PETITIONER: ISHA VALIMOHAMAD & ANR. Vs. RESPONDENT: HAJI GULAM MOHAMAD & HAJI DADA TRUST DATE OF JUDGMENT14/08/1974 BENCH: MATHEW, KUTTYIL KURIEN BENCH: MATHEW, KUTTYIL KURIEN RAY, A.N. (CJ) CITATION: 1974 AIR 2061 1975 SCR (1) 720 1974 SCC (2) 484 CITATOR INFO : O 1979 SC1745 (16) R 1987 SC1217 (13) RF 1991 SC2156 (10) ACT: Saurashtra Rent Control Act 1951- Whether termination of tenancy under Transfer of Property Act necessary before filing a suit for eviction on the grounds of subletting--Repeal and saving clause-Meaning of right, privilege acquired, accrued or- incurred. HEADNOTE: The respondents let out the premises to the appellants in the year 1951 in a place governed by the Saurashtra Rent Control Act, 1951 which prohibited a tenant from subletting the premises. The appellant sublet the premises in violation of the Saurashtra Act at a time when Saurashtra Act was in force. In 1963, the Saurashtra Act was repealed and the Bombay Rent Act was made applicable to the area in question. Under the Bombay Act there is no prohibition against subletting by the tenant unless the contract of tenancy prohibited it. The respondent terminated the tenancy of the appellant after the Saurashtra Act was repealed and, thereafter, a suit was filed for recovery of possession on the ground of subletting. The High 'Court held that the suit to recover possession was competent under Saurashtra Act after its repeal as the respondent had an accrued right within the meaning of section 51 of the Bombay Rent Act. The High Court assumed that the notice under the Transfer of Property act was necessary to terminate the tenancy. HELD : (1) The High Court was not right in its assumption that the notice under the Transfer of Property Act was necessary to terminate the tenancy on the ground that the appellants had sublet the premises. Under the Transfer of Property Act a mere subletting by a tenant unless the contract of tenancy so provides is no ground for terminating the tenancy. The respondent could not have issued a notice under the Transfer of Property Act to determine the tenancy as the contract of tenancy did not prohibit subletting by the tenant. The Saurashtra Act unconditionally prohibited a tenant from subletting and it was under that Act that the landlord was entitled to recover possession of the premises on the basis that the tenant had sublet the premises. A right accrued to the landlord to recover possession under the Saurashtra Act when the tenant sublet the premises and the right survived the repeal of that Act under section 51 of the Bombay Rent Act. Therefore, the suit for recovery of possession of the premises was maintainable after the repeal of the Saurashtra Act. [726-727D] (2) The right of a landlord to recover possession is not an accrued right it before the issue of a notice if under any law it was necessary for the landlord to issue tile notice to determine the tenancy. Privilege and inability are correlatives. Where there is a privilege there must be inability. Privilege is a' legal freedom on the part of one person as against another to do a given act or a legal freedom not to do a ,certain act. [724B,-725H; 726A-B] JUDGMENT:
CIVIL APPELLATE JURISDICTION : CIVIL Appeal No. 1915 of 1970
(Appeal by Special Leave from the Judgment & Order dated the
2nd/3rd March, 1970 of the Gujarat High Court in Revision
Appln. No. 371 of 1966.)
V.N. Ganpule and Urmila Sirur for the appellants.
D. V. Patel, KL. Hathi, A.R. Chaphekar and P.C. Kapur, for
respondent No. 1.
721
The Judgment of the Court was delivered by
MATHEW, J. In this appeal, by special leave, the question
for consideration is whether the High Court was right in
dismissing a revision petition filed by the appellants and
thereby upholding the judgment of the learned District
Judge, Jamnagar, decreeing the suit filed by respondent No.
1 for possession of the suit premises.
The suit premises consisted of a building known as Abdul Rat
man Manzil and it belonged to one Haji Mohamad, Haji Dada
Wakf (Trust). The building was leased to Osman Jamal and
Company under a rent note dated January 15, 1947. In or
about the year 1951, the firm of Osman Jamal and Company was
wound up and the appellants took the premises on rent on a
monthly rent of Rs. 320/-. The respondent, the landlord,
purported to terminate this tenancy by a. notice dated
February 12, 1964 on the ground that the appellants
(tenants) had defaulted in the payment of rent and had sub-
let the premises. At the trial of the suit, the plea that
the appellants committed default in payment of rent was
given up and, therefore, the sole issue before the Court was
whether the appellants had sub-let the premises. The
contention of the appellants was that under the contract of
lease, they had the right to sub-let the promises and,
there-fore, the respondent was not entitled to recover
possession of the premises.
The trial court held that the contract of tenancy contained
no prohibition against the tenant sub-letting the premises
and so, the respondent was not entitled to recover
possession of the premises for the reason that the
appellants had sub-let the premises and dismissed the suit.
The respondent. filed an appeal against this decree before
the District Judge. He held that s. 15 of the Saurashtra
Rent Control Act, 1951 (hereinafter referred to as “the
Saurashtra Act”) which prohibited a tenant from Sub-letting
the premises superseded the contract of tenancy between the
parties as that section was not subject to any contract to
the contrary and, therefore, the landlord obtained the right
to recover possession of the premises by virtue of s.
13(1)(e) of the Saurashtra Act. He further held that the
repeal of the Saurashtra Act by the Bombay Rents, Hotel and
Lodging House Rates (Control) Act, 1947 (hereinafter
referred to as “The Bombay Act”) on December 31, 1963, did
not affect the rights, privileges, obligations or liability
acquired, accrued or incurred under the former Act and,.
therefore, the liability of the appellants to ejectment
under s. 13(1)(e) of the Saurashtra Act on the ground of
sub-letting could be enforced by a suit, notwithstanding the
repeal of that Act. The District Judge, therefore, allowed
the appeal and decreed the suit.
Against this judgment, the appellants filed a revision
before the High Court of Gujarat. When the application for
revision came up for hearing before a learned single judge
of the High Court, he referred it to a Division Bench. The
question before the )Division Bench was :
“Whether the landlord is entitled to maintain
a suit for recovery of possession from the
tenant. On the ground
722
of sub-letting under section 13(1)(e) of the
Bombay Rent Act (No. 57 of 1947), as applied
to Gujarat State on 31 December 1963), where
the sub-letting was made during the pendency
of the Saurashtra Rent Control Act and neither
the notice to terminate the contract was given
nor the suit was filed before the date on
which the Saurashtra Rent Control Act was
repealed ?”
The Division Bench, by its judgment, held that the suit to
recover possession of the premises was competent under s.
13(1)(e) of the ‘Saurashtra Act notwithstanding the repeal
of that Act as the respondent had an accrued right within
the meaning of s. 51, proviso (2) of the Bombay Act and
confirmed the decree for ejectment. It is from this
judgment that the present appeal has been filed.
As already stated, the Saurashtra Act was repealed on
December 31, 1963; the Bombay Act was made applicable to the
area in question on January 1, 1964. The appellants sub-let
the premises while the ‘Saurashtra Act was in force in the
area. That Act by s. 15 prohibited sub-letting
notwithstanding anything contained in any law. Section
13(1)(e) of the Saurashtra Act provided :
“13. When landlord may recover possession-
(1)Notwithstanding anything contained in this
Act, a landlord shall be entitled to recover
possession of any premises if the Court is
satisfied-
* * * * * *
(e) that the tenant has, since the coming into
operation of this Act, sub-let the whole. or
part of the premises or assigned or
transferred in any other manner his interest
therein.”
Therefore, there can be no doubt that the respondent could
have filed a suit to recover possession under S. 13(1) of
the Saurashtra Act on the ground that the appellants had
sub-let the premises while that Act was in force. But the
appellants submitted that since no notice ,terminating the
tenancy was given before the repeal of the Saurashtra Act,
the respondent-landlord had no accrued right to recover
possession which could survive the repeal and therefore he
was not entitled .to file the suit after the repeal of that
Act, as under the corresponding ,provisions of the Bombay
Act, the suit was not maintainable.
Section 13(1)(e) of the Bombay Act provides :
“13. When landlord may recover Possession.-
(I) Notwithstanding anything contained in this
Act but subject to the provisions of s. 15, a
landlord shall be entitled to recover pos-
session of any premises if the Court is
satisfied-
* * * * * *
(e) that the tenant has, since the coming into
operation of this Act unlawfully sub-let the
whole or part of the premises or assigned or
transferred in any other manner his interest
therein.”
It may be noted that under the Bombay Act, there is no
prohibition against sub-letting by tenant unless the
contract of tenancy prohibited it. That idea is conveyed by
the words “unlawfully subject” in
723
the sub-section. That apart, the section can obviously have
no application as the subletting was before the coming into
operation of that Act.
The notice to terminate the tenancy was issued by the
landlord on February 12, 1964 i.e., after the Saurashtra Act
was repealed and the suit was filed for recovery of
possession of the premises after the Bombay Act came into
force. As already stated, the Division Bench took the view
that the landlord had an accrued right within the meaning of
proviso (2) to s. 51 of the Bombay Act, and therefore, a
suit could be instituted for recovery of possession under s.
13(1)(e) of the Saurashtra Act. Section 51 of the Bombay
Act, so far as it is material, provides :
“51. Repeal of Sau. Act XXII of 1951 and of
Bombay LVII of 1947 as extended to Kutch Area
and saying.-
The Saurashtra Rent Control Act, 1951 (San.
Act XXII of 1951) and the Bombay Rents, Hotel
and Lodging House Rates Control Act, 1947
(Bom. LVII of 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 10th September 1951 are
hereby repealed
Provided that
* * * * * *
(ii) affect any right, privilege, obligation
or liability acquired, accrued or incurred
under any law so repealed;
(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.”
As already stated, the submission on behalf of the
appellants was that before the issue of notice terminating
the tenancy, the landlord had no accrued right to institute
a suit for recovery of possession as the issue of a notice
determining the tenancy on the ground of subletting was a
sine qua non for filing a suit under s. 13(1)(e) of the Sau-
rashtra Act. In other words, the argument was that the sub-
letting by the tenant when the Saurashtra Act was in force
only gave the landlord a right to terminate the tenancy and
that until the tenancy was terminated by a notice under the
Transfer of Property Act, it cannot be said that any right
accrued to the landlord to recover possession of the
premises which would survive the repeal of the Saurashtra
Act.
if a notice under the provisions of the Transfer of Property
Act was necessary to determine the tenancy on the ground of
sub-letting, we do not think that the High Court was right
in its view that a right accrued to the landlord to recover
possession of the premises under s. 13(i)(e) of the
Saurashtra Act merely because the tenant sub-let the
premises and that was prohibited by s. 15 of that Act. In
other words, if the assumption of the High Court that a
notice terminating
724
the tenancy on the ground of sub-letting was necessary for
filing a suit under s. 13(1)(e) of the Saurashtra Act was
correct, then we do not think that the respondent-landlord
had an accrued right which would survive the repeal of that
Act unless the notice was issued determining the tenancy
during the currency of that Act. We do not think that the
right of a landlord to recover possession on the ground that
the tenant has sub-let the premises is an accrued right
before the issue of a notice, if under any law it was
necessary for the landlord to issue the notice to determine
the tenancy on the ground of sub-letting.
In Hamilton Coll v. While (1) Atkin L. J. said that the
provision of s. 38(f)(c) of the English Interpretation
Act, corresponding to s. 51, proviso (2), of the Bombay Act,
was not intended to preserve abstract fights conferred by
the repealed Act and that it applies only to the specific
rights given to an individual upon the happening of one or
more events specified in the statute. The Court held in
that case that a tenant’s general right to compensation for
disturbance would not survive the repeal of the Agricultural
Holdings Act, 1908. But, where a landlord, before the
repeal, had given his tenant notice to quit, the tenant had
‘acquired a right’ which would ‘accrue’ when he quitted his
holding-the right to receive compensation. In Abbott
v.Minister of Lands (2) where the appellant claimed that. as
a purchaser of Crown land in New South Wales in 1871 he
became entitled under the Crown Lands Alienation Act 1861 to
make further purchases of Crown land adjoining his original
holding. The Act of 1861 was repealed by the Crown Lands
Act, 1884 which, however, provided that notwithstanding the
repeal ‘all rights accrued’ by virtue of the repealed
enactment should remain unaffected. The Judicial Committee
held that the mere right existing at the date of the
repealing statute to take advantage of the provisions of the
Act repealed was not a ‘right accrued’ within the meaning of
the saying clause. In Director of Public Works v. Ho Po
Sang (3), the Privy Council has had to consider the
question. It was held that the fact that the Director of
Public Works had given a Crown lessee notice of his
intention to grant a rebuilding certificate, which would
enable the lessee to recover vacant possession from the
persons in occupation of the premises, did not confer any
right to the certificate on the lessee, since various
conditions had remained to be fulfilled before the
certificate could be granted, so that the lessee had no more
than a hope that it would be granted. Lord Morris of Borth-
y-Gest said :
“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 necessary. 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 whether some right should or
should not be given. Upon a repeal the former
is preserved by the Interpretation Act, The
latter is not.”
(2) [1895] A.C. 425.
(1) [1922] 2 K.B. 422.
(3) [1961] A.C. 9011
725
In Free Lanka Insurance Co. Ltd. v. Ranasinghe (1) Lord
Evershed said that the distinction between what was, and
what was not, a right must often be one of great finance and
the Court held that a claim given by the Ceylon Motor Car
Ordinance of 1936 to an injured person against the other
party involved in an accident was “something more than a
mere hope or expectation….he had in truth a right….al-
though that right might fairly be called inchoate or
contingent”.
We do not, however, think that the right of the landlord to
terminate the tenancy by giving a notice on the ground that
the tenant has sub-let the premises was an accrued right
within the meaning of s. 51 of the Bombay Act which would
survive the repeal of the Saurashtra Act.
Mr. Patel for respondent contended that even if the landlord
had no accrued right, he at least had a ‘privilege’ as
visualised in s. 51, proviso (1)(ii) of the Bombay Act and
that the privilege should survive the repeal.
“A privilegium, in short, is a special act
affecting special persons with an anomalous
advantage, or with an anomalous burthen. It
is derived from privatum, which, as opposed to
publicum, signified anything which regards
persons considered individually; publicum
being anything which regards persons con-
sidered collectively, and forming a society”
(See Austin’s Jurisprudence, Vol. II, 5th ed. (1911) P. 519)
The meaning of that word in jurisprudence has undergone
considerable change after Austin wrote. According to
Hohfeld :
“….a privilege is the opposite of a duty,
and the correlative of a ‘no-right”‘. For
instance, where “X has a right or claim that
Y …. should stay off the land (of X), he
himself has the I privilege’ of entering on
the land; or, in equivalent words, X does not
have a duty to stay off.”
Fundamental Legal Conceptions, (1923) pp. 38-39)
Arthur L. Corbin writes
“We know that those results would not occur.
In such case we say that B had no right that A
should stay out and that A had the privilege
of entering.”
(See “Legal Analysis and Terminology”, 29 Yale
Law Journal 163)
According to Kocourek
“Privilege and inability are correlatives.
Where there is a privilege there must be
inability. The term-, are correlatives. The
dominus of a Privilege may prevent the servus
of the Inability from exacting an act from the
dominus”
(See “Jural Relations”, 2nd ed., P. 24)
(1) [1964] A.C. 541.
726
Paton says :
“The Restatement of the law of Property
defines a privilege as a legal freedom on the
part of one person as against another to do a
given act or a legal freedom not to do a
certain act”.
(See Jurisdiction, 3rd ed.(1964), p.256)
We think that the respondent-landlord had the legal freedom
as against the appellants to terminate the tenancy or not.
The appellants had no right or claim that the respondent
should not terminate the tenancy and the respondent had,
therefore, the privilege of terminanating it on the ground
that appellants had sub-let the premises. This privilege
would survive the repeal. But the problem would still re-
main whether the respondent had an accrued right or
privilege to recover possession of the premises under S.
13(1) of the Saurashtra Act on the ground of the sub-letting
before the repeal of that Act. The fact that the privilege
to terminate the tenancy on the ground of sub-letting
survived the repeal does not mean that the landlord had an
accrued right privilege to recover possession under s.
13(1) of that Act as that right or privilege could arise
only if the tenancy had been validly terminated before the
repeal of the Saurashtra Act.
Be that as it may, we do not, however, think that the High
Court was right in its assumption that a notice under the
Transfer of Property Act was necessary to terminate the
tenancy on the ground that the appellant s had sub-let the
premises; or, for that matter, the landlord could legally
have terminated the tenancy by giving a notice, unless the
contract of tenancy prohibited the tenant from subletting
the premises.
Under the Transfer of Property Act, mere sub-letting, by a
tenant, unless the contract of tenancy so provides, is no
ground for terminating the tenancy. Under that Act a
landlord cannot terminate a tenancy on the ground that the
tenant had sub-let the premises unless the contract of
tenancy prohibits him from doing so. The respondentlandlord
therefore could not have issued a notice under any of the
provisions of the Transfer of Property Act to determine the
tenancy, as the contract of tenancy did not prohibit sub-
letting by the tenant. To put it, differently under the
Transfer of Property Act, it is only if the contract of
tenancy prohibits sub-letting by tenant that a landlord can
forfeit the tenancy on the ground that the tenant has sub-
let the promises and recover possession of the same after
issuing a notice. Section III of the Transfer of Property
Act provides that a lease- may be determined by forfeiture
if the tenant commits breach of any of the conditions of the
contract of tenancy which entails a forfeiture of the
tenancy. If sub-letting is not prohibited under the
contract of tenancy, sub-letting would not be a breach of
any condition in the contract of tenancy which would enable
the landlord to forfeit the tenancy on that score by issuing
a notice. If that be so, there was no question of the
respondent landlord terminating the tenancy under the
Transfer of Property Act on the ground that the tenant had
sub-let the premises. It is only under s. 13(1)(e) of the
Saurashtra
727
Act that a landlord was entitled to recover possession of
the property on the basis that the tenant had sub-let the
premises; and, that is because, s. 15 of that Act
unconditionally prohibited a tenant from sub-letting. The
Saurashtra Act nowhere insists that the landlord should
issue a notice and terminate the tenancy before instituting
a suit for recovery of possession under s. 13(1)(e) on the
ground that the tenant had sub-lot the premises. The
position, therefore, was that the landlord was entitled to
recover possession of the promises under s. 13(1) of the
Saurashtra Act on the ground that the tenant sub-let the
premises. It would follow that a right accrued to the
landlord to recover possession under s. 13(1) of the
Saurashtra Act when the tenant sub-let the premises during
the currency of that Act and the right survived the repeal
of that Act under proviso (2) to s. 51 of the Bombay Act
and, therefore, the suit for recovery of possession of the
premises under s. 13(1) read with clause (e) of the Sau-
rashtra Act after the repeal of that Act on the basis of the
sub-letting during the currency of the Saurashtra Act was
maintainable. In this view, we think that the judgment of
the High Court must be up held and we do so.
The appeal is dismissed, but we make no order as to costs.
Appeal dismissed.
P.H.P.
728