Rajasthan High Court - Jaipur
Braj Bhushan Gupta vs Appellate Rent Tribunal And Ors on 20 July, 2017
Author: Chief Justice
Bench: Chief Justice
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Civil Writ Petition No.13989/2009
Smt.Santosh Devi ----Petitioner
Versus
Ravinder Singh & Anr. ----Respondents
Connected With
1. S.B. Civil Writ Petition No. 7712 / 2006
2. S.B. Civil Writ Petition No. 1257 / 2007
3. S.B. Civil Writ Petition No. 7347 / 2008
4. S.B. Civil Writ Petition No. 8824 / 2008
5. S.B. Civil Writ Petition No. 8826 / 2008
6. S.B. Civil Writ Petition No. 10180 / 2008
7. S.B. Civil Writ Petition No. 1564 / 2009
8. S.B. Civil Writ Petition No. 1565 / 2009
9. S.B. Civil Writ Petition No. 8964 / 2009
10. S.B. Civil Writ Petition No. 8965 / 2009
11. S.B. Civil Writ Petition No. 8966 / 2009
12. S.B. Civil Writ Petition No. 11027 / 2009
13. S.B. Civil Writ Petition No. 11515 / 2009
14. S.B. Civil Writ Petition No. 12797 / 2009
15. S.B. Civil Writ Petition No. 13961 / 2009
16. S.B. Civil Writ Petition No. 15149 / 2009
17. S.B. Civil Writ Petition No. 1594 / 2010
18. S.B. Civil Writ Petition No. 7107 / 2010
19. S.B. Civil Writ Petition No. 6631 / 2011
20. S.B. Civil Writ Petition No. 6632 / 2011
21. S.B. Civil Writ Petition No. 7067 / 2011
22. S.B. Civil Writ Petition No. 7243 / 2011 (2 of 21) [ CW-13989/2009]
23. S.B. Civil Writ Petition No. 7325 / 2011
24. S.B. Civil Writ Petition No. 14658 / 2011
25. S.B. Civil Writ Petition No. 15086 / 2011
26. S.B. Civil Writ Petition No. 16419 / 2011
27. S.B. Civil Writ Petition No. 16420 / 2011
28. D.B. Special Appeal Writ No. 540 / 2014 _____________________________________________________ For Petitioner(s) : Mr.Ashwani Chobisa, Mr.N.U. Qazi, Mr.Ajay Goyal For Respondent(s) : Mr.J.P. Goyal, Senior Advocate assisted by Ms.Manisha Surana, Mr.Rajesh Kapoor _____________________________________________________ HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE JAINENDRA KUMAR RANKA ORDER Order reserved on : 17/07/2017 Order pronounced on : 20/07/2017 (Per Hon'ble the Chief Justice)
1) The Rajasthan Rent Control Act, 2001 (hereinafter referred to as the Act of 2001) came into force w.e.f. 21.3.2003, when the State Government by a notification in the official Gazette appointed said date as the one wherefrom the Act came into force. As per Section 32 of the Act, the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 stood repealed from the appointed date.
2) Section 6 of the Act of 2001 as originally enacted read as under:-
(3 of 21) [ CW-13989/2009] "6. Revision of rent in respect of existing tenancies.-(1) Notwithstanding anything contained in any agreement, where the premises have been let out before the commencement of this Act, the rent thereof shall be liable to be revised according to the formula indicated below:-
(a) where the premises have been let out prior to 1st January, 1950, it shall be deemed to have been let out on 1st January, 1950 and the rent payable at that time shall be liable to be increased at the rate of 7.5% per annum and the amount of increase of rent shall be merged in such rent after ten years.
The amount of rent so arrived at shall again be liable to be increased at the rate of 7.5% per annum in similar manner upto the year of commencement of this Act.
(b) where the premises have been let out on or after 1st January, 1950, the rent payable at the time of commencement of the tenancy shall be liable to be increased at the rate of 7.5% per annum and the amount of increase of rent shall be merged in such rent after ten years. The amount of rent so arrived at shall again be liable to be increased at the rate 7.5% per annum in similar manner upto the year of commencement of this Act.
Illustration.-If the rent was Rs.100/- per month on 1st January, 1950, it shall become Rs.175/- per month on 1st January, 1960. It shall become Rs.306.30 per month on 1st January, 1970 and Rs.536.30 per month on 1st January, 1980. (2) Notwithstanding anything contained in sub- section (1), where the period of ten years for merger of increase of rent under sub-section (1), is not completed upto the year of the commencement of this Act, the rent at the rate of 7.5% per annum shall be increased upto the year of the commencement of this Act and amount of increase of rent shall be merged in rent.
(3) The rent arrived at according to the formula given in sub-sec. (1) and (2) shall, after completion of each year from the year of commencement of this Act, again be liable to be increased and paid at the rate of 5% per annum and the amount of increase of rent shall be merged in such rent after ten years. Such rent shall further be liable to be increased at similar rate and merged in similar manner till the tenancy subsists.
(4) The rent revised as per formula given under sub-sec. (1) or sub-sec. (2) shall be payable, after the commencement of this Act, from the date (4 of 21) [ CW-13989/2009] agreed upon between the landlord and the tenant or where any petition is filed in a Rent Tribunal, from the date of filing of such petition."
3) The Rajasthan Rent Control (Second Amendment) Act, 2005 was thereafter enacted and notified on 22.2.2006. Section 3 of the Amendment Act of 2005 reads, as under:-
"3. Amendment of Sec.6, Rajasthan Act No.1 of 2003.-In Sec. 6 of the principal Act,-
(i) in clause (a) of sub-sec. (1), for the existing expression "7.5%", wherever occurring, the expression "5%" shall be substituted;
(ii) in clause (b) of sub-sec. (1), for the existing expression "7.5%", wherever occurring, the expression "5%" shall be substituted;
(iii)the existing Illustration appearing after clause
(b) of sub-sec. (1) shall be deleted;
(iv) in sub-sec. (2), for the existing expression "7.5%", the expression "5%" shall be substituted."
4) Section 7 of the Act of 2001 reads, as under:-
"7. Revision of rent in respect of new tenancies.-(1) In the absence of any agreement to the contrary, the rent of the premises let out after the commencement of this Act shall be liable to be increased at the rate of 5% per annum and the amount of increase of rent shall be merged in such rent after ten years. Such rent shall further be liable to be increased at the similar rate and merged in similar manner till the tenancy subsists. (2) Any agreement for increase of rent in excess of 5% per annum shall be void to that extent."
5) The principal issue which arises for determination in reference made to the division bench is whether the amendments to Section 6 of the Act of 2001 by the Amending Act of 2005, pertaining to quantum of revision of rent, would be applicable with retrospective effect i.e. from the date of the commencement of the Act.
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6) At the outset, we may note that divergent views have been expressed by two learned Single Judges of this Court on the said issue and the same merit our consideration.
7) By an order dated 5.2.2010 passed in SBCWP No.13989/2009 : Smt.Santosh Devi Vs. Ravindra Singh & Anr., a learned Single Judge of this Court, after noting the two divergent views of two learned Single Judges of this Court, has referred the following five questions for consideration by a Larger Bench:-
1) Whether an amendment of substantive
provisions can be given a retrospective
operation?
2) Whether amendments so made in Section 6 of the New Act are prospective or retrospective in nature?
3) Whether by virtue of the unamended provisions of Section 6 of the New Act, a right to receive enhanced rent can be said to have vested in the landlord or not?
4) Whether notwithstanding the amendments so made in Section 6 of the New Act, a tenant would be helpless on account of the provisions of Section 14 of the New Act, which merely enables the landlord to seek a revision of rent, or whether even a tenant can seek enforcement of his right of reduction in enhancement as per the amended rate by filing a review petition under Section 21 of the New Act or not?
5) Whether the amendment so made in Section 6 of the New Act can have the effect of undoing transaction already concluded as per judicial orders passed by Tribunal/Court in accordance with the unamended provisions of (6 of 21) [ CW-13989/2009] Section 6 of the New Act after such judicial orders have already attained finality or not?
8) At the hearing held on 17.7.2017, learned counsel for the parties conceded to the point that an amendment of a substantive provision can be given a retrospective operation. Learned counsel conceded that only two issues need to be answered by the division bench keeping in view the contradictory opinions by two learned Single Judges of this Court. These two issues would be:-
(1) Whether right to receive enhanced rent as per the Act of 2001 was a vested right in the landlord? (2) Whether the amendment made to Section 6 of the Act of 2001 by the Second Amendment Act of 2005 is prospective or retrospective?
9) Learned Senior Counsel Shri J.P. Goyal, arguing for the tenants urged that the rate of rent is not a right and is a benefit and thus urged that the right of a landlord to receive rent at the particular rate is not a right.
10) Except for the stating the proposition, learned Senior Counsel could take the same no further.
11) The origin of the every tenancy is an offer made by a landlord to permit possession of the landlord's property to be used by a tenant for an agreed period of time and at an agreed rent to be paid. If this offer is accepted, an agreement enforceable by law comes into force. Upon expiry of the period of tenancy, unless the landlord permits the tenant to continue to occupy the tenanted (7 of 21) [ CW-13989/2009] premises, the tenant is liable to be ejected from the tenanted premises. But keeping in view the shortage of accommodation, rent laws were enacted which gave a protection to the tenant against eviction on expiry of the agreed period of tenancy. Simultaneously, while creating a right in favour of the tenant to continue to occupy the tenanted premises beyond the contractual period, a right was given to the landlord to have the rent increased as per the Tenancy Act itself. Pertaining to a property, anything recognised by law as entitling the owner of the property to avail the benefit thereof would certainly be a right. After all, it would relate to an interest arising out of the ownership of the property. Thus, it needs no further argument to hold that the rate at which a landlord is entitled to enhancement of the rent as per Section 6 of the Act of 2001 is a right. It is indeed a vested right.
12) That takes us straight to the second question which needs to be answered by the division bench.
13) In the decision reported as 2008(3) WLC (Raj.) 662, Sita Devi & Anr. Vs. Bishamber Dayal, it has been held by a learned Single Judge of this Court that the amendment to Section 6 of the Act of 2001 would have retrospective operation in view of the fact that the 'Amending Act of 2005' employed the expression 'substituted' while incorporating the proposed amendments and the conscious use of said phraseology by the Legislature led to the necessary implication/intendment of retrospectivity. The conclusion arrived at by the learned Single Judge has strongly been predicated upon certain observations of the Supreme Court in the decisions (8 of 21) [ CW-13989/2009] reported as AIR 1952 SC 324, Shyamrao V. Parulekar & Ors. Vs. District Magistrate, Thana, Bombay & Ors., and 1991 Supp.(1) SCC 81, M/s.Orient Paper and Industries Ltd. & Anr. Vs. State of Orissa & Ors. It has further been observed by the learned Single Judge that since the amendment is retrospective in its operation, the same would govern all pending proceedings (including appeals and challenges mounted under Article 226/227 of the Constitution of India).
14) Per contra, a converse view has been taken by another learned Single Judge of this Court in the decision reported as (2009) 1 DNJ (Raj.) 267, Daljit Singh & Anr. Vs. Appellate Authority Sri Ganganagar, wherein the submission that the use of the expression 'substituted' in the Amending Act necessarily implied retrospective operation of the amendment was repelled. It has been held that the use of the expression 'substituted' was for mere convenience and the amendments had to be treated prospective in operation.
15) Having endowed our careful consideration to the worthy opinions expressed by the two learned Single Judges of this Court and guided by their erudite observations, before we proceed to embark on the voyage to discern the legislative intent underlying the Amending Act of 2005 with reference to the reasons put forth by the two learned Single Judges, we note an additional submission made by Shri J.P. Goyal, learned Senior Counsel who appeared for the tenants, for this submission has not been taken note of in the two judgments which conflict.
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16) Learned Senior Counsel urged that the reason for the amendment was an apparent anomaly which had crept into the Act of 2001. The anomaly as per learned Senior Counsel was that whereas the increase of rent as per Section 6 was @ 7.5% per annum, the rate of revision envisaged by Section 7 was 5%. Counsel urged that it was this anomaly which was removed and thus urged that it is settled law that wherever an amendment is made to a statute to remove the anomaly, the amendment would relate back to the date of the parent statute because it would be a case of repair.
17) A perusal of Section 6 of the Act of 2001 would evince that Section 6 contemplates tenancies prior to 1 st January, 1950 and tenancies post 1st January, 1950. Pertaining to tenancies commencing prior to 1 st January, 1950, for the purposes of revision in the rent clause (a) of sub-section (1) of Section 6, the deemed fixing requires the letting to be treated as commencing from 1 st January, 1950. As per clause (b) of sub-section (1) of Section 6, for premises rent out on or after 1st January, 1950, the commencement of the tenancy would be the actual date wherefrom the tenancy commenced. The requirement of fixing a date, be it actual or deemed for purposes of letting out is that rent revision contemplated by Section 6 is on yearly basis, to be compounded at the 10th year completion of the tenancy period till the commencement of the Act. Thereafter as per sub-section (3), the rent is to be revised for the period post commencement of the Act. Section 7 contemplated increase of rent for premises let out after the commencement of the Act. Thus, the Legislature was aware of (10 of 21) [ CW-13989/2009] the fact that it was enacting a legislation pertaining to pre 1 st January, 1950 tenancies, post 1st January, 1950 tenancies, and tenancies after the Act of 2001 came into force. The Legislature, being aware of aforesaid, consciously provided for increase in the rate of rent per annum to be 7.5% for the pre 1 st January, 1950 and post 1st January, 1950 tenancies till the Act came into force and for tenancies created post enforcement of the Act of 2001, consciously provided for rate in increase of the rent at 5% per annum. For existing tenancies also, post commencement of the Act, rate of increase was 5%. It is thus not a case of an unconscious omission or an anomaly. The three distinct categories of tenancy, as noted hereinabove, with reference to the commencement of the tenancy, was the subject matter of the enactment. We therefore repel the submission advanced as an additional submission by Shri J.P. Goyal, learned Senior Counsel.
18) Before venturing to analyse the statutory provisions, we may briefly survey the legal principles that have crystallised over time on the subject of retrospective effect being given to legislative enactments.
19) 'Maxwell on the Interpretation of Statutes'; 12th Edition- Lexis Nexis, succinctly brings to fore the position of law governing retrospective operation of statues.
"One of the most well-known statements of the rule regarding retrospectively is contained in this passage from the judgment of R.S.Wright J.in Re:
Athulmney: 'Perhaps no rule of construction is more firmly established than this-that a retrospective operation is not to be given to a (11 of 21) [ CW-13989/2009] statute so as to impair an existing right or obligation, otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be constructed as prospective only' ........." [Page 216]
20) 'Craies on Legislation'; South-Asian Edition (2010)-
Thomson Sweet & Maxwell reproduces the oft quoted observations of Lindley L.J. In Lauri v. Renad- [1892] 3 Ch.402.
"It is fundamental rule of English law that no statue shall be construed so as to have a retrospective operation, unless its language is such as plainly to require such a construction....."
[Page 433]
21) It has been clarified in another authoritative treatise penned by Earl T. Crawford Titled - 'The Construction of Statutes', Thomas Law Book Company, 1940; that the general rules governing retrospective operation of statutes would also apply to amendatory acts.
"Amendatory Acts, Generally.- As with statues generally, an amendment will have no retrospective operation, unless its terms clearly indicate a different intent. There is also a presumption that amendments are effective prospectively. Consequently, rights acquired under a statue before its amendment are not affected, unless the amending statue, expressly or by necessary implication so provides." [Page 597]
22) The position in India is no different and similar observations have been expressed by the Supreme Court since (12 of 21) [ CW-13989/2009] time immemorial [AIR 1960 SC 936-Mahadeolal Kanodia v.
Administrator- General of W.B.]
23) It is evident from a bare perusal of the Amending Act that the expression 'substituted' has been employed by the legislature whilst effecting the amendments. Therefore, it would be incumbent upon us to trace the meaning of this connotation in order to appreciate its significance, if any.
24) Perhaps the earliest decision of the Supreme Court delving into the meaning of the expression 'substitute', in the context of repealing laws is reported as 1969 (1) SCC 255 titled Koteswar Vittal Kamath v. K. Rangappa Baliga & Co. It was observed that the process of substitution consists of two steps. First, the old rule is made to cease to exist and, next, the new rule is brought into existence in its place.
25) Significantly, the Court had the occasion to again deal with the effect of the expression 'substitute' in the decision reported as AIR 1988 SC 740 titled Bhagat Ram Sharma v. Union of India & Ors. The facts of the case discernible from the reading of the report reveal that Regulation 8(3) of Punjab State Public Service Commission (Conditions of Service) Regulations 1958, was substituted by clause (3) of the Punjab State Public Service Commission (Conditions of Service) (First Amendment) Regulations, 1972. In this backdrop, the Supreme Court pertinently observed that the mere use of the word 'substitute' did not imply that the amended Regulation 8(3) must relate back in time.
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26) We may also notice another luminous pronouncement of the Supreme Court on this subject reported as AIR 1993 SC 3609 titled Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar. It would be beneficial for the purpose of our discussion to take a brief interlude into the factual conspectus of the said case. It was contended before the Court that the Amending Act of 1974 being a substituted legislation would have retrospective effect. The said contention was negatived and it was pertinently observed by the Supreme Court that same rules of construction are required to be applied while dealing with substituted legislations. It was further held that the Amending Act affected the substantive rights and therefore the same would have prospective operation since there was no express or implied provision in the said Act to indicate retrospective operation.
27) The decision in Bhagat Ram Sharma's case (Supra) was cited with approval by the Supreme Court in its judgment reported as (2001) 4 SCC 236 titled Ramkanali Colliery of BCCL v. Workmen by Secy., Rashtriya Colliery Mazdoor Sangh & Anr. The Supreme Court repelled the contention put forth by the appellants that the expression 'substituted' used in the Amending Act, 1986 would have the effect of ousting the protection enjoyed by the employees under Section 14 of the Coal Mines (Nationalisation) Act, 1973. Relying upon the earlier decision rendered in Bhagat Ram Sharma's case (Supra) it was observed that there was no real distinction between repeal and amendment or substitution in such cases. It was further held, that the usual principles of (14 of 21) [ CW-13989/2009] ascertaining the rights of parties flowing from an amendment of a provision have to be applied.
28) A Constitution Bench of the Supreme Court in its decision reported as 2001 (8) SCC 24 titled Shyam Sunder & Ors. v. Ram Kumar & Anr. also rejected the contention that a substituted provision introduced by an Amending Act is to be treated as having retroactive operation. It was urged that the function of a substituted section in an Act is to obliterate the rights of the parties as if they never existed. Refusing to accept the said submission, the Court observed that :
"34..... This argument is noted only to be rejected. A substituted section in an Act is the product of an amending Act and all the effects and consequences that follow in the case of an amending Act, the same would also follow in the case of a substituted section in an Act."
29) Incidentally, a similar view has been expressed in the authoritative treatise 'Principles of Statutory Interpretation', 13th Edition (2010); Lexis Nexis Butterworths Wadhwa-Nagpura authored by Justice G.P. Singh wherein at pages 535-536 it has been opined by the learned author that it makes no difference in application of these principles that the amendment is by substitution or otherwise.
30) It is thus clear beyond cavil that the usage of the expression 'substitute' in the 'Amending Act of 2005' does not ipos facto raise an inference of retrospective applicability as erringly perceived by the learned single Judge in Sita Devi's case (supra).
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31) The reference by the learned Single Judge to certain observations of the Supreme Court in Shamrao v. Parulekar's case (supra) which were reiterated in Orient Paper & Industries Limited's case (supra) does not militate against the settled position of law as noted by us above.
32) The observations of the Supreme Court in Shamrao V. Parulekar's case (supra) may be enunciated herein below :
".....The rule is that when a subsequent Act amends an earlier one in such a way as to incorporate itself, or a part of itself, into the earlier, then the earlier Act must thereafter be and construed (except where that would lead to a repugnancy, inconsistency or absurdity) as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so that thereafter there is no need to refer to the amending Act at all........"
33) A careful perusal of the said judgment would reveal that the issue falling for consideration of their Lordship's was whether the extension of life of a legislation enabling prevention detention by a subsequent enactment, would also have the effect of prolonging the life of a detention order issued under the earlier Act. Significantly, the Court was not called upon to adjudicate on the issue whether the use of the expression 'substitute' in the Amending Act would raise an inference of its retrospective operation, by necessary implication.
34) The House of Lords in their celebrated decision reported as [1901] A.C. 495 titled Quinn v. Leathem aptly observed:
(16 of 21) [ CW-13989/2009] "every judgment must be read as applicable to the particular facts proved, or assument to be proved, since generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particulars facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that any seem to follow logically from it..."
35) The said observations have been cited with approval by the Supreme Court in a long line of judicial pronouncements [(2006)] 1 SCC 275-State of Orrisa and Others v. Mohd. Ilyas; (2007) 7 SCC 378-Rajendra Singh v. State of U.P; (2008) 1 SCC 494-Sarya Shramik Sangathana (KV) v. State of Maharashtra]
36) It assumes significance that the said observations in Shamrao V. Parulekar's case (supra) which were later echoed by the Supreme Court in Orient Paper & Industries Limited's case (supra) were delivered in the context of an amending law having a retrospective deeming provision. In the case at hand, the 'Amending Act of 2005' does not contain a similar provision so as to attract the applicability of the observations of their Lordship's.
37) It would be beneficial to notice certain observations contained in this connection in Crawford's- 'The Construction of Statutes' (supra).
"In this connection, it is interesting to note the language of Reynolds, C., in Benton V. Wickwire, wherein he speaks of the retroactive effect of an amendment:
'There was once, and long ago, a rule in the construction of statutes, that an amendment of it was to be regarded as if having been incorporated (17 of 21) [ CW-13989/2009] in and made a part of the original enactment, but that rule has been for a long time disregarded....' .....Only for the purpose of ascertaining what the law is, should the amendment be considered a part of the original enactment." [Page 623-624] (Emphasis Supplied)
38) The decision in Sita Devi's case concatenates various authoritative pronouncements of the Supreme Court that evince the permissibility of taking into consideration the new/amended law enacted subsequent to the institution of proceedings before the Court and the cognizance of the same may even be taken at the appellate stage.
39) A keen perusal of the said judgments reveals the observations made therein were necessitated by the fact that the new law/amending law was unequivocally retroactive, since the same was declaratory/clarificatory in nature. The presumption against retrospectivity does not apply to such enactments and the same are ordinarily retrospective. There can be no quarrel with the proposition that once the amending law is found to be retrospective, the same may be given effect in pending proceedings including appeals arising therefrom ['Benion of Statutory Interpretation' by Francis Benion, 6th Edition-Lexis; Page 296]. However, in the present case upon a microscopic analysis of the 'Amending Act of 2005', we find nothing to suggest that the intent of the legislature was to mandate its retrospective operation. The amendments comprised therein are not curative, declaratory or clarificatory; enacted with a view to clear doubts or anomalous condition created by poor draftsmanship, rather the (18 of 21) [ CW-13989/2009] same mark a conscious shift in legislative policy. Therefore, the amended law cannot be made applicable to the proceedings for revision of rent that were initiated before the 'Amending Act of 2005' came into force.
40) Whilst endowing our grave and earnest consideration to the issue at hand, we are not oblivious to the fact that the legislations such as the 'Act of 2001' and consequent 'Amending Act of 2005' are beneficial legislations. The sublime philosophy underlying enactment of such laws is to secure affordable housing for those who cannot afford to purchase property. However, the said circumstance cannot influence the interpretation of the provisions which are otherwise clear and unambiguous.
41) In Shyam Sunder's case (supra), the Constitution Bench of the Supreme Court held that there is no rule of construction that beneficial legislation is always retrospective in operation. It was further observed that under the guise of the application of rule of benevolent construction, a Court is not entitled to re-legislate a provision of a statute. The Supreme Court reiterated its observations in an earlier decision reported as AIR 1960 SC 655 titled Moti Ram v. Suraj Bhan & Ors. and held:-
"36...It may be conceded that the Act is intended to provide relief to the tenants and in that sense is a beneficial measure and as such its provision would be liberally constructed; but this principle would not be material or even relevant in deciding the question as to whether the new provision is retrospective or not. It is well settled that where an amendment affects vested rights the amendment would operate prospectively unless it is expressly made retrospective or its retrospective operation follows as a matter of (19 of 21) [ CW-13989/2009] necessary implication. The amending Act obviously does not make the relevant provision retrospective in terms and we see no reason to accept the suggestion that the retrospective operation of the relevant provision can be spelt out as a matter of necessary implication." [Emphasis Supplied]
42) The matter may also be examined in a holistic perspective from another angle. Apropos the aspect of revision of rent, the amendments comprised in the 'Amending Act of 2005' are not procedural simplicitor so as to warrant retrospective operation. Ex-facie, the amendments touch the substantive rights created by the statute.
43) The amending Act has sought to reduce the notional quantum for revision of rent from 7.5% to 5% per annum. It is evident that the statutory entitlement for seeking revision of rent on the basis of 7.5% per annum upto the year of commencement of 'Act of 2001' would accrue as a 'vested right' once proceedings for realizing the same are set into motion on the basis of the un-
amended law, as it stood then.
44) Subsequent amendment to the substantive provisions of law cannot divest the accrued rights unless the amending law is expressly made retrospective or the same can be inferred by necessary implication. We find that the presumption against retrospectively does not stand rebutted in the present case.
45) It has been opined that in relation to pending proceedings, the approach of the courts in England is that the same are unaffected by the changes in the law so far as they relate to the determination of the substantive rights and in the (20 of 21) [ CW-13989/2009] absence of a clear indication of a contrary intention in an amending enactment, the substantive rights of the parties to an action fall to be determined by the law as it existed when the action was commenced and this is so whether the law is changed before the hearing of the case at the first instance or while an appeal is pending (Halsbury's Laws of England, 4 th Edn., Vol.44, para 922).
46) The above passage has been cited with approval by the Supreme Court in Shyam Sunder's (supra). The Constitution Bench of the Supreme Court also expressed the view that the substituted provision would not affect the rights accrued in favour of the parties on the date of suit.
47) Similar approach was adopted by the Supreme Court in its decision reported as AIR 1992 SC 180 titled M/s Gurucharan Singh Baldev Singh v. Yashwant Singh & Ors. wherein it was held that a right had accrued in favour of the appellant when he set the legal machinery in motion under the predecessor legislation and it would be too artificial to say that it was not a right or it had not accrued.
48) Whilst adjudicating the vexing legal issue as to on what stage the right to appeal vests in a litigant, a Constitution Bench of the Supreme Court in its celebrated decision reported as AIR 1957 SC 540 titled Garikapati Veeraya v. N. Subbiah Choudhry held that the said right accrues at the outset upon institution of the suit itself even though it may actually be exercised later when an adverse judgment is pronounced.
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49) In view of the legal position as discussed in the preceding paragraphs, we hold that the relevant amendments to Section 6 of the 'Act of 2001' incorporated by the 'Amending Act of 2005' would operate prospectively from the date when the amending act came into force. We are unable to persuade ourselves to accept the view expressed in Sita Devi's case (supra) and the same is liable to be overruled.
50) However, before drawing curtains, we clarify that the proceedings for revision of rent which have been instituted after the 'Amending Act of 2005' came into force would necessarily be governed by the new/amended provisions of law. (JAINENDRA KUMAR RANKA),J. (PRADEEP NANDRAJOG),C.J. Anil Goyal/KKC/1-29