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Allahabad theatres (Pvt.) Ltd. and ors. Vs. Smt. Kusum Kumari - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberFirst Appeal Nos. 372 of 1968 and 102 of 1970
Judge
Reported inAIR1974All73
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17; Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 - Sections 2(1), 43(1) and 43(2); Uttar Pradesh (Temporary) Control of Rent and Eviction Act, 1947 - Sections 2, 3 and 3(1); Uttar Pradesh General Clauses Act, 1904 - Sections 6
AppellantAllahabad theatres (Pvt.) Ltd. and ors.
RespondentSmt. Kusum Kumari
Appellant AdvocateBashir Ahmad, Adv.
Respondent AdvocateGyan Prakash, Adv.
Excerpt:
(i) civil - amendment of pleadings - order 6 rule 17 of civil procedure code, 1908 - suits to be tried on original cause of action - rule applies also to appeals - exception to rule - pleading allowed to be amended on account of changed law. (ii) comparison of old act and new act - sections 2 (a) and 3 of u. p. ( temporary ) control of rent and eviction act, 1947 and sections 43 (2) (c ) and 2 (1) (d) of u. p. urban buildings ( regulation of letting, rent and eviction ) act, 1972 - building for industrial purposes excluded from definition of 'accommodation' in old act when actually used - excluded in new act even when intended to be so used - new act incompatible with old act - provision of new act not to be applied. - cantonments act[c.a. no. 41/2006]. section.....k.c. agarwal, j. 1. suit no. 38 of 1966, giving rise to the above appeal, was filed by the appellant m/s. allahabad theatres private ltd., against the respondent smt. kusum kumari for eviction from the property known as jawahar palace. no, 29(old)/ 98 (new) jawahar square allahabad, now run under the name of naaz cinema, along with all its fittings, electric and otherwise, furniture, operating instruments, fixtures and other appurtenant articles and accessories, including the building, seats, machinery and fans etc. a decree for arrears of rent, damages insurance money and bhumi bhavan kar, amounting to rs. 13,496.91 was also claimed. 2. the said suit was filed on the allegations that the appellant was a private limited company and had been floated with the object of carrying on the.....
Judgment:

K.C. Agarwal, J.

1. Suit No. 38 of 1966, giving rise to the above appeal, was filed by the appellant M/s. Allahabad Theatres Private Ltd., against the respondent Smt. Kusum Kumari for eviction from the property known as Jawahar Palace. No, 29(Old)/ 98 (new) Jawahar Square Allahabad, now run under the name of Naaz Cinema, along with all its fittings, electric and otherwise, furniture, operating instruments, fixtures and other appurtenant articles and accessories, including the building, seats, machinery and fans etc. A decree for arrears of rent, damages insurance money and Bhumi Bhavan Kar, amounting to Rs. 13,496.91 was also claimed.

2. The said suit was filed on the allegations that the appellant was a private limited company and had been floated with the object of carrying on the cinema business by acquiring lands and buildings for that purpose. The said Company constructed the premises No. 29(old)/98 (new) in Jawahar Square, Allahabad. The entire building was filled with projectors, screen, electric fittings, balcony, furniture, etc. The said accommodation was constructed for the purpose of cinema business and no other. The entire premises became ready in 1934 and the said company carried on the business of exhibiting films for some time, and thereafter they had been running the same business through others. It was further alleged in this connection that the entire cinema business, aim' with the building, cinema accessories, and articles appertaining there of including fittings, electric and otherwise, seats, machinery, furniture, etc., was leased out for two years by the appellant to the respondent on a fixed and unalterable rent of Rs. 1,000/- p.m. The period of two years was to expire on 30th November, 1962. The respondent had been carrying on the business under the name and style of Naaz Cinema and paying rent at the rate of Rs. 1000/- p.m. on the basis of the aforesaid lease deed. The respondent did not vacate the premises on the expiry of the said period of two years and continued to run the business. The appellant subsequently by a notice dated 4th September, 1964 called upon the respondent to pay the arrears due from 1st January 1963 to 31st August, 1964. The said notice had also purported to terminate the tenancy of the respondent. The appellant, thereafter, sent another notice, which was served on the respondent on 22nd September 1965, but the respondent neither remitted the entire rent which was due to the appellant nor did she vacate the premises and hand over the same to the appellant. Accordingly the appellant filed the aforesaid suit for the reliefs mentioned above.

It may be mentioned here that the appellant in the aforesaid suit also set up a plea, that since the cinema house along with the running business had been let out to the respondent, therefore the provisions of the U. P. (Temporary) Control of Rent and Eviction Act did not apply to the premises in question, hence, the appellant was entitled to the decree for eviction without proving compliance with the 'provisions of the aforesaid Act. In the alternative it was, however, also pleaded by the appellant that even if it was found that the aforesaid Act applied to the premises in question, the respondent had committed default in making payment of rent in spite of the service of notice of demand under section 3(1)(a) of the said Act, and therefore she was liable to be evicted on that ground.

3. The suit was contested by the respondent, and the liability to eviction was denied. It was alleged by her that what was let out to her was the cinema building, which was 'accommodation' within the meaning of that word defined in the U. P. (Temporary) Control of Rent and Eviction Act, and, as such, she could not be dispossessed without complying with the provisions of the said Act. In reply to the allegation relating to default committed by her in making payment of rent, it was asserted that she had paid the entire rent and that she could not thus be found to be a defaulter, and therefore a decree for possession on the basis of Section 3 (1) (a) could not be granted to the appellant. The respondent also pleaded that she had obtained an order of allotment in her favour allotting the premises in question under the provisions of the U. P. (Temporary) Control of Rent and Eviction Act. Accordingly, it was alleged that so long as the allotment order subsisted she could not be dispossessed.

4. On the aforesaid pleadings of the parties a number of issues arose for decision in the Court below. One of the main issues was relating to the applicability of the provisions of the U. P. (Temporary) Control of Rent and Eviction Act to the premises or property from which eviction was being sought by the respondent. The Court below took the view that what was let out to the respondent by the appellant was not the running cinema business but the cinema building, which was accommodation within the meaning of the aforesaid Act, hence the provisions of the same applied. The Court below, further found that as the respondent had not committed any default in making payment of rent as required by Section 3 of the Act she was not liable to eviction on that basis. The allotment order set up by the respondent was found to be valid. On these findings the Court below dismissed the suit of the appellant for eviction and arrears of rent. A decree for the amount of Rs. 400.75 as insurance charges, and Rs. 900.60 as Bhumi Bhavan Kar was, however, granted in its favour against the respondent. Aggrieved against the decision of the Court below the present appeal has been filed.

5. Sri Bashir Ahmad, learned counsel appearing for the appellant, argued that the provisions of the U. P. (Temporary) Control of Rent and Eviction Act did not apply to a cinema building and, therefore, the Court below erred in dismissing the suit of the plaintiff by applying the provisions of the said Act to it. In the alternative, it was argued that if in the case of a cinema it w;is essential to establish that what was let out was not the building but the running cinema business, even then from the evidence in the present case it was established that the appellant had not only let out the cinema building but the running cinema business as well, and accordingly the Court below should not have applied the provisions of the U. P. (Temporary) Control of Rent and Eviction Act to the present premises and should have granted the decree of dispossession to the appellant. The other findings of the Court below were also challenged by Sri Bashir Ahmed.

6. The learned Advocate General, appearing for the respondent, submitted in reply that all buildings, residential or non-residential, are covered by the definition of the word 'accommodation' in the U. P. (Temporary) Control of Rent and Eviction Act and as the cinema house which was let out in the present case was accommodation within the meaning of the aforesaid Act the appellant could not get the decree for eviction without complying with requirements of Section 3 of that Act. The learned Advocate General further relied on Dwarka Das Saraf v. Dwarka Prasad, 1972 A LJ 662 and urged on its basis that in order to oust the provisions of the U. P. (Temporary) Control of Kent and Eviction Act in relation to a cinema house it was necessary to establish by the appellant that the running business in the cinema house was also leased out or given to the respondent at the time of the execution of the lease, and since in the present case the appellant had not leased any running business to the respondent the Court below was right in deciding the said issue in favour of the respondent. He further urged that none of the grounds enabling the appellant to file a suit for eviction, as required by Section 3 of the aforesaid Act, had been made out.

7. During the course of the arguments Sri Bashir Ahmed pointed out to us that a cinema building has been completely exempted from the operation of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the new Act), hence after the repeal of the U. P. (Temporary) Control of Rent and Eviction Act (hereinafter referred to as the old Act) by the new Act, the appellant became entitled to a decree for dispossession against the respondent, and the High Court being the appellate Court should, after considering the evidence already on the record, pass a decree in his favour. The learned Advocate General, appearing for the respondent, conceded that he was not in a position to dispute the proposition that an appellate Court could take into account the change of law and decide an appeal in accordance with the same. However, he submitted that in view of the saving clause contained in Section 43 (2) (s) of the new Act all the rights of the parties in the present appeal have to be decided on the assumption as if that Act had not come into force at all. The other argument made in the alternative in this connection was that Section 6 of the U.P. General pauses Act also applied, and merefore, the rights and privileges which had been acquired by him under the old Act would not be taken away by applying the provisions of the new Act, It was, however, admitted by him that in case this Court were to take the view that the new Act applied to the present case and the rights of the parties could be decided on that basis it was needless to go into the question of the rights of the parties under the old Act.

8. The general principle of law is that a suit must be tried on the original cause of action. This principle does not wholly govern suits but also appeals. There are, however, certain exceptions to this general rule, as sometimes the original relief claimed becomes inappropriate or the law changes, affecting the rights of the parties. In such cases Courts may allow amendment of pleadings and permit the parties to fight out their rights on the basis of these changes. Thus if we ultimately find that we are unable to uphold the contention of the learned Advocate General it may be proper for us to permit the amendment of the plaint and to direct the parties to get their rights adjudicated upon in accordance with the changed law. We, therefore, would like to decide the question of the applicability of the new Act first before taking up the question as to whether the suit was in respect of premises to which the provisions of the old Act applied or not.

9. The learned Advocate General relied upon Section 43 (2) (s) of the new Act and argued that as the present case was also filed by the appellant on one of the grounds mentioned in Sub-section (1) of Section 3 of the old Act the appeal has to be continued and concluded as if the new Act had not been passed. He emphasised that in the plaint the appellant himself had asserted that the respondent had committed default in cot making payment of rent within the period of one month of the service of notice of demand and as this was a ground covered by Sub-section (1) of Section 3 of the old Act the suit has got to be considered as one filed under the provisions of that Act. Sri Bashir Ahmad, for the appellant, urged that the suit, which was filed by him, was one to which the provisions of the old Act did not apply, and it was only in the alternative that the appellant had taken up the plea that in case the Court found that the provisions of the old Act applied, in that event as the respondent had committed default and had not made payment of rent within the period of one month from the date of service of the notice of demand, the ground under Section 3 (1) (a) of the old Act should be deemed to have been made out and on that basis the appellant should be given the decree for dispossession. He urged further that the plaint in the instant case was a composite plaint and, therefore, it could not be said that the snit for eviction of the respondent was instituted on any ground mentioned in Sub-section (1) of Section 3 of the old Act.

10. The provisions of the Urban Buildings (Regulation of Letting, Rent and Eviction) Act which has now been enforced are materially different on many aspects from that of the old Act. In the new Act the rights given and remedies provided are much different than those which were the subject-matter of the old Act. In the old Act the word 'accommodation' was defined and only those constructions which fell within the four corners of that definition could be the subject-matter of the provisions of that Act. In the old Act the word 'accommodation' was defined as follows :--

'Section 2 (a)-- Accommodation -- 'Accommodation means residential and non-residential accommodation in any building or part of a building and includes:--

(i) gardens, grounds and out-houses, if any, appurtenant to such building or part of a building;

(ii) any furniture supplied by the landlord for use in such building or part of a building;

(iii) any fitting affixed to such building or part of a building for the more beneficial enjoyment thereof, ut does not include any accommodation used as a factory or for an industrial purpose where the business carried on in or upon the building is also leased out to the lessee by the same transaction.' We, however, find that in the new Act the scheme is quite different from that in the previous Act. Section 2 of the new Act provides for exemptions from the operation of this Act. So far as a cinema House is concerned the Sub-section (1), Clause (d) of this section says :--

'Nothing in this Act shall apply to...... any building used or intended to be used for any other industrial purpose (that is to say, for the purposes of manufacture, preservation or processing of any goods) or as a cinema or theatre, where the plant and apparatus installed for such purpose in the building is leased out along with the building.'

11. Thus it appears that now under the new Act in respect of any building which is being used as a cinema house where plant and apparatus is installed and the same has been leased out along with the building, the intention is to exempt the same from the operation of the Act. Under the old Act, according to the view of this Court in 1972 A LJ 662, it was only when a cinema house along with the running business were let out that the same could be considered as premises to which the provisions of the old Act did not apply. Under the old Act a building actually used for industrial purposes was excluded from the definition of the word 'accommodation', provided the business carried on was also leased to the lessee by the same transaction, whereas under the new Act a building is exempt from the operation of that Act not only when it is used for industrial purposes but also when it is intended to be used for such purposes. There is thus a material difference so far as the application of the two Acts is concerned, with regard to the cinema business. Apart from this, the new Act, as stated above, provides for different contingencies, different forums, different remedies, different liabilities, different consequences, different subject-matter than those provided in the old Act. Some of the old rights have been destroyed and new have been created. It is in this light we have to consider the effect of the saving clause contained in Section 43 (2) (s) of the new Act. It is not only with regard to a cinema that the difference pointed out by us above is to be found. There are some other exemptions contained in Section 2 of he new Act which were previously the subject-matter of the old Act. The result of this exemption would be that in all those cases where the provisions of the old Act do not apply the landlord would not be required to fulfil the requirements of the provisions of that Act as he can bring a suit for dispossession on the strength of right in the civil Court directly. It does not, therefore, appear reasonable to hold that although a cinema house which may otherwise be one to which the provisions of the new Act do not apply may still be, for the purposes of applying Section 43 (2) (s), considered as a building in respect of which the suit may be continued under the old Act, although the rights of the parties qua the same are not to be decided on the basis of the provisions of that Act. It will further be seen that while the application of the provisions of Section 43 (2) (s) to cases where suits in the original Court, or in appeal, are pending on the date of the enforcement of the new Act, may result in asking the plaintiffs to continue those proceedings in accordance with the old Act, a landlord who may not have instituted a suit before the enforcement of the new Act may do so now without fulfilling either the requirements of the old Act or the new Act, as contained in Section 3 and Section 20 of the respective Acts. It, therefore, appears to us that the saving clause contained in Section 43 (2) (s) is meant only for a limited purpose, the purpose being that in case a suit on one of the grounds mentioned in Section 3 (1) of the old Act is pending either in the original Court or in appeal, the same would be permitted to continue as if the new Act has not been enforced. The purpose or intention of providing such a saving clause with regard to these suits is not far to seek. The provisions of the new Act contained in Section 20 provide various grounds for eviction of a tenant. A comparison of clauses (a) to (g) of Section 3 (1) of the old Act with Clauses (a) to (g) of Section 20 (2) of the new Act would show some distinguishing features, but in all material particulars they would be found to be the same. Hence as no useful purpose was going to be served by making the suits already filed on one of the grounds mentioned in Section 3 (2) of the old Act as infructuous the legislature by Section 43 (2) (s) provided that those suits would continue as if the new Act had not come into force. It may be said that the suits filed before the enforcement of the present Act would have been tried otherwise also under the old Act even without the saving clause, hence what was the utility of providing for it? It appears that the legislature did not want to leave any scope for argument and with that end in view made this saving provision. Apart from this, there are various other savings which have been provided for in Section 43 (2) of the new Act. These savings, contained in other provisions of the aforesaid section, appear to us to have been made applicable only to those buildings or premises which are governed by the provisions of the new Act, and not otherwise. As observed in Halsbury's Laws of England, Third Edition, Volume 36, at page 401:--

'The saving clause preserves something which would be otherwise included in the words of the enacting part.'

As noted above, there could be no purpose to provide for the saving of those suits which were filed in respect of buildings now exempted from the operation of the new Act, and to issue a mandate that they would be decided on the basis of the provisions of the old Act. It may further be noted in this connection that the new Act does not preserve any right in respect of buildings exempted now. It would not, therefore, be logical to hold that the saving clause of the new Act applied even to those buildings to which the provisions of the new Act may not be applicable. We, therefore, do not accept the contention of the learned Advocate General that Sub-section 2 (s) of Section 43 in any way compels that the proceedings of the suit having been commenced on one of the grounds mentioned in Section 3 (1) of the old Act must be continued and decided on that basis. It may, however, be pointed out that we arc also impressed by the argument of Sri Bashir Ahmed that the present was not a case solely on the ground mentioned in Section 3 (1) (a) of the old Act. It was a suit where the plaint was composite both on the ground mentioned in Section 3 (1) (a) and independent of it. We cannot, therefore, hold that the present was a suit solely based on the aforesaid ground, more so when we find that by means of an amendment application made in this Court the appellant had withdrawn the plea relating to Section 3 (1) (a) of the old Act which was initially taken in the suit. The effect of the withdrawal would be as if the suit on this ground was never filed.

12. The other argument made by the learned Advocate General in this connection was that even if Section 43 (2) (s) did not apply he was entitled to the adjudication of the rights of his client on the basis of the law as it stood before the new Act. In this connection he invited our attention to Section 6 of the U. P. Genera! Clauses Act and pointed out that his case would not only be covered by one clause of this section but various clauses, such as Clauses (b), (c) and fe). According to his submission thus made on the strength of Section 6, General Clauses Act a legal proceeding which had been instituted under the old Act should be continued on the assumption as if the new Act had not been enforced qua the subject matter of the old Act. The learned Advocate General relied on several authorities in support of this proposition. Before we discuss the various authorities cited by him it appears appropriate to mention that the old Act was a temporary Act which was enforced for a limited period initially. The legislature however, continued the old Act by passing amending Acts from time to time. The last of such amending Acts was U. P. Act No. 27 of 71. As a result of this Amending Act the period of the application of the old Act was to expire on 30th September 1973. Before the period of the old Act could expire the legislature passed the new Act and the State Government by a notification appointed 15th July 1972 as the date of its enforcement. By Sub-section (1) of Section 43 of the new Act the old Act was repealed. The question that now falls for our determination is as to what is the effect of the repeal of the temporary Act. Craies in his book 'Statute Law' Sixth Edition, at pace 408 has dealt with this topic and has remarked:--

'As a general rule, and unless it contains some special provision to the contrary, after a temporary Act has expired, no proceedings can be taken upon it and it ceases to have any further effect.'

13. It, therefore, appears that if the life of the temporary Act expires, consequences of the same also get extinguished with the date of its expiry. In S. Krishnan V. State of Madras : [1951]2SCR621 Patanjali Sastri, J. observed;--

'The general rule in regard to a temporary statute is that in the absence of a special provision to the contrary, proceedings which are being taken against a person under it will ipso facto terminate as soon as the statute expires.'

14. The same is the view taken by the Supreme Court in State of Uttar Pradesh v. Jagmander Das : AIR1954SC683 , where Mahajan C. J. dealing with a similar controversy about the repeal of a temporary statute, observed:--

'When a statute is repealed or comes to an automatic end by efflux of time, no prosecution for acts done during the continuance of the repealed or expired Act can be commenced after the date of its repeal or expiry because that would amount to the enforcement of a repealed or a dead Act. In cases of repeal of statutes this rule stands modified by Section 6 of the General Clauses Act. An expiring Act is, however, not governed by the rule enunciated in that section.'

Gajendragadkar, J. speaking for the Court in Gopi Chand v. Delhi Administration : 1959CriLJ782 , observed in paragraph 14 of the judgment;--

'It is argued that, in dealing with this point, it would not be permissible to invoke the provisions of Section 6 of the General Clauses Act because the said section deals with the effect of repeal of permanent statutes, This argument is well founded......'

14-A. It, therefore, appears that it admits of no doubt in the case of a temporary statute the provisions of Section 6 of the General Clauses Act are not applicable as this section does not deal with the repeal of temporary statutes, and deals only with permanent statutes. It is in the light of these observations of the Supreme Court that we have to consider the various authorities which have been cited by the learned Advocate General. It may be noticed at the very beginning that none of the authorities cited by the learned Advocate General deals with the contingency with which we are faced in the present case.

15. The main authority on which great reliance was placed by the learned Advocate General is reported in State of Punjab v. Mohar Singh AIR 1955 SC 84. The facts of this case briefly are that in March 1948 an Ordinance under Section 88 of the Government of India Act, 1935 was promulgated. This Ordinance made provision for registration of land claims of refugees. Section 7 of the said Ordinance provided that in case any person were to submit incorrect or false claim he would be liable to punishment. This Ordinance was a temporary enactment and was repealed by an Act of the legislature passed in the year 1948. The new Act which was passed continued all the provisions of the Ordinance. In March, 1948 at a time when the Ordinance was still in force, one Mohar Singh filed a chum which was, on subsequent investigation, found to be false. In May, 1950 prosecution was launched against him for having filed a false claim. One of the questions which arose for decision before the Supreme Court was, whether the offence having been committed during the period of the Ordinance, could the proceedings launched after the repeal of the Ordinance be continued and Mohar Singh be punished? The Supreme Court applied Section 6 of the General Clauses Act and found that Mohar Singh having committed breach of a section of the Ordinance, which was subsequently continued by the Act, was liable to be convicted. It was in the background of these facts that the Supreme Court affirmed the conviction under the Act made in a proceeding instituted for breach of the Ordinance after its repeal, but commenced under the Act itself. The law laid down by the Supreme Court in this case was thus in a different context, as in our case we are dealing With a statute which was admittedly temporary and the operation of the same expired on 30th September 1973.

16. Chandra Singh Manibhai v. Surajit Lal : [1951]2SCR221 , is the other case which was relied on. This again is a case Where the Supreme Court was considering the provisions of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 and its retrospective operation. In considering the provisions of this Act the Supreme Court held that the same had no implication to appeals pending at the time when that Act came into force. It was further observed:--

'In terms, the provisions of the new Act and the rules made thereunder are made to apply only to such suits and proceedings which are transferred under the provisions of Section 50, and its retrospective effect is confined to what is expressly stated in Section 50.' We, therefore, find that on the basis of the interpretation of the provisions of that Act their Lordships held that the said Act could not be given retrospective operation. We do not thus find that the learned Advocate General can derive any support from this case.

17. The third case relied upon is reported in State of Kerala v. N. Sami Iyer : 1966CriLJ63 . The emphasis laid by the learned Advocate General in this case was on the observations of the Supreme Court made in AIR 1955 SC 84 (supra), which have been approved in this case as well. On this basis it was argued that the line of enquiry would be not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests any intention to destroy them. According to his submission as old rights had not been destroyed the provisions of the new Act did not apply. We are unable to agree with the submission of the learned Advocate General that the old rights, as urged by him, have not been destroyed. We have already pointed out in the earlier portion of our judgment that in relation to certain buildings which are now exempted from the operation of the new Act the legislature has not conferred any rights to the tenants. It obviously follows from this that in respect of those buildings which were the subject-matter of the previous Act certain rights for protection from eviction had been provided for in the same, but now after the new Act has been enacted the legislature only has conferred rights on the tenants of those buildings alone to which the provisions of the new Act apply, and to no other. It, therefore, appears to us that the rights of tenants of buildings to which the provisions of the new Act do not apply have definitely been destroyed.

18. Balish v. Rangachari : [1969]72ITR787(SC) and Jindas Oil Mills v. Godhra Electricity Co. Ltd. : [1969]3SCR836 , are the two other authorities on which reliance has been placed by the learned Advocate General for the submission that when an existing statute or Regulation is repealed and the same is replaced by a fresh statute or Regulation unless the new Statute or Regulation specifically or by necessary implication affects right created under the old law, those rights must be held to continue in force even after the new Statute or Regulation comes into force. For the observations made earlier, we do not think that the said law applies to the facts of the present case on account of the reason that, firstly, we are dealing with the provisions of a temporary Act to which Section 6 of the U. P. General Clauses Act does not apply; and secondly, we definitely find that the rights of tenants in respect of certain buildings have been destroyed and not maintained.

19. The other two authorities cited by the learned Advocate General are reported in S.B. Jain I. T. O. v. Mahendra : [1972]83ITR104(SC) and R. B. Seth Gujar Mal Modi v. C. I. T. : [1972]84ITR261(SC) . In these cases the Supreme Court considered the provisions of Section 297(2)(d)(ii) of the Income Tax Act, 1961, and on the interpretation of the same held that what Section 297(2)(d)(ii) requires was the actual pendency of a proceeding under Section 34 of the repealed Act. The question whether that proceeding was barred by limitation or not was irrelevant. In view of this opinion, the Supreme Court held in these two cases that since the proceedings under Section 34 (1) (a) of the Act of 1922 were pending at the time of the commencement of the Income Tax Act, 1961, the Income-tax Officer was not competent to issue fresh notices under Section 148 of the new Income-tax Act. The learned Advocate General had laid emphasis on the factual pendency of a proceeding and had argued on that basis that since actual proceedings of the suit under the old Act were pending on the date of the commencement of the new Act the rights of the parties under the lease should be determined on that basis. The Supreme Court while dealing with the provisions of the Acts mentioned above had laid down the law of factual pendency in relation to the provisions of those Acts. We do not think that the learned Advocate General can get any support from the aforesaid two cases.

20. It was then urged that as the old Act was repealed instead of being allowed to expire, the old Act continued to remain alive for the purposes of the proceedings taken under it. On this basis it was attempted to argue that the provisions of Section 6 of the General Clauses Act would still be applicable. We, however, do not find any force in this argument. Section 6 of the U. P. General Clauses Act cannot have the effect of extending the life of the temporary Act beyond the period stated in the temporary Act itself. As a result, therefore, Section 6 of the U. P. General Clauses Act would be effective only up to the original date of its expiry. Hence the only result will be that up to the original date of its expiry rights and liabilities accrued and incurred under the temporary Act before ;the repeal would be continued to be enforced and proceedings in regard to them would be permitted to be taken in spite of the re-peal. It is only to this limited extent that Section 6 of the U. P. General Clauses Act would be applicable. Taking a view other than the one stated above would result in extending the life of the temporary Act which is not within the Dower of any Court.

21. Dealing with a similar controversy the Calcutta High Court in Tarak Chandra Mukherjee v. Ratan Lal Ghosal : AIR1957Cal257 , has taken the same view, with which we express our respectful agreement. The relevant facts for the appreciation of the law laid down in this case are that the West Bengal Legislature passed the W. B. Premises Rent Control (Temporary Provisions) Act, 1950. This Act as originally enacted was intended to remain in force till the 31st March, 1953. By subsequent enactment its life was extended up to 31st March, 1956. Normally it would have expired on that date, but on that very date, the last day of its existence, it was repealed by the W. B. Premises Tenancy Act (12 of 1956). That Act and the President's assent to it were first published in the Calcutta Gazette of the 30th March, 1956 but it did not come into force on that date since it itself stated in Section 1 (2) that it would come into force on such date as the State Government might, by notification, appoint. Such a notification dated 30th March, 1956 was published in the official gazette on the 31st March, 1956. It was in this notification that it was stated that 31st March, 1956 was the date on which the Act would come into force. By virtue of that notification and Section 6 (2) of the Bengal General Clauses Act, the Act of 1956 came into force immediately on the expiration of 30th March 1956, and it was on that date that the Act of 1950 was actually repealed. Thus immediately after the midnight of 30 March, 1956 the life of the Act of 1950 was brought to an end. The question which arose in these circumstances before the Calcutta Court was as to whether after the temporary Act of 1950 was repealed instead of being allowed to expire, did it continue to remain alive for the purposes of proceedings pending at the time of the repeal? The Calcutta Court, dealing with this controversy, laid down the law in the following words :--

'From the above it must be clear that-where the repealed Act is a permanent Act, the effect of Section 8 of the Bengal General Clauses Act is to restore it for the purposes specified, as such Act, unless the repealing Act shows a contrary intention; and upon such restoration of the Act the rights and, liabilities accrue and incurred under it before the appeal, can be enforced and proceedings in regard to them can be commenced or continued to completion at or up to any time unless forbidden by the law of limitation or otherwise, the restored Act being a permanent one. But where the repealed Act is a temporary Act, it is restored only as an Act due to expire on the date originally specified. There can be no other effect of deeming the repealing Act as not passed. Upto the original date of its expiry, rights and liabilities accrued and incurred under the Act before its repeal can be enforced and proceedings in regard to them under the Act can be instituted or continued by virtue of Section 8, because by virtue of that section, the Act will remain in force up to that date for the purposes of such rights, liabilities and proceedings. But once that date has passed. Section 8 will have spent itself. The temporary Act will then have expired under its own terms and the position in regard to rights and liabilities accrued and incurred under it before its repeal and in regard to proceedings under the Act respecting them, whether pending or intended, will then be as in the case of an expired temporary statute. Whether or not such rights and liabilities can still be claimed and enforced and whether proceedings under the Act in regard to them can still be instituted or continued, will depend on the general incidents of temporary statutes and the construction of the particular Act.'

'......The only effect of the repeal was that the Act was maintained in life by Section 8 of the General Clauses Act for the purposes mentioned in the section, up to the (late originally fixed for its expiry, that is to say, for the 24 hours of the 31st March, 1956, but no new rights or liabilities could accrue or be incurred during those 24 hours. Since the 1st April, 1956 the question of enforcing rights and liabilities accrued and incurred under the Act before its repeal and of commencing or continuing proceedings in regard to them has gone back to the relam of the principles applicable to temporary statutes Which have expired.'

22. The same view was taken in another Full Bench case Rabindra Nath v. gOUR Mondal reported in this very column of : AIR1957Cal274 . The relevant portion of the judgment which would apply to the facts of the present case is as follows:--

'The effect of the qualifying words 'as if the repealing Act had not been passed' in Section 8 Bengal General Clauses Act, is that only so much can be done by virtue of the section as could have been done under the repealed Act if it had not been repealed. Nothing is added, nor is the operation of the repealed Act enlarged in any way. Only that Act, as it was, is revived and thereafter maintained in life for the purposes mentioned in tie section with all its limitation necessarily attaching to it both as to duration and as to scope. The repeal does not affect it in regard to rights accrued, liabilities incurred or proceedings in respect of such rights and liabilities, but it remains circumscribed by its own limitations and cannot go further than it could have gone if the repeal had not brought it to an end.'

23. We respectfully agree with the view taken by the Calcutta High Court in these two Full Bench cases and applying the same in the present case hold that as the life of the old Act expired on 30th September, 1973, the rights and privileges, if any, acquired under the old, Act could not enure for the benefit of the parties after the said date. It is, however, made clear that according to the view which has been expressed above neither the provisions of Section 6 of the U. P. General Clauses Act nor that of Section 43 (2) (s) are applicable to the present case and it is only in defence to the argument of the Advocate General that we have indicated the view relating to the continuation of the old Act till the date of its expiry, i.e. 30th September, 1973.

24. Sri Bashir Ahmed has referred to the cases reported in : [1955]2SCR1117 , (Indira Sohanlal v. Custodian of Evacuee Property) and : [1967]66ITR680(SC) , (Kalawati Devi v. I. T. Commr.) and has argued on the basis of these cases that even though Section 6 of the General Clauses Act would be applicable in cases of repeal but if the new legislation manifests an intention incompatible with or contrary to the provisions of the section then it will not and the incompatibility would have to be ascertained from a consideration of the relevant provisions of the new Law. In this connection he relied on a passage in : [1955]2SCR1117 , which is quoted below:--

'Thus where ............ the repealing section of a fresh enactment which purports to indicate the effect of the repeal on previous matters provides for the operation of the previous law in part and in negative terms, as also for operation of the new law in the other part and in positive terms, the said provision may well be taken to be self-contained and indicative of the intention to exclude the operation of Section 6, General Clauses Act'

25. Similar are the observations of the Supreme Court in : [1967]66ITR680(SC) , where their Lordships observed:

'It seems to us, however, that by providing for so many matters mentioned above, some in accord with what would have been the result under Section 6 of the General Clauses Act and some contrary to what had been the result under Section 6, Parliament has clearly evidenced an intention to the contrary.'

26. We agree with the contention of Sri Bashir Ahmed, and find that the aforesaid two cases cited by him fully apply to the present case. The legislature in the new Act has provided for all those contingencies, in positive and negative terms in the saving clause contained in Section 43, which it intended to provide for. It is clear that the scheme of the new Act manifests an intention incompatible with or contrary to the provisions of the old Act Further, the saving clause is exhaustive and clearly manifests; an intention to exclude the operation of Section 6 of the General Clauses Act altogether.)

27. A reference may however, be made to Sub-section (4) of Section 1 of the old Act, which runs as follows:--

'(4) It shall cease to have effect on the expiry (September 30, 1973) except as respects things done or omitted to be done before the expiration thereof, and Section 6 of the U. P. General Clauses Act ......... shall apply upon the expiry of the Act as if it had then been repealed by an U. P. Act,'

28. This provision apparently applies Section 6 of the U. P. General Clauses Act upon the expiry of the period of the temporary Act This Sub-section appears to have a limited object as it applies only to a case on expiry of the Act when otherwise not repealed. We now find that after the enforcement of the new Act that by virtue of Section 43 (1) of the said Act the old Act has been repealed altogether. Hence it is not possible to apply the aforesaid provision now for any purpose. It may further be pointed out that this provision was made at a time when the possibility of enacting a new Act was not even envisaged by the legislature. Since now the old Act has been repealed and substituted by the new Act with substantially different provisions and objectives it would be incorrect to hold that Sub-section (4) of Section 1 still applies and saves certain rights mentioned therein. The said sub-section has again the limited object of saving 'things done or omitted to be done' in the case of the expiry of the old Act as mentioned therein. It is thus to be found that the benefits of Section 6 of the U. P. General Clauses Act had to be given only for the limited purpose mentioned therein. It is not that Section 6 of the General Clauses Act was applied for all purposes which are mentioned therein, this is an additional reason that enables us to hold that Sub-section (4) of Section 1 does not apply after the repeal of the old Act.

29. For the reasons mentioned above, we are unable to accept the submission of the learned Advocate General that either because of the saving Clause (s) Sub-section (2) of Section 43 or because of Section 6 of the U. P. General Clauses Act the appeal has to be decided on the basis of the old Act without taking note of the new changes. We, therefore, reject his argument on this aspect of the matter.

30. The next question that needs our consideration is the determination of the rights of the parties on the basis of the changed position. It may be mentioned that Sri Bashir Ahmed made a statement in Court that he was withdrawing all allegations from the plaint which were made by his client initially for eviction of the respondent on the basil of Section 3 (1) of the old Act. He subsequently also moved a duly verified application and withdrew the allegations on the aforesaid controversy by the same. We have, by means of a separate order, allowed the said application. The result of allowing of the said application would be that now the rights of the parties have to be decided independently of the provisions of the old Act. Sri Basir Ahmed pressed that the evidence already on record was sufficient for deciding the controversy which would arise under the changed condition. The learned Advocate General contended--and in our opinion, rightly--that the cause of his client would be seriously prejudiced if be was not given an opportunity to fight out the same on the basis of the provisions of the new Act. But we express no opinion whether the defendant can take the benefit of the new Act. As noted above, the requirements of the new Act are different than those of the old one and it would thus not be in the interest of justice that we take upon ourselves the task of deciding the rights, without giving the opportunity to the respondent which was sought for before us, on the basis of evidence already on the record. As a matter of fact, there is apprehension of injustice not only being done to the respondent but also to the appellant in case the rights are decided on the basis of the old pleadings and the issues, as well as the evidence. We think that in view of the changed position it would be proper to permit the parties to amend their pleadings if deemed necessary and to ask the Court below to frame new issues if arising and to decide the suit after giving opportunity to the parties to adduce evidence on the tame

31. In view of what we have laid above, we are no called upon to determine the controversy relating to the application of Section 3 of the old Act to the facts of the present case

32. We, therefore, allow the appeal set aside the judgment and decree of the Court below and remand the case to it for decision afresh in accordance with law and in the light of the observations made by us in this judgment. Parties to bear their own costs of this appeal, as well as of the suit incurred so far.

33. In order to avoid unnecessary technical difficulties we have set aside the whole decree of the Court although a part of it was in favour of the appellant. Accordingly now the whole of the suit will be tried by the Court below, which we are sure will be decided expeditiously.


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