Prabhat Kumar Das vs Santhal Pahari Sewa Mandal

Madan Mohan Prasad, J.—This application arises out of an order passed on the 19th of February, 1977, by which the Court below has directed u/s 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act (hereinafter referred to as the Act). The defendant petitioner to deposit arrears of rent and current rent, month by month, which is under challenge.

The facts and circumstances in which this application has arisen are as follows. The Opposite party filed suit for eviction of the petitioner on the ground of default of payment of rent and for a decree for arrears? of rent from Nov. 1969 to July 1972 at the rate of Rs. 75/- per month. In course of the suit the Opposite Party filed an application u/s 11-A of the Act, to which a rejoinder was filed by the petitioner. Without stating the details pf an earlier decision on the point, an application for revision against that, and an order of remand, ultimately the learned Subordinate Judge decided the matter on the point, on the 19th of February, 1977 and granted the plaintiff''s application.

It has been urged on behalf of the petitioner that the Court could not have ordered payment of rent at the rate of Rs. 75/-, the rate at Which rent was last paid, in view of the fact that Section 4 of the Act prohibits any enhanced rent to be realised by the landlord from the tenant and the contract to that effect is unlawful and void, and the Court cannot give effect to it. Secondly, it has been urged that the order u/s 11-A was passed on a date, viz., 19th of February, 1977, when the Act had expired. Thirdly, it has been urged that the order is bad in law, because it has ordered deposit of the arrears of rent by the 2nd of March, 1977, which would mean within a period of eleven days, whereas Section 11-A prescribes a period of fifteen days for that purpose.

I am unable to entertain the first contention, because I am bound by the decision of a Full Bench of this Court, and a similar argument there has been repelled by the Full Bench. I am referring to the case of N.M. Verma v. Upendra Narain Singh 1977 B.B.C.J. 562 (F.B.). In this case the majority of the learned Judges held that the word used in Section 11-A are unambiguous, and upon its plain meaning, a landlord can require deposit of rent at which it was last paid and the Court can determine what was the rate of rent last paid. The learned Judges held that the inference is that Section 11-A is not subject to the provisions of Section 4 of the Act. In view of this decision, it is not opsn to learned Counsel to contend that the Court below could not have ordered payment of rent at the rate at which it was last paid, but that it should have found out as to what was that rent which could lawfully be paid and allowed only that much.

The second point raised with regard to the effect of the expiry of the Act on the date the impugned order was passed has also in my view, no substance. Learned counsel contended that the Act of 1947 had expired on the 31st of March, 1976, and a new Act, Act 16 of 1977, has however, come into force with effect from the 8th September, 1977 but Act of 1947 having expired and the Act of 1977 not having come into force, no order could be passed on the relevant date. Such an argument, I had an occasion to consider in the case of Sibhash (Subash) Chandra Mehta v. Peshawari Lal Chopra O.R. No. 330 of 1977 D, 23-11-1977, and I held in that case that in view of the retrospective nature of the Act of 1977, there was no period of interregnum when there was no law on the point. And I still take the same view. Attention may be drawn to the provision contained in Sub-section (3) of Section 1 of the Act of 1977 (Act 16 of 1977), which is as follows:

Section 25 shall come into force at once and the remaining provision of this Act shall be deemed to have come into force on the 1st of April 1976 and the Act shall remain in force up to and including the 31st March, 1981. Provided that the expiration of this Act shall not-

(a) render recoverable any sum which during the continuance thereof was irrecoverable or affect the right of a tenant to recover any sum which during the continuance of this Act was recoverable by him thereunder; or

(b) affect any liability incurred under this Act or any punishment incurred in respect of any contravention of this Act or any order made thereunder : or

(c) affect any investigation or legal proceeding in respect of any such liability or punishment as aforesaid any such investigation or legal proceeding may be instituted, continued or enforced and any such punishment may be imposed, as if this Act had not expired:

Provided further that the expiration of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (Bihar Act III of 1947) between the period commencing from the 1st of April, 1976 and the commencement of this Act shall not.-

(a) render recoverable any sum which during the continuance thereof was irrecoverable or affect the right of a tenant to recover any sum which during the continuance of that Act was recoverable by him thereunder ; or

(b) affect any liability incurred under that Act or any punishment incurred in respect of any contravention of that Act or any order made thereunder ; or

(c) affect any investigation or legal proceeding in respect of any such liability or punishment as aforesaid ;

and any such investigation or legal proceeding may be instituted, continued or enforced and any such punishment may be imposed as if that Act had not expired.

It will appear thus that the provisions other than the provisions of Section 25 have to be deemed to have come into force on the 1st of April, 1976. The Act has thus a retrospective effect. It cannot, therefore, be contended that there was no law obtaining from the 1st of April, 1976 until the 8th September, 1977. The Legislature in its wisdom considered it necessary to give retrospective effect to this legislation, and no objection can be raised, regarding its right to legislate retrospectively, If the Act is deemed to have been there since the 1st of April, 1976, the argument on the face of it falls to the ground.

There is another aspect of this matter. The second proviso, quoted above, lays down that the expiration of the old Act on the 31st of March, 1976 shall not affect any liability incurred under that Act or any legal proceeding in respect of such liability, and any such legal proceeding may be instituted, continued or enforced as if that Act had not expired. It would be clear, thus, that the liability of the tenant incurred under the old Act of 1947 to be evicted from the house and the legal proceeding instituted under the old Act to deposit rent u/s 11-A of that Act cannot be adversely affected ry the expiry of the old Act. This is obviously a saving clause which protects such proceeding before the Court. There is still another angle from which the matter may be examined. The Act of 1977 is to be deemed to have come into force with effect from the 1st of April, 1976. Therefore, any order passed on such date thereafter must be deemed to be an order under the present Act of 1977. If that were not so, the retrospective effect proposed to be given by the Legislature to this enactment would not be given. This is apart from the question of the effect of the expiry of the old Act on pending proceedings. This is the logical result of the retrospective effect of the present legislation. The argument of learned Counsel in this respect is, therefore, of no avail.

Learned Counsel has relied upon some decisions of this Court which I shall presently discuss. The decisions are unreported Bench decisions in the cases of Mahesh Prasad Lohani v. Onkar Nath C.R. No. 398 of 1976 D. 17-6-1977 (D.B.), by Nagendra Prasad Singh and P.S. Sahay, JJ., and Jai Nandan Singh v. District MagistrateC.W.J.C. No. 668 of 1975 D. 1977 (D.B.), by K.B. N. Singh, C. J. and fl.S. Sinha, J. In the case of Mahesh Pd. Lohani, the learned Judges set aside an order dated 6th April, 1976 passed u/s 11-A of the Act on the ground that the Act of 1947 having expired on the 31st March, 1976, the order was without jurisdiction. The learned Judges relied on the earlier Bench decision in the case of Jai Nandan Singh (supra) and on this basis alone held so, In the latter case, a writ application bad been filed for quashing an order dated 24th February, 1975 passed by the District Magistrate directing the applicant to vacate a house as provided under Rule 3(6) of the Bihar Buildings (Lease, Rent and Eviction) Control Rules 1955, The learned Judges held that "In view of the fact that the life of the Bihar Buildingl(Lease, Rent and Eviction) Control Act, 1947 expired on the 31st March, 1976, the order dated the 24th February, 1975 for action for taking possession of the house under Rule 3(6) of the Rules framed under the said Act cannot be enforced. The order contained in Annexure 4, therefore, has got to be quashed on this ground alone. "It would thus appear that the learned Judges of the two Division Benches decided the two cases before the enactment of the present Act of 1977 which came intoforce on 8th September, 1977 and were not called upon to decide the effect of the retrospective clause therein. Secondly, it appears that the attention of the learned Judges was not drawn to the proviso contained in Sub-section (3) of Section 1 of the Act of 1947 itself which was a saving clause and the effect thereof. The said proviso is as follows:

Provided that the expiration of this Act under the operation of this Sub-section shall not-

(a) render recoverable any sum which during the continuance thereof was irrecoverable or affect the right of a tenant to recover any sum which during the continuance of this Act was recoverable by him thereunder ; or

(b) affect any liability incurred under this Act or any punishment incurred in respect of any contravention of this Act or any order made there-dnder ; or

(c) affect any investigation or legal proceeding in respect of any such liability or punishment as aforesaid ; and any such investigation or legal proceeding may be instituted, continued or enforced and any Such punishment may be imposed, as if this Act had not expired.

These decisions are thus of no assistance in the present case. The third one is an unreported decision of S.K. Choudhuri, J., in Dr. Sailendra Nath Roy v. Dr. (Miss)Geeta Mazumdar 1978 B.B;C.J. 214. In the case before the learned Judge it was, not disputed that Clauses (a) and (c) of the second proviso had no application to the case before him. Reliance was placed only on Clause (b) of the proviso and the learned Judge held that since the Act had expired on the date of the order, it could not be one under that Act, With regard to the argument that in view of the deeming provision contained in subjection (3) of Section 1, the order should be deemed to have been passed under the Act of 1977 the learned Judge held that the Act was enacted to safeguard the interest of tenants from unreasonable eviction and that if the interpretation were accepted, great inconvenience and injustice would be caused to the tenant, because in that case the impugned order would come into operation from the date it was passed, and much before the date the new Act was published his defence would have stpod struck out. Further it has been pointed out that the application in the case was u/s 11-A of the old Act and not u/s 13(the corresponding section) of the new Act. My Attention was not drawn to this decision when ] had decided the case of Subash Chandra Mehta (supra). It appears, however, that the argument ia the case of Dr. Sailendra N. Roy (supra) rested only on Sub-section (3) of section I and Clause (b) of the proviso and on no other provision, nor was attention drawn to the proviso to Sub-section (3) of Section 1 of the Act of 1947 which had expired. I am thus unable to follow this decision.

On the strength of the aforesaid decision, it has been urged before me that the retrospective clause must not be so interpreted as to validate an order passed after the expiry of the Act. The first question arises--Is the deeming provision, that is, the retrospective clause ambiguous and does it need any interpretation ? The role of the Court is to put its own interpretation upon a clause which may not be self-evident. It is well-settled rule of interpretation that where the language used by the Legislature is absolutely clear, its literal and grammatical meaning must be given to the legislation, and it is not open to a Court to put any other interpretation upon it. Now what is the ambiguity with the deeming clause ? It provides clearly that the provisions of this Act, except Section 25 shall be deemed to have come into force on the 1st April, 1976. Does it admit of any other interpretation? If not the question of interpreting it in any manner other than what is found on the face of the legislation, does not arise. The next question is whither it is open to Courts to think of the result of the legislation, the equities or inequities arising therefrom in cases of legislations which clearly show the intent of the Legislature as evidenced by the clear words it uses ? The argument that if this deeming provision be given full effect it would result in injustice to the tenant is an argument which does not arise, and I am unable to entertain it. It is the province of the Legislature to chink of the effects of legislation. They may be just or unjust, but it is none of the business of the Courts to intrude upon the domain of the Legislature and to interpret a legislation in favour of one parson or the other on grounds of equity, inspite of the clear intention of the Legislature evidenced by the words employed in the legislation. A similar argument was made before the Full Bench of this Court in the case of N. M. Verma (supra). There it was argued on behalf of the petitioner in the matter of construction of Section 11-A that an interpretation to the provision of the Act beneficial to the tenant should be given. L. M. Sharma, J., with whom the majority of the learned Judges agreed, repelled this argument in view of the clear and unambiguous word used in Section 11-A. I wish further to point out that true it is that the Act was enacted, as would appear from the preamble "To regulate the lettings and the rent of such buildings and to prevent unreasonable eviction of tenants therefrom in the State of Bihaj?." It does not however, mean that the entire Act is designed in favour of the tenant. An instance may straightaway be mentioned that Section 11-A is so designed as to protect the landlord from an unreasonable tenant. The legislature thought that a tenant who is sought to be evicted by suit may not pay rent to the landlord during the continuance of the suit. For that reason Section 11-A was enacted. Therefore, in my view, it cannot be said that an interpretation which would protect the tenant should always be given while construing the Act or while construing Sub-section (3) of Section 1 in respect of the deeming clause contained therein.

It has also been urged before me that in the present case the order was passed u/s 11-A, which means that it was passed under the Act which had expired and that it was not passed u/s 13 of the present Act. The argument, in my view, is of no avail. It is well-known that if during the continuance of a suit or a proceeding'' the law is changed, the Court may take notice of the change in the law and act under the correspondnig provision of the latter enactment. The mere fact that when the application was filed there was the Act of 1947 and Section 11-A provide for that order to be made, and now it is Section 13 under the Act of 1977, will not stand in the way of the application being deemed, on the date it was decided, to be an application u/s 13 of the new Act.

I would like to add a few more words about the second proviso to Sub-section (3). The proviso has a purpose. What is that ? Reading the same, it is obvious that it is not a proviso intended to create any exception out of the general rule enunciated in Sub-section (3), namely that the Act shall be deemed to have come into force on a prior date. The proviso is of an explanatory nature. Having enunciated the general rule it wishes to clarify the effects thereof, I may draw attention, first, to Clause (a). What it does is to make clear that the expiry of the old Act of 1947 will not render recoverable any sum which was recoverable or affect the right of a tenant to recover any sum which was recoverable under the old Act. The proviso in Clause (b) emphasises that the expiration of that Act will not affect any liability or punishment incurred or any order made thereunder. Clause (c) provides that such expiration shall not affect any investigation or legal proceeding in respect of such liability or punishment. The Legislature, it may be noted, says in Clause (c) that the expiry of the Act shall not affect any legal proceeding in respect of such liability. The liability incurred by the tenant to deposit the rent u/s 11-A was undoubtedly a liability incurred under the old Act, The legal proceeding was pending while the old Act was holding the filed. What is the effect of the proviso then on the legal proceeding ? It is to be found in the last part of the proviso, and that is that such legal proceeding may be continued "as if that Act had not expired". The Legislature intends that every body must imagine for the purpose of continuance of the legal proceeding aforementioned that the Act was still holding the field. I am tempted in this connection to refer to the speech of Lord Asquith of Bishop-stone in the case of East End Dwellings Co. Ltd. v. Finsbury Borough Council 1952 AC 109 in the House of Lords. His Lordship said:

If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibted from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it... the statute says that you must imagine a certain state of affairs ; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.

If the Legislature says in the present case that you imagine the law to have beea there on that date, it is not open to Courts to say that the acceptance of this dictate of the Legislature would result in injustice or to be unduly influenced by, what Lord Asquith said, "inevitable corollaries of that state of affairs." I cannot thus persuade myself to be influenced by the fact that by giving effect to the deeming provisions the result will be that the tenant''s defence will stand rejected.

That takes me to another aspect of the matter. It has not been noticed that there was a saving section in the Act of 1947. Sub-section (3) of Section 1 of the Act of 1947 contained a proviso identical with the first proviso in Sub-section (3) of Section 1 of the present case of 1977. What is the effect of such a provision ? In J.K. Gas Plant Mfg. Co. v. Emperor AIR 1947 F.C. 38, on which reliance has been placed by counsel for the petitioner, the question had arisen with regard to the effect of a saving clause contained in Ordinance 12 of 1946 amending Sub-section (4) of Section 1 of the Defence of India Act, 1939. The learned Judges said that Section 6 of the General Clauses Act applied only to repealed statutes and not to expiring statutes, and that the general rule in regard to the expiration of a temporary statute is that:

Unless it contains some special provision to the contrary, after a temporary Act has expired, no proceedings can be taken upon it and it ceases to have any further effect. Therefore offences committed against temporary acts must be prosecuted and punished before the Act expires and as soon as the Act expires any proceedings which are being taken against a person will ipso facto terminate." Craies on Statue Law, Page 347 (Edition 4).

Their Lordships held, considering the effect of the amendment aforesaid, that there was a saving provision '' except as respects things done or omitted to be done" before the date on which the provisions of the Defence of India Act ceased to have effect. Their Lordships observed, "The ultimate question therefore is whether these words do authorise a continuation of the prosecution in this case." And they answered the question in the affirmative, relying upon a decision in the case of Wicks v. Director of Public Prosecutiom A.I.R.(1845) 62 674. This raises the question as to what is the effect of the proviso contained in the old Act of 1947. This Act was to expire on the 31st of March, 1976, but the proviso therein laid down an exception that the expiry of this Act would not affect certain liabilities or rights incurred or existing under the old Act or legal proceeding or investigation carried on thereunder, and that the same may be instituted, continued or enforced as if the Act had not expired. This provision cannot be said to have gone with the expiry of the Act of 1947. Craies, for that reason, said that unless the Act itself contains some special provision to the contrary, after a temporary Act has expired, no proceedings can be taken upon it. Obviously, therefore, the special provision to the contrary even after the expiry of the Act enures and exists and validates proceedings existing and also their continuation. In my view, the effect of the proviso to Sub-section (3) of Section 1 of the Act of 1947, therefore, is that the legal proceedings could be continued as if the Act had not expired. The Legislature had taken care to guard against the danger of adverse effects on the liabilities incurred or punishment incurred in respect of any contravention of the Act, as the Legislature was conscious of the temporary nature of the Act. I must mention that the law was at first enacted as an Order promulgated by an Ordinance, viz., House-rent Control Order, 1942 and thereafter it came to be an Act in 1947, which had a fixed duration, and it has been amended, extending the duration of the Act from time to time in the years 1950,1953, 1955, 1958, 1961, etc. It appears to me that it was the realisation, as in the case of J.K. Gas Plant Mfg. Co. (supra), that the provisions of Section 6 of the General Clauses Act do not apply to expiring statutes that a special provision had been made in regard to the saving of certain matters even after the expiry of the Act.

In my view, therefore, the conclusion is irresistible that the order passed in this case on the relevant date is saved and must be deemed to be an order passed under the corresponding provision, namely, Section 13 of the present Act of 1977. The argument of learned Counsel cannot, therefore, be sustained.

That brings me to the third contention put forward by counsel for the petitioner. The grievance is that the Court below has, contrary to law, passed the order for deposit of arrears of rent within a period of eleven days. Reliance has been placed on the wording of Section 11-A and on a decision of this Court in Chaganmal Jain v. Maliram Mintri 1973 B.B.CJ. 157 : 1973 BL.J.R. 656. Section 11-A of the Act provided that "on failure of the tenant to deposit the arrears of rent within fifteen days of the date of the order... the Court shall order the defence against ejectment to be struck out...". In this case, the deposit has been ordered to be made within a period of eleven days. In the case aforementioned, it was held that the provision of Section 11-A in respect of the striking out of the defence is mandatory, the reason being that a time-limit has been fixed by the statute itself for compliance with the order and the Court could not extend the time fixed by the statute, and, for that reason, the Court could not shorten the period prescribed by the Legislature. The order aforesaid must be held to be bad in respect of the period prescribed. I do not find any good reason, however, for holding that the order directing payment of arrears of rent and current rent, month by month, is for any reason bad in law. The part of the order regarding the time limit alone must accordingly be set aside. The Court below will now pass an order granting the time fixed by the Legislature to pay the arrears and act in accordance with law.

In the result, this application succeeds in part, as stated above. In the circumstances of the case, there will be no order as to costs.