Case: Shah Bhojraj Kuverji Oil Mills And Ginning Factory Vs. Subbash Chandra Yograj Sinha

2. On September 11, 1942, the appellants had executed a rent note, under which they were in occupation of the premises in dispute. The period of the tenancy was 15 years, and it expired by efflux of time on March 14, 1957. The landlord thereupon filed a suit on April 25, 1957, for possession of the premises, in the court of the Joint Civil Judge (Junior Division), Erandol. Meanwhile, under S. 6 of the Bombay Rents. Hotel and Lodging House Rates Control Act, 1947, (to be called the Act, in this judgment), a notification was issued, applying Part II of the Act to the area where the property is situated. The appellants claimed protection of S. 12 in Part II of the Act, which deprived the landlord of the right of possession under certain circumstances. The Civil Judge framed three preliminary Issues, which were asWhether this Court has jurisdiction to try the suit?2. Whether the plaintiffs suit for possession of the suit property is maintainable in view of the Notification issued by the Government of Bombay on 16th August, 1958, applying Part II of the Bombay Rents, Hotel and Lodging House Rates Control Act? If not, what order should be passed?3. WhatThese Issues were decided against the appellants. They filed a revision petition before the High Court of Bombay, which was dismissed by the order under appeal. Naik, J., who heard the revision, followed a previous Full Bench ruling of the Bombay High Court reported in Nilkanth Ramchandra v. Rasiklal, 51 Bom LR 280: (AIR 1949 Bom 210  ). In that case, Chagla C. J. (Gajendragadkar and Tendolkar, JJ., concurring) had held that S. 12 of the Act was prospective and did not apply to pending cases. Reliance was also placed by Naik, J.. on the decision of this Court in Chandrasingh Manibhai v. Surjit Lal, 1951 SCR 221  : (AIR 1951 SC 199  ) where the opinion of the Full Bench of the Bombay High Court was approved.This is a tenants appeal, with the special leave of this Court, against an order of Naik, J., of the High Court of Bombay in Civil Revision Application No. 320 of 1959, by which he disallowed certain pleas raised by the appellants. The respondent is the landlord.

Reasoning:
9. The law with regard to provisos is well-settled and well-understood. As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment, and ordinarily, a proviso is not interpreted as stating a general rule. But, provisos are often added not as exceptions or qualifications to the main enactment but as saving clauses, in which cases they will not be construed as controlled by the section. The proviso which has been added to S. 50 of the Act deals with the effect of repeal. The substantive part of the section repealed two Acts which were in force in the State of Bombay. If nothing more had been said, S. 7 of the Bombay General Clauses Act, would have applied, and all pending suits" and proceedings would have continued under the old law, as if the repealing Act had not been passed. The effect of the proviso was to take the matter out of S. 7 of the Bombay General Clauses Act and to provide for a special saving, If cannot be used to decide whether S. 12 of the Act is retrospective. It was observed by Wood, V. C., in Fitzgeraldv. Champneys,(1861) 70 ER 958that saving clauses are seldom used to construe Acts. These clauses are introduced into Acts which repeal others, to safeguard rights which but for the savings, would be lost. The proviso here saves pending suits and proceedings, and further enacts that suits and proceedings then pending are to be transferred to the Courts designated in the Act are to continue under the Act and any or all the provisions of the Act are to apply to12(1) enacts a rule of decision, and it says that a landlord is not entitled to possession if the tenant pays or shows his readiness and willingness to pay the standard rent and to observe the other conditions of the tenancy. The word "tenant" is defined in the Act to include not only a tenant, whose tenancy subsists but also any person remaining, after the determination of the lease, in possession with or without the assent of the landlord. The present appellants, as statutory tenants, were within the rule enacted by S. 12(1) and entitled to its protection, if the sub-section could be held applicable to this suit.12. Both the Bombay High Court and this Court had, on the previous occasions, observed that s. 12 of the Act was prospective. In those cases, the learned Judges were concerned with the interpretation of sub-secs. (2) and (3) only, which, as the words of those sub-sections then existing show, were clearly prospective, and were applicable to suits to be instituted after the coming into force of the Act. But a section may be prospective in some parts and retrospective in other parts. While it is the ordinary rule that substantive rights should not be held to be taken away except by express provision or clear implication, many Acts, though prospective in form, have been given retrospective operation, if the intention of the legislature is apparent. This is more so, when Acts are passed to protect the public against some evil or abuse. (See Craies on Statute Law, 5th Edn., p. 365). The sub-section says that a landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays or is ready and willing to pay the standard rent etc., and observes and performs the other conditions of the tenancy. In other words, no decree can be passed granting possession to the landlord, if the tenant fulfils the conditions above mentioned. The Explanation to S. 12 makes it clear that the tenant in case of a dispute may make an application to the Court under sub-sec. (3) of S. 11 for fixation of a standard rent and may thereafter pay or tender the amount of rent or permitted increases specified in the order to be made by the Court. The tenants, in the present case, have expressed their readiness and willingness to pay, and it is clear that they fulfil the requirements of sub-sec. (1) of S. 12, and the landlord is therefore, not entitled to the relief of possession.13. Both the High Court as well as this Court in their previous decisions, referred to above, were not called upon to interpret sub-sec. (1) of the Act. They were dealing with appeals arising out of decrees already passed. The observations that S. 12 was prospective were made with reference to sub-secs. (2) and (3) and not with respect to sub-sec. (1), which did not even find a mention in those judgments. The question then was whether S. 12 by itself or read with the proviso to S. 50 was applicable retrospectively to appeals. That is not the question which has arisen here. Then again, S. 12(1) enacts that the landlord shall not be entitled to recover possession, not "no suit shall be instituted by the landlord to recover possession". The point of time when the sub-section will operate is when the decree for recovery of possession would have to be passed. Thus, the language of the sub-section applies equally to suits pending when Part II comes into force and those to be filed subsequently.contention of the respondent that the operation of S. 12(1) is limited to suits filed after the Act comes into force in a particular area cannot be accepted. The conclusion must follow that the present suits cannot be decreed in favour of the respondent. The decisions of the High Court and the Court of First Instance are thus erroneous, and must be set aside.