# NANAKRAK ETC v. KIJNDAIBAI ETC

- **Citation:** [1986] 2 S.C.R. 839
- **Court:** Supreme Court of India
- **Decided:** 1986-04-29
- **Case number:** Civil Appeal No. 5317 of 1983
- **Bench:** R.S. Pathak, V. Balakrishna Eradi, R.B. Misra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/nanakrak-etc-v-kijndaibai-etc-9327
- **Pages:** 12

## Headnote

B
Landlord and tenant -
Central Provinces and Berar
~,Letting of Houses and Rent Control Order 1949, clauses 22, 23,
24, 28 and 30 read with section 23 of the Contract Act, 1872 -
Whether a lease concluded between a landlord and a tenant in
contravention of clause 22 of the Rent Control Order can be
~
assailed by the landlord as a void transaction in a proceeding
' between the parties to the lease - Whether
the Notification
+ under clause 30 retrospective -
Concurrent findings of the
Courts below cannot be interfered with under Article 136 of
the Constitution.
Under clause 22(1) of the Central Provinces and Berar
Letting of Houses and Rent Control Order, 1949 every landlord
of a house situated in an area to which those provisions
extend is required by the statute to give intimation of a
~
vacancy to the Deputy Collllissioner. Clause 22(1} declares that
the landlord shall not let or occupy the house except in
accordance with clause 23. Clause 22(2) provides that no
person shall occupy a house except under an order under clause
23(1) or clause 24 or on an assurance from the landlord that
the house is being permitted to be occupied in accordance with
---1 clause 23(2). Clause 23 provides that the Deputy Comissioner
msy, within fifteen days from the date of receipt of the
intimation of a vacancy, order the landlord to let the vacant
,
house to any person holding an office of profit under th"
Union or State Government or to a displaced person or to an
evicted person and thereupon, notwithstanding any agreement to
the contrary, the landlord is obliged to let the house to such
person and place him in possession thereof. If the landlord
states that he needs the house for his own occupation he 1111St
satisfy the Deputy Collllissioner in that behalf. The clause
1>.L provides further that if no order is passed and served upon
r the landlord within the period mentioned in clause 23(1), it
is open to the landlord to let the vacant house to any person.
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840
SUPREME COURT REPORTS
[1986] 2 s.c.R.
Clause 28 empowers the Deputy Conmissioner to take or cause to
be taken such steps and use or cause to be used such force, as )...."
may be reasonably necessary for the purpose of securing
compliance with, or for preventing or rectifying any contravention of, the Rent Control Order. Clause 30 empowers the
State Government to exempt, by Notification in the official
Gazette, any house or class of houses or any person or class
of persons from all or any of the provisions of the Rent
Control Order. On October 24, 1968 a Notification was issued
under clause 30 exempting from all the provisions of Chapteri
Ill of the Rent Control Order any
house used for a nonresidential purpose, if it was constructed before January 1,
1967.
In
both
the
Civil
appeals
the
landlords
moved 1
applications before the Deputy Commissioner concerned to +
declare the tenancy lease entered into by them with their
respective tenants as void in as D11ch they were created in
violation of clauses 22 and 23 of Chapter III of the Rent
Control Order. The appellant-tenants who have lost their
defence pleas have come up in appeals by special leave.
Allowing the appeals, the Court,
HEU>: 1. Nowhere does the Central Provinces and Berar <
Letting of Houses and Rent Control Order, 1949 which ls par1
Eteria with the U.P. Act mandate that the Deputy Comissioner
1111St eject a person who has entered into possession of a house
in violation of clause 22. If upon a view of the circumstances
prevailing then, the Deputy Connissioner takes no action in ).-
the matter, there is no reason why the lease between the
landlord and the tenant, although inconsistent with clause 22,
should not be binding as between the parties thereto. It is ·~
not a void transaction. There is nothing in the Rent Control
Order declaring it to be so. Now if the lease is not void then
it is not open to either party to avoid the lease on the
ground that it is inconsistent with clause 22. The parties
would

## Text

839
NANAKRAK ETC.
A
v.
KIJNDAIBAI ETC.
APRIL 29, 1986
[R.S. PATHAK, V. BALAKRISHNA ERADI AND R.B. MISRA, JJ.]
B
Landlord and tenant -
Central Provinces and Berar
~,Letting of Houses and Rent Control Order 1949, clauses 22, 23,
24, 28 and 30 read with section 23 of the Contract Act, 1872 -
Whether a lease concluded between a landlord and a tenant in
contravention of clause 22 of the Rent Control Order can be
~
assailed by the landlord as a void transaction in a proceeding
' between the parties to the lease - Whether
the Notification
+ under clause 30 retrospective -
Concurrent findings of the
Courts below cannot be interfered with under Article 136 of
the Constitution.
Under clause 22(1) of the Central Provinces and Berar
Letting of Houses and Rent Control Order, 1949 every landlord
of a house situated in an area to which those provisions
extend is required by the statute to give intimation of a
~
vacancy to the Deputy Collllissioner. Clause 22(1} declares that
the landlord shall not let or occupy the house except in
accordance with clause 23. Clause 22(2) provides that no
person shall occupy a house except under an order under clause
23(1) or clause 24 or on an assurance from the landlord that
the house is being permitted to be occupied in accordance with
---1 clause 23(2). Clause 23 provides that the Deputy Comissioner
msy, within fifteen days from the date of receipt of the
intimation of a vacancy, order the landlord to let the vacant
,
house to any person holding an office of profit under th"
Union or State Government or to a displaced person or to an
evicted person and thereupon, notwithstanding any agreement to
the contrary, the landlord is obliged to let the house to such
person and place him in possession thereof. If the landlord
states that he needs the house for his own occupation he 1111St
satisfy the Deputy Collllissioner in that behalf. The clause
1>.L provides further that if no order is passed and served upon
r the landlord within the period mentioned in clause 23(1), it
is open to the landlord to let the vacant house to any person.
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840
SUPREME COURT REPORTS
[1986] 2 s.c.R.
Clause 28 empowers the Deputy Conmissioner to take or cause to
be taken such steps and use or cause to be used such force, as )...."
may be reasonably necessary for the purpose of securing
compliance with, or for preventing or rectifying any contravention of, the Rent Control Order. Clause 30 empowers the
State Government to exempt, by Notification in the official
Gazette, any house or class of houses or any person or class
of persons from all or any of the provisions of the Rent
Control Order. On October 24, 1968 a Notification was issued
under clause 30 exempting from all the provisions of Chapteri
Ill of the Rent Control Order any
house used for a nonresidential purpose, if it was constructed before January 1,
1967.
In
both
the
Civil
appeals
the
landlords
moved 1
applications before the Deputy Commissioner concerned to +
declare the tenancy lease entered into by them with their
respective tenants as void in as D11ch they were created in
violation of clauses 22 and 23 of Chapter III of the Rent
Control Order. The appellant-tenants who have lost their
defence pleas have come up in appeals by special leave.
Allowing the appeals, the Court,
HEU>: 1. Nowhere does the Central Provinces and Berar <
Letting of Houses and Rent Control Order, 1949 which ls par1
Eteria with the U.P. Act mandate that the Deputy Comissioner
1111St eject a person who has entered into possession of a house
in violation of clause 22. If upon a view of the circumstances
prevailing then, the Deputy Connissioner takes no action in ).-
the matter, there is no reason why the lease between the
landlord and the tenant, although inconsistent with clause 22,
should not be binding as between the parties thereto. It is ·~
not a void transaction. There is nothing in the Rent Control
Order declaring it to be so. Now if the lease is not void then
it is not open to either party to avoid the lease on the
ground that it is inconsistent with clause 22. The parties
would be bound, as between them, to observe the conditions of
the lease, and it cannot be assailed by either party in a
proceeding between them. [849 C-E]
!mrlldbar Agarw.1 aad Am:. v. State of U.P. & Ora.,
[1975) 1 s.c.R. 575 followed.
NANAKRAM v. KUNDALRAI
841
'-...(
Udboo Dus v. Prell Prakash and Anr. , A. I. R.
[ 1964)
A
Allahabad l approved.
Wamn Sbrini V88 Kini v. Batil.al llbagwandas & Co. • [ 19 59)
Supp. 2 S.C.R. 217 distinguished.
2.
Ex fade
the
terms
of
the
Notification are
prospective only, There is nothing to suggest that they
~operate retrospectively also. It is true that they refer to
r houses constructed before January 1, 1967, but that is by way
of description only, in order to define the category of houses
covered by the operation of the exemption conferred by the
Notification. Words used ·merely to define the subject matter
of the exemption should not be confused with the dimension of
time during which the exemption operates. Therefore, the
+Notification cannot be construed to be retrospective in
operation and, therefore, the tenancy created in favour of the
tenant in CA 5317 of 1983 with effect from October 1, 1968 is
exempted from the operation of clause 22 of the Rent Control
Order. (850 A-C; 849 G)
3. A concurrent finding of fact that a vacancy arose in
November 1961 in Civil Appeal 1200 of 1979 and a tenancy was
_ · created
by
the
respondent
landlord in favour
of
the
~appellant-tenant cannot be interfered with, wider Article 136
of the Constitution, by the Supreme Court. (850 D)
,
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5317 of
1983.
From the Judgment and Order dated 22. ll.1982 of the
Bombay High Court in Writ Petition No. 1043 of 1982,
WITH
Civil Appeal No. 1200(N) of 1979.
B
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From the Judgment and Order dated 1/2.3,1979 of the
G
Bombay High Court in Writ Petition No. 1043 of 1982.
V.A. Bobde, Ms.
A. Chauhan and A.K. Sanghi for the
Appellants in C.A. No. 5317 of 1983,
H
A
842
SUPREME COURT REPORTS
[19861 2 s.c.R.
M.N.
Phadke,
J.D.
Jain and
V.N.
Phadke
for
the
Respondent in C.A. No. 5317 of 1983.
P.H.
Parekh
and
Ms.
Lata Krishnamoorthy
for
the
Appellant in C.A. No 1200 of 1979.
M.N. Phadke, N.M. Ghatate and S.V. Deshpande for the
).....~
B
Respondent in C.A. No. 1200 of 1979.
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The Judgment of the Court was delivered by
PAillAK J. These are two civil appeals by special leave.
The question corrmon to these appeals is whether a lease
concluded between a landlord and a tenant in contravention of 1
clause 22 of the Central Provinces and Berar Letting of Houses
and Rent Control Order, 1949 (hereinafter referred to as 'the+
Rent Control Order') can be assailed by the landlord as a void
transaction in a proceeding between the parties to the lease?
Civil Appeal No. 5317 of 1983 is concerned with a shop
described as Block No.
5 in a non-residential building
situated in Dharampeth, Nagpur. The respondent is the landlord
and the appellant is the tenant. The building was constructed
before January 1, 1967, and the appellant became a tenant from,L;-
October 1, 1968.
Clause 13 of the Rent Control Order provides that no
landlord can determine a lease except with the previous
written permission of th~ Controller, for which he must apply
in writing to the Controller. Clause 13(3)(vi) provides that ~
if after hearing the parties the Controller is satisfied that
F
the landlord needs the premises
for hiimelf the Controller
must grant the landlord permission to determine the lease. On -~
January 19, 1980 the respondent petitioned the Controller for
permission on the ground that he
required the premises
occupied by the appellant as his son wanted to
co~nce
business therein. ·
G
It may be pointed out at this stage that clause 22 in
Chapter III of the Rent Control Order requires :
,,....
"22(1) Every landlord of a house situate in an area
to which this Chapter extends, shall -
H
NANAKRAM v. KUNDALRAI
[PATHAK, J.]
843
(a) within seven days
from
the date of
the
extension of this chapter, if the house is vacant
on such date; or
(b) within seven days from the date on which the
landlord becomes finally aware that the house will
become
vacant
or available for
occupation by
himself or for other occupation on or about a
specified date;
give
intimation
of
this
fact
to
the
Deputy
Commissioner of the district in which the area is
included or such other officer as may be specified
by him, in the Form given in the Schedule appended
to this Order, and shall not let or occupy the
house except in accordance with clause 23.
A
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(2) No person shall occupy any house in respect of
which this chapter applies except under an order
under sub-clause (1) of clause 23 or clause 24 or
D
on an assurance from the landlord that the house is
being permitted to be occupied in accordance with
sub-clause (2) of clause 23."
-).-
Clause 23 provides :
"23. (1) On receipt of the intimation in accordance
with clause 22, the Deputy Commissioner may, within
fifteen days from the date of receipt of the said
intimation, order the landlord to let the vacant
house to any person holding
an office of profit
under
the
Union
or
State Government or to a
displaced person or to an evicted person and
thereupon notwithstanding any agreement to the
contrary, the landlord shall let the house to such
person
and
place
him
in
possession
thereof
immediately, if it is vacant or as soon as it
becomes vacant :
Provided
that, if
the
landlord has,
in the
intimation given under clause 22, stated that he
needs the house of his own occupation, the Deputy
Commissioner shall if satisfied after due enquiry
that the house is so needed, permit the landlord to
occupy the same.
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844
SUPREME COURT REPORTS
[1986] 2 S.C.R.
(2) If no order is passed and served upon the
landlord within the period specified in sub-clause
(1), he shall be free to let the vacant house to
any person."
Clause 30 of the Rent Control Order empowers the State
Government to exempt, by Notification in the Official Gazette,
any house or class of houses or any person or class of persons
from all or any of the provisions of the Rent Control Order. i.
On October 24, 1968 a Notification was issued under the said
clause 30 exempting from all the provisions of Chapter III of
the Rent Control Order any house used for a non-residential
purpose if it was constructed before January 1, 1967.
On September
23,
1980 the respondent submitted in
writing that the building comprising the premises in question ~
had been constructed for a non-residential purpose prior to
January 1, 1967
and the appellant had entered into its
tenancy from October 1, 1968, and, therefore as the tenancy
had been created in violation of Chapter III of the Rent
Control Order it was void and there was no valid relationship
of landlord and tenant. The appellant filed his reply stating
that Chapter III did not apply to buildings constructed
before January 1, 1967 and, therefore, even if no intimation
had been given as required by Chapter III the tenancy did not
become void. On October 6, 1980 the Controller found that the
premises had been constructed prior to January 1, 1967 and the
appellant had become a tenant therein for a non-residential
purpose from October 1, 1968 and that the premises were exempt
from the provisions of Chapter III.
He
held that the
respondent's petition for the grant of permission was maintainable.
As regards the respondent's submission that the
tenancy was void he held that the plea was premature and could
not be sustained without evidence being adduced on the record.
Accordingly he directed the parties to lead evidence.
l
I
Against the order of the Controller the respondent
appealed, and the Appellate Authority allowed the appeal on
February 17, 1981 holding that the Notification of exemption
operated from October 24, 1968 and the tenancy· in favour of ~
the appellant had become void. He observed that at the time
when the tenancy was created the provisions of Chapter III
were in operation and there was
uo exemption from such
...
NANAKRAM v. KUNDALRAI
[PATHAK, J.]
845
, operation. The appellant filed a review petition contending
~,,..i_ that the appeal filed by the respondent was not maintainable
and could not be entertained by the Appellate Authority. He
also questioned the findings on the merits rendered by the
Appellate Authority in the appeal. The review petition was
rejected on March 2, 1982.
The appellant then filed a writ petition in the Bombay
~ High Court which was dismissed by its judgment and order dated
r November 22, 1982. The High Court held that the appeal filed
by the respondent was maintainable under clause 21(1) of the
Rent Control Order, that the exemption provided by the
Notification of October 24, 1968 operated prospectively only,
t
that therefore clause 22 in Chapter 111 was in operation at
the time when the tenancy was entered into, and consequently
* the Appellate Authority was justified in holding that as no
intimation was given as ,contemplated by clause 22 the tenancy
was invalid.
In Civil Appeal No. 1200 of 1979 the respondent is the
owner of a shop situated at Akola. He instituted a suit for
possession of the ·shop alleging that it was first taken on
lease by one Shamji Bhai in 1958 and during the next year it
_
passed into the joint possession of Shamj i Bhai and the
;,lr appellant Kaku Bhai as tenants. Some time after November 1961
the appellant Kaku Bhai alone continued in possession. The
respondent contended that the lease in favour of Shamji Bhai
>
in 1958 and thereafter to Kaku Bhai in 1961 were invalid and
inoperative inas1111ch as they were entered in violation of
"i clause 22 of the Central Provinces and Berar Letting of Houses
and Rent Control Order, 1949 ('the Rent Control Order'), as no
intimation was given that the premises had fallen vacant in
-t 1958 when let out to Shamji Bhai nor in 1961 when let out to
~-
the appellant Kiku Bhai. Alleging that the appellant Kaku Bhai
was in possession not as a tenant but as a mere licencee or a
trespasser the
respondent
claimed possession and
mesne
profits.The appellant resisted the suit and inter alia pleaded
that he was a tenant of the premises, and that having accepted
him as tenant it was not open to the respondent to take the
l., plea that the lease was void. The Trial Court held that the
i.._1 lease in favour of Shamji Bhai and also the lease in favour of
the appellant were void because intimation of the vacancy had
not been com1111nicated to the statutory authority at the
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846
SUPREME COURT REPORTS
[1986] 2 S,C,R.
relevant time and, therefore, the appellant 111.1st be treated as
A
being in permissive possession as a licencee. The suit was ~
decreed. On appeal the Bombay High Court held that the lease
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in favour of Shamji Bhai and thereafter the lease in favour of
the appellant were hit by clause 22(2) of the Rent Control
Order and were, therefore, void. The appeal was dismissed.
The point common to both the appeals is whether it is
open to a landlord in a proceeding for permission to terminate ~
the tenancy and for possession of the premises to urge that 'T
the lease between the parties is void inas111.1ch as it was
entered in contravention of clause 22 of the Rent Control
Order.
It is contended for the appellants in both the appeals
that it is not open to the landlord to take such a plea
because although the lease may
not be
binding on the
Controller or the Deputy Commissioner it is operative as
between the parties and cannot be questioned by either in a
proceeding instituted by the one against the other. The
appellants rely on "1rlidhar Agarwal and Anr. v. State of U.P.
and Ors., [1975] l S.C,R, 575. That was a case arising under
the U.P. (Temporary) Control of Rent and Eviction Act,
1947
(herein after referred to as 'the U.P. Rent Act'). The Court+
was concerned with the question whether a suit filed by the
appellants for recovery of possession, on the basis that the
tenancy
created
by
the
predecessor-in-interest
of
the
appellants in favour of the respondent had expired, was
maintainable in law inas111.1ch as it was instituted without
obtaining the permission of the District Magistrate under ~
s.3(1) of the U.P. Rent Act. The Trial Court decreed the suit,
but on appeal the High Court reversed the decree holding that
the suit was not maintainable in view of section 3, and in the
circumstances, it dismissed the suit. On appeal to this Court,
the Court repelled the plea raised by the appellants-landlords
that the respondent was not a tenant and held that, therefore,
permission was necessary in order to maintain the suit. In
taking that view this Court referred to 1ldboo Dass v. Prell
Prakash and Anr., A.I.R. 1964 Allahabad 1, where a Full Bench
of the Allahabad High Court had laid down that a lease made in
violation of the provisions of s. 7(2) of the U.P. Rent Act
would be
valid between the parties and would
create a
relationship of landlord and tenant between them although it
NANAKRAM v. KUNDALRAI
[PATHAK, J. ]
847
._,...._ might not bind the Rent Control Officer. This Court did not
doubt the correctness of the principle propounded in that case
A
and held that the respondent before them was a tenant. Learned
counsel for the respondent invited our attention to Waman
Shriniwas Kini v. Ratilal Bbagwandas & Co., [1959] Supp. 2
S.C.R. 217. That was a case under the Bombay Hotel and Lodging
B
Houses Rates Control Act, 1947. The appellant was a tenant of
a shop. He let it out to sub-tenants. The respondent-landlord
~ brought a suit for ejectment aga,inst the appellant on the
ground that s. 15 of the Bombay Hotel and Lodging Houses Rates
Control Act, 1947 prohibited sub-letting and that as a land-
..,
lord he had a right to evict the tenant on that ground. When
the matter came in appeal to this Court, the Court held that
C
-
,_..·, even though the lease between the parties recognised subletting, as the suit was brought not for the enforcement of
the agreement but to enforce the right of eviction flowing
directly from an infraction of s.15 of the Act, the respondent
was entitled to sue for ejectment.
The provisions of clause 22 and clause 23 of Chapter Ill
of the Rent Control Order have been extracted earlier. It is
apparent that under clause 22(1) every landlord of a house
situated in an area to which those provisions extend is
required by the statute to give intimation of a vacancy to the
Deputy Commissioner. Clause 22(1) further declares that the
landlord shall not let or occupy the house except in
accordance with clause 23. Clause 22(2) provides that no
person shall occupy a house except under an order under clause
23(1) or clause 24 or on an assurance from the landlord that
~ the house is being permitted to be occupied in accordance with
clause 23(2). Clause 23 provides that the Deputy Commissioner
may, within fifteen days from the date of receipt of the intimation of a vacancy, order the landlord to let the vacant
-
house to any person holding an office of profit under the
Union or State Government or to a displaced person or to an
evicted person and thereupon, notiwithstanding any agreement
to the contrary, the landlord is obliged to let the house to
such person and place him in possession thereof. If the landlord states that he needs the house for his own occupation he
1111St satisfy the Deputy Commissioner in that behalf• The
clause provides further that if no order is passed and served
upon the landlord within the period mentioned in clause 23(1),
it is open to the landlord to let the vacant house to any
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848
SUPREME COURT REPORTS
[19861 2 s.c.R.
person. Clause 28 empowers the Deputy Conmissioner to take or
cause to be taken such steps and use or cause to be used such
force, as may be reasonably necessary for the purpose of
securing compliance with, or for preventing or rectifying any
contravention of, the Rent Control Order.
Now, in deci.ding ltlrlidbar Agarwal, (supra) this Court
approved of the proposition of the law laid down by the
Allahabad High Court in Uclhoo Dass, (supra). The High Court 1
had the provisions of s. 7 and s. 7A of the U,P, Rent Act
before it. Section 7 required the landlord to report to the
District Magistrate if his house had fallen vacant or was
about to fall vacant, and thereupon the District Magistrat'
was empowered to direct the landlord to let the premises to a
person specified in the order. The High Court dealt with the
question whether a lease between the landlord and another
person in violation of the order of the District Magistrate
would be a valid lease as between the parties thereto. It held
that such a lease would be valid between the parties. It would
not, however, be binding on the District Magistrate. That it
would not be binding on the District Magistrate was evidenced
by the power conferred upon him under s. 7 A(l) of the U. P.
Rent Act to take proceedings for the eviction of such tenant.
Section 7A(l) provided that if the vacancy of an accommodation ·~
was not reported or a person occupied an accoumodation in
contravention of an order issued under s, 7(2) the District
Magistrate could require him to show cause why he should not
be evicted from it. If he failed to show cause the District
Magistrate could direct him to vacate the accoumodation and if
he failed to vacate the District Magistrate could use force to
~
evict him. The power conferred on the District Magistrate to
..
-
take proceedings for the eviction of such tenant was discre-
~.,,,
tionary. It was open to the District Magistrate not to
~"'~
exercise the power if there was undue delay or if for other
good reason he found it inexpedient to do so. If he did not
exercise the power conferred by s, 7 A( l), the lease between
the landlord and the other person would continue to subsist
and that other person would continue to enjoy the status of a
tenant. It would be a valid lease. It could not be regarded as
a void lease. In a case under the Rent Control Order, with 'f. _.
which these appeals are concerned, the position appears to be
materially similar. The landlord is prohibited by clause 22(1)
from occupying the house or granting a lease except in
,, ..
'
NANAKRAM v. KUNDALRAI
[PATHAK, J. ]
849
accordance with clause 23. There is a prohibition under clause
~
22(2) on any other person seeking to occupy the house, except
again in accordance with clause 23. In clause 23 it is the
Deputy Commissioner who will order the landlord to let the
vacant house to a person indicated by him, a person who falls
in one of the categories specified in the clause or, if he is
satisfied, he may permit the landlord himself to occupy the
house. As was the position under the U.P. Rent Act, so also
under the Rent Control Order, the Deputy Commissioner has
t power under clause 28 to take steps and use force for the
purpose of securing compliance with, or for preventing or
rectifying, any contravention of the Rent Control Order.
Clause 28 speaks of a power conferred on the Deputy Commissioner in that behalf. Nowhere does the Rent Control Order
mandate that the Deputy Commissioner must eject a person who
has entered into possession of a house in violation of clause
22. If upon a view of the circumstances prevailing then the
Deputy Commissioner takes no action in the matter, there is no
reason why the lease between the landlord and the tenant,
although inconsistent with clause 22, should not be binding as
between the parties thereto. It is not a void transaction.
There is nothing in the Rent Control Order d'eclaring it to be
so. Now if the lease is not void then it is not open to either
party to avoid the lease on the ground that it is inconsistent
with clause 22. The parties would be bound, as between them,
to observe the conditions of the lease, and it cannot be
assailed by either party in a proceeding between them.
On this view alone both the appeals must be allowed.
In Civil Appeal No. 53t7 of 1983 an alternative point has
been raised on behalf of the appellant. It is urged that
although the Notification dated October 24, 1961 exempts from
the provisions of Chapter Ill of the Rent Control Order a
house used for a non-residential purpose if it is constructed
before January 1, 1967 the Notification must: be construed to
be retrospective in operation, and that, therefore, the
tenancy created in favour of the appellant with effect from
October 1, 1968 is exempted from the operation of clause 22 of
the Rent Control Order.
In other words,
because of the
exemption the tenancy could not be regarded as violating the
provisions of clause 22 and no question could arise of the
tenancy being void on that account. It' is not possible to
A
B
c
D
E
F
G
H
A
B
c
D
E
F
850
SUPREME COURT REPORTS
(1986) 2 s.c.R.
accept the contention. Ex f acie the terms of the Notification
.............
'
are prospective only. There is nothing to suggest that they
operate retrospectively also. It is true that they refer to
houses constructed before January 1, 1967, but that is by way
of description only, in order to define the category of houses
covered by the operation of the exemption conferred by the
Notification. Words used merely to define the subject matter
of the exemption should not be confused with the dimension of
time during which the exemption operates. This point m.ist ~
fail.
"
In Civil Appeal No. 1200 of 1979 another point raised on
behalf of the appellant is that no vacancy of the premises
took place in 1961 when the appellant was in possession as a·
tenant. The case is that the appellant was in joint possession
with Shamji Bhai before that, and the tenancy continued on
Shamji Bhai surrendering his tenancy rights in November 1961.
The Trial Court and the High Court have concurrently held as a
finding of fact that a vacancy arose in November 1961 and a
tenancy was
created by the respondent in favour of the
appellant on that occasion. We do not propose to interfere
with the finding.
In the result, on the view taken by us on the first point
in each of the two appeals, the appeals are allowed. In Civil
Appeal No. 5317 of 1983, we set aside the appellate order
dated February 17, 1981 of the Appellate Authority under the
Rent Control Order and the judgment and order of the Bombay
High Court in the writ petition filed by the appellant insofar
as they proceed on the finding that the lease is void. ,In
Civil Appeal No. 1200 of 1979 we set aside the judgment and
decree of the Bombay High Court and dismiss the suit filed by
the respondent. The paries in each appeal will bear their
costs.
S.R.
Appeals allowed.