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TMI Blog1995 (5) TMI 245X X X X Extracts X X X X X X X X Extracts X X X X ..... JUDGMENT:- The Judgment of the Court was delivered by K. RAMASWAMY, J. Leave granted in SLP NOS. 3554, 5453, 6054, 2815/79, 3182/87, 4150/92, 12520/86 and 5791/95. These appeals by Certificate under Article 133 arise from the judgment of the Full Bench of Allahabad High Court in Smt. Chandra Rani v. Vikram Singh, [1979] Allahabad Law Journal 401. The respondents laid the suits in the Courts of Small Causes for recovery of arrears of rent or for rent and possession from the appellants. On their committing default in payment of rent in pending suit, their defence was struck off under Order 15 Rule 5 of CPC as amended by U.P. Civil Laws (Reforms and Amendment) Act, 1976, U.P. Civil Laws (Amendment) Act 37/1972 and U.P. Civil Laws (Amendment) President's Act 19/73. They challenged the vires of Order 15 Rule 5. On reference, the Full Bench held that it is not inconsistent with the CPC Central (Amendment) Act 104/76 (for short, 'the Central Act') and is not void under Article 254(1) of the Constitution. By U.P. Act 37/72, s.4 of the Provincial Small Causes Court Act was amended empowering the Court of Small Causes to decree suit for possession of immovable property and for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Provided that such withdrawal shall not have the effect of prejudicing any claim by the plaintiff disputing the correctness of the amount deposited: Provided further that if the amount deposited includes any sums claimed by the depositor to be deductible on any account, the court may require the plaintiff to furnish security for such sum before he is allowed to withdraw the same." Consequentially Order L Rule l(b) of CPC was suitable amended by President's Act 19/1973 so that Rule 5 of Order 15 would consistently be applicable to the suits for recovery of possession and arrears of rent or recovery of rent simplicitor, as the case may be. After the Central Act was enacted on September 1976 and received the assent of the President on the same day, i.e. September 9, 1976, it was published in the Central Gazette on December 10, 1976, the U.P. State Legislature swung into action and enacted U.P. Civil Laws (Reforms and Amendment) Act 57/76 on December 13, 1976 reserved for consideration and received the assent of the President on December 30, 1976. It was published in the Gazette on December 31, 1976 brought into force with effect from January 1, 1977. The Central Act becam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctive and the orders passed before 1.2.1977 striking off the defence for non- compliance of Rule 5 are to be set aside?" It would appear that consequent upon Rent Acts made by the State legislature to protect unreasonable eviction of the tenants by the landlord's torrent racket and when tenants taking aid of accrued statutory tenancy, commit default in the payment of rent and drive the landlords to recover the same by filing civil suits, undue delay in disposal of the suits cause considerable hardship to the landlords. To remedy the situation of occupation of the building without paying arrears or accumulated arrears of rent, with a view to restoring the equilibrium between the competing interests of the tenants and landlords and to relieve the latter from hardship, the State legislature stepped in and introduced Rule 5 to Order 15 so as to enable the landlord to make an application to the Court for direction to pay the admitted rent and on an order passed in that behalf and on failure to comply therewith, the Court is empowered to strike off the defence of the tenant so as to enable the landlord to have the suit decreed and to recover possession and arrears of rent. The Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at any time any law with respect to the same matter including a law adding or, amending, varying or repealing the law so made by the Legislature of the State. (Emphasis supplied). In Zaverbhai Amaidas v. State of Bombay, [1955] SCR 799 at 809, a Constitution Bench of this Court considered whether s.7 of the Essential Supplies (Temporary Powers) Act, 1946 as amended in 1948 and 1949 repealed by implication, the Bombay Act (XXXVI of 1947) being inconsistent with Article 245(1) of the Constitution. At page 809, the Constitution Bench held that "Whether an Act of Parliament prevails against a law of the State, no question of repeal arises but the principle on which the rule implied repeal rests, namely, that if the subject-matter of the later legislation is identical with that of the earlier, so that they cannot both stand together, then the earlier is repealed by the later enactment, will equally applicable to a question under article 254(2) whether the further legislation by Parliament is in respect of the same matter as that of the State law." It was held that Bombay Act cannot prevail against the Central Act. This Court in Ch. Tika Ramji v. State of U.P., [1956] SCR 393, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ears on the face of the two statutes. Both statutes, if operate in the same field without coming in collision with each other there would be no repugnancy. If the statute occupying the same field seeks to create distinct and separate offences, no question of repugnancy arises and both statute continue to operate in the same field. In Krishna Dist. Cooperative Marketing Society Ltd., Vijayawada, v. N.V. Pumachandra Rao, AIR (1987) SC 1960, following the Maxwell's Interpretation of Statutes, held that when the latter Act is capable and reasonably applicable without extending it to the subjects specially dealt with by the earlier legislation, it cannot be held that earlier special legislation indirectly repealed, altered or derogated merely by force of such general words without any indication of a particular intention to do so. Mere general rule is not enough even though by its term, it is stated widely that it would, taken by itself, cover special cases of that kind referred to earlier. In Gauri Shankar Gaur v. State of U.P., [1994] 1 SCC 92, the question was whether the Land Acquisition (Amendment) Act 68/84 repealed the U.P. Avas and Vikas Parishad Adhiniyam, 1965, one of us ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Parliament evinced intention to bring about an exhaustive amendment to the CPC and is applicable to all States. The State amendments, being inconsistent with the Central Act, became void. We find no force in the contention. Section 97(1), with a marginal note "repeal and savings" , envisages that any amendment made or any provision incorporated in the Principal Act by a state legislature or a High Court before the commencement of the Central Act shall, except in so far as amendment or provision is consistent with the provisions of the Principal Act as amended by the Central Act, stands repealed. The emphasis as rightly stressed by Sri Parag is "any amendment to CPC made by the state legislature or a provision by the High Court" before the "commencement" of this Act stood repealed. It is to be noted here that the Central Act is an amending Act, not a repealing and consolidating statute to supplant the Principal Act, namely, Act 5 of 1908. Since CPC is a concurrent subject, the Parliament and the Legislature of a State or a High Court in respect of orders in the Schedule are competent to enact or amend CPC respectively. In fact several local amendments made to CPC before the comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... says that when a Bill has been passed by the House of the People, it shall be presented to the President and the President shall either give his assent to the Bill or withhold his assent therefrom. The proviso is not material for the purpose of this case. Once the President gives assent it becomes law and becomes effective when it is published in the Gazette. The making of the law is thus complete unless it is amended in accordance with the procedure prescribed in Arts. 107 to 109 of the Constitution. Equally is the procedure of the State Legislature. Inconsistency or incompatibility in the law on concurrent subject, by operation of Art. 254, clauses (1) and (2) does not depend upon the commencement of the respective Acts made by the Parliament and the State legislature. Therefore, the emphasis on commencement of the Act and inconsistency in the operation thereafter does not become relevant when its voidness is required to be decided on the anvil of Art. 254(1). Moreover the legislative business of making law entailing with valuable public time and enormous expenditure would not be made to depend on the volition of the executive to notify the commencement of the Act. In compatibili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gation thereof. If the contention of the counsel that the commencement of the provision is a condition precedent to bring about inconsistency by statutory interpretation, the word "made" be substituted with the word "commencement" in Article 254 (1) and (2) of the Constitution which is impermissible by interpretative process and amounts to judicial legislation. The contention of the learned counsel proceeded on the assertion that the Central Act is a consolidation Act intended to repeal Act 5/1908 and re- enact Act 104/76 to be a complete code is misconceived. The title of the Act itself manifests the intention of the Parliament that it is an 'Amending Act" to various provisions of the CPC by only 96 Sections to the main Code. It is also true that s.97(l) of the Central Act says that any amendment, made, or any provision inserted to the principal Act by a State legislature or a High Court before the commencement of the Central Act shall, except in so far as amendment or provision is consistent with the provisions of the principal Act as amended by the Central Act, stood repealed. The contention advanced by the learned counsel for the appellants is that all pre-existing amendmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsistent with the Central Act, the State amendment was declared repugnant to the Central Act. Therefore, it became void unless it was re-enacted by the State Legislature, reserved for consideration and received the assent of the President. The ratio on the facts in that case is unexceptionable but observations which we have noted above, gave rise to a construction advanced by the counsel. The wide construction put up by the Bench with due respect does not appeal to be sound. It is seen that Order 15 of the Central Act, as it stood before to the Amendment Act, consists of only Rules 1 to 4. Since the special need arose in Uttar Pradesh to maintain equilibrium between the rights of the tenants of their fixity of tenures subject to compliance with the provisions of the Rent Act and of the landlord to receive rent from the tenant, even pending proceedings, enacted Rule 5 and received the assent of the President and became a statute. Three Explanations were made by U.P. Act 57/76 to remove ambiguities and doubts. As stated earlier, the Central Act being an Amending Act and not a repealing Act and only Rule 2 of Order 15 was amended by the Central Act and the State Act made no amendment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... become void. The contention that s.20(4) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, provides procedure for payment of the arrears "on the first date of hearing of the suit" and if the tenant deposited the arrears, the Court has been given power to relieve the tenant against the liability for eviction on that ground and Order 15 Rule 5 provides discriminatory procedure offending Article 14 needs no close scrutiny. The two procedures are distinct and separate. The former gives opportunity to a tenant to make amends to his conduct of default and to availed the benefit of avoiding decree for eviction under the Rent Control Act. The jurisdiction of the Small Causes Court in that behalf was expressly taken out. The further contention that Order 15 Rule 5 makes arbitrary discrimination between two classes of tenants, namely, one making a bona fide mistake in not depositing the rent prior to the date of the first hearing and the other a dishonest tenant who takes a plea disputing the rent itself and permitted the latter to contest the suit by an adjudication and the former is negated by striking down the defence which violates Article 14 also is u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the fact that the right, or cause of action, in pursuance of which such suit, proceeding appeal or application is instituted or filed, had been acquired or had accrued before such commencement." Note This reference relates to amendments made to rules in Order 39. However, a plain reading clearly indicates the legislative intention that the provision of the principal Act as amended in the Central Act shall apply to every suit, proceeding, appeal or application pending at the commencement of the Amendment Act or filed thereafter, notwithstanding the fact that the right or cause of action in pursuance of which such suit, proceeding, appeal or application is instituted or filed had been acquired or had accrued before such commencement. Thereby it would be applicable to the pending proceedings even though a right had accrued or proceedings were instituted prior to the Central Act and the State Act have come into force. Accordingly, we hold that s.97(3) itself has affected the vested right and given retrospective operation to the pending proceedings, apart from applicability of the law from that date. It may be of interest to notice that after the judgment in Ganpat Girl' ..... X X X X Extracts X X X X X X X X Extracts X X X X
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