http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

PETITIONER: SHAH BHOJRAJ KUVERJI OIL MILLS AND GINNING FACTORY

       Vs.

RESPONDENT: SUBBASH CHANDRA YOGRAJ SINHA

DATE OF JUDGMENT: 21/04/1961

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. AIYYAR, T.L. VENKATARAMA DAS, S.K. KAPUR, J.L. SHAH, J.C.

CITATION:  1961 AIR 1596  CITATOR INFO :  E          1968 SC1109  (9)  D          1973 SC1227  (55)  R          1985 SC 111  (8)  R          1985 SC 582  (32)  E          1985 SC 709  (4,6,7,13)  R          1987 SC2117  (25)  RF         1991 SC1654  (43)

ACT: Rent   Control-Landlord’s right  to  recover   possession- Statutory bar-If Prospective or retrospective in  operation- Bombay  Rents,  Hotel and Lodging House Rates  Control  Act, 1947 (Bom. 57 of 1947), ss. 6, 12(1).

HEADNOTE: On the expiry of the appellant’s tenancy for the  occupation of  the  premises  indispute, the  respondent  who  was  the landlord  filed  a  suit for  possession  of  the  premises. Meanwhile under s. 6 of the Bombay Rents, Hotel and  Lodging House Rates Control 160 Act, 1947, a notification was issued applying Part 11 of the Act  to  the  area where the  property  was  situated.   The appellants  claimed protection of s. 12, Part 11 of the Act, which  deprived   the landlord of the  right  of  possession under certain circum   stances.  The Court of first instance decided  the suit against the appellant and the  High  Court ruled that s. 12 was prospective   in character and did  not apply to pending suits or proceedings. On appeal by  special leave Held, that the point of time when sub-s. (1) of S.  12 operates  is when the decree for recovery of possession  has to  be  passed.   The  language  of  the  sub-section  which provides  that  the  landlord is  not  entitled  to  recover possession  if the tenant pays or shows his  willingness  to pay the standard rent and to observe the other conditions of the tenancy is such that it applies equally to suits pending when  Part  It  comes  into force  and  those  to  be  filed subsequently  and is not limited only to suits  filed  after the Act comes into force in a particular area.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

A  section may be prospective in one part and  retrospective in  another  part.  Sub-sections (2) and (3) of s.  12  were clearly  prospective but the words of the first  sub-section showed retrospective operation. Nilkanth  Ram Chandra v. Rasiklal, (1949) 51 Bom.  L.R.  280 and  Chandra Singh Manibhai v. Surjitlal  Sudhamal  Chhabda, [1951] S.C.R. 221, distinguished. Rhonda Urban Council v. Taff Vale Railway, [1909] A.C.  253, Mullins  v.  Treasury  of Surrey, (1880) 5  Q.B.D.  170  and Fitzgerald v.  Champneys, (1861) 70 E.R. 958, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 49 of 1961. Appeal  by special leave from the judgment and  order  dated August 11, 1960, of the Bombay High Court in Civil  Revision Application No. 320 of 1959. M.C.  Setalvad, Attorney-General for India,  Ramesh.  war Nath, S. N. Andley and P. L. Vohra, for the appellants. C.K.   Daphtary,  Solicitor-General  of  India,   Naushir Barucha and K. R. Choudhuri, for the respondent. 1961.  April 21.  The Judgment of the Court was delivered by HIDAYATULLAH, J.-This is a tenant’s 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 161 disallowed  certain  pleas raised by  the  appellants.   The respondent is the landlord. 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 11 of the Act, which deprived the landlord  of the  right of possession under certain  circumstances.   The Civil  Judge framed three preliminary Issues, which were  as follows:               "1. Whether this Court has jurisdiction to try               the suit?               2.Whether   the   plaintiff’s   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. What order?". These  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 Ramachandra  v. Rasiktal (1).  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

Lal  Sadhamal  Chhabda (2), where the opinion  of  the  Full Bench of the Bombay High Court was approved. (1) (1949) 51 Bom.  L.R. 280. (2) [1951] S.C.R. 221. 21 162 Two Questions have been raised in this appeal, and they  are (1)  whether by virtue of the first proviso to s. 50 of  the Act, all the provisions of Part 11 including s. 12 were  not expressly  made applicable to all suits; and (2) whether  by virtue  of s. 12(1) of the Act, which applied  independently by  the extension of the Act to the area where the  property is  situate, the suit was not rendered incompetent  and  the landlord deprived of his remedy of possession. Before  we deal with these contentions, it is  necessary  to see  some of the relevant provisions of this Act.   The  Act was not the first to be passed on the subject of control  of houses, etc.  Previously, there were two other Acts in force in  the State of Bombay, viz., the Bombay  Rent  Restriction Act,  1939  and the Bombay Rents, Hotel  Rates  and  Lodging House Rates (Control) Act, 1944.  By s. 50 of the Act, these Acts  were  repealed.  The first proviso,  however,  enacted (omitting unnecessary parts):               "Provided  that  all  suits  and   proceedings               between  a landlord and a tenant  relating  to               the  recovery or fixing of rent or  possession               of  any  premises to which the  provisions  of               Part 11 apply............ which are pending in               any   Court,  shall  be  transferred  to   and               continued  before the Courts which would  have               jurisdiction to try such suits or  proceedings               under  this Act or shall be continued in  such               Courts,  as  the  case may  be,  and  all  the               provisions  of  this Act and  the  rules  made               thereunder  shall apply to all such suits  and               proceedings." It  is this proviso which, it is claimed, has  retrospective effect  and s. 12 of the Act which is in Part II is said  to apply to all pending cases, whenever the Act is extended  to fresh areas.  Section 12 of the Act reads as follows:               "12.  (1) 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 amount of  the  standard               rent  and  permitted increases,  if  any,  and               observes and performs the other conditions  of               the tenancy, in so far as they are  consistent               with the provisions of this Act.               163               (2)No suit for recovery of possession shall               be  instituted by a landlord against a  tenant               on  the ground of non-payment of the  standard               rent  or  permitted increases due,  until  the               expiration  of one month next after notice  in               writing of the demand of the standard rent  or               permitted  increases has been served upon  the               tenant  in the manner provided in section  106               of the Transfer of Property Act, 1882.               (3)(a)  Where  the rent is payable  by  the               month  and there is no dispute  regarding  the               amount   of   standard   rent   or   permitted               increases,  if such rent or increases  are  in               arrears for a period of six months or more and               the  tenant neglects to make  payment  thereof

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

             until  the  expiration of the  period  of  one               month after notice referred to in  sub-section               (2), the Court may pass a decree for  eviction               in any such suit for recovery of possession.               (b)In   any  other  case,  no  decree   for               eviction shall be passed in any such suit  if,               on the first day of hearing of the suit or  on               or  before  such other date as the  Court  may               fix,  the tenant pays or tenders in Court  the               standard rent and permitted increases then due               and  thereafter continues to pay or tender  in               Court   regularly  such  rent  and   permitted               increases till the suit is finally decided and               also pays costs of the suit as directed by the               Court.               (4)Pending  disposal of any such suit,  the               Court  may out of any amount paid or  tendered               by the tenant pay to the landlord such  amount               towards payment of rent or permitted increases               due to him as the Court thinks fit.               Explanation.-In any case where there is a dis-               pute  as  to the amount of  standard  rent  or               permitted increases recoverable under this Act               the  tenant  shall be deemed to be  ready  and               willing  to  pay such amount  if,  before  the               expiry of the period of one month after notice               referred  to in sub-section (2), he  makes  an               application to the Court under sub-section (3)               of  section II and thereafter pays or  tenders               the  amount  of rent  or  permitted  increases               specified in the order made by the Court."               164 By  sub-ss. (1) and (2) of the second section,  which  dealt with  the  extent  of the application of  the  Act,  it  was provided that Parts I and IV of the Act shall extend to  the pre-Reorganisation  State of Bombay,  excluding  transferred territories, and Parts II and III shall extend  respectively to  the areas specified in Schs.  I and II to the  Act,  and shall continue to extend to   any such area, notwithstanding that the area ceased     to  be of the  description  therein specified.  By sub s.    (3),   the  State  Government   was authorised,  by  notification in the  Official  Gazette,  to extend to any other area, any or all the provisions of  Part II  or Part III or of both.  It would appear from this  that Parts   I  and  IV  came  into  operation   throughout   the territories of the pre-Reorganisation State of Bombay.  Part II came to be extended to this area by the notification, and after that extension, Parts 1, 11 and IV of the Act began to apply, while the suit was pending.  We are not concerned  in this appeal with Part 111. The  contention on behalf of the appellants is that  by  the latter  part of the proviso to s. 50, relevant  portions  of which  have been quoted earlier, all the provisions of  Part II  were extended to this area, and that all  pending  suits and  proceedings were governed, no matter when  filed.   The notification extending Part II of the Act to this area  had, it  is contended, also the same effect independently of  the first  proviso to s. 50.  It is contended,  therefore,  that sub-s.  (1)  of  s.  12, which  prohibits  a  landlord  from recovering possession of any premises so long as the  tenant pays  or  is  ready and willing to pay  the  amount  of  the standard  rent and permitted increases, if any, and is  also observing  the other conditions of the tenancy in so far  as they  are not inconsistent with the provisions of  the  Act, applies  to the present case and the tenants are  protected.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

It is also contended that if the first proviso to s. 50  was limited  to such suits only as were pending on the  date  of the  passing  of  the Act, s. 12(1), on its  own  terms,  is applicable  to the present case, and being retrospective  in character, leads to the same result.  These two  contentions were  apparently raised in the Court of the Civil Judge  and before the High                             165 Court.   The  High  Court, however, ruled  that  s.  12  was prospective in character and did not apply to pending  suits or proceedings. It  is  contended by the learned Attorney-General  what  the construction placed by the High Court upon the first proviso to  s.  50  is erroneous.  Though he S.  concedes  that  the proviso must be read as qualifying what the substantive part of s. 50 enacts, he urges that the proviso goes beyond  that purpose and enacts a substantive law of its own.  He  relies upon the following observations of Lord Loreburn, L. C.,  in Rhondda Urban Council v. Taff Vale Railway (1), where a pro- viso  to  s. 51 of the Railway  Clauses  Consolidation  Act, 1845, was under consideration:               "It is true that s. 51 is framed as a  proviso               upon preceding sections.  But it is also  true               that  the latter half of it, though in form  a               proviso,  is in substance a  fresh  enactment,               adding to and not merely qualifying that which               goes before.", and  contends  that the latter portion of  the  proviso,  in question,  being  a substantive enactment,  comprehends  not only  those suits which were pending on the date  of  repeal but also those cases, which came within the language of  the latter part of the proviso, whenever the Act was extended to new   areas.   On  behalf  of  the  landlord,  the   learned Solicitor-General argues that the proviso should be read  as a  proviso  only to the substantive enactment, and  must  be taken  to qualify the substantive portion of s. 50  only  to the extent to which it makes an exception to the repeal  and but for the proviso would be governed by the repealed  Acts. He relies upon Craies on Statute Law, 5th Edn., pp. 201-202, where the following passage occurs:               "The  effect  of an  excepting  or  qualifying               proviso,  according to the ordinary  rules  of               construction,   is  to  except  out   of   the               preceding  portion  of the  enactment,  or  to               qualify  something enacted therein, which  but               for the proviso would be within it and such  a               proviso  cannot be construed as enlarging  the               scope  of an enactment when it can  be  fairly               and               (1) [1909] A.C. 253, 258.               166               properly  construed without attributing to  it               that effect."               He also relies upon the following observations               of Lush, J., in Mullins v. Treasurer of Surrey               (1):               "When  one finds a proviso to a  section,  the               natural  presumption  is  that,  but  for  the               proviso,  the  enacting part  of  the  section               would have included the subject-matter of  the               proviso." 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

as  stating a general rule.  But, provisos are  often  added not  as exceptions or qualifications to the  main  enactment but  as  savings 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.  It cannot be  used to decide whether s. 12 of the Act is retrospective.  It was observed by Wood, V. C., in Fitzgerald v. Champneys(2)  that saving  clauses  are seldom used to  construe  Acts.   These clauses  are  introduced into Acts which repeal  others,  to safe.  guard  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 and  are  to  continue  under the Act and  any  or  all  the provisions  of  the Act are to apply to them.   The  learned Solicitor-General  contends that the savings clause  enacted by the proviso, even if treated as substantive law, must  be taken to (1) (1880) 5 Q.B.D. 170, 173. (2) (1861) 2 J. & H. 31:70 E.R. 958. 167 apply  only to suits and proceedings pending at the time  of the repeal which, but for the proviso, would be governed  by the  Act  repealed.   According  to  the  learned  Attorney- General,  the  effect of the savings is much wider,  and  it applies  to  such  cases as come within  the  words  of  the proviso, whenever the Act is extended to new areas. These  arguments  are interesting, and much can be  said  on both  Bides,  particularly  as  the  Legislature  has  by  a subsequent  amendment  changed  the proviso.   But,  in  our opinion,  they need not be considered in this case, in  view of what we have decided on the second point. The second contention urged by the learned  Attorney-General that  s.  12(1) applied from the date on which the  Act  was extended to the area in question is, in our opinion,  sound. Section 12(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. 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 ss. (2)  and  (3) only, which, as the words of those subsections 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,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

though prospective in form, 168 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-s. (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-s. (1)  of S. 12, and the landlord is, therefore, not  entitled to the relief of possession. Both the High Court as well as this Court in their  previous decisions,  referred  to  above, were  not  called  upon  to interpret  sub-s.  (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-ss. (2) and (3) and not with  respect  to sub-s.  (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 11  comes into force and those to be filed subsequently.  The  conten- tion of the respondent that the operation of S. 12(1)                             169 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 suit 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. In   the  result,  the  appeal  is  allowed,  and  the   two preliminary Issues are answered in favour of the appellants. Under  the orders of this Court, the judgment of  the  Civil Judge  was  stayed.   The  suit  will  now  be  decided   in conformity with our judgment.  The respondent shall pay  the costs of this Court and of the High Court. Appeal allowed.