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Vanand Savji Tapu Vs. Bai Jaikunver Durlabhji - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Judge
Reported in(1973)14GLR410
AppellantVanand Savji Tapu
RespondentBai Jaikunver Durlabhji
Cases Referred(Bhagwandas Dayalji v. Bhanushankar
Excerpt:
- - 1. this letters patent appeal raises an interesting question of law as to the effect of repeal of saurashtra rent control act, 1951, (hereinafter referred to as the saurashtra rent act) on a suit filed by a landlord against a tenant in respect of premises exempt from the applicability of the saurashtra rent act by reason of section 4(2) of that act. 4. (2) this act shall not apply to new premises erected and let for the first time on or after the 1st january, 1951. though there was dispute at one stage between the parties whether the premises which formed the subject matter of controversy were new premises erected and let for the first time on or after 1st january 1951, the concurrent finding of fact reached by the district court as well as the trial court was that the premises.....p.n. bhagwati, c.j.1. this letters patent appeal raises an interesting question of law as to the effect of repeal of saurashtra rent control act, 1951, (hereinafter referred to as the saurashtra rent act) on a suit filed by a landlord against a tenant in respect of premises exempt from the applicability of the saurashtra rent act by reason of section 4(2) of that act. the facts giving rise to the appeal are few and may be briefly stated as follows.2. the plaintiff filed a suit against the defendant to recover possession of certain premises let to the defendant. the premises were situate in bagasara which was formerly part of saurashtra. the case of the plaintiff was that the premises were new premises erected and let for the first time after 1st january 1951 and, therefore, by reason of.....
Judgment:

P.N. Bhagwati, C.J.

1. This Letters Patent Appeal raises an interesting question of law as to the effect of repeal of Saurashtra Rent Control Act, 1951, (hereinafter referred to as the Saurashtra Rent Act) on a suit filed by a landlord against a tenant in respect of premises exempt from the applicability of the Saurashtra Rent Act by reason of Section 4(2) of that Act. The facts giving rise to the appeal are few and may be briefly stated as follows.

2. The plaintiff filed a suit against the defendant to recover possession of certain premises let to the defendant. The premises were situate in Bagasara which was formerly part of Saurashtra. The case of the plaintiff was that the premises were new premises erected and let for the first time after 1st January 1951 and, therefore, by reason of the exemption contained in Section 4(2), the Saurashtra Rent Act had no application to the premises and the plaintiff was entitled to recover possession of the premises under the ordinary law of landlord and tenant. The plaintiff also pleaded in the alternative that, in any event, even if the Saurashtra Rent Act were applicable to the premises, he reasonably and bona fide required the premises for occupation by himself and the defendant was, therefore, liable to hand over possession of the premises to him. The defendant resisted the suit and the defence taken by him was that the premises were not new premises erected and let for the first time after 1st January 1951 so as to fall within the exempting provision contained in Section 4(2) and the Saurashtra Rent Act was, therefore, applicable to the premises and since the plaintiff did not reasonably and bona fide require the premises for his personal occupation, no decree for possession could be passed against the defendant. Now during the pendency of the suit the State Legislature enacted Gujarat Act 57 of 1963 which came into force on 31st December 1963. Gujarat Act 57 of 1963 extended the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, (hereinafter referred to as the Bombay Rent Act) to the Saurashtra and Kutch areas of the State of Gujarat and introduced Section 51 in the Bombay Rent Act repealing, inter alia, the Saurashtra Rent Act. The result was that from and after 31st December 1963 the Saurashtra Rent Act ceased to be applicable to the Saurashtra area of the State of Gujarat and its place was taken by the Bombay Rent Act. Having regard to this change in the law which took place during the pendency of the suit, the defendant filed a supplemental written statement contending that even if the premises were exempt from the applicability of the Saurashtra Rent Act by reason of Section 4(2) of that Act, such exemption became meaningless and futile on the repeal of the Saurashatra Rent Act and the Bombay Rent Act being then made applicable, the defendant was entitled to claim the protection of Section 12(1) of the Bombay Rent Act, since at the date of the suit he was ready and willing to pay the standard rent of the premises and to observe and perform the other conditions of the tenancy. On these pleadings, several issues were raised by the learned trial Judge, the main issues being whether the premises were exempt from the applicability of the Saurashtra Rent Act and if they were, whether such exemption came to an end on the repeal of the Saurashtra Rent Act and the defendant was entitled to the protection of Section 12(1) of the Bombay Rent Act. The learned trial Judge came to the conclusion that the premises were new premises erected and let for the first time after 1st January 1951 and, therefore, by reason of Section 4(2), they were exempt from the applicability of the Saurashtra Rent Act and though the Saurashtra Rent Act was repealed, the saving provision enacted in Section 51 of the Bombay Rent' Act continued the Saurashtra Rent Act together with the exempting provision in Section 4(2) for the purpose of decision of the suit and the suit was, therefore, governed by the ordinary law of landlord and tenant and the defendant was not entitled to the protection of Section 12(1) of the Bombay Rent Act. The learned trial Judge accordingly passed a decree for eviction against the defendant.

3. The defendant being aggrieved by the decree for eviction passed against him preferred an appeal to the District Court, Amreli. The learned District Judge disagreed with the view taken by the learned trial Judge and held that though the premises were new premises erected and let for the first time after 1st January 1951 and were, therefore, exempt from the operation of the Saurashtra Rent Act by reason of Section 4(2), the Bombay Rent Act became applicable to the premises from 31st December 1963 and the defendant was entitled to the benefit of the protection under Section 12(1) of the Bombay Rent Act, but since the claim of the plaintiff based on the ground of bona fide and reasonable requirement for personal occupation had not been investigated by the trial Court, the learned District Judge remanded the suit to the trial Court for deciding the issue arising under Section 13(1)(g) and Section 13(2) of the Bombay Rent Act and finally disposing of the suit on those issues.

4. The plaintiff thereupon preferred an appeal to this Court against the order of remand made by the learned District Judge, Mr. N. C. Vakil, who heard the appeal, took the view that the exemption under Section 4(2) of the Saurashtra Rent Act was a privilege accrued to the plaintiff under the Saurashtra Rent Act and the suit filed by the plaintiff for recovery of possession of the premises against the defendant was a suit in respect of that privilege and, therefore, by reason of Sub-clauses (ii) and (iv) of Clause (1) and Clause (2) of the first proviso to Section 51 of the Bombay Rent Act, the suit was liable to be continued as if the Saurashtra Rent Act had not been repealed and as a necessary consequence the Bombay Rent Act had not become applicable and since along with the Saurashtra Rent Act the exemption also continued to be in force, the rights and obligations of the parties in the suit were liable to be determined according to the ordinary law of landlord and tenant and the defendant was not entitled to claim the protection of Section 12(1) of the Bombay Rent Act. The learned Judge found support for this view in an unreported decision given by J. B. Mehta J., on 11th October 1968 in Second Appeal No. 328 of 1962 (Dr. Chandrakant Shastri v. Shamji Govindji). On this view, the learned Judge set aside the order of remand made by the learned District Judge and confirmed the decree for eviction passed by the learned trial Judge. The defendant was obviously aggrieved by this decision given by the learned Judge and he, therefore, preferred the present appeal under clause 15 of the Letters Patent.

5. Now before we proceed to examine the arguments advanced on behalf of the parties it would be convenient at this stage to refer to the relevant provisions of law bearing on the controversy between the parties. The Saurashtra Rent Act came into force from 26th July 1951. Section 2 defined the extent of territorial jurisdiction of the Saurashtra Rent Act. Sub-section (1) of Section 2 provided that Part I and III of the Saurashtra Rent Act shall extend to the whole of Saurashtra and Sub-section (2) of Section 2 declared that Part II shall extend to the areas comprising the cities and towns specified in the Schedule annexed to the Saurashtra Rent Act. Section 4 then provided for certain exemptions from the applicability of the Saurashtra Rent Act. We are concerned only with Sub-section (2) of Section 4 and we need not, therefore, refer to the other sub-sections. Sub-section (2) of Section 4 provided:

4. (2) This Act shall not apply to new premises erected and let for the first time on or after the 1st January, 1951.

Though there was dispute at one stage between the parties whether the premises which formed the subject matter of controversy were new premises erected and let for the first time on or after 1st January 1951, the concurrent finding of fact reached by the District Court as well as the trial Court was that the premises were new premises erected and let for the first time after 1st January 1951 within the meaning of Section 4(2) and we must, therefore, proceed on the basis that the premises were covered by the exemption contained in Section 4(2) and the Saurashtra Rent Act was not applicable to the premises. This was the indisputable position at the date when the suit was instituted by the plaintiff and if nothing further had transpired, there can be no doubt that the suit would have been liable to be decided according to the ordinary law of landlord and tenant and the plaintiff would have succeeded in obtaining a decree for possession against the defendant, since according to the ordinary law of landlord and tenant the defendant had no defence to the suit. But an event happened which radically altered the rights and liabilities of the parties qua the premises. The State Legislature enacted Gujarat Act 57 of 1963 and this Act came into force from 31st December 1963. It introduced Section 51 in the Bombay Rent Act and extended the provisions of the Bombay Rent Act to the Saurashtra and Kutch areas of the State of Gujarat. Section 51 repealed inter alia the Saurashtra Rent Act and enacted a saving provision which was in the following terms:

51. The Saurashtra Rent Control Act, 1951 and the Bombay Rents and Lodging House Rates Control Act, 1947 as extended to the Kutch area of the State of Gujarat by the Government of India, Ministry of States, Notification No. 215-J, dated the 19th September, 1951 are hereby repealed :- Provided that:

(1) such repeal shall not:

(i) affect the previous operation of any law so repealed or anything duly done or suffered thereunder;

(ii) affect any right, privilege, obligation or liability acquired, accrued or incurred under any law so repealed;

(iii) affect any penalty, forfeiture, or punishment incurred in respect of any offence committed against any law so repealed; or

(iv) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and

(2) any such investigation, legal proceeding or remedy may be continued, instituted or enforced and any such penalty, forfeiture and punishment, may be imposed, as if the aforesaid law had not been repealed, or

xxx xxx xxx xxx

We have reproduced Section 51 in extenso because the determination of the controversy between the parties turns primarily on the true meaning and effect of the saving provision enacted in that section.

6. Having set out the relevant provisions of law, we may now proceed to state the rival contentions of the parties. The plaintiff put forward a two-fold contention in support of the judgment of Mr. Justice N.K. Vakil. Though before Mr. Justice N. K. Vakil, no reference was made to Sub-clause (i) of Clause (1) of the first proviso to Section 51, the plaintiff, in the course of the arguments before us, strongly relied on that sub-clause and contended that the suit filed by the plaintiff against the defendant for recovery of possession of the premises was a thing duly done under Saurashtra Rent Act and, therefore, by reason of the saving provision in that sub-clause, the repeal of the Saurashtra Rent Act did not affect the suit and the suit was liable to go on as if the Saurashtra Rent Act had not been repealed and the same position continued as it was before the repeal of the Saurashtra Rent Act. This would mean that the suit was liable to be decided according to the ordinary law of landlord and tenant. The plaintiff also relied on Sub-clauses (ii) and (iv) of Clause (1) and Clause (2) of the first provision to Section 51 as was done before Mr. Justice N. K. Vakil and urged that by reason of the saving provision enacted in these clauses, the suit was liable to be decided as if the Saurashtra Rent Act had not been repealed and continued in force. The logical consequence of this fiction would be that the Bombay Rent Act did not become applicable to the premises and the defendant could not in that event claim to be entitled to the protection of Section 12(1) of the Bombay Rent Act. The Saurashtra Rent Act would undoubtedly, by reason of this fiction, be deemed to continue in force for the purpose of deciding the suit, but if the Saurashtra Rent Act continued in force, the exempting provision contained in Section 4(2) would also equally continue in force and the premises would be exempt from the provisions of the Saurashtra Rent Act and the suit would, therefore, be liable to be decided according to the ordinary law of landlord and tenant and the defendant would have no protection against eviction. This contention was sought to be supported by the plaintiff by two unreported decisions of a single Judge of this Court, one being a decision given by A. D. Desai J., on 5/6th November 1968 in Second Appeal No. 74 of 1962 (M/s. Nutan Saurashtra Engineering Works v. Shah Devshi) and the other being a decision given by J. B. Mehta J., on 20th February 1971 in Second Appeal No. 327 of 1965. (Bhagwanlal Durlabhji v. Bhanushanker). The defendant disputed the validity of both grounds on which the contention of the plaintiff was founded. So far as the ground based on Sub-clause (i) of Clause (1) of the first proviso to Section 51 was concerned, the defendant urged that the institution of the suit by the plaintiff against the defendant for recovery of possession of the premises could not be said to be a thing duly done under the Saurashtra Rent Act and Sub-clause (i) of Clause (1) could not, therefore, be invoked by the plaintiff for the purpose of saving the suit from the effect of repeal of the Saurashtra Rent Act. The defendant urged that the second ground based on Sub-clauses (ii) and (iv) of Clause (1) and Clause (2) of the first proviso to Section 51 was also equally unfounded. The exemption granted under Section 4(2) was not a privilege acquired or accrued under the Saurashtra Rent Act and even if it could be regarded as a privilege, the suit instituted by the plaintiff to recover possession of the premises from the defendant was not a legal proceeding in respect of such privilege and it was, therefore, not possible to say, relying on Sub-clauses (ii) and (iv) of Clause (1) and Clause (2), that the suit was liable to be continued as if the Saurashtra Rent Act had not been repealed. The defendant pointed out that Sub-clauses (ii) and (iv) of Clause (1) and Clause (2) continued the Saurashtra Rent Act only for the purpose of working out the pre-existing rights and liabilities which had been acquired, accrued or incurred under the Saurashtra Rent Act prior to its repeal. However, in the present case the rights and liabilities of the parties qua the premises were not the rights and liabilities acquired, accrued or incurred under the Saurashtra Rent Act; they were rights and liabilities under the ordinary law of landlord and tenant and, therefore, said the defendant, there was no question of continuing the Saurashtra Rent Act for the purpose of working out those rights and liabilities. The defendant urged that in the circumstances Sub-clauses (ii) and (iv) of Clause (1) and Clause (2) had no application in the present case and since the Saurashtra Rent Act was repealed and the Bombay Rent Act became applicable to the premises and there was no corresponding provision in the Bombay Rent Act exempting the premises from the applicability of the provisions of the Bombay Rent Act, the defendant was entitled to claim the protection of Section 12(1) of the Bombay Rent Act and the plaintiff was not entitled to recover possession of the premises from the defendant unless he established the averment made by him in the plaint that he bona fide and reasonably required the premises for his personal occupation as contemplated under Section 13(1)(g) of the Bombay Rent Act. These were the rival contentions urged on behalf of the parties and they raised an interesting question of construction which we shall now proceed to consider.

7. The main operative part of Section 51 repeals the Saurashtra Rent Act but the first proviso enacts a saving provision. This saving provision is in almost identical terms as Section 7 of the Bombay General Clauses Act, 1904 but there is one difference and that has been pointed out by J. B. Mehta J., in the decision given on 20th February 1971 in Second Appeal No. 327 of 1965. While the saving provision enacted in Section 7 of the Bombay General Clauses Act, 1904, is qualified by the words 'unless a different intention appears', no such qualification is to be found in the saving provision enacted in the first proviso, so that the applicability of the saving provision in the first proviso cannot be excluded by any contrary intention expressed in any other provision of the Bombay Rent Act. The saving provision is enacted in two clauses, namely, Clauses (1) and (2). Clause (i) consists of four sub-clauses. We are not concerned with Sub-clause (iii) of Clause (1) and we need not, therefore, dwell on it. Sub-clauses (i), (ii) and (iv) of Clause (1) as well as Clause (2) are material because both prongs of the argument of the plaintiff are based upon them and it is, therefore, necessary to consider them in some detail.

8. We will first consider Sub-clause (i) of Clause (1) on which the first prong of the argument of the plaintiff was founded. Sub-clause (i) of Clause (1) provides that the repeal of the Saurashtra Rent Act shall not effect the previous operation of that Act or anything duly done or suffered under it. The contention of the plaintiff was that the institution of the suit by the plaintiff against the defendant for recovery of possession of the premises was a thing duly done under the Saurashtra Rent Act and it was, therefore, saved from the effect of the repeal of the Saurashtra Rent Act by reason of Sub-clause (i) of Clause (1). We are unable to appreciate this contention : indeed it is difficult to comprehend it. The premises in respect of which the suit was filed were, by reason of Section 4(2), exempt from the applicability of the Saurashtra Rent Act. The Saurashtra Rent Act was, therefore, to be ignored in deciding the rights and liabilities of the parties in the suit. They were to be governed by the ordinary law of landlord and tenant. It is difficult to understand how the institution of such a suit could possibly be said to be a thing duly done under the Saurashtra Rent Act. The word 'under' would mean 'in pursuance of or 'by virtue of the authority conferred by' or 'in accordance with'. None of these expressions would fit in here. The suit was filed under the ordinary law of landlord and tenant and not in pursuance of or by virtue of the authority conferred by the provisions of the Saurashtra Rent Act. It did not owe its existence or justification to any provision of the Saurashtra Rent Act. It did not seek to enforce any right or benefit given by any provision of the Saurashtra Rent Act nor was it instituted in accordance with the provisions of the Saurashtra Rent Act. Section 4(2) was undoubtedly referred to in the suit but that was for the purpose of showing that the suit, was de hors the Saurashtra Rent Act, because the Saurashtra Rent Act was wholly inapplicable. Such a suit could never, by any stretch of imagination and even by straining the language to the utmost, be regarded as a suit under the Saurashtra Rent Act. Sub-clause (i) of Clause (1) had, therefore, no application in the present case and the argument of the plaintiff based on it must fail.

9. We then proceed to consider the contention of the plaintiff based on Sub-clauses (ii) and (iv) of Clause (1) and Clause (2). Sub-clauses (ii) and (iv) of Clause (1) provide that the repeal of the Saurashtra Rent Act shall not affect, and here we are setting out only the relevant portion of these sub-clauses, any right or privilege acquired or accrued under the Saurashtra Rent Act or any legal proceeding in respect of any such right or privilege and Clause (2) proceeds to say that any such legal proceeding may be continued or instituted as if the Saurashtra Rent Act had not been repealed. It was not the case of the plaintiff before us, though that contention was advanced before Mr. Justice N. K. Vakil and rightly rejected by him, that the exemption accorded to the premises under Section 4(2) of the Saurashtra Rent Act was a right accrued to the plaintiff under the Saurashtra Rent Act. The contention was a limited one, namely, that it was a privilege acquired or accrued under the Saurashtra Rent Act and the suit instituted by the plaintiff against the defendant was a legal proceeding in respect of such privilege. Now if this contention is right, there can be no doubt that Clause (2) would be applicable and the suit would have to be decided as if the Saurashtra Rent Act had not been repealed and continued in force and the logical consequence of this fiction would be that the Bombay Rent Act would not be applicable to the premises and since the exemption contained in Section 4(2) would continue in force as part of the Saurashtra Rent Act, the suit would be governed by the ordinary law of landlord and tenant and the defendant would have no protection against dispossession. But the question is, whether this contention is correct Is it justified on a proper interpretation of the language of Sub-clauses (ii) and (iv) of Clause (1) and Clause (2) ?

10. Now before we proceed to examine the language of Sub-clauses (ii) and (iv) of Clause (1) and Clause (2), it is necessary to point out that the first proviso in which they occur is a saving provision. This saving provision was necessitated by the repeal of the Saurashtra Rent Act. The object of a saving provision is to save the previous operation and effect of a repealed Act and to continue it for certain limited purposes, despite its repeal. Where any right, privilege, obligation or liability is acquired, accrued or incurred under the repealed law or any penalty, forfeiture or punishment is incurred in respect of any offence committed against the repealed law, the saving provision, by a fiction, deems the repealed law to continue in force for the purpose of enforcing such right, privilege, obligation, liability, penalty, forfeiture or punishment, even after the repeal. If no saving provision were enacted, the effect of the repeal would be o obliterate the repealed statute completely from the statute book as if it had never been passed and it would not be possible to enforce, after the repeal, any right, privilege, obligation or liability acquired, accrued or incurred under the repealed law or any penalty, forfeiture or punishment in respect of an offence committed under the repealed law. The saving provision is thus intended to continue the repealed law in force for the purpose of enforcing any right, privilege, obligation, liability, penalty, forfeiture or punishment acquired, accrued or incurred under the repealed law. It is in the light of this object and purpose of enactment of a saving provision that we must proceed to consider the question of construction before us,

11. The word 'privilege' is an ordinary word in the English language and, according to Webseter's New World Dictionary if means 'a right, advantage, favour, or immunity specially granted to one; especially, a right held by a certain individual, group, or class, and withheld from certain others or all others'. It is, therefore, quite possible to say, according to plain ordinary English, that the premises which are exempt from the applicability of the Saurashtra Rent Act enjoy a privilege which is not accorded to other premises to which the Saurashtra Rent Act is made applicable. But if we look at the context and collocation of words in Sub-clauses (ii) and (iv) of Clause (1) and Clause (2), it is clear that is not the sense in which the word 'privilege' is used in these clauses. It is used as a part of a larger expression 'privilege...acquired, accrued...under any law so repealed.' The 'privilege' within the meaning of these clauses must be privilege acquired or accrued under the repealed law. It must be a privilege arising under the repealed law, or, in other words, a privilege which would not have belonged to a person but for the provisions of the repealed law. Moreover, the privilege must have its correlative liability or disability. When a statute confers a privilege on one person, there must be a corresponding disability or liability imposed by the statute on another who is bound to observe the privilege. The privilege acquired or accrued on the one side and the liability or disability incurred on the other side must be mutual and correlative. Vide Ogdan Industries Limited v. Luces (1969)1 All E.R. 121. If this be the true meaning of the word 'privilege' in Sub-clauses (ii) and (iv) of Clause (1) and Clause (2), it is difficult to see how exemption granted to premises under Section 4(2) could be said to be a privilege acquired or accrued under the Saurashtra Rent Act. The Saurashtra Rent Act was intended to protect tenants from dispossession of premises let to them and it had, therefore, application in relation to premises. Section 2 defined the extent of territorial operation of the Saurashtra Rent Act and Section 4 set out certain kinds of premises which should be exempt from the applicability of the Saurashtra Rent Act. Section 6 enumerated the kinds of premises which shall be governed by Part II of the Saurashtra Rent Act clearly indicating by necessary implication that the other premises shall not be so governed. Whenever, therefore, in a proceeding between landlord and tenant a question arises whether certain premises are governed by the Saurashtra Rent Act, the landlord may dispute the applicability of the Saurashtra Rent Act either on the ground that Part II of the Saurashtra Rent Act does not apply to the area in which the premises are situate or on the ground that though the premises are situate within the area to which Part II of the Saurashtra Rent Act extends, they are exempt under Section 4 or not covered by Section 6. Of these three, whichever be the ground urged by the* landlord, it would be for the purpose of showing that the Saurashtra Rent Act has no application to the premises and the rights and liabilities of the parties qua the premises are governed by the ordinary law of landlord and tenant. It is difficult to see how this exemption from applicability of the Saurashtra Rent Act could be regarded as a privilege accrued under that Act. What the exemption means is nothing more than this, namely, that the Saurashtra Rent Act shall not apply to the premises. It is a provision delimiting the area of application of the Saurashtra Rent Act by excluding certain premises from its applicability. The Saurashtra Rent Act instead of specifically enumerating the kinds of premises to which its provisions shall apply provided that its provisions shall apply to all premises except those exempted under Section 4. That was merely a different legislative device adopted by the Legislature for achieving the same effect. Therefore, when the Legislature said, by enacting the exempting provision in Section 4(2), that the Saurashtra Rent Act shall not apply to certain kinds of premises, it is difficult to appreciate how a privilege could be said to have accrued in respect of such premises under the Saurashtra Rent Act. The non-application of the Saurashtra Rent Act to certain kinds of premises could never be regarded as a privilege accrued under the Saurashtra Rent Act. It was not a privilege arising under the Saurashtra Rent Act, a privilege which would not have belonged to the landlord but for the provisions of the Saurashtra Rent Act. The position in respect of the premises exempted under Section 4(2) would have been the same if the Saurashtra Rent Act had not been passed. They would have been governed by the ordinary law of landlord and tenant. It is, therefore, not possible to say that the exemption granted under Section 4(2) of the Saurashtra Rent Act resulting in non-applicability of the Saurashtra Rent Act to the premises and the premises being continued to be governed by the ordinary law of landlord and tenant was a privilege which accrued under the Saurashtra Rent Act. The position that the premises were governed by the ordinary law of landlord and tenant was not the consequence of the Saurashtra Rent Act. That position obtained even prior to the enactment of the Saurashtra Rent Act and it continued to obtain thereafter because the Saurashtra Rent Act was not made applicable to the premises. Moreover, the Saurashtra Rent Act being inapplicable to the premises did not impose any disability or liability on the defendant and no privilege could therefore be said to have accrued to the plaintiff under the Saurashtra Rent Act.

12. Even if the view be taken that the exemption granted to the premises under Section 4(2) of the Saurashtra Rent Act was a privilege accrued under the Saurashtra Rent Act, the suit instituted by the plaintiff against the defendant for recovery of possession of the premises could not be said to be a legal proceeding in respect of such privilege. The suit was a plain simple suit by the plaintiff to enforce the right to recover possession which the ordinary law of landlord and tenant gave to the plaintiff. It was not a suit to enforce the 'privilege' of exemption granted to the premises under Section 4(2) of the Saurashtra Rent Act. The exemption granted under Section 4(2) merely made the Saurashtra Rent Act inapplicable to the premises so that the plaintiff was free to enforce his right under the ordinary law of landlord and tenant against the defendant. It was in respect of this right under the ordinary law of landlord and tenant that the suit was instituted by the plaintiff and not in respect of the so-called 'privilege' of exemption under Section 4(2). The suit could not, therefore, be said to be a legal proceeding in respect of any such privilege.

13. We are, therefore, of the view that the saving provision enacted in Sub-clauses (ii) and (iv) of Clause (1) and Clause (2) of the first proviso to Section 51 had no application in the present case and the plaintiff was not entitled to contend that, notwithstanding the repeal of the Saurashtra Rent Act, the suit should be continued as if the Saurashtra Rent Act had not been repealed and continued in force. If the construction contended for on behalf of the plaintiff were accepted, it would lead to a rather strange and absurd result. The Saurashtra Rent Act would in that case be deemed to continue in force not for the purpose of working out preexisting rights and liabilities of the parties under it but for the purpose of enabling the plaintiff to contend that the Saurashtra Rent Act is not applicable to the premises and the rights and liabilities of the parties are not governed by the Saurashtra Rent Act. That would be contrary to the object and purpose of enacting a saving provision which is to continue the repealed law for the purpose of working out pre-existing rights and liabilities of the parties under it and for the purpose of avoiding its applicability Moreover, the consequence of accepting the construction contended for on behalf of the plaintiff would be that the Bombay Rent Act would be rendered wholly inapplicable to new premises erected and let on or after 1st January 1951, though no exemption in respect of such premises is enacted in any provision of the Bombay Rent Act and on its plain terms, it clearly applies to such premises and the tenants of such premises would be denied the protection of the beneficent provisions of the Bombay Rent Act. That surely could not have been intended by the Legislature.

14. It is also difficult to appreciate how exemption from the applicability of Saurashtra Rent Act case avail the landlord when the tenant is pleading the protection of the Bombay Rent Act. The exemption granted by sec 4(2) of the Saurashtra Rent Act is not immunity against any rent control legislation but immunity only from the provisions of the Saurashtra Rent Act. This immunity would need to be availed of, if the tenant pleads the protection of the Saurashtra Rent Act in answer, to the claim for recovery of possession. But when the protection pleaded by the tenant is under the provisions of the Bombay Rent Act, it is difficult to see how this immunity from the provisions of the Saurashtra Rent Act can assist the landlord. The landlord can escape from the jail of the provisions of the Bombay Rent Act only if there is any provision in the Bombay Rent Act which exempts premises from the applicability of the Bombay Rent Act. There is admittedly no provision in the Bombay Rent Act corresponding to Section 4(2) of the Saurashtra Rent Act which exempts the present premises. It must, therefore, be held that when Gujarat Act 57 of 1963 was enacted, the Bombay Rent Act became applicable to the premises and if that be so, the defendant must be held entitled to the protection of Section 12(1) of the Bombay Rent Act. It is now well-settled as a result of the decision of the Supreme Court in Shah Bhojraj Kunverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha (supra) that Section 12(1) of the Bombay Rent Act is retrospective in effect and it applies not only to suit filed subsequent to the date when Part II of the Bombay Rent Act came into force in the particular area but also to suits filed before and pending on that date. If, therefore, the defendant is able to show that he was at the date of the suit ready and willing to pay the standard rent of the premises and to observe and perform the other conditions of the tenancy, he would be entitled to the benefit of the protection of Section 12(1) of the Bombay Rent Act.

15. It is true that there are three decisions of single Judges of this Court, one being a decision given by A. D. Desai J., on 5/6th November 1968 in Second Appeal No. 74 of 1962, (Nutan Saurashtra Engineering Works v. Shah Devshi), the other being a decision given by J. B. Mehta J., on 1lth October 1968 in Second Appeal No. 328 of 1962 (Dr. Chandrakant Shastri v. Shamji Govindji) and the third being also a decision given by J.B. Mehta J., on 20th February 1971 in Second Appeal No. 327 of 1965 (Bhagwandas Dayalji v. Bhanushankar) where a different view has been taken, but, for reasons which we have already discussed, we find ourselves unable to agree with the view taken by these learned Judges and, with great respect to them, we must express our dissent from these decisions and hold that they do not lay down the correct law.

We, therefore, allow this Letters Patent Appeal, set aside the judgment and decree passed by Mr. Justice N.K. Vakil and restore the order of remand made by the learned District Judge. The plaintiff will pay to the defendant costs of all proceedings before the learned District Judge, before Mr. Justice N. K. Vakil and in this Court.


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