ivil Appeal No 408 of 1980
From the Judgment and Order dated 211279 of the Alla habad High Court in Second Appeal No 1235 of 1974
Mrs section Swaran Mahajan and Arun Madan for the Appellants
SK Mehta for the Respondent
The Judgment of the Court was delivered by SABYASACHI MUKHARJI J
This is a tenants  appeal by special leave from the judgment and order of the High Court of Allahabad
The question involved in this appeal
as is usual in all these cases is what is just in the circum stances and events that have happened
The premises in question is in the village and PO Dhampur in the District of Bijnor in the State of Uttar Pradesh
The suit was filed in 1967
The suit for the evic tion of the appellants was filed on the ground that tenants had made material alteration in the property and as such became liable for ejectment in view of section 31c of the Uttar Pradesh Temporary Control of Rent and Eviction Act 1947 hereinafter referred to as the Act of 1947 
The said section 3 in the said provision enjoins that no suit without the permission of the District Magistrate shall be filed in any civil court against a tenant for his eviction from any accommodation except on one or more of the grounds enumerated therein and clause c of sub section 1 of section 3 was as follows 11 that the tenant has without the permission in writing of the landlord made or permitted to be made any such construction as in the opinion of the court has materially altered the accommodation or is likely substantially to diminish its value It appears that the constructions on the basis of which eviction of the tenants was claimed were not in dispute and were not disputed at any stage
These were i that the tenants have placed a khaprail in place of khasposh ii Kuchha kothas had been converted into pucca ones which were six in number iii
an open place had been enclosed and included in the accommodation in question
The action was contested
It was asserted by the tenants that these con structions had been made in order to save the buildings from rain water and fire and that these constructions were not such as would make the tenants liable for ejectment within the meaning of section 3 of the Act of 1947
It was further contended that these constructions had been made with the knowledge and consent of the landlord
The learned trial Judge which in this case was the court of learned Munsif at Nagina by its order dated 17th December 1968 and the first Appellate Court which is the Civil Judge by its order dated 16th February 1984 have found that the constructions had been made by the tenants without the consent and knowl edge of the landlord and that the constructions in question amounted to material alterations
On these grounds the landlord s suit was decreed and the appeal by the tenants was dismissed
The tenants went in second appeal before the High Court
The High Court found that these alterations had been made namely the conversion of six kuchha kothas into pucca one and this was done after demolition of the old constructions
After the old construction had ceased to exist entirely new constructions had come up in their place
This according to the High Court came within the meaning of structural alterations in the building
The High Court further found that the accommodation had been increased by enclosing the nearby open space and that again must have been done by raising walls either connecting the various kothas or in some other way
In either case the High Court found the shape and the extent and preparation of the accommodation had been increased and was thereafter differ ent than what it was before
In those circumstances the High Court came to the conclusion that the alterations admittedly made by the tenants were material alterations and as such came within the mischief of section 31c of the Act of 1947
In the aforesaid view of the matter the High Court dismissed the second appeal and granted two months  time 12 to the tenants to vacate
The judgment and the order of the High Court was passed on 21st December 1979
Leave was granted by this Court under Article 136 of the Constitution on 18th February 1990
Since then this appeal is before this Court
As mentioned hereinbefore the action was instituted under the aforesaid Act of 1947 which was the temporary Act
We have set out the relevant provisions of the Act
It is apparent from the said provisions that the ground for eviction could be either such construction which materially altered the accommodation or in the alternative is likely to substantially diminish its value
These are the disjunctive requirements
This Court had occasion to construe section 31c of the Act of 1947 in Babu Manmohan Das Shah  Ors
vs Bishun Das  and was confronted with the question whether the landlord was entitled to evict the tenant if the alterations were material alterations only or whether proof was also necessary of the diminished value of the property as a result of such alteration
This Court had also occasion to consider what amounted to material altera tions  under the said Act
This Court noted that the lan guage of the clause c of section 31 of the Act of 1947 made it clear that the legislature wanted to lay down two alter natives which would furnish ground to the landlord to sue without the District Magistrate s permission that is where the tenant has made such construction which would materially alter the accommodation or which would be likely to substan tially diminish its value
Therefore these are disjunctive or alterative requirements
This Court further held that although no general definition can be given of what materi al alterations mean as such a question would depend on the facts and circumstances of each case the alterations in that case amounted to material alterations as the con struction carried out by the tenant had the effect of alter ing the form and structure of the accommodation
In the facts and circumstances of the instant appeal before us all the courts have accordingly found that construction carried out by the tenants have the effect of altering the form and structure of the accommodation
In view of the contentions urged by Mrs Swaran Mahajan it has to be borne in mind that the trial court passed its order on 17th December 1968 well before the time when the Act of 1972 being the UP Urban Buildings Regulation of Letting Rent and Eviction Act 1972 13 of 1972 herein after referred to as the Act of 1972  came into force
The said Act came into force on 20th September 1972
The rights of the parties have crystallised after the institution of the suit which was during the continuance of Act of 1947 and before the Act 13 of 1972
The appellants in this appeal could not dispute that there were material alterations
It could not also be disputed before us by Mrs Mahajan counsel on behalf of the tenants that under the law as it stood and the law as ex plained in Babu Manmohan Das Shah s case supra it was not necessary at that time to further prove that the alteration has or is likely to diminish the value of the property
But what Mrs Mahajan has sought to canvass before us is that under section 202c of the Act of 1972 the ground is that the tenant has without the permission in writing of the landlord made or permitted to be made any such construction or struc tural alteration in the building as is likely to diminish its value or utility or to disfigure it
Mrs Mahajan there fore contends that now to make the tenants liable to be evicted it is necessary to allege and prove not only that construction has resulted in material alteration in the building but also that such construction is likely to dimin ish either the value or the utility of the building or disfigure it
In this case according to counsel for the appellants that being in the possession the eviction cannot any longer be sustained
She drew our attention to section 202c of the Act of 1972
She relied on the observations of this Court in Qudrat Ullah vs Municipal Board Barejify  In that case this Court had to deal with the Act of 1947 as well as Act of 1972
Krishna Iyer J speaking for this Court observed that the general principle regarding the consequence of repeal of a statute is that the enactment which is repealed is to be treated except as to transactions past and closed as if it had never existed
The operation of this principle is subject to any savings which may be made expressly or by implication by the repeal ing enactment
If the repealing enactment makes a special provision regarding pending or past transactions it is this provision that will determine
Whether the liability arising under the repealed enactment survives or is extinguished
Section 6 of the Uttar Pradesh General Clauses Act 1904 applies generally in the absence of a special saving provi sion in the repealing statute
It was further observed that where a repeal is followed by a fresh legislation on the subject the Court has to look to the provisions of the new Act to see whether they indicate a different intention
Krishna Iyer J further observed in that case that Sec 432h of the Act of 1972 makes it clear that even if the power for recovery of possession be one under the earlier Rent Control Law the later Act will apply and necessary amendments in the pleadings can be made
This indicates that it is the later Act which must govern pending proceedings for recovery of possession or recovery or fixation of rent
In that case the suit was not even one under the Act but proceeded on the footing that the contractor was only a licencee and so none of the savings clauses in section 432 applied
The provision relating to effect of 14 repeal under UP General Clauses Act was set out at p 539 of the report
section 432 of the Act of 1972 is therefore relevant
Sub section 1 of section 43 of the Act of 1972 lays down that Act of 1947 is hereby repealed
Sub section 2 makes provision for pending proceedings in different clauses
Clause h of Sub section 2 provides as follows any court or authority before which any suit or other proceeding relating to the recovery or determination or fixation of rent of or eviction from any building is pending immedi ately before the commencement of this Act may on an application being made to it within sixty days from such commencement grant leave to any party to amend its pleading in conse quence of the provisions of this Act This clause was the subject matter of construction in the decision of this Court in Qudrat Ullah s case supra
Referring to the said clause Mr Justice Krishna Iyer observed at p 540 of the report that it is clear that even if the statute for recovery of possession be one under the earlier Rent Control Law the later Act will apply and necessary amendments in the pleadings can be made
This definitely indicates according to that decision that it is the later Act that must govern pending proceedings for recovery of possession or recovery or fixation of rent
But these observations made therein would not help Mrs Mahajan as contended by Mr Mehta that the rights of the parties have crystallised before the coming into operation of the 1972 Act and vested rights of the landlord had not been divested by clause h of section 432 of the Act of 1972
On the other hand section 432s saves the right that have ac crued in favour of the landlord
The said clause s reads as follows any suit for the eviction of a tenant insti tuted on any ground mentioned in sub section 1 of section 3 of the old Act or any proceeding out of such suit including any proceeding for the execution of a decree passed on the basis of any agreement compromise or satisfaction pending immediately before the commencement of this Act may be continued and concluded in accordance with the old Act which shall for that purpose be deemed to continue to be in force Therefore the suit which was filed on the ground that there was material alterations simplicitor under section 31c of the Act of 1947 would continue to be valid after the coming into operation of Act of 15 1972 in view of clause s of sub section 2 of section 43 thereof
That is the consequence of the language used
The observations of this Court in Qudrat Ullah s case supra do not in any way suggest to the contrary
Mrs Mahajan tried to urged that the Act of 1947 was a temporary Act
Therefore it could not create any right in favour of the landlord after the expiry of the time
This argument is under a misconception
Neither the Act of 1947 nor the Act of 1972 gives any right to the landlord
The landlord s right to evict tenant is guided by the Transfer of Property Act
The Act of 1947 gives protection to the tenants under certain conditions and at the time when the suit was filed the rights of the parties had been crystallised
On the facts as alleged and proved and found by the Court the tenants were liable to be evicted
The question of temporary rights in favour of the landlord does not arise
Mrs Maha jan further submitted that the new provisions of the Act should enlighten us to determine what is just in this case
She submitted that it will be unjust in the facts and the circumstances of the case to permit eviction of the tenants on the ground of constructions which do not in any way alter or diminish the value of the premises in question
She on the other hand pleaded that the constructions made have improved the building
Therefore instead of being liable to be evicted the tenants should be protected
These are of course submissions not sustainable in law
The rights of the parties must be determined in accordance with the provi sions of law
What justice of the case entails and what is just due and the law says is to be given to each one whether being a landlord or a tenant
The Judge is not to innovate at pleasure
He is not a knigh errant roaming at will in pursuit of his own ideal of beauty or of goodness
 Cardozo The Nature of the Judicial Process page 141
If that is the position on the date when the rights crystallised and in view of sub section s of sec tion 432 of the Act of 1972 those rights will continue as if they were under the old Act
The fight had accrued to the landlord to get the eviction even if the alteration had not in any way affected or diminished the value of the premises
That right cannot be deprived
But justice also consists in balancing the rights of the parties
The tenants in this case itis said are poor
There was nothing to dispute this submission
It is further said that these have been there for a long time
In the aforesaid view of the matter we dismiss the appeal but we direct that the tenants will not be evicted until 30th September 1990 provided the tenants give the usual undertaking containing the usual terms and stating inter alia that they are in possession within four weeks of this date
The undertaking must be given by each of the 16 appellants
In default of filing undertaking the decree will be executable forthwith
We must further observe that in view of the condition of the tenants if an application is made for allotment of any other area by these parties to the appropriate authority and if the appellants are not in possession or occupation of other property such authority should consider the feasibil ity of giving them fresh allotment of some other property
The appeal is therefore dismissed
In the facts and the circumstances of the case the parties will bear and pay their own costs
Y Lal Appeal dis missed


Summary:
The appellant was caught while he was himself transporting opium
He was convicted under section 9a of the Opium Act for posession  of opium and under section 9b of the Act for  transport of opium and was sentenced to undergo rigorous imprisonment for three months under each count the sentences to run consecutively
The appellant contended that  transport  included  possession  and so the double punishment for possession and transport was not warranted by law  Held that possession of opium and transport of opium are two separate offences and the appellant could be convicted for 1163 both the offences
Transport of opium may in certain cases include the element of possession and in other cases it may not
A person transporting opium through other agencies may not be in possession of it at the time it was transported
But a person transporting opium himself would be in possession of it and would be guilty of both offences
The sentence passed upon the appellant did not contravene the provisions of section 71 of the Indian Penal Code
Section 71 provides that where anything is an offence falling within two or more separate definitions of the law the offender shall not be punished with a more severe punishment than that provided for any one of such offences
Though separate sentences were passed against the appellant unders 9aandbthe sum total of these sentences did not exceed one year s imprisonment the maximum provided for any of these offences