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inderjeet Singh Vs. the State of U.P. and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberSpecial Appeal No. 181 of 1973 and Writ Petn. No. 4112 of 1973
Judge
Reported inAIR1974All240
ActsUttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 - Sections 20, 21, 23 and 43(2); Uttar Pradesh Civil Laws (Amendment) Act, 1972; Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Rules - Rule 18
Appellantinderjeet Singh
RespondentThe State of U.P. and ors.
Appellant AdvocateV.K. Khanna, ;S.C. Khare, ;Shanti Bhushan and ;A.N. Verma, Advs.
Respondent AdvocateSripat Narain Singh, ;R.D. Gupta, Advs. and ;Standing Counsel
DispositionAppeal dismissed
Excerpt:
civil - applicability - sections 20, clause ( o ), ( r ) and ( rr ) of section 21, 23 , 23 (2 ) of u.p. urban buildings (regulation of letting, rent and eviction) act, 1972 and section 7 f of the repealed act ( 3 of 1947 ) - held, striking difference in the construction of clauses (a) to (g) and that of clauses (i) to (s) of section 43 (2) of the new act - legislature wanted a distinction to be made between the proceedings before the trial court and those pending before the revisional authorities - revisional authority not bound suo motu to consider the provisions of section 21. - - the state government was moved to take into consideration the fact that the landlord had himself stated that his needs would be satisfied with half the shop and, therefore, the state government.....mehrotra, j. 1. this special appeal is directed against the order of a learned single judge of this court dismissing the writ petition filed by petitioner who is the appellant before us. the salient facts of the case are these : the petitioner is a tenant in a shop situated in bazar amroha gate, moradabad. shri ram kumar, respondent no. 4, is the landlord of the shop. the landlord moved an application under section 3 of the u. p. (temporary) control of rent and eviction act, 1947 for permission to evict the petitioner in 1954. a compromise was effected between the landlord and the tenant in the said proceedings whereunder the tenant was to retain half of the shop while the remaining shop was to be given to the landlord. the application for permission was disposed of in terms of the.....
Judgment:

Mehrotra, J.

1. This special appeal is directed against the order of a learned single Judge of this Court dismissing the writ petition filed by petitioner who is the appellant before us. The salient facts of the case are these : The petitioner is a tenant in a shop situated in Bazar Amroha Gate, Moradabad. Shri Ram Kumar, respondent No. 4, is the landlord of the shop. The landlord moved an application under Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act, 1947 for permission to evict the petitioner in 1954. A compromise was effected between the landlord and the tenant in the said proceedings whereunder the tenant was to retain half of the shop while the remaining shop was to be given to the landlord. The application for permission was disposed of in terms of the compromise. It seems, however, that the compromise was not given effect to and the tenant continued to be in occupation of the entire shop and he began to pay the increased rent of Rs. 65/- instead of the originally fixed rent of Rs. 40/- per month. In this connection a rent note was executed between the parties which is Annexure-A to the writ petition. On 9-11-1970 the landlord moved a second application under Section 3 of the U. P. Act No. 3 of 1947 seeking permission to file a suit against the tenant for his eviction. The said application was allowed by the Rent Control and Eviction Officer, Moradabad by his order dated 26-5-1971. A revision was taken out to the Commissioner, Rohilkhand Division, Bareilly and the latter by his order dated 29-4-1972 set aside the order of the Rent Control and Eviction Officer and rejected the landlord's application under Section 3. Against the order of the Commissioner a revision was filed by the landlord before the State Government under Section 7-F of the U. P. Act No. 3 of 1947. The landlord's revision was allowed by the State Government on 15-11-1972 and permission was granted to the landlord to file a suit for the eviction of the tenant from the shop in question. The tenant felt aggrieved with the order passed under Section 7-F and moved the writ petition which has given rise to this special appeal. In the writ petition the tenant attacked the order of the State Government mainly on the ground that his needs had not been properly and adequately considered by the Government and that the alleged consideration by the said authority of the material on the record was a mere show and lacked reality. It was also stated that certain statements in the order passed under Section 7-F were factually incorrect and that certain material on the record was disregarded by the said authority. A counter-affidavit was filed on behalf of the landlord and thereafter the tenant filed his rejoinder-affidavit in the writ proceedings.

2. The learned single Judge dismissed the writ petition, inter alia, on the ground that the State Government had compared the needs of the two parties and its finding that the need, of the landlord was genuine and pressing was based on the evidence and material on record and that the same was a finding of fact. It was also held that there was no error of law in the order of the State Government and, therefore, no interference was called for. In the special appeal Shri Shanti Bhushan, appearing on behalf of the appellant, has raised, in the main, the following contention:--

(1) On 15-11-1972 when the State Government passed the impugned order under Section 7-F of the old Act, the new U. P. Act XIII of 1972 had been placed on the statute book and the old Act (U. P. Act III of 1947) stood repealed. Therefore, the State Government was bound to decide the controversy between the parties in terms of the provisions of the new Act. The State Government, however, decided the dispute without taking into consideration the provisions of the new Act.

Two important changes brought about by the new Act are:--

(i) Under Section 21 of the new Act a part of the accommodation can be released which could not be done under the provisions of the old Act.

(ii) Compensation is required to be awarded to the tenants of the business premises which provision did not exist in the old Act.

Mr. Shanti Bhushan contended that both these considerations have been flouted by the authorities concerned. The State Government was moved to take into consideration the fact that the landlord had himself stated that his needs would be satisfied with half the shop and, therefore, the State Government could release half the shop under Section 21 of the New Act. So far as the question of compensation is concerned Mr. Shanti Bhushan has developed the point in Writ Petition No. 4112 of 1973, and we shall examine the contention while disposing of the said writ petition.

(2) The State Government's impugned order under Section 7-F suffers from incorrect statements and arbitrariness. So far as this contention is concerned Shri Shanti Bhushan reiterated the submissions which were advanced before the learned single Judge.

3. In support of his first contention Shri Shanti Bhusan contended that Section 6 of the General Clauses Act was not attracted in view of the enactment of Sub-section (2) of Section 43 of the new U. P. Act XIII of 1972. The Legislature has expressed a contrary intention by enacting the said sub-section and in this connection reliance was placed on Kalawati Devi v. I. T. Commissioner : [1967]66ITR680(SC) . The counsel took us through various clauses of Section 43 (2) and contended that there was no rational basis for holding that in respect of the original proceedings under Clause (a) of the said sub-section the provisions of the new Act will apply but not in respect of the revisional proceedings under the old Act which remained pending at the commencement of the new Act. Further, it was argued that whenever the Legislature wanted the provisions of the old Act to remain applicable despite the repeal of the said statute, it made an express statement to that effect in the various clauses of Sub-section (2) of Section 43. The absence of such a statement in Clause (m) and Clause (o) went to show that the Legislature did not intend the revisional proceedings to be decided in terms of the old Act. Mr. Shanti Bhushan, in particular, drew our attention to Clause (h) which provides for the amendment of the pleadings by the parties in view of the promulgation of the new Act and submitted that the landlord was bound to amend his application under Section 3 in the light of the provisions of the new Act and since he failed to do so, it was not necessary for the tenant to amend his pleadings. Mr. Shanti Bhushan further contended that irrespective of the position which might have prevailed at the initial stage when the new Act was placed on the statute book, in view of the amendment brought about in Section 20 and in Clause (r) of Section 43 (2) and further in view of the enactment of a new Clause described as Clause (rr), the intention of the Legislature became absolutely clear, that in any case after the said amendment the State Government was bound to dispose of the controversy in terms of the provisions of the new Act. A point was also made that the considerations laid down in Rule 16 of the Rules framed under the new Act were bound to be noticed by the State Government and that it failed to do so.

4. Lastly, Mr. V. K. Khanan appearing along with Mr. Shanti Bhushan, drew our attention to the following cases in support of the contention that the appellate court has to consider the law as it prevails at the time of the hearing of the appeal and not the law as it stood at the trial stage:--

Lachmeshwar Prasad v. Keshwar Lal ; Surinder Kumar v. Gian Chand : [1958]1SCR548 ; Kotturuswami v. Veerawa : AIR1959SC577 ; Ram Swamp v. Munshi : [1963]3SCR858 ; Nair Service Society v. K. C. Alexander : [1968]3SCR163 ; Manhoo Mal v. Mullo : AIR1964All213 ; Ram Nath v. State : AIR1953All59 .

5. The Advocate-General, appearing on behalf of the State concerned himself only with the limited question as to whether the provisions of the new Act or of the old Act would be applicable to the disposal of a petition under Section 7-F of the old Act pending on the date of the promulgation of the new Act. His main contentions are these:

(1) The scheme of the new Act differs in fundamental respects from that of the old Act. The new Act contemplates only one appeal against an order passed under Section 21 whereas under the old Act there were in substance two appeals provided against an order under Section 3 of the old Act granting permission to the landlord to sue the tenant for eviction. A revision to the Commissioner under Section 3 (4) and thereafter another revision to the State Government under Section 7-F were basically appeals even though described as revision vide Shankar v. Krishnaji : [1970]1SCR322 . The powers of the said appellate courts were co-extensive with the powers of the District Magistrate in the matter of granting permission. In the new Act, there is no power analogous to the powers of the State Government under Section 7-F of the old Act. Counsel traced the historical background of Section 3 and Section 7 of the old Act, the amendments effected in the said sections in 1952 and 1954 and in this connection brought to our notice the majority decision in the Full Bench case reported in Ram Kumar v. Baldeo : AIR1965All572 . It was contended that Section 21 of the new Act is fundamentally different from the framework of the old Act inasmuch as while under the old Act a landlord had to obtain a permission for filing a suit and thereafter he had to get a decree from a Civil Court on the basis of the permission and lastly he had to execute such a decree in the execution proceedings, in Section 21 of the new Act a provision is improvised whereby speedy relief is granted to the landlord for ejecting his tenant. In other words, Section 21 is a combination of the permission, suit and execution proceedings. It was submitted that a very clinching argument was required to establish that the second appellate authority under the old Act i.e., the State Government is bound to concern itself with the provisions of Section 21 of the new Act when there is no provision for a second appeal in the new Act and no provision similar to Section 7-F of the old Act.

(2) Clause (h) of Sub-section (2) of Section 43 of the new Act is confined to the amendments of the pleadings at the trial stage. It was pointed out that Clauses (a) to (g) preceding Clause (h) are concerned with the proceedings at the trial stage. Clause (h) is not applicable to the proceedings contemplated under the various clauses which follow Clause (h).

(3) The Advocate-General drew our attention to Clauses (i), (j) and (k) of Sub-section (2) of Section 43 of the new Act and submitted that under the said clauses the orders of the District Magistrate referred to therein acquired finality either before the commencement of the new Act or after the commencement of the new Act after an appeal to the District Judge. Similarly various other clauses under Sub-section (2) of Section 4 enabled the authorities to dispose of the proceedings which happened to be pending at the commencement of the new Act and the orders passed by such authorities became final under the provisions of the new Act. It was contended that while the newly added Clause (rr) deals with the enforceabi-lity of orders of permission (based on grounds mentioned in Section 21) which became final either before or after the commencement of the new Act, Clause (t) deals with the enforceability of other orders referred to in the various clauses of Section 43 (2).

(4) Reliance was placed on Section 6 of the General Clauses Act and attention was involved to the following cases:

Piara Dusadh v. Emperor ; T. S. R. Sarma v. Nagendra Bala Devi : AIR1952Cal879 ; Vasudevan v. Jacob, AIR 1956 Trav Co 236; Ram Singh v. The Crown, AIR 1950 EP 25; Raghuraj Singh v. Sobhaman : AIR1951All485 ; Sonabai v. Board of Revenue : AIR1958MP368 ; State of Punjab v. Mohar Singh AIR 1955 SC 84; I.-T. Commr., Gujarat v. Girdhar Das and Co. : [1967]63ITR300(SC) ; V. Misra v. State Govt. of U. P., 1973 All LJ 450.

(5) Deeming provisions must be given full effect and in this connection the well known passage in East End Dwellings Co. Ltd. v. Finsbury Borough Council, 1952 AC 109 at p. 132 was placed before us where Lord Asquith observed as under: 'If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of these in this case is emancipitation from the 1939 level of rents. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollories of that state of affairs.'

6. The Advocate General in the end placed reliance on a single Judge unreported decision of this Court in Writ Petn. No. 4704 of 1972 (All) Dr. (Capt.) H. E. Variava v. Mrs. Rustomji.

7. Shri Sripat Narain Singh, appearing on behalf of the respondent-landlord, while in general adopting the contentions of the Advocate General, made the following points:

(1) There is a striking difference in the phraselogy which has been used in Clauses (a) to (g) of Sub-section (2) of Section 43 and that which has been used in clauses following the former bunch of clauses.

(2) Even if the State Government was required to take into consideration the provisions of Clause (a) and Clause (b) of Section 21 (1) of the new Act, still, the impugned order was good inasmuch as it was not disclosed how and in what manner the said provisions were contravened. Counsel argued that in Clause (rr) reference has been made to grounds specified in Sub-section (1) or Sub-section (2) of Section 21 and the State Government was not required to take into consideration the provisions of Rule 16 of the Rules framed under the new Act. Counsel incidentally contended that Rule 16 was not mandatory and if it was interpreted as a mandatory provision then it was ultra vires as it was in conflict with the provisions of Section 21 of the Act.

(3) The new Act, as it stood before its amendment in September 1972 by the Civil Laws (Amendment) Act No, XXXVII of 1972, left no scope for doubt that the Legislature intended that the petitions under Section 7-F arising out of permission proceedings were to be disposed of in accordance with the old Act if they were pending at the commencement of the new Act. The un-amended Section 20 read with Clause (r) of Sub-section (2) of Section 43 of the new Act clearly provided for the filing of suits after the commencement of the new Act on the basis of permission granted by the District Magistrate or by the revisional authorities under the old Act or by the appellate authority under the new Act and which acquired finality in terms of Clauses (i), (1), (m) and (o). Counsel submitted that the effect of the amendment was a limited one. After the amendment no suit could be filed on the basis of such permission and the only way to enforce the order of permission was through a recourse to the newly added Clause (rr). It was contended that the question of enforceability of an order was a separate matter and was not a relevant consideration in deciding the question whether the old or the new Act would be applicable to the pending permission proceedings under Section 7-F of the old Act. It was emphasised that no amendments (were) effected in Clauses (i), (l), (m) or Clause (o) (there is a slight amendment in Clause (o) but that is not relevant) and the nature, scope and content of the said clauses could not be affected by some amendment in certain other provisions of the new Act. Reliance was placed on the Rule of Interpretation as laid down in the following statement from Maxwell on Interpretation of Statutes, Eleventh Edition, p, 58.

'The words of a statute will, generally, be understood in the sense which they bore when it was passed.' (4) Mr. Singh contended that his client had never made any admission that his needs could be satisfied with half the portion of the shop in question. Actually, he needed the full shop but with a view to purchase peace and to avoid litigation, he had expressed a willingness to agree to a division of the shop but as the said offer was not acceptable io the tenant, therefore, the authorities could not compel his client to abide by his offer which had been made as long back as in 1970. In this connection, Mr. Singh drew our attention to the relevant material on record.

(5) Lastly, Mr. Singh made his submission regarding the question of compensation payable to a tenant under Section 21. However we shall notice his contention in this regard in the connected Writ Petition No. 4112 of 1973.

8. Mr. Shanti Bhushan, in reply, contended that Rule 16 of the Rules framed under the new Act is not ultra vires as it is not inconsistent with the provisions of Section 21 of the new Act. It was also contended that the provisions of Section 21 leave a discretion to the Prescribed Authority either to release or not to release the accommodation even if the landlord makes out a case for the grant of such release. He further submitted that there was no necessity to effect changes in Clause (o) of Sub-section (2) of Section 43 while effecting changes in Section 20 and Clause (r) of Sub-section (2) of Section 43 as Clause (o) merely prescribes a forum and is silent as to the law which is to govern the disposal of the pending petitions for permission.

9. We have summarised the contentions of the learned Counsel in some details as we believe that this course will pinpoint the real controversies between the parties. At the outset it must be said that the petitioner in the writ petition did not raise the question of the applicability of the provisions of the new Act to the petitions under Section 7-F of the old Act pending at the commencement of the new Act. It is a fact that in the writ petition a statement has been made that the landlord desired only half the shop in question and hence permission was illegally granted to him for the full shop. However, neither in the grounds set out in the writ petition nor at the time of argument before the learned single Judge the contention was raised that the State Government acted illegally in deciding the petition under Section 7-F of the old Act. Despite this aspect of the matter we permitted Shri Shanti Bhushan to raise the question in view of the importance attached to the question.

10. It must be admitted that the question raised is not free from difficulty and this difficulty has been further enhanced due to the inapt phraseology in which Section 43 of the new Act is couched. In our view, however, looking to the striking difference in the construction of Clauses (a) to (g) and that of Clauses (i) to (s) of Section 43 (2) of the new Act, it seems that the Legislature wanted a distinction to be made between the proceedings before the trial Court and those pending before the revisional authorities. For example, Clause (a) lays down as under:--

'(a) Any application or proceedings pending immediately before the commencement of this Act before the District Magistrate under Section 3 of the old Act shall stand transferred to the prescribed authority having jurisdiction and shall be deemed to be an application or proceeding under Section 21 of this Act and shall be disposed of in accordance with the provisions of this Act.' In contrast, Clause (o) lays down: 'Any revision under Section 7-F of the old Act pending immediately before the commencement of this Act before the State Government against any order of the Commissioner passed under Sub-section (3) of Section 3 or Sub-section (4) of Section 7-F of the old Act shall be disposed of by the State Government and its decision shall be final;' It is clear that it merely lays down that the State Government shall dispose of the revision under Section 7-F of the old Act and that such decision shall be final. Nothing has been said that the disposal will be in accordance with the new Act. Such a statement does occur in Clause (a), in Clause (b), in Clause (c), in Clause (f) and in Clause (g); Clause (c) relating to proceedings under Section 7-C is an exception to the general rule governing the trial court proceedings, namely, that the provisions of the new Act will (sic--apply to) such proceedings. Therefore, in Clause (e) an express mention has been made that the procedings under Section 7-C shall be continued to be governed by the old Act. In the context in which Clause (h) occurs we think that it is confined to the trial court proceedings and it has no application to the revisional proceedings which were pending on the date of the commencement of the new Act.

11. It is not necessary to decide whether Section 6 of the General Clauses Act will or will not apply in view of the enactment of Sub-section (2) of Section 43 as we hold that looking to the juxtaposition in which the various clauses dealing with the trial court proceedings are placed in relation to the clauses dealing with the revisional proceedings, and taking into consideration the marked difference in the phraseology of the two categories of these clauses, the legislative intention seems to be that while at the trial stage the parties should be enabled to amend their pleadings in the light of the new enactment, in respect of the revisional proceedings the same should continue to be decided in accordance with the old Act.

12. In this connection, the scheme of the Act before its amendment by U. P. Art No. XXXVII of 1972 (Civil Laws (Amendment) Act) may be examined in contrast to the amended position. The unamended Sub-section (1) of Section 20 of the new Act laid down as under:--

'(1) Save as provided in Sub-section (2), or in Clause (r) of Sub-section (2) of Section 43, no suit shall be instituted for the eviction of a tenant from a building, notwithstanding the determination of his tenancy by efflux of time or on the expiration of a notice to quit or in any other manner: Provided that nothing in this sub-section shall bar a suit for the eviction of a tenant on the determination of his tenancy by efflux of time where the tenancy for a fixed term was entered into by or in pursuance of a compromise or adjustment arrived at with reference to a suit, appeal, revision or execution proceeding, which is either recorded in court or otherwise reduced to writing and signed by the tenant.'

By the Amending Act the words 'or in Clause (r) of Sub-section (2) of Section 43' were deleted. The unamended Clause (r) in Section 43 (2) laid down as under :--

'(r) Any suit for the eviction of a tenant instituted with the permission referred to in Section 3 of the old Act or any proceeding arising out of such suit, pending immediately before the commencement of this Act, may be continued and concluded as if this Act had not been passed, and likewise, any suit for eviction with such permission referred to in Clause (i), Clause (l), Clause (m) or Clause (o) may be instituted after the commencement of this Act;'

By the Amending Act the words 'and likewise any suit for eviction with such permission referred to in Clause (i), Clause (l), Clause (m) or Clause (o) may be instituted after the commencement of this Act;' were deleted. By the Amending Act a new Clause (rr) was added which reads as follows:--

'(rr). Where any permission referred to in Section 3 of the old Act has been obtained on any ground specified in Sub-section (1) or Sub-section (2) of Section 21, and has become final, either before the commencement of this Act, or in accordance with the provisions of this sub-section, after the commencement of this Act, and a suit for the eviction of the tenant has not been instituted, the landlord may apply to the prescribed authority for his eviction under Section 21, and thereupon the prescribed authority shall order the eviction of the tenant from the building under tenancy, and it shall not be necessary for the prescribed authority to satisfy itself afresh as to the existence of any ground as aforesaid, and such order shall be final and shall not be open to appeal under Section 22.'

Rule 18, framed under the new Act, lays down as under:--

'Avoidance of multiplicity of proceedings.

(1) Where an application of a landlord against any tenant for permission to file a suit for eviction under Section 3 of the old Act, on any ground mentioned in Section 21 (1) has been finally allowed or rejected on merits either before or after the commencement of the Act whether by the District Magistrate or on revision by the Commissioner or the State Government or under Clause (i) or Clause (m) of Section 43 (2) by the District Judge, and the landlord instead of filing a suit for eviction makes an application under Section 21 on the same grounds within a period of six months from such decision or from the commencement of the Act, whichever is later the prescribed authority shall accept the findings in those proceedings as conclusive:

Provided that the period during which the operation of any permission as aforesaid is stayed by order of any Court or authority shall be excluded in computing the said period of six months.

(2) Where an application of a landlord against a tenant under Section 21 for the release of any building or any specified part thereof or any surplus land appurtenant to such building is rejected on merits and a fresh application on the same ground is made within a period of one year from that decision, the prescribed authority shall accept the findings in those proceedings as conclusive.' Taking into consideration all these provisions it seems clear that before the amendments brought about by U. P. Act No. XXXVII of 1972 the Legislature intended that the permission proceedings pending at the revisional stage at the commencement of the new Act should continue on the old basis and the landlord could enforce the permission obtained by him by filing a regular suit. However, Rule 18 gave him an alternative remedy also. He could instead of filing a regular suit enforce the permission by an application to the prescribed authority under Section 21 and the prescribed authority was bound to accept the findings in the permission proceedings as conclusive. However, the landlord could do so only if the permission was granted on any grounds mentioned in Section 21 Sub-section (1). This rule is described as aiming at avoidance of multiplicity of proceedings. After the amendments effected by the Amending Act, the right to file a suit on the basis of permission has been taken away and the only way to enforce such permission is through an application to the prescribed authority. Again, the requirement is that the permission should have been obtained on any grounds specified in Sub-section (1) or Sub-section (2) of Section 21. We hold that the Amending Act had a limited effect, namely, of taking away the remedy of a suit to enforce the order of permission. The amendment did not go to the extent of converting permission proceedings pending at the revisional stage into full-fledged proceedings under Section 21. Revisional proceedings in the matter of permission continued to retain their character as such and continued to be governed by the provisions of the old Act. However, it was realised thru in the large majority of cases permission proceedings were likely to be on the basis of the grounds specified in Sub-section (1) of Section 21, i.e., either the landlord sought the permission on the basis of bona fide personal need to occupy the accommodation or with a view to reconstruct the building. Therefore, it was thought reasonable that the landlords obtaining such permission on the said grounds should obtain their remedy expeditiously with the aid of Section 21 of the new Act. No hardship was likely to be caused to the great majority of the landlords by the fact that their right to institute a suit for the enforcement of the order of permission was taken away from them. We find considerable force in the argument of Mr. Sripat Narain Singh that the Amending Act basically left Clause (o) intact and its scope and content could not be taken to have undergone a complete change by the amendment in certain other provisions of the new Act which have the effect of disabling the landlords from instituting suits on the basis of the permission.

13. We do not accept the contention of the Advocate-General that Clause (t) of Sub-section (2) of Section 43 enables the landlords to enforce the orders of permission obtained by them on grounds other than those specified in Section 21. No decision is given by the State Government under any of the clauses referred to in Sub-section (2) of Section 43. Moreover, it is not clear as to how the State Government's decision 'will be an order of the competent authority under the corresponding provisions of this Act.' Further, it would be somewhat extraordinary that whereas those landlords who have obtained permission on grounds specified in Section 21 should have to move an application under Section 21, the other landlords who have obtained permission on grounds other than those mentioned in Section 21 should be enabled to by-pass Section 21 and should straightway invoke the aid of Section 23 of the new Act.

14. We may now examine the contention of Mr. Shanti Bhushan that the appellate courts are bound to take notice of the changes brought about in the statute during the pendency of the appeals. The leading case, of course, is , Head note (b) on page 5 lays down as under:--

'The hearing of an appeal under the procedural law of India is in the nature of re-hearing and therefore in moulding the relief to be granted in a case on appeal, the appellate Court is entitled to take into account even facts and events which have come into existence after the decree appealed against. Consequently, the appellate Court is competent to take into account legislative changes since the decision in appeal was given and its powers are not confined only to see whether the lower Court's decision was correct according to the law as it stood at the time when its decision was given.'

15. The Federal Court pronouncement has been approved by the Supreme Court in a number of cases vide : [1958]1SCR548 ; : AIR1959SC577 ; : [1963]3SCR858 and : [1968]3SCR163 . In this connection : [1968]3SCR163 may be extracted and is reproduced below :

'Now it is a fixed principle of law that a suit must be tried on the original cause of action and this principle governs not only the trial of suits but also appeals. Indeed the appeal being a continuation of the suit new pleas are not considered. If circumstances change they can form the subject of some other proceedings but need not ordinarily be considered in the appeal. To this proposition there are a few exceptions. Sometimes it happens that the original relief claimed becomes inappropriate, or the law changes affecting the rights of the parties. In such cases courts may allow an amendment pleading the changed circumstances. Sometimes also the changed circumstances shorten litigation and then to avoid circuity of action the courts allow an amendment. The practice of courts is very adequately summarised in Ram Ratan Sahu v. Mohant Sahu, (1907) 6 Cal LJ 74. Mookerjee and Holmwood, JJ. have given the kind of changed circumstances of which the courts usually take notice, with illustrations from decided cases. The judgment in that case has been consistently followed in India. In Raicharan Mandal v. Biswanath Mandal, AIR 1915 Cal 103 other cases are to be found in which subsequent events were noticed. The same view was taken by the Federal Court in following the dictum of Hughes, C. J. in Patterson v. State of Alabama, (1934) 294 US 600 at p. 607. In Surinder Kumar v. Gian Chand : [1958]1SCR548 this Court also took subsequent events into account and approved of the case of the Federal Court. In view of these decisions it is hardly necessary to cite further authorities.'

It will be seen that it depends upon the nature of the change in the statute which will be decisive on the question whether the appellate Court has to take cognizance of the modification in the statutory position. In the Court had to interpret the effect of Section 7 of the Bihar Money-lenders Act, 1939 which laid down as under:--

'7, Notwithstanding anything to the contrary contained in any other law or in anything having the force of law or in any agreement, no Court shall, in any suit brought by a money lender before or after the commencement of this Act in respect of a loan advanced before or after the commencement of this Act or in any appeal or proceedings in revision arising out of such suit, pass a decree for an amount of interest for the period preceding the institution of the suit, which, together with any amount already realised as interest through the Court or otherwise, is greater than the amount of loan advanced, or if the loan is based on a document, the amount of loan mentioned in, or evidenced by such document.'

16. It is clear that in view of the imperative nature of the said provision the appellate courts were bound to take into consideration the provisions of Bihar Moneylenders Act. In : AIR1959SC577 the Court had to consider the effect of Section 14 of the Hindu Succession Act which lays down as under:--

'14. (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.

Explanation:-- In this sub-section, 'property' includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.

(2) Nothing contained in Sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil Court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property,'

The Supreme Court held that the effect of the said provision was that the limited ownership of a female Hindu stood converted into a full ownership and a suit at the instance of a reversioner became not maintainable in view of the acquisition of full ownership rights by a female Hindu.

In : [1963]3SCR858 the Court emphasised that 'Retrospective effect was given to the provisions contained in the Amending Act by the insertion of a new Section 31 in the Parent Act which reads :--

'No Court shall pass a decree in a suit for pre-emption whether instituted before or after the commencement of the Punjab Pre-emption (Amendment) Act, 1959, which is inconsistent with the provisions of the said Act'

17. In : [1968]3SCR163 the question was whether an amendment should or should not be allowed by the appellate Court and in the interest of avoiding multiplicity of proceedings the Court held that the amendment of the pleadings should be allowed to enable the defendant to show to the Court that in addition to possession it had title also. This aspect of the question does not arise in the present controversy between the parties. In the new Act, XIII of 1972 no retrospectivity has been given to Section 21 and, therefore, the revisional authority was not entitled to take into consideration the provisions of Section 21 of the new Act. Indeed, we have held that legislative intention seems to be that revision proceedings arising out of permission proceedings should continue to be governed by the provisions of the old Act and, therefore, the revisional authority was not expected to take into consideration the provisions of the new Act. Therefore, the cnses cited on behalf of the appellant are not attracted to the facts of the present case.

18. However, even if we were to accept Shri Shanti Bhushan's contention that the State Government could take into consideration the provisions of Section 21 of the new Act, still, we hold that the State Government was not bound to do so unless the parties amended their pleadings and invited the State Government to decide the controversy on the basis of the provisions in the new Act. The tenant's grievance in the instant case is that the State Government should have considered the desirability of releasing only a part of the shop instead of the full shop. Apart from the facts of the case it is obvious that unless the tenant raises such a contention by appropriate amendment of his written statement, the State Government cannot go into such a question. The State Government suo motu is not requirec to consider whether a part of the releaset accommodation can meet the requirement of the landlord. It is basically a question of fact which requires details and particulars of the accommodation to be examined. We do not agree with Shri Shanti Bhushan that it is for the landlord to get his pleadings amended after the promulgation of the new Act. Even if his legal contentions were to be accepted as correct viz. that the considerations of Section 21 should be examined by the State Government in disposing of the pending petitions under Section 7-F, still it would be for the tenant to raise a contention that not the full accommodation whose release is sought but only a part thereof can meet the requirement of the landlord and if the tenant fails to raise such a contention, the State Government will not go into that question. So far as the facts of the present case are concerned Shri Shanti Bhushan emphasised that the landlord himself took the stand in paras 8 and 10 of annexure 6 to the writ petition that his needs would be satisfied with release of half the shop in question and in the face of such an admission, the State Government had no difficulty in releasing only half the shop. Shri Shanti Bhushan also emphasise, that the Rent Control and Eviction Officer was also of the view that the best arrangement would be that half the shop should go to the landlord and the other half should remain with the tenant. But in view of the law as it prevailed at the time the said officer passed his order, he was bound to grant the permission for the full shop. By the, time the State Government passed the impugned order the legal position had changed and under Section 21 of the new Act the State Government could release only half the shop in favour of the landlord. We do not accept that there is any admission of the landlord contained in paras 8 and 10 of annexure 6 which is the landlord's representation to the State Government under Section 7-F of the old Act. The fair interpretation of the landlord's stand is that he was eager to avoid litigation and wanted immediate possession. Therefore, he was willing to accept the delivery of half the shop only by way of compromise. In para 8 itself the landlord clearly stated that he needed the entire disputed accommodation. In para 12 of the application under Section 3 (annexure 2 to the writ petition) the landlord stated :--

'That the applicant needs the entire disputed accommodation but he avoids litigation. The applicant is prepared to take half the shop in case the opposite party vacates half the shop immediately and the applicant does not have to go the civil Court or to the other authorities to get the entire shop vacated. The applicant is prepared to reduce the rent by 50 per cent. in case half the shop comes into the possession of the applicant immediately.'

the tenant, however, throughout took the stand that he needed the entire shop and that he could not accept the offer of the landlord. Tn Para 8 of his written statement before the Rent Control and Eviction Officer he has stated :--

'That the objector-tenant does not pos-scss any other shop in the market and the whole shop is used for the purpose of his business. Tt is impossible to spare any portion of it.'

In his written reply before the State Government the tenant stated in para 14 as follows :--'That the offer of half the shop is not proper. The shop cannot be divided into 2 portions. The Inspection Report says that the goods was stored upto the ceiling height and so 1/2 of the shop will not be suitable for the revisionist.'

Tt is, therefore, clear that the tenant was not willing to accept the offer, given by the landlord as far back as in November, 1970. The tenant cannot be allowed to turn round and say that even though he was not willing to accept that offer, the Slate Government on its own should have taken into consideration that offer and should have pinned down the landlord to the said offer. The suggestion almost amounts to putting a penalty on the honest conduct on the part of a landlord. On the writ side of the Court no party can be allowed to take advantage of his own unfair behaviour.

19. Tt is interesting to see that while Shri Shanti Bhushan has argued that the State Government was bound to have noticed the subsequent events, his client took the stand in para 11 of his written reply before the State Government :

'That under Section 3 of the Rent Control Act, the affairs as on the date of the application alone are to be looked into.' Therefore, in the facts of the case we are not prepared to accept the contention that the State Government was required to examine the point whether the needs of the landlord could be met by release of half the shop.

20. We have not felt it necessary to decide whether Rule 16 framed under the new Act is ultra vires or not. We do not think that in the facts of the case the said question arises.

21. So far as the tenant's grieveance that the State Government's order suffers from mis-statements of facts is concerned, we do not find any real substance in it. Shri Shanti Bhushan has emphasised that it was acceptable even to the landlord that the Harpal Nagar house belonged to the brothers of the tenant and yet in the impugned order passed by the State Government it is said that the said house was constructed by the tenant. In this connection it is important to note that the tenant himself took the stand that in the shop in dispute the tenant and his brothers were together carrying on business. In para 3 of his written statement before the Rent Control and Eviction Officer, Moradabad (Annexure III to the writ petition) the tenant stated :--

'That the deponent-tenant along with his two brothers are doing Kirana business in the disputed shop which is the sole business run in the disputed shop and out of the income from the said business a family of 21 units are fed as under.....'

The 21 units who have been enumerated include the three brothers and their progeny. Now, in the face of this stand, broadly, it is not incorrect to hold that the Harpal Nagar house, even if it was constructed by the two brothers, should be available to the tenant for the purposes of storing goods therein. In this connection the learned single Judge made the following observations :--

'The fact that the petitioner is in possession and control of a big building is not disputed. What is contended is that it is a residential accommodation and is not suitable for carrying on business. The State Government has found that the accommodation at the command of the petitioner can be used for purposes of business. This is again a finding of fact which cannot be disturbed in a writ proceeding.'

We endorse the said observation.

22. We, therefore, dismiss the special appeal with costs.


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