Karnataka High Court
Smt Madhurama Since Decd By Her Lrs vs Sri Shashidhara Sindigi on 1 August, 2012
Bench: N.Kumar, H.S.Kempanna
1
® IN THE HIGH COURT OF KARNATAKA CIRCUIT
BENCH AT DHARWAD
Dated this the 1st day of August 2012
Present
THE HON'BLE MR.JUSTICE N.KUMAR
AND
THE HON'BLE MR.JUSTICE H.S.KEMPANNA
H.R.R.P. No.169 of 2008
BETWEEN:
Smt. Madhurama
Since deceased by her LRs
1. Sri. C Vasudeva
S/o. late C Venkobachar,
Age: 54 Years,
R/at Door No.85 (38),
Ward No.XVI, Sindigi Compound,
Mubarak Talkies Road,
Bellary
2. Sri. C Shamachar
S/o. late C Venkobachar,
Age: 52 Years,
R/at Door No.85 (38),
Ward No.XVI, Sindigi Compound,
Mubarak Talkies Road,
Bellary
2
3. Sri. C Krishna Mruthy
S/o. late C Venkobachar,
Age: 48 Years,
R/at Door No.85 (38),
Ward No.XVI,
Sindigi Compound,
Mubarak Talkies Road,
Bellary ...Petitioners
(By Sri. V.P Kulkarni, Advocate)
AND:
Sri. Shashidhara Sindigi
S/o. late Sri. Sindigi Gavishiddhappa
Age: 58 Years
R/at T.B Dam
Hospet Taluk
Bellary District ...Respondent
(By Smt. V Vidya Iyer, Advocate)
This petition is filed under Section 115 of CPC,
against the order dated 28.05.2008 passed in HRCR
No.9/2006 on the file of the Prl. District Judge, Bellary,
allowing the revision petition and setting aside the order
dated 12.10.2006 passed in HRC No.23/2000 on the file of
the III Addl. Civil Judge, (Jr.Dn.), Bellary, allowing the
petition filed under Section 21(1)(j) of KRC Act, 1961 is
considered under Section 27(2)(e) and (f) and Section 30
and 32 of KR Act for eviction.
This petition coming on for admission this day,
N.KUMAR, J, made the following:
3
ORDER
In pursuance of an order dated 06.11.2008 passed by the learned single Judge of this Court under Section 8 of the Karnataka High Court Act, 1961, this revision petition is placed before us to resolve the conflict in the judgments of this Court in Shahwar Basheer and Others Vs. Veena Mohan and Others (ILR 2003 KAR 4732) and Kiran Bai and Others Vs. K.V.Jayachandra Setty and Others (ILR 2006 KAR 212) in the interpretation of Section 5 of the Karnataka Rent Act, 1999.
2. Facts in brief are:-
(a) The respondent herein is the owner of house bearing Door No.85(38) Ward No.16, situated in Sindagi compound, Bellary, measuring 31' east-west and 18' north-
south. The deceased petitioner-Smt.Madhuramma was in occupation of the suit premises as a tenant. Respondent filed an eviction petition under Section 21(1)(j) of the 4 Karnataka Rent Control Act, 1961 (for short hereinafter referred to as the 'repealed Act') for eviction of the tenant on 23.06.2000. On 04.08.2001, tenant Smt. Madhurama died. On her death, her three sons were brought on record as her legal representatives. It is they who filed the statement of objections to the eviction petition on 17.06.2003 and contested the proceedings. In the meanwhile, Karnataka Rent Control Act, 1961, was repealed and the Karnataka Rent Act, 1999 (hereinafter referred to as 'the Act' for short) was enacted by the Karnataka Legislature. It came into force from 31st day of December 2001. The eviction petition was amended by raising additional grounds under Section 27(2) and (7) of the Act. On 04.09.2006, recording of evidence was completed. After hearing the arguments, on 12.10.2006, an order came to be passed allowing the eviction petition under Section 21(1)(j) of the Karnataka Rent Control Act, 1961 and also under Section 27(2)(e) and
(f) and Sections 30 and 32 of Karnataka Rent Act, 1999. 5
(b) Aggrieved by the same, the petitioners herein preferred HRC revision No.9/2006 before the Principal District Judge, Bellary. The learned District Judge set aside the order of eviction passed by the Trial Court, but, invoking Section 5 of the Act, the revision petitioners were directed to hand over the vacant possession of the schedule premises to the respondent herein within one month from the date of the order. Aggrieved by this portion of the order directing eviction under Section 5 of the Act, the tenant has preferred this revision petition to this Court.
3. The petitioners contend that the Act is prospective in operation. Section 5 of the Act is attracted only when the tenant under the Act dies after coming into force of the Act. It has no application to a tenant under the repealed Act dying before the commencement of the Act. Therefore, when the learned District Judge has set aside the order of eviction passed by the Trial Court, he had no jurisdiction to direct the petitioners - the tenants of the 6 schedule premises to hand over the vacant possession of the schedule premises, under Section 5 of the Act. Therefore, the said order is illegal and liable to be set aside.
4. When this matter was listed before the learned single Judge, the learned counsel appearing for the parties brought to his notice two judgments of this Court rendered by learned single Judges who have taken divergent views insofar as application of Section 5 of the Act is concerned to the case where the tenant has died prior to the coming into force of the Act. It is in this background, the learned single Judge has referred the matter to this Bench to resolve the conflict.
5. The first judgment in which Section 5 of the Act came to be interpreted by this Court is Shahawar Basheer & Ors. Vs. Veena Mohan & Ors. reported in ILR 2003 KAR 4732. In the said judgment rendered by Justice A.V.Srinivasa Reddy, after referring to Section 5 of the Act 7 and Section 70 of the Act which deals with repeals and savings, in particular, clause (b) of sub-section (2) of Section 70, it was held as under:
"5. The present Act though prospective in nature enjoins on the Court under Section 70(2)(b) that all cases and proceedings pending at the commencement of this Act before the Court, shall be continued and disposed off by the Court in accordance with the provisions of the Act. The Karnataka Rent Control Act, 1961 is repealed in toto under sub-section (1) and under Section 70(2)(b) of the Act a mandate is given to the Court to decide all cases pending consideration at the commencement of the Act in accordance with the provisions of the Act. Thus, though the present Act is prospective in nature the provisions are made retroactive in application in respect of all pending cases and proceedings. As these are cases and proceedings pending at the commencement of the Act, the provisions of the present Act would have to be applied in order to decide the issue involved in them."8
"8. The present statute provides new remedies for enforcement of an existing right and therefore will apply to future as well as past causes of action and applying these provisions to past causes of action would not by itself render the statute retrospective in nature."
"9. Therefore, the aspect whether the statute (the present Act) providing for new rights was in force at the time the eviction suit came to be decided becomes irrelevant for applying these provisions to a past cause of action. So long as the matter is pending in appeal or revision which are steps in a series of proceedings, all intrinsically connected with each other in the sole pursuit of legal remedy, a law that is made applicable to all pending proceedings would have retrospective applicability though the statute is given only prospective effect. This issue is settled by the decision of the Division Bench of this Court reported in M/S. MERCURY PRESS v. AMEEN SHACOOR wherein the Division Bench laid down the manner in which pending cases and proceedings under the Old Act, in regard to a premises to which the New Act applies, have to be dealt with after the 9 coming into force of the present Act. The relevant observations of the Division Bench in this regard read:
"B) PENDING CASES AND PROCEEDINGS UNDER THE OLD ACT. IN REGARD TO A PREMISES TO WHICH THE NEW ACT APPLIES:
If any case or proceedings (other than execution proceedings) initiated under the Old Act is pending in regard to a premises to which the new Act applies, such case or proceedings either original or appellate or revisional, shall have to be continued and disposed of in accordance with the provisions of the New Act, though they were initiated under the Old Act."
The argument advanced on behalf of the respondents-successors that the provisions of the present Act cannot be applied as the rights of the parties to the litigation stand crystallized on the date of the commencement of the lis and have to be determined by reference to the law applicable on that day has, therefore, to be discarded."
"15. xxxxxxxxxxxxxxxxxxxxxxxxx The present Act does not recognise the right of the successors to continue in possession after the 10 expiry of the period of inheritance to which they are entitled to under Section 5. The simple and unambiguous language in which Section 5 is coined while derecognising the occupants of the tenanted premises after the stipulated period as tenants, simultaneously provides the landlord has the right to recover possession of the premises without the need to prove the requirement of the premises by him and without imposing on him the necessity to resort to the long legal process with its slow motion mood. This underlines the intention of the legislature to break loose the landlord from the shackles of unlimited inheritance of the tenancy by persons in occupation of the premises after the death of the tenant. If we break down Section 5 to its basis components it becomes obvious that it creates a new right to recover possession of the premises in occupation of the successors of the deceased tenant while at the same time taking away the right of the successors to the tenancy to continue in occupation. This right of the landlord to the benefit of immediate possession of the premises in indisputable, indefensible and free from the obligations cast on the landlord 11 under Section 27 of the Act. This new right cannot be denied to the landlord and nor could the legal representatives escape the legal consequences flowing from the operation of Section 5 because that would amount to rendering the legislation futile and it is a well- settled law that legislative futility should be ruled out so long as interpretative possibility permits. Guided by this object oriented approach of the legislature in enacting Section 5, I reject the extreme positions urged before me by the learned Counsel for the LRs of tenant. The wisdom of legislature in framing Section 5 has to be respected by the Courts because though it is ultimately for the Court to pronounce, the framers of the law who are more familiar with the work-a-day world are not too inexpert or incompetent to make decisions, however far- reaching they may be. The Apex Court and several High Courts have often sounded the need in various decisions for a legal instrumentality which delivers justice with finality and fullness in rental matters and the present Act is programmed for such a constructive change."12
6. The same learned Judge in the case of Taradevi and Another Vs. Sakku Bai and Another reported in 2003(1) KCCR 714, interpreting Section 3(n) which defines the term 'tenant' under the Act held as under:
"3. xxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxx The definition clearly eschews from its ambit the legal representatives of the deceased tenant. A legal representative of the deceased person would not be a person by whom or on whose account or behalf the rent of any premises is payable because there is no privity of contract of tenancy between the landlord and the legal representatives of tenant. As the privity of contract was only between the landlord and the original tenant, any rent paid by the legal representatives of the deceased after the demise of the original tenant would be on account of the original tenant or on his behalf and not on their own behalf. If the meaning assigned to a tenant under the old Act has to be extended to persons who inherited the tenancy before the coming into 13 force of the Act, then Section 5 would be rendered redundant and meaningless for, in that event Section 5 could be enforced only five years after the death of every one of the legal representatives of the original tenant because if they are all to be treated as tenants under the new Act, the tenancy would devolve in favour of all their successors. That could not have been the intention of the Legislature while narrowing down the meaning given to the term "tenant".
The intention becomes clear and all the more obvious if we notice that the Legislature after giving a truncated meaning to the term, 'tenant' than what was provided in the repealed Act, has followed it up by introducing Section 5 which deals with the right of the successors on the death of the tenant and Section 5 clearly states who the successors are. The persons named in Section 5 as successors covers the spouse, children, parents and daughter-in-law being the widow of his predeceased son.
Therefore, the respondents who could claim to be ten- ants in their own right prior to the coming into force of the Act, cannot, after the coming into force of the Act, lay claim to the said status. 14 Though the Act has been given only prospective effect, all pending proceedings have to be continued and disposed off in accordance with the provisions of Section 70(2)(b) of the Act. Therefore, while examining the question whether or not Section 5 is applicable in a given case the definition of the term 'tenant' as defined by the Act would alone have a bearing on all pending matters. The original tenant in the present case having died more than 5 years ago, the maximum period to which a successor of the original tenant can succeed to the right of tenancy having already elapsed, Section 5 of the Act is applicable to the present case."
"4. The question then arises whether the statutory right of tenancy that accrued to the legal representatives of the deceased original tenant under the superseded enactment can be taken away as the repeal of a law is operative for future and it ought not to affect action already taken and the legal consequences of such action. The revision in this Court is a pending proceeding. The only difference between a suit and a revision is that a revision only reviews and corrects the proceedings in a 15 cause already constituted but does not create a new cause. The revision proceeding is a part of the cause because the order that emerges from the revision will become the final order determining the rights of the parties.
xxxxxxxxxxxxxxxx xxxxxxxxxxx xxxxxxxxxxxxxxxxxx. When Section 70(2)(b)
mandates that all pending proceedings, which would include the revision also, shall be continued and disposed off in accordance with the provisions of the Act, the retrospective operation of Sections 3(n) and Section 5 of the Act has to be inferred and a party affected cannot escape from this conclusion by merely harping on the fact that the Act has been given only prospective effect. Section 70(2)(b) of the Act stipulates that all cases and proceedings other than those referred to in Clause (a) shall be continued and disposed off in accordance with the provisions of 'this Act'. Therefore, the saving clause is only in respect of proceedings pending in execution of any decree or order passed under the repealed Act. Thus, all proceedings barring those which had already reached the stage of execution would have to be continued in 16 accordance with the Act and not in accordance with the repealed Act. The Act while obliterating the old Act from the statute books as completely as if it had never been passed barring for the proceedings in execution of any decree of order passed under the repealed Act and pending at the commencement of the Act, under Clause (b) it has clearly expressed its intention to affect the right, privilege, obligation or liability acquired, accrued or incurred under the old Act by subjecting them to investigation under the provisions of the present Act, in all cases where the proceedings are pending. I have come to the conclusion that when a matter is pending in revision it is to be deemed as a pending proceeding as the cause does not change. It would be no different in a matter pending under Section 115 of the CPC in this Court because the reference in Section 70(2)(b) is to 'all cases and proceedings' in respect of the premises to which the present Act applies. The reference clearly is to the premises to which the Act applies and not to the 'proceedings under the Act'. There can be no dispute in the present case that the present Act applies to the petition premises. If we apply 17 Section 5 to the present proceedings, the inescapable conclusion is that the right of tenancy that had accrued to the legal representatives under the old Act is limited by Section 5 to five years from the date of death of tenant. Section 5 has been given retrospective effect by operation of the statutory stipulation contained in Section 70(2)(b) of the present Act. Therefore, the petitioner in this revision has to succeed under Section 5 of the present Act."
7. The same learned Judge again in the case of Smt. K.S.NAGAMMA vs Mrs M.P.MANEKSHAH [ILR 2004 KAR 2309] has held as under : -
"9. After the coming into force of Section 5 of the Act, it becomes necessary for the legal representative of the respondent who wants to come on record on the death of the original tenant to establish that the right of inheritance of the tenancy enures to him and, therefore, he could be evicted from the petition premises only on the grounds specified in Section 27 or Section 28 to 31 of the present Act and not otherwise. If 18 on interpretation of Section 5 this Court comes to the conclusion that the respondent has not inherited tenancy, then there is no need for this Court to examine the legality and correctness of the impugned order. Therefore, let me now first consider whether the right of tenancy accrued to the present occupant of the premises. Section 5 of the Act provides a new substantive remedy to a landlord in case of death of a tenant. Section 5 prescribes the right of inheritance only to a specified class of persons and limits this inheritance to various periods depending upon certain factors which have been prescribed in the provision. This subsequent development in law is relevant in adjudging a claim for eviction made by the petitioner. In so adjudging the claim under Section 5, in circumstances such as the one obtaining in the present case, what is required of the Court is to examine whether the person who is staying over in the premises after the death of tenant is entitled to continue to remain in possession of the premises in his capacity as 'tenant' and whether the right of inheritance of tenancy accrues to him after the death of the tenant. Where such right is 19 rendered inheritable, in law, his induction in the petition premises by the tenant prior to her death and his continuing in occupation as the representative of the tenant would not come to his aid in resisting a petition filed for eviction. Section 5 provides a new substantive remedy and the landlord even if he had suffered a negative finding in so far as his claim for self- occupation on the grounds hitherto available to him under the repealed Act can still seek relief under Section 5, if it enures to his benefit. Because there is no consideration of the material on record with reference to the altered law that governs the field now, this Court sitting in revision can adjudicate the matter in terms of the altered law as subsequent developments and altered circumstances are always at relevant all stages of the proceedings. Admittedly, the tenant died on 6.5.2003 during the pendency of the revision leaving behind her two daughters and one son, none of whom was residing with her in the petition premises. The brother-in-law of one of the daughters of the deceased tenant was residing with her in the petition premises. Under Section 5 of the Act the 20 right of tenancy devolves on the spouse, son or daughter or both of them, parents and daughter- in-law being the widow of the predeceased son and not on any other person. The brother-in-law of one of the daughters of the tenant though ordinarily lived with the respondent-tenant, the right of tenancy does not devolve on him. It has come on record that none of the daughters or the son ever resided with the tenant in the petition premises. The contract of tenancy coming to a close on the death of the tenant, in the absence of any other person who could rightfully inherit the tenancy under Section 5, the petitioner- landlord would be entitled to an order of eviction without reference to or without the need to establish any other ground under which she may have sought for her eviction. This being the position that obtains in law the petitioner is entitled to recover possession of the petition premises and the Court is bound to pass an order for such recovery without going into the question whether or not the petitioner has established her requirement of the premises."21
8. However, Justice K.Bhaktavatsala did not agree with the said interpretation. Therefore, in the case of Kiran Bai and Others Vs. K.Jayachandra Shetty & Others reported in ILR 2006 KAR 212, interpreting Section 5 of the Act, the learned Judge held as under:
"7. xxxxxxxxxxxxxxxxxxxxxxxxxx xxxxx xxxxxx The language employed in Section 5(1) that "in the event of death of a tenant" indicates that it does not provide for retrospective effect. In other words it says that in the event of death of a tenant, the right of tenancy shall devolve for a period of 5 years from the date of death of the tenant to his successors in the order of (a) spouse; (b) son or daughter or where there are both son and daughter both of them, (c) parents and (d) daughter-in-law being the widow of his predeceased son subject to provisos. Thus, it regulates the tenancy in the event of death of a tenant. Section 5 of the New Rent Act does not provide for eviction of a tenant. As a matter of fact, Sections 27 to 46 under Chapter-VI deals regarding regulation of eviction. Section 27 of the New Rent Act provides protection to the tenants 22 against eviction except in the prescribed manner; whereas Sections 28, 29, 30 and 31 confers special right on certain landlords/ persons to recover immediate possession of the tenanted premises. None of these Sections viz., 27 to 31 refer to Section 5 of the New Rent Act. I have gone through the decisions reported in Shahwar Basheer's Case (Supra) and Smt. K.S. Nagamma v. Mrs. M.P. Manekshah Case (Supra). In these cases, the Learned Judge of this Court has given retrospective effect to Sections of the new rent Act. The Learned Single Judge of this Court has not considered the right of the L.Rs. of the tenant under the old rent act, which was in force when the tenant died. In my opinion retrospective effect cannot be given to Section 5 of the Act in the absence of provision to that effect. Therefore, in my opinion, with great respect to the learned Single Judge, the view taken by him in the decisions reported in Smt. K.S. Nagamma v. Mrs. M.P. Manekshah (Supra) and Shahwar Basheer and Ors. v. Veena Mohan and Ors. is not correct. Further, a tenant cannot be evicted solely on the basis of Section 5 of the New Rent Act, except following the procedure 23 provided in Chapter VI of the New Rent Act.
Therefore, the impugned order is not sustainable in the eye of law."
9. Therefore, there is complete divergence of opinion by these two learned Judges in interpreting Section 5 of the Act and, in particular, applying the said section to the legal representatives of a deceased tenant who died prior to the commencement of the Act.
10. The Karnataka Rent Control Act, 1961, was enacted to provide for control of rents and evictions, for the leasing of buildings, to control rates of hotels and lodging houses and for certain other matters in the State of Karnataka. Keeping the aforesaid object in mind, the word 'tenant' under the repealed Act has been defined under Section 3(r), which reads as under:
"Tenant" means any person by whom or on whose account rent is payable for a premises 24 and includes the surviving spouse or any son or daughter or father or mother of a deceased tenant who had been living with the tenant in the premises as a member of the tenant's family up to the death of the tenant and a person continuing in possession after the termination of the tenancy in his favour, but does not include a person placed in occupation of a premises by its tenant or a person to whom the collection of rents or fees in a public market, cart-stand or slaughter house or of rents for shops has been framed out or leased by a local authority"
11. A reading of the aforesaid provisions makes it clear that it is an inclusive definition. Any person by whom or on whose account rent is payable for a premises is treated as a tenant under the aforesaid definition. If the tenant of the premises dies, the protection given under the Act is extended to his surviving spouse or any son or daughter or father or mother of a deceased tenant who had been living as a tenant in the premises as member of the tenant's family upto the death of the tenant. Therefore, by 25 operation of law, on the death of a tenant, the aforesaid relatives became tenants of the premises and the benefit of this piece of social legislation was extended to all of them subject to their satisfying the conditions stipulated therein. In other words, the tenancy rights vested with those relatives on the death of the original tenant. After the repeal of the said Act, the Act came to be enacted providing for regulation of rent and eviction of buildings, in certain areas of the State of Karnataka and for the matters connected therewith or incidental thereto. Therefore, the shift is from control to regulation. In that context, the 'tenant' under the Act is defined under Section 3(n) of the Act which reads as under:
"Tenant" means any person by whom or on whose account or behalf the rent of any premises, is or but for a special contract would be, payable, and includes,-
(i) a sub-tenant;26
(ii) any person continuing in possession after the termination of his tenancy, but does not include any person to whom a licence as defined in section 52 of the Indian Easements Act, 1882 (Central Act 5 of 1882) has been granted."
12. A comparison of the definition of the word 'tenant under the repealed Act and under the new Act is glaring. While under the old Act, 'tenant' includes the surviving spouse or any son or daughter or father or mother of the deceased tenant, under the new Act all of them are excluded in the definition clause. In other words, the Legislature did not vest with the aforesaid relatives the status of a tenant as was the case under the earlier Act. However, after the coming into force of the new Act, if these relatives lived with the deceased tenant, their interest is protected to a limited extent as defined under Section 5 of the Act. Section 5 of the Act reads as under: 27
"5. Inheritability of tenancy.- (1) In the event of death of a tenant, the right of tenancy shall devolve for a period of five years from the date of his death to his successors in the following order, namely:-
(a) spouse;
(b) son or daughter or where there are both son and daughter both of them;
(c) parents;
(d) daughter-in-law, being the widow of his pre-deceased son:
Provided that the successor has ordinarily been living or carrying on business in the premises with the deceased tenant as a member of his family up to the date of his death and was dependent on the deceased tenant:
Provided further that a right to tenancy shall not devolve upon a successor in case such successor or his spouse or any of his dependent son or daughter is owning or occupying a premises in the local area in relation to the premises let.28
(2) If a person, being a successor mentioned in sub-section (1), was ordinarily living in or carrying on business in the premises with the deceased tenant but was not dependent on him on the date of his death, or he or his spouse or any of his dependent son or daughter is owning or occupying a premises in the local area in relation to the premises let to which this Act applies such successor shall acquire a right to continue in possession as a tenant for a limited period of one year from the date of death of the tenant; and, on the expiry of that period, or on his death, whichever is earlier, the right of such successor to continue in possession of the premises shall become extinguished.
Explanation.- For the removal of doubts, it is hereby declared that,-
(a) where, by reason of sub-section (2), the right of any successor to continue in possession of the premises becomes extinguished, such extinguishment shall not affect the right of any other successor of the same category to continue in possession of the premises but if there is no 29 other successor of the same category, the right to continue in possession of the premises shall not, on such extinguishment, pass on to any other successor specified in any lower category or categories, as the case may be;
(b) the right of every successor, referred to in sub-section (1) to continue in possession of the premises shall be personal to him and shall not, on the death of such successor, devolve on any of his heirs."
13. As is clear from the aforesaid provision, in the event of death of a tenant, their right of tenancy shall devolve on the spouse, sons and daughters, parents, daughter-in-law for a period of five years from the date of his death to his successors. Though tenancy right was made heritable, the aforesaid family members were not conferred the status of a tenant. The said Section elaborately provides for protection of the tenancy rights of such successors subject to their fulfilling various 30 conditions stipulated in the said section. They are protected depending upon the facts of the case either for a period of 5 years or for a period of only one year, but they are not given the status of tenant. It is in this context, if a tenant has died prior to the coming into force of the new Act and his legal representatives are brought on record by virtue of their acquiring "status of a tenant" under the old Act, is that status of a tenant under the repealed Act taken away under the new Act and their right is restricted to only five years or only for one year as contemplated in Section 5 of the Act?
14. The learned Judge in Shahwar Basheer's case was of the view that Section 5 of the new Act though prospective in nature, it being made applicable to all pending matter, manifests its intention to affect the vested rights and corresponding obligations of parties whose petition and appeals are pending before Court at various stages of the judicial process. This expression of the 31 legislature's intent to affect the vested rights and corresponding obligations of the parties by bringing into focus the provisions of the present Act in determining the issues involved, is amply clear from the certain or sure language employed in Section 79(2)(b) of the present Act. The present statute provides new remedies for enforcement of an existing right and therefore will apply to future as well as past causes of action and applying these provisions to past causes of action would not by itself render the statute retrospective in nature
15. After referring to the judgment of the Division Bench of this Court in M/s MERCURY PRESS vs AMEEN SHACOOR [ILR 2002 KAR 2304] he held that the argument advanced on behalf of the respondents- successors that the provisions of the present Act cannot be applied as the rights of the parties to the litigation stand crystallized on the date of the commencement of the lis and 32 have to be determined by reference to the law applicable on that day has, therefore, to be discarded.
16. Referring to the definition of 'tenant' as defined under Section 3(n) of the new Act, he held that it is a truncated version of the definition of the said term as found in the repealed Act as it takes out from its ambit, 'the surviving spouse or any son or daughter or father or mother of a deceased tenant who had been living with the tenant in the premises as a member of the tenant's family up to the death of the tenant.' The privity of contract of lease is between the landlord and the tenant and the rent is payable by the tenant with whom the landlord has entered into a contract of tenancy. When the tenant who entered into a contract of lease with the landlord dies leaving behind him his family members who may continue in occupation of the leased premises, any rents paid by them would be a payment made on behalf of the deceased tenant and not on their own behalf because, strictly speaking, 33 there is no privity of contract between them and the landlord. These persons cannot be construed as the persons by whom or on whose behalf or on whose account the rent of the premises is payable. If such a construction has to be given to the definition of the expression 'tenant' then it could be claimed by each and every one of the family members in occupation of the premises after the demise of the tenant, that each one of them and all of them put together are tenants in their own right and that the rent that was paid subsequent to the death of the tenant was paid by them all in their capacity as tenants or by any one of them on behalf of all of them and that Section 5 would become operative only after the death of all the persons presently in occupation. Such an interpretation of the term would render Section 5 of the Act futile and meaningless. The truncated version of the expression 'tenant' as found in Section 3(n) of the present Act gains further emphasis when we come to Section 5 which deals with inheritance of the tenancy. These persons inherit tenancy under Section 5 for 34 a limited period under the present Act. By shifting them from the status of full-fledged tenants that they hitherto enjoyed under the repealed Act to the status of successors or inheritors of tenancy, the present Act limits their right to continue in occupation. After the expiry of the period of inheritance they cannot be treated on par with the tenants who have recourse to Section 27 of the Act in defending a claim of the landlord for self-occupation and their right to continue in possession has to be construed purely with reference to Section 5 of the present Act.
17. Then he proceeded to hold that, when Section 70(2)(b) mandates that all pending proceedings, which would include the revision also, shall be continued and disposed off in accordance with the provisions of the Act, the retrospective operation of Section 3(n) and Section 5 of the Act has to be inferred and a party affected cannot escape from this conclusion by merely harping on the fact that the Act has been given only prospective effect. Section 35 70(2)(b) of the Act stipulates that all cases and proceedings other than those referred to in clause (a) shall be continued and disposed off in accordance with the provisions of 'this Act'. It may be an axiomatic rule that the validity of an order passed by a statutory functionary based on certain grounds with reference to the law as it then prevailed has to be judged by the Court sitting in revision only with reference to the law as it prevailed at that time. But this rule will hold good only so long as the intent of the legislature as it find expression in the statute does not indicate otherwise. If there is a clear indication in the statutory provisions governing the case that this rule has to be given a go-by and the matter determined in accordance with a new set of provisions enacted with a specific intent and object, then there would be no gain-say in arguing that since the orders impugned are in accordance with the law that governed the case at the time when its was decided, that the Court should refrain from interfering with it even if it is not in accordance with the present law. Such an 36 argument, if accepted, would defeat the very object behind the enactment of Section 5. By enacting Section 70 in the present Act, the legislature has expressed its intent in no uncertain terms under clause (b) of Sub Section 2 of Section 70 that all pending matters shall be continued and disposed off in accordance with the provisions of the present Act.
18. It is in this background we have to look at the repealing provision contained in the new Act. Section 70 deals with repeal and savings. It reads as under :-
"70. Repeal and Savings - (1) The Karnataka Rent Control Act, 1961 (Karnataka Act 32 of 1961) is hereby repealed.
(2) Notwithstanding such repeal and subject to the provisions of Section 69. -
(a) all proceedings in execution of any decree or order passed under the repealed Act, and pending at the commencement of this Act, in any Court shall be continued and disposed off by 37 such Court as if the said enactment had not been repealed;
(b) all cases and proceedings other than those referred to in clause (a) pending at the commencement of this Act before the Controller, Deputy Commissioner, Divisional Commissioner Court, District Judge or the High Court or other authority, as the case may be in respect of the premises to which this Act applies shall be continued and disposed off by such Controller, Deputy Commissioner, Divisional Commissioner, Court, District Judge or the High Court or other authority in accordance with the provisions of this Act.
(c) All other case and proceedings pending in respect of premises to which this Act does not apply shall as from the date of commencement of the act stand abated.
3. Except as otherwise provided in Section 69 and in sub-Section (2) of this section, provisions of Section 6 of the Karnataka General Clauses Act, 1899 (Karnataka Act III of 1899), shall so far as may be applicable in respect of 38 repeal of the said enactment, and Section 8 and 24 of the said Act shall be applicable as if the said enactment had been repealed and re-
enacted by this Act".
19. Clause (b) of Sub-Section (2) of Section 70 makes it clear all cases and proceedings other than referred to in clause (a) pending at the commencement of this Act shall be continued and disposed off in accordance with the provisions of this Act. Sub-section (3) makes it clear, except as otherwise provided in Section 69 and sub-section (2) of Section 6, provisions of Section 6 of the Karnataka General Clauses Act, 1899 (Karnataka Act No.III/1899), shall so far as may be applicable in respect of repeal of the said enactment and Sections 8 and 24 of the said Act shall be applicable as if the said enactment had been repealed and re-enacted by this Act.
39
20. Therefore, Section 6 of the Karnataka General Clauses Act is made applicable in respect of the repealed old Act. It reads as under: -
"6. Effect of repeal. - Where this Act or [any Mysore Act or Karnataka Act] made after the commencement of this Act repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not -
(a) revive anything not in force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, 40 privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;
and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.
21. Section 6 of the Karnataka General Clauses Act applies to all types of repeals. The section applies whether the repeal be express or implied, entire or partial or whether it be repeal simpliciter or repeal accompanied by fresh legislation. The effect of clauses (c) to (e) of section 6 of the Karnataka General Clauses Act is, speaking briefly, to prevent the obliteration of a statute in spite of its repeal to keep intact rights acquired or accrued and liabilities incurred during its operation and permit continuance or institution of any legal proceedings or recourse to any remedy which may have been available before the repeal for enforcement of such rights and liabilities. 'Any 41 investigation, legal proceeding or remedy' saved by clause
(e) is only in respect of any right and privilege 'acquired' or 'accrued' and any obligations, liability, penalty, forfeiture or punishment 'incurred' within the ambit of clauses (c) and
(d) of section 6. The saving of rights and liabilities is in respect of those rights and liabilities which were acquired or incurred under a repealed statute and not under the general law which is modified by a statute.
22. The distinction between what is, and what is not a right preserved by the provisions of section 6, General Clauses Act is often one of great fineness. What is unaffected by the repeal of a statute is a right acquired or accrued under it and not a mere hope or expectation of, or liberty to apply for, acquiring a right. A distinction is drawn between a legal proceedings for enforcing a right acquired or accrued and a legal proceedings for acquisition of a right. The former is saved whereas the latter is not. The question whether a right was acquired or a liability incurred under a 42 statute before its repeal will in each case depend on the construction of the statute and the facts of the particular case. The central issue in considering this question in a controversial case will generally be whether the steps that remained to be taken under the repealed statute were steps necessary for acquiring a right or incurring a liability or whether they were steps required merely for enforcing a right or liability (a least contingent) that had come into existence.
23. In case of a bare repeal, there is hardly any room for a contrary intention, but when the repeal is accompanied by fresh legislation on the same subject, the provisions of the new Act will have to be looked into to determine whether and how far the new Act evinces a contrary intention affecting the operation of section 6, General Clauses Act. The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities, but whether it manifests an intention to destroy 43 them, for, unless such an intention is manifested by the new Act, the rights and liabilities under the repealed Act will continue to exist by force of section 6, General Clauses Act. It is the repealing Act and not the Act repealed which has to manifest the contrary intention so as to exclude the operation of section 6. The silence of the repealing Act is consistent and not inconsistent with section 6 applying. Another line of approach may be to see as to how far the new Act is retrospective in operation. When, a saving clause in a new Act is comprehensively worded and is detailed, it may be possible to infer that it is exhaustive and expresses an intention not to call for the application of section 6, General Clauses Act. But normally a saving provision is not exhaustive of the rights and obligations saved or of the rights that survive the repeal and so the rights and obligations not expressly saved by the saving clause survive by recourse to section 6 of the General Clauses Act. A provision in the repealing Act (which also enacts a new law) that the provisions of the new law 'shall have effect 44 notwithstanding anything inconsistent contained in any other law for the time being in force' does not show a contrary indication to displace the application of section 6 of the General Clauses Act for the repealed law deemed to be in force for enforcement of accrued rights and liabilities by virtue of that section is not a law ' for the time being in force'. If there be no analogous provision in the repealing Act, the rights acquired under the repealed Act would continue under that Act by virtue of section 6 of the Karnataka General Clauses Act unless the repealing Act shows a contrary intention to exclude the operation of section 6. If the Repealing Act expressly states that the provisions of the Section 6 of the Karnataka General Clauses Act, 1899, shall so far as may be applicable in respect of repeal of the said enactment and Section 8 and 24 of the said Act shall be applicable, as if the said enactment had been repealed and re-enacted by this Act, the intention of the legislature in manifest. The provisions 45 of the General Clauses applies except to the extent excluded.
24. Therefore, it is clear though the new Act is prospective in nature and in so far as pending proceedings are concerned, the new Act is made applicable to them. i.e., even in pending proceedings the right of a tenant and the protection given to the tenant and the right of the landlord is to be adjudicated in terms of the provisions contained in the new Act. If a right is accrued under the old Act, by virtue of the application of the provisions of the General Clauses Act, the said right is not affected by the repeal unless a different intention appears in the new Act. Under the old Act, as is clear from the definition contained in Section 3(r) of the old Act, when the original tenant dies, the surviving spouse or any son or daughter or father or mother of a deceased tenant who had been living with the tenant in the premises as a member of the tenant's family up to the death of the tenant has acquired the status of the 46 tenant under the Act. The accrual of a right to these legal heirs on the death of a tenant is automatic. They are not expected to do anything. In other words, the right of tenancy under the old Act is heritable and it is absolute. Under the new Act, no such absolute right is conferred on these legal heirs of an original tenant. As is clear from Sections 3 and 5 of the new Act, if a tenant dies after the new Act came into force, his wife and children and parents would not acquire the status of a tenant; they are only entitled to inherit the tenancy right for a period of five years or one year and they are not treated as tenant because they do not fall within the definition of 'tenant' under the new Act. Whereas, under the old Act, on the death of a tenant, his family members i.e., the spouse, children and parents acquire the status of the tenant on the tenant's death. Therefore, on the day when the new Act came into force, the spouse, children and parents of the deceased tenant under the old Act had become tenant under the old Act. In other words, they had acquired the status of a tenant by virtue of 47 the definition contained in Section 3(r) of the old Act. Under the provisions of the new Act, the Legislature has not specifically stated that such tenants i.e., the family members who acquired the status of tenant on the death of the tenant, ceases to have the benefit of the status of tenant by virtue of the new Act. It is settled law that the Legislature has the power to pass laws and make those laws retrospective in operation. They also have the power to take away a vested right by making such Act retrospective. But, if a vested right is to be taken away by making the Act retrospective, the intention of the legislature should be expressed specifically. If the Legislature has not expressly taken away the vested right vested in a person prior to the passing of the enactment, then the intention of the legislation is clear that they have no intention to take away such right. In such circumstances, the Courts while interpreting these provisions cannot place such an interpretation on these provisions so as to take away a vested right. It is only the legislature which has the power 48 to take away the vested right making the law retrospective. Courts have no such power to interpret the law as retrospective and thus take away a vested right.
25. The tenancy under the new Act is not heritable. Section 5 of the new Act makes this intention of the legislature manifest by the expression 'inheritability of tenancy', i.e., under the new Act tenancy is not heritable. After the death of the original tenant, his legal heirs mentioned in Section 5 of the Act do not acquire the status of a tenant under the new Act, as they do not inherit the tenancy. But, Section 5 provides for the right of tenancy devolving on them for a limited period. After expressly making its intention clear by the word 'inheritability of tenancy', the legislature has conferred the right of tenancy on the legal heirs for a period of 5 years from the date of death of the tenant or one year as the case may be, but they did not chose to confer the "status of tenant" as was the case under the earlier Act. The opening words of 49 Section 5 needs to be noticed. It reads, "in the event of death of a tenant". The tenant referred to therein is a tenant under the new Act. The word 'tenant' used in that Section is not referable to the original tenant under the repealed Act.
26. Therefore, Section 5 makes it clear that, in the event of death of a tenant, the rights of tenancy shall devolve for a period of 5 years or only for a period of one year from the date of his death to his successors in the order mentioned therein. The said section applies to a tenant on the date the Act came into force and such a tenant dying after the Act came into force. Therefore, if a tenant of premises dies before the Act came into force, Section 5 of the Act has no application. Section 5 of the Act is attracted to a case where a tenant dies after the Act came into force. A tenant who has acquired a right under the old Act prior to the Act came into force continues to be a tenant under the new Act and Section 5 is attracted to a case only 50 on his death after the commencement of the Act. Section 5 is not attracted to a case of the predecessors of the tenant who was the original tenant, who died prior to the coming into force of the new Act. If such an interpretation is placed it runs counter to the legislative intent and it is absurd. The new Act has not taken away the vested rights of tenants who are the tenants of the premises prior to coming into force of the Act except in the manner specified in the new Act. The new Act does not specify that the rights of legal heirs of a original tenant who acquired the status of tenancy under the old Act, are also restricted in terms of Section 5 of the Act.
27. Prior to coming into force of the new Act, if a tenant under the repealed Act either before institution of any eviction proceedings under the old Act or during the pendency of such eviction proceedings, died, by virtue of the definition of tenant in Section 3(r) under the repealed Act, his legal heirs acquire the "status of a tenant" 51
automatically. Thereafter, when the old Act is repealed and new Act is made applicable to him, the tenant referred to in the new Act refer to that legal heir and not to the old tenant. If an eviction proceedings against that legal heir in his capacity as a tenant was pending on the day when the new Act came into force, Section 5 has no application to such a tenant. It applies only when he dies. Therefore, Section 70 of the new Act makes it clear that, the new Act applies to all cases and proceedings pending on the day when the new Act came into force and are to be decided under the provisions of the new Act. It only means after the coming into force of the Act, if the tenant dies, the LRs of such a tenant cannot claim rights under the provisions of the old Act on the ground that the legal proceedings were initiated against the original tenant under the repealed Act.
If a tenant in a pending proceedings dies, it is the new Act and its provisions which are applicable to the legal heirs of such tenant. If the old Act had been made applicable, the tenancy rights were heritable and the legal heirs acquire 52 the status of a tenant. That right is not available to the LRs because of the coming into operation of the new Act and the same is being made applicable to the pending proceedings.
They are governed by the definition contained in the new Act as well as Section 5 of the Act. When the new Act was made applicable to the pending proceedings, the legislature only meant that the rights of the parties from the day the new Act came into force is applicable to the parties and they cannot look back and take support from the old Act.
The intention of the legislature was not to wipe out or unsettle the rights which are accrued to the parties on the day the new Act came into force by applying the provisions of the new Act. It is here that the legislative intent is manifest when they made the provisions of the General Clauses Act applicable, i.e., the rights which are accrued, rights which have crystallised under the repealed Act, rights which are vested under the repealed Act are not taken away by the new Act. After the coming into operation of the new Act, whatever may be the right under the 53 repealed Act, they are governed, from the date of commencement of the new Act, under the provisions of the new Act. Section 5 has no application to a tenant dying prior to the coming into force of the new Act. It comes into operation only when the tenant dies after coming into force of the new Act. The death of a tenant should have happened after the coming into force of the new Act even in respect of pending proceedings for its applicability. If the tenant dies prior to the coming into force of the new Act, the Section being prospective in nature, it cannot be given retrospective effect. That is the intention of the legislature.
This section is applicable to pending proceedings. It means in the pending proceedings, if the tenant dies, his rights are governed by Section 5 of the new Act and not under the old Act. But, if the original tenant had died before the commencement of the new Act, his LRs had acquired the right of a tenant under the old Act, that right cannot be annulled, wiped out, deprived of, by application of Section 5 54 of the new Act, merely because the proceedings are pending on the day the Act came into force.
28. For the aforesaid reasons, we are not persuaded to accept the reasoning of the learned single Judge in the case of Shahwar Basheer's case as well as Taradevi's case. On the contrary, the law laid down in Kiran Bai's case stands to reason and that is the correct view. We make it clear that in the aforesaid judgment of Justice A.V.Srinivasa Reddy several aspects have been gone into. We over-rule the said three judgments only on the point that is covered in this case and we pronounce no opinion on other matters as that is not the subject matter of reference.
29. In the light of the aforesaid legal position, in the instant case, the original tenant died on 04.08.2001 and the eviction petition was filed on 23.06.2000 under the provisions of the old Act. During the pendency of the 55 said proceedings, the tenant died on 04.08.2001. The new Act came into force on 31st of December 2001. On the death of the tenant in terms of Section 3(r) of the old Act, the surviving spouse any son or daughter or father or mother of the deceased tenant who had been living with the tenant in the premises as a member of the tenant's family up to the death of the tenant, became a tenant by operation of law. Therefore, on the date when the new Act came into force, the petitioners herein were the tenants of the premises in question. In their capacity they have contested the eviction proceedings. Though the trial Court allowed the eviction petition on several grounds both under the old Act and under the new Act, the learned District Judge in revision has set aside the order of the eviction on merits. After setting aside the eviction order on merits, he has proceeded to pass the eviction order relying on Section 5 of the Act. Section 5 has no application in the instant case. Therefore, though Section 70(2)(b) of the new Act expressly provides that all cases and proceedings 56 other than the proceedings in execution of a decree or any order passed under the repealed Act and pending at the commencement of this Act before the Court of District Judge or the High Court, as the case may be in respect of the premises to which this Act applies shall be continued and disposed of by such Court of District Judge or the High Court in accordance with the provisions of this Act, it does not enable the Court to apply Section 5 of the Act when the death has not occurred after the commencement of the new Act. When the death has occurred prior to the commencement of the new Act, the tenancy rights are governed under the old Act. If eviction proceedings are initiated under the old Act and the death has occurred prior to the commencement of the new Act, the eviction proceedings could be continued under the provisions of the new Act. As Section 5 of the Act has no application to a case where the death has occurred prior to the Act, the said provision is not attracted and, therefore, the learned District Judge was in total error in applying Section 5 to 57 the facts of this case and passing the impugned order of eviction. In that view of the matter, the order of eviction is unsustainable and liable to be set aside. Accordingly, we set aside the impugned order. Hence, we pass the following:
ORDER
(i) Revision petition is allowed.
(ii) The impugned order passed by the
learned District Judge directing the
petitioners to handover vacant possession of the premises within one month by invoking Section 5 of the Act is hereby set aside.
Parties to bear their own costs.
SD/-
JUDGE SD/-
JUDGE Kms