations made by Lord Goffe in Alexander v. Mercouris (1979) 3 All England Law Reports 305 distinguishing Whitechapels case (1848 (12) QB 120) that a statute, ‘would not be operating prospectively if it creates new rights and duties arising our of past transaction’. This decision turned more on the language of the Section than the principle that the prospectively of a provision is not effected even if it draws partly from past transactions. Section 1(1) of the Defective Premises Act, 1972 provided that a person ‘taking on work for or in connection with the provision of a dwelling’ owes a duty to see that the work is done properly, ‘so that as regards that work the dwelling will be fit for habitation when completed’ The question that arose was ‘whether this duty applied where the work was taken on before the commencement of the 1972 Act but completed after. It was held that the substance of the matter was the initial act of ‘taking on’ the work, therefore, the duty could not be said to arise unless the ‘taking on’ occurred after the commencement of the Act.’ The decision thus turned on the explicitly language used in the Section. No exception can be taken to the observation that a statute creating new right on past transactions cannot be held to be prospective. How does this principle help the State? Section 23(1-A) does not create any right on past transactions. Misconception appears to be prevailing due to fixation of the period for which additional compensation shall be paid. The two termini, that is, issuance of notification under Section 4(1) and publication of declaration under Section 6 are erroneously understood as creating right or furnishing starting point from which the Section shall apply. The right which is substantive in nature is to get additional compensation at the rate of twelve percent. The right is not created on past transactions. The two termini, that is, issuance of notification under Section 4(1) and publication of declaration under Section 6 are erroneously understood as creating right or furnishing starting point from which the Section shall apply. The right which is substantive in nature is to get additional compensation at the rate of twelve percent. The right is not created on past transactions. It operates in future, that is, confers benefit of additional compensation from the date it came into force and not from a date prior to coming into force of the provisions. 69. a substance law is held to be prospective as a matter of legal policy since it is founded on public policy that no right be so created as to work to the disadvantage for whom it is created as to work to the disadvantage for whom it is created as if it be so, it would be betrayal of what the law stands for’ (Bennion on Statutory Interpretation). Section 23 (1-A) does not suffer from such betrayal. It is just the otherwise. It instead of operating to disadvantage promotes the law and fairness by extending the benefit provided by the Section to all such proceedings which are pending before the court under Section 18. It ensures uniformity and equality”. 70. The Section is not robbed off its prospectively because for the exercise of right the calculation of compensation has to be made on facts which come into existence prior to the date of the Amending Act. To take a practical illustration a law may be made that any person who suffers an injury or damage would be liable to be compensated. If there is no date of its commencement then the law under General Clauses Act would start applying from the date of its enactment. And any person suffering any injury or damage after the date of enactment can file the suit. The law being substantive a person suffering any injury prior to the date of enactment would not be entitled to file the suit. To this extent the law is prospective. And any person suffering any injury or damage after the date of enactment can file the suit. The law being substantive a person suffering any injury prior to the date of enactment would not be entitled to file the suit. To this extent the law is prospective. But if the Legislature while enacting such law provides the scale of damages and links it with year or place or time prior to the date of coming into force of the Act it cannot be said that since part of it extends to any point of time anterior to the law the provision has become retrospective. In Kapur Chand vs. B.S. Grewal financial Commissioner, Punjab, Chandigrah, AIR 1965 SC 1491 , Section 14-A added from 1955 to the Punjab Security of Land Tenures Act, 1953 permitted a land owner to bring a suit for eviction notwithstanding anything to the contrary it the tenant failed to pay rent regularly as provided in Section 99(ii) of the Punjab Security of Land Tenures Act, 1953. The suit was filed by the land lower for eviction for arrears due for the years 1952,1953, 1954 and January, 1955. It was decreed and the argument that since the provisions came into force in 1955 the arrears of certain period could not furnish the cause of action else it would become retrospective was repelled and it was observed. (At p.1493.para 6) “…..In our opinion, the conduct of the tenant prior to the coming into force of the new section can be taken into account. No doubt a statute must be applied prospectively. But a Statute is not applied retrospectively because a part of the requisites for its action is drawn from a moment of time prior to its passing. The clause in question makes a particular conduct the ground for an application for eviction. The necessary condition for the application of S. 9(1) (ii) may commence even before the Act came into force and past conduct, which is as relevant for the clause as conduct after the coming into force of the Act, cannot be overlooked.” The substantive right to evict was enforced prospectively but the necessary facts for its enforcement were taken even from before coming into force of the Act. The law was not held to be retrospective on that account. (Emphasis supplied). The law was not held to be retrospective on that account. (Emphasis supplied). In Master Ladies Tailors Organsation v. Minister of Labour & National Service, (1950) 1 All England Law Reports 525, a question arose if an order passed by the Minister fixing remuneration for work and holding was ultra vires the Act as it applied retrospectively. It was held that effect of the provision relating to accrued remuneration being merely to determine and limit the quantum to be made the order could not be construed as having retrospective operation. It was observed by the Court that if a prospective benefit is in certain cases to be measured by or depends on antecedent facts does not make the provision retrospective. This decision makes it clear that a substantive provision is not rendered retrospective if the right created by the provision provides that scale or fixes the benefit from period prior to coming into force of the provisions.” It would be useful to extract the following provisions for ready reference before considering the petition on hand with reference to the legal position. The 1961 Act has defined a “tenant” under section 3® as follows: “3(r) “tenant” means any person by whom or on whose account rent is payable for a premises and includes the surviving spouse or any son or daughter or father or mother of a deceased tenant who had been living with the tenant in the premises as a member of the tenant’s family upto to the death of the tenant and a person continuing in possession after the termination of the tenancy in his favour, but does not include a person placed in occupation of a premises by its tenant or a person to whom the collection of rents or fees in a public market, carts-stand or slaughter house or of rents for shops has been framed out or leased by a local authority.” Part-V of the said Act provided for control of eviction of tenants land obligation of landlords. There is no difficulty in holding that the present respondents answered the description of tenants and could have been evicted only under the provisions of Part-V of the old Act and were fully protected as tenants, during the period upto 31.12.2001. There is no difficulty in holding that the present respondents answered the description of tenants and could have been evicted only under the provisions of Part-V of the old Act and were fully protected as tenants, during the period upto 31.12.2001. Under the 1999 Act, which has come into force with effect from 31.12.2001, a tenant has been described under Section 3(n) as follows: “3.(n) “Tenant” means any person by whom or on whose account or behalf the rent of any premises, is or but for a special contract would be, payable, and includes: .(i) a sub-tenant; .(ii) any person continuing in possession after the termination of his tenancy, but does not include any person to whom a licence as defined in Section 52 of the Indian Easements Act, 1882 (Central Act 5 of 1882) has been granted; The 1999 Act recognizes the limited inheritability of tenancy interms of Section 5 as follows:- “5. Inheritability of tenancy: (1) In the event of death of a tenant, the right of tenancy shall devolve for a period of five years from the date of his death to his successors in the following order, namely: .(a) spouse; .(b) son or daughter or where there are both son and daughter both of whom; .(c) parents; .(d) daughter-in-law, being the widow of his pre-deceased son; Provided that the successor has ordinarily been living or carrying on business in the premises with the deceased tenant as a member of his family up to the date of his death and was dependent on the deceased tenant: Provided further that a right to tenancy shall not devolve upon a successor in case such successor or his spouse or any of his dependent son or daughter is owning or occupying a premises in the local area in relation to the premises let. (2) If a person, being a successor mentioned in sub-Section (1), was ordinarily living in or carrying on business in the premises with the deceased tenant but was not dependent on him on the date of his death, or he or his spouse or any of his dependant son or daughter is owning or occupying a premises in the local area in relation to the premises let to which this Act applies such successor shall acquire a right to continue in possession as a tenant for a limited period of one year from the date of death of the tenant; and, on the expiry of that period, or on his death, whichever is earlier, the right of such successor to continue in possession of the premises shall become extinguished. There is no dispute that the 1999 Act would be applicable in respect of the premises in the occupation of the respondents. There is also no dispute that the respondents claim as successors of the tenant who died in the year 1987. They do not claim any independent right of tenancy under any subsequent agreement. It is, therefore, clear that under the provisions of the present Act, the respondents cannot be described as tenants. 9. Applying the ratio laid down by this Court in Kiran Bai, no eviction petition can be brought against the respondents with reference to Section 5 of the Act, except following the procedure provided in Chapter-VI of the 1999 Act. In other words, a distinction is to be made of legal representatives of a tenant who has died before 31.12.2001 and legal representatives of a tenant who has died after 31.12.2001. And it is only in cases falling under the latter category that Section 5 would stand attracted and the former would continue to be treated as tenants for purposes of Chapter-VI of the 1999 Act. This is the consequence of proceeding on the assumption that Section 5 operates prospectively and does not take into account the event of the death of a tenant prior to 31.12.2001. In the opinion of this Court, such a restricted application is not warranted. The tenor of Section 5 does not place any such restriction. Though Section 5 operates prospectively it would certainly take into account events prior to the date of the Act coming into force, namely, 31.12.2001. In the opinion of this Court, such a restricted application is not warranted. The tenor of Section 5 does not place any such restriction. Though Section 5 operates prospectively it would certainly take into account events prior to the date of the Act coming into force, namely, 31.12.2001. To illustrate, if a tenant had died in November 2001, by virtue of Section 5, persons claiming under such a deceased tenant would continue to be occupants in terms of Section 5 for the period prescribed therein. Their right gets extinguished after the expiry of that period. The right of such occupants claiming as successors of a tenant having been conferred under the Act, Section 5 read with section 41 would enable the court to put the petitioning landlord in vacant possession of the premises after evicting the said persons. Section 41 of the 1999 Act reads as follows: “41. Vacant possession to landlord: Notwithstanding anything contained in any other law, where the interest of a tenant in any premises is determined for any reason whatever and an order is made by the Court under this Act for the recovery of possession of such premises, the order shall subject to the provisions of Section 34, be binding on all persons who may be in occupation of the premises and vacant possession thereof shall be given to the landlord by evicting all such persons therefrom: Provided that nothing in this Section shall apply to any person who has an independent title to such premises.” Section 5, therefore, is prospective in operation. In fact, the right of a legal representative of a tenant to claim protection under Section 3(n) read with Section 21 of the 1961 Act is taken away prospectively with the coming into force of the 1999 Act, which recognizes only a limited right in such legal representatives. Section 5 is not applied retrospectively as a the requisite for an action in terms of Section 5 is an event that has occurred before the coming into force of the new Act. The right of a legal representative of a tenant who claims his right to occupation only as the successor of the tenant, but not under an independent right would have to be addressed in terms of Section 5 which contemplates that the tenancy would stand determined with the death of the tenant subject to Section 5. The right of a legal representative of a tenant who claims his right to occupation only as the successor of the tenant, but not under an independent right would have to be addressed in terms of Section 5 which contemplates that the tenancy would stand determined with the death of the tenant subject to Section 5. The limited protection afforded may have spent itself out before the coming into force of the Act or it may be after the coming into force of the Act. This would hardly make any difference in the applicability of the same. The rule against retrospective construction would, therefore, not be applicable to Section 5 only because, a part of the requisites for its action is drawn from a time antecedent to its passing. To construe it otherwise, would result in nullification of its operation. 10. As the principle is well settled, having regard to the line of cases referred to hereinabove, and this aspect of the matter not having been considered earlier by this court in the interpretation of scope of Section 5 of the Act and given the admitted facts and circumstances in the case on hand, the order impugned is set aside and the petition stands allowed. The respondents are granted two months time to quit and deliver vacant possession of the premises to the petitioners. The respondents shall deliver vacant possession on or before 10th February, 2009 subject to payment of the amount paid as rent from time to time during their occupation of the premises up to the date of delivering vacant possession.