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SUPREME COURT OF INDIA
29-11-1973.
D.G. PALEKAR, V.R. KRISHNA IYER AND R.S. SARKARIA, JJ.
Qudrat Ullah, Appellant
Versus
Municipal Board, Bareilly, Respondent.
Civil Appeals Nos. 1727-1728 of 1968, D/- 29-11-1973.
U. P. Control of Rent and Eviction Act, 1947 – Section 43, 43 (2) Uttar Pradesh Urban Buildings (Regulation of Letting Rent and Eviction) Act, 1972 – Section 2 - Transfer of Property Act, 1882 - Section 106 and 105 - Easements Act – Section 52 - General Clauses Act, 1897 – Section 6 - Construction of a Contract between Municipal Board - Licensed for Collection of Tahbazari - Recovery of Possession - Whether agreement creates lease or licence - Whether an agreement creates between parties relationship of landlord and tenant or merely that of licenser and licensee decisive consideration is intention of parties - Whether a grantee is entitled to exclusive possession regard must be had to substance of agreement - Whether these yellow belts were leased out or only licensed for collection of Tahbazari - Whether terms of Exs. 1 and 4 warrant lease of whole as too integrated to be severable or sufficiently individualized - Whether these open areas are part of `accommodation let out to defendant - Whether liability arising under repealed enactment survives or is extinguished - Whether they indicate a different intention - Whether it is permissible for this Court to take note of extinguishment of statutory tenancy at this stage and grant relief to appellant – Held, It is, clear that even if statute for recovery of possession be one under earlier Rent Control Law later Act will apply and necessary amendments in pleadings can be made - This definitely indicates that it is later Act that must govern pending proceedings for recovery of possession or recovery or fixation of rent - However, suit with which Court is concerned is not even one under Act, but proceeds on footing that defendant is only a licensee - So much so, none of saving clauses in S.43 (2) applies - Result is that application of old Act is repealled by general rule that on repeal a statute is deemed not to have been on Statute Book at all - From what Court have stated above, it follows that argument of any vested right in defendant being taken away does not hold good; nor is there any foundation, for contention that later Act is being applied retrospectively - All that Court hold is that a disability of plaintiff to enforce his cause of action under ordinarily law may not necessarily be transmuted into a substantive right in defendant, that right of a statutory tenent created under a temporary statute, as in this case, go to extent of merely preventing eviction so long as temporary statute lasts, that provisions of Section 43 do not preserve, subsequent to repeal any right to rebuff plaintiff s claim for eviction and that S.6 of General clauses Act does not justify anything larger or for any time longer than S.2 of Act confers or lasts - It is manifestly a measure of doing justice between parties and ending litigation, which has seen two decades pass, to conclude it here by taking cognizance and adjusting relief in light of later Act and repeal of earlier Act - Nevertheless, it is contended that present suit cannot be decreed in view of provisions of U. P. Public Premises Act, 1972 - This statute which provides for summary eviction of unauthorised occupants cannot obstruct suit for eviction of a tenant - Farfetched submission has hardly any substance and Court reject it - It falls to be observed that a public body statutorily charged with running a public market should have been party to an ambiguous deed resulting in waste of public moneys in long-lived litigation - Had sufficient care been bestowed at formative stages of transaction, these could have been averted – Court is not satisfied that defendant is solely to blame for suit and appeals and, therefore, direct that parties will bear their costs throughout - Order accordingly.
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Judgment
KRISHNA IYER, J. :- This litigation, started in 1951, has lived long, although the main point on which the fate of the case rests is the construction of a contract between the Municipal Board, Bareilly (the respondent in Civil Appeal No. 1727 of 1968) and the Thekedar under it of the Municipal market, one Habibullah (the father of the appellant in Civil Appeal No. 1727 of 1968). The present appellant is the legal representative of the defendant and has himself filed an appeal (C.A. No. 1728 of 1968) where the Board is the sole respondent. Instant or early justice seems impossible without radical re-orientation and systematic changes in the judicial process, as these two appeals, which have survived two decades, sadly illustrate.
2. Now, a brief narration of the facts. Although the canvass has been spread out, the relevant dispute lies in a narrow compass, and can be resolved by a close look at the terms of Ex. `1 (substantially repeated in Ex. `4 ) and by applying settled rules wich tell off a lease from a license when the deed is ambiguous. It is unfortunate that legal drafting by the respondent s lawmen has left the key documents in a blurred state, so much so, the trial Judge and the learned Judges in appeal have had to diverge in their conclusions, and before us long arguments have been hopefully addressed to help us designate the contract with certitude a lease or license.
3. The defendant (the appellant s father) had for several years been collecting `tahbazari dues from the market in Patelganj under contracts from the Municipal Board, the last of which, according to the plaintiff, was executed on 19-11-1944 (Ex. `1 ). The defendant s case is that on the expiration of the term of Ex.`1 , a fresh contract dated 31-12-1947, Ex. `4 was entered into between the parties substantially repeating the same terms and conditions. On the basis that Ex.`4 had not materialised into a binding contract for want of Government approval, the plaintiff ineffectually demanded of the defendant, by notice Ex. `6 of 1951, to desist from realising the market dues and followed it up with a suit praying for many reliefs of which the crucial one runs thus:
"(a) The plaintiff may be put in absolute proprietary possession after dispossessing the defendants over the sheds and passage shown in green and shops bearing Nos. 17 to 20 and 24 to 28 and 31 and 32 situate in Bazar Patelganj known as Cambellgunj Sabzimandi Bareilly as shown in the map attached to the plaint".
4. The plaintiff claims Ex.`1 to be a license 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 3 of 1947) (hereinafter referred to as the Act). The decision of this case largely depends on Ex. `1 being a lease or a license. We are satisfied from the evidence on record that the finding of the Court 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 straightway. 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 13 of 1972) (for short, called the later Act), the Board is entitled to an ejectment decree even if Ex. `1 and `4 are leases.
5. The trial court held that Exs. `1 and `4 were demises of the Municipal market and dismissed the suit having regard to the Rent Control Law then extant which did not exempt municipal buildings from the operation thereof. The High Court expressed its view that.
"On going through the entire document, we have come to the conclusion that Ex.1 is a combination of a lease and a license. It is a lease with respect to the sheds and eleven shops. But the agreement was a mere license as regards the patris or footpaths adjoining the roads."
Holding Ex. `
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