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3. The principal question that has arisen in this case therefore is whether in spite of the expiry of the Calcutta House Rent Control Order the Small Cause Court Judge had jurisdiction to continue the proceeding under para. 9B (3) started by the application dated 12th July 1946.

4. Mr. Bose appearing for the petitioner has argued that after the expiry of the Calcutta House Rent Control Order there was no provision in law under which the proceeding could be continued; because para. 9B (3) of the Control Order was not reproduced or re-enacted by the Calcutta Rent Ordinance. Mr. Boss has argued that Section 26 of the Rent Ordinance keeps alive only those proceedings under the Control Order for which there is a counter part in the Ordinance and as there is no provision in the Rent Ordinance corresponding to para. 9B (3) of the Control Order the proceeding under that paragraph cannot be continued under the Ordinance. This argument is of great force. The nearest approach in the Rent Ordinance to the provisions of para. 9B (3) of the Control Order is to be found in Section 17; but that section does not reproduce all the provisions of Para. 9B; for example, it does not give the tenant an option to have the decree for ejectment set aside as a matter of right, on payment of arrears of rent and costs. In the case of Manindra Nath Banerjee v. A. K. Fazlul Huq, 51 C. W. N. 148 Khundkar J. took the view that an application under para. 9B filed on 15th July 1946 could be continued, if at all, only under Section 17 of the Rent Ordinance and as the provisions of Section 17 (unlike the provisions of para. 9B of the Control Order) were not mandatory the tenant had no right to have the decree set aside as a matter of right. With regard to the effect of the expiration of a temporary statute Mr. Bose has relied upon Craies on Statute Law (4th Edn.) p. 347 where the learned author states as follows:

"Unless it contains some special provision to the contrary, after a temporary statute has expired no proceedings can be taken upon it and it ceases to have any further effect. Therefore offences committed against temporary Acts must be prosecuted and punished before the Act expires and as soon as the Act expires any proceedings which are being taken against a person will ipso facto terminate."

Similar observations are also to be found in Halabury's Laws of England (2nd Edn.) vol. 31 Art. 666 where the following passage appears:

"After the expiration of a Statute, in the absence of provision to the contrary, no proceedings can be taken on it and proceedings already commenced ipso facto determine."

The argument of the petitioner is that the Calcutta House Rent Control Order having the force of a temporary Statute the proceeding under para. 9B initiated by the application filed on 12th July 1946 ipso facto terminated on 30th September 1946 on which date the statute expired.

5. If the present case were to be decided by reference to the provisions of the Calcutta House Rent Control Order and the Rent Ordinance only we would be bound to give effect to the contention of the petitioner. Mr. Ghose appearing for the opposite party has however relied upon Section 102(4), Government of India Act and also upon the language of Section 2, Defence of India (Second Amendment) Ordinance (Ordinance XII [12] of 1946) which came into effect on 30th March 1946. Section 2 of ordinance XII [12] of 1946 inter alia provides that the expiry of the Defence of India Act shall not affect any right, privilege, obligation or liability acquired accrued or incurred under the Defence of India Act or any rule made thereunder or any order made under such rule or any investigation or legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid.

"The expiry of this Act shall not affect the operation thereof as respects things previously done or omitted to be done."

The parent Act expired on 24th February 1946 and the defendant Wicks was arrested in March, 1946 for acting in contravention of a Regulation framed under the Act on various dates between April 1943 and January 1944. On 27th May 1946, the defendant was found guilty and sentenced to four years' penal servitude. The validity of the prosecution was challenged on the ground that it took place after the expiry of the parent Act and the Regulation; but the challenge was held to be untenable on the ground that the presence of Sub-section (3) preserved the right to prosecute after the date of the expiry. It was pointed by Viscount Simon in his speech that though Section 38, Interpretation Act (1889) does not apply to a statute which expires by effluxion of time, Section 11 (3), Emergency Powers (Defence) Act has the same effect. In the judgment of Lord Goddard which was affirmed by the House of Lords and which is reported in (1916) 62 T. L. R. 674 : (1946) A. E. R. 529 there is good deal of discussion on the language of Section 11 (8) and it wag pointed out though the language of that sub-section is somewhat-elliptical and less comprehensive than the language of Section 38, Interpretation Act it was wide enough to allow the expiring Act to operate in respect of a thing done or omitted to be done before the expiry. In J.K. Gas Plant Manufacturing Co. v. Emperor, 52 C. W. N. (F. C. R.) 25: (A. I. R. (34) 1947 F. C. 38) the Federal Court of India had to consider the effect of the saving clause in Section 102(4), Government of India Act in considering the question of the validity of a prosecution for the violation of the Indian Iron and Steel (Control of Production and Distribution) Order, 1941, after the expiry of the Defence of India Act. Spens C. J., held that though the Defence of India Act expired on 30th September 1946 the saving clause in Section 102(4), Government of India Act authorised a continuation of the prosecution. It was also pointed out that the general rule to the effect that after a temporary statute has expired no proceeding can be taken upon it is modified by the express insertion of the saving clause in Section 102(4) and reliance was placed upon the observations of Viscount Simon in Wick's case: (1947 A. C. 362 : 1947-1 ALL E. R. 205).