2017 (2) TMI 1325 - SC - Indian Laws

Benefit of exemption notification issued under old act - Termination of tenancy - the notification by which the provisions of the old act were applicable to the Doiwala area in the year 1949 continued and remained in force on the date when the notice of termination of the tenancy was issued - Whether or not the tenancy in question is protected by Act No. III of 1947? - Held that - The protection of the tenants under the 1947 Act continued throughout and in any case up to the issue of the notification dated 23rd of January 1973 under the Act No. XIII of 1972. It made no difference that the new Act of 1972 was specifically applicable to Doiwala town area by the aforesaid notification. As long as there was nothing inconsistent in the notification dated 31st March 1949 with the re-enacted provisions of the Act of 1972 the notification continued in force by virtue of Section 24 of the U.P. General Clauses Act 1904 - The notice issued by the Respondent-landlord terminating the tenancy Under Section 106 of the Transfer of Property Act was not valid and hence the suit filed on the basis of such a notice was not tenable. Applicability of U.P. Act No. III of 1947 to Doiwala Area - Whether or not the notification dated 31st of March 1949 which applied the provisions of the Act of 1947 to Doiwala town was in force on the 19th of September 1972 i.e. when the landlord terminated the tenancy and sought possession of the suit premises? - Held that - It is clear from Sub-section (1) and Sub-section (2) of the Act of 1947 that it extended to the whole of the erstwhile United Provinces and applied to every municipal area cantonment area and notified area as per the provincial government notification in the official gazette. Undisputedly the Governor declared that the provisions of Section 2 3(a) 4 5 6 8 11 12 and 16 of the Act shall apply to Doiwala town located in Dehradun by a notification dated 31st March 1949 because this notification has never been expressly repealed. Whether the notification dated 31st March 1949 continued to exist even after the Act was repealed upon the reenactment of the Act of 1972? - Held that - any statutory instrument (which a notification is) issued under the repealed enactment continues in force as if it were issued under the re-enacted provisions to the extent that it is not inconsistent with the re-enacted provisions. Such continuance exists till the statutory instrument is superseded by a statutory instrument issued under the re-enacted provisions. There can be no inconsistency between the notification applying the Act to the Doiwala area and the re-enacted provisions of the Act unless the Act of 1972 clearly expresses an intention to remove the protection accorded to the tenants from an area - the notification under the 1947 Act continued in spite of its repeal and the enactment of the 1972 Act. It cannot be said that in the hiatus between the repeal of the 1947 Act and the issuance of a notification applying the 1972 Act to the Doiwala area the Legislature intended that the tenants had no protection from eviction and there was an unrestricted right to evict them. The old Act i.e. the Act No. III of 1947 applied to the Doiwala area by virtue of notification dated 31st of March 1949 when the suit for the eviction of the Appellant was filed. The suit is untenable for the want of permission under the provisions of the U.P. Act No. XIII of 1972 and is liable to be dismissed - the Appellant-tenant shall hand over possession of the premises to the Respondent after a period of three years from today - appeal disposed off.

Summary

Issues Involved:
1. Whether the tenancy in question is protected by Act No. III of 1947.
2. Whether the notification dated 31st March 1949, which applied the provisions of the Act of 1947 to Doiwala town, was in force on the 19th of September, 1972.
3. Whether Section 24 of the U.P. General Clauses Act, 1904 continued the notification dated 31st March 1949 that protects Doiwala town by applying the provisions of the Act of 1947.

Detailed Analysis:

1. Protection of Tenancy by Act No. III of 1947
The core issue was whether the tenancy in Doiwala was protected under the Act of 1947 when the landlord terminated the tenancy and sought possession. The High Court had ruled that the Act of 1947, which was repealed and replaced by the Act of 1972, did not cover rural areas unless specially notified. The special notification for Doiwala came into existence only on the 23rd of January, 1973. Thus, the High Court concluded that there was no protection for the tenants during the interim period between the repeal of the old Act and the issuance of the new notification.

2. Continuation of Notification Dated 31st March 1949
The landlord issued a notice on the 19th of September, 1972, terminating the tenancy under Section 106 of the Transfer of Property Act, 1882. The Trial Court and the First Appellate Court dismissed the landlord's suit for eviction, holding that the notification from 1949 continued to protect the tenancy under the Act of 1947. However, the High Court reversed these findings, asserting that the notification ceased to exist with the repeal of the Act of 1947 and the enactment of the Act of 1972.

3. Applicability of Section 24 of the U.P. General Clauses Act, 1904
Section 24 of the U.P. General Clauses Act, 1904, was pivotal in determining whether the notification of 1949 continued to be in force. The provision states that any statutory instrument issued under a repealed enactment continues in force as if it were issued under the re-enacted provisions, as long as it is not inconsistent with the new enactment. The Supreme Court examined whether the 1949 notification was inconsistent with the provisions of the Act of 1972 and found no inconsistency. The Court concluded that the notification continued to protect the tenants in Doiwala even after the repeal of the Act of 1947.

Conclusion:
The Supreme Court held that the notification dated 31st March 1949, which applied the provisions of the Act of 1947 to Doiwala town, continued in force under Section 24 of the U.P. General Clauses Act, 1904, even after the enactment of the Act of 1972. Therefore, the tenancy was protected at the time the notice of termination was issued. Consequently, the suit for eviction was untenable without the requisite permission under the Act of 1972. The Court directed the tenant to hand over possession of the premises to the landlord after three years and to pay a monthly rent of ?4,000 until possession is handed over. The appeal was disposed of accordingly.