# SMT. NOORUNISSA BEGUM v. BRIJ KISHORE SANGHI

- **Citation:** [2015] 4 S.C.R. 246
- **Court:** Supreme Court of India
- **Decided:** 2015-02-24
- **Case number:** Civil Appeal Nos. 3467-3468 of2010
- **Bench:** Sudhansu Jyoti Mukhopadhaya, C S.A. Bobde
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/smt-noorunissa-begum-v-brij-kishore-sanghi-30574
- **Pages:** 49

## Headnote

Andhra Pradesh Building (Lease, Rent and Eviction)
Control Act, 1960 - s.32 as amended by Andhra Pradesh
Building (Lease, Rent and Eviction) Control (Amendment).
o Act, 2005 and s.26 -Applicability of s.32(c) (as inserted by
amendment Act) - Whether prospective or retrospective -
Effectofs.32(c), on GO. No. 636 dated 291h December, 1983
issued by Government of Andhra Pradesh u/s 26 - Held:
Partofs.32 i.e. s.32(a) and (c) are prospective while s.32(b)
E is retrospective in operation-s.26 and the GO. issued under
the said provision has overriding effect over rest of the
provisions of the Act- ss. 26 and 32 operate in different fields
and hence there is no clash between them - Clause (a) of
the G 0. has become redundant but clause (b) thereof cannot
F
be said to have become redundant in view of the amended
s. 32 -
In the present cases, the cases pending for
determination under general law would not be affected by
amended s.32 and would continue to be decided in
G accordance with general law.
H
Rent Control - Eviction of tenant...,.. Remedy - Held:
Right of landlord to evict tenant by way of suit, exists as long
as it is not abridged by a special legislation - Suit.
246
SMT. NOORUNISSA BEGUM v. BRIJ KISHORE
247
SANGH I
Appeal - Whether affected by a new law - Held: Ordinarily A
appellate court cannot take into account a new law brought
into existence after the judgment appealed from·has been
rendered - Rights of litigants in appeal are determined
applying the law which existed on the date of filing the suit.
B
Disposing of the appeals, the Court
HELD: 1.1 Under common law, the rights of the
landlord to evict a tenant by way of suit before a civil
court of competent jurisdiction exist as long as it is not c
abridged by a special legislation conferring protection
in favour of the tenant. [Para 21] [266-F]
1.2 Ordinarily a Court of appeal cannot take into
account a new law brought into existence after the o
judgment appealed from has been rendered, because
rights of the litigants in appeal are determined applying
the law in force at the date of the suit. [Para 25] [270-D-E]
1.3 In its original form the Andhra Pradesh Building E
{Lease, Rent and Eviction) Control Act, 1960 protected
tenants of all buildings, irrespective of rent, except (a)
the tenants of a building owned by the Government and
(b) the tenants of a building constructed on or after 26th
August, 1957. After striking down of Section 32(b) in F
Motor General Traders case, the tenants of all buildings,
including any building constructed on or after 26th
August, 1957 irrespective of rent were protected under
the Act except the tenants of a building owned by the
Government. After amendment of Section 32 by the G
Amendment Act, 2005, w.e.f 271h April, 2005, tenants of a
building, rent of which is Rs.3,5001- p.m. or below in the
areas covered by the Municipal Corporations and the
tenants of a building, rent of which is Rs.2,0001- p.m. or H
248
SUPREME COURT REPORTS
[2015] 4 S.C.R.
A below in other areas, only remain as protected tenants.
In effect, the rest of the tenants of any building rent of
which exceeds Rs.3,500/- p.m. in the area covered by
the Municipal Corporation and Rs.2,000/- p.m. in other
areas, no more remain tenant within the meaning of
B Section 2(ix) of the Act as the Act is not applicable to
them. Therefore, since, 271h April, 2005 this class of
tenants of building whose rent exceeds Rs.3,500/- p.m.
in Municipal Corporation areas and Rs.2,000/-per month
C in other areas, lost their right of protection under the Act
in view of amended Section 32(c). This apart the tenants
of any building constructed or substantially renovated,
either before or after the commencement of the Act for a ·
period of fifteen years from the date of completion of
o such construction or substantial renovation, no more
remain 'tenant' within the meaning of Section 2(ix) of the
Act and they also lost their right of protection in view of
the amended Section 32(b). The position with regard

## Text

_Characters 0–39,799 of 83,651. This is a partial read: ask again with offset=39799 for what follows._

A
B
[2015]4 S.C.R. 246
SMT. NOORUNISSA BEGUM
v.
BRIJ KISHORE SANGH!
(Civil Appeal Nos. 3467-3468 of2010 etc.)
FEBRUARY 24, 2015.
[SUDHANSU JYOTI MUKHOPADHAYA AND
C
S.A. BOBDE, JJ.]
Andhra Pradesh Building (Lease, Rent and Eviction)
Control Act, 1960 - s.32 as amended by Andhra Pradesh
Building (Lease, Rent and Eviction) Control (Amendment).
o Act, 2005 and s.26 -Applicability of s.32(c) (as inserted by
amendment Act) - Whether prospective or retrospective -
Effectofs.32(c), on GO. No. 636 dated 291h December, 1983
issued by Government of Andhra Pradesh u/s 26 - Held:
Partofs.32 i.e. s.32(a) and (c) are prospective while s.32(b)
E is retrospective in operation-s.26 and the GO. issued under
the said provision has overriding effect over rest of the
provisions of the Act- ss. 26 and 32 operate in different fields
and hence there is no clash between them - Clause (a) of
the G 0. has become redundant but clause (b) thereof cannot
F
be said to have become redundant in view of the amended
s. 32 -
In the present cases, the cases pending for
determination under general law would not be affected by
amended s.32 and would continue to be decided in
G accordance with general law.
H
Rent Control - Eviction of tenant...,.. Remedy - Held:
Right of landlord to evict tenant by way of suit, exists as long
as it is not abridged by a special legislation - Suit.
246
SMT. NOORUNISSA BEGUM v. BRIJ KISHORE
247
SANGH I
Appeal - Whether affected by a new law - Held: Ordinarily A
appellate court cannot take into account a new law brought
into existence after the judgment appealed from·has been
rendered - Rights of litigants in appeal are determined
applying the law which existed on the date of filing the suit.
B
Disposing of the appeals, the Court
HELD: 1.1 Under common law, the rights of the
landlord to evict a tenant by way of suit before a civil
court of competent jurisdiction exist as long as it is not c
abridged by a special legislation conferring protection
in favour of the tenant. [Para 21] [266-F]
1.2 Ordinarily a Court of appeal cannot take into
account a new law brought into existence after the o
judgment appealed from has been rendered, because
rights of the litigants in appeal are determined applying
the law in force at the date of the suit. [Para 25] [270-D-E]
1.3 In its original form the Andhra Pradesh Building E
{Lease, Rent and Eviction) Control Act, 1960 protected
tenants of all buildings, irrespective of rent, except (a)
the tenants of a building owned by the Government and
(b) the tenants of a building constructed on or after 26th
August, 1957. After striking down of Section 32(b) in F
Motor General Traders case, the tenants of all buildings,
including any building constructed on or after 26th
August, 1957 irrespective of rent were protected under
the Act except the tenants of a building owned by the
Government. After amendment of Section 32 by the G
Amendment Act, 2005, w.e.f 271h April, 2005, tenants of a
building, rent of which is Rs.3,5001- p.m. or below in the
areas covered by the Municipal Corporations and the
tenants of a building, rent of which is Rs.2,0001- p.m. or H
248
SUPREME COURT REPORTS
[2015] 4 S.C.R.
A below in other areas, only remain as protected tenants.
In effect, the rest of the tenants of any building rent of
which exceeds Rs.3,500/- p.m. in the area covered by
the Municipal Corporation and Rs.2,000/- p.m. in other
areas, no more remain tenant within the meaning of
B Section 2(ix) of the Act as the Act is not applicable to
them. Therefore, since, 271h April, 2005 this class of
tenants of building whose rent exceeds Rs.3,500/- p.m.
in Municipal Corporation areas and Rs.2,000/-per month
C in other areas, lost their right of protection under the Act
in view of amended Section 32(c). This apart the tenants
of any building constructed or substantially renovated,
either before or after the commencement of the Act for a ·
period of fifteen years from the date of completion of
o such construction or substantial renovation, no more
remain 'tenant' within the meaning of Section 2(ix) of the
Act and they also lost their right of protection in view of
the amended Section 32(b). The position with regard to
the building belonging to the Government remained the
E same. The tenants of building belonging to the
Cantonment Board or local authority also lost their rights
to claim protection in view of amended Section 32(a).
Thus, part of s.32 i.e. s.32(a) and (c) is prospective and
other part i.e. s.32(b) is retrospective in operation.
F [Paras 35, 36, 37 and 39] [287-A-H; 288-A]
G
H
Shah Bhojraj Kuverji Oil Mills and Ginning Factory v.
Subhash Chandra Yograj Sinha AIR 1961 SC 1596;
Mst. Rafiquennessa v. Lal Bahadur Chetri and Anr. AIR
1964 SC 1511: 1964 SCR 876 - followed.
Parripati Chandrasekha Rao & sons vs. Alapati Jalaiah
(1995) 3 SCC 709: 1995 (3) SCR 817; Garikapati
Veeraya v. N. Subbaiah Choudhary AIR 1957 SC
SMT. NOORUNISSA BEGUM v. BRIJ KISHORE
SANGH I
540:1957 SCR 488 ; Moti Ram v. Suraj Bhan AIR 1960
SC 655: 1960 SCR 896; Dayavati vs. lnderjit AIR
1966 SC 1423; Atma Ram Mittal vs. lshwar Singh Punia
(1988) 4 SCC 284:1988 (2) Suppl. SCR 528; Amba/a/
Sarabhai Enterprises Ltd. vs. Amrit Lal & Co. and Anr.
(2001) 8 sec 397: 2001 (2) Suppl. SCR 195; Mani
Subraf Jain vs. Raja Ram Vohra (1980) 1SCC1: 1980
(2) SCR 141; Lakshmi Narayan Guin and Ors.
vs.Niranjan Modak (1985) 1 SCC 270: 1985 (2) SCR
202 - relied on.
2.1
Section 32 of the Act specifies the buildings
249
A
B
c
to which the Act will not apply. It is not an exemption
granted in the Act but a specific provision under the Act
stipulating non-application of the Act to certain buildings. 0
Section 26 is the power of exemption granted to the State
Government to exempt certain buildings or class of
buildings from all or any of the provisions of the said
Act. [Para 40) [289-B-C)
2.2
Clause (a) of G.0.Ms.636 dated 29th E
December, 1983 has become redundant. However,
clause (b) of the G.O.Ms.636 dated 29th December, 1983
still holds good. The suit(s), appeal(s), revision
application(s) or execution case(s) which are pending F
for determination under the General Law are not affected
by amended Section 32 and will contim.:~ to be decided
in accordance with General Law.
The expression
notwithstanding is in contradistinction to the phrase
'subject to', the latter conveying the idea of a provision G
yielding place to another provision or other provisions
to which it is made subject. Thus, Section 26 and the
exemption granted by the State Government u/s 26 of
the Act by G.O.Ms.636 dated 29th December, 1983 has
H
250
SUPREME COURT REPORTS
[2015] 4 S.C~R.
A overriding effect over rest of the provisions of the Act.
[Paras 42, 43 and 52] [290-F-H; 293-H; 394-A]
Union of India and Anr. vs. G.M. Kokil and Anr. 1984
(Suppl.) SCC 196: 1984 SCR 292; Chandavarkar
B
Sita Ratna Rao vs. Ashalata S. Guram (1986) 4 SCC
447: 1986 (3) SCR 866- relied on.
2.3
It cannot be said that by amending Section
32, the legislature intended to bring about a remedial
c situation relating to certain classes of buildings which
were the subject matter of exceptions under Section 26
granted in the year 1983. Such classes of buildings
enjoying the benefit of exemption from the operation of
the Act since 1983 cannot be said to have lost the benefit
D of exemption by way of such amendment. [Para 44] [291A-B]
2.4
It is wrong to state that buildings whose
rent are upto Rs.3,500/- in the municipal area and
E Rs.2,000/- in other area have been brought into the fold
of the Act by amended Section 32(c). In fact, such
buildings were already covered by the Act in view of
original Section 32. But the tenant of such building could
not claim protection in view of exemption granted by the
F State under Section 26 by G.O.Ms. No. 636 dated 291h
December, 1983. [Para 45] [291-C-D]
2.5
Sections 26 and 32 of the Act operate in two
different fields. Section 32 has been enacted to enable
G the legislature to provide for non-application of the Act
in its entirety without any qualifications. It is open to the
legislature to. choose any subject for such rionapplication. It can be an area, class of buildings etc.
H Section 32 is an independent provision in respect of the
SMT. NOORUNISSA BEGUM v. BRIJ KISHORE
251
SANGH I
non-application of the Act. On the other hand, Section A
26 confers power on the Government to exempt
buildings or classes of buildings to which Act is
applicable from all or any of the provisions of the Act.
Section 26 has a non-obstante clause, which is widely
worded. The Government need not, for the purposes of B
exercise of power under Section 26 take any guidance
or be influenced by the provisions of Section 32.
[Paras 46 and 47] [291-E-G]
2.6
Though clause (a) of G.0.Ms.636 dated 29th C
December, 1983 has become redundant, clause (b) of
the said G.O. still applies to the building the monthly rent
of which exceeds Rs.1,000/- i.e. the building monthly rent
of which is between Rs.1001/- to Rs.3,500/- in the 0
Municipal areas and Rs.1001/- to Rs.2,000/- in other
areas. The aforesaid buildings whose monthly rent.
exceeds Rs.1,000/- still continue to enjoy the exemption
granted to them under Section 26 of the Act. The larger
Bench of the High Court wrongly held that clause (b) of E
the G.0.Ms.636 dated 29th December, 1983 has become
a redundant in view of the amended Section 32.
[Para 51] [292-G-H; 293-A-B]
Dilip vs. Mohd. Azizul Haq & Anr. AIR 2000 SC
F
1976: 2000 (2) SCR 280; Motor General Traders and
Anr. vs. State of Andhra Pradesh and Ors. (1984) 1
SCC 222:1984 (1) SCR 594- referred to.
3. The suit(s), appeal(s), revision application(s) or G
execution case(s) which are pending for determination
under the General Law are not affected by amended
Section 32 and will continue to be decided in accordance
with General Law. [Para 52] [294-B]
H
252
SUPREME COURT REPORTS
[2015]4S.C.R
A
Case Law Reference
1984 (1) SCR 594
referred to.
Para 4
B 2000 (2) SCR 280
referred to.
Para 8
1995 (3) SCR 817
relied on.
Para 22
1957 SCR 488
relied on.
Para 23
c 1960 SCR 896
relied on.
Para 24
AIR 1966 SC 1423
relied on
para 25
1988 (2) Suppl. SCR 528
relied on.
Para 26
D
2001 (2) Suppl. SCR 195
relied on.
Para 27
1980 (2) SCR 141
relied on.
Para 28
1985 (2) SCR 202
relied on.
Para 29
E
AIR 1961 SC 1596
relied on.
Para 30
1964 SCR 876
relied on.
Para 31
F 1984 SCR 292
relied on.
Para 41
1986 (3) SCR 866
relied on.
Pa.-~ i!2
CIVILAPPELLATE JURISDICTION: Civil Appeal Nos.
3467-3468 of2010.
G
From the Judgment and Order dated 30.04.2007 and
12.06.2007 of the High Court of JudicatureAndhra Pradesh
at Hyderabad in Civil Revision Petition No. 1669 of 2006.
H
SMT. NOORUNISSA BEGUM v. BRIJ KISHORE
253
SANGH I
WITH
.A
C.A. Nos. 3471, 3472, 3473, 3474-3475, 3476 of2010, 78257826 of 2012, 2569 of 2013, 2403-2405 of 2015, 2406, 2407,
2408-2409 of 2015,
Dhruv Mehta, Yashraj Singh Deora, Abhishek P., Mitter B
& Mitter Co., Promila, S. Thananjayan, T. V. Ratnam, V. Sridhar
Rao, V. N. Raghupathy, D. Bharathi Reddy, Roy Abraham,
Ranjit Chad ha, Seema Jain, Aabhas Parimal, Himinder Lal,
Pramod B. Agarwala, Prashant M., Vishnu Shakar Jain, c
Prasant Shukla, Sri ram P., Ajay Choudhary for the Appellant.
R. Venkataramani,A. C. Pradhan, M. ShoebAlam, T.
Abdul Rahman, Yashraj B., S. Babu, Neelam Singh,Anil Kumar
Tandale, P. Niroop, Chandan Kumar, M. Srinivas R. Rao, o
Govardhan, Sudha Gupta, Amit Pawan, D. Bharat Kumar, S.
Mohandas M., Balasubrahamanyam K., Abhijit Sengupta, T.
Anamika, Ashok Mathur, C. K. Sucharita, Pattabhiram V., M.
Vijaya Bhaskar, S. Udaya Kumar Sagar, Rajiv S. Roy, A.
Chatterjee, Rahul Baidya, Pranab Kumar Mullick, Sum it Kumar,
E
Sridhar Potaraj, Arjun Singh for the Respondent.
The Judgment of the Court was delivered by
SUDHANSU JYOTI MUKHOPADHAYA, J 1. Leave
F
granted.
2. All these appeals involves common question of law
as to the applicability of Section 32(c) of the Andhra Pradesh
Buildings (Lease, Rent & Eviction) Control (Amendment) Act,
G
2005 (hereinafter referred to as the 'Amendment Act, 2005')
to eviction cases pending on the date of its coming into force
and the effect of the said Section on G.O. dated 29th December,
1983 issued by the Government of Andhra Pradesh. Therefore
H
254
SUPREME COURT REPORTS
[2015] 4 S.C.R.
A they were heard together and being disposed of by this
common judgment.
3. The background of Section 32 of Andhra
Pradesh Buildings (Lease, Rent & Eviction) Control Act,
B 1960 (Act No. XV of 1960):
The State of Andhra Pradesh came into existence on
1st October, 1953 under the provisions of Andhra State Act,
1953. By virtue of the provisions of the said Act, the Madras
C Buildings (Lease and Rent Control) Act, 1949 continued to be
in operation in the State of Andhra Pradesh. By the States
Reorganisation Act, 1956 with the merger of Telangana area,
which formerly formed a part of the erstwhile State of
Hyderabad, to the territories of State of Andhra Pradesh the
D new State of Andhra Pradesh came into existence by
Notification dated 1st November, 1956. By virtue of States
Reorganisation Act, Hyderabad House (Rent, Eviction and
Lease) Control Act, 1954 continued to be in force in the
Telangana area. In the Andhra area, the Madras Buildings
E (Lease and Rent Control) Act, 1949 also continued to be in
force. In this background both the Madras Act and Hyderabad
Act were repealed and replaced by the Andhra Pradesh
Buildings (Lease, Rent and Eviction) Control Act, 1960
(hereinafter referred to as the 'Act'). The Section 32 of the Act,
F as it stood on the date of enactment exempted buildings owned
by the Government and buildings constructed on and after 26th
August, 1957 from the purview of the Act.
4. The constitutional validity of Section 32(b) of the Act
G which exempted buildings constructed on or after 26th August,
1957 from the operation of the Act was challenged before this
Court in Motor General Traders and another vs. State of
Andhra Pradesh and others, (1984) 1SCC222. This Court
H by judgment dated 26th October, 1983 held the said section to
SMT. NOORUNISSA BEGUM v. BRIJ KISHORE
255
SANGHI [SUDHANSU JYOTI MUKHOPADHAYA, J.]
be unconstitutional being violative of Article 14 of the A
Constitution of India.
5. Section 26 of the Act authorizes the State
Government to exempt any building or class of building from
all or any of the provisions of the Act.
B
Later, in exercise of power under Section 26 of the Act
the GovernmentofAndhra Pradesh issued G.O.Ms. No.636
dated 291h December, 1983 whereby it exempted from
operation of the provisions of the Act, (a) all buildings for a C
period of 10 years from the date on which the construction is
completed, and (b)buildings, the monthly rent of which exceeds
Rs.1,000/-.
The exemption was given effect from 26th October, 1983 D
i.e. the date on which this Court struck down Section 32(b) of
the Act.
6. After declaration of Section 32(b) unconstitutional and
invalid, Section 32 (a) ~hich exempted buildings owned by
E
the Government from the operation of the Act stood till Section
32 was amended bytheAmendmentAct, 2005. By amended
Section 32, the Act was made inapplicable to buildings the
rent of which as on the date of commencement of the
AmendmentAct, 2005, exceeds Rs.3,500/- per month in the
F
areas covered by the Municipal Corporations in the State and
Rs.2,000/- per month in other areas.
7. All the buildings with respect to which these appeals
are preferred belong to the category of buildings of which rent G
was more than Rs.1,000/-(one thousand).i.e. who were
exempted by G.O.Ms.No.636 dated 291h December, 1983. On
the amendment of Section 32 the tenants of such buildings
against whom eviction cases or appeal or revision or
H
256
SUPREME COURT REPORTS
[2015] 4 S.C.R.
A
execution cases were pending before various courts
approached the Andhra Pradesh High Court raised a
contention before the learned Single Judge that in view of the
amended Section 32, the pending suits cannot be adjudicated
by the civil courts and the decrees already passed cannot be
B executed because courts which passed the decrees will be
deemed to have become "coram non judice".
c
D
E
8. The learned Single Judge of the High Court referred the
matter to the Division Bench.
The Division Bench noticed the judgments in Shah
Bhojraj Kuverji Oil Mills and Ginning Factory vs.
Subhash Chandra Yograj Sinha, AIR 1961SC1596;
Rafeequnnesa vs. Lal Bahadur Chetri, AIR 1964 SC
1511; Dilip vs. Mohd. Azizul Haq & Anr., AIR 2000
SC 1976 and other cases including unreported
judgment of Full Bench of the said High Court in Second
Appeal No.532 of 2002 dated 61h January,2005 and felt
that the issue raised in the cases needs to be addressed
by a Full Bench and accordingly ~ferred the matter to
Full Bench.
9. The Full Bench, after hearing the cases at some
length, by an elaborate order, observed that the judgment
F
rendered by a Bench of equal strength in Second Appeal
No.532 of2002 requires reconsideration by a Larger Bench
in the light of various judgments referred to in the reference
order.
G
10. On such reference, the matter was heard by the
Larger Bench of 5-Judge of the High Court of Judicature of
Andhra Pradesh at Hyderabad. By the impugned common
judgment dated 301hApril, 2007 in S.A.No.1475, 1449 of
H 2005 etc., the Larger Bench by majority held theAmen?ment
SMT. NOORUNISSA BEGUM v. BRIJ KISHORE
257
SANGH I [SUDHANSU JYOTI MUKHOPADHAYA, J.]
Act, 2005 to be prospective and observed that:
A
"A reading of the amended Section 32 makes it clear
that Section 32(b) as it originally stood has been
substituted with Section 32(c) and with this,
G.O.Ms.No.636 dated 29.12.1983 issued by the State
B
·Government under Section 26 of the Act has become
redundant."
The Larger Bench further answered the reference as
follows:
C
. "(a) Section 32(c)of the Andhra Pradesh Buildings
(Lease, Rent and Eviction) Control Act, 1960 as brought
into force by Section 3 oftheAndhra Pradesh Buildings
(Lease, Rent and Eviction) Control (Amendment) Act,
o
2005 is prospective in operation and this provision does
not affect the proceedings pending as on the date of its
coming into force before the Civil Courts or Appellate,
Revisional or Executing Courts. These cases are
required to be decided without reference to and
E
application of the provisions of the amendment Act of
2005."
11. In his minority judgment, one of the Judges held the
Amended Section to be retrospective and answered the
F
reference as follows:
"i) with effect from28.05.2005, when the amended
Section 32(c) came into force, persons, by whom rent
payable for a building does not exceed Rs.3, 500/-p.m.
G
within the Municipal Corporations of the State and does
not exceed Rs. 2, 0001- p.m. in other areas, would come
within the definition of "tenant" under Section 2(ix) of
Act 15of1960.
H
258
A
B
c
D
E
F
G
SUPREME COURT REPORTS
[2015] 4 S.C.R.
ii) even if such persons have suffered a decree for
eviction prior thereto, they are entitled for the protection
of Act 15of1960 provided they continue in possession
of the building.
iii) after 28.05.2005, such tenants cannot be evicted
in execution of a decree in view of the protection
conferred on them by Section 10(1) of Act 15of1960.
iv) after the amended Section 32(c)came into force,
with effect from 28.05.2005, the civil court must be
held to have become coram non judice, not to have
jurisdiction to pass a decree of eviction in respect of
buildings the rent of which in areas within Municipal
Corporations of the State does not exceed Rs. 3, 5001p. m. and in other areas not exceeding Rs.2,0001p.m. and its proceedings, resulting in the decree, a
nullity.
v) even if at the time of institution of the suit, or when a
decree for eviction was passed, the amended Section
32(c) was not in force, but was introduced during the
pendency of the appeal a tenant, who continues to
remain in possession of a building whose rent is
below the limits prescribed in the amended Section
32(c), for being exempted from the provisions of the
Act, is entitled for the protection of Act 15 of 1960,
more particularly Section 10(1) thereof, and the
Appellate Court is divested of its jurisdiction to pass a
decree of eviction."
12. As one or other party in all these appeals addressed
the Court either supporting the majority decision of the Larger
Bench or minority decision, it is not necessary to record the
H individuals' submissions made by the learned counsel.
SMT. NOORUNISSA BEGUM v. BRIJ KISHORE
259
SANGHI [SUDHANSU JYOTI MUKHOPADHAYA, J.]
13. THE STATUTORY PROVISIONS:
A
To determine the issue involved it is necessary to refer to
relevant provisions of the Act. Section 2(iii) of the Act
defines 'building' as under:
"Section 2(iii)-'Bui/ding' means any house or hut or
part of a house or hut, let or to be let separately for
residential or non-residential purposes and includes:-
a.
the gardens, grounds, garages and out-houses if
any, appurtenant to such house, hut or part of such of
house or hut and let or to be let along with such house
or hut or part of such house or hut;
\
b.
any furniture supplied or any fittings affixed by the
landlord for use in such house or hut or part of a house·
or hut, but does not include a room in a hotel or boarding
house;
B
c
D
Section 2(ix) of the Act defines 'tenant' for the purpose
of the Act as under:
E
"Section 2(ix)-'Tenant' means any person by whom or
on whose account tent is payable for a building and
includes the surviving spouse, or any son or daughter,
of a deceased tenant who had been living with the tenant
in the building as a member of tenant's family up to the
death of the tenant and a person continuing in
possession after the termination of the tenancy in his
favour, but does not include a person placed in
occupation of a building, by its tenant or a person to
whom the collection of rents or fees in public market,
cart-stand or slaughter-house or of rents for shops has
been framed out or leased by a local authority.
F
G
H
260
SUPREME COURT REPORTS
[2015] 4 S.C.R.
A
Section 10 of the Act deals with 'eviction of tenants'. It
protects the tenant from eviction in execution of a decree or
otherwise in all cases except in those cases where the
eviction is in accordance with the provisions of the Section
10 or Sections 12 and 13 of the Act. Relevant portion of the
B said section reads as under:
c
D
E
"Section 10(1):-A tenant shall not be evicted whether
in execution of a decree or otherwise except in
accordance with the provisions of this Section or
Sections 12 and 13:
Pro"vided that where the tenant, denies the title of the
landlord or claims right of permanent tenancy, the
Controller shall decide whether the denial or claim is
bona fide and if he records a finding to that nffect, the
landlord shall be entitled to sue for eviction of the tenant
in Civil Court and the Court may pass a decree for
eviction on any of the grounds mentioned in the said
sections, notwithstanding that the Court finds that such
denial does not involve forfeiture of the lease or that
the claim is unfounded."
Section 26 of the Act empowers the State Government
to exempt any building or class of building from all or any of
F
the provisions of the Act subject to such conditions and terms,
G
H
if any, the State may specify. Section 26 reads as follows:
"Section 26. Exemptions:- Notwithstanding anything
in this Act the Government may, by notification in the
Andhra Pradesh Gazette, exempt subject to such
conditions and terms, if any, as they may specify in the
notification, any building or class of building from all
or any of the provisions of the Act."
SMT. NOORUNISSA BEGUM v. BRIJ KISHORE
261
SANGH I [SUDHANSU JYOTI MUKHOPADHAYA, J.]
Section 32 of the Act as it stood on the date of A
enactment is as follows:
"32. Act not to apply to certain buildings.- The provisions
of this Act shall not apply:
a. To any building owned by the Government;
b. to any building constructed on and after August 26,
1957."
B
Upon striking down of Section 32(b) by this Court on
C
26th October, 1983 only Government buildings were exempted
from the purview of the Act.
14. Since enactment of the Act in 1960 the State
Government never exercised its power under Section 26 of D
the Act to grant exemption to any building or class of building
from or any of the provisions of the Act, till it issued G.O. Ms.
No.636 dated 29th December, 1983 exempting all buildings
for a period of 10 years from the date of completion of their
construction and the building(s) the monthly rent of which
E
exceeds Rs.1,000/- from the provisions of the Act. The said
G.O. Ms is quoted here under:
"[G.O.Ms.No.636,
General
Administration
(Accommodation-A) 291h December, 1983]
In exercise of the powers conferred by Section 26 of the
Andhra Pradesh Buildings (Lease, Rent and Eviction)
Control Act, 1960 (Andhra Pradesh Act XV of 1960),
the Governor of Andhra Pradesh hereby exempts with
effect on and from the 261h October, 1983, from the
operation of the provisions of the said Act, -
a. all buildings for a period of ten years from the
F
G
H
262
SUPREME COURT REPORTS
[2015] 4 S.C.R.
A
date on which their construction is completed and;
b. buildings the monthly rent of which exceeds
rupees one thousand.
B
c
D
Explanation:- For the purpose of clause (a) the
construction of a building shall be deemed to have
been completed on the date on which the completion
thereof is reported to or otherwise recorded by, the
local authority having jurisdiction and in the absence
of any such report or record the date on which it is
actually occupied (not including occupation merely
for the purpose of supervising the construction o~
guarding the buildings under construction) for the first
time:
Provided that there may be different dates of
completion of construction in respect of different parts
of building which are either designed as separate
units or occupied separately by the /and-lord and one
E
or more tenants or by different tenants."
The said G.O.Ms was issued by the State Government
in exercise of its power under Section 26 of the Act to fill up
the void created by the judgment of this Court in 'Motor
F General Traders'. The said G.O.Ms was issued on 29th
December, 1983 and was made applicable from 26th October,
1983, i.e., the date of the judgment in 'Motor General
Traders'.
G
15. Section 32 as amended by Amendment Act, 2005:
32.Act not apply to certain buildings:- The provisions
of this Act shall not apply,-
H
(a) to any building belonging to the State Government
SMT. NOORUNISSA BEGUM v. BRIJ KISHORE
263
SANGH! [SUDHANSU JYOTI MUKHOPADHAYA, J.]
or the Central Government, or Cantonment Board or any
A
local authority;
(b) to any building constructed or substantially renovated,
either before or after the commencement of this Act for
a period of fifteen years from the date of cc;>mpletion of
B
such construction or substantial renovation.
Explanation 1:- A building may be said to be
substantially renovated if not less than seventy five
percent of the premises is built new in accordance of
c
completion of such construction or substantial
renovation.
Explanation 11:- Date of completion of construction shall
be the date of completion as intimated to the concerned
o
authority or of assessment of property tax, whichever is
earlier, and where the premises have been constructed
· in stages the date on which the initial building was
completed and an intimation thereof was sent to the
concerned authority or was assessed to property tax,
E
whichever is earlier.
(c) to any building the rent of which as on the date of
commencement of the Andhra Pradesh Buildings
(Lease, Rent and Eviction) Control (Amendment) Act,
F
2005, exceeds rupees three thousand and five hundred
per month in the areas covered by the Municipal
Corporations in the State and rupees two thousand per
month in other areas.
16. The submission made by the learned counsel on
behalf of the tenants is summarised as follows:
1. The amended Section 32 would make the provisions
G
of the Act applicable to pending proceedings.
H
264
A
B
c
D
E
F
G
H
SUPREME COURT REPORTS
(2015] 4 S.C.R.
2. The definition of "Tenant" in Section 2(ix) of the Act
would even include a former tenant continuing
possession after the termination of the tenancy in his
favour. Thus, irrespective of any decree for eviction
which may have been passed, ifthe tenant continues
in possession, he would be covered by the statutory
definition of "Tenant".
3. The purpose oftheAmendmentAct is to bring within
its fold buildings, whose rent are upto Rs.3,500/-p.m.
Thus, on the date the Amendment Act came into force,
all those persons who were in possession of buildings
the rents of which were below Rs.3,500/- p.m. would
come under the definition of "Tenant" as defined in
Section 2(ix) of the Act and such buildings would come
under the definition of "building" as given in Section
2(iii) of the Act.
4. For the purposes of the Act a person ceases to be a
tenant only when he loses possession of the building,
i.e. on the date of execution of a decree of eviction
passed against him. Therefore, it is with reference to
the date of execution of the decree that it has to be
determined whether or not the person is a "Tenant". If
the person falls within the definition of "Tenant",
irrespective of whether or not there exists a decree of
eviction against him, the provisions of the Act would
apply.
5.As a result of the coming into force of the Amendment
Act, the cases of tenants are brought within the
protective umbrella of Section 10(1) of the Act.
Accordingly, the power of civil courts to evict the tenant
(which includes a tenant continuing in possession after
the termination of the tenancy) who is in possession of
SMT. NOORUNISSA BEGUM v. BRIJ KISHORE
265
SANGH I [SUDHANSU JYOTI MUKHOPADHAYA, J.]
the buildings whose rents do not exceed Rs.3,500/-p.m.
A
is taken away. The Civil Court therefore, becomes
coram non judice.
6. An appeal is in continuation of the suit and an appeal,
arising from a suit which was decided before the
B
amendment came into force, would be governed by the
amendment provided the original or the appellate
decree has not been executed by the date the
amendment came into force.
7. The State Legislature was aware of GO.Ms dated
291h December, 1983 when amendment to Section 32
was passed. The State Government while exercising
power made Section 26 is merely a delegate which
otherwise originally vests in the State Legislature. The
. State Legislature by amendment of Section 32 has
taken over the occupied field. In such an event the G. 0.
dated 291h December, 1983 issued by the delegatee
cannot eclipse or undermine the exercise of power by
the delegator itself.
8. Even though, Section 26 is a non-obstante clause,
the same cannot override Section 32, in as much as
Section 32 is a non-obstante clause itself. In the event
Section 26 is held to invest power with the de legatee
to override or eclipse the intention of the delegator itself,
the said Section would be open to challenge on the
ground of excessive delegation.
c
D
E
F
17. Learned counsel appearing for the landlords submitted G
that all the above said contentions were advanced before the
Full Bench of the High Court and on careful consideration of
these contentions the Full Bench rightly came to the conclusion
that Section 32(c) of the Act brought into force by Section 3 of H
266
SUPREME COURT REPORTS
[2015] 4 S.C.R.
A Amendment Act, 2005 is prospective in operation and does
not affect proceedings pending at various stages.
18. Further according to the learned counsel for the
landlord retrospective amendment of a law is always resorted
B to only when the Legislature intends to deal with a situation
which deserves a remedial process. By amending a law
retrospectively, a benefit or an interest which has been put in
jeopardy owing to any reason or cause is retrieved. In other
words a retrospective amendment intends to achieve a
C specific object or purpose remedial in character. If no purpose
or object is discernible, retrospectively will not be imputed or
assumed.
19. In support of the contentions both the learned
D ·counsel relied on the judgments of this Court relevant of which
will be noticed at the appropriate stage.
20. Before dealing with the rival contentions in the light
of the judgments relied on by the learned counsel for the parties,
E we deem it appropriate to consider the precise nature of rights
of landlord and tenant in the common law and under the
provisions of the Act.
21. The rights of the landlord to evict a tenant by way of
F suit before a civil court of competent jurisdiction exist as long
as it is not abridged by a special legislation conferring
protection in favour of the tenant.
22. In Parripati Chandrasekharrao & sons vs. Alapati
G Jalaiah, (1995) 3 SCC 709, this Court drew a distinction
between the rights which accrue to the landlord under the
common law and the protection which is available to the tenant
under the Act. While upholding the GO.Ms. No.636 dated 29th
December, 1983 this Court observed as under:
H
SMT. NOORUNISSA BEGUM v. BRIJ KISHORE
SANGH! [SUDHANSU JYOTI MUKHOPADHAYA, J.]
"12. According to us there is a material difference
between the rights which accrue to a landlord under
the common law and the protection which is afforded
to the tenant by such legislation as the Act. In the former
case the rights and remedies of the landlord and tenant
are governed by the law of contract and the law
governing the property relations. These rights and
remedies continue to govern their relationship unless
t~ey are regulated by such prott>ctive legislation as the
present Act in which case the said rights and remedies
remain suspended till the protective legislation
continues in operation. Hence while it can legitimately
be said that the landlord's normal rights vested in him
by the general law continue to exist till and so long as
they are not abridged by a special protective legislation
in the case of the tenant, the protective shield extended
to him survives only so long as and to the extent the
special legislation operates. In the case of the tenant,
therefore, the protection does not create any vested
right which can operate beyond the period of protection
or during the period the protection is not in existence.
When the protection does not exist, the normal relations
of the landlord and tenant come into operation. Hence
the theory of the vested right which may validly be
pleaded to support the landlord's case is not available
to the tenant. It is for this reason that the analogy sought
to be drawn by Shri Subbarao between the landlord's
and the tenant's rights relying upon the decision of this
Court in Atma Ram Mittal, J 1988' 4 sec 284· is misplaced. In
that case the landlord's normal right to evict the tenant
from the premises was not interfered with for the first
ten years of the construction of the premises by an
exemption specifically incorporated in the protective
rent legislation ir. question. The normal right was
267
A
B
c
D
E
F
.G
H
268
A
B
c
SUPREME COURT REPORTS
[2015] 4 S.C.R.
obviously the vested right under the general law and
once accrued it continued to operate. The protection
given to the tenant by the rent legislation came into
operation after the expiry of the period of ten years.
Hence, notwithstanding the coming into operation of
the protection and in the absence of the provisions to
the contrary, the proceedings already commenced on
the basis of the vested right could not be defeated by
mere passage of time consumed by the said
'
proceedings. It is for this reason that the Court there
held that the right which had accrued to the landlord
being a vested right could not be denied to him by the
efflux of time."
23. In Garikapati Veeraya v.. N. Subbaiah Choudhary,
D AIR 1957 SC 540, while dealing with the golden rule of
construction this Court held that in the absence of anything in
the enactment to show that the amendment is to have
retrospective operation it cannot be so construed so as to have
E the effect of altering the law applicable to a claim in litigation
at the time when the Act was passed. The Constitution Bench
F
G
H
held:
·
"(25)1n construing the articles of the Constitution we must
bear in mind certain cardinal rules of construction. It
has been said in Hough v. Windus, 1884-12 QBD 224
at p.237(V)that "statutes should be interpreted, if
possible, so as to respect vested right." The golden rule
of construction is that, in the absence of anything in the
enactment to, show that it is to have retrospective
operation, it cannot be so construed as to have the effect
of altering the law applicable to a claim in litigation at
the time when the Act was passed. Leeds and County
Bank Ltd.v.Walker,(1883) 11QBD84 at p.91(W); Moon
SMT. NOORUNISSA BEGUM v. BRIJ KISHORE
269
SANGHI [SUDHANSU JYOTI MUKHOPADHAYA, J.]
v. Durden,(1948) 2 Ex 22:76RR 479 at p.495 (X). The
A
following observation of Rankin C.J. in Sadar Ali v.
Dalimuddin (supra) at page 520 (of /LR Cal); (at p. 643
of AIR) is also apposite and helpful: "Unless the contrary
can be shown the provision which takes away the
B
jurisdiction is itself subject to the implied saving of the
litigant's right." In Janardan Reddy v. The State, 1950
SCR 940atpp.946, 947); (AIR 1951SC124 atpp.126127) (Y) Kania C.J. in delivering the judgment of the
Court observed that our Constitution is generally
c
speaking prospective in its operation and is not to have
retroactive operation in the absence of any express
provision to that effect. The same principle was
reiterated in Keshavan Madhava Menon v. The State
of Bombay, 1951 SCR 228; (AIR 1951 SC 128)(Z) and
D
I
finally in Dajisaheb Mane and Others v. Shankar Rao
I
Vitha/ Rao, 1955-2 SCR 872 at pp.876-877; (S) AIR
1956 SC 29atp.31) (Z1)to which reference will bemade
in greater detail hereafter."
E
24. In Moti Ram v. Suraj Bhan, AIR 1960 SC 655,
this Court decided a case of ejectment of tenant by the landlord
under Section 13( 1) of the East Punjab Urban Rent Restriction
Act, 1949. Under Section 13 of the said Act, a tenant in
possession of a building cannot be evicted therefrom except F
in accordance with the said Section.·
This Court held that where an amendment affects
vested rights, the amendment would operate prospectively
unless it is expressly made retrospective or its retrospective G
operation follows as a matter of necessary implication. It was
held:
"It is well settled that where an amendment affects
vested rights, the amendment would operate
H
270
A
B
SUPREME COURT REPORTS
[2015] 4 S.C.R.
prospectively unless it is expressly made retrospective
or its retrospective operation follows as a matter of
necessary implication. The amending Act obviously
does not make the relevant provision retrospective in
terms and we see no reason to accept the suggestion
that the retrospective operation of the relevant provision
can be spelt out as a matter of necessary implication .... "
This Court further held:
c
"Where the legislature intends to make substantive
provisions of law retrospective in operation it generally
makes its intention clear by express provision in that
behalf."
o
25. Ordinarily a Court of appeal cannot take into account a
new law brought into existence after the judgment appealed
from has been rendered, because the rights of the litigants in
appeal are determined applying the law in force at the date of
the suit. This view was expressed by this Court in Dayavati v.
E lnderjit, AIR 1966 SC 1423. This Court further held that if the
new law speaks a language which expressly or by clear
intendment takes in even pending matter the Court of trial as
well as the Court of appeal must have regard to the intention
so expressed and the Court of appeal may give effect to such
F a law even after the judgment of the Court of first instance.
26. In Atma Ram Mittal vs.