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Punamchandra Revashankar Joshi Vs. Ramjibhai Maganlal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Judge
Reported in(1966)7GLR807
AppellantPunamchandra Revashankar Joshi
RespondentRamjibhai Maganlal
Cases ReferredP. C. Guha v. B.A. Basil
Excerpt:
- - karlekar, the learned advocate for the petitioner submitted that the standard rent was not fixed in accordance with the provisions of law and, therefore, the findings both in the suit as well as the miscelleneous application no 74 of 1959 ought to have been set aside by the appellate court. 22/-.however, i cannot agree to do so because the provision clearly says that this figure will be subject to the right of the court to fix standard rent in accordance with section 11. it has to be noted that under the provisions of section 11, the court has to fix standard rent, having regard to the provisions of the act and the circumstances of each case, which the court deems to be just. the plain reading of the observations in the judgment of the appellate court as well as the -trial court.....n.k. vakil, j.1. the petitioner in civil revision application no. 13 of 1962 and civil revision application no. 26 of 1962 was the original plaintiff ii regular civil suit no. 16 of 1959. he had filed a suit against the presen opponent in both these revision applications for possession on the ground that, it was required bona fide for the personal use of starting a bookseller's business in the suit premises. the suit premises were a part of whole building which the petitioner had purchased sometime before he started the proceedings. after the suit was filed, the respondent had also filed a miscellaneous application to determine the standard rent. in the sui also the defendant-respondent had raised the contention that the agreed rent which was rs. 22/- was not the standard rent. in the.....
Judgment:

N.K. Vakil, J.

1. The petitioner in Civil Revision Application No. 13 of 1962 and Civil Revision Application No. 26 of 1962 was the original plaintiff ii Regular Civil Suit No. 16 of 1959. He had filed a suit against the presen opponent in both these revision applications for possession on the ground that, it was required bona fide for the personal use of starting a bookseller's business in the suit premises. The suit premises were a part of whole building which the petitioner had purchased sometime before he started the proceedings. After the suit was filed, the respondent had also filed a miscellaneous application to determine the standard rent. In the sui also the defendant-respondent had raised the contention that the agreed rent which was Rs. 22/- was not the standard rent. In the suit, on merit the trial Court decided in favour of the plaintiff. As regards the standard rent, the trial Court held that the standard rent was Rs. 8/- inclusive o all taxes. As regards the standard rent, the same was the finding in the miscellaneous application No. 74 of 1959. The defendant being aggrieved by the finding on merits filed an appeal No. 2 of 1961 and the presen petitioner, the plaintiff, being aggrieved by the order as regards the standard rent filed two proceedings, one being appeal No. 13 of 1961 against the order passed as regards the standard rent in the suit and the other was Revision Application No. 9 of 1961 against the order passed in the Mis cellaneous Application No. 74 of 1959. The learned Assistant Judge allowed appeal No. 2 of 1961 and reversed the trial Court's decree and dismissed the suit. As regards the standard rent in both the proceedings the learned Assistant Judge confirmed the order of the trial Court. Being aggrieved the plaintiff approached this Court and filed three separate proceedings Civil Revision Application No. 25 of 1962 was filed against the dismiss a of his suit by the Assistant Judge reversing the decree of the trial Court Civil Revision Application No. 26 of 1962 was filed by him against the order of the learned Assistant Judge in the appeal No. 13 of 1961 and Civil Revision Application No. 13 of 1962 against the order as regards the standard rent in Revision Application No. 9 of 1961. I have disposed of the Civil Revision Application No. 25 of 1962 by a separate Judgment. In the two Civil Revision Applications now under consideration the petitioner wants to rely on Sub-section (2) of Section 29 of the Bombay Rent Control Act and urges that the Court should enter into evidence to see whether the orders passed by the. Assistant Judge under Section 29(1)(b) were according to law or not. It is contended however on behalf of the respondent that this Court has no jurisdiction to revise the orders passed by the Assistant Judge under the amended Sub-section (2) of Section 29 as these orders had been passed before this amendment came into force in 1965. In Civil Revision Application No. 26 of 1962 also, the question was agitated but it could be disposed of even on an assumption that this Court had such jurisdiction to decide under the amended Sub-section (2) of Section 29. Therefore, the important question that arises for consideration in these two revision applications is whether the amended Sub-section (2) of Section 29 can-be held to have retrospective effect so that this Court could assume powers given under the amendment, and revise the orders passed by the learned Assistant Judge before the amendment came into effect in respect of the fixation of the standard rent.

2. The question arises for consideration under the following facts: Mr. Karlekar, the learned advocate for the petitioner submitted that the standard rent was not fixed in accordance with the provisions of law and, therefore, the findings both in the suit as well as the miscelleneous application No 74 of 1959 ought to have been set aside by the appellate Court. But the appellate Court also did not approach the question on any legal basis. Therefore, this Court, under its power of revision should set aside that order. To support the submission it was pointed out that by virtue of Section 3 of the Bombay Merged States (Laws) Ordinance VI of 1949, which came into force on 1 -1 -1960 and the Bombay Act IV of 1950 called the Bombay Merged States (Laws) Act, 1950, which came into force on the 20th March 1950, the Bombay Rents, Hotel and Lodging House Rates Control Act, 57 of 1957, had been extended to and enforced in the merged states including the erstwhile state of Baroda but it had been amended in its application to the State of Baroda in the following manner:

Amendment of Section 5.

For Clause (10) of Section 5 the following shall be substituted:

(10) 'Specified date' means-

(a) In case of any premises let for the purpose of residence, the first day of January 1943, and

(b) In case of any premises let for non-residential purpose, the first day of January 1944.

(10A) 'standard rent' in relation to any premises let for the purpose of residence or, for non-residential purpose means:

(a) where the standard rent is fixed by the Controller under the House Rent Control Order, 1947, made by the Baroda Government, such standard rent, or

(b) where the standard rent is not so fixed subject to the provisions of Section 11 - (i) the rent at which the premises were let on the specified date, or

(ii) where they were not let on the specified date, the rent at which they were last let before that date, or

(iii) where they were first let after the specified date, the rent at which they were first let, or

(iv) in any of these cases specified in Section 11, the, rent fixed by the Court;

In the instant case, it is not in dispute that the suit premises are situate within the territory which formerly belonged to the State of Baroda am also that Clause (10) of Section (5), amended as aforesaid, and the addec Clause (10A) are applicable to the present case. It is also an undisputei fact that the suit premises were let out for the first time for a non-resi dential purpose after the 1st of January 1944. The other facts which have been established and which cannot be challenged are that excluding the suit premises which only consists of one room about Il'-6'x4'-10' in ares on the ground floor, the rest of the building which consists of two othei rooms, a kitchen and a bath-room on the ground floor, the whole of the first floor and the second floor, is in possession of the plaintiff landlord, The further fact is that before the suit portion was given for the first time for non-residential purpose to the present respondent, the whole house including the suit portion was rented out for Rs. 11/- per month for residential purpose. Mr. Karlekar urged that having regard to the undisputed facts, on the proper construction of the provisions of law aforesaid, the Courts below ought to have held that Rs. 22/- /. e. the agreed rent was the standard rent. In my view this submission requires careful consideration. Clause 10(b) of Section 5 provides that in case of premises let for non-residential purpose the 'specified date' will be 1-1-1944. Clause (10A) provides that 'standard rent' in relation to premises let for non-residential purpose, where the 'standard rent' is not fixed by the Controller under the House Rent Control Order, 1947, made by the then Baroda Government, subject to the provisions of Section 11, shall be the rent at which the premises is let on the 'specified date. ' But if such premises were not let on the specified date then the 'standard rent' shall be the rent at which they were last let before the specified date. If however they were not so let before the specified date for non-residential purpose, then the 'standard' rent will be the rent at which premises are first let for nonresidential purpose after the specified date. In the present case, the suit premises undisputedly were let out for the first time after the specified date for a nonresidential purpose at the rent of Rs. 22/- p. m. Therefore subject to the power of the Court under Section 11 to finally decide the question, prima facie Rs. 22/- p. m. would be the standard rent. This in my judgment is the correct interpretation of Section 5 as amended and applicable to the suit premises. When we go to the judgments of both the Courts, I find that proper construction has not been placed on the aforesaid provision by the learned Judges. The trial Court has observed as follows:

It is clear from the evidence of witness Shantilal that Darji Jethalal was occupying entire house on 1-1-1944. The result then is that the suit premises were not let out on 1-1-44. That being so, the rent at which they were last let out before 1-1-44 will be the standard rent of the suit premises as defined in Section 5 Sub-section 10 Clause (b) Sub-clause (2) of the Rent Act.

With due respect I find that the reasoning is not cogent and is fallacious. All the sub-clauses of added Clause (10A) of Section 5 have not been taken into consideration. The crucial fact that the rent of the suit premises was to be fixed in relation to it being rented out for non-residential purpose and the fact that it was not rented at any time before the specified date for non-residential purpose but was for the first time rented after the specified date for non-residential purpose, have not been taken into consideration at all. When we turn to the judgment of the learned Assistant District Judge, the question has been dealt with by him as follows:

Under Section 5(10)(b)(i) as applicable in the erstwhile state of Baroda, the rent at which the premises let for any non-residential purpose were let on 1-1-44 and the rent at which premises let for residential were let on 1-1-43 should be considered the standard rent. But it is not necessary that the said premises should have been first let as business premises or residential premises respectively. Therefore, the rent at which the suit premises were first let on 1-1-44 and failing that on 1-1-43 should be the standard rent. Apart from this as the suit premises were not let to any one on 1-1-44, under Section 5(10)(b)(ii) the rent at which they were last let before that date will be the standard rent.

3. Here again, there is no discussion as to why Sub-clause (iii) of Clause (10A)(b) would not be applicable in the present case. With due deference, in my view the reasoning is faulty and the conclusion reached was not correct. The correct construction of the amended Clauses (10) and the added Clause (10A) is as pointed out hereinabove.

4. Mr. Karlekar attempted to urge that 1 should myself in this proceeding hold that the standard rent is Rs. 22/- as the rent admittedly when the premises were first let out to the respondent after 1-1-1944 was Rs. 22/-. However, I cannot agree to do so because the provision clearly says that this figure will be subject to the right of the Court to fix standard rent in accordance with Section 11. It has to be noted that under the provisions of Section 11, the Court has to fix standard rent, having regard to the provisions of the Act and the circumstances of each case, which the Court deems to be just. Section 11 then lays down various ingredients to be taken into consideration while fixing the standard rent Therefore, this will involve consideration of questions of fact. Defendant had filed an application under Section 11 and also had raised the question of standard rent in the suit. Under these circumstances, 1 am not prepared' to myself decide the question of fact and it would, therefore, be necessary to remand the matter to the trial Court to decide the question according to law provided I come to the conclusion at the end of my judgment that I am entitled to exercise jurisdiction under Sub-section (2) of Section 29. The reason for making this reservation will be clear from the discussion that follows.

5. Mr. Majmudar, the learned advocate for the respondent, has raised the contention that this Court cannot look into this matter at all because even if it is assumed that the findings of the lower Courts are erroneous, the question cannot fall within the purview of the powers of revision of this Court under Section 115 of the Civil Procedure Code. Mr. Karlekar first made some attempts to urge that it does fall because here there was not a mere error in construction of statutory provisions but there was a total omission to take into consideration the mandatory provisions of law and, therefore, it would fall within the purview of Clause (c) of Section 115 of the Civil Procedure Code. 1 find no force in this submission. The plain reading of the observations in the judgment of the appellate Court as well as the -trial Court shows that they had taken into account the amended Section 5 and its provisions but had arrived at an erroneous conclusion on a faulty interpretation thereof. It is obvious, therefore, that, the case does not fall within the ambit of Section 115 of the Civil Procedure Code.

6. Mr. Karlekar then submitted that the Court, however, is entitled to revise the order under the amended Sub-section (2) of Section 29 of the Rent Control Act., The amended Sub-section (2) of Section 29 is as follows:

(2) No further appeal shall lie against any decision in appeal under Sub-section (1), but the High Court may, for the purpose of satisfying itself that any such decision in appeal was according to law, call for the case in which such decision was taken and pass such order with respect thereto as it thinks fit.

It came into effect on the 17th of June 1965. There can hardly be any doubt that if the powers under Sub-section (2) of Section 29 could be invoked in this case, the impugned orders could be revised. But then the important question of law as stated hereinabove arises whether the provision can apply to orders that were passed long before the amendment came into effect. In other words, can the provision giving this wider power of revision, introduced by the amendment, be held to be retrospective?

7. On behalf of the petitioner it was submitted that the provision introduced by the amendment in Sub-section (2) of Section 29 must he held to be retrospective because it is a provision that refers to the procedure and not to a substantive right. It does not affect any vested right of the party. The order passed under, Section 29(1) by the appellate Court in the first Appeal read with Sub-section (2) of Section 29 as it stood before the amendment, cannot he held to be final. There are no express words used by the legislature in Clause (2) of Section 29 as it stood before the amendment that can make the order passed by the appellate Court under Sub-section (1) of Section 29 final. No finality can be attached to the order unless express words were used by the legislature. It was further urged that even if it is permissible to hold that finality of an order could be implied by necessary implication, there are no words in the said provision to raise such a necessary implication. On the contrary, Sub-section (2) of Section 29 as it stood before its amendment took away only the right of second appeal by the use of a negative phraseology leaving untouched at the same time, the power of the High Court to revise the order passed by the District Court under Sub-section (1) of Section 29. Under these facts, no intention of the legislature to make the order final can even be necessarily implied.

8. On the other hand, on behalf of the respondent the learned advocate Mr. Majmudar submitted that the amendment is purely prospective and cannot affect the orders that were passed by the District Judge or the Assistant Judge in appeal before the date of the amendment. He urged the following grounds in support of his submission:

(1) The order passed by the Assistant Judge determining the standard rent had become final when he decided the appeal and as such, the power of revision vested by the amendment cannot be used to disturb that finality.

(2) The amendment affects substantive rights of parties and is not merely procedural in its nature and, therefore, in the absence of express words making it retrospective, it cannot empower this Court to reyise the order passed by the Assistant Judge under Section 29(1).

(3) The amending legislation, in any case, is remedial legislation as it tried to provide a remedy that did not exist and a remedial legislation cannot be retrospective in effect.

9. Before I consider the contentions raised by the parties, it will be convenient to reproduce relevant parts of Sub-section (1) of Section 29 also:

29. (1) Notwithstanding anything contained in any law, an appeal shall lie-

(a) in Greater Bombay, from a decree or order made by the Court of small Causes, Bombay, exercising jurisdiction under Section 28, to a bench of two Judges of the said Court which shall not include the Judge who made such decree or order;

(b) elsewhere, from a decree or order made by a Judge of the Court of Small Causes established under the Provincial Small Cause Courts Act, 1887, or by the Court of the Civil Judge deemed to be the Court of Small Causes under Clause (c) of Sub-section (2) of Section 28 or by a Civil Judge exercising such jurisdiction, to the District Court:

Provided that no such appeal shall lie from-

(i). .

(ii) . .

(iii) an order made upon an application for fixing the standard rent or for determining the permitted increase in respect of any premises except in a suit or proceeding in which an appeal lies;

(iv) ...

(v) ...

The amended Sub-section (2) of Section 29 I have already reproduced hereinabove,

10. The effect and nature of the amendment may now be examined. The only effect of the amendment made is that the High Court has been authorised to exercise the power of revision to examine and satisfy itself that any decision given in appeal by the appellate authority is according to law. The fact remains that while amending this Sub-section (2) of Section 29, the legislature has maintained the prior provision which took away the right of second appeal from the litigant but added the provision which gave authority to the High Court to call for and examine, if it so desired, any appellate decision only to satisfy itself as to whether the decision was in accordance with law. It is patently obvious, therefore, that the legislature has not given any new right to the litigant nor taken away any vested substantive right which the litigant had. It is also material to note that before the amendment, the right of the litigant to second appeal was taken away but the power of the High Court to exercise its revisional jurisdiction under Section 115 of the Civil Procedure Code was not touched at all. It is true that the statute with which we are concerned did not, within its own ambit provide for this power of revision, but at the same tune, the jurisdiction of the High Court to revise the decision of the District Court given in appeal was kept alive. The only positive effect of the amendment, therefore, is at the most to enlarge the scope of the power of the High Court in the exercise of its revisional jurisdiction while deciding questions that may arise under the said Act. Before the amendment, the High Court under Section 115 of the Civil Procedure Code had the power to revise. But it was a limited power as it could only examine whether in a case decided, the Court had assumed jurisdiction where it had none or had refused to exercise jurisdiction vested in it or, if there had been any material illegality or irregularity in the exercise of the jurisdiction. The right, therefore, is limited to the question effecting jurisdiction only, while, under the amended provision, the scope and power is enlarged enabling the High Court to call for any record and exanlme the decision to see whether the conclusions arrived at by the appellate authority under Section 29(1) are in accordance with law and to pass such orders as the High Court may deem necessary. It is true that by this amendment, the High Court can examine the decision as a whole and enquire as to whether the decision arrived at as a whole was according to law or not and the High Court is not confined merely to the authority to see whether there were any errors of law. Yet the fact remains that the legislature has not intended to equate the ambit of the power with the one exercised in an appeal. The authority vested in the High Court under the amendment still remains only in the domain of the jurisdiction and power of revision and no further. The amending provision therefore, only relates to procedure and not to any rights of the parties. It is now well settled that the distinction between an appeal and revision is a real one. The right to appeal is a right vested in the litigant. There is no such right given to a litigant to approach the higher authority for revising the decision. The power given to the superior Court to satisfy itself as to whether a particular matter has been decided according to law or not is not any right vested in a party. A provision of law when it takes away the authority of the superior Court to exercise such a power of revision or gives one or enlarges its scope, is not a matter that can be said to affect any substantive or vested right of a party. No party can be heard to say that he had a right to have a decision revised by the superior Court as stated above, unless of course any such right is affirmatively vested by any statutory provision to approach the higher authority calling upon it to send for the record and examine the legality or otherwise of the decision arrived at by the inferior Courts and pass the necessary order. In the course of the judgment I will have occasion to point out that Legislature has thought fit to include such positive and affirmative provisions in some enactments. But it has not thought fit to make any such affirmative provision even while amending Sub-section (2) of Section 29. In my judgment, therefore, by the amendment no vested right much less a substantive right of a party is affected. It is a well established principle now that statutes or amendments that pertain to procedure and deal with remedies are exceptions to the general rule that new legislation or amendments are prospective and must not ordinarily have retrospective operation. Therefore, in the absence of a contrary legislative intent, statutes and amending provisions relating solely to procedure and legal remedy can operate retrospectively. True it is that even such statute or amendatory provision, if it interferes with any vested right or adversely affected contractual obligations, would be subject to the general rule and cannot be interpreted to have retrospective operation. As pointed out hereinabove, however, in the instant case, the amendment only pertains to procedural matter and no vested right is affected and, therefore, the amended Sub-section (2) of Section 29 can be held to have retrospective operation.

11. But before it can be so definitely pronounced and the chapter can be closed, one more aspect requires careful consideration and that is the angle of approach to the problem that no provision of law can be held to be retrospective in operation if it has the effect of disturbing the final decision of a competent Court. This angle of approach to the problem appears to have weighed with the Supreme Court in at least two of its decisions which were relied upon on behalf of the respondent. I will presently consider the effect of the decisions and that leads me to the discussion of the various further submissions made on behalf of the parties and particularly the respondent.

12. In Moti Ram v. Suraj Bhan and Ors. : [1960]2SCR896 Their Lordships of the Supreme Court were concerned with the provisions of the East Punjab Urban Rent Restriction Act, (3 of 1949). The appellant before them was the tenant. The respondent had filed an application before the Rent Controller for the eviction of the tenant under Section 13 of the said Act. The application was based on several grounds, one of which was personal requirement and further that he wanted to construct a shop for which necessary sanction had already been obtained by him. The claim of the landlord was resisted by the tenant. The Rent Controller upheld the contentions and rejected the application. In appeal, the said order was confirmed. However, in the revision application before the High Court of Punjab, the learned Judges, though agreed with the inferior authorities on the rest of the grounds, as regards the ground of personal requirement they came to a different conclusion, with the result that the revision application was allowed and a decree for eviction was passed in favour of the landlord. Being dissatisfied with the decision of the High Court the tenant approached the Supreme Court. Under these set of facts, their Lordships had to consider particularly two sections of the said Punjab Act. They were particularly concerned with the amendment made by amending Act 29 of 1956. The amendments were made in Section 13 and Section 15. We are more concerned with their Lordships observations as regards the amendment made in Section 15. It has to be noted that the application for ejectment had been filed prior to the amendment and while the matter was pending before the appellate Court the amendment had come into force. By the amendment, in Section 15 Sub-section (5) was added and it would be material for more than one purpose to reproduce the same. It is as follows:

The High Court may, at any time, on the application of any aggrieved party or on its own motion, call for and examine the records relating to any order passed or proceedings taken under this Act for the purpose of satisfying itself as to the legality or propriety of such order or proceedings and may pass such order in relation thereto as it may deem fit.

At this stage though digressing a little, it would be expedient to note that by that amendment a right of applying to the High Court for revision was granted, which is not the case so far as the amendment with which we are concerned in our matters. On behalf of the appellant before the Supreme Court it had been urged that the amended provision which per mitted a revision application to be filed before the High Court was inapplicable to the proceedings before them. Now, another thing which requires to be carefully noted as regards the provisions of that Punjab Act is, that before the amendment, under Sub-section (4) as it stood on the date when the application was filed the decision of the appellate authority, and subject only to such decision, an order of the Controller was final and was not liable to be called in question in any Court of law whether in suit or any other proceeding by way of appeal or revision. So a revision application against the appellate decision was expressly excluded under Sub-section (4), by a positive provision that the decision of the first appellate authority was final and it could not be challenged either by way of appeal or revision. The argument raised before the Supreme Court was that when the proceedings had commenced, the decision of the appellate authority was to be final under the then existing provisions of the Act concerned and the subsequent amendment under which the revisional application had been allowed could not effect the right of the appellant, though the appeal had not been actually decided in his favour when the amendment came into effect. It was the appellant's rights as a party to the proceeding to claim the benefit of the finality of the appellate order so far as that proceeding was concerned. Put in a different form the contention was that the provision for revisional application which had been made by the amending Act could not restro-spectively affect the proceedings which were pending at the time when the amending Act was passed. While considering this contention raised, the learned Judges of the Supreme Court found themselves bound by the prior decision of that Court in Indira Sohanlal v. Custodian of Evacuee Property, Delhi, : [1955]2SCR1117 and held that having regard to the said decision it was not possible to upheld the contention that the finality of the appellate decision could be invoked by the appellant before the said appellate decision was actually recorded.

13. From the above discussion it would appear that in the said case the Supreme Court did hold the view that if the impugned order had become final in law before the amendment came into force, the amended provision though affecting procedure could not be held to have a retrospective affect and an order so passed could not be revised. Therefore, it is necessary to determine whether the order passed by the Court in the present case under Section 29(1) of the Bombay Rent Control Act is to be considered as final, read with Section 29 Sub-section (2) as it stood prior to its amendment.

14. It may be restated with advantage that so far as the matter in in the Supreme Court was concerned, the provisions definitely laid down in positive language that the respective impugned orders were final and they were not subject to be distrubed by any proceeding whatever either in the nature of an appeal or a revision. But there are no such positive words to be found in Sub-section (2) of Section 29 as it stood before the amendment so far as the liability to be disturbed by a revision application was concerned. The only positive provision was that it was not liable to be disturbed by any further appeal. It would, therefore, be reasonable to hold that the only intention of the Legislature as regards the order passed by the District Court under Section 29(1), was that the litigating party was not to be entitled to the right of second appeal and it could not be said to have intended to take away also the power of the High Court to revise that order under authority which it had from any source whatever. But Mr. Majmudar urged that, while deciding the question of finality, the powers vested in any authority de hors the provisions of statute with which we are concerned are not to be taken into account. The provision of the statute has to be looked into to decide whether the machinery provided therein intended to make the order passed final or not. In other words, it was submitted that when a question arises whether a particular statutory provision is final or not, that question has to be answered keeping in mind only the provisions of that very statute and not da a consideration of any other provision of law such as the power of revision under Section 115 of the Civil Procedure Code. It was further urged that the words 'no further appeal shall lie' in Section 29(2) of the Rent Control Act as it stood before the amendment must be construed as synonymous with the words 'shall be final'. In order to support Ms submission, Mr. Majmudar relied upon various authorities some of which need be examined.

15. Reliance was placed on the decision of the Full Bench of this High Court in Madhaji Lakhiram v. Mashrubhai Mahadevbhai Rabari and Ors., reported in 3 G. L. R. p. 438. One of the questions before the Full Bench was whether a decision given by an appellate authority under Sub-section (5) of Section 88C of the Bombay Tenancy and Agricultural Lands Act, 1948, is or is not subject to revision under Section 76 or the Act, by the Gujarat Revenue Tribunal. While examining this question the expression 'final in Sub-section (5) of Section 88C of the Bombay Tenancy and Agricultural Lands Act came in for construction and it was held there that the said expression was not used in the limited or technical sense of 'not subject to appeal' but that it was used in the wider sense to include 'not subject to revision' also. The relevant clause of Section 88C was as under:

(5) The decision of the Mamlatdar under Sub-section (3) subject to appeal to the Collector, shall be final.

Mr. Majmudar relied upon this decision to show that words 'no further appeal shall lie' in the provision with which we are concerned should be interpreted to convey finality and the phrase should be construed as aynonymous with the pharse 'shall be final'. I find it difficult to accept this submission. On the contrary, in my view, certain observations made in the said judgment not only do not support the contention raised on behalf of the respondent, but go to show that the correct position is to the contrary.

16. In the matter before the Full Bench it was contended inter alia that the words 'shall be final' had assumed a technical meaning as was held in various decisions, and it meant that the decision was not subject to appeal only. The phrase would not mean that it was not subject to revisonal proceedings also. Dealing with the specific provision with which the Full Bench was concerned, it was observed:

Whether regarded in any ordinary sense or in a technical sense, the expression in the present context must, in our judgment, mean that the legislature has ruled that the subject matter of the decision is to terminate with the decision of the Mamlatdar and in case there is an appeal, then with the decision of the Collector in appeal. The matter is not to be agitated any more before any authority constituted under the Act. In our opinion, therefore, the Revenue Tribunal had no jurisdiction to entertain the revisional application and was patently in error in assuming it.

They have further obeserved:

For the aforesaid reasons, we have come to the conclusion that the answer to the question raised before this Full Bench cannot be given only by reference to the cases cited above. Of course, we must bear in mind that the word 'final' is often used in a technical or a limited sense. But, before we can give effect to this principle, it is necessary first to examine the meaning of the word in the context in which the Legislature has used it. It is the context to which we must turn, in the first instance, to find out the true meaning of the word 'final'. If the context reveals that the Legislature intended to give the word a limited or a technical meaning, it is the duty of this Court to construe it that way. But, if the context reveals a different intention, then, this Court is by no means bound by the meaning attached to the word 'final' by other decisions given with reference to different statutes and in different contexts.

The ratio of the Full Bench decision, therefore, is that though the word 'final' was used in the legislative provision with which they were concerned, it was held that the word 'final' cannot always be interpreted in a technical or a limited sense and that it is to be interpreted in the context with the particular provision in which it is used. The learned Judges then examined the context of the provision with which they themselves were concerned and came to the conclusion that the legislative intent was clear that it was meant to include also a revision by the Tribunal and therefore the Tribunal had no authority to revise the decision of the Collector, under Section 76 of the Act.

17. Now, what we have to remember so far as the provision with which we are concerned is that what the legislature had done was only to take away the right of second appeal. In the aforesaid Full Bench ruling of this Court, a number of authorities have been referred to wherein it was held that though the word 'final' would take away only the right of appeal, it would not also take away power of the High Court to revise the order, and it has been conceded by the Full Bench that the conclusion reached in those authorities would stand good having regard to the particular provisions with which they were concerned. Having regard to the provision with which we are concerned, it can never be contended that by providing that 'no further appeal shall lie' the right of revision by the High Court was intended to be taken away. Under the circumstances, it is difficult to hold that merely because the right to further appeal was taken away, it could be concluded that the order passed by the District Judge under Section 29(1) was intended to be 'final' in the sense that it could not be further agitated or could not be examined by any authority under any procedure whatsoever. There is also nothing in the said decision to warrant any support to the submission of the converse proposition made by Mr. Majmudar that the words 'no further appeal shall lie' should be construed as synonymous with the words 'shall be final' in its wider sense.

18. My attention was also drawn to the remarks in the book 'The Interpretation of Statutes and General Clauses Act' by Section N. Bindra, 3rd Editidn, page 697, which are as follows:

Final and conclusive. - 'I am clear that the phrase 'Final and conclusive' means nothing more than it would not be open to challenge by an appeal or other proceeding.

Now, what is to be noted is that what is stated is that when the positive words 'final and conclusive' are used that it could be held that it would not be open to challenge such an order by an appeal or other proceeding. We do not find any such words in the provision with which we are concerned. It would be reasonable to infer that had it been the intention of the Legislature to make the order of the District Judge under Section 29(1) 'final and conclusive', it would have used those words as it has so used in a number of enactments as we have already noticed. The very fact that Section 29(2) only provided that the decision of the first appellate Court will not be liable to be disturbed by a second appeal and did not further provide that it will not be liable to be disturbed in any other manner also clearly indicates the legislative intent not to make the order final in the sense that it shall also be not subject to revision. To constitute an order or decision to be 'final' it must not be open to challenge by an appeal or any other proceedings. The legislature, however, has not chosen to give such finality to the decision of the District Judge under Section 29. Therefore, the order could be disturbed or revised by the High Court. Wherever such finality or conclusiveness had been intended, we find that the legislature has provided by a positive provision. It is obvious that in the present case, the order of the District Judge was only given a partial immunity from being disturbed by a second appeal, but it was kept open to being disturbed by the revision proceedings. The legislature has not deemed it fit or proper even to use the word 'final' and therefore it is clear that the order could not be held to be final for all purposes.

19. At one stage Mr. Majmudar urged that his fight had crystallised to the extent that the right that was confirmed to him by the appellate authority could not be disturbed even on a point of law in a second appeal and, therefore, when by the amending Act, Sub-section (2) of Section 29 empowered the High Court in its revisional jurisdiction to revise the order even on the broader ground of the decision being in accordance with law or not, it indirectly took away that right and also has the effect of giving the right of second appeal and, as such, his 'right' is affected. I find it difficult to accept even this submission of Mr. Majmudar. His right that was crystallised, if at all was limited to the extent that his opponent was prevented from disturbing the order passed by the District Judge by way of second appeal. It never got crystallised to the extent that it was not open to be disturbed even by the High Court under its authority to revise that order.

20. The next authority relied upon by Mr. Majmudar was A. I. R. 1960 Mysore 265 Yankappa v. Shavakka. It is a ruling by a single Judge of the Mysore High Court. It was decided therein that a statute relating to matters of procedure operates retrospectively, unless otherwise provided in the statute. This part of the decision supports the view that I am taking. It was further decided by that ruling that the said principle, however, is not applicable when the statute in question affects the jurisdiction of a Court. Provisions relating to jurisdiction are more than matters of procedure. They touch a right in existence at the passing of the statute. It further decided that statutes should as far as possible be so interpreted, as not to affect vested rights adversely, particularly when they were being litigated and when the statute deprived a person of his right to one or affected the power or jurisdiction of a Court in enforcing the law as it stood, its retrospective character must be clearly expressed. Now, it is important to note that in the said case, the learned Judge was concerned with a case wherein the question had arisen whether the ordinary jurisdiction of the Civil Court to try suits for restitution of conjugal rights which were pending at the date of the commencement of the Hindu Marriage Act was affected, and the learned Judge held that that jurisdiction was not taken away either expressly or by necessary implication by any of the provisions of the Hindu Marriage Act. I do not find anything in that judgment which could support the case of the respondent. Of course, if a Court were to be deprived of its jurisdiction, subsequent to the filing of proceeding before it, which it was competent under the existing law, the subsequent statute must expressly make its provisions retrospectively operative. This is not the case with which we are concerned. It is not disputed before me that the revisional power of the High Court under Section 115 had remained untouched under Sub-section (2) of Section 29 even as it stood before the amendment and the High Court had jurisdiction to interfere with the orders passed by the District Judge under Section 29(1). The only thing that was done by the amending Act was to enlarge the scope of its revisional jurisdiction and not vest it with any new jurisdiction. Therefore, this decision has no application to the present case.

21. In re Dosabhai Ardeshir Cooper 58 B. L. R. page 625, was also relied upon by Mr. Majmudar. In the said case the Bombay High Court decided that Section 516 AA of the Code of Criminal Procedure, added by Bombay Act No. XLVI of 1948, was not retrospective in its operation. In that case the complaint filed by the applicant was dismissed and a notice had been issued under Section 516AA of the Criminal Procedure Code to show cause why he should not pay the costs of the proceedings to the accused as the complaint before the police was neither reasonable, probable and was not bona fide and genuine complaint. The complainant was then ordered to pay Rs. 40/- as costs to the accused. The submission was that Section 516AA was added to the Criminal Procedure Code and came' into force subsequent to the filing of the complaint and it was contended that the said action having been added to the Code subsequent to the filing of the complaint could not apply to it. The grounds on which the learned Judges of the Bombay High Court upheld that contention were that under Section 516AA new liability altogether was imposed on the complainant and that it was a well settled rule of law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act or arises as a necessary and distinct implication. It was further observed that statutes dealing merely with procedural matters apply to proceedings pending at the time when the statutes are passed. As the section concerned really imposed a new obligation upon the complainant if his complaint was found to have been filed without a reasonable and probable cause, and in that sense the new section could not be regarded as being merely procedural. Now, it is clear that that was a matter concerned with criminal proceedings and that a new liability of a positive nature was created on the complainant of paying compensatory costs to the opponent if the complaint was found to be not bona fide, reasonable or probable, and cannot with justification be applied to the case on hand. So far as the present case is concerned, no such new obligation or liability is put on the shoulder of any of the parties concerned. The broadening of the power of the High Court to interfere in revision with the decision of the District Judge cannot be said to impose any obligation on the respondent.

22. In Phirdoshi Sarosh Kothawalia v. The State of Bombay 61 B. L. R. page 1559, it was held that orders made by a Mamlatdar or Tribunal before the coming into force of Section 76A of the Bombay Tenancy and Agricultural Lands Act (Bom. LXVII of 1948) could not be revised under the said section. A perusal of the judgment shows that the section of the amending Act itself made certain sections retrospective affirmatively and this impugned Section 76A was not so mentioned to be retrospective. Secondly, it is to be noticed that the question whether the liability of the decision being revised by the High Court could be considered to disturb vested rights or not did not at all come in for consideration and, having regard to those special facts of the particular statute and the amending Act, they came to the above conclusion. This decision, there fore, can be of no use in interpreting the present provisions.

23. Reliance was next placed on : [1961]3SCR754 Jethanand and Sons v. State of U.P. In the said case, Their Lordships of the Supreme Court were concerned with the interpretation of Article 133 of the Constitution and it was observed therein that an order is final if it amounts to a final decision relating to the rights of the parties in dispute in the civil proceeding. If after the order, the civil proceeding still remains to be tried and the rights in dispute between the parties have to be determined, the order is not a final order within the meaning of Article 133. A cursory perusal of the judgment would show that these observations were made in special context of the facts and the provision with which they were concerned, and can be of no help to us in inter preting the provision of Sub-section 2 of Section 29 of the Rent Act.

24. This takes me to the next ground urged by Mr. Majmudar that the amendment in the remedial provision and, therefore, it must be held to be only a prospective provision. According to the learned advocate, this provision was introduced to give a new remedy to a party and, therefore, it must be construed to be a remedial provision only. In the first place, it is not correct to say that this provision gave any new remedy to any party. As pointed out hereinabove, the amendment only empowered the High Court while in the exercise of its revisional jurisdiction to enter into the larger question as to whether the decision was in accordance with law or not. It did not give any right whatever to the litigant. As has been noticed, even as regards the revisional jurisdiction of the High Court or other superior authorities, whenever the Legislature has intended to create a right in the party, it has been so done by making specific provisions to that effect. But none such is to be found in the amended provision of Sub-section (2) of Section 29. Secondly, the general proposition of law tried to be propounded that all remedial provisions are to be taken as prospective, can also be not accepted. Mr. Majmudar appeared to rely for his submission on The Central Bank of India and others v. Their Workmen, etc. : [1960]1SCR200 The said decision only laid down that a remedial Act is not necessarily retrospective; it may be either enlarging or restricting and it takes effect prospectively, unless it has retrospective effect by express terms or necessary intendment. This cannot be taken to be an authority to say that ordinarily any remedia provision should be taken as prospective only. On the contrary, there are authorities which lay down that statutes pertaining to legal remedies as a general rule will not be subject to the rule that statutes should not be given the retrospective operation. In 'Statutory Construction' by Crawford, 1940 Edition, we find the following:

Statutes pertaining to Procedure and Legal Remedies, Generally. - As a general rule, legislation which relates solely to procedure or to legal remedies will not be subject to the rule that statutes should not be given retrospective operation. Similarly, the presumption against retrospective construction is inapplicable In other words, such statutes constitute an exception to the rule pertaining to statutes generally. Therefore, in the absence of a contrary legislative intention, statutes pertaining solely to procedure or legal remedy may affect a right of action no matter whether it came into existence prior to, or after the enactment of the statute. Similarly, they may be held applicable to proceedings pending or subsequently commenced. In any event, they will, at least, presumptively apply to accrued and pending as well as to future actions.

Of course, this rule is also subject to the other pertinent rule that the statute which relates to procedure or to legal remedy, if it interferes with vested rights, will be subject to the general rule.

25. The other ruling on which the learned advocate placed reliance in respect of his second submission was in P. C. Guha v. B.A. Basil : AIR1951Cal554 In the said ruling it was held that the right of appeal, which is of course a right to challenge the finality of some decision of a Court of law, is a substantive right and if a piece of legislation takes away or gives such a right, retrospective effect will not be given to it unless that legislation expressly provides for such, or that retrospective effect must be given by necessary implication or intendment. Such statutes must be construed to apply only to decisions made after they come into force. As regards this part of the decision, no objection could be raised because it is now a well established proposition of law that a right to appeal is a vested right and it cannot be retrospectively affected unless the statute itself makes a positive provision to. that effect. But the said decision has also laid down and on which reliance was placed by Mr. Majmudar, that a right of revision under Section 33X4) of the Act of 1950 (West Bengal Premises Rent Control Temporary Provisions Act) is only given in the case of appeals heard by the appellate Tribunal set up by the 1950 Act from orders made by a Rent Controller after that Act came into force. These sections therefore, confer no right of revision to the High Court against the order of the appellate Tribunal in an appeal against the Rent Controller's order passed under the Act of 948 only because the order is passed after the Act of 1950 came into force. To hold that there was such a right in this case would be to give a right of revision in cases of decisions of a tribunal under the 1948 Act and to give a retrospective effect to the 1950 Act which was never intended. From the perusal of the judgment it becomes very clear that the said conclusion was reached on the interpretation of the impugned amendment itself. This becomes apparent from the following observations:

Sub-section (4) of this section then provides that from any order made in 'such appeal a revision would lie to the High Court. The use of the word 'such' before the word 'appeal' in this sub-section makes it clear that the sub-section only applies to the appeals provided for in Section 32(1) as I have said, those are appeals to the tribunal constituted by the 1950 Act from orders of a Controller made after the Act came into force.

So, the conclusion was reached on the very language of the provisions of the Act and no principle having any general application was laid down.

26. Then it was alternatively urged by Mr. Majmudar that even if it is held that the amended provision has a retrospective effect, the revision application should not be accepted because it would amount to accepting a revision application against an order made in 1961 and the question of limitation may arise; therefore the power should not be exercised. In my view, the question of limitation does not arise in this case. The fact remains that by the amendment what is intended is not to give, as already observed, any right to any party but the Legislature having found that the appropriate provision in the body of the Act itself should be made to authorise the High Court to exercise its revisional jurisdiction on a broader basis to prevent injustice being done, that this provision is added. The amendment came into being only recently. This matter is already pending before this Court and it would be open to this Court to look into the matter to satisfy itself whether the decision is according to law and pass necessary orders. True it is that originally when the application was filed it was for the purposes of moving the High Court to exercise its revisional jurisdiction under Section 115 of the Civil Procedure Code, but having come to the conclusion that the present amended provision would apply retrospectively to pending proceedings and orders that were passed even before the amendment, the Court would not allow the question of limitation to come in the way of doing justice according to law. Having found that the order passed by the inferior Courts is not according to law, I feel that it is a proper case where the power vested in this Court should be exercised. Besides, it cannot be said that in the exercise of that power any injustice or hardship is likely to be caused to the respondent if as a result of the exercise of that power the matter is remanded or decided in this Court, as the evidence and full record is already there and what is required to be done is only to fix the standard rent according to law.

26.1 The only question that now remains is what shall be the appropriate order to be passed. I have come to the conclusion that the interpretation placed by the trial Court and the learned Assistant Judge on the amended Clause 10. and 10(a) of Section $ of the Act requires to be reconsidered according to law and, as such, the matter must be remanded back to the lower Court to decide the question according to law. But the fact remains that so far as the authority that is vested in the High Court even under the amended provision it is limited to call for the record of the case for the purposes of satisfying itself that any decision given in appeal under Sub-section (1) of Section 29 was according to law. But it does not authorise the High Court to call for any record of the decision taken under its revisional jurisdiction by the District Judge over an order under Section 11 fixing the standard rent. As p6inted out hereinabove, revision application No. 26 of 1962 is against the order passed by the learned Assistant Judge in the appeal filed by the petitioner against the order passed by the trial Court fixing the standard rent in the suit. While C. R. A. No. 12 of 1962 is against the order passed by the learned Assistant Judge in revision application filed by the petitioner against the order passed in Standard Application No. 74 of 1959. The record before me shows that the learned Assistant Judge consolidated all the three proceedings before him and disposed them off by one judgment. The question that now arises for my consideration is, can the C. R. A. No. 13 of 1962 be remanded because of the reason stated hereinabove. I have come to the conclusion that the matter could not be revised by this Court under its powers of revision under Section 115 of the Civil Procedure Code. Therefore, it would be anomalous to pass any order directing the C. R. A. No. 13 of 1962 also to be remanded for consideration. But I find that this should not raise any difficulty in the way of the parties. It is now well established that when the Standard Rent is fixed in a suit, though there may also be an application under Section 11 of the Act, it is not necessary for either of the parties to proceed further with the Standard Rent Application proceedings and even if no revision application is filed against the order that may have been passed in the said proceedings, it would not come in the way of the parties and the question shall be taken to have been decided between the parties in the suit itself. In this case also, therefore, I hold that the question of standard rent shall be taken to have been decided in the suit itself. The record also shows that the question was actually decided in the suit and the conclusion recorded therein was relied upon in the proceedings under Section 11 of the Rent Control Act. I further direct that the decision arrived at on remand by the authorities concerned as regards the standard rent, shall be binding on the parties. I, therefore, see no purpose in allowing the C. R. A. No. 13 of 1962 to be kept hanging with the suit proceedings now and, therefore, C. R. A. No. 13 of 1962 shall stand dismissed with a clear understanding that the dismissal of that application shall not, in any way prejudice the right of either of the parties in respect of the determination of the question of standard rent.

27. It is therefore ordered that the suit from which C. R. A. No. 26 of 1962 has arisen is remanded to the trial Court for deciding the question of standard rent according to law in the light of the observations made hereinabove and on the evidence as it already exists on the record. Looking to the nature of the proceedings and taking into consideration all the facts I order that in C. R. A. No. 26 of 1962 the cost of the petitioner shall be paid by the respondent and in C. R. A. No. 13 of 1962 the parties shall bear their respective costs.


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