SAMBHAJIRAO ABAJIRAO PATHARKAR Vs. LEELABAI VASUDEO PATHARKAR

JUDGEMENT

(1.) A point of law which is more tantalising than challenging has been raised in this petition under Article 227 of the Constitution. The petition arises out of proceedings instituted by the first two respondents, hereinafter referred to as "the respondents", under the provisions of the Bombay Rents Hotel and Lodging House Rates Control Act, hereinafter referred to as" the Bombay Rent Act. The proceedings started with the filing of a suit, being Suit No. 1259 of 1966, by the respondents against the petitioner for possession of some shop premises situated in House No. 15/1 in Kirkee at Pune, hereinafter referred to as "the suit premises". The facts may be stated chronologically as follows :--- 6th January, 1969 : Suit No. 1259 of 1966 filed by the respondents against the petition decreed by the Small Causes Court, Pune. 31st January, 1970 : Civil Appeal No. 140 of 1969 preferred by the petitioner re jected under Order VII, Rule 11 read with section 107 of the Civil Procedure Code on the ground that the decree was a nullity and that section 29 of the Rent Act was not applicable. 22nd July, 1971 : Suit No. 993 of 1970 by the petitioner treated as a proceeding under section 47 of the Civil Procedure Code and decided that the decree in Suit No. 1259 of 1966 was a nullity by Small Cause Court as an executing Court. 2nd June, 1972 : Cantonments (Extension of Rent Control Laws) Act 1957 amended by Act 22 of 1972. 24th July, 1972 : Civil Appeal No. 778 of 1971 preferred by the respondents against the order of 22nd July, 1971 dismissed by the learned Joint Judge, Pune, by confirming that the decree passed in Suit No. 1259 of 1966 was a nullity. 12th February, 1974 : Miscellaneous Application No. 242 of 1973 by the petitioner for reviewing the order passed in Civil Appeal No. 140 of 1969 dis-missed by the learned Assistant Judge of Pune. 28th August, 1975 : Regular Darkhast No. 2652 of 1972 filed by the respondents dismissed by the Additional Judge, Small Cause Court, Pune as an executing Court on holding that the darkhast was barred by res judicata in view of the decision in Civil Appeal No. 778 of 1971. 10th April, 1978 : The impugned order passed allowing Civil Appeal No. 650 of 1975.

(2.) Before considering the very short question, which I have with some liberty described as tantalising, it would be necessary to mention some legislative facts. Till the year 1969 and definitely till the suit filed by the respondents was decided, the legal position was understood to be that the Bombay Rent Act without anything more being done by the Central Government was applicable to areas comprised in the cantonments of the various cities and more particularly to the Kirkee Cantonment of Pune. By a decision given in the year 1969, to be precise on 29th of April, 1969, in the case of (Indu Bhsan v. Rama Sundari), A.I.R. 1970 S.C. 228, the Supreme Court held that this view was incorrect and neither the Maharashtra legislature nor the Maharashtra Legislature nor the Maharashtra Government could extend the provisions of the Bombay Rent Act to the areas comprised in the cantonments.

(3.) In order to overcome the difficulties which thus arose on account of the decision of the Supreme Court in Indu Bhusans case, the Central Government issued a Notification on 27th of December, 1969 under sub-section (1) of section 3 of the Cantonment (Extension of Rent Control Laws) Act, 1957 extending the provisions of the Bombay Rent Act to the cantonment areas. This notification, however, had only prospective operation and did not validate the decrees which had been passed by the various courts prior to the issuance of this notification on the assumption that they had jurisdiction to pass decrees in respect of premises situated within the cantonment areas. The decrees which had passed earlier, therefore, remained dead letters in the eyes of law.