1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR SECOND APPEAL NO. 59 OF 2008 (Chandrashekhar Madanlal Gattani & Anr. vs. Bharat Petroleum Corporation Limited & Ors.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. SEPTEMBER 16, 2010. Heard Shri Mehadia, learned counsel for the appellants – landlords, Shri Bhangde, learned Senior Advocate for respondent No. 1 and Shri Vaidya, learned counsel for respondent No. 7. Shri Mehadia, learned counsel states that when the Regular Civil Suit No. 78 of 1972 after issuing notice under Section 106 of Transfer of Property Act was filed, the provisions of C.P. & Berar Letting of Houses and Rent Control Order, 1949, (hereinafter referred to as Rent Control Order), were not applicable to open plot. The said suit came to be decided on 16.04.1979. He points out that in 1989, the definition of premises was added by Amendment to Rent Control Order and open plot for the first time came to be subjected to that legislation. The amendment came when the challenge to judgment and decree in favour of the appellants – landlords was pending consideration before the District Court in appeal. He states that initially as per law then prevailing, First Appeal No. 138 of 1979 was filed before 2 the High Court and after the pecuniary jurisdiction was increased, First Appeal was transferred to the Court of Principal District Judge, Amravati, where it was re- registered as Regular Civil Appeal No. 195 of 2000. That appeal has been decided on 24.08.2007. He again points out that on the date of decision, open plot was not subject to the provisions of any Rent Control legislation. In these circumstances, his contention is, the view taken by the appellate Court in this respect by allowing Regular Civil Appeal No. 70 of 2001 preferred by present Respondent No. 1 is clearly erroneous and unsustainable. He has relied upon the judgments in the case of Mohd. Aziz Ul Haq vs. Dilip, reported at 2008 (6) Mh. L.J. 482 delivered by me and unreported judgment dated 09.02.2010 in Civil Revision Application No. 175 of 2003 (Badga s/o Gokula Pardeshi vs. Krishnabai Narayan Patil). He points out that two earlier judgments of this Court are considered in Mohd. Aziz Ul Haq vs. Dilip, (supra). Shri Bhangde, learned Senior Advocate has opposed these contentions and he states that the legal position that provisions of Section 58 of the Maharashtra Rent Control Act, 1999, (hereinafter referred to as Rent Act) do not have retrospective effect and impact of Section 7 of General Clauses Act has not been gone into. He invites attention to the judgment in the case of Soamchand Sankharia vs. Sing Light House & Anr., reported at 2002 (Suppl) Bom. C.R. 658, to substantiate 3 his contention. He has further relied upon a judgment in the case of Shrikrishna Jugalkishore Goenka vs. Govind Trimbak Vaidya, reported at 2009 (1) Mh. L.J. 666, to urge that in somewhat similar situation, this Court has found that subsequent withdrawal of open plots from Rent Control Legislation is not relevant and the issue needs to be examined in the light of position as prevailing on the date of institution of suit. Shri Vaidya, learned counsel has adopted the arguments of Shri Bhangde, learned Senior Advocate. In view of this, following question arises for consideration as substantial question of law in present matter. “Whether after coming into force of provisions of Maharashtra Rent Control Act, 1999, the suit as filed by the appellants could have been dismissed on the ground that they did not obtain permission of Rent Controller as envisaged by Clause 13(3) of C.P. and Berar Letting of Houses and Rent Control Order, 1949.” In Shrikrishna Jugalkishore Goenka vs. Govind Trimbak Vaidya, (supra), the facts show that suit was filed in 1993 after terminating the tenancy of defendant therein on 03.08.1993. Thus, on that day the open plot was already covered in definition of premises under Rent Control Order. The controversy has been considered in this back ground and because of it, the new legislation i.e. Maharashtra Rent Control Act, 1999, is found to be not retrospective. In other words, the suit on the date of 4 its institution is found to be defective and, therefore, not saved by removal of open plot from the protection of Rent Control Order. The judgment does not have application in present matter as on the date of filing of Civil Suit, on the date of passing of judgment and decree therein or then on the date of filing of First Appeal before this Court, the open plot was not forming subject matter of Rent Control Legislation. The judgment in Soamchand Sankharia vs. Sing Light House & Anr. (supra) considers the effect of provisions of Section 58 of Rent Act, on writ petition as pending and holds that pending writ petitions under repealed Bombay Rent Act could continue. Conclusion reached therein is the saving provision in a repealing statute is not exhaustive of the rights and obligations so saved or rights that survived the appeal. In this background, the provisions of Section 7 of the Bombay General Clauses Act (corresponding to Section 6 of General Clauses Act) are found to be applicable as the learned Single Judge found that there was no provision in Maharashtra Rent Control Act manifesting any contrary intention. Again, in view of the facts in the said judgment, it is clear that the said law was found relevant there. In present facts, as already noticed, only from 1989 till commencement of the Rent Act, the tenants of open plots enjoyed protection of Rent Control legislation. The right of landlord to terminate the 5 tenancy of his tenant regulated otherwise by Transfer of Property Act, was therefore, eclipsed in 1989 till 31.03.2000 when Rent Act came into force. This position is already considered by me in Mohd. Aziz Ul Haq vs. Dilip, (supra). The doctrine of eclipse is found to be applicable. The judgment of the Hon'ble Apex Court in the case of Qudrat Ullah vs. Municipal Board, Bareilly, reported at AIR 1974 SC 396 is also looked into to note how the doctrine of eclipse is attracted. I, therefore, find that the question as framed above is squarely answered in favour of the appellants – plaintiffs by the above judgment delivered by me. The question is, therefore, answered in favour of the appellants – landlords. The tenancy of subject open plot is not regulated by any Rent Control legislation after 31.03.2000 after coming into force of Rent Act in present circumstances. The judgment and decree delivered by the Principal District Judge, Amravati, in Regular Civil Appeal No. 70 of 2001 is accordingly quashed and set aside and that appeal is dismissed. The judgment and decree in his favour delivered by the trial Court is accordingly revived. Respondent No. 1 has filed Cross Objections vide Stamp No. 8227 of 2008 in the matter. The perusal of those Cross objections, particularly, Cross Objection Nos. 1 & 2 show that effort is to reopen findings reached on fact after appreciation of the documents i.e. letters 6 Exhs. 174 & 170. No substantial question of law, therefore, arises on that count. Similarly, as the dispute is between the landlord and tenant, the provisions of Sections 5, 11 and 13 of Burmah Shell (Acquisition of Undertaking in India) Act, 1976, are also not relevant. Cross Objections are, therefore, misconceived and the same are rejected. Thus, Second Appeal is allowed with no order as to costs. Shri Bhangde, learned Senior Advocate seeks stay of six weeks to this order to enable Respondent No. 1 to proceed further in the matter. Shri Mehadia, learned counsel is strongly opposing the request. Subject to Respondent No. 1 depositing with trial Court the monetary part of the decree till date within four weeks from today, the possession of Respondent No. 1 is protected for a period of six weeks from today. The interim protection shall cease to operate automatically thereafter. JUDGE *GS.