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TMI Blog1973 (11) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... for any time longer than s. 2 of the Act confers or lasts. It-is appropriate for a Court to do justice between parties to the litigation and in moulding the relief in the light of the subsequent developments, to take note of legislative changes. A court of justice should, if it could, adjudicate finally and not leave the door ajar for parties to litigate again. In the present case, it is not seriously disputed that if the plaintiff were to sue for recovery of possession today, the Rent Control Law does not stand in the way. Therefore, it is manifestly a measure of doing justice between the parties and ending litigation which has seen two decades pass, to conclude it here by taking cognizance and adjusting the relief in the light of the later Act and repeal of the earlier Act. Nevertheless, it is contended that the present suit cannot be decreed in view of the provisions of the U. P Public Premises (Eviction of Unauthorised Occupants) Act, 1972. This statute 'which provides for summary eviction of unauthorised occupants cannot obstruct the suit for eviction of a tenant. The far-fetched submission has hardly any substance and we reject it. In the result, C.A. 1727 of 1968 is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s thus (a) The plaintiff may be put in absolute proprietary possession after dispossessing the defendants over the sheds and passage shown in to 28 and 31 and 32 situate in Bazar Patelganj known as Cambellgunj Sabzimandi Bareilly as shown in the map attached to the plaint. The plaintiff claims Ex. '1' to be a licence which, if correct, undoubtedly entitles him to the relief while the defendant pleads the status and protection of a tenant under the U.P. (Temporary) Control of Rent and Eviction Act (U.P. Act of 1947) (hereinafter referred to as the Act). The decision of this case largely depends on Ex. '1' being a lease or a licence. We are satisfied from the evidence on record that the finding of the Courts below that Ex. '4' is binding on the plaintiff is sound but since the effect of both the documents is fairly the same we may as well proceed to interpret them straightaway. In this Court, however, an additional ground has been urged by the respondent that the Act having been repealed by the Uttar Pradesh Urban Buildings (Regulation of letting, rent and eviction).Act, 1972 (Act of 1972) (for short, called the later Act), the Board is entitled to an eje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ariations to this broad statement are possible and Ex. '1' and '4' fall in the gray area of unclear recitals. The law on the point has been stated by this Court in the Associated Hotels' case(1). In Halsbury's Laws of England, Volume 23, the distinctive flavor, the deceptive labels and the crucial considerations in a lease- versus licence situation have been stated and excepts therefrom may serve as guidelines (see pages 427, 428 and 429): 1022. PRINCIPLES FOR DETERMINING WHETHER AGREEMENT CREATES LEASE OR LICENCE. In determining whether an agreement creates between the parties the relationship of landlord and tenant or merely that of licenser and licensee the decisive consideration is the intention of the parties. The parties to an agreement cannot, however, turn a lease into a licence merely by stating that the document is to be deemed a licence or describing it as such the relationship of the parties is determined by law on a consideration of all relevant provisions of the agreement; nor will the employment of words appropriate to a lease prevent the agreement from conferring a licence only if from the whole document it appears that it was intend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Bar. With these factual-legal background, we may formulate the points we are called upon to decide, ignoring minor matters which do not deflect the ultimate issue one way or the other. (1) Is Ex '1' (or Ex, '4') a lease or only a licence or a composite one ? (2) If lease, does it embrace a demise of an 'accommodation as defined in the Act, or more ? if it covers more than an 'accommodation', is the portion of the deed dealing with 'non- accommodation' severable so ;is to warrant a. decree for possession confined to that portion ? Similarly,. if Ex. '1' is in part a licence as the High Court has held, what is the relief the Court can grant to the plaintiff ? (3) If Ex. '1' is a lease wholly of an accommodation, can the, plaintiff claim possession based on the repeal of the Act by the later Act during the pendency of the pre- sent appeal ? Before proceeding to discuss these matters, it is proper to state that the maps attached to Ex.1 and Ex. 4 are integrated into the deeds we may also indicate that legal attention and cartographic precision appear to have gone into the preparation of the two the kanamas. While ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s which were made up of two categories viz. shops and sheds, and strips marked 4, 7, 8 :and 9 which were really the flanks of the red coloured central strips running between the stalls. It is clear that the width of these internal roads was originally 9 feet but only a middle ribbon of 31 was now left open for free passage, the belts of 31 on either side marked yellow being converted into Walks and vending sites. One question on which there was divergence of findings between the courts below was as to whether these yellow belts were leased out or only licensed for collection of Tahbazari. The High Court argued :- Admittedly, the public has right of passage over roads indicated in the map in red colour. Footpaths in question are situate between shops and the public road. It is unlikely that the agreement was intended to interfere with the right of the public to pass over the footpaths adjoining the road . and concluded that 'the agreement was a mere licence as regards the patris or footpaths adjoining the roads'. We do not agree. Maybe it was reasonable, having regard to the nature of these yellow strips and their use, not to grant leases thereof Maybe there are s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 warrant the-lease of the whole as too integrated to be severable or sufficiently individualised that we can spell out a lease of the pavements and pathways as a separate item. If these were possible the next consideration is about the concept of 'accommodation, in the Act and the liability to eviction of the non-accommodation segment of the composite deed. The built-up area and the open spaces are dealt with differently in regard to both the lessor's control over the lessee and the latter's,rights vis-a-vis the temporary occupants. Moreover, the two parts, are not so enmeshed or inter-dependent as to be treated as unun quid. While the 'green' pavements are appurtenant to the shops or sheds leased, the paths and walks are separate entities and not in fact or law attached to them. These are no appendages, no adjuncts, no space so bound to the use of the buildings as to be treated as belonging to them. Such being the sense of appurtenance, we have to examine whether. these open areas are part of the 'accommodation, let out to the defendant. By definition 'accommodation' includes gardens, grounds (1) I.L.R. 16 Lucknow 191. and out-houses if any, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion is no longer available. However, counsel for the appellant contends that a right has accrued to him under the Act which cannot be taken away by its repeal since the later Act is not in terms a retrospective one. Actually, it is correct to say that, s. 43 has not been made retrospective. Even so, the counsel for the respondent submits that, on the repeal of the Act, the disability which his clients suffered has disappeared and he is entitled to enforce his cause of action. According to him, the, Act did not confer any right on the tenant but imposed a disability on the landlord in enforcing his right to evict and that a mere defence cannot be described as a right in the defendant. According to him, the 'right' referred to under s. 6 of the General Clauses Act or s. 43 of the repealing Act is a substantive right and not a defensive plea. We have to examine these rival positions in some detail. Certain propositions are clear regarding the consequence of repeal of a statute. The general principle is that an enactment which is repealed is to be treated, except as to transactions Past and closed, as if it had never existed. However, the operation of this principle is subje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notwithstanding the repeal of the earlier Act any Court before which any suit or other proceeding relating to the............. eviction from any building is pending immediately before the commencement of this Act may, on an application being made to it within 60 days from such commencement, grant leave to any party to amend its pleadings in consequence of the pro-. visions of this Act. It is, therefore, clear that even if the statute for recovery of possession be one under the earlier Rent Control Law the later Act will apply and necessary amendments in the pleadings can be made. This definitely indicates that it is the later Act that must govern pending proceedings for recovery of possession or recovery or fixation of rent. However, the suit with which we are concerned is not even one under the Act, but proceeds on the footing that the defendant is only a licensee. So much so, none of the savings clauses in s. 43 (2) applies. The result is that the application of the old Act is repelled by the general rule that on repeal a statute is deemed not to have been on the Statute Book at all. Let us assume that s. 6 of the General Clauses Act applies. Even so, what is preserved is (a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he General Clauses Act, Evershed, M. R. disposed of the contention of the tenant that the repeal would not affect anything duly done under another statute thus : ...... nor do I think that the tenant's protection under the regulation could be fairly described in the words of sub-s. (2) (c) as a right or privilege , or the. limitation of the landlord's right be fairly described as an obligation or liability , nor do I think that it is a penalty or a punishment in respect of an offence within para (d). The Court eventually concluded that the notice to quit was valid since the regulation requiring consent had been revoked and the landlord was entitled to possession. Moreover, the nature of the Act being temporary, the right, if we can attribute that quality to a disability of the other party to enforce his right unless additional grounds were made out, comes to an end when the temporary Act expires at least by efflux of time, if not by premature repeal. The so-called right is short-lived and its longevity, where it is derived under a temporary statute, cannot exceed the duration of the statute itself. Let us assume for argument's sake that s. 3 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lief to be granted in a case on appeal, the Court of appeal is entitled to take into account even facts and events which have come into existence after the decree appealed against. This appellate obligation is almost jurisdictional. In a sense, the multi-decked mechanism of the legal process, at every tier, is the handmaid, not the mistress of justice. We may mention as an additional reason for our conclusion that the provisions of s. 6 of the General Clauses Act in relation to the effect of repeal do not ordinarily apply to a temporary Act. Stating this proposition, Gajendragadkar, J., as he then was, indicated the consequence of repeal of a temporary Act. In State of Orissa v. Bhupendra Kumar (A.I.R. 1962 S.C. Vol. 49, 945), the learned Judge continued As observed by Patanjali Sastri, J., as he then was, in S. Krishnan v. State of Madras, 1951 SCR 621 (AIR 1951 SC 301), the general rule in regard to a temporary statute is that in the absence of special provision to the contrary, proceedings which are being taken against a person under it will ipso facto terminate as soon as the statute expires. That is why the Legislature can and often does, avoid such an anomalous consequen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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