CASE NO.: Appeal (civil) 5912 of 2002 PETITIONER: M/s. M. Subbarao & Sons RESPONDENT: Yashodamma & Ors. DATE OF JUDGMENT: 17/09/2002 BENCH: R.C. LAHOTI & BRIJESH KUMAR JUDGMENT:
J U D G M E N T
R.C. Lahoti, J.
Leave granted.
The landlord-respondents initiated proceedings for eviction of
the tenant-appellants on the grounds available under Clauses (f), (h)
and (p) of sub-Section (1) of Section 21 of Karnataka Rent Control
Act, 1961 (hereinafter ‘the Old Act’, for short). The trial Court
directed eviction of the tenants on all the three grounds. In a revision
preferred by the tenants, the learned Additional District Judge held the
ground under Clause (h) not available to the landlords. However, the
order of eviction was sustained upholding availability of grounds
under Clauses (f) and (p). The tenants and the landlords both filed
revision petitions before the High Court. By order dated 11.10.2000,
the High Court disposed of both the revisions holding that subletting
of tenancy premises by the tenants was made out and hence order for
eviction was sustainable under Clause (f). The High Court did not
deem it necessary to enter into the question of bona fide requirement.
On a prayer made on behalf of the tenants, they were allowed a period
of one and a half years for vacating the premises which period was to
expire on 11th April, 2002.
With effect from 31.12.2001, the Karnataka Rent Control Act,
1999 (hereinafter ‘the New Act’, for short) came into force. The suit
premises are non-residential premises measuring 352 sq. ft. i.e. more
than 14 sq. mts.. Section 2 of the New Act speaks of application of
the Act. Sub-Section (3) thereof provides that nothing contained in
this Act shall apply, amongst others, to any premises used for non-
residential purpose but excluding premises having a plinth area of not
exceeding fourteen square meters used for commercial purpose. It is
not disputed by learned counsel for the parties that the plinth area of
the suit premises exceeds 14 sq. mts. and the same are used for
commercial purpose, and therefore, the New Act is not applicable to
the premises.
As the tenants did not vacate the tenancy premises on or before
11.4.2002, the landlords filed execution proceedings after 11.4.2002.
The tenants objected to the maintainability of the execution
proceedings submitting that the decree passed under the Old Act in
respect of the premises to which the provisions of the New Act are not
applicable, has ceased to be executable with the repeal of the Old Act.
The objection was overruled by the executing Court as also by the
High Court. The aggrieved tenant-judgment debtors have preferred
this appeal by special leave.
Two questions arise for consideration:-
1. What is the effect of repeal of the Old Act by Section 70 of the
New Act on such decrees as were passed under the Old Act and
are yet to be executed?;
2. What would be the effect of Section 70 of the New Act on
special leave petitions filed under Article 136 of the
Constitution or on the appeals pursuant to the leave granted
thereunder?
Section 70 of the New Act and Section 6 of the Karnataka
General Clauses Act, 1899 provide as under:-
“70. Repeal and Savings.__(1) The
Karnataka Rent Control Act, 1961 (Karnataka Act
32 of 1961) is hereby repealed.
(2) Notwithstanding such repeal and subject to
the provisions of Section 69. __
(a) all proceedings in execution of any decree or
order passed under the repealed Act, and
pending at the commencement of this Act, in
any Court shall be continued and disposed
off by such Court as if the said enactment
had not been repealed;
(b) all cases and proceedings other than those
referred to in clause (a) pending at the
commencement of this Act before the
Controller, Deputy Commissioner,
Divisional Commissioner, Court, District
Judge or the High Court or other authority,
as the case may be in respect of the premises
to which this Act applies shall be continued
and disposed off by such Controller, Deputy
Commissioner, Divisional Commissioner,
Court, District Judge or the High Court or
other authority in accordance with the
provisions of this Act.
(c) all other cases and proceedings pending in
respect of premises to which this Act does
not apply shall as from the date of
commencement of the Act stand abated.
(3) Except as otherwise provided in Section 69
and in sub-section (2) of this section, provisions of
Section 6 of the Karnataka General Clauses Act,
1899 (Karnataka Act III of 1899), shall so far as
may be applicable in respect of repeal of the said
enactment, and Sections 8 and 24 of the said Act
shall be applicable as if the said enactment had
been repealed and re-enacted by this Act.”
“6. Effect of repeal. __ Where this Act or any
Mysore Act or Karnataka Act made after the
commencement of this act, repeals any enactment
hitherto made or hereafter to be made, then, unless
a different intention appears, the repeal shall not__
(a) revive anything not in force or existing at
the time at which the repeal takes effect; or
(b) affect the previous operation of any
enactment so repealed or anything duly done
or suffered thereunder; or
(c) affect any right, privilege, obligation or
liability acquired, accrued or incurred under
any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment
incurred in respect of any offence committed
against any enactment so repealed; or
(e) affect any investigation, legal proceeding or
remedy in respect of any such right,
privilege, obligation, liability, penalty,
forfeiture or punishment as aforesaid;
and any such investigation, legal proceeding or
remedy may be instituted, continued or enforced,
and any such penalty, forfeiture or punishment
may be imposed, as if the repealing Act had not
been passed.”
The learned counsel for the tenant-appellants submitted that the
tenants having been allowed 18 months’ time for vacating the suit
premises under an order of eviction which achieved finality on
11.10.2000, the execution was leviable only after 11.4.2002 and, thus,
there were no proceedings pending on 31.12.2001, the date on which
the New Act came into force. As nothing was pending (not even the
execution proceedings) on 31.12.2001, the date on which the New Act
came into force, Clauses (a) and (b) of sub-Section (2) of Section 70
of the New Act would not apply; the case would be covered by Clause
(c) within the meaning of “all other cases .. in respect of
premises to which this Act does not apply” and, therefore, the decree
under the Old Act shall, as from 31.12.2001, the date of
commencement of the New Act, stand abated. The proceedings, for
execution of a decree which had stood abated, filed after the
commencement of the New Act were incompetent and hence the
executing Court ought not to have proceeded ahead in an execution
filed after the commencement of the New Act and, instead, should
have simply declared the decree inexecutable as having abated.
We find the submission of the learned counsel for the
appellants devoid of any merit. A decree passed by a competent
Court under the Old Act cannot be said to be a ‘case pending’ on
31.12.2001. Inasmuch as the decree is not covered by any of the
clauses of sub-Section (2) of Section 70 of the New Act (as also by
Section 69 of the New Act which speaks of transfer of pending cases)
the decree would be covered under sub-Section (3) and attract
applicability of Section 6 of the Karnataka General Clauses Act and
would be protected thereunder. The decree defines the right of
landlord to eviction of tenant and the obligation or liability of the
tenant to vacate the premises under pain of execution. Such a right,
obligation or liability is not affected by repeal of an enactment unless
a different intention appears. No such different intention appears
from the provisions of the New Act. Under Section 70(2)(a) of the
New Act pending executions in respect of decrees passed under the
Old Act are saved. It will be preposterous to hold that though a
pending execution application is saved, a decree, which is yet to be
executed, is not saved.
A Division Bench of Karnataka High Court (R.V. Raveendran
and K.L. Manjunath, JJ) had an occasion to examine such an issue in
M/s. Mercury Press & Ors. Vs. Ameen Shacoor & Ors., ILR 2002
Kar 2304. During the course of its judgment the Division Bench has
observed :
“. . . . . . Though the Old Act did not confer
any rights on a landlord but only restricted
the absolute right of the landlord under the
provisions of the Transfer of Property Act, if
an order of eviction has already been passed
under the Old Act, then the right to evict the
tenant has been acquired by the landlord and
a corresponding obligation or liability had
been incurred by the tenant to vacate the
premises or be evicted from the premises,
under the order of eviction. Such right
(liability acquired or incurred under the
order of eviction passed under the Old Act
on or before 30.12.2001 remains unaffected
by the repeal having regard to Section 6 of
the General Clauses Act and as a
consequence, the landlord becomes entitled
to enforce such order of eviction by
executing it, subject to any remedy to which
the tenant will be entitled under law.” (Para
20)
The Division Bench, having examined the issue from several
angles, summed up its conclusion as under:-
“a) Matters pending in execution:
Where an order of eviction has already been
passed under the Old Act and is pending in
execution, irrespective of whether the order was in
regard to premises to which the New Act applies
or not, such execution proceedings can be
continued and disposed of by executing Court as if
the Old Act had not been repealed;
Orders of eviction passed under the Old Act
which have become final and conclusive on or
before 30.12.2001 in regard to which no execution
was levied on or before 30.12.2001, can also be
executed thereafter as if the Old Act has not been
repealed.”
We find ourselves in agreement with the view of law taken by
the High Court of Karnataka and approve the same.
We are, therefore, of the opinion that the executing Court and
the High Court have not erred in any manner in holding the decree not
abated and available for execution as a valid decree in spite of the
repeal of the Old Act by Section 70 of the New Act.
It was submitted at the Bar that there appears to be some
conflict in two decisions of this Court namely, Raminder Singh Sethi
Vs. D. Vijayarangam, (2002) 4 SCC 675 and Mahendra Saree
Emporium Vs. G.V. Srinivasa Murthy, (2002) 5 SCC 416. We have
carefully examined both the decisions and we find that there is no
conflict between the law laid down by this Court in the two decisions.
In Raminder Singh Sethi’s case, eviction of the tenant was directed
under Section 12(1)(a) of the Old Act. Section 12 is placed in Part II
of the Old Act. The eviction proceedings were commenced in the
year 1982 when the period of five years from the date of construction
of the building had not expired and to such a premises provisions of
Part III of the Old Act were not applicable. Part III contains Section
18 which prohibits recovery of unlawful charges by the landlord
including any premium or any rent in addition to fair rent. This Court
upheld the eviction of tenant under Section 12(1)(a) of the Act.
Before this Court the tenant pleaded that the New Act having been
brought into force during the pendency of the proceedings conferred
certain additional protection on the tenant who’s eviction was sought
for on the ground of default in payment of arrears. Vide para 6, this
Court refused to evaluate the legality of the decree passed under the
Old Act by testing it by reference to the provisions of the New Act on
the twin grounds: that the rights of the parties to litigation ordinarily
stand crystallized on the date of the commencement of lis and have to
be determined by reference to the law applicable on that day, and that
the provisions of the New Act are not retrospective in their
application. This Court observed inter alia that Section 70 of the New
Act does not provide for the provisions of the Act being made
applicable to the appeal or proceedings pending before the Supreme
Court. In Mahendra Saree Emporium’s case, an appeal pursuant to
leave granted under Article 136 of the Constitution was pending in
this Court when the New Act came into force. The decree passed by
the High Court directing eviction of tenant was in issue before this
Court. In view of the area of the premises being such as to which the
provisions of the New Act did not apply, this Court proceeded on an
assumption that the appeal shall stand abated by virtue of the
provisions contained in Clause (c) of sub-Section (2) of Section 70 of
the New Act. It appears that such position of law was almost not
disputed and, therefore, there is no in-depth scrutiny of the provisions
nor any reasons assigned for the view taken. In any case, the case
before us does not bear any similarity with the facts in the case of
Mahendra Saree Emporium.
No fault can be found with the view taken by the High Court.
The appeal is dismissed. However, the tenant-appellants are allowed
three months’ time for vacating the suit premises subject to their
clearing all the arrears of rent and filing an usual undertaking within
three weeks from today, and thereafter continuing to pay the arrears of
rent falling due month by month until delivery of possession. No
order as to the costs.
