Bombay High Court
Prabhulal Chhogalal vs Bastiram Himatram And Another on 11 September, 1989
Equivalent citations: AIR1990BOM367, 1990(1)BOMCR529, (1989)91BOMLR886, AIR 1990 BOMBAY 367, (1990) 1 BOM CR 529, 1990 BOMRC 472, 1989 BOM RC 147, 1989 BOM LR 886
ORDER Dharmadhikari, J.
1. Deceased Bastiram Himatram Bhutada, father of respondent No. 1-plaintiff-landlord filed a Civil Suit No. 2292 of 1974 in the Court of the III Additional Judge, Small Causes Court, Pune for eviction of the petitioner-defendant-tenant from the suit premises. One of the grounds for eviction was that the tenant sublet the suit premises to one Phutarmal Sitaram Mandora. The trial Court after considering the evidence on record came to the conclusion that the tenant did sub-let the suit premises to Phularmal and thereby contravened the provisions of section 13(l)(e) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for the sake of brevity hereinafter referred to as 'the Bombay Rent Act') and on that basis the decree for eviction came to be passed. Feeling aggrieved by the said judgment and decree the tenant preferred an Appeal No. 202 of 1979 before the IV Extra Assistant Judge, Pune, who confirmed the finding that the tenant had unauthorisedly sub-let the suit premises. As a necessary consequence of this the appeal came to be dismissed. Being aggrieved by the said appellate judgment and decree, the tenant filed the present writ petition under Article 227 of the Constitution of India on 13th April, 1981.
2. Pending the writ petition Maharashtra Act XVIII of 1987 came into force with effect from 1st October, 1987. By the Amending Act section 15 of the Bombay Rent At is amended. In sub-section (2) of Section 15, the words, 'figures and letters' before the 1st day of February 1973' have been substituted and further it is made clear that," it shall be deemed to have been substituted on the 1st day of February 1973." Thus in terms the amendment has been given a retrospective effect. As a result of the said amendment subletting before the 1st day of February 1973 is not now a lawful ground for eviction of a tenant. The saving clauses incorporated in section 25 of the Maharashtra Act XVIII Of 1987 reads thus:
"25. Nothing contained in the principal Act, (that is, Bombay Rents, Hotel and Lodging House Rates Control Act, 1947), as amended by this Act (that is, Maharashtra Act No. XVIII of 1987), shall be deemed to authorise the re-opening of any suit or proceeding for the eviction of any person from any premises to which the principal Act applies as if such proceedings had been finally disposed of before the commencement of this Act.
Explanation : For the purposes of this section, suit or proceeding, as the case may be, shall not be deemed to have been finally disposed of, if in relation to that suit or proceeding, any appeal or proceeding is pending, or, if the period of limitation for preferring an appeal or proceeding, as the case may be, had not expired before the commencement of this Act."
3. When this writ petition came up for hearing before Guttal, J. on 29th February 1988 he framed the following issue and remitted it to the trial Court for decision:
"Did the tenant Prabhulal Chhogalal Mandora (that is, the petitioner-defendant-herein) sub-let the suit premises to Phutarmal Sitaram Mandora before the 1st day of February 1973"?
Guttal, J. had directed the trial Court to hear the counsel for the parties and after considering the evidence on record submit his findings on the issue. No additional evidence was permitted to be led. Guttal, J. further directed that the finding shall be certified by the District Court, Pune. The learned trial Judge after hearing the counsel for the parties and considering the evidence on record, by his order dated 30th April 1988 held that the defendant-tenant had not sub-let the suit premises to Phutarmal prior to 1st February, 1973 but had sub-let it after 1974. The District Court on hearing the counsel for the parties did not agree with the finding recorded by the trial Judge and after considering the evidence on record and hearing the parties, reached a finding that the tenant had sub-let the suit premises to Phutarmal before 1st February 1973.
4. When the matter was placed before Tated, J. the finding recorded by the District Court that the petitioner-defendant-tenant had sub-let the suit premises to Phutarmal prior to 1st February 1973 was not challenged. Tated J. also held that the finding recorded by the district Court is fully supported by the evidence on record and cannot be interfered with in a writ petition. Consequently Tated J. confirmed the finding that the tenant had sub-let the suit premises to Phutarmal before 1st February 1973. In view of this finding the learned counsel for the petitioner-tenant-contended that his case is governed by the amended provisions of section 15 of the Bombay Rent Act and, therefore, the suit is liable to be dismissed.
5. On the other hand it was contended by the respondent-landlords that the amendment to section 15 of the Bombay Rent Act is not retrospective. Even otherwise in view of the saving clause since the eviction proceedings were finally disposed of before commencement of the Amending Act, the said question cannot be reopened. During the course of hearing a decision of Sharad Manohar, J. in writ petn. No. 3417 of 1987 and 3313 of 1987 -- Prithdayal Chetandas v.
Jamnadas Ghanshamdas Tuliani decided on 20th to 22nd July and 18th and 29th August 1988, was relied upon by the counsel for the landlord. It appears from the said judgment that Sharad Manohar J. has taken a view that writ petition under Article 227 of the Constitution of India are not 'proceedings' within the meaning of that term as used in section 25 of the Amending Act, i.e. Mah. Act XVIII of 1987. Since Tated, J. found it difficult to agree with the said view he has referred this matter to the division bench. This is how the matter is placed before us.
6. The question that is referred to the division bench by Tated, J. reads as under:
"Whether the proceedings in a writ petition under Article 227 of the Constitution of India pending on the date of commencement of the Maharashtra Act XVIII of 1987, are within the term 'proceeding' appearing in section 25 of Maharashtra Act No. XVIII of 1987 and the petitioner-defendant-tenant, who has been ordered to be evicted by the trial Court and the appeal preferred by him has been dismissed by the Appeal Court, is entitled to have the benefit of the amended provisions of section 15 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 in case the writ petition filed by him is pending on the date of commencement of Maharashtra Act No. XVIII of 1987, namely, 1st October, 1987?".
7. Shri Divekar, learned counsel appearing for the petitioner contended before us that the words and expressions used in the Amending Act, will have to be construed libarally so as to afford adequate protection to the tenants. The words and expressions used in the Amending Act will have to be read to achieve the object of the legislation and not to defeat it. So construed, the word 'proceeding' will have to be construed in its wider import. After the appeal was dismissed by the District Court party is entitled to approach this Court either under section 115 of the Code of Civil Procedure or under Article 227 of the Constitution of India. These two modes are available for approaching the High Court. Party can choose one of them. Therefore, both these modes will have to be treated on equal footing. It cannot be forgotten that in a writ petition filed under Article 227 of the Constitution of India, this Court has wider powers to interfer with the order passed by the subordinate courts then the one conferred by section 115 of the Code of Civil Procedure. Since the Legislature wanted to regularise sub-letting prior to the 1st February 1973, sections 14 and 15 came to be amended. Now under section 14 of the Bombay Rent Act, when the interest of a tenant, is determined for any reason before 1st February 1973, then subject to the provisions of the Bombay Rent Act, the sub-tenant is deemed to have become a tenant of the landlord on the same terms and conditions as he would have held from the tenant if the tenancy had continued. Then comes Sec. 15(2) whereby a protection is given to the tenant from eviction. If the word 'proceeding' as used in Sec. 25 is construed in this background and in tune with the object of the Bombay Rent Act, then it wilt include in. its import the 'proceeding' pending under Art. 227 of the Constitution of India. In support of this contention he has placed strong reliance upon the decisions of the Supreme Court in , S.A.L. Narayan v. Ishwarlal Bhagawandas; , Shiva Rao v. Cecilia Pereira; , The Ahmedabad Mfg. & Calico Ptg. Co. Ltd. v. Ramtahel Ramanand; , Waryam Singh v. Amarnath; , Mithilesh Kumari v. Prem Behari Khare; and , Shankar Ramchandra v. Krishnaji Dattatraya. He has also placed reliance upon the meaning assigned to the word 'proceeding' in Law Lexicon.
8. On the other hand it is contended by Shri Abhyankar that though section is retrospective in operation the saving clause only saves the pending proceedings, instituted under the Act. If the words and expressions used in S. 25 of the Act are read in their context, it is quite clear that it only saves the proceedings which are actually pending in a suit or appeal or other proceedings instituted under the Bombay Rent Act. The proceedings under Article 227 of the Constitution of India are original in nature and are, therefore, independent of the proceedings which could be instituted under the Bombay Rent Act. By the Amending Act a limited protection has been given to the tenant and if the word 'proceeding' is read with the other words and expressions used in section i.e. suit or appeal then the intention of the legislature is clear that the word 'proceeding' is restricted only to the remedies provided by the statute. If the word 'proceeding' is given wider meaning it might include in its import even a review petition or even a Special Leave Petition or appeal pending before the Supreme Court under Art. 136 of the Constitution of India. In support of his contention Shri Abhyankar has placed reliance upon the decisions of the Supreme Court , Mangilal v. Suganchand; Anand Niwas v. Anandji; , Chandavarkar v. Ashalata Guram and the observations at page 99 and 100 of Craies on Statute Law. He has also placed reliance upon the decision of Daud, J. in Civil Appln. No. 5504 of 1987 in Writ Petn. No. 4654 of 1987, R. J, Mehta v. Charandas Meghji decided on 27-1-1988, wherein in the context of S. 12(3) of the Act it was held by Daud, J. that the word 'proceeding' will not enbrace a writ petition, for such petition is not provided by or under the Act. It was also contended by Shri Abhyankar that the decision of Sharad Manohar, J. was challenged by filing a Special Leave Petition in the Supreme Court and the said SLP has been dismissed.
9. It is no doubt true that an appeal was filed before the Supreme Court against the decision of Sharad Manohar, J. bearing Civil Appeal Nos. 2826-27 of 1989, Arjun Khiamal Machijani v. Jamnadas Tuliani decided on 9th May, 1989 and now . From the bare reading of the Supreme Court decision it is quite obvious that the Supreme Court did not examine this aspect of the matter since on the facts the Supreme Court held that the benefit is not available to the tenants therein as the rent had not been paid on demand and/or on the 1st date of hearing.
10. From the bare reading of the amendment introduced in Sec. 15 of the Bombay Rent Act by Maharashtra Act, XVIII of 1987, it is quite clear that the amendment has been given a retrospective effect. The expression used i.e. 'shall be deemed to have been substituted on the 1st day of February 1973' in terms gave retrospective effect to the said provision. We would like to make it clear that in the present case we are concerned with the amendment to Sec. 15 of the Bombay Rent Act alone and not with the amendment to other sections. Further in this case we are only concerned with a case where in fact a writ petition filed under Art. 227 of the Con-
stitution of India was actually pending when Maharashtra Act XVIII of 1987 came into force, and do not propose to consider any wider question. It was not disputed by Shri Abhyankar that the amendment to Section 15 is retrospective in effect. However, it is contended by him that in view of the saving clause since the suit was decided by the trial Court and the appeal was also dismissed by the District Court even prior to the Amending Act and no suit, appeal or proceedings were pending, in any Court of law, it will have to be held that the matter had been finally disposed of before the commencement of the Act. According to him the proceeding instituted under Article 227 of the Constitution of India are not proceedings within the contemplation of Section 25 of the Amending Act. He has gone to the extent of saying that even a revision petition filed under Section 115 of the Code of Civil Procedure is not covered by the expression 'proceeding' used in Section 25 of the Amending Act. We find it difficult to accept this contention of Shri Abhyankar.
11. Shared Manohar J. while construing the provisions of Section 25 of the Amending Act had observed that "No doubt the proceedings contemplated by the explanation to said Section 25 include the proceedings under Section 115 of the Code of Civil Procedure that is to say the revisional proceedings instituted in this Court". Section 115 of the Code of Civil Procedure, provides that the High Court may call for the record of any case which has been decided by any Court subordinate to such a High Court and in which no appeal lies thereto, obviously subject to the limitations enumerated in the said section. It is an admitted position that against the order of district Court in appeal under Section 29 of the Bombay Rent Act, no appeal lies to the High Court. Therefore obviously powers of the High Court under Section 115 of the Code of Civil Procedure could be invoked. As held by the Supreme Court in Shankar R. Abhankar's case , there are two modes of invoking jurisdiction of the High Court, i.e. either under Section 115 of the Code of Civil Procedure and / or under Article 227 of the Constitution of India. The law laid down therein has been further clarified by the Supreme Court in AIR 1986 SC 1780, Indian Oil Corpn. Ltd. v. State of Bihar, which reads as under:
"11. The doctrine of election referred to by the High Court has no application at all to the present situation and the decision in Shankar Ramchandra Abhyankar v. Krishnaji Dattatraya Bapat, is clearly distinguishable. The question that arose in that case was whether a party who had a choice of resorting to one of two remedies before the same Court namely, the High Court, could successively move the High Court under S. 115 of the Civil Procedure Code and again under Arts. 226 and 227 of the Constitution. The question was answered in the negative for the simple reason that the order passed by High Court under the first proceeding would conclude the matter interparties. In such a situation the party had to exercise his choice and elect which remedy he would resort to in the High Court."
Therefore, obviously two modes are available for approaching the High Court against the order passed in appeal by the district Court under Section 29 of the Bombay Rent Act. A revision under Section 115 of the Code of Civil Procedure is a normal remedy provided by the Code of Civil Procedure itself. A writ petition under Article 227 of the Constitution of India is the second mode available to an aggrieved party. Therefore, in our view it will not be fair to hold that the word 'proceeding' as used in Section 25 of the Amending Act, will cover a proceeding instituted under Section 115 of the Code of Civil Procedure but will not include a writ petition filed under Article 227 of the Constitution of India.
12. Shri Divekar learned counsel appearing for the tenant has contended that the word 'proceeding' is of very wide amplitude and it must be construed liberally. In support of his contention that the word 'proceeding' does include 'proceeding in writ petition', he relies upon the decision of the Supreme Court in S.A.L. Narayan Row's case . That was a case under the Indian Income Tax Act, 1922 and the Supreme Court was considering the provisions of Articles 132(1) and 133(1)(c) of the Constitution of India. At page 1823 of the report it is observed by the Supreme Court as under:
"16. On a careful review of the provisions of the Constitution, we are of the opinion that there is no ground for restricting the expression 'civil proceeding' only to those proceedings which arise out of civil suits or proceedings which arc tried as civil suits, nor is there any rational basis for excluding from its purview proceedings instituted and tried in the High Court in exercise of its jurisdiction under Article 226, where the aggrieved party seeks relief against infringement of civil rights by authorities purporting to act in exercise of the powers conferred upon them by revenue statutes. The preliminary objection raised by counsel for the assessee must therefore fail."
Shri Divekar has also placed reliance upon the meaning of word 'proceedings' appearing in the Law Lexicon by R. Ramanatha Aiyer, Reprint Edn. 1987 at page 1022 which reads as under:--
"Proceedings. The word "proceedings" ordinarily relates to forms of law to the modes in which judicial transactions are conducted.
A "proceeding" is defined as the instrument whereby the party injured obtains redress for wrongs committed against him, either in respect to his personal contracts, his person, or property.
A proceeding in a civil action is an act necessary to be done in order to attain a given end. It is prescribed mode of action for carrying into effect a legal right.
In its general acceptation, "proceedings" means the form in which actions are to be brought and defended, the manner of intervening in suits, of conducting them, the mode of deciding them, of opposing judgments and of execution. Ordinary proceedings intend the regular and usual mode of carrying on a suit by due course of common law.
In its general acceptation, a proceeding is an act which is done by the authority or direction of the Court, express or implied; an act necessary to be done in order to attain a given end; a prescribed mode of action for carrying into effect a legal right; performance of an act, wholly distinct from any consideration of an abstract right; the form and manner of conducting judicial business before a Court or judicial officer; regular and orderly progress in form of law; including all possible steps in an action, from its commencement to the execution of judgment see (1903) ILR 26 Mad 589 (FB); (1989) 11 WR 209 (Cal); (1933) 146 Ind Cas 653; AIR 1933 Rang 292; (1904) 1 All LJ 428; (1912) 13 Ind Cas 175 (Mad).
The word 'proceedings' is a very general one; it is not limited to proceedings other than the civil proceedings, and civil proceedings other than suits. When applied to suits, it may be used to mean that suits as a whole or it may be used, and often is used, to express the separate steps taken in the course of a suit the aggregate of which makes up the suit. (1889) 16 Cal 267 ((FB)."
The word 'proceeding' is of wide amplitude. In its wider sense it will include proceedings instituted under Article 227 of the Constitution of India. The proceedings under Article 227 of the Constitution of India are not original proceedings in that sense. It arises out of some decision of the subordinate Courts or tribunal. Under the said Article High Court has power of superintendence over all Courts and tribunals through out the territory in relation to which it exercises jurisdiction. Once the order passed by appellate Court under Section 29 of the Bombay Rent Act is challenged under Article 227 of the Constitution of India, the matter becomes sub-judice. In this case an order passed by the district Court in appeal under Section 29 of the Act is challenged under Article 227 of the Constitution. Therefore, in our view though powers which could be exercised under Section 115 of the Code of Civil Procedure and that of Article 227 of the Constitution, are not wholly comparable, it is not correct to say that for all purposes, the proceedings instituted or filed under Article 227 of the Constitution are original proceedings. Having held that the Legislature wanted to give protection to the tenants by amending Section 15 of the Bombay Rent Act, and that too retrospectively, it will not be fair to hold that at the same time the Legislature wanted to deprive the tenants of the benefit of the amendment though the matter is not finally disposed of before the commencement of the Amending Act and is pending in the High Court under Article 227 of the Constitution. By explanation to Section 25 in terms it is declared by the Legislature that for the purpose of saving clause suit or proceedings as the case may be, shall not be deemed to have been disposed of, if in relation to the suit or proceeding, any appeal or proceeding is pending, or if the period of limitation for preferring an appeal or proceeding, as the case may be, had not expired. The word 'any proceeding' must take in its import 'all the proceedings'. Will it, therefore, be proper to construe the said provisions to mean that though the word of wider import is used by the Legislature, it wanted to restrict its application to the proceedings contemplated by the Bombay Rent Act alone and not under Section 115 of the Code of Civil Procedure or under Article 227, of the Constitution of India. As observed by the full bench of this Court in Shantilal v. N. A. Ranga-swami, 1977 Mah LJ 587, the word 'proceeding' is a very comprehensive term. It is wider than word 'case'. It is also wider than the terms suit, appeal or revision, and has been used in Section 25, in a wider and comprehensive sense.
12A. We are dealing with a beneficial piece of legislation meant for the protection of the tenants. In this context it is worthwhile to note that by Section 15A of the Bombay Rent Act, licensees in occupation on 1st February, 1973 were given a right to become a tenant. This very date was choosen by the Legislature even for the purpose of Sections 14 and 15(2) of the Bombay Rent Act which deals with the sub-tenants. Section 15(2) as amended now reads as under:--
"15(2) The prohibition against the subletting of the whole or any part of the premises which have been let to any tenant, and against the assignment or transfer in any other manner of the interest of the tenant therein, contained in sub-section (1), shall, subject to the provisions of this sub-section, be deemed to have had no effect before the 1st day of February, 1973 in any area in which this Act was in operation before such commencement; and accordingly, notwithstanding anything contained in any contract or in the judgment, decree or order of a Court, any such sub-lease; assignment or Transfer of any such purported sub-lease, assignment or transfer in favour of any person who has entered into possession, despite the prohibition in sub-section (1), as purported sub-lessee, assignee or transferee and has continued in a possession on the date aforesaid, shall be deemed to be valid and effectual for all purposes, and any tenant who has sub-let any premises or part thereof, assigned or transferred any interest therein, shall not be liable to eviction under clause (e) of sub-section (I) of Section 13.
The provision aforesaid of this sub-section shall not affect in any manner the operation of sub-section (1) after the date aforesaid."
13. It is pertinent to note that a non-obstante clause is used in the section to give an overriding effect over any contract or judgment, decree or order of the Court. In these circumstances it will not be fair to give restricted meaning to the word 'proceeding' and to curtail the protection sought to be given by the legislature to the sub-tenants. In this context Shri Divekar has rightly placed reliance upon the decision of the Supreme Court in , Shiva Rao H. v. Cecilia Pareira and particularly on the following observations:
"5. It has to be borne in mind that Rent Control legislation are beneficial to the tenant and restrictive of the rights of the landlords --these legislations were passed to meet the problem of shortage of accommodation in cities and towns. Whether that is the best way to meet the problem of finding habitats for growing number of people is another issue. Whether or not the problem could not be met by another way is also another question. Courts must find out the liberal meaning of the expressing in the task of construction. In doing so if the expressions are ambiguous then the construction that fulfils the object of the legislation must provide the key to the meaning. Courts must not make a mockery of legislation and should take a constructive approach to fulfil the purpose and for that purpose, if necessary, iron out the creases".
Further as observed by the Supreme Court in Mohd. Shafi v. VII Addl. Dist. and Sessions Judge; Allahabad, . In a legislation which is intended to protect the tenant against unreasonable eviction, it must be construed strictly against the landlords so as to cut as little as possible into the protection afforded to the tenant. If the language of explanation is susceptible of two interpretations, we should prefer that which enlarges the protection of the tenant, rather than that which restricts it.
14. Therefore, if the word proceeding as used in Section 25 of the Amending Act is construed with the object of the legislation, in our view a liberal construction will have to be put on the said word and so construed it will include in its import even the proceeding instituted under Article 227 of the Constitution of India and actually pending when the Amending Act came into force. If this is so, then obviously it cannot be said that the matter was finally disposed of before the commencement of the Amending Act. It is no doubt true that the latter part of the explanation, i.e. or, if the period of limitation for preferring an appeal or proceeding, as the case may be, had not expired before the commencement of this Act', was relied upon by Shri Abhyankar in support of his contention that this clearly indicates that the word 'proceeding' wilt take in its import only those proceedings for which a period of limitation has been prescribed. It is not possible for us to accept this contention. The last part of the explanation begins with the word 'or'. If a period of limitation is prescribed for a proceeding, then till that period expires, the proceeding has to be considered as pending in view of the explanation. But from this an inference cannot be drawn that proceedings for which no period of limitation is prescribed are left out. In the present case writ petition was filed on 13th of April, 1981, that is, even before the expiry of thirty days, from the date of appellate order. In this context Shri Divekar has drawn our attention towards the decision of the Supreme Court , Lata Kamat v. Vilas Bhalchandra and has contended that even for computing the period of limitation, the other provisions of the Limitation Act will have to be taken into consideration. Under Article 227 of the Constitution, though no period of limitation is prescribed, petition has to be filed without any undue and unreasonable delay. In our view, only because a reference is made to the period of limitation it cannot be held that the proceedings referred to in Section 25 are only those proceedings for which a period of limitation is prescribed. As already observed the Rent Control Legislation is a beneficial piece of legisiation, meant for the protection of tenants and for restricting the rights of the landlords. The legislature wanted to regularise sub-letting which took place before the 1st day of February, 1973. The proceedings commenced by a suit for eviction of a tenant do not come to an end on the decision of the appeal or revision filed under the Bombay Rent Act. These decisions are liable to be challenged in the High Court either under Section 115 of the Code of Civil Procedure or under the supervisory jurisdiction of the High Court under Article 227 of the Constitution of India, and, therefore, if the said proceedings were actually pending, on the date of commencement of the Bombay Rent Act, then it cannot be said that the case has been finally disposed of before the commencement of the Amending Act. In the view which we have taken, it is not necessary to make a detailed reference to the various decisions cited before us.
15. In the present case, it is an admitted position that the writ petition was actually pending when the Maharashtra Act XVIII of 1987 came into force. It is also pertinent to note that Guttal J. had called for a finding from the Courts below vide order dt. 29th February, 1988. A finding is also recorded that sub-tenancy was created prior to 1st February, 1973. Therefore, obviously the petitioner-tenant will be entitled to the benefits of the Amending Act. In the view which we have taken, we answer the question referred to us in affirmative.
15. Since in the present case premises were sub-let by the petitioner-tenant prior to 1st February, 1973, this writ petition will have to be allowed and the judgment and decrees for eviction as passed by the Courts below will have to be set aside. As a necessary consequences of this, suit filed by the respondent-landlord for eviction of the tenant will have to be dismissed. Hence Rule is made absolute and the judgment and decree for eviction as passed by the trial Court and confirmed in appeal by the district Court stands set aside.
However, in the circumstances of the case, there will be no order as to costs.
16. Rule made absolute.