ISHA VALIMAHMAD AND ANOTHER Vs. HAJI GULAM MOHAMAD HAJI DADA WAKF BY ITS SOLE TRUSTEE BY HIS CONSTITUTED ATTORNEY HAJI MOHAMAD AHMED AND ANOTHER

JUDGEMENT

(1.) Civil Revision Application Nos. 392 of 1966 and 371 of 1966 have been referred to the Division Bench. The same question is involved in both the Revisions and, therefore, they are heard together.

(2.) Civil Revision Application No. 371 of 1966 came up for hearing before our learned brother Vakil, J. Vakil, J. held that there was no bar of res judicata. The suit was brought by the landlord for possession of leased premises on the ground that tenancy was terminated as the tenant had sub-let the premises before 1.1.1964. The Saurashtra Rent Control Act was in force at the time of sub-letting, however, Bombay Rent, Hotel and Lodging House Rates Control Act, 1947 (Gujarat Extension Amendment Act, 1963, Act No. 57 of 1963) came into force on 1.1.1964. By the said Act, the Saurashtra Rent Control Act, 1951 (Saurashtra Act XXII of 1951) was repealed. The Bombay Rents, Hotels and Lodging House Rates Control Act, 1947 with amendment was applied to the Saurashtra area. The contractual tenancy was terminated by a notice dated 13th July, 1964. The suit was filed on 19th September, 1964. Vakill, J., considered the question as to whether the landlord was entitled to file a suit for possession on the ground of sub-letting, where sub-letting took place before 1.1.1964 after the Saurashtra Rent Control Act was repealed and the Bombay Rent Act, 1947 with amendments came into force in Saurashtra area. He was of the opinion that the landlord was entitled to file a suit for possession on the ground of sub-letting before 1.1.1964 after the Saurashtra Rent Control Act was repealed as the right to obtain possession of the landlord was saved under Section 51 of the Bombay Rent Act. The said Section 51 was added in the Bombay Rent Act by Act No. 57 of 1963 and the said section provided for repealing of the Saurashtra Rent Control Act and also provided for certain savings. However, our learned brother V.R. Shah, J. has taken a different view in Civil Revision Application No. 72 of 1967 (Kanji Bhimji v. Purshottam Girdhar, C.R.A. No. 72 of 1967 decided on 12.8.1969) decided o 12 August, 1969. In the said Revision Application V.R. Shah, J. has held that where sub-letting took place before 1.1.1964, and no notice was served terminating the tenancy before 1.1.1964, the landlord has not acquired any right to file a suit for possession on the ground of sub-letting and, therefore, no the ground of subletting before 1.1.1964 after the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 with amendments was applied to the Saurashtra area. Vakil J. did not agree to the view taken by V.R. Shah, J. and, therefore he referred the following question to the Division Bench :

(3.) In order to appreciate the question referred to by the Division Bench, it is necessary to refer to the relevant provisions of law and admitted facts : In both the cases the suit premises are situated in the area where Saurashtra Rent Control Act applied before 1.1.64. Under Saurashtra Rent Control Act 1951, sub-letting was prohibited under Section 15. Under Section 13(1)(e) of the Saurashtra Rent Act, the landlord was entitled to recover possession of any premises if the Court was satisfied that after coming into operation of the Saurashtra Rent Control Act the tenant had sublet the whole or part of the premises or assigned or assigned or transferred in any other manner his interest therein. After formation of the State of Gujarat, Saurashtra Rent Act, 1951 was continued in force in the Saurastra area of the Gujarat State and the Bombay Rent Act, 1947 continued to apply that area of the Gujarat State which formed part the old Bombay State. By Act No. 57 of 1963, the Bombay Rent, Hotel and Lodging House Rates Control Act (Gujarat Extension Amendment Act, 1963), 1947 with certain amendments was applied to the Saurashra area. By Section 4 of the Act No. 57 of 1947, Section 3 of the Principal Act was amended. By the said amendment of Section 3, it is provided that in the areas to which the Bombay Rents Hotel and Lodging House Rates Control Act, 1947 is extended the said Act shall come into force on the date on which the amending Act No. 57 of 1963 came into force. Amending Act came into force on 1.1.1964. Sub-section (2) of Section 15 of the Bombay Rent Act, 1947 was also amended by Section 14 of the Amending Act. The amended sub-section (2) of the Section 15 provides that sub-letting validated by Ordnance No. 3 of 1959 shall have effect only in the area in which the Bombay Rent Act applied before 1.1.64 and it shall not apply to the area in which the Bombay Rent Act was not in force before 1.1.64. By Section 21 of the Amending Act, Section 51 is added to the Bombay Rent Act, 1947. Section 51 provides for repeal of the Saurashtra Rent Control Act and the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 as extended to the Kutch area of the State of Gujarat by the Government of India, Ministry of States, Notification No. 215 J, dated the 9th September, 1951. The proviso to Section 51 reads as follows :