Bombay High Court
Jethmal Son Of Jagganathji Dangra vs Parmeshwar Son Of Sheotabal Teli on 6 November, 1987
Equivalent citations: 1988(3)BOMCR435
JUDGMENT A.A. Desai, J.
1. This revision by plaintiff under section 25 of the Provincial Small Cause Courts Act is directed against the judgment and decree dated 29th July, 1987, dismissing the claim towards arrears of rent.
2. According to the plaintiff, defendant was permitted to occupy the suit premises on monthly charges of Rs. 10/- without there being a relations of landlord and tenant. The premises are admittedly situated in a notified slum area as per section 4 of the Maharashtra Slum Area (Improvement, Clearance and Redevelopment) Act, 1971, (hereinafter referred to as the Act 1971). The plaintiff applied to the competent authority under section 22(2) of the Act for permission to evict the defendant. However, the permission was refused and appeal to the Tribunal was also dismissed. The plaintiff, therefore, in 1983 instituted the suit for recovery of arrears of Rs. 360/- towards the occupation charges. The trial Court held that he claim is not recoverable.
Mr. Deopujari, the learned Counsel for the applicant/ plaintiff took me through the provision of the Act of 1971. This Act came into force on 19th May, 1978. Section 22 provides :---
no person shall after commencement of the Act except with the permission of the Competent Authority :
(a) Institute any suit for eviction.
(b) If any decree for eviction obtained prior to the commencement of the Act to execute such decree.
(c) to apply for distress warrant for arrears of rent; against any occupier.
No such permission was, however, made obligatory for institution of suit or execution of a decree for recovery of arrears of rent from the occupier. The State Legislature by way of second Amending Act of 1986 provided for permission of competent authority for the institution of suit for recovery of rent or compensation from the occupier of the slum area, or execution of a decree. This amendment on 5th February, 1987 received assent of the President.
3. Mr. P.N. Deopujari made a submission before me that the suit was filed in 1983 for recovery of arrears of occupation charges when permission of the Competent Authority was not a condition precedent. The amendment came into being on 5th February, 1987, after the filing of the suit. The same has a prospective effect. It does not, therefore, affect proceedings which are pending. According to Mr. Deopujari, the suit could proceed and a decree if passed in his favour could be executed on grant of permission by the competent authority.
4. Mr. Deopujari contended that the Amendment operates prospectively. In support of his contention Mr. Deopujari placed reliance on the decision reported in Veeramma B. Babu v. Janardhan, 1984 Maharashtra Law Journal 276 and Gopabandhu Behera (dead) and another v. Tulasi Kashi Patra, and others, . Mr. Deopujari, therefore, made a submission that Amendment as introduced does not take away the rights of the parties so far as the claim for recovery of arrears of rent or compensation is concerned. Mr. Deopujari then invited my attention to the decision in Kanai Lal Sur v. Paramnidhi Sadhukhan, . The Supreme Court has laid down while interpreting the statute when the material words are capable of two constructions, one of which is likely to defeat or impair the policy of the Act whilst the other construction is likely to assist the achievement of the said policy, then the Courts would refer to adopt the latter construction. Mr. Deopujari then placed reliance on the decision reported in Katikara Chintamani Dora and others v. Guatreddi Annamenaidu and others, . The Supreme Court has observed that it is well settled that ordinarily when the substantive law is altered during the pendency of an action, rights of the parties are decided according to law, as it existed when the action was begun unless the new Statute shows a clear intention to vary such rights. That is to say, in the absence of anything in the Act, to say that it is to have retrospective operation, it cannot be so construed as to have the effect of alternating the law applicable to the claim in litigation at the time when the Act is passed. The ratio laid down in these rulings clearly suggests that the interpretation whether the operations of the Amendment is retrospective or prospective, principally depends on the intention of the Legislature.
5. The Bill in this behalf as introduced on 8th May, 1970 in Legislative Assembly provided vide Clause 16 protection only against eviction. No protection was provided against a recovery through distress warrant. The Act of 1971 came into force on 19th May, 1978. The intention of the Legislature as formulated in the preamble says amongst others that to make better provision for the improvement and for the protection of the occupiers from eviction and distress warrants, and for matters connected therewith. The intention of the Legislature is, therefore, besides other aspects render protection to the occupiers against exploitation and also to curb evil tactices of slum lords. The Act has provided the protection against the recovery of arrears of rent from the occupier through the process of distress warrant. As per sub-section (4-A) of section 22 of the Act the Competent Authority while considering the application for permission for distress warrant has take into account various factors including amount of rent and period for which it is due. The Legislature initially while enacting the Act 1971 perhaps lost sight of another mode of recovery of rent through process of regular civil suit. The Amending Act has rectified the omission. The policy thus flows from the provision has made it explicit to provide complete protection to the occupiers of the slum areas. The intention as it is clear is not to allow the occupier to suffer the high handedness of the Slum Lords. If the amendment is held to be prospective, it would impair the policy of the Legislation. Such construction would not reader complete and proper scope to the policies of Legislature. According to me, it cannot be construed that the amending provisions have only prospective operation and cannot affect the proceedings which are pending. To held it is merely prospective would defeat the intention of legislature and policy of State. Even otherwise a decree obtained for recovery of rent as in the present case cannot be executed without the permission of the competent Authority. The amendment, according to me, affect the suit filed in 1983 and which, was pending when the Amendment came into being.
6. Moreover, the Amendment does not take away the right of plaintiff to recover rent. It merely cast a duty to seek permission of the competent Authority before institution of suit for recovery of arrears of rent. Amendment does not affect the substantive right and merely bring change in the procedure. Its operation is thus retrospective. Further there is nothing in the Act to suggest otherwise of the Legislative intention. I rely on K. Eapen Chake v. The Provident Investment Company (P) Limited, A.I.R. 1976 Supreme Court 2610, New India Insurance Company Limited v. Smt. Shanti Misra, , The State of Madras v. M/s. Lateef Hamid and Company, and Jose Da Costa v. Bascora Sadashiv Sinai Narolornin and others, . Suit for recovery of arrears of rent cannot proceed without necessary permission. Revision dismissed.