Case: Karam Singh Sobti & Anr Vs. Shri Pratap Chand & Anr

S.K. Das, ACJ. (For himself and Hidayatullah J.).1. With much regret, we have come to a conclusion different from that of our learned brother Sarkar, J. as respects of the true scope and effect of S. 57 of the Delhi Rent Control Act, 1958, hereinafter referred to as the Control Act of 1958. The Control Act of 1958 repeals the Delhi and Ajmer Rent Control Act, 1952, hereinafter called the Control Act of 1952, in so far as that Act was applicable to the Union territory of Delhi, but contains certain savings in respect of "suits and proceedings " pending at the commencement of the Control Act of 1958. To these savings we shall advert later.2. The facts giving rise to the appeal have been stated fully in the judgment of Sarkar, J. and we need not re-state the facts. The respondent, Pratap Chand, relied on cl. (c), sub-cl. (i) of the proviso to Section 13 (1) of the Control Act of 1952 in support of his claim for eviction of the appellant from a room, being room No.6, in Pratap Buildings situate in Connaught Circus, New Delhi. Sub- s. (1) of S. 13 of the Control Act of 1952 states that notwithstanding anything to the contrary contained in any other law or any contract, no degree or order for the recovery of possession of any premises shall be passed by any Court in favour of the landlord against any tenant (including a tenant whose tenancy is terminated) ; the proviso creates certain exceptions and states that nothing in sub-s. (1) shall apply to any suit or other proceeding for such recovery of possession if the case comes within the exceptions mentioned in the proviso. One of the exceptions is mentioned in cl. (c) sub-cl. ( i ), of the proviso. That exception relates to a case where the tenant without obtaining the consent of the landlord has before the commencement of the Control Act of 1952 sub-let, assigned or otherwise parted with the possession of the whole or any part of the premises. The principal question for decision in the appeal is whether the respondent -landlord is entitled to rely on the exception provided by cl. (c), sub-cl. ( i ), of the proviso to sub-s. (1) of S. 13 of the Control Act of 1952.3. The learned trial judge by his judgment dated June 11, 1956 gave a decree in favour of the respondent-landlord. One of the questions raised before the learned trial Judge was whether the respondent landlord had acquiesced in the sub-letting in favour of the appellant. The learned trial Judge decided against the appellant on the question of acquiescence. There was then an appeal which was heard by the learned Additional Senior Subordinate Judge of Delhi. The learned Subordinate Judge found - (1) that the sub-letting had commenced not later than November, 1950, and (2) that thereafter the respondent-landlord continued to receive rent with full knowledge of the sub-letting. On these findings he held that the respondent-landlord was not entitled to avail himself of the exception stated in cl. (c), sub-cl. ( i ), of the proviso to sub-s. (1) of S. 13 of the Control Act of 1952. The learned Subordinate Judge gave his judgment on June 11, 1957. It has to be noted that these judgments were given prior to the coming into force of the Control Act of 1958. That Act came into force on February 9, 1959. On August 26, 1957 the respondent -landlord moved the High Court of Punjab in revision under S.35 of the Control Act of 1952. When the revision was pending in the High Court, the Control Act of 1958 came into force. The High Court held that there was no evidence to justify the finding of the learned Subordinate Judge that the respondent -landlord had acquiesced in the sub-letting of the room in favour of the appellant, and the case being one where there is no evidence to justify a finding, it was open to the High Court to interfere in revision. The question of the true scope and effect of S.57 of the Control Act of 1958 was agitated before the High Court and the High Court held that by reason of the provisions of sub-s. (2) of S. 57 of the Control Act of 1958, the revision before it had to be disposed of in accordance with the provisions of the Control Act of 1952. Accordingly, the High Court allowed the petition in revision and restored the decree for possession made by the trial Court. The appellant then moved this court for special leave and having obtained such leave has preferred the present appeal from the judgment and order of the High Court dated December 13, 1962.4. We are in complete agreement with the conclusions reached by our learned brother, Sarkar, J. in respect of the following questions ;(1) whether the High Court was competent on an application in revision to set aside the finding of the lower appellate court on the question of acquiescence;(2) whether the High Court was right in its view that there was no evidence in the case to support the finding of the learned Subordinate Judge on the question of acquiescence ; and(3) whether the appeal before the learned Subordinate Judge was maintainable in the absence of an appeal by the Automobile Association of Upper India.On the conclusions reached on the aforesaid three questions, the respondent-landlord will be entitled to succeed, unless S. 57 of the Control Act of 1958 stands in his way. If the provisions of the Control Act of 1958 apply, then sub-s. (1) of S. 14 of the Control Act of 1958 will stand in the way of the respondent-landlord, because the sub-letting in the present case did not take place on or after June 9, 1952 and will not therefore come within the exception provided in cl. (b) of the proviso to sub-s. (1) of S. 14 of the Control Act of 1958. Therefore, the narrow question before us is - is the present case governed by cl. (c), sub-cl. (i), of the proviso to sub-s. (1) of S.13 of the Control Act of 1952 or is it governed by the provisions of the Control Act of 1958? The answer to this question depends on the true scope and effect of S.57 of the Control Act of 1958.5. We now proceed to read S.57 of the Control Act of 1958. That section is in these terms:"57 (1) The Delhi and Ajmer Rent Control Act, 1952, in so far as it is applicable to the Union territory of Delhi, is hereby repealed.(2) Notwithstanding such repeal, all suits and other proceedings under the said Act pending, at the commencement of this Act, before any court or other authority shall be continued and disposed of in accordance with the provisions of the said Act, as if the said Act had continued in force and this Act had not been passed :Provided that in any such suit or proceeding for the fixation of standard rent or for the eviction of a tenant from any premises to which section 54 does not apply, the court or other authority shall have regard to the provisions of this Act :Provided further that the provisions for appeal under the said Act shall continue in force in respect of suits and proceedings disposed of thereunder ".Two questions arise out of S. 57 . It is clear beyond dispute that had sub-s. (2) of S.57 stood by itself, then the present case would be governed by the provisions of the Control Act of 1952, assuming that an application in revision is a proceeding within the meaning of the sub-section. There are however two provisos to sub-s. (2) of S.57. It is the interpretation of these two provisos which had caused much difficulty in the present case. The first question is, what is the true scope and effect of the first proviso, with particular reference to the expression "shall have regard to the provisions of this Act " occurring therein ? The second question is - does an application in revision come within the expression "suits and proceedings" occurring in sub-s. (2) by reason of the second proviso which makes a special provision for appeals ? If, however, we decide against the appellant on the first question and hold that the application in revision, assuming it to be a proceeding within the meaning of sub-s. (2), must be disposed of in accordance with the provisions of the Control Act of 1952, then the second question need not be decided by us in the present case.6. Therefore, we proceed to deal with the first question the answer to which will be decisive of the appeal.7. S.57 of the Control Act of 1958 has been the subject of several decisions in the Punjab High Court. We shall refer to these decisions at a later stage. We prefer first to consider the question on general principles of construction having regard to the words used in the section.8. But before we do so, a brief reference may be made to the general scheme of the two Control Acts. Chapter II of the Control Act of 1952 dealt with standard rent and also contained provisions relating to other charges by the landlord. The dominant object was to prevent payment of rent in excess of standard rent and unlawful charges made by the landlord. Chapter III dealt with control of eviction of tenants and in this chapter occurred S. 13 to which we have already made a reference. Chapter IV dealt with hotels and lodging houses and as we are not concerned with hotels and lodging houses, no reference need be made to the provisions in this chapter. Chapter V dealt with jurisdiction of Courts, Appeals, Review and Revision and Chapter VI dealt with miscellaneous provisions. The point to be noticed with regard to the provisions in chapter V is that the Control Act of 1952 conferred power and jurisdiction on ordinary civil courts with the usual right of appeal from the first court as in other civil proceedings and a right to move the High Court in revision from the appellate judgment, in respect of suits for recovery of possession of all premises as defined in the Act, which definition excluded rooms in a hotel or lodging house. With regard to hotels and lodging houses, jurisdiction was conferred on a Controller to be appointed by the Central Government.9. The Control Act of 1958 made a radical change in respect of many matters. So far as eviction of tenants is concerned, a matter with which we are concerned in the present appeal, jurisdiction was conferred on the Controller to be appointed under S. 35 to order recovery of possession of the premises on one or more of the grounds mentioned in the proviso to S. 14 of the Control act of 1958. S. 16 of the Control Act of 1958 put certain restrictions on sub-letting and one of these restrictions was that no premises which had been sub-let either in whole or in part on or after June 9, 1952 without obtaining the consent in writing of the landlord should be deemed to have been lawfully sub-let; but where at any time before June 9, 1952 a tenant had sub-let the whole or any part of the premises and the sub-tenant was at the commencement of the Act in occupation of such premises, then notwithstanding that the consent of the landlord was not obtained for such sub-letting, the premises would be deemed to have been lawfully sub-let. S. 17 required the sub-tenant to give notice to the landlord and S. 18 provided that in certain circumstances the sub-tenant was to be treated as the tenant. With the details of these provisions we are not concerned in the present case except to point out that the Control Act of 1958 made radical changes in the matter of eviction of tenants on the ground of sub-letting. In the matter of sub-letting the relevant date was taken as June 9, 1952 the date on which the Control Act of 1952 came into force, and a distinction was made between sub-letting before that date and sub-letting after that date. A sub-letting before June 9, 1952 was treated as lawful sub-letting if the sub-tenant was in occupation of the premises at the commencement of the Control Act of 1958; but a sub-letting after June 9, 1952 without the previous consent in writing of the landlord was treated as unlawful for the purposes of the Control Act, of 1958.10. Let us now consider S. 57, of the Control Act of 1958 against the background of the scheme of the two Control Acts, as stated above.The first sub-section of S. 57 repeals the Control Act of 1952 in so far as it is applicable to the Union territory of Delhi. If the repeal stood by itself the provisions of the General Clauses Act (X of 1897) would have applied with regard to the effect of the repeal and the repeal would not affect the previous operation of any enactment repealed or anything duly done or suffered thereunder or affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed. The provisions of the General Clauses Act will not, however, apply where a different intention appears from the repealing enactment. Such an intention is clear from sub-s. (2) of S. 57 which contains the saving clause. It states in express terms that notwithstanding the repeal of the Control Act of 1952; all suits and proceedings under the Control Act of 1952 pending before any court or other authority at the commencement of the Control Act of 1958, shall be continued and disposed of in accordance with the provisions of the Control Act of 1952, as if the Control Act of 1952 had continued in force and the Control Act of 1958 had not been passed. Nothing can be more emphatic in the matter of a saving clause than what is contained in sub-s. (2) of S. 57. We had said earlier that had sub-s. (2) of S. 57 stood by itself without the provisos, then the incontestable position would have been that the present case would be governed by the provisions of the Control Act of 1952. The question before us is, does the first proviso to sub-s. (2) make a change in the position and if so, to what extent? The first proviso states inter alia that in the matter of eviction of a tenant from any premises to which S. 54 does not apply, the court or other authority shall have regard to the provisions of the Control Act of 1958. Section 54 need not be considered by us as it merely saves the operation of certain enactments which do not apply to the premises under our consideration. What is the meaning of the expression "shall have regard to the provisions of this Act (meaning the Control Act of 1958)? Does it mean that the proviso takes away what is given by sub-s. (2), except in the matter of jurisdiction of the civil court to deal with an eviction matter which was pending before the Control Act of 1958 came into force? We are unable to agree that such is the meaning of the first proviso. We think that the first proviso must be read harmoniously with the substantive provision contained in sub-s. (2) and the only way of harmonising the two is to accept the view which the Punjab High Court has accepted, namely, that the words "shall have regard to the provisions of this Act merely mean that "where the new Act has slightly modified or clarified the previous provisions, these modifications and clarifications should be applied. We see no other way of harmonising sub-s. (2) with the first proviso thereto.11. A similar expression occurring in S. 49 of the Electricity (Supply) Act (LIV of 1948) was considered by this court in the Mysore State Electricity Board v. Bangalore Wollen, Cotton and Silk Mills Ltd., C. A. Nos. 629 to 632 of 1961 D/- 15-11-1962 unreported: (now reported in AIR 1963 SC 1128 ). This court referred to the decision of the Privy Council in Ryots of Garabandho v. Zamindar of Parlakimedi, 70 Ind App 129: (AIR 1943 PC 164) and expressed agreement with the view of the Privy Council that the expression "have regard to or "having regard to has no more definite or technical meaning than that of ordinary usage, and only required that the provisions to which regard must be had should be taken into consideration. If the expression "have regard to in the first proviso to sub-s. (2) means that the provisions of the Control Act of 1958 shall apply to all such suits or proceedings as are referred to in sub-s. (2) except in the matter of jurisdiction of the civil court, then in reality the substantive provision of sub-s. (2) will be denuded of its full effect for all practical purposes. We do not think that it would be right to read the first proviso of sub-s. (2) in that way. It was argued before us that the first proviso related only to two matters, (a) fixation of standard rent and (b) eviction of a tenant, and the intention was that in these two matters only the provisions of the Control Act of 1958 would apply and not in others. If that was the intention, nothing would have been easier than to say in sub-s. (2) - "Notwithstanding such repeal, all suits and other proceedings under the said Act except those for fixation of standard rent and eviction of a tenant etc. Sub-s. (2) does not, however, say so, and if the first proviso is to be interpreted in the manner suggested by the appellant, the provisions as to jurisdiction in the new Act would affect the power of the civil court to pass a decree for eviction.12. We now turn to the decisions of the Punjab High Court. In Shri Krishna Aggarwal v. Satya Dev, 61 Pun LR 574 : (AIR 1959 Punj 501) it was held that the first proviso to sub-s. (2) of S. 57 was directory in character and not mandatory; therefore, the courts and authorities concerned had a discretion conferred on them to take into consideration the provisions of the new Act when it was considered necessary in a proper case and in the interest of justice. We do not wish, however, to base our decision on these grounds. We think that the proper way of reading sub-s. (2) and the first proviso thereto is to harmonise both in the best way possible. In Bulaqi Das Madan Mohan v. Ram Sarup, 62 Pun LR 231 the view expressed was that the proviso must have some meaning and force and the proviso intended that where the old provisions had been repeated with modifications, the old Act should be interpreted in the light of the modifications so long as they did not involve creating any rights and liabilities. A similar view was expressed by the same Judge in Shri Bimal Parshad Jain v. Shri Niadaramal, 62 Pun LR 664. The question was considered by a Division Bench in Shri Jhabar Mal Chokhani v. Shri Jinendra Pershad, 65 Pun LR 469. At pages 474 and 475 of the report Dulat, J. who spoke for the Bench said :"It would thus appear that apart from Gosain, J. the other learned Judges of this court have generally agreed that the proviso to s. 57, sub-section (2), does not demand that a suit for the eviction of a tenant filed under the previous Act of 1952 must be governed entirely by the provisions of the new Act but that, on the other hand, the provisions applicable continue to be the provisions of the old Act with this addition that, where the new Act has slightly modified or clarified the previous provisions, those modifications and clarifications should be applied, but, where entirely new rights and new liabilities have been created, the new provisions must not be allowed to override the provisions of the previous Act, and nearly all the cases have been decided on that basis.We agree with the view expressed by Dulat J. We also agree with the High Court that if the first proviso to sub-s. (2) of S. 57 is interpreted in the way contended for by the appellant here, it would really be giving effect to the provisions of the Control Act of 1958 retrospectively, though sub-s. (2) of S. 57 states in clear terms that all suits and proceedings pending at the commencement of the new Act will be dealt in accordance with the provisions of the old Act. This is really putting the same argument that the proviso must be read harmoniously with the substantive provision in another way.13. For the reasons given above we have come to the conclusion that in the present case the respondent-landlord is entitled to the benefit of cl. (c), sub-cl. (i), of the proviso to S. 13(1) of the Control Act of 1952 and the first proviso to sub-s. (2) of S. 57 of the Control Act of 1958 does not stand in his way. He is therefore, entitled to succeed, as the appellant has failed to make out any acquiescence by the landlord to the sub-letting in question.

Decision:
1[ds]Two questions arise out of S. 57 . It is clear beyond dispute that had(2) of S.57 stood by itself, then the present case would be governed by the provisions of the Control Act of 1952, assuming that an application in revision is a proceeding within the meaning of theThere are however two provisos to(2) of S.57. It is the interpretation of these two provisos which had caused much difficulty in the present case.however, we decide against the appellant on the first question and hold that the application in revision, assuming it to be a proceeding within the meaning of(2), must be disposed of in accordance with the provisions of the Control Act of 1952, then the second question need not be decided by us in the present case.With the details of these provisions we are not concerned in the present case except to point out that the Control Act of 1958 made radical changes in the matter of eviction of tenants on the ground ofIn the matter ofthe relevant date was taken as June 9, 1952 the date on which the Control Act of 1952 came into force, and a distinction was made betweenbefore that date andafter that date. Abefore June 9, 1952 was treated as lawfulant was in occupation of the premises at the commencement of the Control Act of 1958; but aafter June 9, 1952 without the previous consent in writing of the landlord was treated as unlawful for the purposes of the Control Act, of 1958.10. Let us now consider S. 57, of the Control Act of 1958 against the background of the scheme of the two Control Acts, as stated above.The first sub-section of S. 57 repeals the Control Act of 1952 in so far as it is applicable to the Union territory of Delhi. If the repeal stood by itself the provisions of the General Clauses Act (X of 1897) would have applied with regard to the effect of the repeal and the repeal would not affect the previous operation of any enactment repealed or anything duly done or suffered thereunder or affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed. The provisions of the General Clauses Act will not, however, apply where a different intention appears from the repealing enactment. Such an intention is clear from sub-s. (2) of S. 57 which contains the saving clause. It states in express terms that notwithstanding the repeal of the Control Act of 1952; all suits and proceedings under the Control Act of 1952 pending before any court or other authority at the commencement of the Control Act of 1958, shall be continued and disposed of in accordance with the provisions of the Control Act of 1952, as if the Control Act of 1952 had continued in force and the Control Act of 1958 had not been passed. Nothing can be more emphatic in the matter of a saving clause than what is contained in sub-s. (2) of S. 57. We had said earlier that had sub-s. (2) of S. 57 stood by itself without the provisos, then the incontestable position would have been that the present case would be governed by the provisions of the Control Act offirst proviso states inter alia that in the matter of eviction of a tenant from any premises to which S. 54 does not apply, the court or other authority shall have regard to the provisions of the Control Act of 1958. Section 54 need not be considered by us as it merely saves the operation of certain enactments which do not apply to the premises under ourare unable to agree that such is the meaning of the first proviso. We think that the first proviso must be read harmoniously with the substantive provision contained in sub-s. (2) and the only way of harmonising the two is to accept the view which the Punjab High Court has accepted, namely, that the words "shall have regard to the provisions of this Act merely mean that "where the new Act has slightly modified or clarified the previous provisions, these modifications and clarifications should be applied. We see no other way of harmonising sub-s. (2) with the first proviso thereto.We do not think that it would be right to read the first proviso of sub-s. (2) in that way. It was argued before us that the first proviso related only to two matters, (a) fixation of standard rent and (b) eviction of a tenant, and the intention was that in these two matters only the provisions of the Control Act of 1958 would apply and not in others. If that was the intention, nothing would have been easier than to say in sub-s. (2) - "Notwithstanding such repeal, all suits and other proceedings under the said Act except those for fixation of standard rent and eviction of a tenant etc. Sub-s. (2) does not, however, say so, and if the first proviso is to be interpreted in the manner suggested by the appellant, the provisions as to jurisdiction in the new Act would affect the power of the civil court to pass a decree for eviction.We do not wish, however, to base our decision on these grounds. We think that the proper way of reading sub-s. (2) and the first proviso thereto is to harmonise both in the best way possible. In Bulaqi Das Madan Mohan v. Ram Sarup, 62 Pun LR 231 the view expressed was that the proviso must have some meaning and force and the proviso intended that where the old provisions had been repeated with modifications, the old Act should be interpreted in the light of the modifications so long as they did not involve creating any rights and liabilities. A similar view was expressed by the same Judge in Shri Bimal Parshad Jain v. Shri Niadaramal, 62 Pun LR 664. The question was considered by a Division Bench in Shri Jhabar Mal Chokhani v. Shri Jinendra Pershad, 65 Pun LRagree with the view expressed by Dulat J. We also agree with the High Court that if the first proviso to sub-s. (2) of S. 57 is interpreted in the way contended for by the appellant here, it would really be giving effect to the provisions of the Control Act of 1958 retrospectively, though sub-s. (2) of S. 57 states in clear terms that all suits and proceedings pending at the commencement of the new Act will be dealt in accordance with the provisions of the old Act. This is really putting the same argument that the proviso must be read harmoniously with the substantive provision in another way.13. For the reasons given above we have come to the conclusion that in the present case the respondent-landlord is entitled to the benefit of cl. (c), sub-cl. (i), of the proviso to S. 13(1) of the Control Act of 1952 and the first proviso to sub-s. (2) of S. 57 of the Control Act of 1958 does not stand in his way. He is therefore, entitled to succeed, as the appellant has failed to make out any acquiescence by the landlord to the sub-letting in question.