HARKESH CHAND Vs. KRISHNA GOPAL MEHTA & ORS

TRANSFER OF PROPERTY ACT, 1882

Section 106 - Duration of certain leases in absence of written contract or local usage

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Civil), 1778 of 2010, Judgment Date: Feb 13, 2017

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 1778 OF 2010

HARKESH CHAND ... APPELLANT

VERSUS
KRISHAN GOPAL MEHTA & ORS. ... RESPONDENTS

JUDGMENT

S. A. BOBDE, J.

This is a tenant’s appeal. In the impugned judgment, the High Court
directed the tenant to be evicted. The Trial Court dismissed the suit for
eviction filed by the respondent-landlord. The First Appellate Court
dismissed the landlord’s appeal. In the Second Appeal, the High Court
reversed the concurrent findings of both the courts below.

2. The tenancy is in respect to a small shop situated in a rural area in
the village of Daishwala, Doiwala Town, located in the Dehradun district of
Uttarakhand. On the 19th of September, 1972, the landlord issued a notice
terminating the tenancy of the shop under Section 106 of the Transfer of
Property Act, 1882, and demanded the possession
of the shop.

3. The landlord filed the present suit for eviction on the 1st of
October 1972. The Court of Civil Judge (Junior Division), Dehradun
dismissed Small Cause Case No.85 of 1972 with costs. The Trial Court held
that even though The United Provinces (Temporary) Control of Rent and
Eviction Act, 1947 (U.P. Act No. III of 1947 ) hereinafter referred to as
“the Act of 1947” had been repealed by the aforementioned date and replaced
by a new rent act[1] hereinafter referred to as “the Act of 1972” which was
brought into force on the 15th of July, 1972, the old act applied to the
suit property.

4. The Additional District Judge, Dehradun, dimissed the revision
petition No. 43 of 1976 filed by the landlord. It was held that the
notification by which the provisions of the old act were applicable to the
Doiwala area in the year 1949 continued and remained in force on the date
when the notice of termination of the tenancy was issued. Accordingly, the
tenancy was protected by the Act of 1947.

5. The landlord approached the High Court of Judicature at Allahabad by
way of Writ Petition No. 25951 of 2000. This writ petition was transferred
to the High Court of Uttarakhand at Nanital and
re-numbered as Writ Petition No. 4882 of 2001.

6. The High Court of Uttarakhand upheld the landlord’s plea that the
notice which terminated the tenancy of the shop under the provisions of the
Transfer of Property Act, 1882 was valid. The High Court held that the old
Act under which the Doiwala area was covered by a notification had been
repealed and replaced by the new Act. The old Act of 1947 did not cover
the rural areas that are not specially notified. The special notification
with respect to Doiwala area came into existence only on the 23rd of
January, 1973 and therefore, between the 15th of July, 1972 (when the old
act along with its notification stood repealed), and the 23rd of January,
1973 (when the notification was issued), there was no protection to the
tenants in Doiwala area under any law. Thus, the notice terminating the
tenancy was valid. Accordingly, the High Court allowed the writ petition
and set aside the orders of the Trial Court and the Revision Court by which
the landlord’s suit was dismissed.

7. Aggrieved by the order of the High Court that decreed the suit for
eviction filed by the respondent-landlord, the appellant approached this
Court. This Court granted special leave to appeal, and hence this appeal.

8. The questions that fall for consideration before us are -

(i) Whether or not, the tenancy in question is protected by Act No.III of
1947.
(ii) Whether or not, the notification dated 31st of March 1949 which
applied the provisions of the Act of 1947 to Doiwala town was in force on
the 19th of September, 1972, i.e. when the landlord terminated the tenancy
and sought possession of the suit premises.
(iii) Whether or not, Section 24 of the U.P. General Clauses Act, 1904
continued the notification dated 31st of March 1949 that protects Doiwala
town by applying the provisions of the Act of 1947.

9. A similar notification was issued under the re-enacted Act of 1972 on
the 21st of March, 1973. The Act of 1947 was a temporary statute enacted
to control the letting and renting of property as well as to prevent the
eviction of tenants from such accommodation. The provisions of the Section
3 (c) of the Act of 1972 inter alia restricted evictions without the
permission of the District Magistrate which could be granted only on the
grounds specified in the Act.

10. The Act of 1947 was extended from time to time and was in force when
the Act of 1972 was enacted.

Sub-section (2) of Section 1 of Act No.III of 1947 provided as
follows:-

“Section 1…

(2) It extends to the whole of the United Provinces and applies to every
Municipal Area and Cantonment Area and to every Notified Area contiguous to
such municipal area or cantonment area and to accommodation situated within
one mile of the boundaries of any such municipal area, cantonment area and
notified area, and to such other area as the Provincial Government may,
from time to time, notify in the official Gazette in this behalf. “
(emphasis supplied)

Sub-section (3) brought the Act into force on the 1st day of October,
1946. It provided as follows:-
“(3) It shall apply to-

(a) every city as defined in the Uttar Pradesh Nagar Mahapalika
Adhiniyam, 1959;

(b) every municipality as defined in the United Provinces Municipalities
Act, 1916;

(d) every town area constituted under the United Provinces Town Areas
Act, 1914.”

Sub-section 4, which provided for its expiry on the
30th September, 1948, read as follows:-
“(4) It shall cease to have effect on the expiry of September 30, 1948,
except as respects things done or omitted to be done before the expiration
thereof, and Section 6 of the United Provinces General Clauses Act, 1904,
shall apply upon the expiry of the Act as if it had then been repealed by
an United Provinces Act.“

Section 43 of the Act of 1972 repealed the Act of 1947.
Sub-section (2) of Section 1 of the Act of 1972 extended the Act of 1972 to
the whole of Uttar Pradesh.

11. A notification under Section 1 (1) of the Act of 1972 declaring that
the Act shall apply to Doiwala town area was issued on the 21st of March,
1973. Even though, the subsequent Act is essentially a
re-enactment of the earlier Act of 1947, the landlord acted on the
presupposition that with the repeal and re-enactment of the Act of 1947 on
the 15th of July, 1972, the notification dated 31st March, 1949 also ceased
to exist, thus assuming that there was no law restricting the eviction of
tenants in the Doiwala area during the period between the two
notifications; ergo, terminating the tenancy on the 19th of September,
1972.

(a) As stated earlier, the primary question before us is as to whether or
not there existed a protection of tenants in the Doiwala area under Act
No.III of 1947 by virtue of the notification dated 31st March, 1949

The answer to this depends on whether Section 24 of the
U.P. General Clauses Act, 1904 continued the notification dated
31st March, 1949.

12. Shri Nikhil Goel, Advocate for the appellant, contended that by
virtue of Section 24 of the U.P. General Clauses Act, the notification
dated 31st March, 1949 that applied Act No.III of 1947 to the Doiwala area
continued even after the expiry of the Act. Thus, the protection to the
tenants in the Doiwala area also continued and was in force on the 1st of
October, 1972, when the suit was filed. The protection of the tenants
under the 1947 Act continued throughout and in any case up to the issue of
the notification dated 23rd of January, 1973, under the Act No. XIII of
1972. It made no difference that the new Act of 1972 was specifically
applicable to Doiwala town area by the aforesaid notification. As long as
there was nothing inconsistent in the notification dated 31st March, 1949
with the re-enacted provisions of the Act of 1972, the notification
continued in force by virtue of Section 24 of the U.P. General Clauses Act,
1904.

13. Thus, it was submitted that at all times, and particularly on the
date when the notice was issued on the 19th of September, 1972, and the
date when the suit for eviction was filed on the 1st of October, 1972, the
appellant’s tenancy in the Doiwala town area was protected by the
notification issued under Act No. III of 1947. The notice issued by the
respondent-landlord terminating the tenancy under Section 106 of the
Transfer of Property Act was not valid and hence, the suit filed on the
basis of such a notice was not tenable.

Applicability of U.P. Act No. III of 1947 to Doiwala Area

14. It is clear from sub-section (1) and sub-section (2) of the Act of
1947 that it extended to the whole of the erstwhile United Provinces and
applied to every municipal area, cantonment area and notified area as per
the provincial government notification in the official gazette.
Undisputedly, the Governor declared that the provisions of Section 2, 3(a),
4, 5, 6, 8, 11, 12 and 16 of the Act shall apply to Doiwala town located in
Dehradun by a notification dated 31st March, 1949 because this notification
has never been expressly repealed.

Whether the notification dated 31st March, 1949 continued by virtue of
Section 24 of the U.P. General Clauses Act, 1904

15. The question whether the notification dated 31st March, 1949
continued to exist even after the Act was repealed upon the reenactment of
the Act of 1972 may be considered.

Section 24 of the U.P. General Clauses Act, 1904:-

“24. Continuation of appointments, notifications, orders, etc., issued
under enactments repealed and re-enacted. – Where any enactment is repealed
and re-enacted by an [Uttar Pradesh] Act, with or without modification,
then, unless it is otherwise expressly provided, any appointment, [or
statutory instrument or form], made or issued under the repealed enactment,
shall, so far as it is not inconsistent with the provisions re-enacted,
continue in force, and be deemed to have been made or issued under the
provisions so re-enacted, unless and until it is superseded by any
appointment, [or statutory instrument or form] made or issued under the
provisions so
re-enacted.”
(emphasis supplied)

16. A plain reading of the above provision suggests that any statutory
instrument (which a notification is) issued under the repealed enactment
continues in force as if it were issued under the re-enacted provisions to
the extent that it is not inconsistent with the re-enacted provisions.
Such continuance exists till the statutory instrument is superseded by a
statutory instrument issued under the re-enacted provisions.

17. It is therefore necessary; to see whether the notification dated
31st March, 1949, issued under the Act of 1947 is inconsistent with the
re-enacted provisions of the Act of 1972. Obviously, if the 1949
notification cannot stand along with the re-enacted provisions and is
inconsistent with them, it cannot be said to have been continued in force
by virtue of Section 24 of the U. P. General Clauses Act, 1904.

18. The Governor of the erstwhile United Provinces, through the said
notification, simply declared that the provisions of Sections 2, 3 (a), 4,
5, 6 etc. shall apply to Doiwala town in Dehradun district. The effect of
this notification thus, was that the protection to the tenants
offered by Section 3 (a) i.e. the restrictions on eviction, applied to
Doiwala town.

19. We find nothing inconsistent between the protection accorded to the
tenants under the Act of 1947 as applied to Doiwala town by the
notification dated 31st March, 1949, and the protection accorded to the
tenants in the re-enacted provision of the Act of 1972, both of which
regulated the eviction of tenants in the whole of Uttar Pradesh. Section
21 of the later act provided the same restrictions on the eviction of
tenants on specified grounds that Section 3 (a) of the 1947 Act did. Thus,
there is no inconsistency whatsoever found between the two provisions. We
also, do not find any express provision to the contrary in the subsequent
enactment.

20. The provisions of an Act, and a conditional legislation such as a
notification, belong to a different order of things. A statutory instrument
(i.e. the notification) itself does not enact the protection to the
tenants. The Act of 1947 does that. The notification merely makes the
enactment applicable to the Doiwala area. Apparently the purpose of the re-
enacted provision is, inter alia, to protect the tenants from eviction,
except on special grounds. Nothing in the Act shows that such a protection
was intended to be removed from any area or for that matter, the Doiwala
area. In fact, the contrary is clear from the fact that a notification
expressly applying the re-enacted provisions to the Doiwala area was issued
on the 21st of March, 1973.

Thus, there can be no inconsistency between the notification applying
the Act to the Doiwala area, and the re-enacted provisions of the Act
unless the Act of 1972 clearly expresses an intention to remove the
protection accorded to the tenants from an area.

21. Section 24 of the General Clauses Act, 1904 clearly provides that a
statutory instrument issued under a repealed enactment shall continue in
force and be deemed to have been made or issued under the re-enacted
provisions unless
(a) the re-enacted provision expressly provides otherwise

(b) it is superseded by a statutory instrument made under the
re-enacted provision

The section further provides that the extent to which the statutory
instrument under the repealed enactment shall continue is “so far as it is
not inconsistent with the re-enacted provisions.”

22. We find that none of the conditions which derogate from the
continuation of the notification exist in the present case. There is no
express provision to the contrary, there is no supersession by any
statutory instrument under the re-enacted provisions and there is nothing
inconsistent in the continuance of the notification with any of the re-
enacted provisions.

23. At this stage, it is apposite to consider the central purpose of the
General Clauses Act in relation to a statute. In The Chief Inspector of
Mines and Anr vs. Lala Karam Chand Thapar Etc[2]., this Court stated its
purpose as follows:-
“…it will be profitable to remember that the purpose of the General Clauses
Act is to place in one single statute different provisions as regards
interpretations of words and legal principles which would otherwise have to
be specified separately in many different acts and regulations. Whatever
the General Clauses Act says, whether as regards the meanings of words or
as regards legal principles, has to be read into every statute to which it
applies.”

24. The decision of this Court in The State of Bombay vs. Pandurang
Vinayak Chaphalkar and Ors[3], throws a light on the present case. The
Building Control Ordinance, enacted in 1948 empowered the provincial
Government to extend its provisions to any other area as may be specified
by notification. A notification was issued on the 15th of January, 1948
extending the provisions of the Ordinance to Ratnagiri district.

The aforementioned Ordinance was repealed by an Act which contained a
provision empowering the State Government to issue a notification to extend
the Act to any other specified area. The Act provided that the Bombay
General Clauses Act would apply to the repeal as if the Ordinance were an
enactment.

The respondent started constructing a cinema at Ratnagiri district on
the 15th of August, 1948, after the commencement of the Act. Since the
district of Ratnagiri was not specified in the Schedule to the Act, the
respondent assumed that the Act did not apply to Ratnagiri. As a result,
the construction was carried out without obtaining the permission of the
Controller.

The High Court acquitted the respondent, and the State preferred an
appealed to this Court. This Court held that, by virtue of the repealing
provision and Section 25 of the Bombay General Clauses Act, 1904 which is
in pari materia with the provisions of the U.P. General Clauses Act, 1904,
the notification issued under the Ordinance continued in force under the
Act (XXXI of 1948). Therefore, the provisions of the Act stood extended to
the other areas as indicated in the notification. The appeal was allowed
and the judgment of the High Court was set aside.

25. We find that the ratio in the above case squarely applies to the
present case. An identical notification extending the provisions of an
earlier enactment to an area was issued through an Ordinance. Though the
repealing Act was not specifically extended to that area,
it was held that the notification under the earlier enactment
continued in force under the new enactment by virtue of the General Clauses
Act, 1904.

26. In The Chief Inspector of Mines case (supra), the question that fell
for consideration was whether or not the regulations framed under the Mines
Act, 1923 (for short, “the 1923 Act”) continued in force after its repeal
by the Mines Act, 1952. The accused was prosecuted for the violation of
the regulations framed under the 1923 Act. The appellants applied for the
quashing of the criminal proceedings on the ground that they were
prosecuted for the breach of the regulations that had ceased to exist by
the repeal of the Mines Act, 1923. The regulations were “as if enacted in
this Act”, and therefore, repealed along with
the 1923 Act.

This Court held that though the regulations were a part of the 1923
Act for some purposes, but for the purpose of continuity of existence they
would not be considered a part of the Act:-
“… even though the Act is repealed, the regulation will continue to exist,
in accordance with the provisions of Section 24 of the General Clauses Act
1904.”[4]

Section 24 was given full effect for holding that the regulations or
rules framed under a repealed law would continue in force in spite of the
repeal. Expounding on the purpose of Section 24 of the General Clauses Act,
1904, the Court held:-
“One may pause here to remember that regulations framed under an Act are of
the very greatest importance. Such regulations are framed for the
successful operation of the Act. Without proper regulations, a statute will
often be worse than useless. When an Act is repealed, but
re-enacted, it is almost inevitable that there will be some time lag
between the re-enacted statute coming into force, and regulations being
framed under the re-enacted statute. However efficient the rule making
authority may be, it is impossible to avoid some hiatus between the coming
into force of the re-enacted statute and the simultaneous repeal of the old
Act, and the making of regulations. Often, the time lag would be
considerable. Is it conceivable that any legislature, in providing that
regulations made under its statute will have effect as if enacted in the
Act, could have intended by those words to say that if ever the Act is
repealed and re-enacted (as is more than likely to happen sooner or later),
the regulations will have no existence for the purpose of the re-enacted
statute, and thus the re-enacted statute, for some time
at least, will be in many respects, a dead letter.”[5]

27. We are in respectful agreement with the above observations. Applying
the said observations to the present case, it must be held that the
notification under the 1947 Act continued in spite of its repeal and the
enactment of the 1972 Act. It cannot be said that in the hiatus between the
repeal of the 1947 Act and the issuance of a notification applying the 1972
Act to the Doiwala area, the Legislature intended that the tenants had no
protection from eviction and there was an unrestricted right to evict them.

28. This Court construed Section 24 of the General Clauses Act 1904, in a
similar way in Neel alias Niranjan Majumdar vs. The State of West
Bengal[6]. It was held that though the offence of the possession of a
sword would allege to have been committed in 1970, i.e. after the repeal of
the Arms Act, 1878, the notification dated 19th of March, 1923 issued under
the repealed Arms Act of 1878 would continue in force and would be deemed
to have been enacted under the new Act by virtue of Section 24 of the
General Clauses Act, 1904.

29. This Court has taken a concurrent view in State of Punjab
vs. Harnek Singh[7].

30. In the result, we hold that the old Act, i.e. the Act No.III of 1947
applied to the Doiwala area by virtue of notification dated 31st of March,
1949, when the suit for the eviction of the appellant was filed. The suit
is untenable for the want of permission under the provisions of the U.P.
Act No. XIII of 1972 and is liable to be dismissed. However, having heard
the learned counsels for both sides on the point, and in view of the
circumstances of this case, as well as in the interest of justice, we
direct that the appellant-tenant shall hand over possession of the premises
to the respondent after a period of three years from today. The premise
admittedly belongs to the respondent, which he bona fide needs after the
said period. Till the time the appellant hands over the possession to the
respondent, the appellant shall pay a monthly rent of Rs.4,000/- to the
respondent.

Accordingly, the appeal is disposed off.

….………………………………..J.
[S.A. BOBDE]

….………………………………..J.
[ASHOK BHUSHAN]
New Delhi
February 13, 2017

-----------------------
[1] The Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and
Eviction) Act, 1972
[2] (1962) 1 SCR 9
[3] (1953) 4 SCR 773
[4] Page 19, (1962) 1 SCR 9
[5] Page 20, (1962) 1 SCR 9
[6] (1972) 2 SCC 668
[7] (2002) 3 SCC 481

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