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Gokuldas Pagaria Vs. Parmanand Chaurasia - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMadhya Pradesh High Court
Decided On
Case NumberSecond Appeal No. 537 of 1964
Judge
Reported inAIR1967MP265
ActsMadhya Pradesh Accomodation Control Act, 1961 - Sections 12(1) and 51; Cantonments (Extension of Rent Control Laws) Act, 1957 - Sections 3; Constitution of India - Articles 246; Transfer of Property Act, 1882 - Sections 105 and 106
AppellantGokuldas Pagaria
RespondentParmanand Chaurasia
Appellant AdvocateR.S. Dabir, Adv.
Respondent AdvocateA.P. Sen, Adv.
DispositionAppeal dismissed
Cases ReferredMohanlal v. Sawai Man Singhji
Excerpt:
- - that right would clearly be affected if the act of 1961 is made applicable to eviction suits pending on 13th june 1964, that is on the dale on which the notification extending the act of 1961 to cantonment areas was issued for, in that case the unfettered right of eviction which a landlord had before 13th june 1964 would be hedged in with the restrictions mentioned in section 12 of the 1961 act. with regard to substantive or vested rights, the principle is well settled that they cannot be taken away except by clear indication of intention to that effect by an express provision or a clear implication. when a statute deprives a person of his right to sue or affects that right, its retrospective character must be clearly expressed......certain modifications, was not retrospective so as to make the act of 1961 applicable to eviction suits pending on the date of the notification; and that, therefore, the plaintiff respondent was entitled to eject the appellant after validly terminating the tenancy. 3. the sole question that arises for determination in this appeal is whether the aforesaid notification has the effect of making the act of 1961 applicable to eviction suits, pending on the date of the notification. it must be stated at the outset that the regulation of house accommodation. including the control of rents, in cantonment-areas is a matter with respect to which parliament has exclusive power to make laws by virtue of article 246 and entry-3 of list-1 of seventh schedule to the constitution. that being so, the.....
Judgment:

Dixit, C.J.

1. This second appeal, which has come up before us for disposal on a reference by one of us arises out of a suit filed by the respondent for the eviction of the appellant from a house situated in Jabalpur Cantonment area.

2. The plaintiff respondent instituted a suit for ejectment on 15th July 1963 after giving a notice to the appellant terminating his tenancy No ground for ejectment, falling under Section 12 of the Madhya Pradesh Accommodation Control Act, 1961, or under Section 4 of the Madhya Pradesh Accommodation Control Act 1955, repealed by the Act of 1961, was averred by the plaintiff or made out at the trial. Both the courts below decreed the plaintiff's claim taking the view that when the suit for eviction was filed neither the Act of 1955 nor the 1961 Act was in force in the Jabalpur Cantonment area; that the notification issued by the Central Government under Section 3 of the Cantonments (Extension of Rent Control Laws) Act. 1957, and published in the Gazette of India dated the 13th June 1964, extending inter alia to the Jabalpur Cantonment area the Madhya Pradesh Accommodation Control Act, 1961, with certain modifications, was not retrospective so as to make the Act of 1961 applicable to eviction suits pending on the date of the notification; and that, therefore, the plaintiff respondent was entitled to eject the appellant after validly terminating the tenancy.

3. The sole question that arises for determination in this appeal is whether the aforesaid notification has the effect of making the Act of 1961 applicable to eviction suits, pending on the date of the notification. It must be stated at the outset that the regulation of house accommodation. including the control of rents, in Cantonment-Areas is a matter with respect to which Parliament has exclusive power to make laws by virtue of Article 246 and entry-3 of List-1 of Seventh Schedule to the Constitution. That being so, the M.P. Accommodation Control Act, 1961, or the earlier Act of 1955 repealed by the Act of 1961, though applicable to the whole of Madhya Pradesh, necessarily excluded from its operation the Cantonment Areas in the State. Neither of these Acts was proprio vigore applicable to Cantonment Areas.

In 1957 the Cantonments (Extension of Rent Control Laws) Act, 1957, was enacted by Parliament. Section 3 of this Act gives to the Central Government the power to extend, by a notification, 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. It was in exercise of the power conferred by this section that the notification dated the 13th June 1964 was issued by the Central Government extending inter alia to Jabalpur Cantonment the M. P. Accommodation Control Act, 1961, with the modification set out in the notification. The modification material here is the omission of Section 51 (which was formerly numbered as 52) of the M. P. Accommodation Control Act, 1961, in the applicability of that Act to the cantonment areas. Section 51 of the 1961-Act is as follows -

'51. Repeal and Savings--(1) The Madhya Pradesh Accommodation Control Act,1955 (XXIII of 1955) in hereby repealed (2)Notwithstanding such repeal, all suits andother proceedings under the said Act, pending,at the commencement of this Act, before anyCourt or other authority shall be continuedand disposed of in accordance with the provisions of the said Act as if the said Act hadcontinued in force and this Act had not beenpassed and the provisions for appeal underthe said Act shall continue in force in respectof suits and proceedings disposed of thereunder.'

It must be noted that the notification dated the 13th June 1964 issued by the Central Government under Section 3 of the Cantonments (Extension of Rent Control Laws) Act, 1957, does not contain any provision making the M.P. Accommodation Control Act. 1961, applicable to suits pending on the date of the Notification. The question whether on I he extension of the 1961-Act to the Jabalpur Cantonment area by virtue of the aforesaid notification, the said Act applies to eviction suits pending on the date of the notification has, therefore, to be decided on the wording of Section 12(1) of the 1961 Act and on the effect of the deletion of Section 51 from the 1961-Act in its applicability to the cantonment areas Section 12(1) of the 1961 Act says that -

'12. (1) Notwithstanding anything to the contrary contained in any other law or contract, no suit shall he 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;

* * * * 4. Now, a right to continue a duly instituted suit is in the nature of a vested right (See Venugopala v. Krishnaswami AIR 1943 F.C. 24; and Khatumal v. Abdul Qadir 1961 MPLJ 587=(AIR) 1961 Madh Pra 295). As the Madhya Pradesh Accommodation Control Act, 1961, was not in force in Jabalpur. Cantonment area when the plaintiff respondent filed the suit, he had an unfettered right of having the appellant evicted from the house after validly terminating the tenancy. That right would clearly be affected if the Act of 1961 is made applicable to eviction suits pending on 13th June 1964, that is on the dale on which the notification extending the Act of 1961 to cantonment areas was issued For, in that case the unfettered right of eviction which a landlord had before 13th June 1964 would be hedged in with the restrictions mentioned in Section 12 of the 1961 Act.

With regard to substantive or vested rights, the principle is well settled that they cannot be taken away except by clear indication of intention to that effect by an express provision or a clear implication. The settled rule of construction of statutes is that no statute, unless it be a statue dealing with procedure only, should be construed to have a retrospective operation unless it so provides either expressly or by necessary implication or intendment, and that a statute is not to be construed to have greater retrospective operation than its language renders necessary. When a statute deprives a person of his right to sue or affects that right, its retrospective character must be clearly expressed.

As stated earlier there is no provision of any kind in the notification dated the 13th June 1964 applying the Act of 1961 to eviction suits pending on 13th June 1964. There is no such provision even in the Act itself. On the other hand, the language of Section 12(1) is such as to indicate that the Act of 1961 applies to suits which may be instituted after the Act comes into force. It does not apply to suits which were already pending when the Act came into force or was extended to Cantonment areas. Section 12(1) says that '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. '

On a plain reading of the expression 'nosuit shall be filed in any Civil Court', it isclear that Section 12 is in terms prospectiveand not retrospective, and does not apply topending suits. In this connection, it will besufficient to refer to the decision of the Supreme Court in Chandrasingh Manibhai v. Surjit Lal, AIR 1951 SC 199 where the expression 'No suit for recovery of possession shallbe instituted by a landlord against a tenanton the ground of non-payment of the standard rent ' occurring inSection 12(2) of the Bombay Rents. Hotel andLodging House Rates Control Act, 1947 wasconstrued as relating to suits instituted afterthe coming into force of the Bombay Actand as not applying to suits which were pending when the Bombay Act was put on thestatute book. On the basis of this authority,it must be held here that Section 12(1) of the1961-Act applies to suits instituted after thatAct was brought into force. There is nothingin the language of Section 12(1) to compel usto hold that the necessary implication or intendment of that provision is to apply it tosuits already pending when the Act was brought into force.

5. The omission of Section 51 from the Act of 1961 in its applicability to the cantonment areas does not on any principle lead to the conclusion that the 1961-Act applies to suits already pending on 13th June 1964, that is the date on which the notification extending the Act to cantonment areas was issued. It will be seen that the first sub-section of Section 51 repealed the M.P. Accommodation Control Act, 1955. The second sub-section provided that notwithstanding the repeal of the 1955-Act all suits and other proceedings under that Act, pending at the commencement of the 1961 Act shall be continued and disposed of in accordance with the provisions of the 1955-Act as if the said Act had continued in force. The reason for omitting Section 51, while extending the 1961 Act to cantonment areas, is that on 13th June 1964, when the 1961-Act was extended to cantonment areas, no Accommodation Control Act was in force in those areas.

The question, therefore, of repealing a non existing Act in force in the cantonment areas and of saving any suits or proceedings thereunder could not arise. To hold that as Section 51 has been deleted from the Act in its applicability to the cantonment areas therefore, the Act has retrospective operation and applies to pending suits is to ignore altogether the settled principles of retrospective operation of statutes. If the right of suit is a vested right, as we think it is, and when, as we have endeavoured to point out earlier, that right has not been affected in any way by Section 12 of the 1961-Act or by any other provision in that Act, then the suits for eviction pending on 13th June 1964 when the 1961-Act was extended to cantonment areas must be continued and decided in accordance with the provisions of the Transfer of Property Act, 1882. unaffected in any way by the provisions of the M. P. Accommodation Control Act, 1961. In our opinion, the 1961-Act did not at all apply to the plaintiff-respondent's suit for eviction.

6. In Rajaram v. Mahadeo S.A. No. 131 of 1966 D/- 21-9-1966 (MP), Tare J. has no doubt expressed the view that the M. P. Accommodation Control Act, 1961, applies to eviction suits pending on the date of the notification, dated the 13th June 1964, by which the Act was extended to cantonment areas. With all respect to the learned Judge, we do not find ourselves in agreement with this view taken by him in the case of Rajaram S.A. No. 181 of 1966 D/. 21-9-1966 (MP) (supra) and other cases. The learned Judge recognised that the right of suit was a vested right. He also accepted the position that there was no specific provision in the 1961-Act giving retrospective operation to that enactment. But he found in the deletion of Section 51 from the 1961-Act an intention to make that Act applicable to suits pending on 18th June 1964.

The learned Single Judge construed the expression 'no suit shall be filed in any Civil Court against a tenant for his eviction. . .' occurring in Section 12(1) as taking in suits already filed and pending on 19th June 1964. For this construction he relied on the meaning of the word 'sued' explained by the Supreme Court in Mohanlal v. Sawai Man Singhji, AIR 1962 SC 73 while considering Section 86(1) of the Code of Civil Procedure, 1908. It has already been pointed out by us that the deletion of Section 51 from the Act of 1961 has not the effect of making that Act applicable to suits pending on 18th June 1964. The intention to make the 1961-Act applicable to pending suits has to be found not in the deletion of Section 51 but in some express or implied provision to that effect in the Act itself. There is no such express or implied provision.

7. We respectfully beg to differ with Tare J. in the construction he has put on Section 12 (1) of the 1961-Act. It seems to us that the provisions of Section 86(1) C.P.C. and Section 12(1) of the 1961-Act differ toto caelo and the meaning of the word 'sued' used in Section 86(1) cannot be pressed into service for construing the expression 'no suit shall be filed in any Civil Court against a tenant for his eviction'. Section 86(1) C.P.C. lays down that 'No Ruler of a foreign State may be sued in any Court ....'. The Supreme Court held in AIR 1962 SC 73 (supra) that a person is sued not only when the plaint is filed, but also when the suit remains pending against him, and the word 'sued' covers the entire proceeding in an action.

We are unable to see how from this meaning of the word 'sued' in Section 86(1) C.P.C. it follows that even pending suits are within the purview of the expression 'no suit shall be filed in any Civil Court against a tenant for his eviction' occurring in Section 12(1) of the 1961-Act. In our judgment, the view expressed in Rajaram's case S.A. No. 131 of 1966 D/- 21-9-1966 (MP) (supra) and in other cases that the M. P. Accommodation Control Act, 1961, applies to suits pending on 13th June 1964, when the notification extending the 1961-Act to cantonment areas was issued, is not sound. The Act does not apply to such pending suits. The Courts below were, therefore, right in holding that the Act of 1961 did not apply to the plaintiff-respondent's suit for eviction against the appellant and in decreeing the plaintiff's claim.

8. The result is that this appeal is dismissed with costs. Counsel's fee is fixed at Rs. 100.


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