Case: Qudrat Ullah Vs. Municipal Board, Barelly

2. Now, a brief narration of the facts. Although the canvass has been spread out, the relevant dispute lies in a narrow compass, and can be resolved by a close look at the terms of Ex. `1 (substantially repeated in Ex. `4) and by applying settled rules wich tell off a lease from a license when the deed is ambiguous. It is unfortunate that legal drafting by the respondents lawmen has left the key documents in a blurred state, so much so, the trial Judge and the learned Judges in appeal have had to diverge in their conclusions, and before us long arguments have been hopefully addressed to help us designate the contract with certitude a lease or license3. The defendant (the appellants father) had for several years been collecting `tahbazari dues from the market in Patelganj under contracts from the Municipal Board, the last of which, according to the plaintiff, was executed on 19-11-1944 (Ex. `1). The defendants case is that on the expiration of the term of Ex.`1, a fresh contract dated 31-12-1947, Ex. `4 was entered into between the parties substantially repeating the same terms and conditions. On the basis that Ex.`4 had not materialised into a binding contract for want of Government approval, the plaintiff ineffectually demanded of the defendant, by notice Ex. `6 of 1951, to desist from realising the market dues and followed it up with a suit praying for many reliefs of which the crucial one runs thus:"(a) The plaintiff may be put in absolute proprietary possession after dispossessing the defendants over the sheds and passage shown in green and shops bearing Nos. 17 to 20 and 24 to 28 and 31 and 32 situate in Bazar Patelganj known as Cambellgunj Sabzimandi Bareilly as shown in the map attached to the plaint"4. The plaintiff claims Ex.`1 to be a license which, if correct, undoubtedly entitles him to the relief while the defendant pleads the status and protection of a tenant under the U. P. (Temporary) Control of Rent and Eviction Act (U. P. Act 3 of 1947) (hereinafter referred to as the Act). The decision of this case largely depends on Ex. `1 being a lease or a license. We are satisfied from the evidence on record that the finding of the Court below that Ex. `4 is binding on the plaintiff is sound but since the effect of both the documents is fairly the same we may as well proceed to interpret them straightway. In this court, however, an additional ground has been urged by the respondent that the Act having been repealed by the Uttar Pradesh Urban Buildings (Regulation of Letting Rent and Eviction) Act, 1972 (Act 13 of 1972) (for short, called the later Act), the Board is entitled to an ejectment decree even if Ex. `1 and `4 are leases5. The trial court held that Exs. `1 and `4 were demises of the Municipal market and dismissed the suit having regard to the Rent Control Law then extant which did not exempt municipal buildings from the operation thereof. The High Court expressed its view that"On going through the entire document, we have come to the conclusion that Ex.1 is a combination of a lease and a license. It is a lease with respect to the sheds and eleven shops. But the agreement was a mere license as regards the patris or footpaths adjoining the roads."Holding Ex. `1 to be a composite deed, the learned Judges declined the relief relating to the shops and sheds but put a different construction on the pavements and patris included in the Ex. `1. The court observed:"A pavement cannot be said to be an accommodation as defined as S.2 of the Rent Control and Eviction Act. We have held that the defendant was merely a licensee with respect to the pavements. So the requiremnts of Section 106 Transfer of Property Act do not come into play an regards the plaintiffs claim for ejectment from the patris. Neither the Rent Control and Eviction Act, nor Section 106, Transfer of Property Act saves the defendant as regards the plaintiffs claim for ejectment from the patris"Consequent modifications in the monetary part of the decree were also made, following upon a decree for possession to the limited extent of patris and pavements6. Both sides have appealed but we have proceeded, for the sake of convenience, to treat the parties as appellant and respondent as in Civil Appeal No. 1727 of 1968.

Reasoning: 17. We have in this case a temporary Act which would have died a natural death by the end of September, 1972 but before its life had run out was extinguished by statutory repeal on 22nd July, 1972 on which date the later Act came into force. Surely, there has been a repeal of the Act which was relied upon successfully by the defendant and his legal representative the appellant, throughout the litigation. But now that defence or protection is no longer available. However, counsel for the appellant contends that a right has accrued to him under the Act which cannot be taken away by its repeal since the later Act is not in terms a retrospective one. Factually, it is correct to say that Section 43 has not been made retrospective19. Section 43 (2) (h) states that notwithstanding the repeal of the earlier Act any Court before which any suit or other proceeding relating to the...eviction from any building is pending immediately before the commencement of this Act may, on an application being made to it which 60 days from such commencement, grant leave to any party to amend its pleadings in consequence of the provisions of this Act". It is, therefore, 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 that it is the later Act that must govern pending proceedings for recovery of possession or recovery or fixation of rent. However, the suit with which we are concerned is not even one under the Act, but proceeds on the footing that the defendant is only a licensee. So much so, none of the saving clauses in S.43 (2) applies. The result is that the application of the old Act is repealled by the general rule that on repeal a statute is deemed not to have been on the Statute Book at all26. The U. P. Act, 1947, however, expressly attracts S.6 of the U. P. General Clauses Act 1 of 1904 (vide S. 1 (4)) and that is why we have discussed the position even with reference to the General Clauses Act27. From what we have stated above, it follows that the argument of any vested right in the defendant being taken away does not hold good; nor is there any foundation, for the contention that the later Act is being applied retrospectively. All that we hold is (a) that a disability of the plaintiff to enforce his cause of action under the ordinarily law may not necessarily be transmuted into a substantive right in the defendant, (b) that right of a statutory tenent created under a temporary statute, as in this case, go to the extent of merely preventing the eviction so long as the temporary statute lasts, (c) that the provisions of Section 43 do not preserve, subsequent to repeal any right to rebuff the plaintiffs claim for eviction and (d) that S.6 of the General clauses Act does not justify anything larger or for any time longer than S.2 of the Act confers or lasts. It is appropriate for a Court to do justice between parties to the litigation and in moulding the relief in the light of the subsequent developments, to take note of legislative changes. A court of justice should, if it could, adjudicate finally and not leave the door ajar for parties to litigate again. In the present case, it is not seriously disputed that if the plaintiff were to sue for recovery of possession today, the Rent Control Law does not stand in the way. Therefore, it is manifestly a measure of doing justice between the parties and ending litigation, which has seen two decades pass, to conclude it here by taking cognizance and adjusting the relief in the light of the later Act and repeal of the earlier Act. Nevertheless, it is contended that the present suit cannot be decreed in view of the provisions of the U. P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972. This statute which provides for summary eviction of unauthorised occupants cannot obstruct the suit for eviction of a tenant. The farfetched submission has hardly any substance and we reject it.