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Mangilal Dhannalal Vs. Shivprasad Bholaram - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMadhya Pradesh High Court
Decided On
Case NumberSecond Appeal Nos. 454 of 1962 and 104 of 1963
Judge
Reported inAIR1966MP171
ActsMadhya Pradesh Accommodation Control Act, 1961 - Sections 12, 12(1), 52 and 52(2); Madhya Pradesh Accommodation Control Act, 1955 - Sections 16 and 17; Madhya Pradesh General Clauses Act, 1957 - Sections 10; General Clauses Act, 1897 - Sections 6; Cantonments (Extension of Rent Control Law) Act, 1957 - Sections 3
AppellantMangilal Dhannalal
RespondentShivprasad Bholaram
Appellant AdvocateS.D. Sanghi, Adv.
Respondent AdvocateN.L. Maharishi, Adv.
Cases ReferredSidheswar Chandra Banerji v. Satya Kishore
Excerpt:
.....the government in respect of premises within the cantonment taken on lease or requisitioned by the government; (7) no order for the eviction of a tenant shall be made on the ground specified in clause (h) of sub-section (1), unless the court is satisfied that the proposed reconstruction will not radically alter the purpose for which the accommodation was let or that radical alteration is in the public interest, and that the plans and estimates of such reconstruction have been properly prepared and that necessary funds for the purpose are available with the landlord. 5 of 1949 could not have effectively amended retrospectively, as the power to extend an act with modification conferred on the government amounted to legislation in exercise of delegated authority. this action of the central..........to the date of delivery of possession,3. at the time the present suit was filed on 10-1-1957, no rent control legislation was applicable to the town, known as cantonment board, mhow. the respondent claimed arrears of rent, as also eviction on the ground that he had served a quit notice, dated, 12-12-1956 under section 106 of the transfer of property act, terminating the tenancy with effect from 1-1-1957. the said notice had been received by the tenant on 13-12-1956. as no rent control legislation was applicable, it was not necessary for the landlord to allege any of the grounds under section 4 of the madhya bharat accommodation control act, 1955. the plaintiff had also claimed future damages for use and occupation from the date of suit till delivery of possession at the rate of rs......
Judgment:

P.K. Tare, J.

1. This appeal shall also govern the disposal of Second Appeal No. 104 of 1963 which had been filed by the present respondent as a cross objection, but which was directed to be registered as a separate appeal. The present appeal is by the tenant, while the connected cross appeal is by the landlord,

2. The tenant's appeal is against the decree, dated, 17-10-1962 passed by Shri P. C. Gupta, Third Additional District Judge, Indore in Civil Appeal No. 29 of 1960 reversing the decree, dated, 29-2-1960, passed by Shri G. K. Sharrna, Additional Civil Judge Class I, Mhow in Civil Suit No. 12 of 1957, wherein the tenant challenges the decree for eviction mainly on the ground that the decree is not on any of the grounds mentioned in Section 12 of the M.P. Accommodation Control Act, 1961. In the connected cross appeal filed by the respondent-landlord his relief is for mesne profits or damages for use and occupation from the date of the suit to the date of delivery of possession,

3. At the time the present suit was filed on 10-1-1957, no rent control legislation was applicable to the town, known as Cantonment Board, Mhow. The respondent claimed arrears of rent, as also eviction on the ground that he had served a quit notice, dated, 12-12-1956 under Section 106 of the Transfer of Property Act, terminating the tenancy with effect from 1-1-1957. The said notice had been received by the tenant on 13-12-1956. As no rent control legislation was applicable, it was not necessary for the landlord to allege any of the grounds under Section 4 of the Madhya Bharat Accommodation Control Act, 1955. The plaintiff had also claimed future damages for use and occupation from the date of suit till delivery of possession at the rate of Rs. 35/- per month which was the agreed rent.

4. The appellant-tenant denied that the plaintiff had any right of suit, although he admitted that he was originally the tenant of one, Ramnarayan. He also alleged that he had paid rent upto 30-11-1956, and that the amount as claimed was not due. He also challenged the landlord's right of suit on the ground that the plaintiff had no right to the property of the original landlord, Ramnarayan, whose widow was alive.

5. The judgment of the trial Court came to be passed on 29-2-1960. But before that, the Madhya Bharat Accommodation Control Act, 1955 which was applicable to the Madhya Bharat area except the Cantonment Boards and which became applicable to the entire Slate of Madhya Pradesh including other regions with effect from 1-1-1959 and there-alter known as Madhya Pradesh Accommodation Control Act, 1955, was applied by the Central Government to Mhow Cantonment with effect from 7-5-1958 in exercise of powers conferred by Section 3 of the Cantonments Extension of Rent Control Laws Act, 1957 (No. 46 of 1957). It was subsequently extended for further period by notifications, dated, 7-5-1958 and 31-12-1959. On this point, there is no dispute that the Act remained in force, so far as Mhow Cantonment area was concerned, till 31-12-1961. However, it was not extended any further. At this slage, it would be relevant to note the main feature of the gazette notification applying the M.P, Accommodation Control Act, 1961 to Mhow Cantonment Board. The said notification was published in the Gazelle of India, dated, 21-7-1962, part II, Section 4 at page 104. The notification is S.R.O. 192. As such, the Madhya Pradesh Accommodation Control Act, 1961 (No. 41 of 1961) as in force on the date of the notification in the State of Madhya Pradesh was made applicable with modifications specified in the schedule annexed. At this stage, it is not necessary to refer to the modifications. The resultant position, therefore, is that at the time of the suit, rent control legislation was not applicable. The Madhya Bharat Accommodation Control Act, 1955 was applied on 7-5-1958. But it expired by efflux of time on 31-12-1961. From 1-1-1962 to 20-7-1962, no rent control legislation was applicable to Mhow Cantonment area. The Madhya Pradesh Accommodation Control Act, 1961 again became applicable with effect from 21-7-1962 with one modification that by the said notification, Section 52 (wrongly numbered that way by the legislature itself, although its correct number ought to have been Section 51) of the said Act relating to repeal and savings was altogether omitted. Therefore, so far as Mhow Cantonment Board area is concerned, the said section is non-existent, and we have to read the other sections of the 1961 Act by deleting the said section.

6. At this stage, it may be relevant to reproduce Section 52 of the M.P. Accommodation Control Act, 1961. It is as follows:

'Repeal and savings--(1) The Madh, Pradesh Accommodation Control Act, 1955 (XXIII of 1955) is hereby repealed. (2) Notwithstanding such repeal, all suits and other proceedings under the said Act, pending, at the commencement of this Act, before any Court or other authority shall be continued and disposed of in accordance with the provisions of the said Act as if the said Act had continued in force and this Act had not been passed and the provisions for appeal under the said Act shall continue in force in respect of suit and proceedings disposed of thereunder.'

The said section clearly requires all suits pending on 1-1-1962 to be decided on the basis of the provisions contained in the 1955 Act. The question for consideration is as to what the effect will be when the Central Government applies the 1961 Act to Mhow Cantonment Area by deleting Section 52 of the Act. It was because of Section 52 of the M.P. Accommodation Control Act, 1961 that a Division Bench of this High Court in Vishnudutt v. Abdul Nabi SA No. 488 of 1960 D/-6-2-1903: 1963 MP LJ (Notes) 153 laid down that although there might be an indication in 1961 Act that some of its provisions might apply to pending cases, the Act could not be applied to any pending cases, whatsoever in view of the clear provisions made in Section 52(2) of the Act. Such a contention was also advanced before me in Prabhubhai v. Shivadarshanlal SA No. 183 of 1962 D/-12-9-1963 (M.P.). But I had negatived that contention by following the view as expressed by the Division Bench in SA No. 488 of 1960 D/-6-2-1963 : 1963 M.P. LJ (Notes) 153 (supra). An argument was advanced in that case before me that in view of the observations made by Their Lordships of the Supreme Court in Mohanlal Jain v. Sawai Man Singhji, AIR 1962 SC 73 that as Their Lordships interpreted the word sued' to mean the trial of the suit al subsequent stages leading to the passing of a decree, the words 'no suit shall be filed' occurring in Section 12(1) of the M.P. Accommodation Control Act, 1961 should also be interpreted to include the continuance of the trial. That contention was mainly negatived because of the specific and unambiguous provision made in Section 52(2) of the M.P. I Accommodation Control Act, 1961. But that argument would have some force in the absence of the said section in the statute book.

7. It would next be relevant to note the provisions of Section 3 of the Cantonments (Extension of Rent Control Laws) Act, 1957. It is as follows:

' Power to extend cantonments laws relating to control of rents and regulation of house accommodation.

The Central Government may, by notification in the Official Gazette, extend to any cantonment with such restrictions and modifications as it thinks fit, any enactment relating to the control of rent and regulation of house accommodation which is in force on the date of the notification in the State in which the cantonment is situated :

Provided that nothing contained in any enactment so extended shall apply to--

(a) any premises within the cantonment belonging to the Government;

(b) any tenancy or other like relationship created by a grant from the Government in respect of premises within the cantonment taken on lease or requisitioned by the Government; or

(c) any house within the cantonment which is, or may be, appropriated by the Central Government on tease under the Cantonments (House Accommodation) Act, 1923 (6 of 1923).'

Therefore, what Section 3 empowers the Central Government to do is to externd to any canton, effect with restrictions and modifications any enactment relating to control of rent and regulation of house accommodation which may be in force on the date of the notification in the. State in which the cantonment is situated Therefore, the Central Government merely performs a delegated legislative function of applying a State Act to any particular cantonment with such modifications and restrictions as it may think fit. Can it, therefore, be said that for the purposes of interpretation, it is a Central or a State Act? The question may be relevant in connection with applicability of the Indian General Clauses Act, 1897 or the Madhya Pradesh General Clauses Act, 1958 as the provisions in the two enactments are slightly different. In my opinion, the position will be that the Central Government would merely be adopting the State Act with modifications and applying it to a Cantonment Board area in exercise of delegated legislative functions. In no case can such a modified Act be considered to be a central enactment for the purposes of interpretation, except with reference to the special modifications provided for. For the purposes of such interpretation, it will he merely a State Act, as adopted by the Central Government with which the Parliament as such would have nothing to do, and the Central Government would be exercising its power of delegated legislation as conferred by Section 3 of the Cantonments (Extension of Rent Control Laws) Act 1957.

8. However, the question whether the Indian General Clauses Act, 1897 or the Madhya Pradesh General Clauses Act, 1958 applies loses all significance, as Section 10 of the State Act and Section 6 of the Central Act would not be attracted, as the Madhya Pradesh Accommodation Control Act, 1955 did not come to an end by repeal because of the gap from 1st January 1962 to 20th July 1962. It expired by efflux of time. For this reason, the said provisions of either of the General Clauses Act cannot be attracted as laid down bv Balkrishna Aivar J. in S. A. Seshadri Aiyangar v. Narayana Nair AIR 1950 Mad 106. If an Act is repealed by a subsequent Act, then only the provisions relating to repeal and savings would be attracted., Otherwise, an Act, which expires by efflux of time, cannot at all be Invoked for any purpose whatsoever after it conies to an end.

9. It would next be relevant to note the provisions in Section 12 of the Madhya Pradesh Accommodation Control Act, 1961. They are as follows :--

' Restriction on eviction of tenants.--(1) Notwithstanding anything to the contrary contained in any other law or contract, no suit shall be filed in any civil Court against a tenant for his eviction from any accommodation except on one or more of the following grounds only, namely :-

(a) to (p) . X X X X X

(2) No order for the eviction of tenant in any proceeding under Sub-section (1) shall be binding on any sub-tenant referred to in Section 15 who has given notice of his sub-tenancy to the landlord under the provisions of that section, unless the sub-tenant is made a party to the proceeding and the order for eviction is made binding on him.

(3) No order for the eviction of a tenant shall be made on the ground specified in Clause (a) of Sub-section (1), if the tenant makes payment or deposit as required by Section 13 ;

Provided that no tenant shall be entitled to the benefit under this Sub-section, if, having obtained such benefit once in respect of any accommodation, he again makes a default in the payment of rent of that accommodation for three consecutive months.

(4) , Where a landlord has acquired any accommodation by , transfer, no suit for the eviction of tenant shall be maintainable under Sub-section (1) on the ground specified in Clause (e) or Clause (f) thereof, unless a period of one year has elapsed from the date of the acquisition.

(5) Where 'an order for the eviction of a tenant is made on the ground specified in Clause (e) of Sub-section (1) the landlord shall not be entitled to obtain possession there or before the expiration of a period of two months from the date of the order.

(6) Where an order for the eviction of a tenant is made on the ground specified in Clause (f) of Sub-section (1), the landlord shall mot be entitled to obtain possession thereof--

(a) before the expiration of a period of two months from the date of the order; and

(b) if the accommodation is situate in cities of Gwalior (including Lashkar and Morar), Indore, Ujjain, Rattam, Bhopal, Jabalpur, Raipur, or Durg or such other towns or cities specified by the State Government by a notification in that behalf, unless the landlord pays to the tenant such amount by way of compensation as may be equal to --

(i) double the amount of the annual Standardrent of the accommodation in the followingcases, namely :--

(a) where the accommodation has for a period of ten complete years immediately preceding the date on which the landlord files suit for possession thereof, been used for business purposes or for any other purpose along with such purposes, by the tenant who is being evicted ;

(b) where during the aforesaid period of ten years, the tenant carrying on any business in the accommodation has left it and the tenant immediately succeeding has acquired the business of his predecessor either through transfer or inheritance ;

(ii) the amount of the annual standard rent in other cases.

(7) No order for the eviction of a tenant shall be made on the ground specified in Clause (h) of Sub-section (1), unless the Court is satisfied that the proposed reconstruction will not radically alter the purpose for which the accommodation was let or that radical alteration is in the public interest, and that the plans and estimates of such reconstruction have been properly prepared and that necessary funds for the purpose are available with the landlord.

(8) No order for the eviction of a tenant shall be made on the ground specified in Clause (j) of Sub-section (1), if any dispute as to whether the tenant has ceased to be in the service or employment of the landlord is pending before any authority competent to decide such dispute.

(9) No order for the eviction of a tenant shall be made on the ground specified in Clause (k) of Sub-section (1), if the tenant within such time as may be specified in this behalf by the Court carries out repairs to the damage caused to the satisfaction of the Court or pays to the landlord such amount by way of compensation as the Court may direct.

(10) No order for the eviction of a tenant shall be made on the ground specified in Clause (m) of Sub-section (1), if the tenant within such lime as may he specified in this behalf by the Court restores the accommodation to its original condition or pays to the landlord such amount by way of compensation as it my direct.

(11) No order for the eviction of a tenant shall be made on the ground specified in Clause (o) of Sub-section (1) if the tenant within such time as may be specified in this behalf by the Court vacates the portion or portion of accommodation not let to him and pays to the Landlord such amount by way of compensation as it may direct. '

The question arises whether this section would be applicable to pending cases when the provision relating to repeal and savings in Section 52 (correctly speaking Section 51) has specifically been omitted by the Central Government. It is no doubt true that an authority exercising delegated power of legislation cannot give retrospective operation to an enactment, as laid down by Their Lordships of the Federal Court in Jatindra Nath v. Province of Bihar' AIR 1949 FC 175, wherein Their Lordships laid down that the Bihar Maintenance of Public Order Amendment Act No. 5 of 1949 could not have effectively amended retrospectively, as the power to extend an Act with modification conferred on the Government amounted to legislation in exercise of delegated authority. The same principle was laid down by Their Lordships of the Supreme Court in Strawboard . v. Gutta Mill Workers' Union AIR 1953 SC 95, wherein Their Lordships laid down that the power of the State Government to extend lime for delivery of an award by a tribunal or an adjudicator could not be extended ex post facto after the original period expired by efflux of time, after which the adjudicator will become functus officio. Therefore, by implication their Lordships laid. down that no retrospective operation can b* given to an action in exercise of delegated? authority. That power can only be exercised by the primary legislative authority. The same principle has been reagitated (reiterated?) in Modi Food Products Ltd. v. Commissioner of Sales Tax, U. P., AIR 1956 All 35, M. L. Bagga v. C. Murhar Rao AIR 1956 Hyd 35 and Calicut-Wynad Motor Service Pvt. Ltd. v. State of Kerala, AIR 1959 Kerala 347. Therefore, there can be no doubt that the Central Government exercising delegated authority of legislation under Section 3 of the Cantonments (Extension of Rent Control Laws) Act, 1957 could not have applied the provisions of the Madhya Pradesh Accommodation Control Act, 1961 retrospectively. There can be no doubt about this proposition.

10. But it is always open to a primary legislative authority to make provision in an enactment so as to make it effective retrospectively. Therefore, the question will he whether the Madhya Pradesh Accommodation Control Act, 1961, which was adopted by the Central Government itself has any retrospective operation so as to be applicable to pending cases. As already indicated earlier, I had an occasion to consider this aspect in S. A. No. 183 of 1962 dated 12th September 1963 (MP) (supra), wherein I followed the Division Bench case of S. A. No. 488 of 1960 dated 6th February 1963: 1963 MPLJ (Notes) 153 (supra) would be that (sic) the provisions of the Madhya Pradesh Accommodation Control Act, 1961 would be applicable to pending cases but the specific provision made in Section 52(2) of the 1961 Act. But if the said section is not to he considered to be on the statute book for the purposes of the Cantonments (Extension of Rent Control Laws) Act, 1957, there can he no doubt that the Madhya Pradesh Accommodation Control Act, 1961 would apply to pending cases. Therefore, the question is not whether the Central Government has applied the 1961 Act retrospectively in exercise of its delegated authority. The question really would be whether it was the intention of the State legislature to apply it to pending cases. If the State legislature itself has provided for that eventuality, the provisions of the Act must be given their normal effect. That result is obtained by the Central Government omitting Section 52 from the statute book for the purpose of applying the 1961 Act to the Cantonments situated in the State of Madhya Pradesh. This action of the Central Government would be perfectly legitimate, as by virtue of Section 3 of the 1957 Act, it has power to apply a State Act to Cantonment areas with such restrictions or modifications as it may consider proper. Therefore, the action of the Central Government in deleting Section 52 of the 1961 Act would have the effect of the 1961 Act being applicable to pending cases, which would be the normal effect of the State Act due to non-existence of Section 52 of the Act.

11. It is true that as laid down by their Lordships of the Supreme Court in State of Punjab v. Moharsingh, (S) AIR 1955 SC 84, an Act is always to be construed to be prospective and should not be held to be applicable to pending cases, unless there is a specific provision made therein, or a retrospective operation in that sense is to be inferred due to a necessary intendment or implication to be gathered from the provisions of the Act.

12. Having this principle in mind, we have to examine the question whether Section 12 of the 1961 Act would be attracted to accommodation in Cantonment Boards regarding pending cases.

13. In this connection, I might refer to the observations of a Full Bench of the Allahabad High Court in Amjad Ali v. Muhammad Israil, TLR 20 All 11 (FB), wherein the learned Judges had to consider the word 'file' occurring in Section 12 of the Court-fees Act, 1870 In the opinion of the learned Judges, the word certainly would mean something more than presented for admission, It would imply that the plaint or memorandum of appeal had been admitted and put on the flies of the Court. That would be the sense in which the same word according to the learned Judges has been used in section 28 of the Court-fees Act.

14. Of course, the learned Judges deciding the case of Sidheswar Chandra Banerji v. Satya Kishore (1937) 41 Cal WN 1184 held that the observations made by the Full Bench of the Allahabad High Court were obiter, and that question exactly was not for decision upon a reference, In that view, the learned Judges of the Calcutta High Court held that the observations of the Full Bench of the Allahabad High Court being obiter, were not binding on them.

15. In this connection, I might refer to the observations of Their Lordships of the Supreme Court in AIR 1962 SC 73 (Supra), wherein Their Lordships had to consider the word ' sue ' occurring in Section 86 and Section 87B of the Civil Procedure Code, which gave a protection to Ruling Princes against suits filed without the consent of the Central Government, which consent was to be certified in writing by a Secretary to that Government. Their Lordships laid down that the word ' sue ' will include the further trial leading to a decree; and the decree passed at a time when, the said protection had been taken away by repeal would not render the decree valid, as the very institution of the suit being invalid, it could not be tried at any later stages. In my opinion, the same principle will be applicable while interpreting the phrase ' no suit shall be filed ' occurring in Section 12 of the Madhya Pradesh Accommodation Control Act, 1961. It is, therefore, clear that the further trial of the suit leading to a decree would not be justified, in the absence of a ground covered by Section' 12 (1) of the Madhya Pradesh Accommodation Control Act, 1961.

16. Regarding cantonment areas, and particularly Mhow Cantonment, a very peculiar situation has arisen in the present case; because at the time the suit was filed, no rent control legislation was applicable. However, during the pendency of the litigation, the Madhya Bharat Accommodation Control Act, 1955 was applied with effect from 7th May 1958 which, however, expired on 31st December 1961. How. ever, the contention of the learned counsel for the respondent is that the 1955 Act became applicable to pending cases by virtue of Section 16 and Section 17 of that Act; and there being no analogous provisions in the 1961 Act, the mere wording in Section 12 (1) of the 1961 Act cannot lead to a conclusion that the 1961 Act applies to pending cases. I am unable to accept this suggestion for the simple reason that the wording of Section 12 (1) of the 1961 Act is very specific, and the fact that there may not be any provisions in the said Act analogous to sections 16 and 17 of the 1955 Act would not at all be material, particularly in view of the fact that Section 52 of the 1961 Act is non-existent so far as cantonment areas are concerned.

17. As a result of the discussion aforesaid, I am of opinion that Section 12 (1) of the Madhya Pra. Accommodation Control Act, 1961 being applicable to the present case, it was necessary for the landlord to allege a ground as required by the said section. Consequently, a decree for eviction could not be passed in the absence of such a ground on 17th October 1962, particularly when the 1961 Act had come into force with effect from 21st July 1962. Therefore, the learned appellate Judge should have remanded the case for a trial on that ground by allowing the landlord to plead any of the grounds under Section 12 (1) of the 1961 Act, as the Act came into force during the pendency of the appeal in the first appellate Court. Consequently, I would set aside the decree for eviction passed by the first appellate Court, as also by the trial Court and would remand the case for a trial of that issue after the trial Court allows the landlord to amend his plaint by alleging a ground or grounds under Section 12 (1) of the 1961 Act. As this course is required to be adopted due to a change of the law during the pendency of the litigation, I direct that there shall be no order as to costs of this Court, as also the first appellate Court. The costs of the trial Court shall, however, be in the discretion of the trial Judge and will abide the result of the case after remand.

18. Coming to the connected cross appeal filed by the landlord namely, Second Appeal No. 104 of 1963, that relates to the damages for use and occupation from the date of the suit till delivery of possession. The trial Judge had dismissed the plaintiff's suit in its entirety, while the learned appellate Judge had merely decreed the claim for eviction and for arrears of rent amounting to Rs. 36-11-0 due upto the date of the suit. The further amount due towards rent or damages for use and occupation was not at all decreed.

19. It is to be noted that the plaint was filed on 10th January 1957. An amount either towards rent or towards damages for use and occupation till delivery of possession would be due for the last six years or more. At the lime the plaint was filed, the landlord was not required to pay court-fees on future mesne profits. However, he having claimed the relief now in this Court, it would be necessary to remand this part of the case also to the trial Court. Even if it be treated to be a claim for rent, the appellant will be liable to pay court-fees. Even if it be treated to be an item of mesne profits to be determined under Order 20 Rule 12, Civil Procedure Code, the landlord will be liable to pay court-fees at the execution stage as required by Section 11 of the Court-fees Act. That question will depend on the landlord's right to evict the tenant. However, it will be open to the trial Judge to decree the plaintiff's claim either for rent or for damages for use and occupation, as the case may be, upon payment of the requisite court-fees which may be required in view o! the findings to be arrived at. Under the circumstances, I direct that there shall be no order as to costs of this appeal. Leave for filing Letters Patent Appeal is refused.


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