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K.S. Shafeeq Vs. Mohammadi Begum - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 1812 of 1960
Judge
Reported inAIR1964AP398
ActsAndhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 - Sections 10(4) and 33; Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954 - Sections 15 and 15(4)
AppellantK.S. Shafeeq
RespondentMohammadi Begum
Appellant AdvocateK. Jayachandra Reddy, Adv.
Respondent AdvocateMohd. Hussain Farooqi and ;P. Shivasankar, Advs.
DispositionPetition dismissed
Excerpt:
.....to the pending cases, and unless such an intention is clearly expressed, it will not be correct in view of the principles of interpretation of statutes to give retrospective effect to section 10 (4) particularly when section 33 of the 1960 act directs that all pending sections shall be disposed of in accordance with the 1954 act and as if the 1980 act had not been passed. ' the landlady became entitled to recover possession when the tenant failed to pay rent or she required the house for her own occupation, and this right is not taken away by any provision of the 1960 act. the court therefore was bound in law to pass the decree when the requirements of section 15 of the 1954 act were satisfied. as no other submission was made, consequently the revision petition must fail and is..........is that the landlady will he deemed to have acquired the right only when a final order of eviction is passed. in support of this contention he relied upon a decision of the supreme court in jiva bhai v. chhagan, : [1962]1scr568 . it is no doubt true that it is decided there that '..... the notice under section 34 (1) is merely a declaration to the tenant of the landlord's intention to terminate the tenancy and no further proceedings may be taken by the landlord in consequence thereof. it is only when the period of notice has expired and the tenancy has terminated that the landlord acquires a vested right to obtain possession of the land therefore the amending act does not affect any vested right of the landlord's till the tenancy actually stood terminated after the expiry of the.....
Judgment:

Ekbote, J.

1. In this revision petition a short but important question with regard to the effect of Section 33 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960, hereinafter called the I960 Act, is raised.

2. The essential facts are these: The respondent who is a landlady filed an application for eviction under Section 15 of the Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954 (hereinafter referred to as 1954 Act) on the ground that the tenant was a wilful defaulter and that the landlady requires the suit house for her own residence. The tenant denied that he is a defaulter and also disputed the personal requirement of the landlady.

3. The Rent Controller after due enquiry dismissed the petition rejecting both the contentions of the landlady. Dissatisfied with that decision the landlady went in appeal before the Small Causes Court, Hyderabad.

4. The learned Judge allowed the appeal on the ground that the landlady requires the house bona fide for her residence. This revision petition is directed against the said order of the appellate authority.

5. When this revision came up for hearing before Chandrasekhara Sastry, J. he thought that the questions involved in the revision petition being important the revision petition should be heard by a Bench, and that is how the matter, has come before us.

6. The principal contention of Mr. Jayachandra Reddy, the learned counsel for the petitioner, is that the tenant, who is a Labour Officer and belongs to a service governed by the Notification C. O. Ms. 882, General Administration, no order of his eviction can be passed under Section 10 of the 1980 Act. In order to appreciate this contention it is necessary to refer to some of the provisions, but before we do that, it must be noted that the landlady filed petition admittedly under the 1954 Act, The judgment of the Rent Controller was given on 31st March, 1960, a date on which the 1954 Act was in force. The matter was carried in appeal during the pendency of which the 1960 Act came into force on 21st April, 1980. It is only on 20th June, 1960 that the abovesaid G. O. Ms. 882 declaring all Government servants as belonging to essential services was issued. The appellate authority decided the appeal on 21st October 1980. The point for consideration therefore is whether the appellate authority was bound to take note of the new Act and the said G. O. and refuse to pass an order of eviction against the tenant as he belonged to essential services under Section 10 of the 1960 Act. In order to answer this question it is necessary to look into some provisions of both the Acts viz., 1954 Act as well as 1960 Act. Section 15 of the 1954 Act as far as it is relevant is in the following terms :

'15 (1). A tenant shall not be evicted, whether in execution of a decree or otherwise except in accordance with the provisions of this Section.

(2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf, If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application is satisfied .............

(i) .......

(ii) .....................

(iii) ......................

(iv) .......................

(v) ................

(vi) ........................

(3) (e) : The Controller shall, if he is satisfied that the claim of the landlord is bona fide, make an order directing the tenant to put the landlord in possession of the house on such date as may be specified by the Controller and if the Controller is not so satisfied, he shall make an order rejecting the application.

(4) No order for eviction shall he passed under Sub-section (3) ... (i) against any tenant who is engaged in any employment or class of employment notified by the Government as an essential service for the purposes of this sub-section, unless the landlord is himself engaged in any employment or class of employment which has been so notified; or ... .'

7. Now it is not disputed that no Notification as contemplated by Section 15 (4) of the 1954 Act was issued till the Rent Controller passed the order. In fact no such Notification till the 1954 Act was repealed was issued. It is only after the 1960 Act came into force that the abovesaid Notification was issued for the first time and under the new Act on 20th June 1960. It is thus clear that there is no Notification under Section 15 (4) in this respect even to day. The contention of the learned Advocate for the petitioner is that the 1960 Act is applicable and the appellate authority was bound to follow the provisions of the 1960 Act, and dismiss the petition for eviction filed by the landlady. At first we thought that there is some force in this submission, but in the end we came to the conclusion that no effect can be given to this argument. It is true that the 1960 Act has an identical provision in Section 10 (4) which is to the following effect:

'10(4) : No order for eviction shall be passed under Sub-section (3)...... (i) against any tenant who is engaged in any employment or class of employment notified by the Government as an essential service for the purposes of this sub-section unless the landlord is himself engaged in any employment or class of employment which has been so notified; or ... .'

It is only under this sub-section that the Notification dated 20th June 1960 was issued. It is the argument of the learned counsel for the petitioner that inasmuch as Sub-section (4) of Section 10 is mandatory in its nature the appellate Court cannot pass any order of eviction in the teeth of the said provision and the Notification. For this argument it is assumed by the learned Advocate that the new Act applies to a pending case. He does not dispute that the petition for eviction was filed under the 1954 Act and that the Rent Controller had passed the order under that Act. His contention, however, is that on the language of Section 10 (4) of the 1960 Act the appellate authority was bound to take notice of the subsequent enactment and in view of which he could not direct eviction. Section 33 of the 1960 Act, however, provides a complete answer to this argument. Section 33 is as follows ;

'The Madras Buildings (Lease, Rent and Eviction) Control Act, 1949 (Madras Act 25 of 1949), and the Hyderabad Houses (Rent, Eviction and Lease) Control Act. 1954 (Hyderabad Act 20 of 1954) (hereinafter in this section referred to as the repealed Acts), are hereby repealed :

Provided that the repeal shall not affect :

(a) the previous operation of the repealed Acts or anything duly done or suffered thereunder; or

(b) any right, privilege, obligation or liability acquired, accrued or incurred under the repealed Acts; or

(c) any penalty or punishment incurred in respect of any offence committed under the repealed Acts; or

(d) any investigation, legal proceeding, or remedy in respect of any such right, privilege, obligation, liability, penalty or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty or punishment may be imposed as if this Act had not been passed subject to the condition that after the commencement of this Act, no sentence of imprisonment shall be passed in any case under Section 16 of the repealed Madras Act pending on such commencement;

'Provided further that, subject to the preceding: proviso, anything done or any action taken including any appointment made, notification, order, instruction or direction issued, or rule framed under the repealed Acts shall be deemed to have been done or taken under the corresponding provision of this. Act, and shall continue to be in force accordingly, unless and until superseded by anything done or any action taken under this Act.'

8. It is thus clear that although the 1954 Act has been repealed and the 1960 Act came into force, from a reading of Section 33 it is obvious that such a repeal does not affect the previous operation of the repealed enactment and anything duly done or suffered under it. and any investigation, legal proceeding or remedy may be instituted, continued or enforced in respect of rights, liabilities, penalties under the repealed Act, as if the repealing Act had not been passed. Another principle which must be borne in. mind is that the appellate Court has to give effect to the same law as though it was in force on the date of the institution of the proceedings and in this case it is the 1954 Act which will have to be given effect to. In general, 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. Now it is a fundamental rule of an interpretation of statutes that no statute shall be construed to have a retrospective operation unless such, a construction appears very clearly in the terms of the Act or arises by necessary and distinct implication and no rule or construction is more firmly established than this that a retrospective operation is not to be given to a statute so as to impair the existing right or obligation otherwise than as regards matter of procedure unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is express in language no question of any retrospective effect arises. But if it is fairly capable of either interpretation, it ought to be construed as prospective only and particularly when the enactment prejudicially affects vested rights, or the legality of the past transaction, or impair contracts, the question of retrospective effect will have to be looked into carefully. Every statute, it has been said, which takes away or impairs vested rights acquired under the existing laws, or creates a new obligation or imposes a new duty, or attaches a new disability in respect of transactions or considerations already past must be presumed out of respect to the Legislature, to be intended not to have a retrospective operation.

9. From the foregoing it becomes clear that in order to find out whether Section 10 (4) which although is mandatory has been given by the Legislature a retrospective effect. What has to be seen is whether the intention of the Legislature that it should be so construed is expressed in plain and unambiguous language any where in the Act. The words 'no order for eviction shall be passed under Sub-section (3)' appearing in Section 10 (4) do not in our judgment necessarily direct towards its retrospective effect. This provision of the 1960 Act has to be read with Section 33 of the same Act. When Section 33 clearly lays down that all actions commenced under the repealed Act shall be continued under the repealed Act and specifically mentions as if the new Act had not been passed, the clear indication is that the Legislature wanted all past rights or liabilities to be given effect to under the old Act. It is pertinent to note that Section 25 of the 1954 Act which provides for the appeal against the order of the Rent Controller merely states that the appellate authority shall decide the appeal. Similarly Section 20 of the 1960 Act uses the same phraseology in Sub-section (3). If these provisions are read together it becomes clear that the appellate authority is expected to see whether the order passed by the Rent Controller is in accordance with the law as it existed at the time of the institution of the proceedings. Section 10 (4) does not indicate in any manner that its provisions are made applicable to the pending cases, and unless such an intention is clearly expressed, it will not be correct in view of the principles of interpretation of statutes to give retrospective effect to Section 10 (4) particularly when Section 33 of the 1960 Act directs that all pending sections shall be disposed of in accordance with the 1954 Act and as if the 1980 Act had not been passed. When the whole of the 1960 Act is made inapplicable to the pending cases, it is futile to contend that Section 10 (4) alone should be picked up to say that it applies and has retrospective effect. When Section 10 (4) itself by operation of Section 33 becomes inapplicable, it fallows that any Notification issued under Section 10(4) of the 1960 Act is equally inapplicable. The argument therefore that inasmuch as the 1954 Act also had a similar provision in the form of Section 15 (4) the said Notification should be construed to have been issued under the 1954 Act also, cannot be accepted as sound. When the 1960 Act is not applicable to the pending cases including Section 10 (4), the Notification issued under that Section automatically becomes inapplicable. The Notification does not mention that the Notification in also issued under Section 15 (4) of the 1954 Act. In the absence of any such notification under the repealed Act, the pending cases will have to he disposed of in accordance with the law as it stood on the date when the proceedings had started.

10. it is then contended by Mr. Jayachandra Reddy that the right accrued or acquired within the meaning of Section 33 of the 1960 Act, cannot be availed of by the landlady. His contention is that the landlady will he deemed to have acquired the right only when a final order of eviction is passed. In support of this contention he relied upon a decision of the Supreme Court in Jiva Bhai v. Chhagan, : [1962]1SCR568 . It is no doubt true that it is decided there that '..... the notice under Section 34 (1) is merely a declaration to the tenant of the landlord's intention to terminate the tenancy and no further proceedings may be taken by the landlord in consequence thereof. It is only when the period of notice has expired and the tenancy has terminated that the landlord acquires a vested right to obtain possession of the land Therefore the Amending Act does not affect any vested right of the landlord's till the tenancy actually stood terminated after the expiry of the notice. Consequently, the provisions of the Amending Act which came into force before the tenancy stood terminated by the notice will have to be taken into consideration for determining the right of the landlord in the matter of the termination of the tenancy, for the Amending Act put certain letters on this right of termination. In the circumstances we are of opinion that the view taken by the High Court is correct and Sub-section (2-A) would apply to all cases where notices might have been given, but where the tenancy had not actually terminated by the coming into force of the Amending Act.' This case cannot be called in aid by the tenant in the present case obviously because here there is no question of issuance of any notice to terminate the tenancy. The landlady acquired the right the moment the tenant defaulted the payment of rent or the landlady required the premises for her own occupation. Moreover this right which the landlady had acquired under the 1954 Act was given effect to by a remedy under the said Act. Not only that, but the Rent Controller had already passed an order before the new Act came into force. The appellate authority therefore is constrained under the provisions of the new Act to confine itself to the provisions of the old Act and see whether the landlady could be given any relief under the said Act. The meaning of 'a right accrued' is illustrated by Hamilton Gell v. White, 1922-2 K B 422 where it was field that a tenant had acquired a light to compensation under Section 11 of the Agricultural Holdings Act, 190S, as soon as he received notice to quit though he took no proceedings till after the Act was repealed. Atkin, L. J., there said :--

' It is obvious that that provision was not intended to preserve the abstract rights conferred by the repealed Act, such for instance as the right of compensation for disturbance conferred upon tenants generally under the Act of 1908, for if it were the repealing Act would be altogether inoperative. It only applies to the specific rights given to an individual upon the happening of one or other of the events specified in the statute. Here the necessary event has happened, because the landlord has, in view of a sale of the property, given the tenant notice to quit. Under those circumstances the tenant has 'acquired a right', which would 'accrue' when he has quitted his holding, to receive compensation.'

The landlady became entitled to recover possession when the tenant failed to pay rent or she required the house for her own occupation, and this right is not taken away by any provision of the 1960 Act. The Court therefore was bound in law to pass the decree when the requirements of Section 15 of the 1954 Act were satisfied. The case of In re, A. Debtor, 1938 1 Ch 237 is to the same effect. For the reasons which we have endeavoured to give, in our judgment, the argument that the appellate Court ought to have dismissed the petition for eviction because no order of eviction can be passed against a person belonging to the essential services cannot be sustained, as the new Act is not applicable and no Notification is issued under the old Act to the effect that the tenant who is a Government Servant belongs to essential services for the purpose of Section 15 (4) of the said Act. As no other submission was made, consequently the revision petition must fail and is hereby dismissed with costs. Mr. Jayachandra Reddy however requests for some reasonable time to vacate the premises. In view of the paucity of houses in the city of Hyderabad we consider it reasonable to give sufficient time to the tenant to vacate the premises on or before 30th April 1983, failing which the landlady will be entitled to execute the decree for eviction.


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