BRIJ MOHAN Vs. JODHA

JUDGEMENT

(1.) This is a revision under sec. 10(2), Rajasthan (Protection of Tenants) Ordinance, 1949, against an order of the S.D.O., Jaipur, dated 24.11.54, refusing protection to the applicants under sec. 7 of the Ordinance.

(2.) The learned counsel for the applicants has referred to notification No. F.1 (37) Rev/ 55, published in Rajasthan Gazette Extra Ordinary, dated 15th October, 1955, whereby the Rajasthan Government has appointed the 15th October, 1955, as the date from which the Rajasthan Tenancy Act, 1955, shall come into force. It has been argued that the applicants have acquired a right of appeal under the provisions of this Act and hence the revision application should be transferred to the Commissioner, Jaipur, for being treated as an appeal and heard and determined accordingly. The learned counsel for the opposite party has argued that the right which accrued to the apposite party under the Ordinance, i.e., right to hold the order of the lower court in his favour undisturbed cannot be taken away by the new Act.

(3.) We have bestowed our careful consideration upon the point involved for determination at this stage. As observed in A. I. R. 1954 Pat. 596 "It is a fundamental rule of law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective it must be so interpreted even though consequences may appear unjust and hard.........In general, when the law is altered during the pendency of an action, the right of the parties are decided according to law as it existed when the action was begun, unless the new statute shows a clear intention to vary such rights......" A similar observation was made in A. I. R. 1954 Nag. 348."......It is settled law that just an a right of appeal cannot be taken away during the pendency of a civil action, except by a clear provision to that end, so also a new right of appeal cannot be availed of unless that right is given in manner to apply to a pending case...... To ascertain as to whether a right of appeal has been conferred by the new Tenancy Act upon the pending cases or not, we have to examine the provisions contained in sec. 206 of the Act. It runs as follows - - "206. Provision for pending cases, etc - - -(I) All suits, cases, appeals, applications, references and proceedings relating to matters dealt with in this Act, and pending before a revenue court on the coming into force of this Act shall be deemed to have been commenced under this Act and shall be tried, heard and determined in the manner prescribed by or under this Act. (2) Any such suits, cases, appeals, applications, references or proceedings, which according to the provisions of this Act do not lie to or are not trible by the revenue court before which they are pending as aforesaid, shall be transferred to and be heard and determined, in accordance with law, by the revenue court to which they lie or by which they are triable in accordance with the provisions of this Act. (3) Any such suit, application, case or proceeding, pending before a civil court when this Act comes into force, which has been declared by sec. 207 to be exclusively triable by a revenue court shall be transferred by such civil court to the revenue court competent under sec. 217 to deal and dispose of the same. (4) Any suits, applications, cases or proceedings other than those referred to in sec. 207, pending before a revenue court on the coming into force of this Act, shall be transferred by such revenue court to the civil court having jurisdiction to try hear and determine the same." The implications of such provisions were examined by a Full Bench of the Bombay High Court in a case reported in AIR (36) 1949 Bombay 210. In that case "the decree of the trial court was passed on 14th November, 1946. Act 57 of 1947 came into operation on 13th February, 1948 and it was argued on behalf of the appellants that the rights of the parties were to be determined by the provisions of that Act and not of the Act which was in force when the suit was filed. The case depended upon an interpretation of sec.50 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. Sec. 50 of the Act ran as follows:? "50. Repeal. The Bombay Rent Restriction Act, 1939 and Lodging House Rates (Control) Act, 1944 are hereby repealed: Provided that all suits and proceedings between a landlord and a tenant relating to the recovery or fixing of rent or possession of any premises to which the provisions of Part II apply an \ all suits and proceedings by a manager of a hotel or an owner of a lodging house against a lodger for the recovery of charges for, or possession of the accommodation provided in a hotel or lodging house situate in an area to which Part III applies, which are pending in any court, shall be transferred to and continued before the courts which would have jurisdiction to try such suits or proceedings under this Act or shall be continued in such courts, as the case may be, and all the provisions of this Act and the rules made thereunder shall apply to all such suits and proceedings. Nothing in this proviso shall apply to execution proceedings and appeals arising out of decrees or orders passed before the coming into operation of this Act and such execution proceedings and appeals shall be decided and disposed of as if this Act had not been passed : Provided further that - - (a) every order passed or act done by the Controllers under Part IV of the Bombay Rents, Hotel Rates and Lodging House Rates (Control) Act, 1944, and every order or Act deemed to have been passed or done under that part shall be deemed to have been passed or done under this Act; and (b) all proceedings pending before the Controllers under part IV of that Act shall be transferred to and continued before the Controllers appointed under this Act as if they were proceedings instituted before the Controllers under this Act." As the execution proceedings and appeals arising out of decrees or orders passed before the coming into force of this Act were excluded from the purview of this section, their lordships held that the contention of the appellant in that case was untenable. However, the observations made by their lordships are of far reaching importance and provide ample guidance on the point at issue. The following passage may be quoted."......It is perfectly true that if the Legislature retrospectively affects pending proceedings, then it would -be the duty of the court of appeal to apply the law prevailing at the date of appeal which was pending before the court. It is also perfectly true that the mere passing of the decree does not preclude a court of appeal from taking into consideration the change in the law effected after the passing of the decree.................." Ordinarily every piece of legislation is prospective and does not affect vested rights. But it is always competent to the Legislature to make any Place of legislation retrospective. The restriction pointed out by their Lordships of the Bombay High Court is not to be found in sec. 206 of the Rajasthan Tenancy Act. The Act is given retrospective effect in respect of "all suits, cases appeals, applications references and proceedings relating to matters dealt with under this Act and pending before a revenue court on the coming into force of this Act." It has been argued before us that what is pending before the Board is only a revision and hence the original application under the repealed Ordinance cannot be deemed to be pending. There is no force in this contention. A revision is obviously a continuation of the original proceeding and if any authority be needed for this view, it would be found in A. I. R. 1953 Rajasthan 84. The point raised in that case was that the proceedings under the Rajasthan (Protection of Tenants) Ordinance 1949 came to an end with the decision of the Board on review on 11.6.51 long before the amendment of 1952 was made and therefore there were no pending proceedings to which the amendment could apply. Their Lordships were pleased to observe that we do not see any force in that. It is true that the proceedings before us are in our extraordinary jurisdiction under Art. 226 of the Constitution. But the effect of our order setting aside the order of the Board would be to reverse the judgment of the Board and three ladies who have been ordered to to be put back in possession by the Board would not get back possession. When this is the effect of the order that we may pass in this case, we are of the opinion that the proceedings under the Rajasthan (Protection of Tenants) Ordinance must be held to be pending. It is true that generally the High Court when exercising its extraordinary powers under the writ of certiorari merely quashers the order of the subordinate tribunal and does not substitute its own operative order in its place, and leaves the competent authority to pass the right order But whereas in this case the result would be the reverse the order of the Board and it will not be possible for the three ladies to apply again for protection, we are of the opinion that the proceedings must be held to be pending. A similar view was expressed in A.I.R. 1954 RLW 1.