Avadh Behari, J.
(1) Once more we arc face to face with the question : whether under the Rent Act the heirs of the tenant have any right to remain in occupation of the premises after the death of the tenant? The Facts
(2) These are the Tacts. One Faqir Chand was the tenant of the first and second floor of property bearing Municipal No. 3393 owned by the respondent landlord Lakshmi Narain Bansal ' He was paying Rs. 44 per month as rent and Rs. 6 on account of water charges. The landlord sent a registered notice dated 25-10-69 to him terminating his tenancy by the end of November 1969. This notice was served on him. The tenant died on 5-12-1969 leaving behind 4 sons, 2 daughters and a widow. In February 1970 the landlord brought a suit for possession against the heirs. The suit was decreed by the learned subordinate judge. From his order dated 29-7-1978, the sons and daughters of the tenant appeal to this Court. The widow had died during the pendency of the suit.
(3) The landlord claimed that Faqir Chand was a statutory tenant. As his tenancy had been terminated he was entitled to the protection of the Rent Act during his life time. After his death the heirs have no right to remain in occupation of his property. On these allegations he claimed a decree for possession.
(4) The sons and daughters of the tenant contested the suit on various grounds. The subordinate judge held that the notice of termination of tenancy was duly served on the tenant and that his sons and daughters have no right to remain in occupation. So he passed a decree for possession.
(5) The question whether the heirs of the tenant are entitled to remain in occupation of the premises after the death of the statutory tenant was the subject matter of two decisions in this court; (1) Mohan Lal Goela v. Sri Kishan : AIR1978Delhi92 and (2) Haji Mohd. Din v. Narain Dass. : AIR1979Delhi186 . On facts this case is indistinguishable from those two decisions. Termination of Tenancy
(6) Counsel for the heirs has mainly raised two contentions in this appeal. In the first place he argued that the tenancy of Faqir Chand was not determined as there was no service of notice to quit on him. It was said that Faqir Chand had met with a serious accident in August 1969 and remained unconscious during the period the landlord alleges to have served the notice of termination on him. The notice was sent to Faqir Chand at his residential address as well as his business premises. The notice dated 25-10-69 was duly served on 27-10-69 at one place and on 29-10-69 at the other. On evidence adduced before the learned judge he came to the conclusion that the tenant had been duly served. He disbelieved the evidence of illness of Faqir Chand. The postman Mahabir Prasad came in the witness box. He affirmed on oath that the himself delivered to Faqir Chand the registered notice and obtained his signatures on the postal receipt. The postal receipts were produced in court (P3 and P4).
(7) I have scanned the evidence in the case. I am of the opinion that the learned judge's conclusion is correct. There was service of notice on Faqir Chand. It appears to me that there is no good reason to disbelieve the testimony of the postman who delivered the notice to Faqir Chand. 8, The tenant sent a reply to the notice (Ex. P-7). dated 28-11-1969 in which he acknowledged the receipt of the notice but denied his liability to vacate the premises. The learned subordinate judge held that this reply did not bear the signatures of Faqir Chand. In this finding I cannot concur. The learned judge held that Faqir Chand had signed the postal receipts Ex. P-3 and Ex. P-4. But signatures on the reply did not appear to him to be that of Faqir Chand. In my opinion the reply was lent by Faqir Chand and was duly signed by him. It is a most natural reply from a tenant. He said, 'I am a tenant in this house since last more than 20 years'. 'I have not built my house'. He admitted the ownership of the landlord but disputed his right to claim eviction. He said that if the landlord 'rushed' to the court he will do so at his risk and responsibility and will be liable for all costs and consequences. The reply was given on the letter head of the firm. Faqir Chand was carrying on business of Sanitary fittings under the name and style of 'Faqir Chand & Sons'. It docs not appear to me that the reply is a forged document. If the landlord were to forge his signatures he would not have written in the manner Ex. P-7 was written. The surrounding circumstances suggest that Faqir Chand received the notice, that he was not seriously ill, that he was in a position to reply to the notice which he actually did on 28-11-1969. I am, thereforee. of opinion that Faqir Chand was duly served, that his tenancy was duly determined and that he .became a statutory tenant on 1-12-1969. He lived for a brief time after the termination of tenancy. He died on 5-12-1969. On question of service of notice I am in agreement with the learned judge that the notice of termination was duty served on the tenant and that his tenancy was terminated by the landlord. Validity of the Amendment
(9) Secondly, counsel argued that the amended definition of the tenant in Section 2(1) of the Delhi Rent Control Act, 1958 was -ultra vires, unconstitutional and invalid and that the heirs of the tenant were not liable to be dispossessed because they had acquired a vested right on the death of Faqir Chand in 1969. Once a right has been acquired, counsel contended, the Amending Act of 1976 could not take away that vested right.
(10) The Delhi Rent Control Act w:is amended by an ordinance in 1975. The ordinance was replaced by the Amending Act of 1976. In the Delhi Rent Control (Amendment) Act, 1976, the definition of the tenant was amended. This amended definition is the subject of controversy in this appeal.
(11) Counsel for the heirs contends that by virtue of the decision in Damadi Lal v. Parshu Ram. : AIR1976SC2229 . where the definition of the tenant in the M.P. Act was the same as in the original Act of 1958 of Delhi, the heirs inherit the tenancy. Under the original definition of. Delhi Act the heirs of the tenant inherited the .tenancy rights and were entitled to remain in occupation of the premises after the death of the tenant, he said. Counsel had a serious quarrel with the definition of the tenant as amended by the Amending Act of 1976 because, according to him, the heirs who could claim a right to remain in the premises were deprived of this protection by the Amending Act of 1976. The Amending Act, counsel contended, was retrospective and thereforee had because it curtailed or abridged the rights of the tenant. This point was not taken before the learned subordinate judge. - But we have allowed counsel for the appellants to raise this question before us as it is a pure question of law. To appreciate the point in controversy, it is necessary to refer to the history of the legislation and see how far the amendment is valid or invalid. Historical setting:
(12) 'THE Court' said Sir George Jessel M.R., 'is not to be oblivious of the history of law and legislation. Although the Court is not at liberty to construe an Act of Parliament by the motives which influenced the legislation, yet when the history of law and legislation tell the Court, and previous judgments tell this present Court, what the object of the legislature was, the Court is to see whether the terms of the section are such as fairly to carry out that object and no other, and to read that section with a view to finding out what it means, and not with a view to extending it to something that was not intended.' [Holme v. Gay (1877)5 Ch. D 901].
(13) In the interpretation of Statutes, the interpreter may call to his aid all those external or historical facts which arc necessary for comprehension of the subject matter and may also consider whether a statute was intended to alter the law or leave it exactly where' it stood before. [Re: A. Debtor (1903) 1 Kb 705 per Cozens Hady LJ.]
(14) The history of the legislation is an important aid in interpreting 'the statute. In reading the Amending Act of 1976 one is entitled to look through the spectacles of 'Anand Niwas Pvt.. Ltd. v. Anandji Kalyanji', : 4SCR892 . It would be surprising and hardly credible that the Parliament was not aware of the law as laid down by the Supreme Court in 'Anand Niwas' which held the field on that date and was followed in J. C. Chatterjee v. Shri Kishan Tandon Air 1977 Sc 2526 (6). The Court will take judicial notice of the previous state of the law. [Escoigne Properties Ltd. v. I.L.C. (1958) Ac 549] (7). It will be the duly of a Court of construction to consider the state of the law at the time the Amending Act was passed.
(15) In the statement of Objects and Reasons it is said :
'THERE has been a persistent demand for amendments. to Delhi Rent Control Act, 1958 with a view to conferring a right to tenancy on certain heirs [successors of a deceased' statutory tenant so that they may be protected from eviction by landlord.'
(Published in the Gazette of India Part Ii Section 2 No. 12 dated January, 1976 P. 403 410).
(16) The original Act of 1958 was amended by the Delhi Rent Control (Amendment) Ordinance No. 24 of 1975. It came into force on 1-12-1975. It was replaced by the Amending Act, namely, Delhi Rent Control (Amendment) Act, 1976. The Amending Act was passed with a view to ensuring to some of the survivors homestead rights to the exclusion of others. It sought to preserve the rights of some of those related by consanguinity. In Anand Niwas the concept of statutory tenancy was expounded. It was merely a personal right of occupation. The statutory tenant, it was said, had no estate or property as tenant at all, but has a purely personal right to retain possession of the property. By virtue of the provisions of the Rent Act he retains possession of the premises, notwithstanding the determination of his contractual tenancy. He is not a tenant at all in the sense that he has an estate. The Amending Act is a conferring Act. It conferred 'right of tenancy on the heirs/successors of a deceased statutory tenant so that they may be protected from eviction by landlord'. It was curative Act. A remedial measure. The landlords were evicting heirs/successors of the statutory tenant after his death in large numbers. The legislature conferred a right of inheritance of tenancy on certain heirs for a limited duration. The line of succession was defined. We were given a new definition of tenant which comprehended certain .heirs. They were given right of occupation for a certain period.
(17) Counsel for the appellants says that the Amending Act is invalid, arbitrary, unreasonable and ultra virus the Constitution. He referred us to Articles 14, 16, 19, 31 and 300-A of the Constitution. He called it unfair, unjust and unreasonable by applying the test laid down in Menka Gandhi v. Union of India : 2SCR621 .
(18) The main line of counsel's argument is that as laid down in Damadi Lal v. Parshuran, : AIR1976SC2229 the right of tenancy is heritable and thereforee the Amending Act interferes with and divests vested right of heirs and successors. Founding himself on Damadi Lal counsel says 'hat the amendment is retrospective and no legislation can take away or abridge vested rights of the heirs and successors of the tenant. A vested right is properly and a right which is protected from legislative interference. Protection from eviction is a valuable right. Protection is property. So he argued that the protection once given by the old law in 1958 cannot be taken away by a subsequent amendment in 1976.
(19) In my opinion this argument is based on a misapprehension. The statutory tenant under the Rent Act of 1958 had a. personal previlege. He did not have a right in tenancy which he could transmit to his heirs. This was what Anand Niwas decided in 1965. The Amending Act of 1976 was passed to cure defects in prior law. It did not abridge or curtail the rights of statutory tenant. It enlarged them. On his ' heirs/successors the right of tenancy was conferred. They were protected from eviction. The Amending Act is a curative Act. It does not divest rights vested under the original Act of 1958.
(20) This is the true intent of the maker of the Amending Act. No part of the definition of the tenant in the Amending Act is penned obscurely. The legislature has elucidated its intention. There is no obscurity in the intention of the legislature.
(21) If we look at the state of the law prior to the passing of the Amending Act it is clear that the heirs [successors of a statutory tenant had no heritable rights in tenancy. They could be evicted on his death. A merciful legislature sought to remedy this state of affairs. It gave protection, albeit limited, to the widow and the dependents of the tenant.
(22) Anand Niwas was then the law of the land. Not Damadi Lal. The Amending Act was passed in the historical background of Anand Niwas and J. C. Chaterjee. We are sure to be misled if we look through the eyes of Damadi Lal. The Amending Ordinance was passed before Damadi Lal was decided. Damadi Lal was in the womb of the future. The legislature knew nothing about it. It was yet to come. All that the legislature knew was that Anand Niwas had declared that the heirs/successors of a statutory tenant shall not inherit the home. Only the statutory tenant shall live in the tenanted premises and on his death the tenancy will end.
(23) Damadi Lal was decided on 7-5-1976. It is a case on M.P. Act. It has no application to Delhi Rent Control Act. We have to interpret the Amending Act of 1976. By it we are governed. Not by Damadi Lal. The framer of the Amending Act leaves us in no doubt that he was aware of Anand Niwas and was trying to improve the lot of the heirs] successors of the deceased statutory tenant. The problem is of construction of Parliamentary language and not .the problem of construction of the judgments of courts.
(24) A certain amount of common sense must be applied in construing statutes. If we test the Amending Act on the touchstone of Damadi Lal we make a noneense of the amendment. The language of the legislature is plain. Again and again judges have insisted that regard must be had to the state of law as it existed on the date of amendment. So we have regard to the prior legislation and the judicial interpretation thereof. We cannot neglect the past. The past clings to the future and cries aloud for relief. Damadi Lal was a voice in the future. It is foreign to the object of the Amending Act and beyond its scope. The truth is that it was beyond the ken of the legislatures it is true that Damadi Lal has brought us in a debatable land. It has opened a very wide door. It raised hopes in the minds of the tenants. But what we must remember is that it was Anand Niwas which dominated the landscape when the Amending Act was passed. And Anand Niwas and Damadi Lal are two clean different cases. A Remedial Act:
(25) APPELLANTS' counsel maintained this singular proposition that the Amending Act is ultra virus because of the law laid down in Damadi Lal. This is a fallacious reasoning. In the statement of Objects and Reasons the grievance is recited that heirs' successors are being evicted by landlords. It recites that there is a persistent demand for change in the law. So to redress this grievance the existing law was amended. The nature of the grievance remedied by the Amending Act must be gathered from section 2(b).
(26) The Amending Act is a remedial Act. A remedial statute is one which remedies a defect in the pre-existing law. Its purpose is to keep pace with the view of society. It brings the law in harmony with new ideas or conception of justice. The Amending Act in question is a welfare legislation enacted for the benefit of tenants.
(27) Remedial Acts are sub-divided by Blackstone into 'enlarging' and 'restraining' Acts. The Amending Act is an 'enlarging' Act. It widens the law where it was too strict or narrow. It does not take away or cut down rights. It is a center Act. The rights of the tenant were increased. The same statute may be 'enlarging' as to one set of persons, 'restraining' to others. The Amending Act enlarges the rights and interests of the tenant and restricted those of the landlord. This is inevitable when the legislature is interfering with the freedom of contract and regulating the rights of the landlord and tenant.
(28) The Amending Act is a happy example of a remedial Act The legislature realised that the statutory tenant had only a life interest in the tenanted premises. His heirs and successors had no protection. So to remedy the evil of the eviction by the landlords the legislature gave protection to the tenant's heirs. The Amending Act was making certain heirs of the tenant retrospectively the protected tenant, although at the time of the passing of the Amending Act, they were not entitled to remain in possession of the premises.
(29) The dominant purpose in construing a statute is to ascertain the intention of the lsgislature. A valuable aid can be found in the history of the legislation and the background of circumstances so far as they can be justly be considered to throw light upon the subject. What is the evil to which the rent Act of 1958 had given rise, and what was the remedy provided by the Amending Act of 1976 What is the evil which the Amending Act wanted to remedy Heydon's case (1584) 3 Co. Rep. 7a, tells us that the surrounding circumstances which led to the passing of the Act must be considered. 'The office of all the judges is always to make such construction as shall suppress the mischief and advance the remedy.' (Heydon's case). Now what was the state of things existing at the time the Amending Act, 1976, was passed The landlords were evicting heirs[successors of the statutory tenant on an unprecedented scale. This had gone on for 17 long years. The legislature wanted to remedy this evil in the existing law. So it passed the Amending Act. Those were the circumstances with reference to which it amended the definition of the tenant. The object was to protect the heirs [successors. The legislature clearly had this object in view. This appears from the circumstances, the state of the law, and the words which the legislature has used in giving a retrospective protection to the heirs/successors of the statutory tenant which had been denied to them all these years.
(30) Every Act must be considered with reference to the state of the law when it came into operation. Every Act is made either for the purpose of making a change in the law or for the purpose of better declaring the law. The Amending Act was altering the law with a view to avoid manifest injustice to heirs] successors of the tenant.
(31) In Young & Company v. Mayor etc., of Lamington (1883) 8 AC 517(9), 526 Lord Blackburn, said the Courts 'ought in general, in construing an Act of Parliament, to assume that the legislature knows the existing state of the law.' From this assumption springs the practice of the courts to examine the pre-existing law and judicial interpretation thereof. The legal history of the Amending Act shows that it was passed for the benefit of the heirs/successors. Beyond the life interest of the statutory tenant a beneficent legislature was extending its umbrella of protection now to heirs] successors of the statutory tenant.
(32) The law as it stood when the Amending Act was passed was unsatisfactory. The old law did not take note of the hardship which heirs I successors faced on the death of the statutory tenant. There was a general dissatisfaction with the provisions of the original Act. There was no security of tenure. All that the law did was to confer personal security on the tenant in respect of his home. For the heirs there was none. They were being turned out of the home on the tenant's death. This was a defect which existed in the original Act. This defect the legislature intended to cure by the Amending Act. The Amending Act changed the law. The charge introduced was of substance. A new right, though limited, was created in the tenant inasmuch as some of his heirs were protected. The existing right of the landlords to evict heirs protanto was withdrawn. The state of the law at the date of the passing of the Act allowed wholesale eviction of the tenant's heirs. There was an outcry against the law as it then stood. The Amending Act ameliorated their position. In a word the legislature altered the law as laid down in Anand Niwas. It mitigated the rigour of a harsh law which gave neither protection nor inheritance to heirs/successors.
(33) On a proper consideration of (i) the state of the law which the Amending Act proposed and purported to alter; (ii) the mischief of wholesale eviction which existed and which it was intended to remedy; and (iii) the nature of the remedy provided in the Amending Act by giving a retrospective operation to the definition of the tenant so as to include heir/successors, I have come to the conclusion that the Amending Act 1976 is neither ultra virus nor unreasonable nor unjust. Amendatory Acts Crawford says:
'THE amended statute should also be construed as if it had been originally passed in its amended form, since the amendment becomes a part of the original enactment'. (Statutory Construction 3rd Ed. Vol. 3 P. 617 619). [See Bal Mukand v. Prithi Raj Ganesh Dass, : AIR1951Pat333 ].'
(34) He says that since an amendment becomes part of the statute, both must be construed together as if they constituted one enactment. These provisions should be harmonised, if possible, but where there is irreconcilable conflict the provisions of the amendment Act must prevail over those of the original statute on the theory that the former constitutes the last expression of the will of the legislature.
'INDEED the mere fact that the Legislature enacts an amendment is of itself an indication of an intention, as general rule, to alter the pre-existing law.'
(35) In construing the amended statute, the courts should consider the change sought to be effected by the legislature. 'In short, regard must be had to the law as it was before being amended, and the amendatory Act should be construed to repress the evils under the old law and to advance the remedy provided by the amendment.' (Crawford), Presumption Of Change Sutherland says:
'BECAUSE it is defined as an Act that changes the existing statute, the courts have declared, that the mere fact that the legislature enacts an amendment indicates that it thereby intended to change the original Act by creating a new right and withdrawing an existing one. thereforee any material change in the language of the original Act is presumed to indicate a change in the rights.'
(Statutory Construction Vol. 1 P. 412). In interpreting an amendment Act,
'THERE is a presumption of change in legal rights. This is a rule peculiar to amendments and other Acts purporting to change the existing statutory laws.'
(Sutherland Vol. I P. 414).
(36) In the Amending Act, 1976, the legislature has expressed itself explicitly and unequivocally that it was modifying the concept of statutory tenant by conferring rights on certain heirs and successors to remain in occupation after the death of the statutory tenant. So we know what-was the pre-existing law which it intended to change. We know what was in the 'legislative mind' when it passed the original Act 1958 and what was in its mind when it passed the Amending Act, 1976. The Amending Act illumines the past as well as the preseat.
(37) In their task of interpreting and applying a statute, judges have to be conscious that in the end the statute is the master and not the servant of the judgment. (Devlin The Judge P-14). So the Amending Act is a clear indication of the intention of the legislature. When the Amending Act came in Damadi Lal went out. Such is the course of the Delhi Rent Control Act. Such is its legislative history. In the historical background the Amending Act has to be viewed. The distinction between the M.P. Act and the Delhi Rent Act is that there was no amendment in M.P. such we had in 1976 in Delhi.
(38) It is a misreading of the amended definition of the 'tenant' in Section 2(b) to say that as it is the retrospective it was taking away a vested right. This was the principal ground of challenge before us. For this we were constantly referred to Damadi Lal. But Damadi Lal has no application to Delhi as a contrary intention has been expressed by the legislature in the Amending Act. If we follow Damadi Lal we will be disregarding the Legislative intent. Damadi Lal will become the master and the statute the servant of that judgment. We will be going against the command of the legislature. The Amending Act is the latest expression of the will of the legislature.
(39) The theory of the Rent Act is that it confers a benefit upon a tenant. After the tenancy granted by his landlord has come to an end, he is entitled to remain in possession as a 'statutory tenant'. He cannot be evicted from the premises except by an order of the Court made upon certain specified grounds. This is the protection of Act. To begin with, the tenant holds under a contractual tenancy, and has no need to call upon the Rent Act for assistance. His lease is a sufficient protection. A statutory tenancy comes into existence when a contractual tenant retains possession after the contract has been determined. The Rent Act is for the protection of those who have been contractual tenants.
(40) The object of the Rent Act is to regulate the rights and liabilities of the landlord and the tenant. The Act is for the protection of the tenants and not an Act for the penalising of landlords. The legislature is trying to maintain a balance between the conflicting claims and is giving such rights to the landlord and the tenant as are essential for the welfare of the society. Admissibility of Objects and Reasons
(41) Can the Court refer to the Statement of Objects and Reasons and use it as an aid to construction A court cannot construe a provision of the statute on the basis of the statement of objects and reasons. But it can have recourse to it 'only for the purpose of ascertaining the condition prevailing at the time of the Bill and the purpose for which the amendment was made.' (See Varjravelu v. Special Collector, : 1SCR614 per Subba Rao J.). The unanimity of opinion seems to be that a statement of objections and reasons cannot be referred to for interpretation except to know the circumstances prevailing at the time at which the statute was enacted. In other words, only to ascertain that was the mischief to remedy which the statute was enacted [See A. C. Sharma v. Delhi Admn. : 1973CriLJ902 ]. In Collector of Customs v. Sampathu Chetty, : 1983ECR2198D(SC) Ayyanger J.. quoted the observations of Patanjali Shastri J in State of Madras v. V. G. Row Air 1957 Sc 196(13) 200 that 'the extent and urgency of the evil sought to be remedied and 'the prevailing conditions at the time' should also enter judicial verdict'.
(42) I am referring to the statement of the objects and reasons for the limited purpose of understanding the background, the antecedent state of affairs, the surrounding circumstances in elation to the statute and the evil which the statute sought to remedy. The cases show that this reference is permissible. [See: Amarnath v. State of Haryana, : 1977CriLJ1891 , Organo Chemical Industries v. Union of India, Air 1979 Sc 1803(1816-m7)(15)l. The statement of objects and reasons is not construction. It is a legislative paraphase.
(43) This case is a good example of attention which ought to be said to the historical setting of the legislation. Damadi Lal delivered in 1976 says that the tenancy, whether contractual or statutory is heritable. But the Amending Act of 1976 does not says this. A judicial pronouncement given subsequently on another Act cannot control the meaning of the legislation passed earlier in a different state. The words of the Amending Act cannot be interpreted in the light of a case decided under a different Act. Statute law, like the case law, grows through, case by case, inclusion and exclusion. When demand for legislative regulation arises, the legislature looks at the past history. 'The 'new' legislation usually 'ties' to past experience and prior enactment'. (Sutherland Statutory Construction Vol. 2 P. 323).
(44) The safest starting point for interpretation is the stature itself. But it is by no means the safest stopping point. Before the true meaning of the statute can be determined consideration must be given to the problem in society to which the legislature addressed itself, prior legislative consideration of the problem, the legislative history of the statute under litigation and to the operation and administration of the statute prior to litigation. (Sutherland Vol. 2 P. 321).
(45) What about the future? If we interpret the Amending Act in the light of Damadi Lal on the basis of the declaratory theory that Damadi Lal was and has always been the law this will be naked usurpation of the legislative function under the thin guise of interpretation. And judicial usurpation of legislative power is not a good thing. The statute as read by the Court may produce a result which is satisfactory to the Court. But is does not necessarily mean that as read it reflects the legislative intent. Intention Of The Legislature
(46) Legislative intent is a slippery phase, no doubt, but the task to ascertain the 'legislative intent' is not a hopeless one. 'Legislative intent is not a collection of subjective wishes, hopes and prejudices of individuals sitting in the legislature but rather the objective foot prints left on the trial of legislative enactment.' (Sutherland): It can be discovered only by the factual inquiry into the history of the enactment of the statute, the background circumstances which brought the problem before the legislature, the prior state of case-law, and the dissatisfaction produced by its administration. To pursue this course means work and hard work. But if it is pursued it is seldom that the pursuit is fruitless. An honestly conducted inquiry into these considerations will fail but infrequently to disclose to the inquirer the purpose and intent of the legislature and will clarify the applicability of the statute to the question in litigation.
(47) On the whole case my conclusion is that we must read the Amending Act by the light which the state of the law at the time it was passed throws upon it. The- contemporary exposition of the law was Anand Niwas.
(48) If any case sheds some light upon the meaning of enacted law it is Anand Niwas and not Damadi Lal. We should see through the spectacles of Anand Niwas and eschew the temptation to see through the sees of Damadi Lal. I very heartily concur in the language of Sutherland that the 'new' legislation usually 'ties' to past experience and prior enactment.
(49) The law to be considered here is the result of amendment. A consideration of the old law with the new reveals that the legislative aim and purpose was to enlarge the right of the tenant and to give proctection, albeit limited, to certain heirs and successors.
(50) We must look at the historical background of the Amending Act. The historical evolution of the law of landlord and tenant shows that after the second World War housing problem loomed large on the horizen. The Rent Acts have throughout their history constituted an interference with contract and property rights for a specific purpose the redress of the balance of advantage enjoyed in a world of housing shortage by the landlords over those who have to rent their houses. Horford Investments v. Lambert (1976) 1 Ch. 39(52)(16) per Scarman LJ.).
(51) The argument that Damadi Lal should be followed goes against the grain, the genesis and evolution of the Amending Act. The Amending Act has ruled out the application of Damadi Lal so far as Delhi is concerned.
(52) Whether the legislature has improved the tenant's lot by enacting the Amending Act or has harmed his interest by passing it and thereby excluding the applicability of Damadi Lal are questions that do not arise for our consideration. The answer is that the will of the legislature is supreme. If the Amending Act had not been brought on the statute book and Damadi Lal had applied things would have been entirely different. The truth is that Anand Niwas declared that the. right of tenancy was personal to the tenant and interred with his bones on his death. Damadi Lal denies this legal position and holds that tenancy right survives and is capable of being inherited by heirs of the tenant. The two decisions are vastly different.
(53) I cannot accept the argument of appellants' counsel that the Amending Act is ultra virus because it takes away the citizen's fundamental right to life in which be included home and the right to roof over one's head. He urged that such construction should be placed on the old Act of 1958 as to create heritable tenancies, to protect the home of the State's citizen, to insure living quarters to all, and to save the society from the danger of citizens becoming homeless said roofless. We were referred to the European Convention of Human Rights and the Directive Principles of State Policy.
(54) Home for all is indeed a desire able objective. The real fundamental object of a Rent Act is to protect a tenant from being turned out of his home, and to keep a roof over his head. How far this object is realised depends on the handiwork of the legislature. In the end we are all subservient to the will of the legislature. Why it is out of our reach to attain the objective is for the legislature to answer.
(55) Counsel invited us to give a liberal construction in the light of Damadi Lal. But I cannot subscribe to this view. A liberal construction does not mean a construction which disregards plain wards, or one which is contrary to the legislative intent. Nor can I construe the statute to protect those not intended to be protected. It is true that a court of construction will refuse to allow tenancy rights vested in a person to be diminished by an alteration of the law. The Amending Act, as I have said, is an 'enlarging' Act. The appellants' counsel fays that it is a 'restraining' Act. He invited us to declare it ultra vires. I am glad that I unhesitatingly decline this invitation.
(56) I took this stand in Mohan Lal Goela v. Sri Kishan : AIR1978Delhi92 , I have now amplified my views. A full bench of this court in Haji Mohammad Din v. Narain Dass, : AIR1979Delhi186 (Deshpande, Cj and H. L. Anand & M. L. Jain, JJ.) approved Mohan Lal Goela in so far as this part of the case is concerned. Against a sea of adverse authority I cannot accept that the Amending Act is ultra virus or unconstitutional.
(57) The legislative intention is to be collected from the context from the occasion and necessity of the law; from the. mischief felt and the remedy in view. The amended definition of the tenant has several important features. Its postulate is the statutory tenant. He is defined as 'any person continuing in possession after the termination of the tenancy', in the definition in S. 2(1). Then the definition tells us what is to happen 'in the event of the death of the person continuing in possession after the termination of the tenancy'. An 'order of succession' is laid down. The spouse, son and daughter, parents, widow of the pre-deceased son, are included in the definition of the tenant. They succeed but not simultaneously . But they must be 'ordinarily living in the premises' with the statutory tenant 'as a member or members of his family up to the date of his death'. The result is that the successors 'acquire by succession, the right to continue in possession' after the death of the statutory tenant. If' the successor was 'not financially dependent on the deceased person on the date of his death' he has 'a limited right of one year' to continue in possession from the date of death of the statutory tenant. If the successor was 'financially dependent' he or she will have a right to continue for his or her life time. One successor succeeds to the exclusion of the other in the specified categories. The higher category excludes the lower. 'The right of every successor to continue in possession' after the death of the statutory tenant is 'personal to him and shall not, on the death of such successor, devolve on any of his heirs'. So the 'personal' right of the tenant is enlarged to include the personal right of his successor to continue in possession 'subject to the order of succession and conditions specified?'
(58) In every word of this definition the statutory tenant as expounded in Anand Niwas comes into the picture again and again. In truth he is the foundation on which the definition is built. He was the main concern of the legislature. The termination of his tenancy and the plight of his successors who were being turned out on his death created a situation to which the legislature was addressing itesif. The statutory tenant is the warp and the woof of the enacted definition. Hitherto he had merely a personal right. This was enlarged into a right of succession. Tenancy devolves on his heirs. It is a property. There is an order of succession to it. The deceased tenant is the propositus. From him descent is to be traced so as to as certain who is to in here the tenancy. The. line. of succession is based' on the principle of propinquity. The legislature expanded the definition and included certain successors of the deceased tenant in the definition of the. tenant. The object was to give protection to them. To give them a right ''to continue in possession'. .The amendment guarantees to the successor 'the right to continue, in posses.-iion after the termination of -the tenancy' of his deceased predecessor 'subject to- the order of succession and the conditions specified'.
(59) This definition in all its aspects, is a remedial measures. Counsel for the appellants criticised the-definition as harsh and repugnant to Damadi Lal. I do not agree. The remedy of a harsh law is not in interpretation but in amendment or repeal. The function of judges is to declare the law and not legislate. If we interpret the amendment definition in Section 2(1) in the .way Damadi Lal has done in the case of M. P. Act We will be legislating. That will practically invest the judiciary with the law-making power. Judges must constantly guard themselves against this danger of usurping the legislative power. They should remember the words of Lord Reid: 'where Parliament fears to tread it is not for the Court to rush in'.' [Shaw v. D. P. P. (1962) Ac 220.] (17). Conclusion .
(60) We were referred to a large number of decisions of the Supreme Court of the United States and India and of the High Court of Australia, I do not think any useful purpose will be served by referring to them. The principal argument based on these decisions I have noticed and rejected. There can be no doubt that if Damadi Lal had been decided prior to the amendment of 1976 things would have been entirely different. But on this I need not express any concluded opinion as the question is purely hypothetical. T hold that Damadi Lal is inapplicable, because of the definition of the tenant in the Amending Act 1976. This is the end of the .matter.. The Amending Act is valid. Damadi Lal is of no help. The amendment was enlarging the rights of the tenant and not restricting them. Enlargement of rights is a boon. Not a curse.
(61) The amendment of 1976 is the Bab of the controversy.. The whole case turns on it. It is decisive. The history of the- law shows that Delhi is different from M, P. In M. P. there was no amendment of the law such as was in Delhi in 1975. The Amending Act was a conferring or enlarging: Act. The- attack on its validity on the ground of its retroactivity must fail.
(62) The Amending Act is the index of the legislative intent. It is the key to the 'legislative mind'. The- amendment is a part of the original Act. So this was and has always been. the law in Delhi. The statute is the master and not the.servant of Damadi Lal.
(63) The striking feature of the amendment M. that it is based on the means test. Financial dependence seems to have moved the legislature. If the successor was 'financially dependent' on the tenant and was ordinarily living, with him as a.member of his family he will be entitled to protection from eviction. But if he is financially independent the legislature thought he should have a limited protection for one year only because he can jolly well look for another accommodation. To the weaker and the disadvantaged tenant the Parliament was prepared to give protection but not to the affluent and the moneyed.
(64) Damadi Lal has always been the law, it wax argued. On the declaratory theory this may be true. But it is law on the M. P. Act which it seeks to construe. Not on Delhi Rent Act. It is dangerous in the extreme to apply it to different statute which indicates a different legislative intention.
(65) An ounce of history is worth more than a pound of theory, Justice Holmes has said. If ever there was a case which illustrate this more than any other it is this.
(66) For these reasons I would dismiss the appeal but leave the parties to bear their own costs. G. C. Jain, J. I agree.