CASE NO.: Appeal (civil) 5479-81 of 1993 PETITIONER: PARRIPATI CHANDRASEKHARRAO AND SONS RESPONDENT: ALAPATI JALAIAH DATE OF JUDGMENT: 26/04/1995 BENCH: P.B. SAWANT & S.B. MAJMUDAR JUDGMENT:
JUDGMENT
1995 (3) SCR 817
The Judgment of the Court was delivered by
SAWANT, J. The short question which falls for consideration in the present
appeal is whether on the coming into operation of the notification on 26th
October, 1983 issued by the State Government in exercise of the powers
conferred upon it under Section 26 of the Andhra Pradesh Buildings (Lease,
Rent and Eviction) Control Act, 1960 (hereinafter referred to as the
“Act”), the three applications made by the tenant for relief under the Act
survive or not.
The relevant facts are that the suit premises were governed by the Act till
29th December, 1983. On 4th February, 1983 and 13th February, 1983, the
respondent-tenant filed variously three applications, viz., (i) R.C.15/83
for direction to permit him to deposit rent in the court (ii) R.C. 16/83
for fixation of fair rent and (iii) R.C. 17/83 to prevent inconvenience.
The State Government issued notification dated 29th December, 1983
exempting w.e.f. 26th October, 1983 from all the provisions of the Act,
among others, buildings whose monthly rent exceeded Rs. 1,000. The
definition of the ‘building’ under the Act includes any tenanted premises
and hence the suit premises stood exempted from the operation of the Act
w.e.f. 26th October, 1983 since on the said date the monthly rent payable
in respect of the premises was Rs. 1,300.
The Rent Controller dismissed the tenant’s applications by his order of 6th
April, 1985 on the ground that the rent of the premises being in excess of
Rs. 1,000 he had no jurisdiction to entertain and decide the applications
after 26th October, 1983. Against the said decision, the tenant preferred
three appeals in the three applications to the Subordinate Judge. The
appeals were dismissed upholding the decision of the Rent Controller.
Against the decision in appeal, the tenant preferred three revision
petitions, viz., C.R.P. Nos. 624, 831 and 1043/91 in the High Court and the
High Court by the impugned decision allowed the said petitions holding that
the Rent Controller had jurisdiction to entertain and decide the
applications since the notification in question did not apply to the
pending proceedings.
2. It appears that while the tenant’s appeals were pending before the
Subordinate Judge, he had preferred a writ petition being W.P. No, 8081/86
in the High Court challenging the validity of clause (b) of the said
notification which states that the buildings fetching monthly rent
exceeding Rs 1,000 stood exempted from the provisions of the Act. The
learned Single Judge of the High Court dismissed the writ petition
upholding the validity of the said provisions. The tenant preferred a writ
appeal which also met the same fate. Against the decision in the writ
appeal, the tenant preferred special leave petition in this Court which was
dismissed summarily at the admission stage without a speaking order.
Shri Sitaramiah, learned counsel appearing for the appellant-landlord
contended that on the coming into operation of the said notification from
the 26th October, 1983, the protection given to the tenant stood withdrawn
and, therefore, whatever rights he had under the provisions of the Act,
stood extinguished on and from the said date. As against this, it was
contended by Shri Subba Rao for the tenant that the tenant had acquired
vested rights under the Act and they were alive when the applications were
made and he could not be divested of the same by the Notification which
came into operation from a subsequent date, as held by the Division Bench
of the High Court.
In support of his contention, the learned counsel for the landlord relied
upon, among others, the following decisions of this Court. The first of the
decision is D.C. Bhatia & Ors., v. Union of India & Anr.,[l995] 1 SCC 104
where a three-Judge Bench of this Court disposed of several appeals arising
out of an amendment of the Delhi Rent Control Act whereby Section 3 (c) was
introduced in the said Act withdrawing the protection of that Act to such
premises whose rent was Rs. 3,500 per month or Rs. 42,000 per annum or
above. One of the contentions advanced there on behalf of the tenants was
that the amendment in question came into force on 1st December, 1988 and,
therefore, it would not apply to those tenancies which were created prior
to the said date. It was urged that the amendment was not specifically made
retrospective and hence it could not affect the rights of the tenants
already acquired under the said Act. Repelling these contentions, this
Court held as follows :
“52. We are unable to uphold this contention for a number of reasons. Prior
to the enactment of the Rent Control Act by the various State Legislatures,
the legal relationship between the landlord and tenant was governed by the
provisions of the Transfer of Property Act. Delhi Rent Control Act provided
protection to the tenant from drastic enhancement of rent by the landlord
as well as eviction, except on certain specific grounds. The legislature by
the Amendment Act No. 57 of 1988 has partially repealed the Delhi Rent
Control Act. This is a case of express repeal. By Amending Act the
legislature has withdrawn the protection hither-to enjoyed by the tenants
who were paying Rs. 3,500 or above as monthly rent. If the tenants were
sought to be evicted prior to the amendment of the Act, they could have
taken advantage of the provisions of the Act to resist such eviction by the
landlord. But this was nothing more than a right to take advantage of the
enactment. The tenant enjoyed statutory protection as long as the statute
remained in force and was applicable to him. If the statute ceases to be
operative, the tenant cannot claim to continue to have the old statutory
protection. It was observed by Tindal, C J. in the case of Kay v. Goodwin,
[1830] 6 Bing 576: 130 ER 1403 at 1405.
“The effect of repealing a statute is to obliterate it as completely from
the records of the Parliament as if it had never been passed; and, it must
be considered as a law that never existed, except for the purpose of those
actions which were commenced, prosecuted, and concluded whilst it was an
existing law.”
“53. The provisions of a repealed statute cannot be relied upon after it
has been repealed. But, what has been acquired under the Repealed Act
cannot be disturbed. But, if any new or further step is needed to be taken
under the Act, that cannot be taken even after the Act is repealed.”
“54. In the case of Kewal Singh v. Lajwanti, vires of Section 25-B of the
Delhi Rent Control Act was challenged. Section 25-B was inserted to provide
the landlord with a speedy remedy of eviction in case of bona fide
necessity of the landlord. A contention was raised on behalf of the tenants
that the provisions of Section 25-B violated Article 14 of the
Constitution. Fazal Ali, J., speaking on behalf of the Court, repelled this
argument by observing (SCC p.303, para 21)
“Thus any right that the tenant possessed after the expiry of the lease was
conferred on him only by virtue of the Rent Control Act. It is, therefore,
manifest that if the legislature considered in its wisdom to confer certain
rights or facilities on the tenants, it could due to changed circumstances
curtail, modify, alter or even take away such rights or the procedure
enacted for the purpose of eviction and leave the tenants to seek their
remedy under the common law.”
“55. In the instant case the legislature has decided to curtail or take
away the protection of the Delhi Rent Control Act from a section of the
tenants. The tenants had not acquired any vested right under the Delhi Rent
Control Act, but had a right to take ad-vantage of the provisions of the
repealed Act so long as that law remained in force.” (emphasis ours)
“56. In the case of Mohinder Kumar v. State of Haryana, the validity of the
Amending Act of 1978 by which Haryana Urban (Control of Rent and Eviction)
Act, 1973, was amended was challenged. The Amending Act by which a category
of newly constructed buildings were exempted from the provisions of the Act
for a period of ten years, was challenged, inter alia, on the ground that
the provisions operated retrospectively and sought to take away the vested
rights of the tenants under the Act. This contention was repelled by this
Court in the following words : (SCC p.231, para 17)
“The argument that the tenants have acquired a vested right under the Act
prior to its amendment is without any substance. Prior to the amendment of
Section 1(3) by the Amending Act of 1978, the provision as it originally
stood cannot be said to have conferred any vested right on the tenants. The
provision, as it originally stood prior to its amendment, might not have
been constitutionally valid as the exemption, sought to be granted was for
an indefinite period. That does not necessarily imply that any vested right
in any tenant was thereby created. The right claimed is the right to be
governed by the Act prior to its amendment. If the Legislature had thought
it fit to repeal the entire Act, could the tenant have claimed any such
right? Obviously, they could not have; the question of acquiring any vested
rights really does not arise.” (emphasis ours)
“58. The last contention was as to whether the term ‘rent’ is to be
construed as “standard rent” and not as the rent which is actually being
paid. This argument is also not acceptable for a number of reasons.
Firstly, the legislature has not used the expression ‘stand-ard rent’ in
clause (c) of Section 3. Words normally should be understood in the
ordinary dictionary meaning.”
“60. It had been contended on behalf of the tenants that unless ‘standard
rent’ was determined in accordance with the provisions of Section 6 of the
Act, the provisions of Section 3(c) could not be made applicable. There is
nothing in the wording of Section 3(c) to support this contention. Section
3(c) speaks of premises ‘whose monthly rent exceeds three thousand and five
hundred rupees’.”
It, however, appears that in the judgment under appeal in that case it had
been held that the provisions of the said section 3(c) could not be
applicable to the cases which were pending before the Court. Since no
arguments were advanced on that point by any of the parties before this
Court, the Court made it clear that it was not expressing any opinion on
the said controversy.
The next decision is reported in [1964] 6 SCR 876 in Rafiquennessa v. Lal
Bahadur Chetri (dead) through His representatives & Ors. In that case the
appellant sued the lessee, the predecessor of the respondent for ejectment
on the latter’s failure to deliver possession of a leased land at the
expiration of the stipulated period. Under the covenant, the lessee was
entitled to build a house for residential purposes. The Trial Court decreed
the appellant’s claim whereupon the lessee filed an appeal. While it was
pending, the Assam Non-Agricultural Urban Areas Tenancy Act was passed, and
thereafter the lessee prayed for permission to take an additional ground
under Section 5 of that Act. Before that date, the High Court had taken the
view that the said provision of the Act was applicable to pending
proceedings. The lower appellate court allowed the lessee’s plea and
ultimately allowed the appeal and set aside the decree concluding that the
two houses had been constructed by the lessee within five years after
taking of the lease and that entitled the lessee to claim the benefit of
Section 5 of the Act. The High Court on appeal, following its earlier
decision summarily dismissed the appeal. In the appeal filed to this Court,
the Court held that (i) the statutory provision is retroactive either when
it is so declared by the expressed terms or the intention to make
retroactive clearly follows from the relevant words and the context in
which they occur and (ii) the provisions of the Act clearly indicate that
the legislature wanted the beneficent provisions enacted by it to take
within their protection not” only leases executed after the Act came into
force, but also leases executed prior to the operation of the Act. The
plain object of Section 5 was to protect the tenants who had built a
permanent structure either for business or for residence, provided it had
been built within five years from the date of the contract of tenancy, even
though the construction had been made before the date of the Act. (iii) A
suit which was pending when the Act came into force would be governed by
Section 5(1) (a) of the Act. An appeal likewise would be governed by the
said Section provided it was pending after the date, when the act came into
force the appeal pending being a continuation of the suit.
The learned counsel for the landlord also sought to derive support to his
contention from a decision of this Court in [1995] 1 SCR 410 Super Forgings
& Steels (Sales) Pvt. Ltd. v. Thyabalfy Rasuljee (dead) through Lrs.
According to us, the said decision is not apt for supporting his
submissions since it relied upon the developments between the parties
during the pendency of the proceedings in this court for its conclusion
that the said developments could be taken into consideration for the
decision in that matter.
As against this, the learned counsel for the tenant relied upon the
decision of this Court reported in [1988] Supp. 2 SCR 528 Atma Ram Mittal
v. Ishwar Singh Punia. In that case, the appellant-landlord had filed a
civil suit against the respondent-tenant for possession of a shop which had
been rented out by him in 1978. The suit was filed on the basis that the
respondent was in arrears of rent from 1st December, 1981 to 31st May,
1982, that the tenancy had been terminated by giving a suit notice, and
that Section 1(3) of the Haryana Urban (Control of Rent and Eviction) Act,
1973 exempted the building from the purview of the Act. On 15th February,
1983, the respondent-tenant filed his written statement, and in November,
1984, moved an application for dismissal of the suit stating that the shop
in question was constructed in June 1974 and as such, the period of 10
years had expired by June 1984 in terms of Section 1(3) of the Act and as
such the immunity from the application of the Act had expired. Hence the
suit was not maintainable and the jurisdiction of the civil court was
barred. On these facts this Court held :
“It is well-settled that no man should suffer because of the fault of the
Court or delay in the procedure. Broom has stated the maxim “actus, curiam
neminem gravabit” – an act of Court shall prejudice no man. Therefore,
having regard to the time normally consumed for adjudication, the 10 years
exemption or holiday from the application of the Rent Act would become
illusory, if the suit has to be filed within that time and be disposed of
finally. It is common knowledge that unless a suit is instituted soon after
the date of letting it would never be disposed of within 10 years and even
within that time it may not be disposed of. That will make the 10 years
holidays from the Rent Act illusory and provide no incentive to the
landlords to build new houses to solve problem of shortages of houses. The
purpose of legislation would thus be defeated. Purposive interpretation in
a social amelioration legislation is an imperative irrespective of anything
else.”
On this finding this Court set aside the decision of the High Court which
had taken the view that the proceedings filed by the landlord had come to
an end on the expiry of the period of 10 years from the date of the
construction of the premises in question.
Relying on the aforesaid observations and the finding, the learned counsel
of the tenant urged that on the same analogy applications filed by the
tenant would also survive notwithstanding the coming into operation of the
Notification in question since the applications were pending in the court
on that date.
According to us there is a material difference between the rights which
accrue to a landlord under the common law and the protection which is
afforded to the tenant by such legislation as the Act. In the former case
the rights and remedies of the landlord and tenant are governed by the law
of contract and the law governing the property relations. These rights and
remedies continue to govern their relationship unless they are regulated by
such protective legislation as the present Act in which case the said
rights and remedies remain suspended till the protective legislation
continues in operation. Hence while it can legitimately be said that the
landlords’ normal rights vested in him by the general law continue to exist
till and so long as they are not abridged by a special protective
legislation in the case of the tenant, the protective shield extended to
him survives only so long as and to the extent the special legislation
operates. In the case of the tenant therefore the protection does not
create any vested right which can operate beyond the period of protection
or during the period the protection is not in existence. When the
protection does not exist, the normal relations of the landlord and tenant
come into operation. Hence the theory of the vested right which may validly
be pleaded to support the landlords’ case is not available to the tenant.
It is for this reason that the analogy sought to be drawn by Shri Subbarao
between the landlord’s and the tenant’s rights relying upon the decision of
this Court in (1988) Suppl. 2 SCR is misplaced. In that case the landlord’s
normal right to evict the tenant from the premises was not interfered with
for the first ten years of the construction of the premises by an exemption
specifically incorporated in the protective Rent legislation in question.
The normal right was obviously the tested right under the general law and
once accrued it continued to operate. The protection given to the tenant by
the Rent legislation came into operation after the expiry of the period of
10 years. Hence, notwithstanding the coming into operation of the
protection and in the absence of the provisions to the contrary, the
proceedings already commenced on the basis of the vested right could not be
defeated by mere passage of tune consumed by the said proceedings. It is
for this reason that the Court there held that the right which had accrued
to the landlord being a vested right could not be denied to him by the
efflux of time.
That is not the situation in the present case where the tenant who
undoubtedly had the rights and remedies under the Act to claim reliefs
against landlord, lost the same the moment the protection was taken away,
the rights and remedies being not vested ones.
In this view of the matter, we are of the view that the view taken both by
the Rent Controller and the Appellate Court was right and the decision of
the High Court is not correct. Hence, set aside the impugned decision of
the High Court and allow the appeals. As a result, the applications filed
by the respondent- tenant before the Rent Controller will stand dismissed.
Appeals allowed.