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Shakuntala and ors. Vs. Agwan Dass and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberE.S.A. No. 58-D of 1966, against order of Addl. Dist. Judge, Delhi, dated 8-2-1966
Judge
Reported inAIR1967Delhi12
ActsSlums Areas (Improvement and Clearance) Act, 1956 - Sections 19 and 19(1); Slums Areas (Improvement and Clearance) (Amendment) Act, 1964; Code of Civil Procedure (CPC), 1908
AppellantShakuntala and ors.
RespondentBhagwan Dass and ors.
Appellant Advocate Keshav Dayal, Adv
Respondent Advocate Haranru Das, Adv.
Cases ReferredVijendra Nath v. Jagdish Rai Aggarwal. Civil Appeal No.
Excerpt:
.....to decree passed prior to amendment - amendment nto to affect pending execution proceedings - decree obtained before coming into force of amendment and execution application filed prior to amendment would nto create any bar - held, amendment would apply to eviction application. - section 13: [altamas kabir & cyriac joseph,jj] custody of child - welfare of child vis--vis comity of courts - the minor girl child of 3 1/2 years was brought to india by her mother. the minor girl was a citizen of u.k. being born in u.k. her parents had set up their matrimonial home in u.k. and had acquired status of permanent residents of u.k. the child with her mother was supposed to return to u.k. but the mother cancelled her tickets and remained behind in india. the husband thereupon started..........because of its tendency to be unjust and suppressive. ancillary to this rule is antoher rule that no law should be given greater retrospective effect than its language clearly expresses on implies. bearing these rules in mind i and of the opinion that s. 19 (1) (b) of the said act does nto affect the rights of the decree holders to execute decrees obtained more than commencement of the said amendment and act applies only to decrees or orders obtained thereafter. since land was included in s.(19) for the first times by the amendment act, 1964 the landlord was entitled to execute the decrees without permission of the competent authority. in this view this appeal must fail and is dismissed with no order as to costs. 2. appeal dismissed.
Judgment:

1. Bhagwan Dass respondent claimed a decree for possession of the land in ... on November 11,1964. The Slum Areas (Improvement and Clearance) Amendment Act, 1964 ( Act. No. Xliii of 1964) came into force on 27th February, 1965, Before 27th February 1965, However the land lord filed an application for execution of the decree and warrants for eviction of the tenant were issued. The bail if, however, returned the warrants with a report that there was apprehension of breach of peace and possession could nto be delivered without police aid. The said Amendment Act came into force in the meantime. The Judgment-debtor filed an application under S. 19 of the Slum Areas (Improvement and Clearance) Act, 1956, objecting to the execution of the decree without permission from the Competent Authority under the said Act as amended in 1964. The short controversy that arises between the parties is whether it is necessary for decree-holder to obtain permission of the Authority under the said Act before executing the decree? The trail Court by Judgment dated 10th December, 1965, decided that C1(b) of S. 19 as amended by Act Xliii of 1964 applied only to decrees or orders obtained after coming into force of the amending Act in suits and proceedings instituted before the said Amending Act and since in this case the decree had been obtained earlier it could be executed without such permission.

In accordingly dismissed the objections of the judgment-debtor. The lower appellate Court by judgment dated 8th February, 1966 upheld the view of the trail Court and consequently dismissed the appeal.

(2) It may be pointed out that the decree is for possession of the land. Section 19, as it stood before the amendment and as amended reads as under:

Before Amendment:

'19 (1) Ntowithstanding anything contained in any toher law for the time being in force No person who has obtained any decree or order or the eviction of a tenant from any building in a slum areas shall be entitled to execute such decree or order except with the previous permission in writing of the competent authority.

(2) Any person desiring to obtain the permission referred to in sub-section (1) shall make an application in writing to the competent authority in such form and containing such particulars as may be prescribed.

(3) On receipt of such application the competent authority, after giving an opportunity to the tenant of being heard and after making such summary inquiry into the circumstances of the case as it thinks fit, shall by order in writing either grant such permission or refuse to grant such permission.

(4) Where the competent authority refuses go grant the permission it shall record a brief statement of the reasons for such refusal and furnish a copy thereof to the applicant' After amendment:

'19. Proceedings for eviction of tenants nto to be taken without permission of the competent authority-

(1) Ntowithstanding anything contained in any toher law for the time being in force no person shall, except with the previous permission in writing of the competent authority-

(a) Institute, after the commencement of the Slum Areas (Improvement and Clearance) Amendment Act, 1964 and suit or proceedings for obtaining any decree or order for the eviction of a tenant from any building or land in a slum area: or

(b) Where any decree or order is obtained in any suit or proceeding instituted before such commencement for the eviction of a tenant from any building or land in such area, execute such decree or order.

(2) Every person desiring to obtain the permission referred to in sub-section (1) shall make an application in writing to the competent authority in such form and containing such particulars as may be prescribed.

(3) On receipt of such application, the competent authority, after giving an opportunity to the parties, of being heard and after making such summary inquiry into the circumstances of the case as it things fit, shall by order in writing either grant or refuse to grant such permission.

(4) In granting or refusing to grant the permission under sub-section (3) the competent authority shall take into account the following factors, namely:-

(a) Whether alternative accommodation within the means of the tenant would be available to him of he were evicted:

(b) Whether the eviction is in the interest of improvement and clearance of the slum areas:

(c) such toher factors, if any, as may be prescribed.

(5) Where the competent authority refuses to grant the permission, it shall record a brief statement of the reasons, for such refusal and furnish a copy thereof to the applicant.

(3) The persual of the amended section would show that is became applicable to lands also. Section 19(1)(a) admittedly does nto apply to this case because the suit was instituted before the commencement of the Amendment Act, 1964. The question is whether C1 (b) of sub-section (1) of S.19 applies. The construction of S.19 as amended, came up for consideration before their Lordships of the Supreme court in an unreported judgment in Vijendra Nath v. Jagdish Rai Aggarwal. Civil Appeal No.1314 of 1966, dated 2-12-1966: AIR 1967 Del 600. In that case the owner of a building obtained a decree for eviction of the tenant on December 5, 1960. By this decree the tenant was allowed time to vacate till March 2, 1963. On June 19, 1964, the land-lord obtained the permission for the execution of the decree from the competent Authority under S.19 of the Slum Area (Improvement and Clearance ) Act, 1956. On July 22,1964 the landlord applied for execution of the decree and objections against execution were dismissed on august 7, 1964. The appeal and revision at the instance of the tenant were also dismissed o March 19, 1965 and March 24, 1965 respectively.

The question before the Supreme Court was whether in view of the amended section 19(1)(b) of the said Act a fresh permission was necessary for executing the decree for eviction of the tenant from a building in a slum area. The supreme Court decided that the new S.19 inserted by the Amending Act, did nto affect the pending execution proceedings either expressly or by necessary implication and made no change in the law applicable to the proceedings. Form the decision of the supreme court it would follow that if a decree is obtained before coming into force of the Amending Act and execution application also filed before the said Act S. 19 as amended would nto create any bar to the execution. The suggestion of the learned counsel for the appellant is that S.19(1)(b) applies to all decree, whether obtained before or after the coming into suit or proceeding is instituted before such commencement. The result of accepting this argument would be that the said amended section will divide the decree-holders into two categories (i) those who had applied for execution before the amending Act came into force and (ii) those who applied thereafter. In the case of first category of landlords no permission would be necessary while S.19(1)(b) would operate as a bar to execution in toher cases. That could nto have been contemplated by the Legislature. If on the toher hand, the argument of the learned counsel for the respondent is accepted and it is held that S.19(1)(b) applies only to those cases where decrees or orders are obtained after the commencement of the Amendment Act, 1964, on a suit or proceeding instituted before such commencement, there will nto arise any unfair treatment to the landlords only on the basis of the date of the execution application.

It is an accepted rule that retrospective legislation is looked upon with disfavor because of its tendency to be unjust and suppressive. Ancillary to this rule is antoher rule that no law should be given greater retrospective effect than its language clearly expresses on implies. Bearing these rules in mind I and of the opinion that S. 19 (1) (b) of the said Act does nto affect the rights of the decree holders to execute decrees obtained more than commencement of the said Amendment and Act applies only to decrees or orders obtained thereafter. Since land was included in S.(19) for the first times by the Amendment Act, 1964 the landlord was entitled to execute the decrees without permission of the Competent Authority. In this view this appeal must fail and is dismissed with no order as to costs.

2. Appeal dismissed.


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