J95J

Stall of Bombay

Atma Ram Sridhar Vaidya.

1951 Jan. 25.

SUPREME COURT REPORTS [1951]

allow this appeal and reverse the . decision of the Bombay High Court.

Appeal allowed.

Agent for the appellant : P. A. Mehta.

Agent for the respondent: V. P. K. Nambiyar.

TARAPADA DE AND OTHERS

THE STATE OF WEST BENGAL

[SHRI HARILAL KANIA C.J., SAIYID FAzL Au,

PATANJALI SASTRI, MuKHERJEA, DAs and

CHANDRASEKHARA A1YAR JJ.l

Constitution of lndia, 1950, Art. 22 (5)-Preventive detention- Duty to contmunicate grounds of detention as soon as n1ay be- Duty to gii1e earliest opportunity to make t-cpresentation-Grounds fttrnished after 15 days-"Supplementary grounds 11 furnished after 4 months-Ugality of detentt'on-Vague grounds and irrelevant grounds distinguished-Supply of grounds first and details later-Legality-Serving printed orders on same date on several persons-Bona fides of detention.

A large number of persons were detained under the Bengal Criminal Law An1endrnent Act, 1930~ The validity of this ~.\ct was being c.hallenged in the High Court. Meanwhile, the Prcven

tive Detention Act of 1950 was passed on 26th February, 1950, and on the same date detention orders under this J\-:t \Vere served on them.

The grounds of detention were served on them on the 14th of l\farch, and on the 16th of July the Government served on them "'Supplementary grounds" in continuation of the grounds already furnished on the 14th of March. A secnd set of grounds were communicated to the appellants on the 22nd or 23rd of July. They applied to the High Court of Calcutta for writs of habeas corpus contending that the orders of detention were invalid on various ground~. The High Court rejected these applications and they appealed to the Supreme Court.

Held per KANIA C.J., FAzI.

ALI, MuKHERJEA and

CHANDRA

SEKHARA AIYAR JJ.-(i) that-in the particular circumstances of the case, cSpccial!y in view of the fact that a large nnn1ber _of cases had to be dealt with on the passing of the Preventive Detention Act in February, 1950, it cannot be said that the grounds \Vt.re not communicated to the appellants "as soon as may be" within the meaning of Art. 22 (5);

(ii) it cannot be held that the appellants were not given the "earliest opportunity" to make a representation, as required by Art. 22(5), merely because further details and facts were communicated to the appellants on the 16th July and 22nd July as these later communications did not contain any new or addition,! grounds (though they were described as "supplementary grounds") but only furnished details of the heads of grounds furnished on the 14th March;

(iii) merely because a ground is vague it cannot be considered that it is no ground at all and therefore cannot be sufficient to 'satisfy' the authorities; a 'vague' ground does not stand on the same footing as an irrelevant ground, which can have no connectioil at all with the satisfaction of the Government;

(iv) the sufficiency of the grounds for the purposes of satisfaction . of the Government is not a matter for examination by the court; their suflidency to give the detained person the earliest opportunity to make a representation can be examined by the court, but only from that point of view.

Held also, per DAs J.-The fact that a large number of fresh orders of detention were made overnight did not necessarily indicate bad fait.\ on the part of the authorities in the circumstances of these cases as the authorities had already applied their minds to the suspcted activities .of each of the detenues and were satisfied that with a view to prevent them from doing some prejudicial :; ct, it was necessary to detain them.

The State of Bombay v. Atma Ram Sridhar Vaidya supra p. 167 followed.

CRIMINAL

APPELLATE JURISDICTION: (Case No. 24 of 1950).

Appeal under Art. 132(1) of the Constitution of India, against the judgment and order of the High Court of Judicature at Calcutta in Criminal Miscellaneous Case No. 361 of 1950.

A. C.

Gupta and Sudhansu Sekhar Mukherjee (Arun Kumar Dutta and S. N. Mukherjee, with them) for the appellants.

M. C.

Setalvad, Attorney-General, (B. Sen, with him) for the respondent.

1951. Jan. 25.

The Judgment of Kania C. J., Fazl Ali, Mukherjea and Chandrasekhara Aiyar

J.J., was delivered by Kania C. J. Patanjali Sastri and Das JJ. delivered separate judgments.

KANIA C. J.-This is an of the Constitution of India appeal under article 132 from the judgment of the

)951

Tarapatfti DI.

artd Otlwr1

v The State qf West Bengill.

Kania C. ].

195!

Tarapat!a De

O'lld Others

Thi State ef Wist Bengal.

KaniaC.].

High Court at Calcutta, which rejected the hebea: corpus petitions of the appellants.

The detention orders under the Preventive Detention Act, 1950, in all cases were served on the appellants on the 26th February, 1950, and the grounds for the detention were served on the 14th March, 1950.

By way of specimen we quote one of them :

"You are being detained in pursuance of a detention order made under sub-clause (ii) of clause (a) of sub-section ( 1) of section 3 of the Preventive Detention Act, 1950, (Act IV of 1950), on the following grounds:- ( 1) That you have been assisting . the operations of the Communist Party of India, which along with its volunteer organisations has been declared unlawful by Government under section 16 of the Indian Criminal Law Amendment Act (Act XIV of 1908), and which has for its object commission of rioting with deadly weapons, robbery, dacoity, arson and murder and .possession and use of arms and ammunitions and explosives and thus acting in a manner prejudidal to the maintenance of public order and tbat it is necessary to prevent you from acting in such manner.

(2) That as a member of the C.P.I. on its Kishan front, you have fomented trouble amongst the peasants of Howrah District and incited them to acts of lawlessness and violence : and have thereby acted in a manner prejudicial to the maintenance of public order : That as a worker of the C.P.I. you have tried to foment trouble amongst the tramways men and other workers at Calcutta and in speeches which you delivered at the University Hall and other places you actually incited them to resort to acts of violence and lawlessness ; and have thereby acted in a manner prejudicial to the maintenance of public order."

On the 16th of July, 1950, the Government of West Bengal served on the appellants "in continuation of the grounds already furnished on the 14th of March, 1950, supplementary grounds" for their detention a specimen of which is in the following terms :-

"In continuation of the grounds already furnished under order No. 6163 H. S. dated 14th March, 1950, you are being informed of the supplementary grounds for your detention which are as follows :- you as the Secretary of the Bengal Chatkar Mazdoor Union, as a member of the Executive Committee of the Federation of Mercantile Empolyees' Union, as the honorary reporter of the 'Khabar' newspaper (C. P. I. organ) carried on the disruptive programme of the C. P. I. On the 29th July, 1948, you along with others led a procession at Howrah. preaching discontent against Government and have been thus acting in a manner prejudicial to the maintenance of public order."

As in the case of the first grounds, these "supplementary grounds" were also served on each appellant separately. The appellants applied for a Rule of habeas corpus separately wider section 491 of the" Criminal Procedure Code and on the 21st July, 1950, the High Court issued a Rule in each case on the Chief Secretary to the Government of West Bengal. A second set of grounds were communicated to the appellants on the 22nd or 23rd of July, 1950. A specimer of one is in the following terms :-

"In continuation of the grounds alreadv furnished under order No. 12820 dated 14th July, 1950, you are being informed of the supplementary grounds for your detention which are as follows :-

1. That in a meeting held at the University Institute on the 19th March, 1947, under the auspices of the Calcutta Tramway Workers' Union, you held out the threat that any attempt to take out tram cars on the 20th March, 1947, would be inviting disaster and you further said that if the authorities tried to resume the tram service you and your friends would not hesitate to remove the tram lines and cut the wires.

2. Tha:t on the 13th f une, 1948, you presided over a meeting under the auspices of the Students' Federation (C. P. I. controlled) aad delivered speech

!951

Tarapadtl De

anti Otlters

The Stale ef w ISi B•ftgal.

Kania C.J.

TarapodaDe

and Others v.

The SlaJ1 qf W 1st Bengal.

Koni.tJC.J.

advocating withdrawal of ban on the Communist Party of India and its. organ Swadhinta."

The High Court after considering the whole matter rejected the petitions of the appellants and the appellants have thereupon come in appeal before us.

In the High Court, it was first contended on behalf of the . appellants that the communication of the grounds dated the 14th March was not a compliance with article 22(5) of the Constitution of India, as those grounds were not communicated "as soon as may be." The High Court rejected this contention.

Under the circumstances of the case, we agree with the High Court and are unable to hold that in furnishing the grounds dated the 14th March, 1950, the authorities had failed to act in accordar\ce with the procedure laid down in article 22 (5) of the Constitution. Under the Bengal Criminal Law Amendment Act, 1930, a very large number of persons were detained.

The validity of that Act was being challenged in the High Court and the judgment was expected to be delivered towards the end of February, 1950.

The Preventive Detention Act, 1950, was passed by the Parliament of India in the last week of February, 1950, and these orders on all those detenus were served ou the 26th of February,

1950.

Having regard to the fact that Provincial Government had thus sudden I y to deal with a large number of cases on one day, we are unable to accept this contention of the appellants.

On behalf of the appellants it was next urged that there has been a non-compliance with the procedure laid down in article 22 (5) of the Constitution and section 7 of the Preventive Detention Act in the manner. of supplying grounds to the appellants resulting in not providing to the appellants the earliest opportunity to make a representation, which they had a right to make.

In the judgment delivered today in Case No. 22 of 1950(') we have discussed in detail the nature of the two rights conferred under article 22(5).

We have to apply those principles to the facts of this appeal for its decision.

(I) Supra, p 167,

When the authorities sent their second communication dated 16th July, 1950, to the appelants they described it as "in continuation of the grounds already furnished" and as the "supplementary grounds for your detention".

Relying on the wording of this communication it was argued that these were additional grounds which were furnished to the detenu and therefore the procedure prescribed under article 22(5) had not been followed. It was argued that the obligation to communicate grounds "as soon as may be" was absolute.

The grounds for detention must be before the Provincial Government before they could be satisfied about the necessity for malCing the detention order.

If the grounds before the detaining authorities on the 26th of February, 1950, were only those which they communicated on the 14th of March, they cannot support the detention on additional grounds which were not before them on that day and which the;• et out in the second communication four months later.

It was also contended that the fact of this communication showed that the authorities were not satisfied on the original grounds and had therefore put forth these supplementary grounds as an afterthought.

In our opinion these arguments cannot be accepted.

A description of the contents of the second communication as "supplementary grounds" does not neces.- sarily make them additional or new grounds. One has to Jook at the contents to find out whether they are new grounds as explained in our judgment in Case No. 22 of 1950(1). Examining the contents of the later communicat.ion in that way we find that they only furnished details of the second heads of the groW1ds furnished to the appropriate appellant on 14th March, 1950, in respect of his activities.

We are unable to treat them as new grounds and we agree with the High Court in its conclusion that these are not fresh or new grounds.

We dp not think it proper to consider the true effect of the communication only by reading its opening words.

The whole of it must be read and considered together.

The contention that the authorities were not satisfied on the original

0) Supr'a. p. 167

TaraplJl/a D•

and Others

TlzeState qf West Beng"l.

JrniaC.j.

[95[

T arafHJt/a De and Others

The State ef West Bengal.

KaniaC.J.

grounds and therefore put forth this communication as the supplemental grounds is again unsound. The fact that these details were communicated later does not necessarily show that they were not within the knowledge of the authorities when they sent the communication dated the 14th of March.

The contention that this communication of the 16th July, 1950, was not "as soon as may be", has to be rejected having regard to the principles set out in our judgment in Case No. 22 of 1950. The facts in each case have to be taken into consideration and if the detained person contends that this part of the procedure prescribed in article 22(5) was not complied with, the authorities will have to place materials before the court t~ refute that contention.

In the present case the High Court has considered that there has been no infringement of this procedural law and we see no reason to come to a different conclusion.

It was next argued that the grounds being vague, they could not be considered as grounds at all and therefore they could not be sufficient "to satisfy" the authorities.

On this point we have nothing to add to what we have stated in our juagment in Case No. 22 of 1950.

We are unable to accept the contention that "vague grounds" stand on the same footing as "irrelevarit grounds". An irrelevant ground has no connection at all with the satisfaction of the Provincial Government which makes the erder of detention.

For the reasons stated in that judgment we are also unable to accept the contention that if the grounds are vague and no representation is possible there can be no satisfaction of the authority as required under section 3 of the Preventive Detention Act.

This argument mixes up two objects. The sufficiency of the grounds, which gives rise to the satisfaction of the Provincial Government, is not a matter for examination by the court. The sufficiency of the grounds to give the detained person the' earliest opportunity to make a representation can be examined by the court, but only from that point of view.

We are therefore unable to accept the contention that the quality and characteristic of

the grounds should be the same for both tests. On the question of satisfaction, as has been often stated, one person may be, but another may not be, satisfied on the same grounds. That aspect however is not for the determination of the court, having regard to the words used in the Act. . The second part of the enquiry is clearly open to the court under article 22(5). We are therefore unable to accept the argument that if the grounds are not sufficient or adequate for making the representation the grounds canriot be sufficient for the subjective satisfaction of the authority.

As regards the grounds furnished by the Government in each case in its hrst communication, it is sufficient to notice that while the first ground is common to all the appellants, the second ground is different in most cases. The High Court has considered the case of each appellant in respect of the communication dated the 14th of March, 1950, sent to him. In their opinion those grounds are not vague. They have held that the procedural requirement to give the detained person the earliest opportunity to make a representation has not beeen infringed by the communication of the grounds of the 14th of March and by the subsequent communication made to the appellants in July. This point was not seriously pressed before us. After hearing counsel for the appellant we sec no reason to differ from the conclusion of the High Court on this point. The result is that the appeal fails and is dismissed.

PATANJAU SASm J.-This appeal was heard along with Ca5¢ No. 22 of 1950 (The State of Bombay v.

Atma Ram Sridhar Vaidya) (1). as the main question involved was the same. In the view I have expressed on that question in my judgment delivered today in that case, this appeal cannot succeed and I agree that it should be dismissed.

DAS J.-The same important questions have been raised in this appeal by 100 detenus against an order of a Bench of the Calcutta High Court as were raised

(I) Supra, p. 167. 7-1 S.O laclia/68

TarapaJaDe and Other1

The State qf Wen Ben.ta/,

Kania C.J.

Patanj11li Sastrial J.

D111J.

T 41'opado DI

and Othm

TA•Slot• ef

West Bt111ol.

by the detenu in the appeal of the State of Bombay in which judgment has just been delivered.

One additional point raised in this appeal was that the fact that a large n!Jlllber of fresh orders of detention were made "overnight" indicates bad faith on the part of the authorities, for the authorities could not have applied their minds to each individual case. 1 am unable to accept this contention as correct. The authorities had already applied their minds to the suspected activities of each of . the dctcnus and were satisfied that with a view to prevent them from doing some prejudicial act of a p; rticular kind it was necessary to m; ike an order of detention against them under the local Acts. There being doubt as to the validity of the local Acts and the Preventiv: Detention Act having been passed in the meantime the question was to make a fresh order under the new Act. The minds of the authorities having already been made up as to the expediency of making an order of detention against them, an elaborate application of mind, such as is now suggested, does not appear to me to be necessary at all. I do not think there was any failure of duty on the part of the authorities which will establish bad faith on their part.

In my view, for reasons stated in my judgment in the other appeal, there being no proof of any mala {ides on the part of the authorities, no fundamental rights of the petitioners have been infringed.

In the case of each of the detenus, apart from the common ground, there were one or more specilic grounds of detention which arc quite sufficient to enable the detenu Concerned to make his representation.

Therefore, the question of supplementary particulars does not arise at all. In my opinion the conclusions arrived at by Roxburgh J. were correct and well-founded, and, therefore, this appeal should be dismissed.

A ppettl dismisseil.

Agent for the appellant : P. K. Chatterjee.

Agent for the respondent : P. K. Bose.

P. A. Mehta

V. P. K. Nambiyar

TARAPADA DE AND OTHERS

THE STATE OF WEST BENGAL

SHRI HARILAL KANIA C.J.

PATANJALI SASTRI

MuKHERJEA

DAs

Art. 22

22nd or 23rd of July

High Court of Calcutta

Supreme Court

KANIA C.J.

FAzI.

ALI

CHANDRA

SEKHARA AIYAR

Art. 22

Art. 22(5)

16th July and 22nd July

Art. 132(1)

Constitution of India

High Court of Judicature at Calcutta

A. C.

Gupta

Sudhansu Sekhar Mukherjee

Arun Kumar Dutta

S. N. Mukherjee

M. C.

Setalvad

B. Sen

Kania C.

Fazl Ali

Mukherjea

Chandrasekhara Aiyar

Kania C. J. Patanjali Sastri

Das

KANIA

Constitution of India

article 132

State qf West Bengill.

Kania C. ].

195!

Tarapat!a De

High Court at Calcutta

March, 1950

section 3

Preventive Detention Act, 1950

Communist Party of India

section 16

Indian Criminal Law Amendment Act

C.P.I.

Howrah District

Calcutta

16th of July, 1950

Government of West Bengal

Bengal Chatkar Mazdoor Union

29th July, 1948

Howrah

section 491

Criminal Procedure Code

21st July, 1950

West Bengal

22nd or 23rd of July, 1950

14th July, 1950

Calcutta Tramway Workers' Union

13th f une, 1948

Kania

TarapodaDe

article 22(5)

Constitution of India

14th March, 1950

article 22

Bengal Criminal Law Amendment Act, 1930

Preventive Detention Act, 1950

Parliament of India

26th of February,

1950

article 22

section 7

article 22(5)

16th July, 1950

article 22(5)

26th of February, 1950

14th of March

article 22(5)

section 3

article 22(5)

14th of March, 1950

PATANJAU SASm

DAS

TarapaJaDe

State

State of Bombay

Roxburgh

P. K. Chatterjee

P. K. Bose


S.C.R.

SUPREME COURT REPORTS 221

CHANDRASINGH MANIBHAI AND OTHERS

SURJIT LAL LADHAMAL CHHABDA

AND OTHERS.

[PATANJALI SAsTRI, MEHR CHAND MAHAJAN and MuKHERJEA JJ.]

Bombay Rents, Hotel and Lodging House Rates Control AN (LV/l of 1947), ss. 12, Sri-Application of Act to appealr pending when Act came into force-Retrospec/ive operation of Act, ertent of-Construction of ss, 12 and 50.

The Bombay Rents, Hotel and Lodging House Rates Control Act, LVII of 1947, which came into force on the 13th February, 1948, has no application to appeals which were pending at the time when the Act came into force.

Its retrospective effect is limited to cases mentioned in s. 50 of the Act, that is to say to suits and proceedings which were transferred under the provi sions of the said section to the courts having purisdiction under the Act.

Section 12 of the said Act is in terms prospective and not retrospective in effect.

Sub-section (2) relates to suits which may be instituted after the Act comes into force and sub-s. (3) also only applies to such suits.

Nilkanth v. Rasiklal (A.I.R. 1949 Born. 210) approved.

CIVIL

APPELLATE JuR1sD1cnoN: Appeal <Civil Appeal No. 57 of 1950) from a judgment and decree of the High Court of Judicature at Bombay dated 1st April, 1948, in Appeal No. 365 of 1947 reversing a judgment of the Joint Civil fudge at Ahmedabad, dated 14th October, 1947, in Suit No. 174 of 1945.

Somaya (lindra Lal, with him) for the appellants.

C. K. Daphtary (Sri Narain Andley, with him) for the respondents.

1951. February 23.

The judgment of the Court was delivered by

MAHAJAN J.-The appellants are owners of aproperty known as "Bharat Bhuvan Theatre" at Ahmcdabad. The respondents are the lessees of the said theatre.

Th(' term of the lease was to expire on the 2nd

Feb. 230

t95!

C/ifJwdrasingh Manibhai and

Oth1rs

Surjit Lal Ladhamal Chhabda and

Otlrtrt.

Mahajan].

December, 1945, unless the lessees gave to the landlords three months previous notice in writing of their intention of exercising their option of renewal of the lease for a further period of two years.

On the 13th December, 1945, the appellants filed the suit out of which this appeal arises for ejectment of the respondent• and for recovery of certain amounts. This suit was decreed on the 14th October, 1947, on the following findings : (1) that the respondents had not exercised the option of the renewal of the lease according to the stipulations contained in the lease, (2) that they had committed breaches of the terms of the lease, and (3) that they were not protected by the Rent Restriction Act.

An enquiry was directed into the amount of mesne profits.

The respondents filed an appeal in the High Court against the decree of the Joint Civil Judge on the 10th November, 1947. The appeal was heard by a Bench of the High Court (Weston and Dixit JJ.) on the 26th February, 1948, and was decided on the 1st April, 1948.

The judgment and decree of the Joint Civil Judge were reversed and the plaintiff's suit was dismissed. The High Court affirmed the finding of the trial court on the first point and held in agreement with it that the respondents had not proved that they gave three months previous notice in writing to the appellants for renewal of the lease as required by clause 4(2) of the lease. It reversed the finding of the trial Judge on the point that the respondents had committed breaches of the terms contained in clause 2

(20) of the lease. Finally, it reached the conclusion that although the decree appeakd from was right on the date it was made, yet in view of the altered circumstances created by reason of coming 'into operation of Act L V_II of 1947 the appellants were not entitled to recovery of possession of the suit premises.

Being aggrievea by the judgment of the High Court, the appellants obtained a certificate and filed an appeal in this court on the 7th March, 1949, and it is now before us for decision.

It was contended before the High Court that the appeal being in the nature of a rehearing, it should be

decided in accordance with the provisions of Act LVII of 1947 which came into force on the 13th February, 1948, and not. in accordance with the provisions of the Act in force at the time when the decree was passed by

the trial court. In other words, the contention was that there having been a change in the law after the date of the decree passed by the trial Judge. and before the appeal was heard, the rights of the parties should be determined in accordance with the law as it stood on the date of the hearing of the appeal. The High Court gave effect to this contention and set aside the decree made for ejectment of the respondents.

Learned counsel for the appellants challenged the decision of the High Court before us on tliree grounds :

(1) that assuming that the appeal had to be decided by the High Court in accordance with the provisions of Act L VII of 1947, the provisions of that Act had no ap.elication to pending appeals which had been excluded from its ambit ; (2) that Act L VII of 1947 had been amended by Bombay Act - III of 1949 and that the appeal pending in this court should be decided in accordance with the provisions of the amended Act which excluded pending appeals from the purview of Act LVII of 1947 ; and (3) that the High Court wrongly reversed the trial court's finding that the respondents had committed oreaches of the terms contained in clause 2(20) of the lease.

The learned counsel for the respondents besides controverting the contentions raised on behalf of the appellants conended that both . the courts had erred in holding that the respondents had not proved that they exercised the option of renewal of the lease ac.cording to the stipulations contained therein.

In our opinion the decision of the a!Jpeal depends solely on the construction of sections 12 and 50 of Act L VII of 1947. The question to decide is whether the Bombay Rents.

Hotel and Lodging House Rates Control Act, L VII of 1947, which was enacted on the 19th January, 1948, and which came into force on the 13th February, 1948, 11as. application to

1951 -~ Chandrosingh Manibhai anti

Others

.v.

Sarjit Lot Ladha111al Chhabda on4 .othm.

Chandrasingla Manibhai and

Ot hm

Surjit Loi Lodh4mal Chha6da anti

Oth111.

Mahajan].

...

pending appeals or whether its retrospective effect is limited to cases mentioned in section 50 of the Act.

The point whether the option of renewal was exercised according to the covenants of the lease is concluded by a concurrent finding of fact and nothing that Mr. Daphthary said in support of his contention in ariy way shake that finding.

The case must therefore be decided on the assumption that the respondents did not exercise the option given to them under the lease for its renewal.

We are also not impressed with the argument of the learned counsel for the appellants that the High Court wrongly reversed ):he finding of the trial Judge on the point that the respondents committed breaches of the terms of the lease.

We should not however be taken to concur in all the reasons given by the High Court for reversing that finding.

Whether the High Court was right in holding that the provisions of Act L VII of 1947 have application to appeals pending at the time when that Act came into force; the answer to this question depends on the construction to be placed on sections 12 and 50 of Act L VII of 1947. Section 12 of the Act is in these terms :

"(1) A landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay, the amount of the standard rent and permitted increases, if any, and observes and performs the other conditions of the tenancy, in so far as they arc consistent with the provisions of this Act.

(2) No suit for recovery of possession shall be instituted by a landlord against a tenant on the ground of non-payment of the standard rent or permitted increases due, until the expiration of one month next after notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in section 106 of the Transfer of Property Act, 1882.

(3) No decree for eviction shall be passed in any such •suit if, at the hearing of the suit, the tenant pays or tenders in court the standard rent or permitted increases then due together with the costs of the suit.

Explanation-In any case where there is a dispute as to the amount of standard rent or permitted increases recoverable under this Act the tenant shall be deemed to be ready and willing to pay such amount if, before the expiry of the period of one month after notice referred to in sub-section (2), he makes an app1ication to the court under sub-section (3) of section 11 and thereafter pays or tenders the amount or rent or permitted increases specified in the order made by the court."

This is the substantive section giving protection to the tenant against ejectment.

Section 50 which occurs in Pait IV dealing with miscellaneous matters is the repeal section.

It repeals the Act of 1939 and the Act of 1944, and while repealing these statutes it provides as follows:-

"Provided that all suits and proceedings (other than execution proceedings and appeals) 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 and all suits and proceedings by a manager of a hotel or an owner of a lodging house against a lodger for the recovery of chacges 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 he transferred to and continued hefor.e the courts which would have jurisdiction to try such suits or proceedings under this Act; and thereupon all the provisions of this Act and the rules made thereunder shall apply to all such suits and proceedigs.

 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 O! act deemed llo 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 appointe4 under this

19~1

Ch•ntlrasavli Manibliai an'

Othirs.

Surjit Lal Ladhamal Chha6da and

Others.

Mahajan].

Chantlrasingh

Manibhai and

Othlrs

Suriit Lal Ladhamal Chhabda ana

Others.

Mahajan].

Act :is if they were proceedings instituted before the Controllers under this Act".

 The High Court held that section 50 merely provided for transfer of pending suits and proceedings to courts given jurisdiction under the Act to hear them and that from its ambit execution proceedings and appeals were excluded because no question could arise of the, ir being transferred from one court to another and that an appeal being a continuation of the suit and in the nature of a re-hearing, the provisions of section 12 should be applied to pending appeals. The opinion expressed by the Division Bench on the construction of sections 12 and 50 of the Act was questioned in Nilkanth v. Rasiklal('), and the matter was referred to a full Bench.

The Full Bench overruled the decision reached by the Division Bench on the construction of section 50 and observed that it was clear that in terms the provisions of the new Act and the rules made thereunder are made to app1y only to such suits and proceedings which are transferred under the provisions of this section and that its retrospective effect is confined to what is expressly stated in section 50 of •the Act. We are in respectful agreement with the view expressed by the Full Bench.

On a plain reading cf the language of sections 12 and 50 it seems clear to us that the Act was given retrospective operation only to a limited extent and execution proceedings and appeals were exclnded from this effect and were to be governed by the provisions of the law in force at the time when the decrees were passed.

The concluding words of section 50 "and thereupon all the provisions of this Act and the rules made thereunder shall apply to all such suits and proceedings" fully bear out this construction.

Mr. Daphthary contended that the whole object of section 50 was to make provision for transfer of pending cases to courts which were given jurisdiction under the Act to hear them and the section did not concern itself with the extent of the retrospective operation of the Act, and that section 12 of the Act which gives protection to tenants should en A. 1. R. 1949 Dom. 210.

be construed as having retrospective effect.

In our opinion this contention is not sound.

Section 50 cannot be described as a section providing merely for transfer of pending cases to courts having jurisdiction to deal with them. It is on the other hand a "repeal" section in the new statute.

It repeals the two earlier statutes, and while repealing them it provides that the repeal shall not affect "executions and appeals" and that the provisions of the Act shall apply to all pending suits which shall be transferred to the courts having jursdiction to hear them under section 28 of the Act.

We are also inclined to agree with the view of the Full Bench that section 12 is in terms prospective and not retrospective.

Sub-section (2) clearly relates to suits which may be instituted after the Act comes into force.

It cannot apply to suits which were already pending when the Act was put on the statute book.

Sub-section (3) which gives the right to the tenant to pay or tender the rent at the hearing of the suit only applies to those suits which may be instituted after the Act comes into operation because it in terms states "in such suit" and not "in any suit". "Such suit" can only be a suit referred to in subsections (2) and (3) of section 12.

The result therefore is that, in our opinion, the High Court erroneously applied the provisions of Act L VII of 1947 to the appeal in this case and was wrorig in allowing it on that basis. In this view of the case it is unnecessary to deal with the alternative argument of the learned counsel that this appeal should be decided in accordance with the provisions of Act III of 1949. We accordingly set aside the decree of the High Court dismissing the plaintiff's suit and restore the decree of the trial Judge decreeing the plaintiff's suit with costs.

Appeal allowed.

Agent for the appellants: /l[aunit Lal~

Agent or the respondants: Ra; inder Narain.

Chandrasingh M anibhai and Otlurs

Surjit Lal

Latlhamal Chhabtla and

Others,

Mahajan].

221

CHANDRASINGH MANIBHAI AND OTHERS

SURJIT LAL LADHAMAL CHHABDA

PATANJALI SAsTRI

MEHR CHAND MAHAJAN

MuKHERJEA JJ.

ss. 12

13th February, 1948

s. 50

Section 12

C. K. Daphtary

Narain Andley

MAHAJAN

Surjit Lal Ladhamal Chhabda

14th October, 1947

10th November, 1947

Weston

Dixit

26th February, 1948

1st April, 1948

clause 4(2)

clause 2

7th March, 1949

clause 2(20)

sections 12 and 50

Chandrosingh Manibhai

Sarjit Lot Ladha111al Chhabda

Chandrasingla Manibhai

Surjit Loi Lodh4mal Chha6da

section 50

Daphthary

sections 12 and 50

Section 12

section 106

Transfer of Property Act, 1882

section 11

Section 50

Ch•ntlrasavli Manibliai

Surjit Lal Ladhamal Chha6da

Surjit Lal Ladhamal Chha6da and

Others.

Suriit Lal Ladhamal Chhabda

Mahajan

section 50

section 12

sections 12 and 50

section 50

section 50

sections 12 and 50

section 50

section 50

section 12

Section 50

section 28

section 12

section 12

Chandrasingh M anibhai

Surjit Lal

Latlhamal Chhabtla