Mariyakutty vs Thomas Frangline and Others

T.S. Krishnamoorthy Iyer, J.—This is a revision petition filed u/s 20of the Kerala Buildings (Lease and Rent Control) Act, 1965. The facts leading to this revision petition can be stated thus. The land lord who is the revision petitioner filed R.C.P. No. 34 of 1963 in the Perumbavoor Munsiff''s Court for eviction of the tenant under Sections 11(2), (3) and (4) of the Kerala Buildings (Lease and Rent Control) Act 16 of 1959. The learned Munsiff allowed the application under sub-sections (3) and (4) of Section 11 of the Act, holding that the landlord is in bona fide need of the building for his own use and occupation and that the tenant has subleased the building without the consent of the landlord subsequent to Act 16 of 1959. In the appeal filed by the tenant the learned additional District Judge of Parur took the view that because of the coming into force of Kerala Act 2 of 1965 during the pendency of the appeal, the execution of a sublease without consent of the landlord before Act 2 of 1965 is no longer a ground for eviction, and he therefore did not consider the case of sublease on the merits. On the question of bona fide need of the landlord the learned Judge differed from the Munsiff and held that the bona fide need as required by Section 11 sub-section (3) of Act 2 of 1965 has not been established. The correctness of the findings of the Additional District Judge is challenged in the revision petition by the learned counsel appearing for the landlord.

Under Act 16 of 1959 which was only a temporary statute a landlord is entitled to an order for evicting the tenant among other grounds if the landlord bona fide needs the building for his own occupation or the occupation by any member of his family dependent on him or if the tenant has without the consent of the landlord transferred his right under the lease or sub-let the entire building or any portion thereof subsequent to the Act if the lease does not confer on him any right to do so or the landlord has not consented to such subletting. At the time when Act 2 of 1965 came into force the period of Act 16 of 1959 had expired. A landlord u/s 11 sub-section 4(1) of Act 2 of 1965 can get an order of eviction against the tenant only if the tenant after the commencement of the Act, without the consent of the landlord, transfers his right under the lease or sublets the entire building or any portion thereof if the lease does not confer on him any right to do so. The learned advocate for the revision petitioner relying on Section 34 of Act 2 of 1965 contended that the right accrued to his client under Act 16 of 1959 to evict the tenant on the ground of sublease without the consent of the landlord subsequent to the said Act is kept alive by Act 2 of 1965 and therefore the view of the court below is not correct. It is therefore necessary to examine Section 34 of Act 2 of 1965 reading as follows:-

Savings and special provision.- (1) Notwithstanding the expiry of the Kerala Buildings (Lease and Rent Control) Act, 1959 (Kerala Act 16 of 1959) (hereinafter in this section referred to as the said Act), the provisions of sections 4 and 23 of the Interpretation and General Clauses Act, 1125 (Kerala Act VII of 1125), shall apply upon the expiry of the said Act as if it had then been repealed by this Act:

Provided that any investigation, legal proceeding or remedy which could have been instituted, continued or enforced under the said Act if it had not expired, may be instituted, continued or enforced under the corresponding provisions of this Act.

As a general rule and unless it contains some special provisions to the contrary after a temporary Act has expired no proceedings can be taken upon it and it ceases to have any further effect. It cannot be disputed that Section 4 of the Interpretation and General Clauses Act, 1125 (Kerala Act VII of 1125) cannot be invoked in regard to statutes which are of a temporary nature. The general rule in regard to a temporary statute is that in the absence of a special provision to the contrary proceedings which are being taken against a person under it will ipso facto terminate as soon as the Act expires. If any action has been taken under the expired Act with respect to any matter arising under it during its life the question whether that such action would lie or not will depend upon any special provision to the contrary in the temporary Act itself and its construction. Section 4 of the Interpretation and General Clauses Act 1125 will not apply to a case of expiry as distinguished from repeal. But the effect of Section 34 of Act 2 of 1965 is to make Sections 4 and 23 of the Interpretation and General Clauses Act, 1125 (Kerala Act VII of 1125) applicable to Act 16 of 1959 as if it had been repealed by Act 2 of 1965. Section 4 of the Interpretation and General Clauses Act. 1125 reads as follows:-

Effect of repeal-where any Act repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not-

(a)...................................................

(b)...................................................

(c).................................................

(d)...................................................

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the repealing Act had not been passed.

The contention of the learned counsel for the revision petitioner was that in view of sub-section (e) of Section 4 of the Interpretation and General Clauses Act, 1125 read with Section 34 of Act 2 of 1965 his right to continue the application on the basis of the right accrued to him under Act 16 of 1959 is preserved but under the proviso to Section 34 of Act 2 of 1965 the application has to be disposed of under Act 2 of 1965. An identical question came before a Division Bench of this Court in Writ Appeal 13 of 1966 where it was observed:

There is also no substance in the contention based on the proviso to Section 34 of the 1965 Act which does not in any way affect the right of the landlord to seek eviction which has already accrued to him and which is saved by Section 4(c) of the Interpretation and General Clauses Act, 1125.

The learned counsel for the respondent-tenant submitted that in view of the words "under the corresponding provisions of this Act" in the proviso to Section 34 of Act 2 of 1965 an application for eviction filed by the landlord pending at the commencement of the said Act can be continued only under the provisions of Act 2 of 1965 and when in respect of such an application a ground for eviction contemplated by Act 2 of 1965 is not available the application cannot be ordered under the said Act. Section 4 of the Interpretation and General Clauses Act, 1125 provides that:

any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the repealing Act had not been passed..

This provision is replaced by the proviso to Section 34 of Act 2 of 1965 with the result that the investigation, legal proceeding or remedy in respect of a right accrued under Act 16 of 1959 has to be continued under the provisions of Act 2 of 1965. The proviso to Section 34 of Act 2 of 1965 only prescribes the procedure for enforcing the rights saved u/s 4 sub-sections (a) to (e) of the Interpretation and General Clauses Act, 1125. I have therefore no hesitation to over-rule the plea of the learned counsel for the respondent.

Counsel for the respondent then submitted that Section 4 of the Interpretation and General Clauses Act, 1125 can apply only in the absence of a different intention appearing in the provisions of Act 2 of 1965 and Section 11 of Act 2 of 1965 according to the learned counsel indicates a different intention. The learned counsel attempted to gather strength to his argument by a reference to the opening words of Section 11 of Act 2 of 1965 to the following effect:

Notwithstanding anything to the contrary contained in any other law or contract a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Act.

The reference was to the non-obstante clause with which the Section opens namely "notwithstanding anything to the contrary contained in any other law or contract." The expression "in any other law" which was overlooked by the learned counsel for the respondent is clearly an indication to show that Section 34 controls Section 11 of Act 2 of 1965. The decision in Sham-Sundar v Ram Das1 relied on by the learned counsel for the respondent is based on an interpretation of Section 9(1) of the Delhi and Ajmer-Merwara Rent Control Act XIX of 1947. In view of the wording of Section 9(1) of the said Act a Full Bench of the Punjab High Court held that the said provision is retrospective in its operation and prohibits all courts from making an order evicting any tenant in execution of decrees passed before or after the Act came into force. The view taken by their Lordships was based upon an interpretation of the expression "make any order in execution of a decree evicting any tenant" in Section 9(1) of the Act. The argument advanced in that case that in ejectment suits the order for eviction is made when the decree is passed and not when an order is made in execution of such decree and therefore Section 9(1) of the Act is not applicable to decrees for eviction passed before the commencement of the Act was not accepted by their Lordships. I do not find any similarity between the case before me and the one reported in Sham Sundar v Ram Das1.

The learned counsel for the respondent then relied on the principle, that where the main enactment is clear a saving clause can have no repercussion on the interpretation of the main enactment so as to exclude from its scope what clearly falls within its terms. The learned advocate relied on the following passages from Halsbury''s Laws of England, 3rd edition, Vol. 36, page 474, Paragraph 718, it was observed:

A saving of any nature in a statute is void if it is repugnant to the substantive provision thereof, and if, therefore a statute introduces new provisions and repeals existing ones with savings, the savings will not be effective to preserve anything the continued existence of which is incompatible with the new provisions.

In Crawford on Statutory Construction, paragraph 300, the learned author says with reference to saving clauses thus:

As we have stated elsewhere, the saving clause is used to exempt something from immediate interference or destruction. It is generally used in repealing statutes in order to prevent them from affecting rights accrued, penalties incurred, duties imposed, or proceedings started under the statute sought to be repealed. Its position or verbal form is unimportant. But if it is in irreconcilable conflict with the body of the statute of which it is a part, it is ineffective, or void.

The above passages were relied on by the learned counsel for the respondent to support his contention. According to him the saving clause contained in Section 34 of Act 2 of 1965 is inconsistent or contrary to Section 11 of the said Act and therefore Section 11 will have to prevail. I do not think the submission of the learned counsel for the respondent is entitled to weight. There is absolutely no inconsistency between Section 11 and Section 34. The contents of Section 11 do not exclude the operation of Section 34. The non-obstante clause in Section 11 only says "notwithstanding anything to the contrary contained in any other law or contract" and Section 34 forms part of the same enactment. It follows therefore that the view taken by the court below that the application for eviction filed under Act 16 of 1959 based on sublease granted subsequent to the date of the said Act without the consent of the landlord cannot now be continued is therefore wrong and has to be set aside. As already indicated by me the learned appellate Judge has not entered any finding on the question whether the granting of the sublease alleged by the revision petitioner is true or not. The matter therefore has to go back to the appellate court for a finding on that question.

The learned counsel for the revision petitioner also attacked the finding of the learned Judge regarding the ground that the landlord requires the building for the occupation of her son. The learned Judge took the view that the landlord has no plea that her son for whom the building is claimed, are depending on her. The learned Judge further observed:

It is also not possible to hold that they are persons who have to look for support from their mother for their business or that they are members of the petitioner''s family who are depending on the petitioner for doing their business.

It was argued by the learned counsel for the revision petitioner that this finding of the learned Judge is a result of a narrow interpretation of the relevant provision of the Act and the learned counsel placed before me the decisions in Balaiah v Lachaiah2 and Saraswathi v Vadivelu Chettiar3 in support of his plea. This is an aspect which the learned Judge will consider. The order of the court below is set aside and the learned Judge is directed to take back the B.R.C. Appeal 1 of 1965 to the file and dispose of the same in accordance with law and in the light of the observations made above. The Civil Revision Petition is thus allowed but without any order as to costs.