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Orissa High Court
Biswanath Bhagat vs Ramanandalal And After Him Bimala … on 15 September, 1994
Equivalent citations: AIR 1995 Ori 95, 1995 I OLR 132
Author: Nanavati
Bench: G Nanavati, G Patnaik, P Naik


JUDGMENT

Nanavati, C.J.

1. Divergent opinions expressed by this Court on the question whether a proceeding for eviction is maintainable before the House Rent Controller, even after the Orissa House Rent Control Act, 1967 (for short, “the Act”) ceased to be in force, has made it necessary for this larger Bench to consider that question. The Uma-kant Pradhan v. S.D.J.M.-cum-House Rent Controller, 69 (1990) CIT 207, this Court held that the House Rent Contoller would have no jurisdiction to entertain a proceeding for eviction initiated after the expiry of the Act. The reasons given for taking that View of are that under Section 1(4) of the Act read with Section 5 of the Orissa General Clauses Act what is saved in an acquired or accrued right and not a mere possibility of acquiring a right; that the right which the landlord gets under Section 7 of the Act, either because of default in payment of rent or on any other ground for eviction mentioned therein is merely a right to approach the House Rent Controller with a prayer to evict the tenant; and that such a right cannot be regarded as an ‘acquired’ or ‘accrued’ right within the meaning of Section 5(l)(c) of the Orissa General Clauses Act as against that, another Division Bench in Abdul Gafoor v. Md. Suleman, 1990 (II) OLR 262, has held that the House Rent Controller will have jurisdiction to entertain a proceeding for eviction if the wilful default in payment of a rent had taken place before the expiry of the Act, because as a result of nonpayment of rent by tenant, the landlord acquired a right to demand vacant possession of the premises and a corresponding liability was incurred by the tenant for eviction, and in respect of such right or liability, a proceeding can be instituted, continued and enforced in view of Section 1(4) of the Act with Section 5 of the Orissa General Clauses Act.

2. Before we proceed to consider which view is correct, we may state the relevant facts. The petitioner owns a house in the locality known as Nayasarak in Cuttack town. It was originally let out to opposite parties 1 to 5 for carrying on business. After some time, they shifted their business to some other places, but opposite parties 4 and 5 along with the wives (opposite parties 6, 7 and 8) of opposite parties 1 to 3, started another partnership business of the same type therein. Opposite party No. 7 and the sons of opposite parties 8 and 9 are also carrying on business in that house in a different name. The petitioner’s case is that the opposite parties have not paid rent since August, 1983. They have wilfully defaulted in making payment in spite of repeated demands and have thus become liable to be evicted. It is also the petitioner’s case that he bona fide requires the house for his personal use and occupation. On these grounds and also for determination of fair rent, he filed House Rent Control Case No. 49 of 1988 in the Court of the House Rent Controller, Cuttack. The House Rent Controller, relying upon the decision of this Court in Umakant’s case, held that the proceeding was not maintainable as it was filed on 20-6-1988, i.e., after expiry of the Act on 4-5-1988. That order passed by the House Rent Controller is challenged in this petition.

3. It was submitted by the learned advocate for the petitioner that even though the Act was a temporary statute and it ceased to be in force from 4-5-1988, in view of the specific provision made in Section 1(4) of the Act, Section 5 of the Orissa General Clauses Act would apply as if the Act had been repealed and. therefore, if any right was acquired by or had accrued to the landlord or any liability was incurred by the tenant in respect of things done or omitted to be done before the expiration of the Act, a proceeding can be initiated, continued and enforced as if the said Act still continues to be in force for that limited purpose. In support of the submission, the learned advocate relied upon the decision of this Court in Shadiram Sharma v. State of Orissa, (1990) 69 CLT 783, and also upon the decision in Kuberdas v. State of

Bombay, AIR 1960 Bom 459; A.K.L. Labbai v. Govt. of India, AIR 1983 Mad 102; Sakha-ram v. Manikohand, AIR 1963 SC 354; and Amadalavalasa v. Union of India, AIR 1976 SC 958 : (1976 Lab IC 628). As this position of law is now no longer in dispute, it is not necessary to consider all these decisions.

4. It was next submitted that this Court in Umakant (supra) has not correctly interpreted Section 7 of the Act. It was an error to hold that the only right which the landlord had under Section 7 was to approach the House Rent Controller with a prayer to evict the tenant and that the said provision did not create any corresponding liability for the tenant to be evicted and the grounds of eviction merely gave jurisdiction to the House Rent Controller to put an end to the tenancy and direct eviction of the tenant.

5. On the other hand, what was submitted by the learned counsel for the opposite parties was that except the right to approach the House Rent Controller, no other right in favour of the landlord could come into existence under Section 7 of the Act till the House Rent Controller passed a decree for eviction. In the alternative, it was submitted that even if the landlord can be said to have acquired a right to get back possession because of nonpayment of rent by the tenant, that right cannot be considered as an “accrued right” within the meaning of Section 5 of the Orissa General Clauses Act, in the absence of any further act done by the landlord and in the absence of a corresponding liability incurred by the tenant.

6. As to when and which right can be regarded as a “right accrued”, the learned advocate appearing for the tenant drew our attention to the decision of the Privy Council in the case of Abboth v. The Minister for Lands, (1895) AC 425. In that case, the appellant before the Privy Council had purchased some land under the Crown Lands Alienation Act, 1861. Section 22 of that Act permitted the holder of such land to make a conditional purchase of adjoining land not exceeding a certain area. The said 1861 Act was repealed and a new Act known as the Crown Lands Act, 1884 was passed. On 17th

March, 1892, the appellant applied for an additional conditional purchase of some more land adjoining his holding. The said application was rejected by the local land board and that decision was confirmed by the Land Appeal Court and by the Supreme Court. Before the Privy Council, it was urged that because of the saving proviso of the repealing section of the latter Act, it was still open to the appellant to make an additional conditional purchase of the adjoining land, even though Section 22 was repealed and there was no corresponding provision in the 1884 Act. It was further contended that the said right was a right accrued. The Privy Council rejected that contention and held:–

“It has been very common in the case of repealing statutes to save all rights accrued. If it were held that the effect of this was to leave it open to any one who could have taken advantage of any of the repealed enactments still to take advantage of them, the result would be very far reaching.

It may be, as Hindeyer, J. observes, that the power to take advantage of an enactment may without impropriety be termed as a ‘right ‘accrued’ within the meaning of the enactment
which has to be construed.

Their Lordships think not, and they are confirmed in this opinion by the fact that the words relied on are found in conjunction with the words ‘obligations incurred or imposed’. They think that the mere right (assuming it to be property so called) existing in the members of the community or any class of them to take advantage of an enactment, without any act done by an individual towards availing himself of that right, cannot properly be deemed a ‘right accrued’ within the meaning of the enactment.”

7. He next relied upon another decision of the Privy Council in Director of Public Works v. Ho Po Sang, (1961) 2 All ER 721. As the editorial note shows, what the Privy Council decided was that liberty to apply for a right is not itself an accured right or privilege. The following observations were relied upon:–

“Was the lessee, therefore, possessed on Apr. 9 of a ‘right’ (or privilege) within the meaning of the Interpretation Ordinance? In their Lordships’ view, the entitlement of the lessee in the period prior to Apr. 9 to have the petitions and cross-petition considered was not such a ‘right’. On Apr. 9 the lessee was quite unable to know whether or not he would be given a rebuilding certificate, and, until the petitions and cross-petitions were taken into consideration by the Governor in Council, no one could know. The question was open and unresolved. The issue rested in the future. The lessee had no more than a hope or expectation that he would be given a rebuilding certificate, even though he may have had grounds for optimism as to his prospects.”

8. In Sunil Kumar Sinha Ray v. State of West Bengal, AIR 1963 Cal 614, what had happened was that the Mukhtears who were then governed by the provisions of the Legal Practitioners Act had prepared themselves for the examination of Mukhtearship and even had paid their examination fee. But before the examination could be held, the said Act came to be repealed and the question that arose was whether the Mukhtears had vested right. The contention raised on their behalf that since that had taken action in the shape of preparation for the examination and payment of fees, they had acquired a vested right to appear at the examination and qualify themselves for legal practice as if the repealed Act had continued was negatived by the Calcutta High Court by holding that the said Act did not vest any right in them but only offered an opportunity to them to qualify themselves for legal practice.”

9. In M. S. Shivananda v. The Karnataka State Road Transport Corporation, AIR 1980 SC 77, a question arose whether there is an automatic absorption of employees of erstwhile contract carriages under the Karnataka Contract Carriage (Acquisition) Act, 1976. It was held that they did not acquire any vested right under the Karnataka Contract Carriage (Acquisition) Ordinance, 1976 which came to be repealed by the Act. The reason given by the Supreme Court is that there was neither anything done or action

taken under the Ordinance and, therefore, the employees of the erstwhile contract carriage operators in the State of Karnataka did not acquire a vested right of absorption in service with the Karnataka State Road Transport Corporation. The Supreme Court further held that the employees of the former contract carriage operators in normal course filled in the pro forma giving their service particulars and reported to duty. This was in the mere hope or expectation of acquiring a right. In that case, the Supreme Court has observed that in considering the effect of an expiration of a temporary Act, it would be unsafe to lay down any inflexible rule. It certainly requires very clear and unmistakable language in a subsequent Act of the legislature to revive or recreate an expired right. If, however, the right created by the statute is of an enduring character and has vested in the person, that right cannot be taken away because the statute by which it was created has expired. Thus, what the Supreme Court held in that case was that a mere right existed under the repealing provision to take advantage under the repealing Act is not a right accrued.

10. The decision of the Supreme Court in Vinod Gurudas Raikar v. National Insurance Co. Ltd., AIR 1991 SC 2156, was heavily relied upon by the learned advocate of the tenant. That was a case under the Motor Vehicles Act. An accident had taken place when the old Act was in force, but the claim petition was filed after repeal of the old Act and when the new Act had come into force. The question which arose was whether condonation of delay was governed by the new law or the old law. While considering that question, the Supreme Court has observed in paragraph 7 as under at page 2158:–

“It is true that the appellant earlier could file an application even more than six months after the expiry of the period of limitation, but can this be treated to be a right which the appellant had acquired, The answer is in the negative. The claim to compensation which the appellant was entitled to, by reason of the accident was certainly enforceable as a right. So far the period of limitation for commencing a legal proceeding is concerned, it is

adjectival in nature, and has to be governed by the new Act subject to two condition’s. If under the repealing Act the remedy suddenly stands barred as a result of a shorter period of limitation, the same cannot be held to govern the case, otherwise the result will be to deprive the suitor of an accrued right.”

Rejecting the contention that the option to move an application for condonation of delay should be treated as a right, the Supreme Court observed that there is a vital difference between an application claiming compensation and a prayer to condone the delay in filing such an application. Liberty to apply for a right is not in itself an accrued right or privilege.

11. The learned advocate lastly drew our attention to the decision of the Supreme Court in Isha Valimohamad v. Haji Gulam Mohamad and Haji Dada Trust, AIR 1974 SC 2061. Therein the Supreme Court has observed that the right of the landlord to recover possession on the ground that the tenant has sublet the premises is not an accrued right within the meaning of Section 15 of the Bombay Act before the issue of a notice to determine the tenancy.

12. What then was the right available to the landlord under Section 7 of the Act. The Act was a piece of rent control legislation. Broadly speaking, the object of all rent control legislations has been to control or restrict the right of the landlord and to grant some more protection to the tenant. They protect the tenant against eviction so long as the tenant performs his duties under the agreement of tenancy and observes the conditions laid down in those legislations and also against enhancement of rent except to the extent and in the manner permitted by them. The object of the House Rent Control Act was no different. The Act was not enacted with a view to confer for the first time a privilege on the landlord to apply and get a right to obtain possession of the premises let out by him. It rather modified or restricted the right of the landlord which was otherwise available to him to determine the lease and get back possession of his property let out to the tenant. In this context, we have to

construe Section 7 of the Act for the purpose of finding out the true nature and extent of the right which was available to the landlord. Section 7 reads as under :–

“7. Conditions under which tenant can be ejected :–

(1) A landlord who seeks to evict his tenant shall apply to the Controller for adirection in that behalf.

(2) If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied–

(i) that the tenant has not paid or tendered the rent due from him in respect of the house within thirty days after the expiry of the time fixed in the agreement of the tenancy with the landlord for payment of rent or in the absence of any such agreement by the last day of the month next following that for which the rent is payable; or

(ii) that the tenant has without the written
consent of the landlord-(a) transferred his right under the lease or
sublet the entire house or any portion thereof
(if the lease does not confer on him any right
to do so); or

(b) used the house for a purpose other then that for which it was let out; or

(iii) that the tenant has committed such acts of damages as are likely to impair materially the value or utility of the house; or

(iv) that the tenant has denied the title of the landlord or claimed a right of permanent tenancy and that such denial or claim is not bona fide;

he shall make an order directing the tenant to put the landlord in possession of the house and if the Controller is not so satisfied, he shall make an order rejecting the application :

Provided that in any case falling under Clause (i) if the controller is satisfied that the tenant’s default to pay or tender rent was not wilful, he may give the tenant a reasonable time not exceeding fifteen days to pay or tender the rent due from him, or the landlord

up to the date of such payment or tender and on such payment or tender the application shall be rejected.

(3) When a application is made for the eviction of any tenant on the grounds specified in Clause (i) of Sub-section (2) the tenant shall remit the arrear rent as admitted by him up to the date of such remittance to the landlord or deposit the same with the Controller, failing which he shall not be entitled to contest the proceedings.

(4) The landlord may, subject to the provisions of this Act, apply to the Controller for an order directing the tenant to put him in possession of the house, if he requires the house in good faith for the occupation or use of himself, any member of his family or of any person or persons for whose benefit the house is held by him.

(4)…..

(5)…..”

13. Sub-sections (2) and (4) of Section 7 provided as to when the landlord could get back possession of his premises from the tenant. Clause (i) of Sub-section (2) provided that if the tenant failed to pay the rent due from him within the time specified in that clause, then he would lose protection of the Act and could be evicted by the landlord. So also under Sub-section (4), the landlord court evict the tenant if he required the house in good faith for occupation of himself or for the occupation or use of himself or any member of his family. One establishment of wilful default in case of non-payment of rent and/or bona fide requirement, an order directing the tenant to put the landlord in possession of the house had to be passed by the Controller. No doubt, as required by Sub-section (1), a landlord seeking eviction of the tenant had to apply to the Controller for a direction in that behalf. But, that was only the prescription of the manner in which the right of the landlord had to be enforced. That requirement did not make his right a conditional one in the sense that his right to get back possession was to come into existence only when he made an application to the Controller for passing an

order in his favour. The role of the Controller under the Act was merely that of an adjudicating authority. The right of the landlord was not made conditional upon any discretion to be exercised by the Controller. Wilful nonpayment of rent not only created a right in favour of the landlord, but also at the same time created a liability or an obligation on the part of the tenant to put back the landlord in possession of his house. It is difficult to appreciate how that right could be equated with a mere hope or expectation. The right of the landlord to get back possession in case of wilful non-payment of rent by the tenant and in case of bona fide requirement, it was to come into existence because of necessity of the landlord. Merely because for enforcing the right the landlord had to approach the Controller and the Controller was given power to enquire and satisfy himself as to whether the conditions precedent to passing of the order were satisfied or not, it cannot be said that the landlord did not have right as contemplated by Section 5(1)(c) of the Orissa General Clauses Act. The following obser-vations of the Privy Council in the case of Director of Public Works v. Ho Po Sang (supra) support this view: —

“….. It may be, therefore, that under some repealed enactment, a right has been given but that, in respect of it, some investigation or legal proceeding is neces.sary. The right is then unaffected and preserved. It will be preserved even if a process of quantification is necessary. But there is a manifest distinction between an investigation in respect of a right and an investigation which is to decide whe-thersome right should orshould not be given. On repeal, the former is preserved by the Interpretation Act. The latter is not.”

The Controller had only to satisfy himself whether the landlord had proved his case. The requirement of making an application to the Controller under Section 7 was really for the purpose of enforcing the rights which the landlord acquired and not for the purpose of acquiring the same. We, therefore, do not see any justification either in the provisions of the Act or on any other ground for holding that the right which was conferred by Section 7 on the landlord was merely a right to approach the Controller with an application and no more. For the same reasons, it is also not

possible to accept the contention that the landlord did noi acquire any right till the Controller passed an order in his favour. In our opinion, on happening of the events mentioned in Sub-section (2) and (4) of Section 7, the landlord acquired a right to get back possession of the leased out premises and that right was of such character that it could be regarded as “right accrued” or “right acquired”, as contemplated by Section 5(1)(c) of the Orissa General Clauses Act. with the result that in respect of that right, legal proceeding or remedy can be instituted, continued and enforced as if the repealing Act had not been passed. It is obvious that in respect of the right under Sub-section (4), the landlord cannot initiate any proceeding after repeal of the Act, because it would be necessary for him to establish that on the date of making the application, he required the house bona fide for his occupation and that would be an event subsequent to the repeal of the Act. However, a proceeding for enforcing that right, if initiated before the Act was repealed, would continue even after the repeal of the Act. As regards the right to get back possession on the ground of wilful default in payment of rent, legal proceeding can be instituted and also continued even after the repeal of the Act.

14. For the reasons stated above, this petition is partly allowed. That part of the order of the House Rent Controller whereby he has held that the proceeding was not maintainable even with respect to the prayer for eviction on the ground of wilful default in payment of rent is set aside. The matter is now remitted back to him and he is directed to dispose of the proceeding on merits and in accordance with law insofar as eviction is sought for on the ground of wilful default in payment of rent. No order as to costs.

G.B. Patnaik, J.

15. I agree.

P.C. Naik, J.

16. I agree.


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