Bombay High Court
Hussainali Sharif Punjwani vs The Board Of Trustees Of Port Of ... on 13 June, 2017
Bench: V.M. Kanade
CRA/193/2011 with
connected matters.
BDPPS
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.193 OF 2011
Hussainali Sharif Punjwani .... Applicant.
V/s
The Board of Trustees of Port of Bombay .... Respondents.
WITH
WRIT PETITION NO.8451 OF 2008
Abdul Sattar Dawood Mohamed Pipewala .... Petitioner.
V/s
The Board of Trustees of the Port of
Bombay and Others. ..... Respondents.
WITH
WRIT PETITION NO.9124 OF 2010
Saukat Ali Basir Ahmed Khan & Others ....Petitioners.
V/s.
The Board of Trustees of the Port of
Bombay and Others ..... Respondents.
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WITH
CIVIL REVISION APPLICATION NO.217 OF 2011
Ashok Laxmidas Gesota ....Applicant.
V/s
The Board of Trustees of the Port
of Bombay .... Respondents.
WITH
CIVIL REVISION APPLICATION NO.694 OF 2011
Smt. Khatizabai Habib Gafoor Ramzan ..... Applicant
V/s
The Board of Trustees of the Port of
Mumbai ..... Respondents.
WITH
FIRST APPEAL NO.790 OF 2011
WITH
CIVIL APPLICATIN NO.1028 OF 2011
IN
FIRST APPEAL NO.790 OF 2011
Zuzharbhai Master Or Metro Enterprises
and Others ....Appellants.
V/s
The Board of Trustees of Port of Mumbai
and Others ..... Respondents.
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WITH
CIVIL REVISION APPLICATION NO.30 OF 2012
Dr. Lakhamsey U. Shah,
Deceased through
Sharad Lakhamsey Shah & Others ....Applicants.
V/s
The Board of Trustees of the Port of Bombay ..... Respondents.
WITH
WRIT PETITION NO.6536 OF 2012
Mr. Uttamkumar Kamalashankar Vyas ....Petitioner.
V/s
The Board of Trustees of Port of Bombay
and Others ..... Respondents.
------
Mr. Ashutosh A. Kumbhakoni, Senior Counsel a/w Mr. Akshay Shinde
i/b B.H. Prasad Sharma for the Applicant in CRA No.193/2011.
Mr. Viren Asar a/w Mr. Arvind Fedge, Mr. Anuramazda Postvala i/b
Wadia Ghandy & Co. for the Petitioner in CRA/30/2012.
Ms. Rekha Shukla for the Applicant in CRA/217/2011.
Mr. B.K. Raje for the Applicant in CRA/694/2011.
Mr. Shreehari Aaney, Senior Counsel a/w Mrs. Dipti Srinivatsan, Mr.
Deepak Motiwalla Solicitor and Mr. Rooshesh Motiwalla i/b Motiwalla
& Co. for the Respondents.
-----
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[As per Rule 1(i) of Chapter XI of the Appellate Side Rules, 1960, signed judgment is
pronounced by Shri Justice V.M. Kanade at Bombay as Shri C.V. Bhadang, J. is
sitting at the Bench at Goa]
CORAM: V. M. KANADE &
C. V. BHADANG, JJ.
Judgment reserved on : 02/05/2017
Judgment pronounced on: 13/06/2017
JUDGMENT (Per V.M. Kanade, J.)
1] Heard Mr. A.A. Kumbhakoni, the learned Senior Counsel
appearing on behalf of the Applicant in CRA/193/2011 and Mr.
Shreehari Aaney, the learned Senior Counsel appearing on behalf of
the Respondents/BPT. The other three learned Counsel appearing in
CRA/30/2012, CRA/217/2011 and CRA/694/2011 have adopted the
submissions made by the learned Senior Counsel Mr. Kumbhakoni.
2] A short but interesting question has been referred to us by the
Hon'ble Chief Justice in view of the reference made by the learned
Single Judge Mr Justice G.S. Godbole (as he then was) in his
judgment dated 18/01/2012. The question which was framed for
reference by the learned Single Judge is as under:-
"Whether the word "entertain" used in Section
15 of the Public Premises (Eviction of
Unauthorized Occupants) Act, 1971 can be
equated with the word "lodging/filing" of the
Suit or will have to be interpreted to mean
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"consideration of merits of the Suit" or "the
date of framing of issues in the Suit".
By the said judgment and order, the learned Single Judge was pleased
to differ with the view taken by learned Single Judge Mr. Justice V.C.
Daga (as he then was) in Shalan w/o Narayan Dappal & Ors. Vs. Board
of Trustees of the Port of Bombay1. The controversy in question arose
on account of amendment of the Public Premises (Eviction of
Unauthorized Occupants) Act, 1971 (Act No.40/1971) [hereinafter
referred to as "the said Act") and more particularly Section 15 of the
said Act. By virtue of the said amendment, jurisdiction to try cases for
eviction of tenants was taken away from the Rent Court and the Small
Causes Court and was conferred on the Estate Officer. The said Act
was amended by the Public Premises (Eviction of Unauthorized
Occupants) Amendment Act, 1980, (Act No.61 of 1980) and it
received the assent of the President of India on 20/12/1980 and it was
published in the Gazette of India on 22/12/1980. It is an admitted
position that though the said Act was amended on 22/12/1980,
machinery to deal with these cases became available in 1989. As a
result, eviction suits were filed in the Small Causes Court despite the
said amendment.
3] In a group of cases which came up before the learned Single
Judge Mr. Justice V.C. Daga, it was held that all cases
1 2009 (3) MH.L.J. 923
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which were pending in the Small Causes Court relating to eviction of
tenants would be decided by the Small Causes Court and only those
cases which were lodged/filed after the Estate Officer was appointed
in the year 1989 would be decided by the Estate Officer.
4] Another group of cases in which decree of eviction was passed by
the Small Causes Court and confirmed by the Lower Appellate Court
were heard by another learned Single Judge Mr. Justice G.S. Godbole
(as he then was) and the learned Single Judge after relying on 2/3
judgments of the Apex Court, came to the conclusion that only those
cases in which issues were framed would remain with the Small
Causes Court and fresh cases would be filed and decided by the Estate
Officer. The learned Single Judge (G.S. Godbole, J.) came to the said
conclusion by interpreting the word "entertain" and held that the said
word if interpreted in a proper manner after taking into consideration
the dictionary meaning and the interpretation of the word by the Apex
Court in other similarly situated cases, meant that only those cases
where issues were framed could be entertained by the Small Causes
Court.
5] The Hon'ble Chief Justice was pleased to refer the matter to
Division Bench to decide the said reference. We have accordingly
heard the matter at length on different dates. We have heard Mr.
Kumbhakoni, the learned Senior Counsel appearing on behalf of the
Applicants and also Mr. Aaney, the learned Senior Counsel appearing
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on behalf of the Respondents viz the Board of Trustees of the Port of
Bombay.
6] Very brief facts which are relevant for the purpose of deciding
these applications need to be mentioned. Respondents - the Board of
Trustees of the Port of Bombay (hereinafter referred to as "the Port
Trust") owned several pieces of land in the Eastern part of Mumbai
since its establishment. The Port Trust, in turn, had given
these several pieces of lands on lease and several persons had
occupied these lands and constructed buildings on the said
lands. The lease was renewed from time to time and the Lease
Deed itself contemplated that lessees could construct buildings
thereon.
7] Prior to the said amendment of Section 15, under the said Act,
the word "public premises" was defined in Section 2(e). In the said
definition, the lands belonging to the Board of Trustees constituted
under the Major Port Trusts Act, 1963 were not included and, as a
result, in respect of leases created on the Port Trust Land if any
eviction proceedings had to be commenced, the Port Trust had to file
suit in the Small Causes Court.
8] The Parliament thereafter enacted the Public Premises (Eviction)
of Unauthorized Occupants) Amendment Act, 1980 (Act No.61 o 980)
which received the assent of the President on 20/12/1980 and was
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published in the Gazette of India on 22/12/1980. In the said
enactment, definition of the word "public premises" in Section 2(e) of
the said Act was amended by substituting the entire definition and in
the said definition in clause (v) of Section 2(e) sub-clause (2), the
following amendment was made:-
"2(e) "public premises means .....
(1)...... .......
(2) any premises belonging to or taken
on lease by, or on behalf of -
(i) ....... ......
(ii) ....... ......
(iii) ....... ......
(iv) ....... .......
(v) any Board of Trustees constituted under
the Major Port Trusts Act, 1963.".
By virtue of inclusion of land of the Port Trust in the definition of
"public premises", eviction proceedings had to be filed by the Port
Trust under the Public Premises Act. In the said Act, original Section
15 was also entirely amended and it was substituted by a new Section
15. We will refer to the said Section at the relevant stage. However,
suffice it to state that Section 15 provided for bar of jurisdiction and it
mentions that no Court would have jurisdiction to entertain any suit or
proceedings in respect of categories mentioned in the said Section.
9] After the Public Premises (Eviction) of Unauthorized Occupants)
Amendment Act, 1980 (Act No.61 o 980) came into force on
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22/12/1980, the Central Government did not appoint Estate Officer
for Bombay Port Trust till 21/09/1989 and therefore these cases came
up before the learned Single Judge Mr. Justice V.C. Daga (as he then
was) and the learned Single Judge (V.C. Daga, J.) in Shalan (supra)
held that only those cases which were lodged or filed before
21/09/1989 would continue in the Court of Small Causes and all fresh
cases which were filed after 21/09/1989 would be heard by the Estate
Officer and those cases which were lodged or filed after that date
before the Small Causes Court would be transferred to the Estate
Officer of the Bombay Port Trust.
10] After taking into consideration the factual matrix of the case and
the controversy in question, it would be necessary to briefly summarize
the submissions made by either side.
11] Mr. Kumbhakoni, the learned Senior Counsel appearing on
behalf the Applicants and the other three Counsel who have adopted
the arguments of Mr. Kumbhakoni, submitted that the judgment of the
learned Single Judge (V.C. Daga,J.) in Shalan (supra) does not lay
down the correct proposition of law and therefore it requires
reconsideration. He submitted that the word "entertain" used in
Section 15 cannot be equated with the word "to file the Suit". He
submitted that on and from 20/12/1980, Court of Small Causes ceased
to have any jurisdiction to try and entertain the Suits in question. He
submitted that therefore even though decrees of eviction were passed
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by the Small Causes Court and were confirmed by the Appellate Bench
of the Small Causes Court, those decrees were null and void. In
support of the said submission, he relied on the judgment of the
Allahabad High Court in Kundan Lal vs. Jagan Nath Sharma1. He also
relied on the judgment of the Gujarat High Court in Jadeja Shivubha
Dolubha vs. Gujarat State Raod Transport Corporation, Ahmedabad2.
He submitted that the word "entertain" had been used in Gujarat Act
and it was held that it would not only mean "to receive and
determine" but it would mean "adjudicate upon" or "proceed to
consider on merits". He also relied upon the judgment of the Apex
Court in M/s Lakshmiratan Engineering Works Ltd. vs. Assit.
Commissioner (Judicial) I, Sales Tax, Kanpur Range, Kanpur and
Another3. He submitted that in paras 7 to 10 of the said judgment, the
Apex Court had held that the word "entertain" means to proceed to
consider on merits or adjudicate upon and not merely to accept the
filing of the case. He also relied upon the judgment of the Apex Court
in Hindusthan Commercial Bank Ltd. vs. Punnu Sahu (dead) through
Lrs4 He submitted that the Apex Court in the said case had held that
the word "entertain" does not mean mere initiation of proceedings but
the actual stage when the Court takes up the Suits for consideration.
He submitted that the Apex Court had relied upon and approved two
judgments of the Allahabad High Court; one in Kundan Lal (supra)
and the other in Haji Rahim Bux and Sons & Ors vs. Firm Samiullah &
1 AIR 1962 Allahabad 547
2 1977 Vol.XVIII Gujarat Law Reporter pg 656.
3 AIR 1968 Supreme Court 488
4 AIR 1970 Supreme Court 1384
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Sons1. He then invited our attention to the Judgment of the Apex Court
in Martin and Harris Ltd. vs. VIth Additional District Judge & Ors. 2.
Relying on para 8 of the said judgment, he submitted that the word
"entertain" used in U.P. Urban Buildings (Regulation of Letting, Rent
and Eviction) Act, 1972 clearly lays down that the stage at which the
Court has to consider the merits of the controversy is the stage where
the Court entertained a dispute. He therefore submitted that as a
corollary the words "institution" and "entertain" are different and have
different connotations. He further relied upon the Division Bench
Judgment of the Orissa High Court in Sankar Kumar Bhattar & Ors. vs.
Tehsildar-cum-Revenue Officer3. He submitted that in the said
judgment, Section 15 of the Orissa Land Reforms Act, 1971 was
interpreted and the Division Bench, while construing the word
"entertain", had held that to decide the controversy and to make
distinction between the words "entertain" and "institution" the entire
scheme of the Statute has to be taken into consideration as also the
legislative purpose underlying that scheme and the meaning of the
expression "to entertain any suit". He then relied upon the Judgment
of the Apex Court in United Bank of India vs. Abhijit Tea Co. Pvt. Ltd. 4
He relied on paras 14 to 16 and 20 to 23 of the said Judgment and
submitted that Civil Court lost its jurisdiction once the Act had come
into force. He further submitted by relying upon the judgment in
1 AIR 1963 ALL 320.
2 AIR 1998 Supreme Court 492
3 AIR 1976 ORISSA 103
4 AIR 2000 Supreme Court 2957
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Fazlehussein Haiderbhoy Buxamusa vs. Yusufally Adamji & Ors. 1 that
even by subsequent events which have taken place during the
pendency of the suit, jurisdiction of the court can be ousted.
12] Mr. Kumbhakoni, the learned Senior Counsel appearing on
behalf of the Applicants then pointed out as to how the learned Single
Judge (V.C. Daga, J.) erred in relying on the judgment of the Apex
Court in Dewaji vs. Ganpatlal2 and more particularly para 21 of the
judgment of the Apex Court in United Bank of India (supra). He
submitted that the learned Single Judge had overlooked the
observations in para 20 of the Judgment of the Supreme Court in
United Bank of India (supra).
13] He then submitted that the Estate Officer was appointed in 1989
and merely because the Estate officer was appointed in 1989, it would
not confer jurisdiction on Civil Court or Small Causes Court and the
executive inaction could not stop the operation of law and would not
confer jurisdiction on the Civil Court. He, therefore, submitted that all
those judgments were null and void.
14] Reliance was also placed on the judgment of the Apex Court in
Mst. Rafiquenessa vs. Lal Bahadur Chertri 3. He submitted that in the
said case it was held by the Apex court that the legislature is
1 AIR 1955 Bombay 55 (Vol.42)
2 AIR 1969 Supreme Court 560
3 AIR 1964 Supreme Court 1511
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competent to take away vested rights by means of retrospective
legislation and is also competent to make laws which override and
materially affect the terms of contract between the parties. Finally,
reliance was placed on the judgment of the Apex Court in Shah Bhojraj
Kuverji Oil Mills & Ginning Factory vs. Subhash Chandra Yograj Sinha 1.
He submitted that in the said judgment, the Apex Court had kept the
question of applicability of the Maharashtra Rent Control Act, 1999 to
the premises owned by Bombay Port Trust open.
15] Mr. Raje, one of the Counsel appearing on behalf of the
Applicants in CRA/694/2011 submitted that the issue of inherent lack
of jurisdiction had been specifically raised in all these cases. He relied
on the Judgment of the Full Bench in Raje Vyankatrao Jagjiwanrao
Deshmukh vs. Sitalprasad Sivnath2
16] On the other hand, Mr. Aaney the learned Senior Counsel
appearing on behalf of the Port Trust made the following broad
propositions.
(I) Firstly, he submitted that the submission made by the
the learned Senior Counsel appearing on behalf of the
Applicants in respect of word "entertain" was incorrect. He
submitted that the word "entertain" had to be read with
the word "jurisdiction" and therefore the word "jurisdiction
1 AIR 1961 Supreme Court 1596
2 1965 Bom. L.R. 868
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to entertain" had to be accordingly interpreted. He relied
on the judgment of the learned Single Judge Mr. Justice
V.C. Daga (as he then was) in Shalan (supra). He also
relied on the judgment in Manibai and Anr. Vs. Raj Kumar
Harpal Deo1. He also relied on the judgment in Videocon
International Ltd. vs. Securities and Exchange Board of
India2. He then referred to the Judgment of the learned
Single Judge in Jadeja Shivubha Dolubha vs. Gujarat Road
Transport Corporation, Ahemedabad3. He submitted that
the said judgment was overruled by Division Bench of the
Gujarat High Court in Mulsing vs. M.C. Ahmedabad4
(II) Secondly, he submitted that merely because special
Tribunal was not constituted, that would not ousted the
jurisdiction of the Civil Court. He submitted that it was a
settled position in law that if jurisdiction of the Court is
ousted and no fresh forum is created then jurisdiction of
the Civil Court would not be ousted till new Forum is
constituted. He relied on the following five judgments:-
(1) Raje Vyankatrao Jagjiwanrao Deshmukh vs. Sital
Prasad Sivnath5
1 AIR 1967 Bombay 92
2 2015 AIR SCW 729
3 656 Gujarat Law Reporter Volume XVIII
4 1977 Gujarat Law Reporter 266
5 Vol.7 (1965) Bom.L.R. 868
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(2) Bhim Sen vs. State of Uttar Pradesh1
(3) Attiq - Ur - Rehman Vs. Municipal Corporation of
Delhi and Anr.2
(4) Sat Narain Gurwala vs. Hanuman Prasad & Anr.3
(5) Shalan w/o Narayan and Others vs. Board of Trustees
of Port of Bombay4
He submitted that once the Civil Court is seized of
the matter and subsequently its jurisdiction is taken away
by statute by constituting a special Tribunal, it does not
cease to have jurisdiction in respect of such cases since
they stand crystallized on the date of institution of the
suit. In support of this submission, he relied upon the
following judgments:-
(1) Commissioner of Income-tax, Orissa vs. Dhadi
Sahu5
(2) Videocon Internatinoal Ltd. vs. Securities and
Exhchange Board of India6 (supra)
(3) Ambalal Sarabhai Enterprises Ltd. vs. Amrit Lal
& Co.7 (paras 25, 26, 27 and 36)
1 AIR 1955 SC 435 Vol. 42.
2 1996(3) SCC 407
3 AIR (33) 1946 Lahore 85
4 2009 (3) M.H.L.J.923
5 1994 Supp (1) SCC 257
6 2015 AIR SCW 729
7 (2001) 8 SCC 397
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(4) Venugopala Reddiar vs. Krishnaswami Reddiar1
(III) Thirdly, he submitted that if the legislature
intended to oust the jurisdiction of the Civil Court, it
must expressly do so. He relied on some of the earlier
cited judgments and also the Judgment of the Apex Court
in United Bank2(supra).
(IV) Fourthly, he submitted that pending of appeals was
unaffected by change in Forum and right of appeal was a
vested right.
(V) Fifthly, he submitted that all pending suits were
unaffected by change in Forum. He had relied upon some
of the earlier judgments which he had referred to and
also on the judgment of the Apex Court in Rajender
Bansal & Ors vs. Bhuru (D) Thr. LRs. & Ors.3
(VI) Sixthly, he submitted that validly instituted
proceedings would continue unless the Amending Act
stipulates for their return. He relied on the judgment of
the Apex Court in Commissioner of Income-tax, Orissa4
(supra).
1 AIR 1943 FC 24
2 AIR 2000 SC 2957
3 AIR 2016 SC 4919
4 1994 Supp (1) SCC 257
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(VII) Seventhly, he submitted that the Statute should
not be construed retrospectively, unless made so
expressly or by necessary implication. He relied on the
judgment in Manibai and Anr vs. Raj Kumar Harpal Deo1.
(VIII) Eighthly, he submitted that exclusion of the
jurisdiction of the Civil Court is not to be readily inferred.
He submitted that proceedings which were commenced
in a particular Court created substantive vested right and
it could not be regarded as mere matter of procedure. He
then submitted that the language used "no court shall
have jurisdiction to entertain" does not prohibit even by
necessary implication of continuance of proceedings
pending in civil courts. He then relied on Section 6 of the
General Clauses Act, 1897 and also relied on some
judgments cited earlier. He submitted that meaning of
the word changes its colour and meaning of the word
gets substantially narrowed having regard to the Maxim
of Noscitur a Sociis. He then submitted that when two or
more words are susceptible of analogous meaning are
coupled together, they are understood to be used in their
cognate sense. He then submitted that dictionary
meaning need not be used in every case and reliance
1 AIR 1967 Bombay 92
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should be placed on the ratio of the judgment declared by
the Supreme Court and the High Courts. He submitted
that the Apex Court had held that the word should not be
detached from the context and that regard must also be
had to the legislative history, scheme and purpose of the
Act.
(IX) Ninethly, he submitted that absurd result should be
avoided while interpreting a provision where it would
lead to unacceptable consequences. He relied on the
Judgment of the Apex Court in Manganese Ore India ltd
vs. State of M.P. & Ors1. He submitted that so far as
interpretation of Statute is concerned, primary rule of
construction is that the words must be given meaning
that the legislature intended and where two meanings are
possible, in such case it may become necessary to
consider the mischief or defect that the Act intended to
remedy. He then submitted that the Rule of Casus
Omissus requires a court to interpret words as they are
used, and not imaginatively supply omissions. He relied
on the Judgment of the Apex Court in Padmasundara Rao
(Dead) & Ors vs. State of T.N. & Ors.2 He then submitted
that the rule of purposive interpretation had to be taken
into consideration while interpreting the words.
1 AIR 2017 SC 87
2 AIR 2002 SC 1334
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17] It is not necessary to enumerate the facts in the present case.
However, in most of the matters, the suits filed by the BPT for eviction
were allowed and decrees were passed which were confirmed in
appeal and against these orders Revision Application or Writ Petitions
were filed, challenging the said orders. In a few cases, obstructionist
notice was issued and which was thereafter dismissed and against the
said order passed by the Single Judge and Appellate Bench of the
Small Causes Court, Civil Revision Application or Writ Petition is filed.
Before we take into consideration the rival submissions, it will be
necessary to consider the relevant statutory provisions.
18] The Public Premises (Eviction of Unauthorized Occupants) Act,
1971 (Act No.40/1971) is an Act, enacted to provide for eviction of
unauthorized occupants from the public premises. Prior to the
amendment of the said Act on 22/12/1980, "public premises" was
defined as under:-
"2(e) "public premises" means any premises
belonging to or taken on lease or requisitioned by,
or on behalf of, the Central Government, and
includes--
(1) any premises belonging to, or taken on
lease by, or on behalf of--
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(i) any company as defined in section 3 of
the Companies Act, 1956 in which not less than
fifty-one per cent of the paid-up share capital is
held by the Central government; and
(ii) any Corporation (not being a company
as defined in section 3 of the Companies Act,
1956 or a local authority) established by or under
a Central Act and owned or controlled by the
Central Government; and........"
Similarly, Section 15 of the said Act as it originally stood reads
as under:-
"15. No court shall have jurisdiction to entertain
any suit or proceeding in respect of the eviction of
any person who is in unauthorized occupation of
any public premises or the recovery of the arrears
of rent payable under sub-section (1) of section 7
or the damages payable under sub-section (2) of
that section or the costs awarded to the Central
Government or the corporate authority under sub-
section (5) of section 9 or any portion of such
rent, damages or costs."
The Public Premises (Eviction of Unauthorized Occupants) Act,
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1971 (Act No.40/1971) is a Central Act. It was amended by the
Parliament and assent of the President was obtained on 20/12/1980
and it was published in the Gazette of India on 22/12/1980. It will be
relevant to take into consideration the amendment made in Section
2(e) of the said Act. The relevant portion of amended Section 2(e)
reads as under:-
"2(e) "public premises means .....
(1)...... .......
(2) any premises belonging to or taken
on lease by, or on behalf of -
(i) ....... ......
(ii) ....... ......
(iii) ....... ......
(iv) ....... .......
(v) any Board of Trustees constituted under
the Major Port Trusts Act, 1963.".
Simultaneously, apart from amending Section 2(e), Section 15
of the said Act was also amended and the old Section 15 was
substituted by new Section 15 which reads as under:-
"15. Bar of jurisdiction.- No court shall have
jurisdiction to entertain any suit or proceeding in
respect of-
(a) the eviction of any person who is in
unauthorised occupation of any public premises, or
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(b) the removal of any building, structure
or fixture or goods, cattle or other animal from any
public premises under Section 5A, or
(c) the demolition of any building or other
structure made, or ordered to be made, under
section 5B, or
(d) the arrears of rent payable under subsection
(1) of Section 7 or damages payable under sub-
section (2), or interest payable under subsection
(2A), of that section, or
(e) the recovery of-
(i) costs of removal of any building, structure
or fixture or goods, cattle or other animal under
Section 5A, or
(ii) expenses of demolition under Section 5B,
or
(iii) costs awarded to the Central Government
or statutory authority under subsection (5) of
Section 9, or
(iv) Any portion of such rent, damages costs
of removal, expenses of demolition or costs
awarded to the Central Government or the statutory
authority."
19] In all, 40 such cases were filed in this Court. A group of matters
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came up for hearing before the learned Single Judge Mr. Justice V.C.
Daga and the learned Single Judge in Shalan (supra) after taking
into consideration the judgments on which reliance was placed by
either side, in para 47 and 50 of his judgment made the following
observations:-
"47. In view of the above settled legal position, the
right of the petitioners to proceed with the Appeal
was unaffected and the lower Appellate Court had
jurisdiction to entertain and decide the Appeal filed
by the petitioners. It was thus rightly decided by the
Lower Appellate Court."
"50. In conclusion, it follows that the argument that
vested right of the plaintiff is taken away does not
hold good, nor is there any foundation for the
contention that the later Act is retrospective in its
application. All that I have held is that section 15(a)
of the Act has prospective operation and not
retrospective. The Court of Small Causes did not
incur any disability to entertain, try and decide the
suit for eviction filed against the plaintiff/respondent
(BPT). No other contentions other than dealt herein
were raised at this stage, it is also appropriate for this
Court to observe that the Public Premises Eviction Act
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provides for summary eviction of unauthroised
occupant as against this the petitioner got much
better opportunity before the Court of Small Cause to
contest subject suit and that the petitioner did not
suffer any prejudice warranting exercise of writ
jurisdiction. The Plaintiff is entitled to seek the fruits
of long drawn litigation at least after expiry of 29
years."
20] Another group of Petitions and CRAs came up before the
learned Single Judge Mr. Justice G.S. Godbole (as he then was), who
did not agree with the view taken by Mr. Justice V.C. Daga and came
to the conclusion that only cases in which issues were framed by the
Small Causes Court would remain for the purpose of determination of
the Small Causes Court and the learned Single Judge (G.S. Godbole,
J.) requested the Hon'ble Chief Justice to refer the matter to a larger
Bench in view of difference of opinion.
21] The first point which falls for consideration before this Court and
about which there is no dispute is that the Estate Officer after
amendment of the said Act on 22/12/1980 was appointed in 1989 and
for a period of almost 9 years there was no Forum available to any
party for redressal of their grievances and they therefore approached
the Small Causes Court. Decrees were passed. Orders were also
passed either confirming the decrees passed by the Single Judge of the
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Small Causes Court or decrees were set aside. In our view, it is quite
well settled that if any new Forum is created by virtue of amendment
to the main Act and if the new Forum is not made available then
existing Forum is entitled to hear and dispose of such matters and its
jurisdiction to entertain such suits is not taken away. This position is
quite well settled by catena of judgment of the Apex Court which are
referred to hereinafter.
22] The crucial question therefore which remains to be considered is
meaning which is to be attributed to the word "entertain" and,
secondly, whether emphasis has to be laid on the word "entertain" or
on the words "jurisdiction to entertain" and these words have to be
interpreted on the sound principles of interpretation of Statute as to
what was the intention of the legislature when the said amendment
was made and what is the date from which the Small Causes Court
would cease to entertain the matters filed for eviction of
lessees/tenants of the Bombay Port Trust and, lastly, what would
happen to the cases (i) which were filed before the Amendment Act
and which were pending and (ii) which were filed after Amendment
Act and before the Estate Officer was appointed in the year 1989 and
(iii) where those cases which were filed in the Small Causes Court and
the Small Causes Court had applied its mind in a similar way as the
Magistrate takes cognizance of a complaint, whether such cases should
be heard by the Small Causes Court.
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23] It has to be noted here that it is not in dispute that there is no
provision of transfer of cases from Small Causes Court to the Estate
Officer appointed under the Public Premises Act. Neither there is
provision of transfer nor a provision is made for return of the Plaint
for presentation before the new Forum.
24] In these peculiar facts and circumstances therefore jurisdiction of
the Court to entertain the old matters and new matters will have to be
examined. It is a well settled principle of interpretation of Statute that
while interpreting any provision, intention of the legislature has to be
taken into consideration and also it has to be kept in mind what was
the mischief which was sought to be remedied by the legislature in
making that enactment or provision.
25] It is a matter of common knowledge that suits for eviction which
were filed in the Small Causes Court remain pending for decades and
there was no quick disposal of cases. It is obvious that the legislature
felt that in cases where land or flat fall under the definition of the
said Act, mechanism was sought to be created for quick disposal of
such cases of eviction etc as enumerated in the new amended Section
15 of the said Act. It is equally well settled that though a particular
word has been interpreted by the High Court or Supreme Court, it has
to be seen in what context the word was used and the context in
which it was interpreted. Further, it is also equally well settled that
the Courts cannot rely merely on dictionary meaning of the word for
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the purpose of interpreting it and what has to be kept in mind is the
ratio of the judgment in which the said word has been statutorily
interpreted by the Court. Needless to add that therefore it is not
advisable to rely on stray sentence in the judgment and the judgment
has to be read as a whole.
26] Before we take into consideration various judgments of the High
Courts and Supreme Court and of the Full Bench, law of precedent has
to be kept in mind. It is quite well settled that the judgment cannot be
read as a Statute and the context and the facts and circumstances of
the case have to be equally borne in mind before applying ratio of
such judgments to any case. Further, facts of the case in which the
said ratio has to be applied have to be seen. If facts, differ or they are
different from the facts of the judgment on which reliance is placed
then ratio of such judgment will not be of any assistance.
27] The law of precedent can be more succinctly stated as under:-
The Apex Court in Bank of India and Anr. v. K. Mohandas (2009)
5 SCC 313 observed as follows: (SCC pp. 335-36 paras 54-59)
"54. A word about precedents, before we deal with the
aforesaid observations. The classic statement of Earl of
Halsbury, L.C. in Quinn v. Leathem [1901 AC 495 (HL)], is
worth recapitulating first: (AC p. 506)
'...before discussing ... Allen v. Flood [1898 AC 1 :
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(1895-99) ALL ER Rep 52 (HL)and what was
decided therein, there are two observations of a
general character which I wish to make, and one is
to repeat what I have very often said before, that
every judgment must be read as applicable to the
particular facts proved, or assumed to be proved,
since the generality of the expressions which may be
found there are not intended to be expositions of
the whole law, but are governed and qualified by the
particular facts of the case in which such expressions
are to be found. The other is that a case is only an
authority for what it actually decides. I entirely
deny that it can be quoted for a proposition that
may seem to follow logically from it. Such a mode
of reasoning assumes that the law is necessarily a
logical code, whereas every lawyer must
acknowledge that the law is not always logical at
all.'
This Court has in long line of cases followed the aforesaid
statement of law.
55. In State of Orissa v. Sudhansu Sekhar Misra [AIR 1968
SC 647] it was observed: (AIR p. 651, para 13)
"13. ...A decision is only an authority for what it
actually decides. What is of the essence in a decision
is its ratio and not every observation found therein
nor what logically follows from the various
observations made in it."
56. In the words of Lord Denning:
"Each case depends on its own facts and a close
similarity between one case and another is not
enough because even a single significant detail may
alter the entire aspect. In deciding such cases, one
should avoid the temptation to decide cases (as said
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by Cardozo) by matching the colour of one case
against the colour of another. To decide, therefore,
on which side of the line a case falls, the broad
resemblance to another case is not at all decisive."
57. It was highlighted by this Court in Ambica Quarry Works
v. State of Gujarat: [(1987) 1 SCC 213] (SCC p. 221, para
18)
"18. ...The ratio of any decision must be understood
in the background of the facts of that case. It has
been said long time ago that a case is only an
authority for what it actually decides, and not what
logically follows from it."
58. In Bhavnagar University v. Palitana Sugar Mill (P) Ltd.
[(2003) 2 SCC 111] this Court held that a little difference in
facts or additional facts may make a lot of difference in the
precedential value of a decision.
59. This Court in Bharat Petroleum Corporation Ltd. v. N.R.
Vairamani [(2004) 8 SCC 579] emphasised that the courts
should not place reliance on decisions without discussing as
to how the factual situation fits in with the fact situation of
the decision on which reliance is placed. It was further
observed that the judgments of courts are not to be construed
as statutes and the observations must be read in the context
in which they appear to have been stated. The Court went on
to say that circumstantial applicability, one additional or
different fact may make a world of difference between
conclusions in two cases." (emphasis in original)
The Apex Court in Arasmeta Captive Power Company Pvt. Ltd. vs.
Lafarge India Pvt. Ltd and another 1, has observed on the question of
1 AIR 2014 SC 525
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law of precedent in paras 28, 31, 32, 33 35 and 36 as under:-
"28. At this juncture, we think it condign to refer
to certain authorities which lay down the
principle for understanding the ratio decidendi of
a judgment. Such a deliberation, we are disposed
to think, is necessary as we notice that
contentions are raised that certain observations in
some paragraphs in SPB & Company (supra) have
been relied upon to build the edifice that latter
judgments have not referred to them."
"31. In Krishena Kumar v. Union of India and Ors.
(1990) 4 SCC 207, the Constitution Bench, while
dealing with the concept of ratio decidendi, has
referred to Caledonian Railway Co. v. Walker's
Trustees [(1882) 7 App Cas 259: 46 LT 826
(HL)] and Quinn (supra) and the observations
made by Sir Frederick Pollock and thereafter
proceeded to state as follows:
"The ratio decidendi is the underlying
principle, namely, the general reasons or
the general grounds upon which the
decision is based on the test or abstract
from the specific peculiarities of the
particular case which gives rise to the
decision. The
ratio
decidendi has to be
ascertained by an analysis of the facts of the
case and the process of reasoning involving
the major premise consisting of a pre-
existing rule of law, either statutory or
judge-made, and a minor premise consisting
of the material facts of the case under
immediate consideration. If it is not clear, it
is not the duty of the court to spell it out
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with difficulty in order to be bound by it. In
the words of Halsbury (4th edn., Vol. 26,
para 573)"
"The concrete decision alone is binding
between the parties to it but it is the
abstract ratio decidendi, as ascertained
on a consideration of the judgment in
relation to the subject matter of the
decision, which alone has the force of
law and which when it is clear it is not
part of a tribunal's duty to spell out with
difficulty a ratio decidendi in order to
bound by it, and it is always dangerous
to take one or two observations out of a
long judgment and treat them as if they
gave the ratio decidendi
of the case. If
more reasons than one are given by a
tribunal for its judgment, all are taken
as forming the ratio decidendi. "
(Emphasis added)
"32. In State of Orissa v. Mohd. Illiyas (2006) 1
SCC 275, it has been stated thus:
"12...According to the well-settled theory of
precedents, every decision contains three
basic postulates: (i) findings of material
facts, direct and inferential. An inferential
finding of facts is the inference which the
Judge draws from the direct, or perceptible
facts; (ii) statements of the principles of law
applicable to the legal problems disclosed by
the facts; and (iii) judgment based on the
combined effect of the above. A decision is
an authority for what it actually decides.
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What is of the essence in a decision is its
ratio and not every observation found
therein nor what logically flows from the
various observations made in the judgment."
"33. In Islamic Academy of Education v.
State of Karnataka (2003) 6 SCC 697, the
Court has made the following observations:
"2... The ratio decidendi of a judgment has
to be found out only on reading the entire
judgment. In fact, the ratio of the judgment
is what is set out in the judgment itself. The
answer to the question would necessarily
have to be read in the context of what is set
out in the judgment and not in isolation. In
case of any doubt as regards any
observations, reasons and principles, the
other part of the judgment has to be looked
into. By reading a line here and there from
the judgment, one cannot find out the
entire ratio decidendi
of the judgment."
(Underlining is by us)
"35. At this stage, we may also profitably refer
to another principle which is of assistance to
understand and appreciate the ratio decidendi of
a judgment. The judgments rendered by a court
are not to be read as statutes. In Union of India
v. Amrit Lal Manchanda and Anr. (2004) 3 SCC
75, it has been stated that observations of courts
are neither to be read as Euclid's theorems nor
as provisions of the statute and that too taken
out of their context. The observations must be
red in the context in which they appear to have
been stated. To interpret words, phrases and
provisions of a statute, it may become necessary
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for judges to embark into lengthy discussions but
the discussion is meant to explain and not to
define. Judges interpret statutes, they do not
interpret judgments. They interpret words of
statutes; their words are not to be interpreted as
statutes."
"36. In Som Mittal v. Government of Karnataka
(2008) 3 SCC 574, it has been observed that
judgments are not to be construed as statutes.
Nor words or phrases in judgments to be
interpreted like provisions of a statute. Some
words used in a judgment should be read and
understood contextually and are not intended to
be taken literally. Many a time a judge uses a
phrase or expression with the intention of
emphasizing a point or accentuating a principle
or even by way of a flourish of writing style.
Ratio decidendi of a judgment is not to be
discerned from a stray word or phrase read in
isolation."
The Apex Court in Zee Telefilms Ltd. and another vs. Union of
India and others1 has observed in paras 254, 255 & 256 as under:-
"Precedent
254. Are we bound hands and feet by
Pradeep Kumar Biswas (2002) 5 SCC 111? The
answer to the question must be found in the
law of precedent. A decision, it is trite, should
not be read as a statute. A decision is an
authority for the questions of law determined
by it. Such a question is determined having
1 (2005) 4 SCC 649
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regard to the fact situation obtaining therein.
While applying the ratio, the court may not pick
out a word or a sentence from the judgment
divorced from the context in which the said
question arose for consideration. A judgment,
as is well known, must be read in its entirety
and the observations made therein should
receive consideration in the light of the
questions raised before it. (See Punjab National
Bank v. R.L. Vaid (2004) 7 SCC 698).
255. Although decisions are galore on
this point, we may refer to a recent one in State
of Gujarat v. Akhil Gujarat Pravasi V.S.
Mahamandal (2004) 5 SCC 155 wherein this
Court held : (SCC p. 172, para 19)
"It is trite that any observation made
during the course of reasoning in a judgment
should not be read divorced from the context in
which it was used."
256. It is further well settled that a
decision is not an authority for a proposition
which did not fall for its consideration. It is
also a trite law that a point not raised before a
court would not be an authority on the said
question. In A-One Granites v. State of U.P.
(2001) 3 SCC 537 it is stated as follows : (SCC
p. 543, para 11)
"11. This question was considered by the
Court of Appeal in Lancaster Motor Co.
(London) Ltd. v. Bremith Ltd. (1941) 1 KB 675
and it was laid down that when non
consideration was given to the question, the
decision cannot be said to be binding and
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precedents sub silentio and without arguments
are of no moment"
[See also State of U.P. v. Synthetics and
Chemicals Ltd. (1991) 4 SCC 139, Arnit Das v.
State of Bihar (2000) 5 SCC 488 (SCC para 20),
Bhavnagar University v. Palitana Sugar Mills (P)
Ltd. (2003) 2 SCC 111, Cement Corpn. of India
Ltd. v. Purya (2004) 8 SCC 270, Bharat Forge
Co. Ltd. v. Uttam Manohar Nakate (2005) 2 SCC
489 and Kalyan Chandra Sarkar v. Rajesh
Ranjan (2005) 2 SCC 42, See para 42.]"
The view of the Apex Court on the law of precedents has to be
kept in mind while dealing with the judgments relied upon by all the
parties.
28] Keeping in view the aforesaid law laid down by the Supreme
Court, we will have to consider whether judgments on which reliance
is placed by the learned Single Judge (G.S. Godbole, J.) can be
accepted in the facts and circumstances of the present case or whether
view taken by the learned Single Judge (V.C. Daga, J.) has to be
followed.
29] It is also quite well settled that the Court to which the reference
is made by the Hon'ble Chief Justice has to consider the issue which
has been referred to it and no other issues can be considered.
30] Mr. Aaney, the learned Senior Counsel appearing on behalf of
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the Respondents urged before us that considerable time will be wasted
if only the question which is referred to us is decided and the matter is
remanded to the learned Single Judge. He submitted that all other
issues also be decided. We did not accept the said submission and by
our detailed order dated 10/04/2017 we have clearly given our
opinion that only the issue which is referred to us has to be decided.
31] It has to be noted that that the learned Single Judge Mr. Justice
G.S. Godbole (as he then was) has framed the question of reference as
follows:-
"Whether the word "entertain" used in Section 15 of the
Public Premises (Eviction of Unauthorized Occupants)
Act, 1971 can be equated with the word "lodging/filing"
of the Suit or will have to be interpreted to mean
"consideration of merits of the Suit" or "the date of
framing of issues in the Suit".
Though the question of reference is framed in the above manner,
in fact, what has been referred is the question as to whether
jurisdiction of the Small Causes Court ceases after Amendment Act
was passed and all matters including the matters which are filed and
pending before the Amendment Act can be decided by the Small
Causes Court or not. In other words, what is the exact point of time
when the Small Causes Court ceases to have jurisdiction.
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32] Mr. G.S. Ghodbole, J. the learned Single Judge has placed
emphasis on the word "entertain" whereas Mr. Aaney, the learned
Senior Counsel appearing on behalf of the Respondents has placed
emphasis on the word "jurisdiction to entertain".
33] Keeping in mind the aforesaid background of the case, it will be
necessary to see law on this point.
34] It is a matter of common knowledge that jurisdiction of the
Courts has been ousted subsequently after new Acts have been passed.
During 50's 60's 70's, 80's onwards and even now Tribunals have been
constituted and they have been vested with jurisdiction to try and
decide certain issues and the jurisdiction of the Civil court is barred.
There are several instances where such jurisdiction is conferred on a
new Forum. To give a few examples, after Agricultural Land Tribunal
was constituted by introduction of the Bombay Tenancy and
Agricultural Lands Act, 1948 jurisdiction of the Civil Court was
expressly barred and the Civil Court could not decide any issue of
tenancy. Similarly, after Industrial Disputes Act was passed and or
related Labour Enactments were made, jurisdiction of the Civil Court
was ousted and recently after the Company Tribunal is established,
jurisdiction of the High Court to entertain the matters which have
been transferred to Company Tribunal is expressly excluded. In all
such cases, time from which exclusion of jurisdiction is to be
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interpreted has been considered right up to the Supreme Court in
number of judgments. In most of these cases, where there is ouster of
jurisdiction, various words have been used. In some cases word
"entertain" is used and in some cases the words "jurisdiction to
entertain"are used and in some other cases the words "to entertain
and try any suit" are used. The High Courts and the Supreme Court,
depending on the intention of the legislature, have accordingly
interpreted the said words. It is evident therefore that merely because
in a particular case the word "entertain" has been interpreted in a
particular manner that interpretation cannot be literally applied to the
facts of each case, nor it is possible to rely on dictionary meaning of
the word. One of the methods of interpreting any provision or
amendment made to the Statute is to apply purposive method of
interpretation. In other words, it has to be seen what was the purpose
for which the amendment was made. If a literal interpretation is
made in a particular case, it would lead to absurd consequences,
resulting in injustice to both the parties.
35] In any litigation, there is always a party which is interested in
delaying the litigation to protect its interest. In a suit for eviction
therefore, inevitably, all tenants against whom decree of eviction is
passed would be interested in getting the decree set aside on technical
ground. In the present case, there are almost 43 suits where decrees
have been passed and all these tenants against whom decrees are
passed have put up a case that these decrees are nullity since the
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Small Causes Court did not have jurisdiction to entertain or try the
suit for eviction after jurisdiction was transferred to the Estate Officer.
If it is held that all these decrees are null and void, the Bombay Port
Trust then will have to file fresh applications before the Estate Officer.
36] We are not really concerned about the intention of the parties
but we are more concerned about the intention of the legislature and
the circumstances under which the Enactment was made. Though
dictionary meaning alone is not important, yet it can be used as a
guide to find out what is the exact connotation of the term "entertain"
or "jurisdiction to entertain". The words "entertain" and "jurisdiction
to entertain" have been defined and the said dictionary definition is
accordingly reproduced in catena of judgments referred to by V.C.
Daga J. and G.S. Godbole, J. in their judgments.
37] Firstly, it will have to be seen whether judgment of the
Supreme Court on which reliance is placed by the learned Single
Judge (G.S. Godbole, J.) and also judgment of the Allahabad High
Court which has been relied upon by the Supreme Court apply to the
facts of the present case.
38] The learned Single Judge (G.S. Godbole, J.) in paras 48, 49
and 50 of his judgment has observed that the Judgments and Decrees
passed by the Small Causes Court till 21/09/1989 and the suits filed
by BPT for eviction were perfectly legal. It is therefore not necessary
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to deal with the said issue. In paras 49 and 50 of the Judgment, the
learned Single Judge (G.S. Godbole, J.) has observed as under:-
"49 There is nothing in the P.P. Act, 1971 which
provides for taking away appellate jurisdiction of
the Court of Small Causes Court in respect of the
suits which were decreed on or before 21.09.1989.
There is no provision for transfer of pending
Appeals or for ousting the jurisdiction of the
Appellate Bench or any other Court hearing
Appeals arising out of the Decrees passed by the
Small Court / Civil Court."
"50. Applying the aforesaid principle, it will have
to be held that the judgments and Decrees passed
by the Small Causes Court till 21.09.1989 and the
suit filed by the BPT for eviction of the
unauthorised occupants were perfectly legal and
do not suffer from the defect of inherent lack of
jurisdiction."
Difference of opinion between the two Judges can be noticed in para
52 of the judgment of the learned Single Judge (G.S. Godbole, J.) in
which it has been observed as under:-
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"52............ If this be the correct principle of
law, then in my opinion, it is difficult to agree
with the reasoning of the learned Single Judge
in so far as interpretation of the word
"entertain" used in Section 15 of the PP Act,
1971 is concerned. In my opinion, though the
jurisdiction of the Civil Court was not taken
th
away automatically on 20
December, 1980
after the amendment of the P.P. Act, 1971
since there was no Special Tribunal constituted
for hearing Applications for eviction to be filed
by the BPT; on the establishment of the Special
nd
Tribunal on 22
September, 1989, the
jurisdiction of the Small Causes Court to
entertain the Suits filed by the BPT which were
pending was taken away. From that date at
least the Small Causes Court lost jurisdiction to
entertain the suits."
The learned Single Judge (G.S. Godbole, J.) therefore was of the view
that in respect of decrees and appeals which were decided before
22/09/1989 were perfectly legal. However, after that date all such
decrees and decisions on appeals against the said decrees became a
nullity. The learned Single Judge then has proceeded to consider the
ratio of the judgment of the Division Bench of the Allahabad High
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Court in Kundan Lal (supra).
39] We propose to examine the effect of change of Forum by virtue
of amendment of the Act at a subsequent stage. This proposition can
be examined in the light of the settled position in law from the
following three angles.
40] The first angle is what is the effect of there being change in the
Forum and Forum is not constituted by appointment of the Tribunal or
Officer who is supposed to hear those cases. So far as this aspect is
concerned, both the learned Single Judges have concurred on the
settled position of law that mere change of Forum does out oust the
jurisdiction of the earlier Forum. This proposition has been laid down
by the Supreme Court and High Courts in the following Judgments:
(1) Raje Vyankatrao Jagjiwanrao Deshmukh vs.
Sitalprasad Sivnath1 (paras 17 to 26)
(2) Bhim Sen vs. State of Uttar Pradesh2 (para 5)
(3) Attiq - Ur - Rehman Vs. Municipal Corporation of
Delhi and Anr.3 (paras 22 & 23)
(4) Sat Narain Gurwala vs. Hanuman Prasad & Anr.4
(5) Judgment of Mr. Justice V.C. Daga in Shalan5 (supra)
1 1965 Bom. L.R. 868
2 AIR 1955 SC 435 Vol. 42.
3 1996(3) SCC 407
4 AIR (33) 1946 Lahore 85
5 2009 (3) m.h.l.
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It is therefore not necessary to deal with this issue or reproduce ratio
of these judgments.
41] The second angle which needs to be scrutinized is that once the
Civil Court is seized of the matter and subsequently its jurisdiction is
taken away by constituting a special tribunal, it does not cease to have
jurisdiction on the matters/right of parties which stand crystallized on
the date of institution of the lis. In other words, if the lis has been
decided either in the Trial Court or in the Appellate Court then the
said determination of the lis on the date on which its jurisdiction
ceases does not make the order nullity. In Sat Narain Gurwala1
(supra), the Lahore High Court has in terms examined the said issue
as to whether the constitution of special tribunal would oust the
jurisdiction of the Civil Court and on page 91 of the said Judgment has
observed as under:-
"....... It must be assumed that as soon as the
right was created, the civil Court became the
proper tribunal to deal with any questions
that may arise concerning that right, and
that if a special tribunal was created to
adjudicate upon those rights and that
tribunal did function then in that event the
jurisdiction of the civil Court would stand
1 AIR (33) 1946 Lahore 85
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ousted. On the other hand, if that special
tribunal never came into being or having
come into being refused or neglected to
function, in that event the jurisdiction of the
civil Court cannot be said to be ousted."
Similarly in Commissioner of Income Tax, Orissa vs. Dhadi Sahu 1,
the Supreme Court observed in para 21 as under:-
"21. It is also true that no litigant has any
vested right in the matter of procedural law
but where the question is of change of
forum it ceases to be a question of
procedure only. The forum of appeal or
proceedings is a vested right as opposed to
pure procedure to be followed before a
particular forum. The right becomes vested
when the proceedings are initiated in the
tribunal or the court of first instance and
unless the legislature has by express words
or by necessary implication clearly so
indicated, that vested right will continue in
spite of the change of jurisdiction of the
different tribunals or forums."
1 1994 Supp (1) SCC 257
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Then in Videocon Internatinal Ltd vs. Securities and Exchange
Board of India1, the Supreme Court has observed in paras 30 and 31 as
under:-
"30. Having recorded our conclusion, as has
been noticed in the foregoing paragraph, it is
apparent, that insofar as the vesting of the
second appellate remedy is concerned, neither
the date of filing of the second appeal, nor the
date of hearing thereof, is of any relevance.
Legal pursuit of a remedy, suit, appeal and
second appeal, are steps in a singular
proceeding. All these steps are deemingly
connected by an intrinsic unity, which are
treated as one singular proceeding. Therefore,
the relevant date when the appellate remedy
(including the second appellate remedy)
becomes vested in the parties to the lis, is the
date when the dispute/lis is initiated. Insofar
as the present controversy is concerned, it is
not a matter of dispute, that the Securities
Appellate Tribunal had passed the impugned
order (which was assailed by the Board), well
1 2015 AIR SCW 729
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before 29.10.2002. This singular fact itself,
would lead to the conclusion, that the lis
between the parties, out of which the second
appellate remedy was availed of by the Board
before the High Court, came to be initiated well
before the amendment to Section 15Z by the
Securities and Exchange Board of India
(Amendment) Act, 2002. Undisputedly, the
unamended Section 15Z of the SEBI Act,
constituted the appellate package and the
forum of appeal, for the parties herein. It is,
therefore, not possible for us to accept, the
contention advanced at the hands of the
learned counsel for the appellant, premised on
the date of filing or hearing of the appeal,
preferred by the Board, before the High court.
We accordingly reiterate the position expressed
above, that all the appeals preferred by the
Board, before the High Court, were
maintainable in law."
"31. It was also the contention of the learned
counsel for the appellant, that in the absence of
a saving clause, the pending proceedings (and
the jurisdiction of the High Court), cannot be
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deemed to have been saved. It is not possible
for us to accept the instant contention. In the
Judgment rendered by this Court in Ambalal
Sarabhal Enterprises Limited case, (AIR 2001
SC 3580) (supra), it was held, that the general
principle was, that a law which brought about a
change in the forum, would not affect pending
actions, unless the intention to the contrary was
clearly shown. Since the amending provision
herein, does not so envisage, it has to be
concluded, that the pending appeals (before the
amendment of Section 15Z) would not be
affected in any manner. Accordingly, for the
same reasons as have been expressed in the
above judgment (relevant extracts whereof
have been reproduced above), we are of the
view, that the instant contention advanced at
the hands of the learned counsel for the
appellant is wholly misconceived.
Furthermore, the instant contention is wholly
unacceptable in view of the mandate contained
in Section 6(c ) and (e) of the General Clauses
Act, 1897. While interpreting the aforesaid
provisions this Court has held, that the
amendment of a statute, which is not
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retrospective in operation, does not affect
pending proceedings, except where the
amending provision expressly or by necessary
intendment provides otherwise. Pending
proceedings are to continue as if the
unamended provision is still in force. This
Court has clearly concluded, that when a lis
commences, all rights and obligations of the
parties get crystallized on that date, and the
mandate of Section 6 of the General Clauses
Act, simply ensures, that pending proceedings
under the unamended provision remain
unaffected. Herein also, therefore, our
conclusion is the same as had already been
rendered by us, in the foregoing paragraphs.
Similar view has been taken by the Apex Court in Raminder Singh
Sethi vs. D. Vijayrangam1
Again a similar view has been taken by the Apex Court in
Ambalal Sarabhai Enterprises Ltd. vs. Amritlal & Co. and Another 2 and
paras 25 and 26 of the said judgment read as under:-
"25. The opening words of Section 6 specify the
1 AIR 2002 SC 2087
2 (2001) 8 SCC 397
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field over which it is operative. It is operative
over all the enactments under the General Clauses
Act, Central Act or regulations made after the
commencement of the General Clauses Act. It also
clarifies in case of repeal of any provision under
the aforesaid Act or regulation, unless a different
intention appears from such repeal, it would have
no effect over the matters covered in its clauses
viz (a) to (e). It clearly specifies that the repeal
shall not revive anything not in force or in
existence or affect the previous operation of any
enactment so repealed or anything duly done or
suffered or affect any right, privilege, obligation
or liability acquired, accrued or incurred under the
repealed statute, affect any penalty, forfeiture or
punishment incurred in respect of any offence
committed under the repealed statute and also
does not affect any investigation, legal proceeding
or remedy in respect of any such right, privilege,
obligation, liability, penalty, forfeiture or
punishment as aforesaid. Thus the central theme
which spells out is that any investigation or legal
proceeding pending may be continued and
enforced as if the repealing Act or regulation had
not come into force."
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"26. As a general rule, in view of Section 6, the
repeal of a statute, which is not retrospective in
operation, does not prima facie affect the pending
proceedings which may be continued as if the
repealed enactment were still in force. In other
words, such repeal does not affect the pending
cases which would continue to be concluded as if
the enactment has not been repealed. In fact when
a lis commences, all rights and obligations of the
parties get crystallised on that date. The mandate
of Section 6 of the General Clauses Act is simply to
leave the pending proceedings unaffected which
commenced under the unrepealed provisions
unless contrary intention is expressed. We find
clause (c) of Section 6, refers the words "any
right, privilege, obligation ... acquired or accrued"
under the repealed statute would not be affected
by the repealing statute. We may hasten to clarify
here, mere existence of a right not being
"acquired" or "accrued" on the date of the repeal
would not get protection of Section 6 of the
General Clauses Act."
The Supreme Court has also reiterated the same view in Rajender
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Bansal and others vs. Bhuru (D) Thr. Lrs and others 1 and has observed
in the said Judgment in paras 10 and 16 as under:-
"10. After referring to the aforesaid two
judgments, the Court gave the following reasons
in support of its conclusion:
"It is well-settled that no man should suffer
because of the fault of the court or delay in
the procedure. Broom has stated the maxim
"actus curiae neminem gravabit"- an act of
court shall prejudice no man. Therefore,
having regard to the time normally
consumed for adjudication, the ten years'
exemption or holiday from the application
of the Rent Act would become illusory, if
the suit has to be filed within that time and
be disposed of finally. It is common
knowledge that unless a suit is instituted
soon after the date of letting it would never
be disposed of within ten years and even
then within that time it may not be
disposed of. That will make the ten years
holiday from the Rent Act illusory and
provide no incentive to the landlords to
1 AIR 2016 SC 4919
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build new houses to solve problem of
shortages of houses. The purpose of
legislation would thus be defeated.
Purposive interpretation in a social
amelioration legislation is an imperative
irrespective of anything else."
"16. From the aforesaid discussion in
Atma Ram Mittal (AIR 1988 SC 2031),
Vineet Kumar (AIR 1985 SC 817), Ram
Saroop Rai (AIR 1982 SC 945), Ramesh
Chandra (AIR 1992 SC 1106) and Shri
Kishan alias Krishna Kumar (AIR 1998 SC
999) cases, the apparent principles which
can be culled out forming the ratio
decidendi of those cases are as under:
i) Rights of the parties stand crystallised
on the date of the institution of the suit
and, therefore, the law applicable on the
date of filing of the suit will continue to
apply until suit is disposed of or
adjudicated.
ii) If during the pendency of the suit,
Rent Act becomes applicable to the
premises in question, that would be of no
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consequence and it would not take away
the jurisdiction of civil court to dispose of a
suit validly instituted.
iii) In order to oust the jurisdiction of
civil court, there must be a specific
provision in the Act taking away the
jurisdiction of the civil court in respect of
those cases also which were validly
instituted before the date when protection
of Rent Act became available in respect of
the said area/premises/tenancy.
iv) In case aforesaid position is not
accepted and the protection of the Rent Act
is extended even in respect of suit validly
instituted prior in point of time when there
was no such protection under the Act, it
will have the consequence of making the
decree, that is obtained prior to the Rent
Act becoming applicable to the said
area/premises, inexecutable after the
application of these Rent Act in respect of
such premises. This would not be in
consonance with the legislative intent."
Federal Court in Venugopala Reddiar and another vs. Krishnaswami
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Reddiar alias Raja Chidambara Reddiar and another 1 has observed at
rule 'h' right hand corner as under:-
"........The view has some times been taken
that what is saved is a substantive right
acquired under the repealed enactment and
that the paragraph cannot be invoked in cases
where the substantive right is not taken away
by the repealing Act, but the forum for or the
method of enforcing it is changed. It has, on
the other hand, been maintained that a right
to obtain relief in a suit pending at the time
when the repealing enactment comes into
operation is itslef in the nature of a
substantive right. As we consider that the
third ground of decision adopted by the High
Court, namely, the principle of the ruling in
1905 A.C. 369 [(1905) 1905 A.C. 369] is
sufficient to support the decision of the High
Court, we prefer to rest our decision on that
ground. 1905 A.C. 369 was sought to be
distinguished on behalf of the appellant on
the ground that a right of appeal against a
decree stands on a different footing from a
1 AIR (30) 1943 Federal Court 24
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right to continue a suit to its normal
termination. This may be a difference in the
facts, but we are unable to see any distinction
in principle between the two cases. Their
Lordship's pronouncement emphasises the
limitation to be placed upon the rule,
sometimes broadly stated, that all alterations
in procedure are retrospective, unless there is
some good reason to the contrary. In one
sense, a right of appeal may be spoken of as a
matter of procedure and it is usually provided
for in Codes relating to procedure. But the
decision recognizes that that is not sufficient
to make a legislative provision governing the
right of appeal retrospective."
The same view has been taken by Mr. Justice V.C. Daga in Shalan1
(supra) in para 43.
Another perspective through which the change of Forum can be
considered is to take into consideration the intention of the legislature.
It is equally well settled that if legislature intends to oust the
jurisdiction of the Civil Court, it must do so expressly. Similarly,
pending appeals also remain unaffected by change in the Forum since
1 2009 (3) M.H.L.J. 923
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right of appeal is vested right and that the pending suits are also
unaffected by the change in Forum and lastly validly instituted
proceedings would continue unless the Amending Act stipulates their
return. The view taken in the Judgments in Videocon International
Ltd.1 (supra), Commissioner of Income Tax, Orissa2 (supra), Rajender
Bansal3 (supra) Dewaji4 (supra), United Bank of India5 [para14](supra)
and in Shah Bhujraj Kuverji Oils Mills & Ginning Factory6 has been
accepted by the learned Single Judge Mr. Justice V.C. Daga in Shalan7
(supra).
From the conspectus of the judgments mentioned hereinabove, it
does appear that the learned Single Judge Mr. Justice G.S. Godbole,
who did not concur with the view taken by the learned Single Judge
Mr. Justice V.C. Daga, did not examine the question from the angle of
this settled position in law and concentrated only on interpretation of
the word "entertain" and in support relied upon the Judgments of the
Apex Court and Allahabad High Court wherein this word "entertain"
has been examined. The learned Single Judge (G.S. Godbole, J.) did
not take into consideration the provisions of section 6 of the General
Clauses Act and well settled position in law laid down by the Supreme
Court as to the effect of change of Forum pending appeals and
1 2015 AIR SCW 729
2 1994 Supp (1) SCC 257
3 AIR 2016 SC 4919
4 AIR 1969 Supreme Court 560
5 AIR 2000 Supreme Court 2957
6 AIR 1961 SC 1596
7 2009 (3) M.H.L.J. 923
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pending suits.
42] The third angle is whenever any new Forum is created, it has to
be examined whether it applies retrospectively to pending
proceedings. Unfortunately, the learned Single Judge (G.S. Godbole)
has not examined the entire issue from the angle of retrospective
application. It is well settled that the Statute could not be construed
retrospectively, unless it is said so expressly or by necessary
implication and, at the same time, exclusion of civil jurisdiction is not
to be readily inferred. Further, when proceedings have commenced, it
creates a substantive vested right which cannot be regarded as mere
matter of procedure. The same view is found in the language of
Section 6 of the General Clauses Act, 1897. It is also a settled
principle of interpretation of Statute that the Statute has to be
interpreted in such a manner that it does not take away the action
which has already commenced.
43] From the perusal of the amended Section 15 of the said Act, it
cannot be inferred that all cases which were pending or decided and
pending before the Appellate Court or decided by the Appellate Court
would become nullity on the ground that from the date on which
Section 15 was amended, jurisdiction of the Small Causes Court was
ousted. If such interpretation is given, it would lead to absurd results
and it would be contrary to the well settled principle of purposive
interpretation.
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44] The learned Single Judge G.S. Godbole J. has relied on three
judgments of the Apex Court and two Judgments of Allahabad High
Court and one Judgment of the Gujarat High Court. We will consider
whether ratio of these judgments will apply to the facts of the present
case.
45] Firstly, we will deal with judgments of the Apex Court on which
reliance is placed by the learned Single Judge (G.S. Godbole, J.) The
first judgment on which reliance is placed is in Martin and Harris Ltd.1
(supra). In the said judgment, brief facts were that in the appeal
before the Apex Court, question of maintainability of the application
for possession moved by Respondent No.3 landlord against the
appellant/tenant under section 21(1)(a) of the U.P. Urban Buildings
(Regulation of Letting, Rent and Eviction) Act, 1972 fell for
consideration. Respondent No.3 had purchased the suit property
being Bungalow No.21-C, Ashok Marg, Lucknow, wherein the
appellant-company was occupying area of 9000 sq.ft. as tenant since
28/12/1966. Respondent No.3 was serving in the Indian Army as
Major General. He retired on 01/04/1985. He purchased the
property on 30/06/1985 from his father-in-law. He thereafter gave
notice that he required the property for his residential purpose. He
therefore raised the ground of bona fide requirement. An application
was filed by the landlord under Section 21(1)(a) read with Section
1 AIR 1998 Supreme Court 492
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21(1-A) of the Act. The tenant filed his reply and contended that the
suit was not maintainable since it was filed prematurely and, secondly,
that the suit was not filed after expiry of six months and consequently
the application was not maintainable as per the first proviso to Section
21(1) of the Act. Trial Court, however, decreed the suit of the
landlord. Appellant preferred an appeal but the appeal was also
dismissed. Thereafter, Writ Petition was filed before the High Court of
Allahabad and the question of maintainability was pressed by the
tenant. The High Court, however, took the view that application filed
by the Respondent/landlord was maintainable. The matter thereafter
travelled to the Supreme Court. It was contended on behalf of the
tenant that the term "entertain" as employed by the first proviso to
section 21(1)(a) was synonymous with the word "institute" and that,
at the relevant time, the Court had taken cognizance of the suit for
possession by issuing notice to the appellant and therefore the Court
had entertained the proceedings and such entertaining of the
proceedings was clearly barred by the said proviso. The Apex Court in
the facts of the said case examined meaning of the word "entertain".
The Apex Court in paras 8, 9 and 10 of the said judgment held on
taking into consideration the facts of the said case that no fault could
be found with the decision in entertaining the consideration of
grounds under Section 21(1)(a). The learned Single Judge, however,
relied on some of the observations made by the Apex Court in that
judgment.
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46] In para 43 of his Judgment, the learned Single Judge (G.S.
Godbole, J.), after reproducing paras 8, 9, 10 of the judgment In
Martin and Harris Ltd. (supra) observed that the Court can be said to
have entertained the suit not only on mere filing of the suit but the
relevant date for deciding as to when the suit is entertained would be
the point of time when the Court applies its mind to the merits of the
controversy involved in a suit. It must be noted here that the learned
Single Judge Mr. Justice G.S. Godbole has merely reproduced
paragraphs from various judgments and without discussing as to how
these judgments are applicable to the facts of the present case has
come to the conclusion that the Court entertains the suit for
adjudication only when it considers merits of the case and mere filing
of the suit would not amount to entertaining the suit or application.
The learned Single Judge (G.S. Godbole, J.) has further
reproduced para 6 of the Judgment in Aysha Mohamed and other vs.
Board of Trustees of the Port of Bombay in Writ Petition No.4216 of
2005 and also extracted some observations made by the Full Bench in
Raje Vynkatrao Jagjiwanrao Deshmukh1 (supra). Thereafter the
learned Single Judge has reproduced para 5 of the judgment of the
Apex Court in Bhim Sen2 (supra) and then paras 20 to 24 of the
judgment of the Apex Court in Attiq-Ur-Rehman3 (supra). Thereafter,
in para 33, the learned Single Judge has relied on the judgment of the
1 Vol.LXVII (1965) Bom.L.R. 868
2 AIR 1955 SC 435 (Vol.42)
3 1996(3) SCC 37
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Division Bench of Lahore High Court in Sat Narain Gurwala1 (supra)
and reproduced paras 89, 91 and 92 of the said judgment. He has
then relied on the judgment of the Full Bench of the Patna High Court
in Lachmi Chand Suchanti vs. Ram Pratap Choudhary 2 and reproduced
some of the observations made in the said judgment of the Full
Bench. Reliance was also placed on the judgment of the learned
Single Judge of the Gujarat High Court in Jadeja Shivubha Dolubha3
(supra) who had relied on the Judgment of the Apex Court in M/s.
Lakshmiratan Engineering Works Ltd. vs. Asstt. Commissioner (Judicial)
I, Sales Tax, Kanpur Range, Kanpur & Anr 4 and the judgment in
Hindusthan Commercial Bank Ltd. vs. Punnu Sahu5. The learned Single
Judge (G.S. Godbole, J.) then considered judgment of the Supreme
Court in M/s. Lakshmiratan Engineering Works Ltd. (supra) and
reproduced paras 7 to 10 of the said judgment. He then relied on the
Judgment of Kundan Lal6 (supra) which was approved by the Supreme
Court and relied on paras 4 to 7 of the said judgment. The learned
Single Judge then relied on the Judgment of Division Bench of the
Allahabad High Court in Haji Rahim Bux and Sons7 (supra) and relied
on paras 35 to 38 of the said judgment. The learned Single Judge
then noted the judgment of the Apex Court in Hindusthan Commercial
Bank Ltd.8 (supra) and reproduced para 4 of the said judgment. In
1 AIR (33) 1946 Lahore pg. 85
2 (I.L.R. Vol. XIV page 24
3 1977 Vol.XVIII Gujarat Law Reporter pg 656.
4 AIR 1968 SC 488
5 AIR 1970 SC 1384
6 AIR 1962 Allahabad 547
7 AIR 1963 ALL 320.
8 AIR 1970 SC 1384
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para 44, the learned Single Judge relied on the judgment of Division
Bench of Orissa High Court in Sankar Kumar Bhattar1 (supra) and
reproduced paras 12 to 14 of the said judgment and, finally, the
learned Single Judge relied on the judgment of the Apex Court in
United Bank of India2 (supra) and reproduced paras 20 to 24 of the
said judgment.
Thereafter, in para 52 the learned Single Judge (G.S. Godbole,
J.) has made following observations in respect of judgment of the
learned Single Judge (V.C. Daga, J.)
"52. The learned Single Judge (V.C. Daga, J.) has
observed in paragraph 28 of the Judgment that the
Court of limited jurisdiction must have the jurisdiction
to decide the lis and not only when the lis is instituted
but also when the lis is finally decided. If this be the
correct principle of law, then in my opinion, it is
difficult to agree with the reasoning of the learned
Single Judge in so far as interpretation of the word
"entertain" used in Section 15 of the PP Act, 1971 is
concerned. In my opinion, though the jurisdiction of
the Civil Court was not taken away automatically on
20th December, 1980 after the amendment of the P.P.
Act, 1971 since there was no Special Tribunal
1 AIR 1976 ORISSA 103
2 AIR 2000 Supreme Court 2957
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constituted for hearing Applications for eviction to be
filed by the BPT; on the establishment of the Special
Tribunal on 22nd September, 1989, the jurisdiction of
the Small Causes Court to entertain the suits filed by
the BPT which were pending was taken away. From
that date at least the Small Causes Court lost
jurisdiction to entertain the suits."
47] The learned Single Judge therefore has not considered or has
not given any finding as to why reasons given by the learned Single
Judge Mr. Justice V.C. Daga could not be accepted. The learned
Single Judge (G.S Godbole, J.) also has merely reproduced various
paragraphs of the Judgments of Supreme Court, Allahabad High
Court, Gujarat High Court and Orissa High Court and has not
considered what was the ratio laid down by the Supreme Court and
other High Courts. Further, the learned Single Judge (G.S Godbole)
J.) also has not taken into consideration whether the observation
made by the Apex Court and the other High Courts would be
applicable to the facts of the present case. It is obvious that the
learned Single Judge (G.S. Godbole, J.) has merely examined the
meaning of the word "entertain" and has considered the judgments
which has also considered the term "entertain" and by relying on
certain observations made in those judgments has held that the word
"entertain" does not mean mere filing. Though the reliance was
placed by the learned Single Judge on the judgment of the learned
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Single Judge of the Gujarat High Court in Jadeja Shivubha Dolubha1
(supra), as rightly pointed out by Mr. Aaney, the learned Senior
Counsel appearing on behalf of the Respondents/BPT, the ratio of the
said judgment has been overruled by the Division Bench of the Gujarat
High Court in Mulsing vs. M.C. Ahmedabad2 and therefore, in our view,
ratio of the judgment of the learned Single Judge of the Gujarat High
Court in the said case would not be of any assistance to the
tenants/lessees. In our view, the learned Single Judge (G.S.
Godbole, J.) ought to have considered the question of "jurisdiction to
entertain" instead of concentrating on the definition of the term
"entertain".
48] On the other hand, the learned Single Judge V.C. Daga, J. has
considered various Judgments and also considered the provisions of
Section 6 of the General Clauses Act and has taken into consideration
principles of interpretation of Statute, prospective and retrospective
application of any amendment, providing of ouster of jurisdiction and
whether consequence of amendment affects suits which are already
pending before the Small Causes Court. We are therefore unable to
accept the view taken by the learned Single Judge Mr. Justice G.S.
Godbole and we concur with the view taken by the learned Single
Judge Mr. Justice V.C. Daga.
49] In our view, the real question which fell for consideration was:
1 1977 Vol.XVIII Gujarat Law Reporter pg 656.
2 1977 Gujarat Law Reporter 266
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whether jurisdiction of the Small Causes Court to hear and decide the
suits filed by BPT which were pending was taken away and whether
from that date the Small Causes Court lost jurisdiction to entertain the
suit? Instead of referring the said issue to larger Bench, the learned
Single Judge has framed the following issue:-
"Whether the word "entertain" used in Section 15 of the
Public Premises (Eviction of Unauthorized Occupants)
Act, 1971 can be equated with the word "lodging/filing"
of the Suit or will have to be interpreted to mean
"consideration of merits of the Suit" or "the date of
framing of issues in the Suit".
50] In the result, accepting the submissions of the learned Senior
Counsel Mr. Aaney appearing for the Respondents/BPT and rejecting
the submissions of the learned Senior Counsel Mr. Kumbhakoni
appearing for the Applicant, we hold that the word "entertain" used
in Section 15 of the said Act would mean that the Small Cause Court
would have jurisdiction to hear all such suits for eviction which were
lodged/filed before 21/09/1989 and on the other hand the Small
Causes Court would continue to have jurisdiction to decide those suits
which were pending as on 21/09/1989. The Reference is answered
accordingly. All these matters are remanded to the learned Single
Judge for deciding the other issues.
(C.V. BHADANG, J.) (V.M. KANADE, J.)
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