# QUDRAT ULLAH v. MUNICIPAL BOARD, BAREILL Y

- **Citation:** [1974] 2 S.C.R. 530
- **Court:** Supreme Court of India
- **Decided:** 1973-11-29
- **Bench:** D. G. Palekar, V. R. Krishna Iyer, R. S. Sarkaria
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/qudrat-ullah-v-municipal-board-bareill-y-6162
- **Pages:** 14

## Headnote

A
U. P. (Temporary) Control of Rent and Eviction Act, 1947-Whether contract
B.
was a lease or licence or a composite one-Interpretation-Repeal and replacement
of an earlier Act by a later A.ct-Whether right under the temporary A.ct outlives the
Act itself.
The appellant's father had been collecting "tahbazari' dues under a contract
from the Municipal Board. Under the terms of the contract the contractor had the
right of use of sheds and shops as enjoyed by the Municipal Board as proprietor
and the contractor was empowered to let them to sub-tenants on rent.
IQ addition,
the contract granted certain other strips which were the flanks of the central road
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strip running between the stalls. In 1951, the Municipal Board filed a suit against
the contractor praying that the Board be put in absolute proprietary possession over
certain sheds, passages and some shops on the ground that the contract was a licence.
The contractor pleaded the status and protection of a tenant under the U. P.
(Temporary) Control of Rent & Eviction Act (U. P. Act 3of1947).
The trial court dismissed the suit, ·having regard to the then existing rent contrpl
law.. The Hiah Court held that the contract was a combination of a lease and
licence, a lease with respect to sheds and shops and licence as regards patrts or footpaths adjoining the roads; that a pavement could not be said to be "accommodation .. as defined in the Rent Control & Eviction Act and that the contractor- was
a mere licensee with respect to the pavements. Both the parties appealed to this
Court. Additional ground was urged by the Board that the 1947 Act having
been ~
by tho Uttar Pradesh Urban Buildinp (Regulations of Letting, Rent
and Evtction) Act, 1972, the Board was entitled to an ejectrnent decree even if the
contract Was a lease.
HELD : (1) There is no simple litmuS test to distinguish a lease as defined in
s. 105, Transfer of Property Act from a licence as defined in s. 52, Easements Act,
but the character of the transaction turns on the operative intent of the parties. If
an interest in immovable property entitling the transferor to enjoyment is created,
it. is a 1eaae; if pennission to use land without right to exclusive possession is alone
granted, a licence i~the legal result. [S33HJ
In the instant case, though the purpose of the transactions was not to grant
reau.Iar Icuel of Jand but to make over to the contractor the rifht to collect Municipal market dues only, it is not possible to ignore the effect o c1ear recitals transferrina to the contractor more rights than a mere licence implies. The shops and
sheds referred to in the contract arc the subject matter of a lease not licence only.
The contract _presupposes the application of the Act which is compatible only with
the creation of a lease.
Associated Hotels case, [19591 S.C.R. 265, followed.
(2) The High Court was not right in holding that the agreement wu a mere
licence as regards the 'patris ar footpaths adjoining the roads. The earlier contract
says; that "those in yelloW colour shall remain in possession of the first party". Further the bazar dues constit1;1te a benefit arising out of the land and may be immovable
·property which can be leased out. [536H; S37E)
Ramjiwan v. Hanoman Pars/rad, I. L. R. 16 Lucknow 191, referred to.
E.
(3) By definition 'accommodation' inc1udes gardens, grounds and outhouses,
B
if any, appurtenant to such building or part of a building. While the pavements
were appurtenant to the shops or Sheds leased, the paths and walks are separate
entities and not in fact or law attached to them. These are no appendages, no
adjuncts, no space so bound to the use of the buildings as to be treated as belonaing
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QUDRAT ULLAH v. MUNIC. BOARD (Krishna Iyer,/.)
531
to them. Since the patrls and pavements were not appurtenances, they fell outside
the contours of "accommodation" let out and constitute the subject of a distinct,
though connected demise incorporated in the same documents. Every nexus i

## Text

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530
QUDRAT ULLAH
v.
MUNICIPAL BOARD, BAREILL Y
November 29, 1973
[D. G. PALEKAR, V. R. KRISHNA IYER AND R. S. SARKARIA, J. J.J
A
U. P. (Temporary) Control of Rent and Eviction Act, 1947-Whether contract
B.
was a lease or licence or a composite one-Interpretation-Repeal and replacement
of an earlier Act by a later A.ct-Whether right under the temporary A.ct outlives the
Act itself.
The appellant's father had been collecting "tahbazari' dues under a contract
from the Municipal Board. Under the terms of the contract the contractor had the
right of use of sheds and shops as enjoyed by the Municipal Board as proprietor
and the contractor was empowered to let them to sub-tenants on rent.
IQ addition,
the contract granted certain other strips which were the flanks of the central road
C
strip running between the stalls. In 1951, the Municipal Board filed a suit against
the contractor praying that the Board be put in absolute proprietary possession over
certain sheds, passages and some shops on the ground that the contract was a licence.
The contractor pleaded the status and protection of a tenant under the U. P.
(Temporary) Control of Rent & Eviction Act (U. P. Act 3of1947).
The trial court dismissed the suit, ·having regard to the then existing rent contrpl
law.. The Hiah Court held that the contract was a combination of a lease and
licence, a lease with respect to sheds and shops and licence as regards patrts or footpaths adjoining the roads; that a pavement could not be said to be "accommodation .. as defined in the Rent Control & Eviction Act and that the contractor- was
a mere licensee with respect to the pavements. Both the parties appealed to this
Court. Additional ground was urged by the Board that the 1947 Act having
been ~
by tho Uttar Pradesh Urban Buildinp (Regulations of Letting, Rent
and Evtction) Act, 1972, the Board was entitled to an ejectrnent decree even if the
contract Was a lease.
HELD : (1) There is no simple litmuS test to distinguish a lease as defined in
s. 105, Transfer of Property Act from a licence as defined in s. 52, Easements Act,
but the character of the transaction turns on the operative intent of the parties. If
an interest in immovable property entitling the transferor to enjoyment is created,
it. is a 1eaae; if pennission to use land without right to exclusive possession is alone
granted, a licence i~the legal result. [S33HJ
In the instant case, though the purpose of the transactions was not to grant
reau.Iar Icuel of Jand but to make over to the contractor the rifht to collect Municipal market dues only, it is not possible to ignore the effect o c1ear recitals transferrina to the contractor more rights than a mere licence implies. The shops and
sheds referred to in the contract arc the subject matter of a lease not licence only.
The contract _presupposes the application of the Act which is compatible only with
the creation of a lease.
Associated Hotels case, [19591 S.C.R. 265, followed.
(2) The High Court was not right in holding that the agreement wu a mere
licence as regards the 'patris ar footpaths adjoining the roads. The earlier contract
says; that "those in yelloW colour shall remain in possession of the first party". Further the bazar dues constit1;1te a benefit arising out of the land and may be immovable
·property which can be leased out. [536H; S37E)
Ramjiwan v. Hanoman Pars/rad, I. L. R. 16 Lucknow 191, referred to.
E.
(3) By definition 'accommodation' inc1udes gardens, grounds and outhouses,
B
if any, appurtenant to such building or part of a building. While the pavements
were appurtenant to the shops or Sheds leased, the paths and walks are separate
entities and not in fact or law attached to them. These are no appendages, no
adjuncts, no space so bound to the use of the buildings as to be treated as belonaing
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QUDRAT ULLAH v. MUNIC. BOARD (Krishna Iyer,/.)
531
to them. Since the patrls and pavements were not appurtenances, they fell outside
the contours of "accommodation" let out and constitute the subject of a distinct,
though connected demise incorporated in the same documents. Every nexus is not
an appurtenance. The la'.w connotes principal and subsidiary items integrated by
use which is absent in the present case. Since the contract covers one of the leases
which is protected'"by the Act, ejectment in respect of the unprotected lease must
follow. The decree for eviction granted·by the High Court, except for certain por·
tions of the pavement, was correct. [S38 A-CJ
(4) The general principle regarding the consequence of repeal of a statute is
that the enactment which is repealed is to be treated, except as to transactions past
and closed, as if it had never existed. The operation of this principJe is subject to
any savings .which may be made expressly or by implication by the repealing enactment. If the repealina: enactment makes a sPeciaI provision regarding pendin~ or
past transactions it is this provision that will determine whether the liability ansina:
under the repeal:d enactment survives or is extinguished. Section 6 of the Uttar
Pradesh General Clauses Act applies pnerally in the absence of a special saving
provision in the repealing statute. Where a repeal is followed by a fresh legislation
on the subject the Court has to look to the provisions of the new Act to see whether
they indicate a different intention. Sec. 43 (2) (h) makes it clear that even if the
power for recovery of possession be one under the earlier Rent Control Law the later
Act will apply and necessary amendments in the pleadings can be made. This indicates that it is the later Act that must govern pending proceedings for recovery
of possession or recovery or fixation of rent. In the instant case the suit was not
even one under the. Act . but proceeds on the footinJ_ that the contractor was only a
licensee and so none of the savinp clau,.. ins. 43 (2) applies. [539 B; S40 A-DJ
HarlPadaPal Gho1hv: Tofojaddl/jardar, 601. L. R. l1933] Cal. 1438 and
Boddfntton v. Wtsson, [19Sl] 1 All E.R.166; 169, referred to.
The nature of the 1947 Act beina temporary the riaht comes to an end when the
temporary Act expirea at lout by efflux of time, if not by premature repeal. The
so called riaht is short lived and its loqevity, where it is derived under a temporary
statute, cannot exceed the duration of the statute it&e1f. [S41F]
Even if it was assumed thats.' of the 1947 Act has conferred a right on the tenant,
the survival of the ri'ht or the continuation of the operation of the Act to the proceedinas is all that is ensured, not the expansion or cxtensioh of th&t right. The
dispossession of the tenant was penn.iuible only if the arounds in s. 2 were satisfied
by the landlord. This riaht was circumscribed in content to conditions· set out and
limited in duration to the period beyond which the Act did not exist. To hold
otherwise would be to a:ive more quantum of right to the party than he would have
enjoyed. had the repeel not been made. Not to affect the previous operation cannot be converted into sanctionina subaequent operation. To read postmortem
operation into a temporary Act because of a premature rep~l of it was wrong.
On this footing the right, if any, that the contractor claimed. termin·ated with the
expiration of that temporary statute. lS41 G-HJ
· Thus (a) the disability of the Municipal Board to enforCe its cause of. action
under the ordinary law might not necessarily be transmuted into a substantive dght ·
in the contractor (b) the rights of a statutory tenant created under a temporary
statute ao to the extent of merely preventina the eviction so long as the temporary
statute lasts (c) the provisions of.a. 43 did not preaerve, subsequent to
repeal, any
right to rebuff the Board's claim for eviction and (d) s. 6 of the U.P. General Clauses
Act did not justify anything laraor or for any time Iona:er than s. 2 of the 1947
Act confers or lasts. lS43 B-CJ
Indira Solwnlalv. Custodian of Ei·acuee Property, Delhi and otfters, A.I.R. 1956
S. C., 77 at 84, Lachmeshwar Prasad Shukul and others v. Keshwar Lal Chaudhuri and others, A. I. R. 1941 Federal Court Vol. 28, p. S at 6,.State of Orissa v.
Bhuptnt/raKumar, A. I. R. 196.2 S.C., 94S,'referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 1727-1728 of
. 1968.
Appeal from the judgement and order. dated the 29th September
1964 of the Allahabad High Court in First Appeal No. 320of1955.
532
SUPREME COURT REPORTS
(1974) 2 S.C.R.
A. K, Sen, Yogeshwar Prasad, R. C. Jaiswal, S. K. Bagga, S. Bagga,
for the appellant (in C.A. 1727 /68) and respondent (in C.A. 1728/68).
Sarjoo Prasad and C. P. Lal, for the respondent (in C.A. 1727 /68)
and appellant (in C.A. No. 1728/68).
The Judgment of the Court was delivered byKRISHNA IYER, J.-This litigation, started in 1951, has lived long,
although the main point on whch the fate of the case rests is the construction of a cntract b'tw,en the Municipal B)ard, Bareilly (the
respondent in Civil Appeal No. 1727of1968) and the Thekedar under
it of the Municipal market, one Habibullah (the father of the appellant in Civil Appeal No. 1727 qf 1968). The present appellant is
the legal representative of the defendant and has himself filed an appeal
(C.A. No. '1728 of 1968) where the Board is the sole respondent. Instant or early justice seems impossible without radical re-orientation
and systematic changes in the judicial process, as these two appeals,
which have survived two decades, sadly illustrate.
Now, a brief narration of the facts. Although the canvass has been
spread out, the relevant dispute lies in a narrow compass, and can be
resolved by a close look at the terms of Ex. 'I' (substantially repeated
in Ex. '4') and by applying settled rules which tell off a lease from a
licence when the deed is ambiguous. It is unfortunate that legal
drafting by the respondent'i lawmen has left the key documents in a
blurred state, so much so, the trial Judge and the learned judges in
appeal have had to diverge in their conclusions, and before us long arguments have been hopefully addressed to help us designate the
contract with certitude a lease or license.
The defendant (the appellant's father) had for several years been
collecting 'tahbazari' dues from the market in Patelganj under contracts from the Municipal Board, the last of which, according to the plaintiff, was executed on 19-11-44 (Ex. "1 "). The defendant's case is that
on the expiration of the term of Ex. '1 ',a fresh contract dated 31-12-47,
Ex. '4' was entered into between the parties, substantially repeating
the same terms and conditions. On the basis that Ex. '4' had not
materialised into a binding contract for want of Government approval,
the plaintiff ineffectually demanded of the defendant, by notice Ex.
'6' of 1951, to desist from realising the market dues and followed it
up with a suit praying for many reliefs of which the crucial one runs
thus :
"(a) The plaintiff may be put in absolute proprietary possession after dispossessing the defendants over the sheds and
passage shown in green and shops bearing Nos. 17 to
20 and 24 to 28 and 31 and 32 situate in Bazar Patelganj
known as Cambellgunj Sabzimandi Bareilly as shown
in the map attached to the plaint."
The plaintiff claims Ex. 'l' to be a licence which, if correct, undoubtedly entitles him to the relief while the defendant pleads the status and
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QUDRAT ULLAH v.· MUNIC. BOARD (Krishna Iyer, J.)
533
protection of a tenant undrr the U .P. (Temporary) Control of Rent
and Eviction Act (U.P. Act· of 1947) (hereinafter referred to as the
Act). The decision of this case largely depends on Ex. 'l' being a
lease or a licence. We are satisfied from the evidence op record that
the finding of the Courts below that Ex. '4' is bindi~g o_n the plaintiff is sound but since the effect of both the documents 1s fairly the same
we may as well proceed to interpret them straightway. In this Court,
however, an additional ground has been urged by the responde~t that
the Act 'having been repealed by the Uttar Pradesh Urban Buildings
(Regulation of letting, rent and eviction) Act, 1972 (Act of 1972) (for
short,.called the later Act), the Board is entitled to an ejectment.decree
. even if Exs. 'l' and '4' are leases.
The trial court held that Ex. 'l' and '4' were demises·ofthe Municipal market and dismisse.d the suit having regard to the Rent Control
Law then extant which did not exempt municipal buildings from the
operation thereof.· The High Court expressed its view that :
. "0.n going through the entire document, we have come to
the conclusion that Ex. 1 is a combination of a lease and a
license. It is a lease with repsect to the sheds and eleven
shops. But the agreement was a mere license as regards
the patries or footpaths adjoining the roads."
Holding Ex. 'I' to be a composite deed, the learned Judges declined
the relief relating to the shops and sheds but put a different construction on the pavements and patris included in the Ex. 'l' The court
observed :-
. "A pavement cannot be said to be an accommodation
as defined by section 2 of the Rent Control & Eviction Act.
We have held that the defendant was merely a licensee with
respect to I.he pavements. So the requirements of section
106 Transfer of Property Act do not came irito play as regar- ·
ds the plaintiff's claim for ejectme1jt from the patris. Neither. the Rent Control and Eviction Act, nor section 106
Transfer of Property Act saves the defendant .as.. regards
. plaintiff's claim for ejectment from the patris".
Consequent J?Odifications in the monetary part of the decree were also
made, followmg upon a decree for possession to the limited extent of
patris and pavements.
·
·Both sides have appealed ·but we .have proceeded, for the sake of
convenience, to· treat the parties as appellant and respondent as in
Civil ,\ppeal No. 1727 of 1968. The primary bone of contenton is
the lease-licence controversy but even if we decide in favour of Ex.
'l' and '4', being lettings, the question of the impact of the later Act
remains to be decided :,
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There is no simple litmus test to distinguisha lease as defin,ed iri
s.105 Transfer of Property Act from .a licence as defined,. in s. 52,
Easements Act, but the character of the transaction turns on the operative intent of the parties. To.put it pithily, if an interest in ilJ?lllova)>le
534
SUPREME COURT REPORTS
(1974] 2 s.c.a.
property, entitling the transferees to enjoyment, is created, it is a lease;
if permission to use lahd without right to exclusive possession is alone
granted, a licence is the legal result. Marginal variations to this .broad
statement are possible and Ex. 'I' and '4' fall in the grey area of
unclear recitals. The law on the point has been stated by this Court
in the Associated Hotels' case(!). In Halsbury's Laws of England,
Volume 23, the distinctive flavour, the deceptive labels and the crucial
considerations in a lease versus licence situation have been stated and
excrepts therefrom may serve as guidelines (see pages 427, 428 and
429):
"1022. PRINCIPLES FOR DETERMINING WHETHER
AGREEMENT CREATES LEASE OR LICENCE. In
determining whether an agreement creates between the parties
the relationship
of landlord and tenant or merely that of
licenser and licensee the decisive consideration is the inten·
tion of the parties. The parties to an agreement cannot,
however, turn a lease into a licence merely by stating that
thedocumentistobedeemedalicenee or describing it as
such; the relationship of the parties is determined by law on
a consideration of all relevant provisions of the agreement;·
nor will the em)>IC>yment of words appropriate to a lease pre·
vent the agreement from conferring a licence only if from
the whole document it appears that it was intended merely
to confer a licence. In the absence of any formal documeat.
the intention of the parties must be inferred from the
circumstances and the conduct of the parties.
1023. NATURE OF GRANT OF EXCLUSIVE POSSES·
SION. The fact thatthe agreement grants a right of exclusive
possession is not in itself conclusive evidence of the existence
of a tenancy, but it is a consideration of the first importance.
In deciding whether a grantee is entitled to exclusive
possession regard must be had to the substance of the agreement. To give exclusive possession there need not be express
words to that effeci; it is sufficient if the nature of the acts
to be done by the grantee requires that he should have
exclusive possession.
The grant ofanexclusive right toa benefit can, however.
be inferred only· from language which is clear and explicit.
If an exclusive right of possession is subject to certain reser·
vations or to a restriction of the purposes for which the pre~
mises may be used, the reservations or restriction will not
necessarily prevent the grant operating as a lease.
1024. WHEN GRANT CONFERRING EXCLUSIVE
POSSESSION OPERATES MERELY AS LICENCE.
A grant which confers the right to exclusive possession may
operate as a licence in the following circumstances which negative the itention to create a lease.
(I) [1959] S.C.R. 265.
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QUDRAT ULLAH v. MUNIC. BOARD (Krishna Iyer,!.)
5351025. INSTANCES OF
AGREEMENTS CREATING
LICENCES. A licence is normally created where a person is
granted the right to use premises without becoming entitled to exclusive possession thereof, or the circumstances and
conduct of the parties show that all that was intended was
that the grantee should be granted a personal privilege with
no interest in the land. If the agreement is merely for the
use of the property in a certain way and on certain terms
while the property remains in the possession and control
of the owner, the agreement will operate as a licence, even
though the
agreement may employ words appropriate
to a lease".
Not so much the law as the fitment of the terms of a deed into the·
legal mould makes the forensic. essay none too easy. Decisions are
legion to prove the relevant propositions we have indicated above,.
but we do not think it necessary to cite them all except to mention
that apart from Mrs. C/ubwa/a's case (2) referred to by the High C:Ourt,.
a few more cases were also referred to at the Bar.
With thes factual-legal background, we may formulate the points.
we are called upon to decide, ignoring minor matters which do not
deflect the ultimate issue one way or the other.
(1) Is Ex 'l' (or Ex. '4') a lease or only a licenee·or a composite
one 1
(2) -If lease, does it embrace a demise of an 'accommodation•·
as defined in the Act, or more ? If ti covers more than
an 'accommodation', is the portion of the deed deahng
with 'non.accommodation' siverable so as to warrant a
decree for possession confined to that portion ? Similarly,
if Ex. 'l' is in part a licence as the High Court has held,
what is the relief the Court can grant to the p\a1nt1ff ?
(3) If Ex. 'l' is a lease wholly of an accommodation, can the
plaintiff claim possession based on the repeal of the Act
by the later Act during the pendency of. the present appeal ?
Before proceeding to discuss these matters, it is proper to state
that the maps attached to Ex. I and Ex. 4 are integrated into the deeds.
We may also indicate that legal attention and cartographic precision
appear to have gone into the preparation of the two thekanamas.
While it is fair to infer that the purpose of these transactions was not
to grant regular leases of land but to make over the right to collect
municipal market dues only, even so, it is not possible to ignore the:
effect of clear recitals transferring more rights than a mere licence implies, to the thekadar.
Clause 1 itself is "tell-tale, clause 2 clinches and clause· 4 virtually
designates the transaction relating to the shops and sheds as. letting.
They speak for themselves thus :
(1) (1964] Madras Law Jourilal Reports,·Supreme Court Secticn, p. 83.
536
SUPREME COURT REPORTS
[1974] i S.C.R..
"During the entire period ofTheka, the first party shall have
all the rights and powers, as per conditions laid down in the
auction sale and agreement in respect ofuse of sheds and shops
as enjoyed by the second party as proprietor on possession of the said property'.
"The first party shall have possession of the sheds aforesaid
detailed in the said map and II shops aforesaid".
"In all the eleven shops incl\lded in the Theka, I, the Thekadar, would be empowered to let them to the subtenants on
rents mutually settled between us".
All these provisions relate to. the shops and sheds only. Shri
Sarjoo Prasad, appearing for the respondent Board, drew our attention to the controls and regulations vested in the Board. These marginal restrictions cannot cancel the effect of the clauses already read
·":'hich cannot be reconciled with a straightforward grant of a mere
right to realise market fees. The municipal mind, if we may say so,
·went beyond the area of prudence if a licence was the intent. We
are satisfied that the shops and sheds in Ex. I and as reconstructed by
the time of Ex. 4 are the subject matter of a lease, not licence only.
It is not without significance that Ex. 4 pre-supposes, when making
~eference to the expiry of the term, the application of the Act, which
JS compatible only with the creation of a lease.
These two deeds, however; cover other areas, and 'there is the rub'.
The thekanama relates to patris (sidewalks) and footpaths. O'!t
of the totality of space mapped out in the attached plans the mumc1pal board excluded 2 categoties from the transaction viz .. the red and
blue coloured portions i.e. the roads, the meat market and the shop
buildings let out to others.
Ex. I expressly granted to the appellant's
father i.e. the first party in Ex. 1, the yellow portions which were made
up of two categories viz. shops and sheds, and strips marked 4, 7, 8
and 9 which were really the flanks of the red coloured central strips running between the stalls. It is clear that the width of these internal
roads was originally 9 f~et but only a middle ribbon of 31 was now left
open for free passage, the belts of 31. on either side marked yellow
being converted into walks and vending sites. One question on which
there was divergence of findings between the courts below was as to
whether these yellow belts were leased out or only licensed for collection of Tahbazari. The High Court argued :-
"Admittedly, the public has right of passage over roads
indicated in the map in red colour. Footpaths in question
are situate between' shops and the public road. It is unlikely
that the agreement was intended to interfere with the right
of the public to pass over the footpaths adjoining the road".
and concluded that 'the agreement was a mere licence as regards the
· patris or footpaths adjoining the roads'. We do not agree. Maybe
it was reasonable, having regard to the nature of these yellow strips
and. their use, not to grant leases thereof. Maybe there are stricter
regulations regarding the rates of fees to be levied from vendors and
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QUDRAT ULLAH V. MUNIC. BOARD (Krishna Iyer, J.)
sn
pedlars using those spaces; maybe the municipal board had tbe right
to construct gates or chabutras (i.e. minor structures which are a facility for the display of wares); maybe it was not wise to pa~ ~ith possession over pavements and·paths. But no legal bar to gmng a lease,
imprudent though it be, was pointed out to us. We would have been
reluctant, having regard to the social consequences, to read more than
a licence into Ex. I and 4 but for compelling grounds already referred
to: The map or the deed do~s not make any distinction as between
yellow sheds and shops on the one hand and yellowpartris on the other.
'Those in yellow colour shall remain in possession of first party' saysc
Ex. I. The very need for a recital that the thekadar will have no·
objection to the municipality, constructing chabutras and iron gates.
implies the fo\'mer's possession, not mere use. The reference in the
map to the green pavements and roads 2 and 3 as 'land leased out but
public has got right of easement over it' has a clear 'demise' impact.
over the extra space beyond the shops and sheds. It may be mentioned
that there was a fire in the market place which gutted many structures.
On extensive reconstruction some yellow strips and the 'green' road~
2 and 3 were obliterated and yet these re·constructed buildings were
.made over to the contractor. There are other features pressed by one
side or the other, but the over-all effect is that the green and yellow
portions outside the shops and buildings in Ex. I were also leased out.
The green areas though not expressly specified in Ex. I or Ex. 4 are
clearly covered by the lease, for the reference at the foot of the map
and the circumstance that on reconstruction after the fire the roads
Nos. 2 and. 3 marked green were built upon and made over to the the··
kedar are sufficient to hold that way. Internal, connecting walks
within a market or a park or entertainment complex cannot te equated
with public streets and highways but have a quasi-private touch aJ •.
though vested in a: public body. The bazar dues constitute a benefit
arising out of the land and may be immovable property which can be
leased out (vide s. 3 (26) General Clauses Act, 1897 and (Ram Jiwan
v. Hanoman Pershad (1).
The further point is whether the terms of Ex. I and 4 warrant the
lease of the whole as too integrated to be severable or sufficiently indi-·
vidualised that ·We can spell out a lease of the pavements and pathways as a separate item. If these were possible the next consideration
is about the concept of 'accommodation' in the Act and the liability·
to eviction of the non-accommodation segment of the composite·
deed.
The built-up area and the open spaces are dealt with differently
in regard to both the lessor's control over the lessee and the latter's
rights vis·a·vis the temporary occupants.
Moreover, the two parts.
are not so enmeshed or inter-dependent as to be treated as unwn quid
While the 'green' pavements are appurtenant to the shops or shed~
leased, the paths and walks are separate entities and not in fact or law·
attached to them. These are no appendages, no adjuncts no space
so bound to th~ use of the buildings as to be treated as· bel~nging to
them. Such being the sense of appurtenance .. we have to examine whether these open areas are part of the 'accommodation' let out to the
defendant. By definiti~n 'accommodation' includes gardens, grounds;
(I) I.L.R. 16 Lucknow 191.
538
SUPREME COURT REPORTS
(1974) 2 S.C.R.
and out-houses if any, appurtenant to such building or part of a building. Since we have held that the patris and pavements marked yellow
and not re-built upon by the time of Ex. 4, are not appurtenances,
they fall outside the contours of the 'accommodation' let out and constitute the subject of a distinct, though connected, demise incorporated
in the same document Ex. 1 (and Ex. 4). Every nexus is not an appurtenance. The latter conriotes principal and subsidiary items integ' ated
by use, absent in the present case.
Holding, as we do, that the thtkkianame covers a couple of leases as it were and further that only one of
them is protected by the Act, ejectment in respect of the unprotected
lease must follow. Even on the defendant's case, it expired in 1952
and obviously the suit for recovery having been instituted (earlier),
there was no holding over. The result is that though on a different
basis the decree for evicti.on granted by the High Court, except for the
green coloured pavements, is correct.
Now comes the additional ground taken before us based on the
passage of the later Act. It is admitted that, by frequent amendments,
the duration of the Act was extended from time to time till at last it
was to expire on September 30, 1972. Some time before this date the
later Act, a permanent statute, was put on the Statute Book which.
by .s. 43 repealed the Act of 1947 and bys. 2 excluded from the scope
of the protection of the Act ·accommodation belonging to local
bodies. It is useful to extract ss. 2 and 43 at this stage :
"2' Exemptions from operation of Act.-(!) Nothing in this
Act shall apply to-
( a) any bl\ilding belonging to or vested in the State
Government or the Government of India or any
local authority; or
•
•
•
•
•
...
"43.
Repeal and savings.-(\)
The United Provinces
(Temporary) Control of Rent and Eviction Act,
1947 (U.P.ActNo.III ofl947)ishereby repealed.
(2) Notwithstanding such repeal-
*
•
*
*
*
*"
We have in this case a temporary Act which would have died
a natural death by the end of September, 1972 but before its life had
run out was extinguished by statutory repeal on 22nd July, 1972 on
which date the later Act came into force. Surely, there has been a
repeal of the Act which was relied upon successfully by the defendant
and his legal representative the appellant, throughout the litigation.
But now that defence or protection is no longer available. However,
counsel for the appellant contends that a right has accrued to him under
the Act .which cannot be taken away by its repeal since the later Act
is not in terms a retrospective one. Actually, it.is correct to say that
s. 43 has not been made retrospective. Even so, the counsel for the
respondent submits that, on the repeal of the Act, the disability which
his clients suffered has disappeared and he is entitled, to enforce his
cause of action. According to him, the Act did not confer any
right on the tenant but imposed a disability on the landlord in
enforcing his right to evict and that a mere defence cannot be described
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QUDRAT ULLAH v. MUNIC. BOARD (Krishna Iyer, J.)
539.
. as a right in the defendant. According to him, the 'right' referred
to under s. 6 of the General Clauses Act or s. 43 of the repealing Act
is a substantive right and not a defensive plea. We have to
examine these rival positions in some detail.
Certain propositions are clear regarding the consequence of repeal
of a statute. The general principle is that an enactment which is repealed is to be treated, except as to transactions past and dosed,
as if it had never existed. However, the operation of this principle
is subject to any savings which may be made, expressly or by implication, by the repealing enactment (vide Halsbury's Laws of England,
Vol. 36 paragraph 714). The U. P. General Clauses Act (Act I of
1904) provides for the consequences of a repeal under s. 6, the relevant parts of which may be reproduced here :
"6. EFFECT OF REPEAL-Where any (Uttar Pradesh)
Act repeals any enactment hitherto made or thereafter to be made, then, unless a different intention
appears, the repeal shall not-
(b) affect the previous operation
so repealed or. anything duly
thereunder; or
of any enactment
done or suffered
(c) affect any right, privilege, obligation or liability
acquired, accrued or incurred under any enactment
so repealed; or
(e) affect any remedy, or any investigation or legal
proceeding commenced before the repealing Act
shall have come into operation in respect of any
such right, privilege, obligation, liability; penalty,
forfeiture or punishment as aforesaid:
and any such remedy may be enforced and· any such investigation· or legal proceeding may be continued and
concluded, and. any such penalty, forfeiture or punishment imposed as ifthe repealing Act had not been passed."
If a contrary intention appears from the repealing statute, that prevails. It was pointed out to us that s. 2 of the later Act specifically
states that :
"Nothing in this Act shall apply to-
(a) any building belonging to or vested in ........... .
any local authority."
Even so, we have to read this provision in conformity with s. 43 which
repealed the Act viz. U. P. Act No. 3 of 1947. Section 43(2) is the
savings clause. If the repealing enactment, as in this case, makes a
special provision regarding pending or past transactions it is this
provision that will determine whether the liability arising under the
repealed enactment survives or is extinguished. (See I. L. R. 1955
Cuttack, 529, I. L. R. 1963 (I) Kerala, 402 and A.I. R. 1960 Cal.,
388). Section 6 of the General Clauses Act applies generally in the
540
SUPREME COURT REPORTS
[1974] 2 S.C.R.
absence of a special sa.ving provision in the repealing statute, for when
there is one then a different intention is indicated. In any case where
a repeal is followed by a fresh legislation on the subject, the Court
has to look to the provisions of the new Act to see whether they indicate a different intention.
Section 43 (2) (h) states that notwithstanding the repeal of the
earlier Act any Court before which any suit or other proceeding relating to the ............ eviction from any building is pending im- ·
mediately before the commencement of this Act may, on an application being made to it within 60 days from such commencement, grant
leave to any party to amend its pleadings in consequence of the pro·
visions of this Act." It is, therefore, clear that even if the statute
for recovery of possession be one under the earlier Rent Control Law
the later Act will apply and necessary amendments in the pleadings can
be made. This definitely indicates that it is the later Act that must
govern pending proceedings for recovery of possession or recovery
or fixation 0f rent. However, the suit with which we are concerned
is not even one under the Act,. but proceeds on the footing that the
defendant is only a licensee. So much so, none of the savings clauses
in s. 43 (2) applies. The result is that the application of the ol\l Act
is repelled by the general rule that on repeal a statute is deemed not to
have·been on the Statute Book at all.
Let us assume that s. 6 of the General Clauses Act applies. Even
so, what is preserved is (a) the previous operation of the repealed
enactment, (b) rights, privileges, obligations and liabilities acquired,
accrued or incurred under the enactment repealed and (c) investigations,
legal proceedings and remedies in respect of any such right, privilege,
obligation or liability. According to Shri Sarjoo Prasad for the
respondent, the defendant had no right or privilege under the
repealed Act, since s. 3 is only a procedural restriction and does not
create a substantive right. All that s. 3 therein laid down
was
that:-
"No suit shall, without the. permission of the District
Magistrate, be filed in any civil Court against a tenant
for his. eviction from any accommodation except on one
or more of the following grounds ...................... "
It is more a procedural disability that is cast, not a substantive cause
of action that is created. Citing the authority in Haripada Pal G/rlJsh
v. Tofajaddi Ijardar (1), he argued that by operation of the repeal,
the restriction on his right is removed and so he can now support bis
present action even if previously the Act had barred it. It is true that
a Division Bench of the Calcutta High Court in the case cited, dealing
with a situation where an Act had been repealed by another,
observed:-
"The disability, which was imposed by the previous law liav- .
ing been removed, there was nothing that stood in the. way
of the plaintiffs recovering rent at the contract rate, when
(I) 60 J.L:R. [19331 Cal. 1438.
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QUDRAT ULLAH v. MUNIC, BOARD (Krishna Iyer, J.)
541
the cause of action for the same arose. The effect of
substitution of the new section 48 for the old section 48
by section 31 of Act IV of 1928, was that the old section
was repealed. The effect of repeal of a statute in the
absence of saving clauses is that it has to be considered as
ifthe statute, so repealed, had never existed."
There is force in this submission.
A ruling which lends more support to the position we take may
be referred to here. Boddington v. Wisson (l) dealt with a case where
the landlord of a holding served on the tenant a notice to quit without.
the consent in writing of the Minister of Agriculture and Fisheries, as
required by Regulation 62 (4A) of the Defence (General) Regulations,
1939. Before the period of notice expired, the Defence Regulations
Order, 1948 revoked the earlier regulation. Dealing withs. 38 of the
Interpretation Act, 1889, which corresponds to s. 6 of the General
Clauses Act, Evershed, M. R. disposed of the contention of the tenant
that the repeal would not affect anything duly done under another
statute thus :
" .... nor do I think that the tenant's protection under
the regulation could be fairly described in the words of
sub-s. (2) (c) as a "right" or "privilege", or the limitation
of the landlord's right be fairly described as an "obligation"
or "liability", nor do I think that it is ii penalty or a
punishment in respect of an offence within para (d)."
The Court eventually concluded that the notice to quit was valid since
the regulation requiring consent had been revoked and the landlord
was entitled to possession.
Moreover, the nature of the Act being temporary, the right, if we
can attribute that quality to a disability of the other party to enforce
his right unless additional grounds were made out, comes to an end
when the temporary Act expires at least by effiux of time, if not by
F
premature repeal. The so-called right is short-lived and its longevity,
where it is derived under a temporary statute, cannot exceed the duration of the statute itself.
"
Let us assume for argument's sake thats. 3 of the Act has conferred
a right on the tenant in which case it survives by virtue of s. 6 of the
General Clauses Act. What follows ? The survival of the right
G
or the continuation of the operation of the Act to the proceedings is
all tliat is ensured, not the expansion or extension of that right. For
the normal life of the Act i.e. ti!I September 30, 1972, the dispossession
of the tenant is permissible only if the grounds in s. 2 are satisfied by
the landlord. This right is 'circumscribed in content to conditions
set out and limited in duration to the J>eriod beyond which the Act
does not exist. To hold otherwise would be to give more quantum of
H
right to the party than he would have enjoyed had the repeal not been
made. Not to affect the previous operation eannot be converted into
sanctioning subsequent operation. To read post-mortem operation
(I) il951] I All B.R. 166; 169.
9-M602SupCI/74
. 542
SUPREM~ COURT REPORTS
[1974] 2 s.::;R •
into a temporary Act because of a premature repeal of it is wrong.
To adopt the words Jagannadhadas, J. in Indira Sohanlal v. Custodian
ef Evacuee Property, Delhi and others (I) has observed :-
"What in effect, learned counsel for the appellant contends
for is not the "previous operation of the repealed Jaw"
but the "future operation of the previous law."
On this footing the right, if any, that the defendant claims terminates
with the expiration of that temporary statute ..
The only further question is whether it is permissible for this
Court \o take note of the extinguishmcnt of the statutory tenancy
at this stage and grant relief to the appellant accordingly. The lead.
ing case of Lachmeshwar Prasad Shukul and others .v. Keshwar
Lal Chaudhuri and others (2) lays down the law on the point, Gwyer,
C. J., quoted with approval the
following observations
of
Hughes, C.J. :-
"We have frequently held that in the exercise of
our
appellate jurisdiction we have power not only to correct
error in the judgment under review but to make such disposition of the case as justice requires. And in determining what justice does require, the Court is bound to consider any change, either in fact or in law, which has super·
vcned since the judgment was entered."
'
Justice Varadachariar, J.