Reserved HIGH COURT OF UTTARAKHAND, AT NAINITAL Writ Petition No.3467 of 2001 (M/S) {Old No.16963 of 1997} Shri Sheesh Ram Kanswal S/o Sri Hari Ram Kanswal … Petitioner Versus IInd Addl. District Judge, Dehradun and others …. Respondents AND Writ Petition No.106 of 2002 (M/S) Sri Aurobindo Society Pondicherry, through its Authorized representative Sri Vijay Bansal … Petitioner Versus Sri Sheeh Ram Kanswal and others …. Respondents Dated:- 16th September, 2010 Hon’ble Tarun Agarwala, J. Heard Mr. Neeraj Garg, the learned counsel for the landlord and Mr. J. P. Joshi, the learned counsel for the allottee. 2. The Rent Inspector submitted a report dated 22.05.1986 indicating therein that the accommodation in question has become vacant and that an allotment could be made on the said accommodation. Based on the said report, the Rent Control & Eviction Officer, by an order dated 16th June, 1986, declared a vacancy on the accommodation in question. Sri Sheesh Ram Kanswal, a prospective allottee submitted an application praying that he may be allotted the said accommodation. The Rent Control & Eviction Officer, by an order dated 23rd June, 1986, allotted the accommodation in favour of the allottee and handed over its possession to the allottee on 30th July, 1986. 3. Prior to taking the possession, the landlord, Aurobindo Ashram, which is a society registered under the Societies Registration Act, applied for the recall of the allotment order dated 23rd June, 1986. Since no order was passed on the recall application, the society also filed a revision No.98/1986 alongwith an application under Section 5 of the Limitation Act for condoning the alleged delay. By an order dated 06th March, 1987, the delay in filing the revision was condoned. During the pendency of the revision, the allottee filed an application alleging that the revision filed by the landlord was not maintainable in view of U.P. Act No.5 of 1995. It was alleged that pursuant to the amendment made in Section 2 of the U.P. Act No.13 of 1972, the accommodation in question went outside the purview of U.P. Act No.13 of 1972 and, consequently, the revision of the landlord was not maintainable and was liable to be dismissed. The revisional court, by an order dated 25th April, 1997, allowed the revision and cancelled the allotment order. The revisional court held that after the declaration of vacancy and before the allotment, it was essential that the landlord was required to be heard and, since the landlord was not heard before the passing of the allotment order, the same, being in violation of the principles of natural justice, could not be sustained and, accordingly, the allotment order was set aside. The revisional court, however, allowed the allottee’s application and held that since the premises was owned by Aurobindo Society, which was a charitable society, it was outside the purview of U.P. Act No.13 of 1972 in view of the amendment made in Section 2 of the Act by U.P. Act No.5 of 1995 and, consequently, the revision filed by the landlord was not maintainable. The allottee, being aggrieved by the cancellation of the allotment order, filed writ petition No.16963/1997 before the Allahabad High Court and, upon transfer to this Court, was renumbered as Writ Petition No.3467 of 2001 (M/S). 4. Pursuant to the cancellation of the allotment order, the Rent Control & Eviction Officer passed a fresh order dated 13th 3 June, 1997 again allotting the premises to Sri Sheesh Ram Kanswal. The landlord, being aggrieved, filed a review application and also filed a revision No.89 of 1997. The Rent Control & Eviction Officer, by an order dated 07th July, 1997 allowed the review application and quashed the allotment order, against which the allottee filed a revision No.121 of 1997. Subsequently, the revisional court, by an order dated 10th January, 2002, allowed revision of the allotee i.e. revision No.121/2007, and the order dated 07th July, 1997 was set aside. By another order of the same date, the revision No.89/1997 filed by the landlord was dismissed. The landlord, being aggrieved by the aforesaid order, has filed the Writ Petition No.106 of 2002. 5. Both the writ petitions have been clubbed together and are being decided together. 6. The moot question, which arises for consideration is, what is the effect of U.P. Act No.5 of 1995 in pending allotment proceedings initiated under Section 15 & 16 of U.P. Act No.13 of 1972? To elucidate the aforesaid, it is necessary to consider the provision of Section 2 (bb) of the Act:- “2. Exemptions from Operation of Act.- (1) Nothing in this Act shall apply to [the following namely, -] (bb) any building belonging to or vested in a public charitable or public religious institution;” 7. The aforesaid provision came into existence by U.P. Act No.5 of 1995, which came into force w.e.f. 26th September, 1994. The aforesaid provision provides that the U.P. Act No.13 of 1972 will not apply to a building, which belongs or vests in a public charitable or public religious institution. This provision was prospective in nature. The question is, what is the effect of this Amending Act in pending proceedings; whether it is applicable or not? 4 8. Admittedly, the landlord Aurobindo Society is a society under the Societies Registration Act and is also a charitable society. Consequently, in view of the inclusion of sub-clause (bb) in Section 2, the U.P. Act No.13 of 1972 is not applicable to any building belonging to Aurobindo Society after 26.09.1994. To that extent there is no controversy. 9. The controversy raised is, that during the pendency of the allotment proceedings the amendment came into existence. The contention of the landlord is, that upon the commencement of U.P. Act No.5 of 1995, the allotment proceedings came to an end and no fresh allotment order could have been issued. The learned counsel for the landlord submitted that the tenant was given a protective right under the U.P. Act No.13 of 1972 and, since, the protective right was removed by U.P. Act No.5 of 1995, the tenant / allottee had no vested right under the said Act and his remedy was only available under the General law. 10. On the other hand, the learned counsel for the allottee contended that in view of Section 6 of the General Clauses Act, the tenant had acquired a vested right pursuant to the allotment order and, consequently, U.P. Act No.5 of 1995, would have no effect in the pending proceedings. In support of the submission of the learned counsel for the parties, various case laws were cited, which will be considered hereunder:- 11. In Atma Ram Mittal Vs. Ishwar Singh Punia 1988 (4) SCC 284, a suit was filed for recovery of possession on the termination of the expiry of the period of tenancy. During the pendency of the suit, the building, under the occupation of the tenant, completed 10 years of existence from the date of its construction and, accordingly, an application was filed by the tenant that the suit filed for recovery of possession was not maintainable in view of the provision of Section 1(3) of the Haryana Urban (Control of Rent & Eviction) Act, 1973, which provided that the said Act would not be applicable to any building, the construction of which was completed on or after commencement of the said Act for a period of 10 years from the date of its completion. The trial court dismissed the application of the tenant against which a revision was preferred before the High Court, which was allowed. The High Court held that since the suit had not been decreed within the period of 10 years, the building in question came within the purview of the Act and, as such, the Rent Act was applicable and the civil court had no jurisdiction. The Supreme Court applying the maxim “Actus curiae neminem gravabit” i.e. no man should suffer because of the fault of the court or delay in the procedure, held that merely because the suit could not be decreed, the jurisdiction of the civil court could not be ousted. A meaningful construction must be given, namely, that the exemption would apply for the period of 10 years and would continue to be available until the suit was disposed or was adjudicated upon. The Supreme Court held that such suit must be instituted within the stipulated period of 10 years and that rights are crystallized on the date of the institution of the suit. 12. In Parripati Chandra Sekharrao & sons Vs. Alapati Jalaiah 1995 (3) SCC 709, the rights of a landlord and tenant under the common law and under the Special Act were defined. The Supreme Court held :- “12. According to us there is a material difference between the rights which accrue to a landlord under the common law and the protection which is afforded to the tenant by such legislation as the Act. In the former case the rights and remedies of the landlord and tenant are governed by the law of contract and the law governing the property relations. These rights and remedies continue to govern their relationship unless they are regulated by such protective legislation as the present Act in which case the said rights and remedies remain suspended till the protective legislation continues in operation. Hence while it can legitimately be said that the landlord’s 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 landlord’s case is not available to the tenant. It is for this reason that the analogy sought to be drawn by Shri Subbarao between the landlord’s and the tenant’s rights relying upon the decision of this Court in Atma Ram Mittal Vs. Ishwar Singh Punia 1988 (4) SCC 284 is misplaced. In that case the landlord’s normal right to evict the tenant from the premises was not interfered with for the first ten years of the construction of the premises by an exemption specifically incorporated in the protective rent legislation in question. The normal right was obviously the vested right under the general law and once accrued it continued to operate. The protection given to the tenant by the rent legislation came into operation after the expiry of the period of 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 reason that the Court there held that the right which had accrued to the landlord being a vested right could not be denied to him by the efflux of time.” 13. In Ambalal Sarabhai Enterprises Ltd. Vs. Amrit Lal & Co. & another 2001 (8) SCC 397, while considering the effect of Section 3(c) as inserted by Act No.57 of 1988 in the Delhi Rent Control Act, 1958 with regard to the non-applicability of the Rent Act to the tenancy whose monthly rent exceeded to 7 Rs.3500/- per month in pending proceedings, the Supreme Court, after considering the aforesaid judgments and after considering Section 6 of the General Clauses Act, held :- “25. The opening words of Section 6 specify the field over which it is operative. It is operative over all the enactments under the General Clauses Act, Central Act or regulations made after the commencement of the 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 effect over the matters covered in its clauses viz. (a) to (e). It clearly specifies that the repeal shall not revive anything not in force or in existence or affect 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. 26. As a general rule, in view of Section 6, the repeal of a 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 8 not affect 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 get crystallised 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. 36. In view of the aforesaid legal principle emerging, we come to the conclusion that since proceeding for the eviction of the tenant was pending when the repealing Act came into operation, Section 6 of the General Clauses Act would be applicable in the present case, as it is the landlord’s accrued right in terms of Section 6. Clause (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) are wide enough to include the landlord’s 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. 37. 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 remedies 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 sub-letting 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 the 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 the Rent Act except where clause (c) of Section 6 of the General Clauses Act is applicable.” 14. In Vishwant Kumar Vs. Madan Lal Sharma & another AIR 2004 SC 1887, the Supreme Court, while considering an application of a tenant for fixation of standard rent, held that upon coming into the operation Section 3 (c) of the Amending Act in the Delhi Rent Control Act, 1958, the application was not maintainable since the Act was not applicable. The Supreme Court held that there was a difference between a mere right and a right acquired or accrued. The Supreme Court held that under Section 9 of the Delhi Rent Control Act, the tenant had a right to get the standard rent fixed and, such a right was the right to take advantage of an enactment which was not an accrued right. Since the Act was repealed, the statutory tenant could do nothing about it since it was a mere right and not a vested right. The Supreme Court held :- “4. ……………… That till the decree is passed, there is no accrued right. The mere right existing on date of repeal to take advantage of the repealed provisions is not a right accrued within Section 6(c) of the General Clauses Act.” 15. In view of the aforesaid decisions, this court has to see as to whether the allottee had a mere right under the Act or whether he had acquired a vested right or a right had accrued to him. The court is also required to see as to what is the right of the landlord in the present facts and circumstances of the case as to whether the U.P. Act No.5 of 1995 could constitute a vested right to the landlord or not. In order to elucidate the matter further, it would be appropriate if the General Clauses Act as applicable in the State of U.P., which has been made applicable in the State of Uttarakhand is perused. For facility, the said provision is extracted hereunder:- “6. Effect of repeal. – Where any [Uttar Pradesh], 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 remedy, or any investigation or legal proceeding commenced before the repealing Act shall have come into operation in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such remedy, may be enforced and any such investigation or legal proceeding may be continued and concluded, and any such penalty, forfeiture or punishment imposed as if the repealing Act had not been passed. 16. A perusal of clause 6(c) of the General Clauses Act indicates that a repeal of any enactment would not affect any right, privilege, obligation or liability, acquired accrued or incurred under any enactment so repealed. 17. In the light of the aforesaid, the Court finds that a vacancy was declared on the accommodation in question on 16th June, 1986 and an allotment order was issued by the Rent Control & Eviction Officer on 23rd June, 1986 and the possession of the accommodation was given to the allottee on 30th July, 1986. On all the three dates as stated aforesaid, the U.P. Act No.13 of 1972 was applicable on the accommodation in question. The allottee was initially given a mere right under the said Act and the landlord’s right was curtailed. As held by the Supreme Court, prior to the enactment of the Rent Act, the relationship between the landlord and the tenant was governed by the general law in relation to a property. The Rent Act merely provided a protection to a tenant as against the unbridled power of the landlord under the general law of the land. The right under the Rent Act to a tenant was a protective right which could not be construed to be a vested right. 18. The court, however, finds that an allotment order was made in favour of the allottee pursuant to which the allottee was given possession. Upon such orders being passed, the allottee acquired an accrued right and not a mere right. This accrued right became a substantive right and, consequently, the U.P. Act No.5 of 1995 which came into existence on 26th September, 1994 could not divest that right which had already accrued to the allottee. In the 13 opinion of the court, even if the proceedings were pending in a revision pursuant to the order of allotment being passed, the U.P. Act No.5 of 1995 could not divest the right, which had already accrued to the allottee. The landlord could not take advantage of U.P. Act No.5 of 1995 and contend that the protective umbrella which gave a protection to the tenant had now been removed and the allottee was required to seek the remedy under the civil law. 19. In view of the aforesaid, the provision of Section 6 (c) of the General Clauses Act is wide enough to include the accrued right of an allottee to protect himself under the Rent Act and the U.P. Act No.5 of 1995 would not come in the way in the pending proceedings under the Rent Act. Consequently, the court is of the opinion that upon coming into force the U.P. Act No.5 of 1995, pending proceedings before the revisional court or before the Rent Control & Eviction Officer was not affected and that the authorities / courts were competent to adjudicate upon the matter. 20. In view of the aforesaid, the writ petition No.3467 of 2001 (M/S) is allowed. The impugned order of the revisional court setting aside the allotment order is quashed. Writ petition No.106 of 2002 (M/S) has no merit and is dismissed (Tarun Agarwala, J.) Dated 16.09.2010 LSR