Madhya Pradesh High Court
Ramesh Chandra Shrivas vs Shri Murti Ramchandraji on 7 November, 2003
Equivalent citations: 2004(1)MPHT225
Author: A.K. Shrivastava
Bench: Dipak Misra, A.K. Shrivastava
ORDER A.K. Shrivastava, J.
1. Expressing a sanguine doubt with regard to the correctness and soundness of the decision rendered in the case of Santosh Kumar v. Jama Masjid Committee, Sagar, 1998 (1) MPJR 111, the learned Single Judge while hearing this Second Appeal thought it apposite to put the controversy to rest, the matter should be heard by a Larger Bench to adjudge the acceptability of the ratio laid down in the case of Santosh Kumar (supra) and on that foundation he made a recommendation for reference as a consequence of which the . matter has been placed before us.
2. One of the substantial question of law which has been formulated by the learned Single Judge while admitting the second appeal is:--
"Whether the notification dated 7-9-89 under Sub-section (2) of Section 3 of the M.P. Accommodation Control Act, 1961 would apply to the suit filed on 8-3-1989 ?"
3. On a bare perusal of the aforesaid substantial question of law, it is gathered that the suit was instituted prior to the date of notification. The learned Single Judge in the case of Santosh Kumar (supra), while dealing with the said notification in Paragraph 12 had held thus:--
"12. Thus, it is clear from the principles laid down above, one must construe the parent Statute to find that delegated making of law could be retrospectively enacted. There is nothing in the express words of Section 3 that a retrospective exemption could be granted. Nor does the intendment could be found there in any other connected section. The learned Counsel for the respondent was unable to say how as a matter of construction this Court could not otherwise. Moreover, the plain language of notification makes it prospective in operation in the case of Sri Vijayalakshmi Rice Mills, New Contractors Co. etc. v. State of Andhra Pradesh (1), it was emphasised that:--
"...... It is well recognized rule of interpretation that in the absence of express words or appropriate language from which retrospectivity may be inferred, a notification takes effect from the date it is issued and not from any prior date....."
Thus, the contention of the Counsel for respondent No. 1 is not accepted."
4. The learned Single Judge while dealing with the present case felt difficulty in view of the law laid down by the Apex Court in the case of Mohanlal Chhunilal Kothari v. Tribhovan Haribhai Tamboli and Ors., AIR 1963 SC 358. In the said decision, the Apex Court while dealing with the provisions of Bombay Tenancy and Agricultural Lands Act in Para 5 has expressed the view thus:--
"5. It will be noticed that Clauses (a), (b) and (c) of Section 88(1) apply to things as they were at the date of the enactment, whereas Clause (d) only authorised the State Government to specify certain areas as being reserved for urban non-agricultural or industrial development, by notification in the Official Gazette, from time to time. Under Clauses (a) to (c) of Section 88(1) it is specifically provided that the Act, from its inception, did not apply to certain areas then identified; whereas Clause (d) has reference to the future. Hence, the State Government could take out of the operation of the Act such areas as it would deem should come within the description of urban non-agricultural or for industrial development. Clause (d), therefore, would come into operation only upon such a notification being issued by the State Government. The portion of the judgment, quoted above, itself makes it clear that the provisions of Section 88 were never intended to divest vested interests. To that extent the decision of this Court is really against the appellants. It is clear that the appellants can not take advantage of what was a mere slip in so far as Clause (d) was added to the other clauses of Section 88(1), when that clause really did not fall to be considered with reference to the controversy in that case. In other words, this Court never intended in its judgment in Sakharam 's case, Civil Appeal No. 185 of 1956, decided on 19-4-1961 : (AIR 1963 SC 354) (supra) to lay down that the provisions of Clause (d) of Section 88(1) aforesaid were only prospective and had no retrospective operation. Unlike Clauses (a), (b) and (c) of Section 88(1), which this Court held to be clearly prospective, those of Clause (d) would in the context have retrospective operation in the sense that it would apply to land which could be covered by the notification to be issued by the Government from time to time so as to take those lands out of the operation of the Act of 1948, granting the protection. So far as Clauses (a), (b) and (c) are concerned, the Act of 1948, would not apply at all to lands covered by them. But that would not take away the rights conferred by the earlier Act of 1939 which was being repealed by the Act of 1948. This is made clear by the provision in Section 89(2) which preserves existing rights under the repealed Act, Sakharam's case, Civil Appeal No. 185 of 1956, decided on 19-4-1961 : (AIR 1963 SC 354) (supra) was about the effect of Clause (c) on the existing rights under the Act of 1939 and it was in that connection that this Court observed that Section 88 was prospective. But Clause (d) is about the future and unless it has the limited retrospective effect indicated earlier it will be rendered completely nugatory. The intention of the legislature obviously was to take away all the benefits arising out of the Act of 1948 (but not those arising from the Act of 1939) as soon as the notification was made under Clause (d). This is the only way to harmonise the other provisions of the 1948 Act, conferring certain benefits on tenants with the provisions in Clause (d) which is meant to foster urban and industrial development. The observations of the High Court to the contrary are, therefore, not correct."
5. Before dealing with the aforesaid case, we would like to reiterated the Notification No. F-24-(4)-83-XXXII-I, dated 7th September, 1989 which was published in M.P. Rajpatra (Asadharan), dated 7-9-1989. It reads as under :--
"In exercise of the powers conferred by Sub-section (2) of Section 3 of the Madhya Pradesh Accommodation Control Act, 1961 (No. XLI of 1961), the State Government hereby exempts all the accommodations owned by--
(i) the Wakf, registered under the Wakf Act, 1954 (No. 29 of 1954), or (ii) the public trust registered under the Madhya Pradesh Public Trusts Act, 1951 (No. XXX of 1951), for an educational religious or charitable purpose,
from all the provisions of the Madhya Pradesh Accommodation Control Act, 1961 (No. XLI of 1961)."
6. The constitutional validity of the said notification was challenged in the case of State of M.P. v. Chintamani Agrawal, 1999 (2) JLJ 379, and the same was held to be intra vires. This case was again considered and relied upon by the Apex Court recently in the case of Ramgopal and another v. Balaji Mandir Trust and Ors., 2003(2) M.P.H.T. 338 (SC) = 2003 (1) Vidhi Bhasvar 259. The question which arises for consideration is whether the above said notification could be made applicable prospectively or retrospectively, meaning thereby whether the said notification would affect the pending suits or would be made applicable to the suits which may be filed after the commencement of the said notification.
7. It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective in operation. The landmark decision in this regard is of Keshavan Madhavan Mennon v. State of Bombay, AIR 1951 SC 128, other decisions on the point are Janardan Reddy v. State, AIR 1951 SC 124; and State of Madhya Pradesh v. Rameshwar Rathod, AIR 1990 SC 1849. Unless there are words in the statute sufficient to show the intention of the Legislature to affect the existing rights, it is deemed to be prospective. In this context, we may profitably refer the legal maxim 'nova constitutio futuris formam imponere debet non praeteritis'. Lord Blanesburg had said that the provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment [See Delhi Cloth Mills & General Co. Ltd. v. CIT, Delhi, AIR 1927 PC 242]. Similarly, Lopes, L.J., has said that the law which takes away or impairs vested rights acquired under existing laws, or creates a new obligation or imposes a new duty, or attaches a new disability in respect of transactions already past, must be presumed to be intended not to have retrospective effect.
8. If a new provision of a law is to be made retrospective in operation then it should be intended so in the statute itself eitherby express words or by necessary implication. In order to construe that whether a particular statute is having retrospective operation, a close attention must be paid to the language of the statutory provision for determining the scope of the retrospectivity intended by the law maker.
9. The contention of Shri Aditya Adhikari, learned Counsel appearing for the respondent is that the provision contained in Section 3 (2) of the M.P. Accommodation Control Act, 1961 (hereinafter referred to as 'the Act') is procedural in nature, because, it provides a nature of forum where the right is to be exercised for evicting a tenant and therefore according to the learned Counsel no vested right is affected and hence the notification exempting the Trust from the operation of the Act has to be treated as being retrospective. It has further been contended by him that the words used in the Section 3 (2) of the Act "exempt from all or any of the provisions of this Act" would relate to the commencement of the Act and as the intention of the Legislature is quite obvious to exempt certain bodies from the operation of the Act in its totality. In support of his contention, the learned Counsel for the respondent has placed reliance on the decisions Mohanlal Chunnilal Kothari v. Tribhovan Haribhai Tamboli and Ors., AIR 1963 SC 358; Ram Sarup and Ors. v. Munshi and Ors., AIR 1963 SC 553; Ms. Rafiquennessa v. Lal Bahadur Chetri and Ors. (Paragraphs 5,9,10,11 and 12) AIR 1964 SC 1511; S.N. Kamble v. Sholapur Borough Municipality (Paragraphs 6, 9, 10 and 11) AIR 1966 SC 538; Narhari Shivram Shet Natvekar v. Pannalal Umediram (Paragraphs 9, 10, 11, 12 and 15) AIR 1977 SC 164; Lakshmi Narayan Guin v. Niranjan Modak (Paragraphs 8 and 9) AIR 1985 SC 111; Raibahadur Seth Shriram Durgaprasad v. Director of Enforcement (Paragraph 7) AIR 1987 SC 1364; K.R. Paripooman v. State of Kerala and Ors. (Paragraphs 44 to 50 majority view) AIR 1995 SC 1012 and Dahiben v. Vasantji Kewalbhai (Paragraphs 9 to 19) AIR 1995 SC 1215.
10. The first case which has been relied upon the learned Counsel finds place in the order of reference passed by the learned Single Judge. The emphasis and the entire endeavour has been put by learned Counsel to support his contention that the impugned notification is retrospective in nature by taking the aid of the case of Mohanlal Chhunilal Kothari (supra). In the said case Their Lordships of the Supreme Court were dealing with Section 88(1) of the Bombay Tenancy and Agricultural Lands Act. Before dealing with the applicability of the ratio of the said case to the present factual scenario, it shall be apposite to refer to Section 88(1) of the Bombay Tenancy and Agricultural Lands Act which has been reproduced in the said judgment. It reads thus :--
"Nothing in the foregoing provisions of this Act shall apply:--
(a) to lands held on lease from the Government a local authority or a co-operative society;
(b) to lands held on lease for the benefit of an industrial or commercial undertaking;
(c) to any area within the limits of Greater Bombay and within the limits of the Municipal boroughs of Poona City and Sub-urban, Ahmedabad, Sholapur, Surat and Hubli and within a distance of two miles of the limits of such boroughs; or
(d) to any area which the State Government may, from time to lime, by notification in the Official Gazette, specify as being reserved for urban non-agricultural or industrial development."
11. Clause (d) of the said section empowers the State Government to specify any area for the purpose of reserving urban non-agricultural or industrial development by a notification. The Revenue Department of the State Government of Bombay by cancelling earlier notification of April 24, 1951 inserted the following notification dated January 12, 1953 :--
"Revenue Department, Bombay Castle, 12 January, 1953, Bombay Tenancy and Agricultural Lands Act, 1948.
No. 9361/49 : In exercise of the powers conferred by Clause (d) of Sub-section (1) of Section 88 of the Bombay Tenancy and Agricultural Lands Act, 1948 (Bombay LXVII of 1948). The Government of Bombay is pleased to cancel Government Notification in the Revenue Department No, 9361/49, dated the 24th/25th April, 1951."
12. On a scrutiny of the above said notification, it becomes clear as noon day that by replacing and cancelling the earlier notification dated 24th April, 1951, the State Government of Bombay inserted a new notification dated January 12, 1953. Thus, the new notification would apply in place of the notification which was already existing and therefore in this context it was held by Their Lordships that the newly inserted notification replacing and cancelling the earlier notification would have retrospective operation. However, in the present case, no such notification ever existed earlier in regard to the applicability of Section 3 of the Act to any Public Trust registered under the Madhya Pradesh Public Trusts Act, 1951. The impugned notification was inserted for the first time on 7th September, 1989, when it was published in M.P. Rajptra (Asadharan) on the said date and on its plain reading, it can not in any manner be said to be retrospective in operation.
13. The normal rule is that general words in a statute must receive a general construction unless there is something in the Act itself such as the subject-matter which the Act is dealing or the context in which the said words are used to show the intention of the Legislature that they must be given a restrictive meaning. (See : Principles of Statutory Interpretation by Justice G.P. Singh, 7th Edition, p. 342). The words used in the language of the impugned notification are plain in nature and if these words are construed harmoniously, the only inference which could be gathered is that the impugned notification would apply prospectively and not retrospectively.
14. The Act is basically beneficial legislation to provide for the regulation and control of eviction of the tenant from the accommodations and for other matter connected therewith or incidental thereto, as is clear from its preamble. The tenants are being protected from their eviction from the tenanted premises in the enjoyment of their tenancy right and once there exists a right (in the present case a tenancy right) any legislation which is enacted to affect such right, then unless it is patent from the statute itself, it can not be implemented or applied retrospectively unless it is so expressed specifically or by necessary implication. The present Act being a benevolent one, it has to be interpreted in a broader spectrum and therefore the interpretation of present impugned notification should be in favour of beneficiaries for whom the Act is enacted. In the case of Lal Captanlal v. Board of Revenue, M.P, at Gwalior and Ors., AIR 1999 (MP) 23, D.M. Dharmadhikari, J. (as His Lordship then was) held and decided that the interpretation which best fulfils the object of legislation has to be preferred.
15. The right which the tenant of a Trust under the M.P. Public Trust Act is enjoying is having nexus with the tenanted premises and therefore it is his substantive right, because his tenancy right is being otherwise protected by the Rent Control Legislation, namely, M.P. Accommodation Control Act apart from the general law, namely, Transfer of Property Act, 1882, and, therefore, if any alteration is to be made in the enjoyment of his substantive right under a particular statute then, unless and until it is expressly provided or is made applicable by necessary implication shall always be prospective in nature. One should not readily construe a newly enacted legislation in pending proceeding to be retrospective in nature specially when which affects rights in existence. The Courts should be very cautious in applying the law which affects the substantive right in the pending proceeding as said by Shri S.R. Das, the then Chief Justice in the case of Garikapati v. N. Subbiah Choudhary, AIR 1957 SC 540, which was later on relied in the case of R. Rajagopal Reddy (Dead) by L.Rs. and Ors. v. Padmini Chandrasekharan (Dead) by L.Rs., AIR 1996 SC 238.
16. In the present case, as we have discussed hereinabove, the language of the impugned notification is plain enough to construe a singular inference that it is prospective in nature. In the case of A.A. Cotton v. The Director of Education and another, AIR 1983 SC 1143, the Apex Court while deciding the fate of the selected candidates for appointment to a post of Principal which was pending before the Director of Education under Section 16F of the U.P. Intermediate Education Act, 1921, which was later on amended taking away the power of Director to make an appointment, it was held that amending Act could not in the absence of express word or necessary implication be construed to take away the power of the Director in the pending proceedings for selection. If the present impugned notification of the Act is tested on the touchstone of the case of A.A. Cotton (supra), it would become luminously clear that this case [A.A. Cotton (supra)] is akin to the present case because here also when the suit was filed and was in progress at that time the impugned notification was not in existence and it came on 7th September, 1989, and therefore, this notification can not be applied retrospectively.
17. In the case of Smithies v. National Association of Operative Plasters, (1909) 1 KB 310 (at p. 319, 320) it was held that Section 4 of the Trade Dispute Act, 1906 which enacted with "an action for tort against a trade union shall not be entertained by any Court" was held not to affect disposal of an action commenced before passing of the Act. Similarly, in the case of Venugopala v. Krishnaswami, AIR 1943 FC 24, Their Lordships while interpreting Section 46(2) of the Government of India Act, 1935 by which it was enacted that the Burma was ceased to be the part of India, it was held and was so construed that it would not affect the continuance of pending action in Indian Court which related to properties situated in Burma.
18. Thus, if a new law brings about a change to affect any right then unless a provision is made in it for change over all provisions or there is some other clear indication that pending actions would be affected can always be held to be prospective in nature and it can not be construed to be retrospective in nature unless it is expressly or by necessary implication is made so.
19. The Apex Court had an occasion in the case of Shri Vijayalakshmi Rice Mitts v. State of A.P., AIR 1976 SC 1471, to interpret Rice (Andhra Pradesh) Price Control Order (1963), Clause 2 and the Rice (Andhra Pradesh) Price Control (Third Amendment) Order (1964), Clause 2 in which the interesting question was whether for the supply of rice made by the appellants of that case in January and February, 1964, they are to be paid price according to the rate specified in the Rice (Andhra Pradesh) Price Control (Third Amendment) Order 1964 dated March 23,1964 or according to the rate specified in the Rice (Andhra Pradesh) Price Control Order as it stood in 1963. The appellants who were plaintiffs filed a suit for recovery of the difference between the control prices specified in the Rice (Andhra Pradesh) Price Control Order, 1963 dated December 19,1963 and the Rice (Andhra Pradesh) Price Control (Third Amendment) Order, 1964. The suit was decreed against which the State of Andhra Pradesh preferred appeal to the High Court at Hyderabad which was allowed on the ground that the supplies of rice were made by the appellants before the Rice (Andhra Pradesh) Price Control (Third Amendment) Order, 1964 hence they were entitled only to price specified in the schedule to the Rice (Andhra Pradesh) Price Control Order (1963). Being dis-satisfied by the judgment of their dismissal of the suit, the plaintiff preferred an appeal before the Apex Court which was dismissed. While dismissing the appeal, Their Lordships in Para 5 categorically held which we think it proper to reiterate herein, thus :--
"5. Mr. Nariman, appearing on behalf of the appellants has laid great emphasis on the word "substituted" occurring in Clause 2 of the Rice (Andhra Pradesh) Price Control (Third Amendment) Order, 1964 and has urged that the claim of the appellants can not be validly ignored. Elaborating his submission, Counsel has contended that as the prices fixed by the Government are meant for the entire season, the appellants have to be paid at the controlled price as fixed vide the Rice (Andhra Pradesh) Price Control (Third Amendment) Order, 1964, regardless of the dates on which the supplies were made. We can not accede to this contention, it is no doubt true that the literal meaning of the word "substitute" is 'to replace' but the question before us is from which date the substitution or replacement of the new Schedule took effect. There is no deeming clause or some such provision in the Rice (Andhra Pradesh) Price Control (Third Amendment) Order, 1964 to indicate that it was intended to have a retrospective effect. It is a well recognized rule of interpretation that in the absence of express words or appropriate language from which retrospectivity may be inferred a notification takes effect from the date it is issued and not from any prior date. The principle is also well settled that statutes should not be construed so as to create new disabilities or obligations or impose new duties in respect of transactions which were complete at the time the Amending Act came into force. [See Nani Gopal Mitra v. State of Bihar, (1969) 2 SCR 411 - AIR 1970 SC 1636].
In our opinion, the case of Sri Vijayalakshmi Rice Mills (supra), squarely resolve the present dispute and is entirely applicable in the present case. Here also the suit was filed earlier to the commencement of the new notification and therefore by taking the aid of the case of Shri Vijayalakshmi Rice Mills (supra), it can safely be said that the impugned notification which gave its birth during the pendency of the suit can not be applied retrospectively.
20. In this context we may usefully refer to the decision rendered in the case of Ramesh Chandra v. IIIrd Additional District Judge and Ors., AIR 1992 SC 1106, wherein Their Lordships while interpreting the provisions of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act held in Para 12 as under:--
"12. Yet another contention urged by the learned Counsel for the tenant on the strength of Vineet Kumar v. Mangal Sain Wadhera, (1984) 3 SCC 352 : (AIR 1985 SC 817), is that inasmuch as the statutory period of ten years expired during the pendency of the suit, the Act became applicable and the suit must be disposed of only in accordance with the provisions of the Act and in particular Sub-section (2) of Section 20, This decision has, however, been explained in a subsequent decision in Nand Kishore Marwah v. Samundri Devi, (1987) 4 SCC 382: (AIR 1987 SC 2284), wherein it has been held that the law applicable on the date of the institution of the suit alone governs the suit and the mere fact that the statutory period of 10 years expires during the pendency of the suit/appeal/revision, the Act does not become applicable. It was held that the suit has to be tried and decided without reference to the Act. We are in respectful agreement with the view expressed in Nand Kishore Marwah."
This case was again relied in the case of Bhola Nath Varshney (since dead) through his L.Rs. v. Mulk Raj Madan, AIR 1994 SC1664.
21. We would be failing in our duty if we do not refer to the decision of the Apex Court in the case of Mis Punjab Tin Supply Co., Chandigarh etc. etc. Vs, Central Government and Ors., AIR 1984 SC 87, which throws sufficient light on the present dispute. In the said case, Their Lordships while examining the newly notification under East Punjab Urban Rent Restriction Act, whereby the exemption was made applicable, it was held by the Apex Court that the notification granting exemption to newly constructed building is not retrospective. We think it apposite to re-write Paras 23 and 24 of the said judgment which read thus :--
"23. On a careful consideration of the question we feel that the benefit of the notification can not be extended to buildings which were given the sewerage connection or electric connection or which were occupied, as the case may be, prior to January 31, 1973. Those buildings are governed by the provisions of the Act and any decrees passed in respect of them are governed by Section 13 of the Act. The notification applies only to those buildings which are given sewerage connection or electric connection or which are occupied, as the case may be, on or after January, 31,1973.
24. In the result we declare that Section 3 of the Act and the notification dated January 31, 1973 and the other notifications impugned in these cases are valid and effective. We further declare that the exemption granted by the notification dated January 31, 1973 applies only to those buildings which are given sewerage connection or electric connection or which are occupied, as the case may be, on or after January 31, 1973 and not to those buildings which satisfied any of the said conditions before January 31, 1973."
22. The learned Single Bench of this Court in the case of Santosh Kumar (supra), in Para 11 while interpreting the applicability of the present impugned notification, by placing reliance on certain decisions of the Apex Court has categorically held that it is clear that Section 3 of the Act does not give power to issue notification with retrospective effect nor does the notification itself says that it is retrospective in operation thereby ultimately holding that the impugned notification can not be made applicable retrospective in nature. According to our considered view the approach of the learned Single Judge was quite in consonance with the well settled law of the interpretation of statute which we have discussed hereinabove in detail as well as the reasonings are based on several decisions of the Supreme Court. The case of Mohanlal Chhunilal Kothari (supra), is clearly distinguishable and is not at all applicable to the present case and similarly other cases relied by Shri Aditya Adhikari, learned Counsel for the respondents are also quite distinguishable. 23. Consequently, we answer the reference in the following terms:--
The decision rendered in the case of Santosh Kumar (supra), correctly lays down the law and further the Notification dated 7-9-1989 under Sub-section (2) of Section 3 of the M.P. Accommodation Control Act, 1961 would apply prospectively and would have no impact or effect on the suits that have been filed before that day which as a logical corollary includes the suit filed on 8-9-1989.
Let the matter be placed before the appropriate Single Judge for adjudication on merits.