Delhi High Court
National Co-Op Consumer Federation Of ... vs Jwala Pershad Ashok Kumar Chopra on 26 May, 1998
Equivalent citations: 1998VAD(DELHI)137, AIR1998DELHI308, 74(1998)DLT842, ILR1998DELHI367, AIR 1998 DELHI 308, (1998) 2 RENCJ 571, (1998) 74 DLT 842, (1998) 2 RENCR 115
Author: Arun Kumar
Bench: Arun Kumar, M.S.A. Siddiqui
ORDER Arun Kumar, J.
1. The basic facts which are necessary to appreciate the controversy in this appeal are that the respondent herein filed a suit for recovery of possession of a portion of premises bearing bungalow No. 2, Ring Road, Lajpat Nagar IV, New Delhi let out to the defendant/appellant in the present appeal vide a duly registered lease deed dated 16th September, 1975, This lease deed was for a period of one year and was extended by another year in September 1976. It is not necessary to give details of the tenancy premises because there is no controversy between the parties on this aspect. With effect from 21st October, 1978, the rent of the devised premises was enhanced from Rs. 2500/- per month to Rs. 3500/- per month. There is no dispute that the month of tenancy is now the English calendar month i.e. from the first day of the month to the last day of the month as per the English calendar.
2. By way of amendment of the Delhi Rent Control Act, Section 6A was introduced which gave a right to the landlord to increase the rent by 10% every three years. Section 8 of the Act further provided that the landlord could give a notice to the tenant of his intention to increase the rent by the 10% and the increased rent would become due and recoverable after the expiry of 30 days from the date on which the notice is given. This amendment of the Act came into force with effect from 1st December, 1988. On 1st December, 1988 itself the plaintiff served a notice of enhancement of rent by 10% on the tenant w.e.f. 1st January, 1989 vide Ex. P-2. On 12th January, 1989, the plaintiff served another notice on the tenant terminating the tenancy w.e.f. 31st December, 1988 Ex.P-6. There is no dispute about the receipt of these notices because the tenant sent reply to both of them vide Ex. P. 5 dated 13th January, 1989 which is a reply to plaintiff's notice regarding enhancement of rent and Ex. P-9 dated 23rd January, 1989 which is a reply to the notice of termination of tenancy. The present suit for recovery of possession and mesne profits was filed on 25th May, 1989.
3. The only argument raised by the learned counsel for the appellant in support of the present appeal is that the respondent/landlord could not exercise his right of enhancement of rent under Section 6A of the Act till the expiry of a period of amendment from the date the said provision came into effect. In other words, the argument is that a landlord has to wait for three years before he/she can exercise the right conferred by Section 6A. The argument further proceeds that if the landlord is allowed to exercise this right before the expiry of the said period, it will amount to giving the retrospective effect to Section 6A which was neither intended by the Statute nor it would be lawful to allow the same. According to the learned counsel the amendment of the Act w.e.f. 1st December, 1988 is prospective and the right to enhance the agreed rent by 10% will accrue to landlord only after three years of the provision coming into force, i.e. w.e.f. 1st December, 1991. The learned counsel for the appellant argued that prior to the amendment of the Act in December 1988 there were provisions in the Act regarding fixation of standard rent as contained in Sections 6 and 9. Except by resorting to those provisions the landlord had no right to enhance the agreed rent. Thus it was a statutorily protected right of a tenant to continue to pay the agreed rent to the landlord in order to continue to enjoy the tenancy premises. This vested right could not be taken away by a retrospective operation of amendment of the statute. Section 6A which was introduced by way of amendment confers a privilege/right on the landlord which did not exist before. The same can be exercised only after three years from the date of amendment because Section 6A permits increase in rent by 10% every three years. At this stage it will be appropriate to reproduce the relevant provisions of the Act.
"8. Notice of increase of rent.
(1) Where a landlord wishes to increase the rent of any premises, he shall give the tenant notice of his intention to make the increase and insofar as such increase is lawful under this Act, it shall be due and recoverable only in respect of the period of the tenancy after the expiry of thirty days from the date on which the notice is given.
(2) Every notice under subsection (1) shall be in writing signed by or on behalf of the landlord and given in the manner provided in Section 106 of the Transfer of Property Act, 1882."
4. Thus the controversy raised in this Appeal revolves around interpretation of Section 6A of the Act. The real question which needs to be answered is whether the landlord has to wait for three years after the amendment came into force before he could exercise the right conferred by the amendment or he/she could exercise the right straightway if during the past three years there has been no increase in the agreed rent. In the present case admittedly the last increase in the rent was in October 1978 when the rent was enhanced from Rs. 2500/- per month to Rs. 3500/- per month.
5. Mr. Rajiv Nayyar, Senior Advocate, learned counsel for the appellant urged that the provision contained in Section 6A is not a mere procedural provision. It is a substantive provision. It confers a substantive right on a landlord and it affects a substantive right of the tenant inasmuch as in the absence of the said provision the tenant could continue to pay the agreed rent. When a substantive right is affected or taken away by a statute such a provision can only be prospective and can never be retrospective unless the statute specifically provides so. Section 6A does not specifically say anything about retrospectivity. The necessary meaning and affect has to be drawn from the section itself. It is settled law that a statute affecting procedural matters can be retrospective but a statute affecting substantive rights cannot be retrospective. In support of his argument the learned counsel for the appellant cited Mst. Sukhribai Vs. Pohkalsing, AIR (37) 1950 Nagpur 33, which only reiterates the principle of construction that all statutes affecting the rights must be construed prospectively.
6. In support of his argument, the learned counsel for the appellant tried to place reliance on some portions of the Parliamentary debates in connection with the enactment of the said provision. He cited Pepper Vs. Hart, (1993) 1 All E.R. 42 in support of his arguments that the Parliamentary debate can be looked into by the Courts to give meaning to a particular provision of the statute. However, in view of the decision of the Supreme Court in K.S. Paripoornan Vs. State of Kerala, , such external aids to interpretation i.e. speeches of Members of Parliament may not be normally looked into when otherwise the meaning or the plain language of the section itself is clear. It was observed in this judgment by the Supreme Court that as regards the Statement of Objects and Reasons appended to a Bill, the law is well-settled that the same cannot be used except for the limited purpose of understanding the background of the state of affairs leading to the legislation but it cannot be used as an aid to the construction of the statute. It was further observed that "similarly, with regard to speeches made by the Members in the House at the time of consideration of the Bill it has been held that they are not permissible as extrinsic aids to the interpretation of the statutory provisions though the speech of the mover of the Bill may be referred to for the purpose of finding out the object intended to be achieved by the Bill". In view of this latest pronouncement on the subject by the Apex Court we need not go further into the question as to whether the Parliamentary debates ought to be looked into or not. In any case, in the facts and circumstances of the present case, we do not consider it even necessary to refer to the Parliamentary debates.
7. Next the learned counsel for the appellant placed reliance on R. Rajagopal Reddy and others Vs. Padmini Chandrasekharan etc., . This case involved interpretation of the provisions of the Benami Transactions (Prohibition) Act, 1988. The said Act contained provisions intended to put an end to benami transactions which before the said enact-ment, were recognised under the Indian Law. The question had arisen whether such provisions of the Act which refused to recognise the validity of benami transactions can thus affect substantive right of persons who had entered into such transactions earlier on the basis of the then existing law recognising validity of such transactions, could be retrospectively apply to past transactions to nullify them. It was held that the bar created under the Act regarding suits or proceedings relating to benami transactions could apply only prospectively and the pending suits or proceedings will not be affected thereby. It was held that the provisions of the Act were not retrospective. The following observations contained in the judgment are relevant in the present context:
"..........It has to be visualised that the legislature in its wisdom has not expressly made Section 4 retrospective. Then to imply by necessary implication that Section 4 would have retrospective effect and would cover pending litigations filed prior to coming into force of the section would amount to taking a view which would run counter to the legislative scheme and intent projected by various provisions of the Act to which we have referred earlier. It is, however, true as held by the Division Bench that on the express language of Section 4(1) any right inhering in the real owner in respect of any property held benami would get effaced once Section 4(1) operated, even if such transaction had been entered into prior to the coming into operation of Section 4(1), and hereafter Section 4(1) applied no suit can lie in respect to such a past benami transaction. To that extent the section may be retroactive. To highlight this aspect we may take an illustration. If a benami transaction has taken place in 1980 and a suit is filed in June 1988 by the plaintiff claiming that he is the real owner of the property and defendant is merely a benamidar and the consideration has flown from him, then such a suit would not lie on account of the provisions of Section 4(1). Bar against filing, entertaining and admission of such suits would have become operative by June 1988 and to that extent Section 4(1) would take in its sweep even past benami transactions which are sought to be litigated upon after coming into force of the prohibitory provision of Section 4(1); but that is the only effect of the retrospectivity of Section 4(1)_ and nothing more than that.
12. So far as Section 4(2) is concerned, all that is provided is that if a suit is filed by a plaintiff who claims to be the owner of the property under the documents in his favour and holds the property in his name, once Section 4(2) applies, no defense will be permitted or allowed in any such suit, claim or action by or on behalf of a person claiming to be the real owner of such property held benami. The disallowing of such a defense which earlier was available, itself suggests that a new liability or restriction is imposed by Section 4(2) on a preexisting right of the defendant. Such a provision also cannot be said to be retrospective or retroactive by necessary implication. It is also pertinent to note that Section 4(2) does not expressly seek to apply retrospectively."
8. The above observations rather support the case of the respondent inasmuch as the right to litigate about the past transactions which were previously valid under law, has been taken away. Still the said provision of the Act was upheld. The real question thus is whether a provision under challenge can be said to be retrospective.
9. In our opinion, Section 6A of the Act must be read subject to the rule that in absence of an express provision of clear implication, the Legislature does not intend to attribute to the amending provision retrospectively. It will be noticed that there is no provision in the Act prohibiting a landlord to exercise his right to revise rent under section 6A until expiry of three years from the date of its enforcement. Therefore, in the absence of such a provision it cannot be assumed that the Legislature intended that operation of the said section shall remain suspended for a period of three years from the date of its coming into force. All that the tion provides s that from the date it comes into force the landlord would be entitled to enhance the agreed rent by 10% and further there must be a gap of three years between two revisions of rent. In one sense Section 6A which is undoubtedly a price of beneficent Legislation conferred on a landlord additional right to enhance rent subject to a maximum limit of 10%. It also lays down a rule of limitation. Further the words "agreed rent" used in Section 6A clearly show that there was no retrospective operation of the said section. Whatever is the agreed rent, can be increased by 10% after giving a 30 days notice of intention to increase every three years. The right becomes exercisable only after one month's notice as per Section 8 of the Act in future. Of course that argument of retrospectivity as raised by the learned counsel for the appellant, could be possible if the statute permitted increase in the rent from a date prior to the coming of the amendment into force. Here the statute permits increase in the rent only prospectively i.e. after one month's notice could be given by the landlord.
10. In this connection it is also important to note that if the intention of the legislature was to postpone the exercise of this right conferred by Section 6A by three years it could have specifically said so in the statue itself. Instead of saying that rent could be increased by 10% every three years, it could have been said that the increase will be after three years. The word 'after' could have been easily used if that was the intention. The learned counsel for the respondent drew our attention to Section 14(1)(hh) of the Act which was also introduced by the same amending Act of 1988. The provision is :-
"14. Protection of tenant against eviction :-
(hh) that the tenant has, after the commencement of the Delhi Rent Control (Amendment) Act, 1988, built a residence and ten years elapsed thereafter.
11. It will be seen from the above provision that to exercise the right under it the landlord has to wait for 10 years. If the landlord had to wait under Section 6A also for three years, it could havebeen provided in the Section itself.
12. The main question for consideration is as to whether in these circumstance it can be said that by interpreting Section 6A to mean that the landlord can straightway exercise the right conferred by the said Section, it will tant amount to the provision being retrospective. To answer this question the learned counsel for the respondent first tried to draw our attention to the meaning of the word 'retrospectives'. He replied on volume 44 Halsbury's Law of England, Fourth Edition, page 570, para 921.
"921. Meaning of "retrospective". It has been said that "retrospetive" is somewhat ambiguous and that a good deal of confusion has been caused by the fact that it is used in more senses than one. In general, however, the courts regards as retrospective any statute which operates on cases or facts coming into existence before its commencement in the sense that it affects, even if for the future only, the character or consequences of transactions previously entered into or of other past conduct. Thus a statute is not retrospective merely because if affects existing rights : nor is it retrospective merely because a part of the requisites for its action is drawn from a time antecedent to its passing."
13. Thus merely for the reason that a statute has a bearing on it or it affects existing rights. It cannot be said to be retrospective nor can it be said to be retrospective because a part of the requisite for its action is drawn from the period before its enactment.
14. In Master Ladies Tailors Organisation and Another Vs. Minister of Labour and National Service, (1950) Vol. 2 All E.R. 525, an Order issued under the Wages Councils Act, 1945 contained a provision under which for fixing remuneration of workers reference was required to be made to employment before the order because effective, the provision imposed on the employer's liabilities which had accrued in respect of antecedent employment. It was held that the effect of the provisions related to accrued remuneration, being merely to determine and limit the quantum of payments to be made after the order came into force. the order could not be construed as having a retrospective operation.
15. Reliance was also placed on Sajjan Singh Vs. State of Punjab, . It was held that taking into consideration the pecuniary resources or property in the possession of the accused or any other person on his behalf which are acquired before the date of the Act is not in any way giving the Act a retrospective operation. A Statute cannot be said to be retrospect because a part of the requisite for its actions is drawn from a time antecedent to its passing.
Kapoor Chand Vs. B.S. Grewal, , is a case relating to tenancy laws. Section 9 of the Punjab Security of Land Tenure Act contained exceptions to the Rule against ejectment of tenants by the land owners. One of the exceptions was that the tenant "is in arrears of rent at the commencement of this Act." It was argued that for this provision one had to look to the past conduct of the tenant, i.e. his conduct prior to the commencement of the Act which showed that the act was retrospective. This was one of the grounds of challenge. It was held :-
"... But a statute is not applied retrospectively because a fault of the requisites for its action is drawn from a moment of time prior to its passing. The clause in question, makes a particular conduct the ground for an application for eviction. The necessary condition for the application of S. 9(1)(ii) may commence even before the Act came into force and past conduct, which is as relevant for the clause as conduct after the coming into force of the Act, cannot be overlooked."
16. In T.K. Lakshmana Tyer Vs. State of Madras, . Section 44B of the Madras Hindu Religious Endowments Act 2 of 1927 had come up for consideration. It was held that Section 44 B(2) is in its direct operation prospective after it came into force. It is not properly called retrospective because a part of the requisites for its action is drawn from a time antecedents to its passing. Maxwell on interpretation of statute was relied upon. Sub-section (2) authorised resumption of the Inam on certain grounds which included resumption even in cases where there has been no alienation of the Inam. The said Section allowed resumption of Inam where there had been an alienation of the Inam before or after 1934.
17. Reference was also made to D.C. Bhatia & Ors. Vs. Union of India, is a case upholding the constitutional validity of the Delhi Rent Control (Amendment) Act, 1988. The Act was challenged on various grounds including the ground of retrospectivity. All the grounds were turned down and the Act was held to be valid.
18. In B. Prabhakar Rao & Ors. Vs. State of A.P. & Ors., 1985 (Supp) SCC 432, - the facts were that the age of superannuation of the Govt. employees was reduced from 58 years to 55 years. This was challenged. The Govt. amended the legislation to restore the age of superannuation to 58 years as before. Persons attaining the age of 55 years during the inter regnum between the reduction and restoration of the age were adversely effected because the restoration of the age of 58 years was prospective. This was again challenged before the Super Court. The challenge succeeded. It was observed that when steps had been taken to undo what had been done, there was no reason to create out a class of person who deserved the same treatment and were excluded from the benefit of the beneficent treatment by classifying them as a separate group merely because of the delay in taking the remedial action already decided upon. Since the amendment of the legislation which was intended to restore the age of superannuation as 58 years was prospective, a question arose whether it could be given retrospective effect by applying it those who had retired in between. It was held that the question is not one of retrospectivity at all. The circumstance that the relief given by Ordinance 24 of 1984 and Act 3 of 1985 is not extended to those who had attained the age of 55 years by February 28, 1983 or between February 28, 1983 and August 23, 1984, has the effect of limiting the field of operation of the Ordinance and the Act and introducing a classification which in order to be sustained must be shown to be reasonable and to have a nexus to the object to be achieved besides not being arbitrary. While it is a general rule of law that statutes are not to operate retrospectively, they may so operate by express enactment, by necessary implication from the language implied or where the statute is explanatory or declaratory or where the statute is passed for the purpose of protecting the public against some evil or abuse or where the statute engrafts itself upon existing situations etc. etc. But it would, be incorrect to call a statute retrospective' "because a part of the requisites for its action is drawn from a time antecedent to its passing".
19. The questing of retrospectivity of statute again came up for consideration before the Supreme Court in K.S. Paripoornan (supra). It was observed :-
"A statute dealing with substantive rights differs from a statute which relates to procedure or evidence or is declaratory in nature inasmuch as while a statute dealing with substantive rights is prima facie prospective unless it is expressly or by necessary implication made to have retrospective effect, a statute concerned mainly with matters of procedure or evidence or which is declaratory in nature has to be construed as retrospective unless there is a clear indication that such was not the intention of the legislature. A statute is regarded as retrospective if it operates on cases or facts coming into existence before its commencement in the sense that it affects, if for the future only, the character or consequences of transactions previously entered into or of other past conduct". By virtue of the presumption against retrospective applicability of laws dealing with substantive rights transactions are neither invalidated by reason of their failure to comply with formal requirements subsequently imposed, nor open to attack under powers of avoidance subsequently conferred. They are also not rendered valid by subsequent relaxations of the law, whether relating to form or to substance."
20. In this connection the learned counsel for the appellant cited Ghanshyam Das Gupta Vs. Devi Lal and others, . The question for consideration before the Supreme Court was about applicability of Section 13(1) of the Bihar Rent Act to the Cantonment prior to extension of the Act to that area. The Court was of the view that :-
"Ordinarily where a tenant offers a rent which is refused by the landlord without any justifiable reason the tenant is held to have been fully performed his duty. Under the Bihar Rent Act, however, the position is a little different. Even on the refusal by the landlord to accept rent lawfully offered by the tenant, the tenant is under a further duty as mentioned in Section 13(1) to remit such rent by postal money order to the landlord. Where a bona fide doubt arises as to the person who is entitled to receive rent the tenant is permitted by Section 13(2) to deposit the rent in the prescribed manner. Thus Section 11(1)(d) can be held to apply only where Section 13 is attracted. If Section 13 cannot be applied to a particular situation Section 11(1)(d) also would not apply. Section 13 could not obviously be applicable before the Act was extended to the area in question. Consequently the default for the earlier period cannot be the basis for a decree of eviction under Section 11(1)(d)".
21. In our view this case does not help the appellant because Section 13 of the Act placed certain duties and obligations on the tenant. The tenant could not be excepted to discharge his duties under Section 13 before the said provision was made applicable to the are a to which the cause of action related. Thus, this was a clear case of imposition of obligations on a tenant it could not be made retrospectively.
22. Preponderance of judicial opinion shows that the dictum in Halsbury's Law of England : Thus a statute is not retrospective merely because if affects existing rights; nor is it retrospective merely because a part of the requisites for its action is drawn from a time antecedent to its passing holds the field. Applying this dictum to the controversy in the present case the conclusion is inevitable that Section 6A of the Delhi Rent Control Act cannot be said to be retrospective simply for the reason that if a party wants to do immediately give effect to it, reliance is to be placed on antecedent to its passing. The provision does not create any liability for the past. The liability to increase the rent is only from future i.e. after the statute came into force. Merely because it has to be seen that during the three years preceding the notice of the landlord to increase the rent, there has been no increase in rent, it cannot be said that the provision becomes retrospective in its operation.
23. We are unable to accept the argument that allowing the landlord to increase rent by 10% in pursuance of the provisions of Section 6A of the Act, immediately after coming into force of the said provision will amount to allowing its retrospective enforcement. The point is thus decided against the appellant.
24. No other point was urged on behalf of the appellant. The result is that this appeals fails. The appeal is dismissed with no orders as to costs.