ISHA VALIMOHAMAD & ANR. versus HAJI GULAM MOHAMAD & HAJI DADA TRUST

ISHA VALIMOHAMAD & ANR.

HAJI GULAM MOHAMAD & HAJI DADA TRUST August 14, 19i4

(A.N. RAY, C.J., AND K.K. MATHEW, J.]

Saurashtra Rent Control Act 1951-Whether tennination o.f tenancy under Transfer ·Of Property At't necessary before filing suit for eviction on the grounds of subletting-Repea/ and saving clause-Meaning of right, pririlege acquired, accrued or incurred.

The respondents let out the premises to the appellants in the year 1951 in place governed by the Saurashtra Rent Control Act, 1951 which prohibited tenant fron1 subletting the premises. The appellant sublet the pren1ises in violation of the Saurashtra Act at time when Saurashtra Act was in force. In 1963, the Saurashtra Act was repealed and the Bombay Rent Act was made applicable to the area in question. Under the Bombay Act there is no prohibition against subletting by the tenant unless the contract of tenancy prohibited it. The respondent terminated the tenancy of the appellant after the Saurashtra Act was repealed and, thereafter, suit was filed for recovery of possession on the ground of subletting. The High ·Court held that the suit to recover possession was competent under Saurashtra Act after its repeal as the respondent had an accrued right within the n1eaning of ·section 51 of the Bombay Rent Act. The High Court assun1ed that the notice under the Transfer of Property act was necessary to terminate the tenancy.

HELD : (l) The High Court \Vas not right in its assumption that the notice under the Transfer of Property Act was necessary to terminate the tenancy on the ground that the appellants had sublet the premises. Under the Transfer of Property Act mere subletting by tenant unless the contract of tenancy so provides is no ground for terminating the tenancy. The respondent could not have issued notice under the Transfer of Property Act to determine the tenancy as the contract of tenancy did not prohibit subletting by the tenant. The Saurashtra Act unconditionatly prohibited tenant from subletting and it was under that Act that the landlord was entitled to recover possession of the premises on the basis that the tenant had sublet the premises. right accrued to the landlord to recover possession under the Saurashtra Act when the tenant sublet the premises and the right survived the repeal ·of that Act under section 51 of the Bombay Rent Act. Therefore, the suit for recovery of possession of the premises was maintainable after the repeal of the Saurashtra Act. [726-727D]

(2) The right of landlord to recover possession is not an accrued right before 'the issue of notice if under any la\v it was necessary for the landlord to issue the notice to determine the tenancy. Privilege and inability are correlatives. \Vhere there is privilege there must be inability. Privilege is legal freedom on the part of one person as against another to do given act or legal freedom not to do ·certain act. [724B,-725H; 726A-B]

CIVtL APPELLATE JURISDICTION : Civil Appeal No. 1915 of 1970

(Appeal by Special Leave frcm the Judgment & Order dated the 2nd/3rd March, 1970 of the Gujarat High Court in Revision Appln. No. 371 of 1966.)

V.N. Ganpu/e and Urmi/a Sirur for the appellants.

D. V. Patel, K.L. Hathi, A.R. Chaphekar and P.C. Kapur, for :J;espondent No. 1.

The Judgment of the Court was delivered by

MATHEW, J. In this appeal, by special leave, the question for consi-deration is whether the High Court was right in dismissing revision petition filed by the appellants and thereby upholding the judgment of the learned District Judge, Jamnagar, decreeing the suit filed by respondent No. 1 for possession of the suit premises.

The suit premises consisted of building known as Abdul Ralman Manzi! and it belonged to one Haji Mohamad, Haji Dada Wakf (Trust). The building was leased to Osman Jamal and Company under rent note dated January 15, 1947. In or about the year 1951, the firm of Osman Jamal and Company was wound up and the appel-lants took the premises on rent on monthly rent of Rs. 320/-. The respondent, the landlord, purported to te1minate this trnancy by notice dated February 12, 1964 on the ground that the appellants (tenants) had defaulted in the payment of rent and had sub-let the premises. At the trial of the suit, the plea that the appellants cc m-· milted default in payment of rent was gi,en up and, therefore, the sole issue before the Court was whether the appellants kd sLb-let the premises. The contention of the appellants was that m:der the contract of lease, they had the right to sub-let the pnmises and, there-fore, the respondent was not entitled to recover possession cf the premises.

The trial court held that the contract of tenancy contained no prohibition against the tenant sub-letting the premises and so, the. respondent was not entitled to recover possession of the premises for the reason that the appellants had sub-let the premises and dismis-sed the suit.

The respondent filed an appeal against this decree before the Dis-trict Judge. He held thats. 15 of the Saurashtra Rent Control Act, 1951 (hereinafter referred to as "the Saurashtra Act") which prohi-bited tenant from St•b-letting the premises supersed<d the ccntract of tenancy between the parties as that section was not subject to any contract to the comrary and, therefore, the landlord obtaimd the right to recover possession of the premises by virtue of s. 13(l)(e) of the Saurashtra Act. He further held that the repeal of the Saurashtra Act by the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as "The Bcmbay Act"} on December 31, 1963, did not affect the nghts, pnv1leges, obhgations or liability acquired, accrued or incurr'd under the former Act and, therefore, the liability of the appellant• to ejectment under s. 13(l)(e) of the Saurashtra Act on the ground of sub-letting could be enforced by suit, notwithstanding the repeal of that Act. The District Judge, therefore, allowed the appeal and decreed the suit.

Against this judgment, the appellants filed revision before the High Court of Gujarat. When the application for revi•ion came up for hearing before learned single judge oft he High Court, he referred it to Division Bench. The question before the Division Benclli was:

"Whether the landlord is entitled to maintain suit for recovery of possession from the tenant. On the ground

[ 197 5] 1 S.C.R.

of sub-letting under section 13(l)(e) of the Bomb~y Rent Act (No. 57 of 1947), as applied to Gujarat State on 31 December 1963 ), where the sub-letting was made during the pendency of the Saurashtra Rent Control Act and neither the notice to terminate the contract was given nor the suit was filed before the date on which the Saurashtra Rent Control Act was repealed?"

"The Division Bench, by its judgment, held that the suit to recover po3session of the premises was competent under s. 13(1)(e) of the ·saurashtta Act notwithstanding the repeal of that Act as the respon--Oent had an accrued right within the meaning of s. 51, proviso (2) of the Bombay Act and confirmed the decree for ejectment. It is ifrom this judgment that the present appeal has been filed.

As already stated, the Saurashtra Act was repeakd on December 31, 1963; the Bombay Act was made applicable to the area in question on January I, 1964. The appellants sub-let the premises while the ·saurashtra Act was in force in the area. That Act by s. 15 prohibited ·sub-letting notwithstanding anything contained in any law. Section .J 3(1 )( e) of the Saurashtra Act provided :

"13. When landlord may recover ·possession-

( I) Notwithstanding anything contained in this Act, landlord shall be entitled to recover possession of any premises ifthe Court is satisfied-• * * *

(e) that the tenant has, since the coming into operation of this Act, sub-let the whole or part of the premises or assig-ned or transferred in any other manner his interest therein."

"Therefore, there can be no doubt that the respondent could have Jiled suit to recover possession under s. 13(1) of the Saurashtra Act ·-On the ground that the appellauts had sub-let the premises while that Act was in force. But the appellants submitted that since no notice >terminating the tenancy was given before the repeal of the Saurashtra Act, the respondent-landlord had no accrued right to rocover posses-csion which could survive the repeal and therefore he was not entitled .to file the suit after the repeal of that Act, as under the corresponding .Provisions of the Bombay Act, the suit was not maintainable.

Section 13(l)(e) of the Bombay Act provides :

"13. When landlord may recover possession.-(!) Not-withstanding anything contained in this Act but subject to the provisions of s. 15, landlord shall be entitled to recover pos-session of any premises if the Court is satisfied-* • •

(e) that the tenant has, since the coming into operation of this Act unlawfully sub-let the whole or part of the premises or assigned or transferred in any other manner his interest therein.''

1t may be noted that under the Bombay Act, there is no pronibition agai!Jst sub-letting .bY tenant unless the contract of tenancy prohibi-rted 1t. That idea 1s conveyed by the words "unlawfully sub-let" in

°'.·.;I

the sub-section. That apart, the section can obviously have no appli-cation as the sub-letting was before the coming into operation oJ that Act.

The notice to terminate the tenancy was im:cd by the Jar-dlo1d on February 12, 1964 i.e., after the Saurashtra Act was rerrnkd ar.d tt.e suit was filed for recovery of possession of the pn mises after tl:e I!e rr.bay IB Act came into force. As already 'tatcd. tl:e Divisicn Eu:ch leek the view that the landlord had an accrued right within fr.e meaning of proviso (2) to s. 51 of the Bombay Act, ar:d therefo1e, suit ecu!d be instituted for recovery of possession under s. l3(l)(e) of the Sau-rashtra Act. Section 51 of the Bombay Act, so far as it is material, provides :

"51. Repeal of Sau. Act XXII of 1951 and of Bombay LV!I of 1947 as extended to Kutch Area and saying.-

The Saurashtra Rent Control Act, 1951 (Sau. Act XXII of 1951) and the Bombay Rents, Hotel and Lcdging House Rates Control Act, 1947 (Born. LVII of 1947) as extended to the Kutch area of the State of Gujarat by the Government ofJndia, Minish y of States, Notification No. 215-J. dated the 10th September 1951 are hereby repealed :

are hereby repealed : Provided that such repeal shall not-• . . . (ii) affect any right, privilege, obligation or liability acquired accrued or incurred under any law so repealed; '

(!) such repeal shall not-•

(2) any such investigation, legal proceeding or remedy may be cont~nued, instituted or enforced and any such penalty, forfeiture and purnshment, way be nnposed, as 1fthe aforesaid law had not been repealed."

As already stated, the submission on behalf of the appellants was that before the issue of notice terminating the tenancy, the landlord had no accrued right to institute suit for reco\ery of pos>ession as the issue of notice determining the tenancy on the ground of sub-letting was sine qua non for filing suit under s. 13(l)(e) of the Sau-rashtra Act. In other words, the argument was that the sub-letting by the tenant when the Saurashtra Act was in force only gave the land-lord right to terminate the tenancy and that until the tenancy was terminated by notice under the Transfer of Property Act, it cannot be said that any right accrued to the landlord to recover possession of the premises which would survive the repeal of the Saurashtra Act.

If notice under the provisions of the Transfer of Property Act was necessary to determine the tenancy on the ground of sub-letting, we do not think that the High Court was right in its view that right accrued to the landlord to recover possession of the premises under s. 13(l)(e) of the Saurashtra Act merely because the tenant sub-let the premises and that was prohibited by s. 15 of that Act. In other words, if the assumption 9f the High Court that notice terminating

the tenancy on the ground of sub-letting was necessary for filing suit under s. 13(1)(e) of the Saurashtra Act was ccnect, then we do not· think that the respondent-landlord bad an accrued right which would survive the repeal of that Act unless the notice was isrned dete1mining the tenancy during the currency of that Act. We do not think that the right of landlord to recover possession en the ground that the tenant has sub-let the premises is an accrued right before the issue of notice, if under any law it was necessary for the landlord to issue the notice to determine the tenancy on the ground of sub-Jetting.In Hamilton Coll v. White (I) Atkin L. J. said that the prcvis'cn of s. 38(f)(c) of the English Interpretation Act, cormpcnding to s. 51, proviso (2), of the Bombay Act, was not intended to preserve abstract rights conferred by the repealed Act and that it applies only to the specific rights given to an individual upcn the happening of one or more events specified in the statute. The Court held in that case that tenant's general right to ccmpematicn fer disturbance would not survive the repeal of the Agricultural Holdings Act, 1908. But, where landlord, before the repeal, bad given his tenant notice to quit, the tenant bad 'acquired right' which would 'accrue' when he quitted bis holding-the right to receive ccmpemation. In Abbott v. Minister of Lands (2) where the appellant claimed that as purchaser of Crown land in New South Wales in 1871 he became entitled under the Crown Lands Alienation Act 1861 to make further purchases of Crown land adjoining bis original holding. The Act of 1861 was repealed by the Crown Lands Act, 1884 which, however, provided that notwithstanding the repeal 'all rights accrued' by virtue of the repealed enactment should remain unaffected. The Judicial Committee held that the mere right existing at the date of the repealing statute to take advantage of the provisions of the Act repealed was not 'right accrued' within the meaning of the saying clause. In Director qf Public Works v. Ho Po Sang (l), the Privy Council has had to consider the question. It was held that the fact that the Director of Public Works had given Crown lessee notice of his intention to grant rebuilding certificate, which would enable the lessee to recover vacant pos-session from the persons in occupation cf the pffmi,es, did not confer any right to the certificate on the lessee, since varicus ccnditicns had remained to be fulfilled before the certificate cculd be granted, so that the lessee had no more than hope that it would be granted. Lord Morris of Borth-y-Gest s~id :

"It may be, therefore, that under sCine repealed enactment right has been given but that in respect of it wme investiga-tion or legal proceeding is necessary. The right is then unaffec-ted and preserved. It will be preserved even if process of quan-tification is necessary. But there is manifest distinction between an inves,igation in respect of right and an investiga-tion which is to decide whether rnme right should or should not be given. Upon repeal the former is preserved by the Interpretation Act. The latter is not."

(1) [1922] 2 K.B. 422.

(2) [1895] A.C. 425.

{l) [19'61] A.C. 9011

In Free Lanka Insurance Co. Ltd. v. Ranasinghe (I) Lord Evershcd mid that the distinction between what was, and what was not, right must often be one ot great finance and the Court held that claim given by the Ceylon Motor Car Ordinance of 1936 to an injurtd person against the other party involved in an accident wa< ";cmething more than mere hope or expectation .... he had in truth right. ... al-B though that right might fairly be called inchoate or ccntinfrnt".

We do not, however, think that the right of the landlord to ter-minate the tenancy by giving notice on the ground that the tenant has sub-let the premises was an accrued right within the meaning of s. 51 of the Bombay Act which would survive the repeal of the Saurash-tra Act.

Mr. Patel for respondent contended that even if the landlord had no accrued right, he at least had 'privilege' as visrnliud ins. ·51, proviso (!)(ii) of the Bombay Act and that the privilege shculd survive the repeal.

"A privilegium, in short, is special act affecting speeial persons with an anomalous advantage, or with an anomalous burthen. It is derived from privatum, which, as opposed to publicum, signified anything which regards persons considered individually; publicum being anything which regards persons con-sidered collectively, and forming society"

(See Au_stin's Jurisprudence, Vol. II, 5th ed. (1911) P. 519)

The meaning of that word in jurisprudence has undergone corsidera-bJe change after Austin wrote. According to Hohfeld :

" .... privilege is the opposite of duty, and the correlative of ~no-right'". For instance, where "X has right or c.'aim that Y .... should stay off the land (of X), he himself has the 'prM.'ege' of entering on the land; or, in equivaler.t words,. X does P.ot have duty to stay off."

Fundamental Legal Conceptions, (1923) pp. 38-39)

Arthur L. Corbin writes :

"We say that had rig!it that should not intrude and tha1 had duty to stay out. But if had invited to enter, we kP.ow th?t those results would not occur. In such case we say that had no rig!it that should stay out and that had the pril'i/ege of entering."

(See "Legal Analysis and Terminology", 29 Yale Law Journal 163)

According to Kocourek :

"Privilege and inability are correlatives. Where there is privilege there must be inability. The terms are correlatives. The domir.us of Privilege may prevent the servus of the Ir.abi-f,I lity from exa:cting an act from the dominus"

(See "Jura! Relations", 2nd ed .. p. 24)

J4-185SupCl/75

Paton says:

"The Restatement of the law of Property defines privilege as legal freedom on the part of one person as against another to do given act or legal freedom not to do certain act".

(See Jurisprudence, 3rd ed. (1964), p. 256)

We think that the respondent-landlord had the legal freedom as against the appellants to terminate the tenancy or not. The appellants had no right or claim that the respondent should not terminate the tenancy and the respondent had, therefore, the privilege of termina-nating it on the ground that appellants had sub-let the premises. T])is privilege would survive the repeal. But the problem would still re-main whether the respondent had an accrued right or privilege to recover possession of the premises under s. 13(1) of the Saurashtra Act on the ground of the sub-letting before the repeal of that Act. The fact that the privilege to terminate the tenancy on the ground of sub-letting survived the rercal does not mean that the landlord had an accrued right or privilege to recover possession under s. 13(1) of that Act as that right or privilege could arise only if the tenancy had been validly terminated before the repeal of the Saurashtra Act.

Be that as it may, we do not, however, think that the High Court was right in its assumption that notice under the Transfer of Property Act was necessary to terminate the tenancy on the ground that the. appellants had sub-let the premises; or, for that matter, the landlord could legally have terminated the tenancy by giving notice, unless the contract of tenancy prohibited the tenant from sub-lettir.g the premises.

Under the Transfer of Property Act, mere sub-letting, by tenant, unless the col'tract of tenancy so provides, is no ground for terminating the tenancy. Under that Act landlord cannot terminate tenancy on the ground that the tenant had sub-let the premises unless the contract of tenancy prohibits him from doing so. The respondent-Iandlord therefore could not have issued notice under any of the provisions of the Transfer of Property Act to determine the tenancy, as the contract of tenancy did not prohibit sub-letting by the tenant. To put it, differently, under the Transfer of Property Act, it is only if the ccntract of tenancy prohibits sub-letting by tenant that landlord can forfeit the tenancy on the ground that the tenant has sub-let the premises and recover possession of the same after issuing notice. Section 111 of the Transfer of Property Act provides that lease may be determined by forfeiture if the tenant commits breach of any of the conditions of the contract of tenancy which tntails forfeiture of the tenancy. If sub-letting is not prohibited under the oontract of tenancy, sub-letting would not be breach of any condition in the contract of tenancy which would enable the landlord to forfeit the tenancy on that score by issuing notice. If that be so, there was no question of the respondent landlord terminating the tenancy under the Transfer of Property Act on the ground that the ienant had sub-Jet the premises. It is only under s. 13(1)(e) of the Saurashtra

' \ 1•I

Act that landlord was entitled to recover possession of the property on the basis that the tenant had sub-Jet the premises; and, that is because, s. 15 of that Act unconditionally prohibited tenant from sub-Jetting. The Saurashtra Act nowhere insists that the landlord should issue notice and terminate the tenancy before instituting suit for recovery of possession under s. 13(l)(e) on the ground that the tenant had sub-let the premises. The position, therefore, was that the landlord was entitled to recover possession of the premises under s. 13(1) of the Saurashtra Act on the ground that the tenant sub-let the premises. It would follow that right accrued to the landlord to recover possession under s. 13(1) of the Saurashtra Act when the tenant sub-Jet the premises during the currency of that Act and the right survived the repeal of that Act under proviso (2) to s. 51 of the Bombay Act and, therefore, the suit for recovery of pos-session of the premises under s. 13(1) read with clause (e) of the Sau-rashtra Act after the repeal of that Act on the basis of the sub-Jetting during the currency of the Saurashtra Act was maintainable. In this view, we think that the judgment of the High Court must be up held and we do so.

The appeal is dismissed, but we make no order as to costs.

Appeal dismissed.