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PETITIONER: SAFALI ROY CHOUDHURY & ORS.

       Vs.

RESPONDENT: AMARENDRA KUMAR DUTTA

DATE OF JUDGMENT06/05/1976

BENCH: GUPTA, A.C. BENCH: GUPTA, A.C. BHAGWATI, P.N. FAZALALI, SYED MURTAZA

CITATION:  1976 AIR 1810            1976 SCR  595  1976 SCC  (3) 602

ACT:      Interpretation of statutes-Repeal and saving provision- Intention  of   Legislature-Whether  saving   provision  can override new rights created by repealing statute.      Transfer of  Property Act,  1882-Sec. 5-52-Transfer  of Property-List Pendens-If  applies to  rights  created  by  a statute.      West   Bengal    Premises   Rent   Control   (Temporary Provisions) Act 1950- West Bengal Premises Tenancy Act 1956- Sec. 2(h),16 and 40.

HEADNOTE:      The respondent  was the tenant of the suit premises and Dilip Narayan  Roy Choudhury  was his sub-tenant. The tenant instituted a suit against the subtenant when the West Bengal Premises Rent  Control (Temporary  Provisions) Act, 1950 was in force  seeking to evict the sub-tenant on the ground that he was  a defaulter  in payment  of rent. After the suit was instituted. West  Bengal Premises  Tenancy  Act,  1956,  was brought into  operation. Section  40 of  the subsequent  Act repealed  the  1950  Act  and  further  provided  that  not- withstanding the  repeal of  the said  Act  any  proceedings pending on the date of the repeal may be continued as if the said Act  had been in force and had not been repealed or had not expired.  Section 16 of the 1956 Act confers on the sub- tenant, on  his complying  with certain conditions the right to become a tenant directly under the landlord and authorise the Rent  Controller to pass necessary orders directing that the  sub-tenant  shall  become  tenant  directly  under  the landlord from  the date of the order. The sub-tenant adopted proceedings under section 16 of the Act against the superior landlord and  in February,  1957, the  Rent Controller  held that the  sub-tenant was  entitled to  the declaration asked for over-ruling  the objections  raised by  the  tenant.  An appeal filed  by the  tenant  against  the  said  order  was dismissed. Thereafter,  the sub-tenant  amended his  written statement in  the suit  for eviction  filed  by  the  tenant against  him  and  pleaded  that  the  relationship  of  the landlord and tenant between the tenant and the sub-tenant no longer subsisted.  The Munsiff dismissed the application for eviction filed  by the  tenant on the ground that in view of

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he order  passed under the 1956 Act declaring the sub-tenant to be a direct tenant under the landlord the relationship of landlord  and  tenant  between  the  parties  ceased.  In  a revision, the  High Court maintained the order rejecting the application for  eviction but set aside the finding that the relationship of  the landlord  and tenant between the tenant and the sub-tenant ceased. The High Court held that in spite of section  40 of  the repealing  Act, section  16(3) of the Repealing Act  must be  given effect  to.  The  High  Court, however, took  the view  that the  proceedings under section 16(3) having  been initiated during the pendency of the suit the principle  of lis  pendens would apply and, accordingly, the order under s. 16(3) would not govern the suit.      In an  appeal by special leave by the heirs of the sub- tenant, the counsel for the respondent did not rely on s. 52 of the  Transfer of  Property Act  but sought to support the decree on  the ground that in view of s. 40 of the Repealing Act  the   entire  proceedings   under  s.  16  was  without jurisdiction.      Allowing the appeal, ^      HELD: (1)  The doctrine  of lis  pendens  can  have  no application to  this case. The doctrine of lis pendens means that no party to the litigation can alienate the property in dispute so  as to  affect the other party and rests upon the foundation that  it would  plainly be  impossible  that  any action or  suit could be brought to a successful termination after alienation pendente lite. Section 596 5 of  the Transfer  of  Property  Act  defines  transfer  of property as an act by which a living person conveys property to  another.   When  the  Legislature  in  exercise  of  its sovereign powers  regulates or alters the rights of landlord and tenant,  what  it  does  is  not  transfer  of  property attracting the doctrine of lis pendens. [599B, C-F]      (2) It  is true  that in view of s. 40 of the Repealing Act  a  pending  proceeding  may  be  continued  as  if  the Repealing Act  was not  passed. This, however, does not mean that even  if the  1956 Act created a new right in favour of the tenant, he would be denied this right because a suit for ejectment was  pending against  him when  the Act  came into force. The intention of the Legislature, which is paramount, is clear  to upgrade  the sub-tenant  and make  him a tenant directly under  the superior  landlord. A  sub-tenant  is  a tenant within  the meaning  of s. 2(h) of the Repealing Act. Thus, the  suit must  continue under  the 1950  Act but  the right acquired  by the  sub-tenant under  1956 Act has to be given effect to and the suit decided accordingly. Therefore, the relationship  of landlord  and tenant ceased between the parties on  the date  when the  order under  s. 16 was made. [599F-H, 600B-C]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1599 of 1968.      Appeal by  Special Leave  from the  Judgment and  Order dated the  16th February  1968 of the Calcutta High Court in Civil Rule No. 1030 of 1967.      D. N. Mukherjee and N. R. Chaudhury for the Appellants.      Sukumar Ghosh for the Respondent.      The Judgment of the Court was delivered by      GUPTA, J.  This appeal  by special  leave  is  directed against a  Judgment of the Calcutta High Court setting aside

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in revision  the finding  of the  trial court  on the  issue whether the  relationship of  landlord and  tenant subsisted between the parties in a suit for ejectment. The issue which arises on  the interaction  of two statutes, the West Bengal Premises Rent  Control (Temporary  Provisions) Act, 1950 and the West  Bengal Premises  Tenancy Act,  1956, which repeals the earlier  Act but  keeps it alive for proceedings pending on the  date of  repeal, involves the question, is the right conferred on  the  sub-tenant  by  the  1956  Act  of  being declared a  tenant  directly  under  the  superior  landlord available to  a sub-tenant against whom a suit for ejectment was pending when that Act came into force ? The appeal turns on the answer to this question.      The material  facts leading  to the  impugned order are these. The  respondent was  a tenant  of premises  No. 17/1E Gopal Nagar  Road, Alipore,  Calcutta, and  his landlord was one Jagabandhu  Saha, the  owner of the house, Dilip Narayan Roy Chowdhury  was a  sub-tenant  under  the  respondent  in respect of  the ground  floor flat  paying a monthly rent of Rs. 75/-.  The respondent  instituted a suit in the Munsif’s court at  Alipore on  March 21,  1956 when  the West  Bengal Premises Rent  Control (Temporary  Provisions) Act, 1950 was in force,  seeking to evict Roy Choudhury on the ground that he was  a defaulter  in payment  of rent.  This  Act  was  a temporary statute  due to  expire on  March 31, 1956, but on that date  the West  Bengal Premises  Tenancy Act,  1956 was brought into operation repealing the 597 temporary Act  before  it  expired.  The  material  part  of section 40 of the 1956 Act which repealed the 1950 Act is as follows:           "Repeal and  savings.-(1) The West Bengal Premises      Rent Control  (Temporary Provisions) Act, 1950 (in this      section  referred  to  as  the  said  Act),  is  hereby      repealed.           (2)  Notwithstanding the repeal of the said Act:-                (a)  any proceeding  pending on  the 31st day                     of March, 1956, may be continued, or,                (b)  x     x     x     x     x           as if  the said  Act had been in force and had not      been repealed or had not expired :" Section 16  of the  1956 Act  confers on  the sub-tenant the right to  become a  tenant directly under the landlord. Sub- section (2)  of section  16 provides  inter-alia that  where before the  commencement of  this Act,  the tenant,  with or without the consent of the landlord, has sublet any premises either in  whole or in part, the tenant and every sub-tenant must give  notice to  the landlord of such subletting within the  prescribed   period.  Sub-section  (3)  of  section  16 provides that  in any  such case  where the landlord had not consented in  writing or  denies that  he gave oral consent, the Rent  Controller on an application made to him either by the landlord or the sub-tenant shall make an order declaring that the tenant’s interest in so much of the premises as has been sublet shall cease and that the sub-tenant shall become a tenant  directly under  the landlord  from the date of the order. The  Rent Controller is also required to fix the rent payable by  the sub-tenant  to the landlord from the date of the order.  Sub-tenant Roy  Choudhury served  a notice under section 16(2) of the 1956 Act upon the superior landlord and applied under  section 16(3)  for being  declared  a  tenant directly under  him. On  July 31,  1956 the  Rent Controller recorded a  finding on  this application  that Roy Choudhury was entitled  to the  declaration asked  for overruling  the objections raised  by the  respondent. On  February 23, 1957

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the Rent  Controller concluded  the proceeding under section 16(3) by  finally declaring that the sub-tenant was a tenant directly under  the superior  landlord with effect from that date, and  fixing  the  rent  payable  by  him.  The  appeal preferred by the respondent from this order was dismissed by the appellate authority.      In the  meantime, on August 21, 1956 the respondent had made an  application under  section 14(4) of the 1950 Act in the suit  for eviction  which was  pending. Section 14(4) of the 1950  Act permitted  the landlord to make an application in the  suit for  an order on the tenant to deposit month by month the  rent at  the rate  at which  it was last paid and also the  arrears of  rent, if  any, and  provided  that  on failure to  deposit the  arrears of rent or the rent for any month within  the period  prescribed for  such deposits, the court would  make an order striking out the tenant’s defence against ejectment  so that  the tenant  would be  in he same position as if he had not defended the claim to 598 ejectment. On  this application  the Munsif on September 26, 1956 directed  the appellant  to deposit  a certain  sum  as arrears of  rent and also rent month by month at the rate of Rs. 75/-.  After the  declaration of  tenancy under  section 16(3), Roy  Choudhury was  permitted to  amend  his  written statement in  the suit by adding a paragraph questioning the relationship of  landlord and  tenant between the respondent and himself.  It is  unnecessary to  refer  to  the  various proceedings in  the suit  that followed,  in the  course  of which the  High Court  was moved  more than  once by  either party. On  January 24,  1965  Roy  Choudhury  died  and  the present appellants were substituted in his place in the suit as his  heirs and legal representatives. On November 1, 1965 the Munsif  framed an  additional issue,  being issue No. 9, which was as follows:           "Has the  alleged  relationship  of  landlord  and      tenant between  the parties  been determined  by  final      orders dated  31-7-56 and  23-2-57 passed  by the R. C.      (Rent Controller) Calcutta in Case No. 243B of 1956 ?" The Munsif  took up  for consideration the application under section 14(4) and the additional issue No. 9 together and by his order  dated February  20,  1967  found  that  the  Rent Controller had  jurisdiction to pass the order under section 16(3) declaring  the defendant  to be  a direct tenant under the superior landlord, and that the relationship of landlord and tenant between the parties ceased by virtue of the order made under  section 16(3).  The additional  issue No.  9 was accordingly decided  in favour  of  the  defendant  and  the application  under   section  14(4)  of  the  1950  Act  was dismissed. The  plaintiff moved  the High  Court in revision against this  order. The  revision case  was disposed  of on February 16,  1968, the  learned Judge  maintained the order rejecting the  application under section 14(4) but set aside the finding  on issue  No. 9 and held that "for the purposes of the present suit for ejectment there is a relationship of landlord  and  tenant".  The  propriety  of  this  order  is challenged by the tenant defendants.      In  the  course  of  his  Judgment  the  learned  Judge recorded the following findings:           (i)  "The validity  or the  binding nature  of the                order under  section 16(3)  of the  1956  Act                cannot be  challenged nor  can it be found in                this suit to be inoperative".           (ii) The rights  arising out of a valid proceeding                under section  16(3) cannot  be overlooked in                spite of  the non-obstante  clause in section

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              40 of  the 1956  Act and  the effect  of  the                order  under   section  16(3)   has   to   be                considered in the suit.           (iii)As the  proceeding under  section  16(3)  was                started during  the pendency of the suit, the                principle  underlying   section  52   of  the                Transfer of Property Act should apply to this                case and "the decision made in the proceeding                under section  16(3) would  not  control  the                decision in the ejectment suit". 599      It thus  appears that  the High  Court was  of the view that in  spite  of  section  40  providing  that  a  pending proceeding would  continue to  be governed by the provisions of 1950  Act as if that Act had not been repealed or had not expired, the  order made under section 16(3) of the 1956 Act must be  given effect  to. The  High Court however held that the proceeding  under section  16(3) having  been  initiated during the  pendency of  the  suit,  the  principle  of  lis pendens should apply and accordingly the order under section 16(3) would  not govern  the suit Before us, counsel for the respondent did  not rely  on section  52 of  the Transfer of Property Act, but sought to support the decree on the ground that in  view of  section 40,  the entire  proceeding  under section 16(3)  was without jurisdiction. The doctrine of lis pendens can  of course  have no  application to  this  case. Section  52   of  the   Transfer  of  Property  Act  forbids alienations pendente  lite providing  inter  alia  that  the property forming the subject matter of a pending suit cannot be transferred  or otherwise  dealt with by any party to the suit so as to affect the rights of any other party under any decree or  order which may be made therein, except under the authority of  the court  and on such terms as it may impose. The doctrine  of lis  pendens means  that no  party  to  the litigation can  alienate the  property in  dispute so  as to affect the  other party,  and rests  "upon this  foundation, that it  would plainly be impossible that any action or suit could be  brought to a successful termination if alienations pendente lite  were permitted  to prevail".  [observation of Turner L. J. in Belamy v. Sabine, (1857) 1 D. & J. 566 (584) quoted with  approval by  the Privy Council in Faiyaz Husain Khan v. Munshi Prag Narail & others, 34 I.A. 102 (105).] But a sub-tenant  who avails  of the provisions of section 16(3) which extinguishes  the tenant’s  interest in the portion of the premises  sublet and confers on the sub-tenant the right to hold  the tenancy  directly under  the superior landlord, cannot be  said to  have alienated  proporty pendente  lite. Section 5  of the  Transfer of Property Act defines transfer of property  as an  act by  which a  living  person  conveys property to another. When the legislature in exercise of its sovereign powers  regulates the  relations of  landlord  and tenant, altering  or abridging their rights, what it does is not transfer  of property  attracting the  doctrine  of  lis pendens.      As stated  already, counsel  for the respondent put his case on  the provisions  of section  40  of  the  1956  Act. According to  him the  suit must  continue to be governed by the 1950  Act even  after its  repeal in view of section 40, unaffected by  the provisions  of the 1956 Act Section 40 of the 1956  Act keeps  alive a  proceeding pending on the date when the  1950 Act  was repealed  as if it is still in force and has  not been  repealdd. This however does not mean that even if  the 1956  Act created  a new right in favour of the sub-tenant, he would be denied this right because a suit for ejectment was  pending against  him when  the Act  came into

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force. ’Tenant’  as defined  in section 2(h) of the 1956 Act includes  a   person  continuing  in  possession  after  the termination of  his tenancy  until a  decree  or  order  for eviction has  been made  against him. A sub-tenant is also a tenant, and  when the  order under section 16(3) was made no decree or  order for  eviction had  been passed against him. That being so, we do not see why he 600 should not  be entitled  to the benefit conferred by section 16(3). The intention of the legislature, which is paramount, is clear-to  upgrade the  subtenant and  make him  a  tenant directly under  the superior  landlord. This  is a new right given to  the sub-tenant,  and though the pending proceeding may continue to be regulated by the repealed statute in view of section  40, there  is nothing in that section to suggest that the  sub-tenant against whom a suit was pending will be denied this  additional right.  The High Court has held that the  effect  of  the  order  under  section  16(3)  must  be considered in the  suit. Thus the suit may continue in spite of the repeal of the 1950 Act, but the right acquired by the sub-tenant under  the 1956 Act has to be given effect to and the suit decided accordingly. It must therefore be held that the relationship  of landlord  and tenant ceased between the parties on  the date  when the order under section 16(3) was made.      The appeal  is allowed,  the order  of the  High  Court appealed from  is set  and that of the trial court restored. The appellants will be entitled to their costs in this Court and in the High Court. P.H.P.                                       Appeal allowed. 601