# AND GINNING FACTORY v. SUBBASH CHANDRA YOGRAJ SINHA

- **Citation:** [1962] 2 S.C.R. 159
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Case number:** Civil Appeal No. 49 of 1961
- **Bench:** S. K. DAs, J. L. Kapur, M. Hida Yatullah, J. C. Shah, T. L. Venkatarama Aiyar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/and-ginning-factory-v-subbash-chandra-yograj-sinha-2243
- **Pages:** 11

## Headnote

Rent Control-Landlord's right to recover possession-Statutory bar-If prospective or retrospective in operation- Bombay
Rents, Hotel and Lodging House RattJs Control Act, 1947 (Bom. 57
of 1947), ss. 6, 12(1).
On the expiry vf the appellant's tenancy for the occupation
of the premises-in dispute, the respondent who was the landlord
filed a suit for possession of the premises. Meanwhile under s. 6
of the Bombay Rents, Hotel and Lodging House Rates Control
Ig6I
160
SUPREME COURT REPORTS
ti962]
I96r
Act, 1947, a notification was issued applying Part II of the Act
to the area where the property was situated. The appellants
Shah Bhoj1aj claimed protection of s. 12, Part II of the Act, which deprived
Kuve1ji Oil Mills the landlord of the right of possession under certain circum-
& Ginning Factrry stances. The Court of first instance decided the suit against the
v.
appellant and the High Court ruled that s. 12 was prospective
Subbash Chandra in character and did not apply to pending suits or proceedings.
Yograj Sinha On appeal by special leave
Held, that the point of time when sub-s. (r) of s. !2 operates
is when the decree for recovery of possession has to be passed.
The language of the sub-section which provides that the landlord is not entitled to recover possession if the tenant pays or
shows his willingness to pay the standard rent and to observe
the other conditions of the tenancy is such that it applies equa11y
to suits pending when Part Ir. comes into force and those to be
filed sub.jeq uen.tly and is not limited only to suits filed after the
Act comes into force in a particular area.
A section may be prospective in one part and retrospective
in another .part. Sub-sections (2) and (3) of s. 12 were clearly
prospective but the words of the first sub-section showed retrospective operation.
Nilkanth Ram Chandra v. Rasiklal, (1949) 51 Born. L.R. 280
and Chandra Singh M anibhai v. Surjitlal Sudhamal Chhabda,
[1951] S.C.R. 221, distinguished.
·
Rhonda Urban Council v. Taff Vale Railway, [1909] A.C. 253,
Mullins v. Treasury of Surrey, (r88o) 5 Q.B.D. 170 and Fitzgerald
v. Champne:ys, (1861) 70 E.R. 958, referred to.
CIVIL
APPELLATE
JuRISDICTION: Civil
Appeal
No. 49 of 1961.
Appeal by special leave from the judgment and
order dated August II, 1960, of the Bombay High
Court in Civil Revision Application No. 320 of 1959.
M. C. Setalvad, AttorneywGeneral for India, Rameshwar Nath, S. iV. Andley and P. L. Vohra, for the
appellants.
C. ]{. Daphtary, Solicitor-General of India, Naushir
Barucha and ]{, R. Choudhuri, for the respondent.
1961. April 21. The Judgment of the Court was
delivered by
Hidayatullah ].
HIDAYATULLA.H, J.-This is a tenant's appeal, with
the special leave of this Court, against an order of
Naik, J., of the High Court of Bombay in Civil
Revision Application No. 320 of 1959, by which he
r
2 S.C.R. SUPREME COURT REPORTS
161
disallowed certain rale&s raised by the appellants. The
196I
res0
pon
8
dent isbthe andlord.
11
h d
d
Shah Bhojraj
n eptem er 11, 1942, the appe aD;ts a exe.cute Kuverji Oil Mills
a rent note, under which they were In occupatiOn of 0- Ginning Factory
the premises in dispute. The period of the tenancy
v.
was 15 years, and it expired by efflux of time on Subbash Chandra
March 14, 1957. The landlord thereupon filed a snit Yograj Sinha
on April 25, 1957, for possession of the premises, in l-iidayatullah J.
the Court of the Joint Civil Judge (Junior l)ivision),
Erandol. Meanwhile, under s. 6 of the Bombay Re~ts,
Hotel and Lodging House Rates Control Act., 1947,
(to be called the Act, in this judgment), a notification
was issued, applying Part II of the Act to the area
where the property is situated. The appellants claimed protection of s. 12 in Part II of the Act, which
deprived the landlord of the right of possession under
certain circumstances. The Civil Judge framed three
preliminary Issues, which were as follows:
"1. Whether this Court has jurisdiction to try
the suit?
2. Whet}:ler the plaintiff's suit fo

## Text

2 S.C.lt. SUPREME COURt REPORTS
159
· "Were the evacuee to come back he could demand
1961
to take possession of the siteJ and so it cannot be
G kh
R
said that the right has ceased to exist. The right
01 ;,
am _
ceases only if the ocqupier leaves the village perma- custodian General
nently with no intention of returning, ... "
of India, Delhi
It was nobody's case that Fakira and his son had left
Raghubar
the village temporarily and were to return. lt was
Dayal ;.
said in paragraph 5 of the written statement of
respondents 1 to 3 that Fakira abandoned the house
only in 194 7 at the time of partition. The entire case
was that Fakira had migrated to Pakistan and had
abandoned the village.
We are therefore of opinion that Fakira did not
possess any such right in the land in -suit which could
vest in the Custodian and that therefore the property
in suit is not 'evacuee property'. We therefore allow
the appeal with costs throughout and, setting aside
the order of the Court below, allow the petition and
quash the order of the Custodian General dated June
17, 1952, declaring the property in suit to be evacuee
property.
Appeal allowed.
SHAH BHOJRAJ KUVEI~JI.OIL MILLS
AND GINNING FACTORY
v.
SUBBASH CHANDRA YOGRAJ SINHA
(S. K. DAs, J. L. KAPUR, M. HIDA YATULLAH,
J. C. SHAH and T. L. VENKATARAMA AIYAR, JJ.)
Rent Control-Landlord's right to recover possession-Statutory bar-If prospective or retrospective in operation- Bombay
Rents, Hotel and Lodging House RattJs Control Act, 1947 (Bom. 57
of 1947), ss. 6, 12(1).
On the expiry vf the appellant's tenancy for the occupation
of the premises-in dispute, the respondent who was the landlord
filed a suit for possession of the premises. Meanwhile under s. 6
of the Bombay Rents, Hotel and Lodging House Rates Control
Ig6I
160
SUPREME COURT REPORTS
ti962]
I96r
Act, 1947, a notification was issued applying Part II of the Act
to the area where the property was situated. The appellants
Shah Bhoj1aj claimed protection of s. 12, Part II of the Act, which deprived
Kuve1ji Oil Mills the landlord of the right of possession under certain circum-
& Ginning Factrry stances. The Court of first instance decided the suit against the
v.
appellant and the High Court ruled that s. 12 was prospective
Subbash Chandra in character and did not apply to pending suits or proceedings.
Yograj Sinha On appeal by special leave
Held, that the point of time when sub-s. (r) of s. !2 operates
is when the decree for recovery of possession has to be passed.
The language of the sub-section which provides that the landlord is not entitled to recover possession if the tenant pays or
shows his willingness to pay the standard rent and to observe
the other conditions of the tenancy is such that it applies equa11y
to suits pending when Part Ir. comes into force and those to be
filed sub.jeq uen.tly and is not limited only to suits filed after the
Act comes into force in a particular area.
A section may be prospective in one part and retrospective
in another .part. Sub-sections (2) and (3) of s. 12 were clearly
prospective but the words of the first sub-section showed retrospective operation.
Nilkanth Ram Chandra v. Rasiklal, (1949) 51 Born. L.R. 280
and Chandra Singh M anibhai v. Surjitlal Sudhamal Chhabda,
[1951] S.C.R. 221, distinguished.
·
Rhonda Urban Council v. Taff Vale Railway, [1909] A.C. 253,
Mullins v. Treasury of Surrey, (r88o) 5 Q.B.D. 170 and Fitzgerald
v. Champne:ys, (1861) 70 E.R. 958, referred to.
CIVIL
APPELLATE
JuRISDICTION: Civil
Appeal
No. 49 of 1961.
Appeal by special leave from the judgment and
order dated August II, 1960, of the Bombay High
Court in Civil Revision Application No. 320 of 1959.
M. C. Setalvad, AttorneywGeneral for India, Rameshwar Nath, S. iV. Andley and P. L. Vohra, for the
appellants.
C. ]{. Daphtary, Solicitor-General of India, Naushir
Barucha and ]{, R. Choudhuri, for the respondent.
1961. April 21. The Judgment of the Court was
delivered by
Hidayatullah ].
HIDAYATULLA.H, J.-This is a tenant's appeal, with
the special leave of this Court, against an order of
Naik, J., of the High Court of Bombay in Civil
Revision Application No. 320 of 1959, by which he
r
2 S.C.R. SUPREME COURT REPORTS
161
disallowed certain rale&s raised by the appellants. The
196I
res0
pon
8
dent isbthe andlord.
11
h d
d
Shah Bhojraj
n eptem er 11, 1942, the appe aD;ts a exe.cute Kuverji Oil Mills
a rent note, under which they were In occupatiOn of 0- Ginning Factory
the premises in dispute. The period of the tenancy
v.
was 15 years, and it expired by efflux of time on Subbash Chandra
March 14, 1957. The landlord thereupon filed a snit Yograj Sinha
on April 25, 1957, for possession of the premises, in l-iidayatullah J.
the Court of the Joint Civil Judge (Junior l)ivision),
Erandol. Meanwhile, under s. 6 of the Bombay Re~ts,
Hotel and Lodging House Rates Control Act., 1947,
(to be called the Act, in this judgment), a notification
was issued, applying Part II of the Act to the area
where the property is situated. The appellants claimed protection of s. 12 in Part II of the Act, which
deprived the landlord of the right of possession under
certain circumstances. The Civil Judge framed three
preliminary Issues, which were as follows:
"1. Whether this Court has jurisdiction to try
the suit?
2. Whet}:ler the plaintiff's suit for possession of
the suib property is maintainable in view of the
Notification issued by the Government of Bombay
on 16th August, 1958, applying Part II of the Bombay Rents, Hotel and Lodging House Rates Control
Act? If not, what order should be passed?
3. What order?".
These Issues were decided against the appellants.
They filed a revision petition before the High Court
of Bombay, which was dismissed by the order under
appeal. Naik, J., who heard the revision, followed a
previous Full Bench ruling of the Bombay High
Court reported in N ilkanth Ramachandra v. Rasiklal (1). In that case, Chagla, C. J. (Gajendragadkar
and Tendolkar, JJ., concurring) had held that s. 12 of
the Act was prospective and did not apply to pending cases. Reliance was also placed by N aik, J ., on
the decision of this Court in Ohandrasingh Manibhai
v. Surjit Lal Sadhamal Chhabda (2), where the opinion
of the Full Bene~ of the Bombay High Court was
approved.-
(r) (1949) 51 Born. L.R. z8o.
(2) [1951] S.C.R. 221.
~·
162
SUPREME COURT REPORTS
[1962]
I96I
Two questions have been raised in this appeal, and
Sh h nh .
. they are (1) whether by virtue of the first proviso to
Kuve:ji oi?;;~lls ~· 50 of the Act; all the provisions of Pa~t II includM
&-Ginning Factory 1ng s. 12 were not expressly made applicable to all
v.
suits; and (2) whether by virtue of s. 12(1) of the Act,
Su&uash. Ch~ndra which applied independently by the extension of the
Yogra; Smha Act to the area where the property is situate, the suit
Hidayatullah J. was not rendered incompetent and the landlord
deprived of his remedy of possession.
Before we deal with these contentions, it is neces·
sary to see some of the relevant provisions of this
Act. The Act was not the first to be passed ontthe
subject of control of houses, etc. Pre-yiously, there were
two other Acts in force in the State of Bombay, viz.,
the Bombay Rent Restriction Act, 1939 and the Bombay Rents, Hotel Rates and Lodging House Rates
(Control) Act, 1944. By s. 50 of the Act, these Acts
were repealed. The first proviso, however, enacted
(omitting unnecessary parts)~
"Provided that all suits and proceedings between
a landlord and a tenant relating to the recovery or
fixing of rent or possession of any premises to which
the provisions of Part II apply ............ which are
pending in any Court, shall be transferred to and
continued before the Courts which would have jurisdiction to try· such suits or proceedings under this
Act or shalJ be continued in such Courts, as the
case may be, and all the provisions of this Act and
the rules made thereunder shall apply to all such
suits and proceedings."
It is this proviso which, it is claimed, has retrospective effect and s. 12 of the Act which is in Part II is
said to apply to all pending cases, whenever the Act
is extended to freRh areas. Section 12 of the Act reads
as follows:
"12. (I) A landlord shall not be entitled to the
recovery of possession of any premises so long as
the tenant pays, or is ready and willing to pay, the
amount of the standard rent and permitted increa~
ses, if any, and observes and p(jrforms the other
conditions of the tenancy, in so far as they are con·
sistent with the provisions of this Act.
.I
2 S.C.R .. SUPREME COURT REPORTS
163
(2} No suit for recovery of possession shall be
1961
instituted by a landlord against a tenant on the
d
f
f
h
d d
Shah Bhojraj
groun
o non-payment o
t e stan ar
rent or K
.. 0 ., M"ll
,
.
.
uver;t
i•
J s
permitted Increases due, unttl the exptration of one Q>. Ginning Factory
month next after notice in writing of the demand
v.
of the standard rent or permitted increases has Subbash Chandra
been served upon the tenant in the 1nanner proYograJ Sinha
vided in section 106 of the Transfer of Property a·
--~, 1
Act, 1882.
1dayatu ah
•
(3) (a) Where the rent is payable by the month
and there is no dispute regarding the amount of
standard rent or permitted increases, if such rent
or increases are in arrears for a period of six months
or more and the tenant neglects to make payment
thereof until the expiration of the period of one
month after notice referred to in sub-section (2),
the Court may pass a decree for eviction in any
such suit for recovery of possession.
(b) In any other case, no decree for eviction shall
be passed in any such suit if, on the first day of
hearing of the snit or on or before such other date
as the Court may fix, the tenant pays or tenders in
Court the standard rent and permitted increases
then due and thereafter continues to pay or tender
in Court regularly such rent and permitted increa.
ses till the suit is finally decided and also pays costs
of the suit as directed by the Court.
(4) Pending disposal of any such suit, the Court
may out of any amount paid or tendered by the
tenant pay to the landlord such amount towards
payment of rent or permitted increases due to him
as the Court thinks fit.
Explanation.-In any caRe where there is a dis.
pute as to the amour..t of standard rent or permitted
increases recoverable under this Act the tenant
shall be deemed to be ready and willing to pay such
amount if, before the expiry of the period of one
month after notice referred to in sub-section (2), he
makes an application to the Court under sub-section (3)· of section II a.nd thereafter pays or tenders
the amount of rent or permitted increases specified
in the order made by the Court."
164
SUPREME COURT REPORTS
[1962]
r961
By sub-sa. (1) and (2) of the second section, which
5 ). h Bh .
. dealt with the extent of the application of the Act, it
"a
o;ra'
'd d h
p
I
d IV f th A t h II
Kuvsrji Oil Mills was prov1 e
t at
arts
. an,
o
e c s a
~Ginning Factory extend to the pre-Reorgan1satwn State of Bombay,
v.
excluding transferred territories, and Parts II and III
Subbash. Ch~ndra shall extend respectively to the areas specified in
YograJ
s~nha Scbs. I and II to the Act, and shall continue to extend
Hidayatullah J. tod anybsucfh hareda, no~wi.thstahndi~g that.6
thde areBa ceabse to e o t e escr1ptwn t ere1n spem e .
y su .
s. (3}, the State Government was authorised, by notification in the Official Gazette, to extend to any other
area, any or all the provisions of Part II or Part III
or of both. It would appear from this that Parts I
and IV came into operation throughout the territories
of the pre-Reorganisation State of Bombay. Part II
came to bf3 extended to this area by the notification,
and after that extension, Part-s I, II and IV of the Act
began to apply, while the suit was pending. We are
not concerned in this appeal with Part III.
The contention on behalf of the appellants is that
by the latter part of the proviso to s. 50, relevant
portions of which have been quoted earlier, all the
provisions of Part II were extended to this area, and
that all pending suits and proceedings were governed,
no matter when filed. The notification extending Part
II of the Act to this area had, it is contended, also the
same effect independently of the first proviso to s. 50.
It is contended, therefore, that sub-s. (1) of s. 12,
which prohibits a landlord from recovering possession
of any premises so long as the tenant pays or is ready
and willing to pay the amount of the standard rent
and permitted increases, if any, and is also observing
the other conditions of the tenancy in so far as they
are not inconsistent with the provisions of the Act,
applies to the present case and the tenants are protected. It is also contended that if the first proviso
to s. 50 was limited to such suits only as were pending on the date of the passing of the Act, s. 12(1), on
its own terms, is applicable to the present case, and
being retrospective in character, lea.ds to the same
result. These two contentions were apparently-raised
in the Court of the Civil Judge and before the High
2 S.C.R. SUPREME COURT REPORTS
165
Court. The High Court, however, ruled that s. 12 was
I961
prospective in character and did not apply to pending Shah Bhojraj
suits or proceedings.
Kuverji Oil Milis
It is contended by the learned Attorney.General & Ginning Faetory
what the construction placed by the High Court upon
v
the first proviso to s. 50 is erroneous. Though he Subbash Cnandn~
concedes that the proviso must be read as qualifying
Yograj Sinha
what the substantive part of s. 50 enacts, he urges that Hidayatullah 1.
the proviso goes beyond that purpose and enacts a
substantive law of its own. He relies upon the following observations of Lord Loreburn, L. C., in Rhondda
Urban Council v. Taff Vale Railway (1), where a proviso to s. 51 of the Railway Cla.uses Consolidation
Act, 1845, was under consideration:
"It is true that s. 51 is framed as a proviso upon
preceding sections. But it is also true that the latter
half of it, though in form a proviso, is in substance
a fresh enactment, adding to• and not merely qualifying that which goes before.",
and contends that the latter portion of the proviso,
in question, being a substantive enactment, compre.
hends not only those suits which were pending on the
date of repeal but also those cases, which came within
the language of the latter part of the proviso, whenever the Act was extended to new areas. On behalf
of the landlord, the learned Solicitor-General a1·gues
that the pro-viso should be read as a proviso only to
the substantive enactment, and must be taken to
qualify the substantive portion of s. 50 only to the
extent to which it makes an exception to the repeal
and but for the proviso would be governed by the
repealed Acts. He relies upon Craies on Statute Law,
5th Edn., pp. 201-202, where the following passage
occurs:
"The effect of an excepting or qualifying proviso,
according to the ordinary rules of construction, is
to ~xcept out of the preceding portion of the enactment, or to qualify something enacted therein,
which but for the proviso would be within it: and
such a proviso r.annot be construed as enlarging thA
scope of an enactment wht\Jl it can be fairly and
(r} (1909) A.C. 253. 258.
166
SUPREME COURT REPORTS
[1962]
z96
properly construed without attributing to it that
. .
effect."
K~:,:;i ~~;J;;~lls
He also. relies _upon the following obser;ations of
&Ginninz Factory Lush, J., In Mulltn.s v. Treasurer of Surrey ( ):
v.
"When one finds a proviso to a section, the
Subbash Chandra
natural presumption is that, but for the proviso, the
Yograj Sinha
e·nacting pat't of the section would have included
Hidayatullah f.
the subject-matter of the proviso.,'
The law with regard to provisos is well-settled
and well-understood. As a general rule, a proviso is
added to an enactment to qualify or create an
exception to what is in the enactment, and ordinarily, ·a proviso is not interpreted as stating a
general rule. But, provisos are often added not as
exceptions or qualifications to the main enactment
but as savings clauses, in which cases they will not be
construed as controlled by the section. The proviso
which has been added to s. 50 of the Act deals with
the effect of repeal. The sn bstantive part of the sec~
tion repealed two Acts which were in force in the
St,ate of Bombay. If nothing more had been said, s. 7
of the Bombay Gcrwral Clauses Act would have applied, and all pending suits and proceedings would
have continued under t.he old law, as if the repealing
Act had not been passed. The effect of the proviso
was to take the matter out of s. 7 of tho Bombay
General Clauses Act and to provide for a special saving. It cannot be used to decide 'vhether s. 12 of tho
Act is retrospective.
It was observed. by Wood,
V. C., in Fitzgerald v. Champneys(2} that saving
clauses are seldom used t.o construe Acts. These clauses
are introduced into Acts which repeal others, to safeguard rights which, but for the savingf;, would be
lost. Tho proviso here saves pending suits and proceedings, and furthur enacts that suits and proceedings then pending arc t.o be transferred to the Courts
designated in the Act and an~ to continue under the
Act and any or all the provisions of the Act are to
apply to them. The learned Solicitor-General contends that the savings clause enacted by the proviso,
even if treated as su~stantive law, must be taken to
(t) (t88o) 5 Q.B.D. 170, 173
(2) (t86t) 2 J. & H. 31: 70 E .R. 958.
.,
'
2 S.C.R.
SUPRE~IE COUl"tT REPOHTS
167
apply onJy to snits anrl proceedings pending at the
x96x
tiu1e of the repeal w hi'ch~ but for the p1·oviso, would Sh h 8 , .
.
d b
1
A
I t
A
d .
th
a
''OJraJ
be governe
y t 1~
ct rcpcn. e~_.
~cor 1ng .to
.e l\uverji Oil Mills
learned Attorney -Genera. I, t.lw effect of t.he savings 18 & Ginning Factory
much widm·, and. it applie-s t.o such cases as come
v.
\\·ithio the 'vords of the proviso, whenever t.he Act is Sttubash Chat•dra
extended to new a·reas.
Yogtaj Sinha
These argun1eut.~ n.re interesting, nnd much can be
.....
Tlidayatullah J.
said on both sidrs, particularly ~s the Legislature has
by a subsequent. an1endtncnt changed the proviso.
But2 in our opinion, they need noL be considered in
this caso, in view of what we have d~cided on the
second point.
'
The second contention urgod by t.he learned Attorney-General t.hat s. 12(1) applied from the date on
which the Act ~was extended to t.he area. in question
is, in our opinion,. sound. Section 12( 1) enacts a rule
of decision, and it su.ys that a landlord is not entitled
to po~session if the tenant pays or shows his readiness
and willingness to pay the st-andard rent and to
observe the other conditions of the 'tenancy. Tl}e
word "tenant" is defined in the Act to include not
only ·a tenant, 'vhose ten~ncy subsists• but also any
person remaining, after the determination of the
lease, in possession with OJ.' without ·the assent of
the landlord. The present app~llants, as statutory
tenants, were within tho rule enacted by s. 12(1) and
entitled to its protection, if the sub-section could be
held applicable to this 'suit.
Both the Bombay High Court and' this Court bad,
on the previous occasiun~, observed that s. 12 of the
Act was p.rospective. ln those. cases, the learned
Judges were concerned with the interpretation of subss. (2) and (3) only, whieh, a.s the words of those subsections thou existing sl)ow, were·cleariy prospective,
a.nrl were applicable .f.o suit.s to ·be instituted after
the comiug into force of tlw Act.
J3ut a section
may he pro~pectiye in some pa.rt.s n.nd retrospective in ot.her parts.
\ V hile it is the ordinary .. rule
that suust~ntiv~ rights should not be held to be
taken a wa.y except by express provision or clear
implication, man}' Acts, though. proapective in form,
HiS
SUPR~ME COURT REPORTS
(1962]
I96I
have been given retrospective operation, if the in·
tention of the legislature is apparent. This is more
Shah Bhojt'aj
h
A
d t
t h
bl"
·
KuTnrji 011 Mills so, w e~ cts are passe
o p_rotec t e pu w against
~Ginning Factory some evil or abuse. (See Crates on Statute Law, 5th
v.
Edn., p. 365). The sub-section says that a landlord
Subbash Chandra shall not be entitled to the recovery of possession of
Yograj Sinha any premises so long as the tenant pays or is ready
H .d
, 11 h 1 and willing to pay the standard rent etc., and obser.
1 aya u a
·
d
.c
h
h
d' ·
f h
ves an per1orms t e ot er con 1t10ns o t e tenancy.
In other words, no decree can be passed granting possession to the landlord, if the tenant fulfils the conditions above mentioned.
The Explanation to s. 12
makes it clear that the tenant in case of a dispute
may make an application to the Court under sub-s. (3)
of s. 11 for fixation of a standard rent and may thereafter pay or tender the amount of rent or permitted
increases specified in the order t.o be made by the
Court. The tenants; in the present case, have expressed their readiness and willingness to pay, and it is
clear that they fulfil the requirements of sub~s. (I) of
s. 12, and the landlord is, therefore, not entitled to
the relief of possession.
Both the High Court as well as this Court in their
previous decisions, referred to above, were not called
upon to interpret sub*s. (1) of the Act. They were
dealing with appeals arising out of decrees already
passed. The observations that s. 12 was prospective
were made with reference to sub-ss. {2) and (3) and
not with respect to sub-s. (1), which did not even find
a mention in those judgments. The question then
wa.s whether s. 12 by itself or read with the proviso to
s. 50 was applicable retrospectively to appeals. Tha.t
is not the question which has arisen here. Then again,
s. 12( l) enacts that the landlord shall not be entitled
to recover possession, not "no suit shall be instituted
by the landlord to recover possession". The point of
time when the sub-section will operate is when the
decree for recovery of possession would have to be
passed. Thus, the language of the sub-section applies
equally to suits pending when Par~ II comes into
force and those to be filed subsequently. The contention of the respondent that the operation of s. 12(1)
2 S.C.R. SUPREME COURT REPORTS
169
is limited to suits filed after the Act comes into force·
1 961
in a particular area cannot be accepted. The conclu-
... h 1
l"~ .
.
·
f 1
1
. 4
b
d
~ u 1
JiiOJtaJ
s1on must o1 ow t 1at the present SUlli cn.nnot
e
e- 11·uverji Oil Mills
creed in favour of the respondent. The decision!:! of & Gim1ing Factory
the High Court and the Court of First Instance are
v.
thus erroneous, and must be set aside. ·
Subbaslt CJiandra
In the result, the appeal is allowed, and the two
Yograj Sinha
preliminary Issues are answered in favonr of the Hidayatullah 1.
appellants. Under the orders of this Court, the judgment of the Civil Judge was stayed. The suit will
now be decided in conformity with our judgment.
The respondent shall pay the costs of this Court and
of the High Court.
Appeal allowed.
P. J. IRANI
v.
THE STATE OF MADRAS
(B. P. SINHA, C. J., S. I{. Das, A. IC SaRKAR,
N. RAJAGOPALA AYYANGAR and J. R. MunHOLKAR, JJ.)
Rent Control-Restrictions on evictio1l--Statute empJwering
Government to exemp~ any premises from restrictions -C onstitutionality-Order exempting premises-Validity-When can be challenged-Practice, whether respondent can raise questiot~ decided against
Mm~M
adras Buildings (Lease and Rent Control) Act, I949
(Mad. XXV of I949L s. IJ-Constitution of India. Art. I4.
One C had obtained a lease of a cinema house which was to
expire in May 1942. In the m~.::antime litigation ensuerl. between
the owners of the cinema house, and the High Court appointed
receivers to administer the property. In 1940 one I offered to
take a lease of the cinema house for zr years.
The High Court
offered C the option of taking the lease for 2 r years but C was
willing to take it only for 7 years upto May 1947· Thereupon
the High Court ordered that a lease be given to C upto May
1947, and thereafter the lease be given to I upto May rg6r. In
accordance with this order the receivers executed two leases, one
in favour of C and a reversionary lease in favour of ~. Before
the lease in favour of C expired the Madras (Lease & Rent
Control) Act, 1946, came into force which protected tenants in
2l
April 21.