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CASE NO.:

Appeal (civil) 5706 of 2001

Appeal (civil) 5707 of 2001

PETITIONER:

M/S. AMBALAL SARABHAI ENTERPRISES LTD.

Vs.

RESPONDENT:

M/S. AMRIT LAL & CO. & ANR.

DATE OF JUDGMENT: 27/08/2001

BENCH:

A.P. Misra & D.P. Mohapatra

JUDGMENT:

J U D G E M E N T

MISRA, J.

Leave granted.

It is unfortunate, an eviction petition which was filed on the 13th

September 1985 still the parties are battling to find which court would

have the jurisdiction. Whether the court of Rent Controller under

Delhi Rent Control Act or ordinary Civil Court having jurisdiction

over the subject matter in issue? As discipline and culture in every

walk of life is essential for smooth functioning in all its activities,

similarly judicial culture and discipline has to be followed in order to

achieve the desired result viz. to give litigant justice in the shortest

period of time. Every legislation legislates for the benefit of its

subject but many a times, raising issues for every thing and stretching

it too long percolates the very objective for which it is made. With

the increasing complexities of laws coupled with faulty legislation,

using inappropriate language, a stress is created which the courts

through its judicial interpretations have been attempting to simplify it.

In spite of this the hope for an early adjudication has been eluding like

a mirage. With the advancement of legal studies there is sharpening

of the acumen of advocacy. Every word of a statute, if interpreted

when equipped with such dynamism, could be intellectually misused,

hence interpreters including counsel, has to keep balance not to let this

misuse surface. As knife in the hand of a murderer and doctor has

different roles to play, so the interpreters have to select to play the role

of a doctor to confer benefit to the subject. The words in a statute are

dynamic, not static, hence has to be interpreted to subserve to the

objectives of an Act. Such Judicial discipline in interpreting has to be

followed for yielding legislative intent. Similarly judicial culture has

to be cultivated even by counsels appearing for a cause, who has to

see that the judicial system does not rust or get stains for a delayed

justice.

To win a battle for a client is the legitimate expectation of all

but in doing so deliberations should not be such which lengthens the

litigation, even if it confers temporary gain to ones client in a lis.

Every member of the judicial fraternity has to play its role with the

main object to find the truth and render justice to the litigant. This

judicial culture has not to be lost sight. The present case is one of such

cases, which causes concern in this regard.

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The aforesaid appeals raise an interesting but somewhat

complex question for adjudication with reference to the jurisdiction of

the court. The question for consideration is, what is the effect of the

amendment which incorporated Section 3(c) in the Delhi Rent Control

Act, hereinafter referred to as the Rent Act in the pending eviction

proceedings. Section 3(c) of the Rent Act was brought through

amendment which became effective from 1.12.1988 which reads as

under:

3. Act not to apply to certain premises

Nothing in this Act shall apply;

.

(c) to any premises, whether residential or not,

whose monthly rent exceeds three thousand and

five hundred rupees;

In effect it makes Rent Act inapplicable to the tenancies whose

monthly rent exceeds Rs.3500/-. It is not in dispute, in the present

case, the rate of monthly rent is Rs.8625/- per month and proceeding

for the eviction was pending under the Rent Act when the said

amendment came into force. In order to appreciate the controversy

effectively we are hereunder giving certain essential matrix of facts.

The aforesaid two appeals arise out of judgment and order dated

29th November, 1999 passed by the High Court. The first being from

an order in second appeal from order No.5/1999 and the second being

from an order in Civil Revision No. 10/1998.

The High Court allowed landlords second appeal from order

but dismissed the revision of the tenant. Hence both these appeals are

filed by the tenant. The respondent-landlord filed an eviction petition

against the appellant on the ground of sub-letting as enumerated in

Section 14(1)(b) of the Delhi Rent Control Act, in the court of Rent

Controller Delhi on the 13.9.1985. When this petition was pending,

as aforesaid, Section 3(c) was brought in, through amendment w.e.f.

1.12.1988 by which it excluded the jurisdiction of Rent Controller

with respect to those tenancies fetching monthly rent exceeding

Rs.3500/-. In effect it took away such tenancies from the purview of

the aforesaid Act. Thereafter the landlord sent a notice on 11.9.1991

terminating the tenancy of the appellant under Section 106 of the

Transfer of Property Act. On 18.11.1991 landlord filed a suit for

recovery of possession in the Delhi High Court in its original side

which is registered as suit No. 390/1995. When this fact was brought

to the notice of the Additional Rent Controller that the landlord has

already filed a suit appellant prayed that this eviction petition be

dismissed or in the alternative its proceedings be stayed. However,

the Rent Controller rejected such a request by his order dated

23.11.1992 relying on the ratio of D.C. Bhatia & Ors. vs. Union of

India & Anr. 56 (1994) DLT 324. Thereafter in the suit the appellant

filed an application under Order 7 Rule 11 CPC to reject the plaint as

parallel proceedings cannot be continued both before the Rent

Controller and the Civil Court. The Trial Court on 18.10.1997

rejected appellants aforesaid application. Aggrieved by that the

appellant filed revision before the High Court.

As aforesaid, in the meanwhile the appellant moved an

application before the Additional Rent Controller under Section 9 read

with Section 151 CPC praying that the court of Rent Controller has no

jurisdiction to proceed with the matter under the aforesaid Act in view

of the amendment brought in the year 1988. The Rent Controller

dismissed this application. The Rent Control Tribunal allowed the

appellants appeal and quashed eviction proceedings. Aggrieved by

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that landlord filed second appeal from order in the High Court which

was allowed which is the subject matter of one of the aforesaid appeal

before us.

So far the appeal arising out of revisional order, the High Court

held the protection enjoyed by the tenant on account of statute was no

more in operation and in such a case parties would be governed by the

ordinary common law, hence respondent-landlord was fully justified

in filing a suit for possession before the competing civil court having

jurisdiction. In other words High Court held respondent-landlord

rightly filed suit before the Civil Court.

We may point out here that learned counsel for the appellant, in

view of his submissions which he is making in appeal arising out of

judgment and order in second appeal from order, which we shall be

dealing hereinafter, does not want to press this appeal, viz., Civil

Appeal No/2001 (Arising out of S.L.P. (C ) No.4233 of 2000),

hence it is dismissed.

This takes us to consider only the other appeal. The appellant-

tenant submits, it is the Civil Court alone which has the jurisdiction

after the aforesaid amendment and not the Rent Controller, while

respondent-landlord submits, notwithstanding the aforesaid

amendment it is the Rent Controller which would have the

jurisdiction. From these submissions, following questions arise:

(1) Whether the landlord and tenant are relegated to

seek their rights and remedies under the common law

once the protection given to a tenant under rent control

legislation is withdrawn through amendment?

(2) Can a ground of eviction based on illegal

subletting under proviso (b) to Section 14 of the said Act

be claimed by a landlord as a vested right?

(3) In case a protection given to a tenant under the

Rent Act is said to be not a vested right and if that

protection is withdrawn, can a landlord claim any ground

of eviction under the Rent Act to be his vested right?

Thus question for our consideration is, whether proceedings

which were initiated before the Rent Controller having jurisdiction

could continue before it even after the said amendment. Submission

for tenant is, since tenant has no vested right on the date when

amendment came into force and amendment is not retrospective in

operation hence it is only the Civil Court which would have

jurisdiction. On the other hand submission on behalf of the landlord

is, even if it could be said tenant has no vested right, landlord has

vested right under the Rent Act and further in view of Section 6 of

the General Clauses Act, the pending proceedings would continue

before the Rent Controller as if the amending provision has not come

into play. Further it is submitted, Section 6 spells out, where this Act

or any Central Act repeals any enactment then unless a different

intention appears, the repeal shall not affect any right, privilege

accrued or incurred under any such enactment so repealed. Since

landlord in addition to his vested right under the Rent Act, by virtue of

this Section 6 has in any case right under the repealing provision

hence the pending proceeding would continue, as there is nothing in

the amending Act showing any different intention. So the case of

tenant-appellant is that amendment covers pending cases while

respondent landlord case is it does not cover hence it would not apply

to the pending cases.

First we proceed to examine, whether tenant has any vested

right.

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Submission on behalf of the tenant is, a tenant has no vested

right under the Rent Act. If tenants have no vested rights under the

Rent Control Act, the pending proceedings would not be saved from

the effect of the repealing Act. In Mohinder Kumar and Ors. vs. State

of Haryana and Anr. (1985) 4 SCC 221 this was observed by this

Court:

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.

D.C. Bhatia and Ors. vs. Union of India and Anr. (1995) 1 SCC

104, is also a case under the Delhi Rent Control Act where the same

Section 3(c) which we are considering was brought in through the

same Delhi Rent Control (Amendment) Act, 1988. In this case also

submission was, that since the amending Act is not retrospective, it

would not affect the rights conferred on the tenants under the repealed

provisions of the Rent Control Act. This submission was rejected by

this Court. The Court held:

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 Legislature,

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 tenants 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

hitherto enjoyed by the tenants who were paying

Rs.3500 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.

In the instant case, the legislature has

decided to curtail or take away the protection of

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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 advantage of the provisions of the

repealed Act so long as that law remained in force.

In view of the aforesaid, we are unable to

uphold the contention that the tenants had acquired

a vested right in the properties occupied by them

under the statute.

[Emphasis supplied]

Thus this case holds that the tenant under the Rent Act had no

vested right.

Parripati Chandrasekharrao & Sons vs. Alapati Jalaiah (1995)

3 SCC 709. This case deals with the similar provision but under the

A.P. Rent Control Act. This Court held:

Shri Sitaramiah, leaned counsel appearing

for the appellant-landlord contended that on the

coming into operation of the said notification from

26.10.1983, 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.

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 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

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landlord's and the tenants rights relying upon the

decision of this Court in Atma Ram Mittal is

misplaced. In that case the landlords 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 vested right under the general 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 ten 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 time consumed by the said proceedings.

It is for this reasons 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."

The aforesaid decision holds that tenants have no vested right

under the Rent act. In effect, the law is well settled. Prior to the

enactment of the Rent Act the relationship between the landlord and

the tenant is governed by the general law, may be Transfer of Property

Act or any other law in relation to the property. The Rent Act merely

provides a protection to a tenant as against unbridled power of the

landlord under the general law of the land. The Rent Act gives

protection to the tenant from being ejected except on the grounds

referred under the Rent Act. In other words, it protects the tenant

from ejectment, it protects a tenant from the drastic enhancement of

the rent by the landlord which may otherwise landlord could do under

the general law. Thus the right of a tenant under the Rent Act at the

best could be said to be a protective right which cannot be construed

to be a vested right. In effect, in view of this special enactment of the

Rent Act, the right and remedies available to a landlord under the

general law remains suspended. In other words the landlords vested

right under the general law continue so long it is not abridged by such

protective legislation, but the moment when this protection is

withdrawn the landlords normal vested right reappears which could

be enforced by him.

In Kolhapur Canesugar Works Ltd. vs. Union of India and

Ors. (2000) 2 SCC 536, this Court held:

The position is well known that at common

law, the normal effect of repealing a statute or

deleting a provision is to obliterate it from the

statute book as completely as if it had never been

passed, and the statute must be considered as a law

that never existed.

Relying on this the submission for the tenant is, if repealing

statute deletes the provisions, it would mean it never existed hence

pending proceedings under the Rent Act cannot continue. This

submission has no merits. This is not a case under the Rent Act, also

not a case where Section 6 of the General Clauses Act is applicable.

This is a case where repeal of rules under Central Excise Rule was

under consideration. This would have no bearing on the question we

are considering, whether a tenant has any vested right or not under a

Rent Act?

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Submission on behalf of the respondent-landlord is, even if

tenant have no vested right landlord has a vested right under the Rent

Act by virtue of Section 14 of the Delhi Rent Act. Section 14 is

quoted hereunder:

14. Protection of tenant against eviction (1)

Notwithstanding anything to the contrary

contained in any other law for contract, no order

or decree for the recovery of possession of any

premises shall be made by any court or Controller

in favour of the landlord against a tenant:

Provided that the Controller may, on an

application made to him in the prescribed manner,

make an order for the recovery of possession of

the premises on one or more of the following

grounds only, namely:-

(a) that the tenant has neither paid or

tendered the whole of the arrears of

the rent legally recoverable from him

within two months of the dte on

which a notice of demand for the

arrears has been served on him by the

landlord in the manner provided in

Section 106 of the Transfer of

Property Act, 1992 (4 of 1882);

(b) that the tenant has, on or after the 9th

day of June, 1942, sublet, assigned or

otherwise parted with the possession

of the whole or any part of the

premises without obtaining the

consent in writing of the landlord;

(c) that the tenant has used the premises

for a purpose other than that for which

they were let

(i) if the premises have been let on or

after the 9th day of June, 1952,

without obtaining the consent in

writing of the landlord; or

(ii) if the premises have been let

before the said date without

obtaining his consent;

(d) that the premises were let for use as a

residence and neither the tenant nor

any member of his family has been

residing therein for a period of six

months immediately before the date

of the filing of the application for the

recovery of possession thereof;

(e) that the premises let for residential

purposes are required bona fide by the

landlord for occupation as a residence

for himself or for any member of his

family dependent on him, if he is the

owner thereof, or for any person for

whose benefit the premises are held

and that the landlord or such person

has no other reasonably suitable

residential accommodation;

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Explanation For the purposes of this

clause, premises let for residential

purposes include any premises which

having been let for use as a residence are,

without the consent of the landlord, used

incidentally for commercial or other

purposes;

(f) that the premises have become unsafe

or unfit for human habitation and are

required bona fide by the landlord for

carrying out repairs which cannot be

carried out without the premises being

vacated;

(g) that the premises are required bona

fide by the landlord for the purpose of

building or re-building or making

thereto any substantial additions or

alterations and that such building or

re-building or addition or alteration

cannot be carried out without the

premises being vacated;

(h) that the tenant has, whether before or

after the commencement of this Act,

acquired vacant possession of, or been

allotted, a residence;

(hh) that the tenant has, after the

commencement of the Delhi Rent

Control (Amendment) Act, 1988,

built a residence and ten years have

elapsed thereafter;

(i) that the premises were let to the tenant

for use as a residence by reason of his

being in the service or employment of

the landlord, and that the tenant has

ceased, whether before or after the

commencement of this Act, to be in

such service or employment;

(j) that the tenant has, whether before or

after the commencement of this Act,

causes or permitted to be caused

substantial damage to the premises;

(k) that the tenant has, notwithstanding

previous notice, used or dealt with the

premises in a manner contrary to any

condition imposed on the landlord by

the Government or the Delhi

Development Authority or the

Municipal Corporation of Delhi while

giving him a lease of the land on

which the premises are situate;

(l) that the landlord requires the premises

in order to carry out any building

work at the instance of the

Government or the Delhi

Development Authority or the

Municipal Corporation of Delhi in

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pursuance of any improvement

scheme or development scheme and

that such building work cannot be

carried out without the premises being

vacated.

Under Clause (a) landlord could evict a tenant if he defaults in

the payment of rent. Under Clause (b) if he sublets the premises in

question, under Clause (c) if he uses the premises other than that for

which it was let, under Clause (d) if he or any member of his family is

not residing therein for a period of 6 months, under (e) premises is

bonafide required by landlord, under (f) premises is unfit for human

habitation, under (g) premises is required for rebuilding, under (h) he

has acquired an alternative accommodation, under (hh) he built

residence and 10 years have expired after 1988 amending Act, under

(i) he has ceased to be in service of the landlord, under (j) he caused

substantial damage to the property, under (k) he has used the premises

contrary to the condition of lease given by the Government or local

bodies to the landlord, and under (l) where the landlord is required to

carry out any construction therein as requirement by the Government

or local bodies. These various sub-clauses under Section 14 is our

considered opinion cannot be construed to be a vested right of a

landlord. In fact, Section 14 gives complete protection to a tenant

against his eviction but relaxes it on one of the grounds referred to

under its proviso. These sub-clauses are only part of this proviso of

Section 14. The heading of this Section itself is;

Protection of tenant against eviction. Sub-

section (1) expressly states;

Notwithstanding anything to the contrary

contained in any other law or contract, no order or

decree for the recovery of possession of any

premises shall be made by any court or controller

in favour of landlord against a tenant.

This section thus gives complete protection to a tenant. The

right which is sought to be inferred as vested right is only under its

proviso. Proviso cannot enlarge the main section. When main section

is only a protective right of a tenant, various sub-clauses of its proviso

cannot be construed as it gives vested right to a landlord. The right if

at all could be said of the landlord it flows only under the protective

tenants umbrella which cannot be enlarge into a vested right of a

landlord. Hence in our considered opinion by no stretch of

imagination it could be held that the landlord has any vested right by

virtue of Section 14 of the Rent Act.

This leads us to the question, whether in a case where Section 6

of the General Clauses Act is applicable, what effect it would have on

a pending proceeding, when repealing provisions come into operation.

It is not in dispute in the present case that the Delhi Rent Act is the

Central Act hence Section 6 of the General Clauses Act is applicable.

We may also record here, in none of the aforesaid decisions cited by

the learned counsels application of Section 6 of the General Clauses

Act was considered.

We may quote here Section 6 of the General Clauses Act, 1897:

Section 6: Effect of repeal

Where this Act, or any (Central Act) or

Regulation made after the commencement of this

Act, repeals any enactment hitherto made or

hereafter to be made, then, unless a different

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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 or Regulation had not been

passed.

The opening words of Section 6 specify the field over which it

is operative. It is operative over all the enactment under the General

Clauses Act, Central Act or Regulations made after the

commencement of General Clauses Act. It also clarifies in case of

repeal of any provision under the aforesaid Act or regulation, unless a

different intention appears from such repeal, it would have no affect

over the matters covered in its sub-clauses, viz., (a) to (e). It clearly

specifies that the repeal shall not revive anything not in force or in

existence or effect the previous operation of any enactment so

repealed or anything duly done or suffered or affect any right,

privilege, obligation or liability acquired, accrued or incurred under

the repealed statute, affect any penalty, forfeiture or punishment

incurred in respect of any offence committed under the repealed

statute and also does not affect any investigation, legal proceeding or

remedy in respect of any such right, privilege, obligation, liability,

penalty, forfeiture or punishment as aforesaid. Thus the Central

theme which spells out is that any investigation or legal proceeding

pending may be continued and enforced as if the repealing Act or

Regulation had not come into force.

As a general rule, in view of Section 6, the repeal of an statute,

which is not retrospective in operation, does not prima facie affect the

pending proceedings which may be continued as if the repealed

enactment were still in force. In other words such repeal does not

effect the pending cases which would continue to be concluded as if

the enactment has not been repealed. In fact when a lis commences,

all rights and obligations of the parties gets crystalised on that date.

The mandate of Section 6 of the General Clauses Act is simply to

leave the pending proceedings unaffected which commenced under

the unrepealed provisions unless contrary intention is expressed. We

find Clause (c) of Section 6, refers the words any right, privilege,

obligation. acquired or accrued under the repealed statute would

not be affected by the repealing statute. We may hasten to clarify here,

mere existence of a right not being acquired or accrued, on the date

of the repeal would not get protection of Section 6 of the General

Clauses Act.

At the most such a provision can be said to be granting a privilege to

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the landlord to seek intervention of the Controller for eviction of the tenant

under the Statute. Such a privilege is not a benefit vested in general but is a

benefit granted and may be enforced by approaching the Controller in the

manner prescribed under the statute. On filing the petition for eviction of

the tenant the privilege accrued with the landlord is not affected by repeal of

the Act in view of section 6(c) and the pending proceeding is saved under

section 6(e) of the Act.

This Court in Isha Valimohamad and another vs. Haji Gulam

Mohamad & Haji Dada Trust (1974) 2 SCC 484) held, inter alia, that the

right of a landlord to recover possession on the ground that the tenant has

sub-let the premises is not an accrued right within the meaning of section

51 of the Bombay Rents, Hotel and Lodging Houses Rates Control Act, (57

of 1947). But the landlord had the legal freedom as against the tenants to

terminate the tenancy or not. The tenants had no right or claim that the

landlord should not terminate the tenancy and the landlord is therefore the

privilege of terminating it on the ground that tenant has sub-let the premises.

This privilege would survive the repeal.

In para 16 of the judgment this Court summed up the position as

follows:

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 respondent-

landlord 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 premises and recover possession

of the same after issuing a notice. Section 111 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 Section 13(1)(e) of the

Saurashtra 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, Section 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-let the

premises. The position, therefore, was that the landlord

was entitled to recover possession of the premises under

Section 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

Section 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

Section 51 of the Bombay Act and, therefore, the suit for

recovery of possession of the premises under Section

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13(1) read with clause (e) of the Saurashtra 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 upheld and we do so.

In this connection the decision of this Court in M.S.Shivananda

vs. Karnataka State Road Transport Corporation and others (1980) 1

SCC 149 may be seen. Para 15 of the judgment which is relevant is

quoted hereunder:

The distinction between what is, and what is not a

right preserved by the provisions of Section 6 of the

General Clauses Act is often one of great fineness.

What is unaffected by the repeal of a statute is a

right acquired or accrued under it and not a mere

hope or expectation of, or liberty to apply for,

acquiring a right. In Director of Public Works v. Ho

Po Sang Lord Morris speaking for the Privy

Council, observed:

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 be or should not be given. On a

repeal, the former is preserved by the

Interpretation Act. The latter is not.

(Emphasis supplied)

It must be mentioned that the object of Section

31(2)(i) is to preserve only the things done and

action taken under the repealed Ordinance, and not

the rights and privileges acquired and accrued on

the one side, and the corresponding obligation or

liability incurred on the other side, so that if no right

acquired under the repealed Ordinance was

preserved, there is no question of any liability

being enforced.

In the case of Bansidhar and others vs. State of Rajasthan and others

(1989) 2 SCC 557) a Constitution Bench of this Court interpreting the

provisions of section 6 of the Rajasthan Tenancy Act, 1955, which is pari-

material with section 6 of the Act, it was observed :

This takes us to the next question whether in the present

cases even if the provisions of Section 6 of the Rajasthan

General Clauses Act, 1955, are attracted, the present

cases did not involve any rights accrued or obligations

incurred so as to attract the old law to them to support

initiation or continuation of the proceedings against the

landholders after the repeal. It was contended that even

if the provisions of the old Act were held to have been

saved it could not be said that there was any right accrued

in favour of the State or any liability incurred by the

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landholders in the matter of determination of the ceiling

area so as to attract to their cases the provision the old

law. The point emphasised by the learned counsel is that

the excess land would vest in the State only after the

completion of the proceedings and upon the landholder

signifying his choice as to the identity of the land to be

surrendered. Clauses (c) and (e) of Section 6 of the

Rajasthan General Clauses Act, 1955, provide,

respectively, that the repeal of an enactment shall not,

unless a different intention appears, affect any right,

privilege, obligation or liability, acquired, accrued or

incurred under any enactment so repealed or affect any

investigation, legal proceeding or remedy in respect of

any such right, privilege, obligation, liability, fine,

penalty, forfeiture or punishment as aforesaid.

For purposes of these clauses the right must be

accrued and not merely an inchoate one. The

distinction between what is and what is not a right

preserved by Section 6 of the General Clauses Act, it is

said, if often one of great fineness. What is unaffected by

the repeal is a right acquired or accrued under the

repealed statute and not a mere hope or expectation of

acquiring a right or liberty to apply for a right.

In Commissioner of Income-Tax, Bombay City-1 vs. Godavari

Sagar Mills Ltd. 1967 (1) SCR this Court observed:

We proceed to consider the next contention

of the appellant that s.13 of the 1949 Act repealed

the Ordinance completely and the effect of this

section was that the Ordinance was obliterated

from the Statute Book as if it never existed and,

therefore, there was no bar in the way of the

Income-tax Officer to make the order on March

11, 1955.

Mr. S.T. Desai is not right in his contention

that the effect of s.13 of the 1949 Act is to

obliterate the Ordinance completely from the

Statute Book. Section 6 of the General Clauses

Act (Act 10 of 1897) states as follows:

6. Whereas this Act, or any Central Act or

Regulation 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

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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 or

Regulation had not been passed.

The reason for enacting s.6 of the General Clauses

Act has been described by this Court in State of

Punjab v. Mohar Singh as follows:

Under the law of England, as it stood

prior to the Interpretation Act of 1889, the

effect of repealing a statute was said to be to

obliterate it as completely from the records

of Parliament as if it had never been passed,

except for the purpose of those actions,

which were commenced, prosecuted and

concluded while it was an existing law. A

repeal therefore without any saving clause

would destroy any proceeding whether not

yet begun or whether pending at the time of

the enactment of the Repealing Act and not

already prosecuted to a final judgment so as

to create a vested right. To obviate such

results a practice came into existence in

England to insert a saving clause in the

repealing statute with a view to preserve

rights and liabilities already accrued or

incurred under the repealed enactment.

Later on, to dispense with the necessity of

having to insert a saving clause on each

occasion, section 38(2) was inserted in the

Interpretation Act of 1889 which provides

that a repeal, unless the contrary intention

appears, does not affect the previous

operation of the repealed enactment or

anything duly done or suffered under it and

any investigation, legal proceeding or

remedy may be instituted, continued or

enforced in respect of any right, liability and

penalty under the repealed Act as if the

Repealing Act had not been passed. Section

6 of the General Clauses Act, as is well

know, is on the same lines as Section 38(2)

of the Interpretation Act of England.

Section 13 of the 1949 Act is almost identical in

language with s.11 of Punjab Act XII of 1948

which was the subject-matter of consideration in

State of Punjab v. Mohar Singh and for the reason

given by this Court in that case the provisions of s.

6 (c), (d) and (e) of the General Clauses Act are

applicable to this case since there is no contrary

intention appearing in the repealing statute.

In M.S. Shivananda vs. Karnataka State Road Transport

Corporation and Ors. (1980) 1 SCC 149, this Court observed:

If, however, the right created by the statute is of

an enduring character and has vested in the person,

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that right cannot be taken away because the statute

by which it was created has expired. In order to

ascertain whether the rights and liabilities under

the repealed Ordinance have been put an end to by

the Act, the line of enquiry would be not whether

the new Act expressly keeps alive old rights and

liabilities under the repealed Ordinance but

whether it manifests an intention to destroy them.

Another line of approach may be to see as to how

far the new Act is retrospective in operation.

Thus we find Section 6 of the General Clauses Act

covers wider field and saves wide range of proceedings referred to in

its various sub-clauses. We find two sets of cases, one where Section

6 of the General Clauses Act is applicable and other where it is not

applicable.

In cases where Section 6 is not applicable, the courts have to

scrutinise and find, whether a person under a repealed statute had any

vested right. In case he had, then pending proceedings would be

saved. However, in cases where Section 6 is applicable, it is not

merely a vested right but all those covered under various sub-clauses

from (a) to (e) of Section 6. We have already clarified right and

privileges under it is limited to those which is acquired and

accrued. In such cases pending proceedings is to be continued as if

the statute has not been repealed.

In view of the aforesaid legal principle emerging, we come to

the conclusion since proceeding for the eviction of the tenant was

pending when repealing Act came into operation, Section 6 of the

General Clauses Act would be applicable in the present case. As it is

Landlords accrued right in terms of Section 6. Sub-section (c) of

Section 6 refers to any right which may not be limited as a vested

right but is limited to be an accrued right. The words any right

accrued in Section 6 (c) is wide enough to include landlords right

to evict a tenant in case proceeding was pending when repeal came in.

Thus a pending proceeding before the Rent Controller for the eviction

of a tenant on the date when the repealing Act came into force would

not be affected by the repealing statute and will be continued and

concluded in accordance with the law as existed under the repealed

statute.

In view of the aforesaid findings we conclude, by recording our

findings on the question posed earlier by holding:

(1) A landlord or tenant are relegated to seek their rights and

remdies under the common law once the protection given to a tenant

under the Rent Act is withdrawn, except in cases where Section 6 of

the General Clauses Act, 1897 is applicable;

(2) A ground of eviction based on illegal subletting under

proviso (b) to Section 14 of the Rent Act would not constitute to be a

vested right of a landlord, but it would be a right and privilege accrued

within the meaning of Section 6 (c) of the General Clauses Act in a

matter if proceeding for eviction is pending;

(3) When tenant has no vested right under a Rent Act having

only protective right, withdrawal of such protection would not confer

on a landlord a vested right to evict a tenant under Rent Act except

where sub-clause (c) of Section 6 of the General Clauses Act is

applicable.

In view of these findings we hold landlord has a right under the

repealed Rent Act by virtue of Section 6 (c) of the General Clauses

Act, which would save the pending proceedings before the Rent

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Controller, which may continue to be proceeded with as if repealed

Act is still in force.

In view of our aforesaid findings, since Rent Controller has the

jurisdiction over the subject-matter, it will not be right for the landlord

to continue with two parallel proceedings; one under the General Law

and other before the Rent Controller. Hence we further order that the

respondent-landlord to withdraw one of the two proceedings within a

period of 6 weeks from today.

For the aforesaid reasons, the present appeals fail and are

dismissed. Costs on the parties.

..J

(A.P. Misra)

..J

(D.P. Mohapatra)

August 27, 2001