TaxTMI 
TaxTMI 
1973 (11) TMI 82
X X X X Extracts X X X X
X X X X Extracts X X X X
....pass, and can be resolved by a close look at the terms of Ex. '1' (substantially repeated in Ex. '4') and by applying settled rules which tell off a lease from a licence when the deed is ambiguous. It is unfortunate that legal drafting by the respondent's lawmen has left the key documents in a blurred. state, so much so, the trial Judge and the learned judges in appeal have had to diverge in their conclusions, and before us long arguments have been hopefully addressed to help us designate the contract with certitude a lease or license. The defendant (the appellant's father) had for several years been collecting 'tahbazari' dues from the market in Patelganj under contracts from the Municipal Board, the last of which, according to the plaintiff, was executed on 19-11- 44 (Ex. "1"). The defendant's case is that on the expiration of the term of Ex. '1', a fresh contract dated 31-12-47, Ex. '4' was entered into between the parties, substantially repeating the same terms and conditions. On the basis that Ex. '4' had not materialised into a binding contract for want of Government approval, the plaintiff ineffectually demanded ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....with respect to the pavements. So the requirements of section 106 Transfer of Property Act do not came into play as regards the plaintiff's claim for ejectment from the patois. Neither the Rent Control and Eviction Act, nor section 106 Transfer of Property Act saves the defendant as regards plaintiff's claim for ejectment from the patris". Consequent modifications in the monetary part of the decree were also made, following upon a decree for possession to the limited extent of patris and pavements. Both sides have appealed but we have proceeded, for the sake of convenience, to treat the parties as appellant and respondent as in Civil Appeal, No. 1727 of 1968. The primary bone of contention is the lease-licence controversy but even if we decide in favour of Ex. '1' and '4', being settings, the question of the impact of the later Act remains to be decided. There is no simple litmus test to distinguish a lease as defined in s. 105 Transfer of Property Act from a licence as defined in s. 52, Easements Act, but the character of the transaction turns on the operative intent of the parties. To put it pithily, if an interest in immovable property, entitling th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....remises may be used, the reservations or restriction will not necessarily prevent the grant operating as a lease. 1024. WHEN GRANT CONFERRING EXCLUSIVE POSSESSION OPERATES MERELY AS LICENCE. A grant which confers the right to exclusive possession may operate as a licence in the following circumstances which negative the intention to create a lease, (1) [1959] S.C.R. 265. 1025. INSTANCES OF AGREEMENTS CREATING LICENCES'. A licence is normally created where a person is granted the right to use premises without becoming entitled to exclusive possession thereof, or the circumstances and conduct of the parties show that all that was intended was that the grantee should be granted a personal privilege with no interest in the land. If the agreement is merely for the use of the property in a certain way and on certain terms while the property remains in the possession and control of the owner, the agreement will operate as a licence, even though the agreement may employ words appropriate to a lease". Not so much the law as the figment of the terms of a deed into the, legal could makes the forensic essay none too easy. De....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion of the sheds aforesaid detailed in the said map and 11 shops aforesaid". "In all the eleven shops included in the Theka, I, the Thekadar , would be empowered to let them to the subtenants on rents mutually settled between us". All these provisions relate to the shops and sheds only. Shri Sarjoo Prasad, appearing for the respondent Board, drew our attention to the controls and regulations vested in the Board. These marginal restrictions cannot cancel the effect of the clauses already read which cannot be reconciled with a straightforward grant of a mere 'right to realise market fees. The municipal mind., if we may say so, went beyond the area of prudence if a licence was the intent. We are satisfied that the shops and sheds in Ex. 1 and as reconstructed by the time of Ex. 4 are the subject matter of a lease, not licence only. It is not without significance' that Ex. 4 presupposes, when making reference to the expiry of the term, the application of the Act, which is compatible only with the creation of a lease. These two deeds, however, cover other areas, and 'there is the rub'. The thekanama relates to patris (sidewalks) and footpaths.....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... have no objection to the municipality, constructing chabutras and iron gates implies the former's possession, not mere use. The reference in the map to the green pavements and roads 2 and 3 as 'land leased out but public has got right of easement over it' has a clear 'demise' impact over the extra space beyond the shops and sheds. It may be mentioned that there was a fire in the market place which gutted many structures.. On extensive reconstruction some yellow strips and the 'green' roads 2 and 3 were obliterated and yet these reconstructed buildings were made over to the contractor. There are other features pressed by one side or, the other, but the over-all effect is that the green and yellow portions outside the shops and buildings in Ex. 1 were also leased out. The green areas though not expressly specified in Ex. 1 or Ex. 4 are clearly covered by the lease, for the reference at the foot of the map. and the circumstance that on reconstruction after the fire the roads Nos. 2 and 3 marked green were built upon and made over to the thekedar are sufficient to hold that way. Internal, connecting walks within a market or a park or entertainment complex c....
X X X X Extracts X X X X
X X X X Extracts X X X X
....over. The result is that though on a different basis the decree for eviction granted by the High Court, except for the green coloured pavements, is correct. Now comes the additional ground taken before us based on the passage of the later Act. It is admitted that, by frequent amendments, the duration of the Act was extended from time to time till at last it was to expire on September 30, 1972. Some time before this date the later Act, a permanent statute, was put on the Statute Book which by s. 43 repealed the Act of 1947 and by s. 2 excluded from the scope of the protection of the Act accommodation belonging to local bodies. It is useful to extract ss. 2 and 43 at this stage : "2' Exemptions from operation of Act.-(1) Nothing in this Act shall apply to- (a) any building belonging to or vested in the State Government or the Government of India or any local authority; or * * * * * "43. Repeal and savings.-(1) The United Provinces (Temporary) Control of Rent and Eviction Act, 1947 (U. P. Act No. III of 1947) is hereby repealed. (2 ) Notwithstanding such repeal- * * * * * We havein this case....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pealed; or (e) affect any remedy, or any investigation or legal proceeding commenced before the repealing Act shall have come into operation in respect of any such right, privilege, obligation, liability; penalty, forfeiture or punishment as aforesaid: and any such remedy may been forced and any such in investigation or legal proceeding may be continued and concluded, and any such penalty, forfeiture or punishment imposed as if the repealing Act had not been passed." If a contrary intention appears from the repealing statute, that prevails. It was pointed out to us that s. 2 of the later Act specifically states that : "Nothing in this Act shall apply to- (a) any building belonging to or vested in............ any local authority." Even so, we have to read this provision in conformity with s. 43 which repealed the Act viz. U. P. Act No. 3 of 1947. Section 43(2) is the savings clause. If the repealing enactment, as in this case, makes a special provision regarding pending or past transactions it is this provision that will determine whether the liability arising under the repealed enactment surv....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion from any accommodation except on one or more of the following grounds........................" it is more a procedural disability that is cast, not a substantive cause of action that is created. Citing the authority in Haripada Pal Ghosh v. Tofajaddi Ijardar (1), he argued that by operation of the repeal,. the restriction on his right is removed and so he can now support his present action even if previously the Act had barred it. It is true that a Division Bench of the Calcutta High Court in the case cited, dealing with a situation where an Act had been repealed by another, observed:-- "The disability, which was imposed by the previous law having been removed, there was nothing that stood in the way of the plaintiffs recovering rent at the contract rate, when (1) 60 I.L.R. [1933] Cal. 1438. the cause of action for the same arose. The effect of substitution of the new section 48 for the old section 48 by section 31 of Act IV of 1928, was that the old section was repealed. The effect of repeal of a statute in the absence of saving clauses is that it has to be considered as if the statute, so repealed, had never existed." There is....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ld otherwise would be to give more quantum of right to the party than he would have enjoyed had the repeal not been made. Not to affect the previous operation cannot be converted into sanctioning subsequent operation. To read postmortem operation (1) [1951] 1 All E.R. 166; 169. 602 Sup CI/74 into a temporary. Act because of a premature repeal of it is wrong. To adopt the words Jagannadhadas, J. in Indira Sohanlal v. Custodian of Evacuee Property, Delhi and others (A.I.R.1956 C.Vol 43,77at84) has observed :- "What in effect, learned counsel for the appellant contends for is not the "previous operation of the repealed law" but the "future operation of the Previous law." On this footing the right, if any, that the defendant claims terminates with the expiration of that temporary statute. The only further question is whether it is permissible for this Court to take note of the extinguishment of the statutory tenancy at this stage and grant relief to the appellant accordingly. The leading case of Lachmeshwar Prasad Shukul and others v. Keshwar Lal Chaudhuri and others (A.I.R. 1941 Federal Court Vol. 28, p. 5 at 6.) lays down the law on the point. Gwyer, C. J., q....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lied retrospectively. All that we hold is (a) that a disability of the plaintiff to enforce his cause of action under the ordinary law may not necessarily be transmuted into a substantive right in the defendant, (b) that rights of a statutory tenant created under a temporary statute, as in this case, go to the extent of merely preventing the eviction so long as the temporary statute lasts, (c) that the provisions of s. 43 do not preserve, subsequent to repeal, any right to rebuff the plaintiff's claim for, eviction and (d) that S. 6 of the General Clauses Act does not justify anything longer or for any time longer than s. 2 of the Act confers or lasts. It-is appropriate for a Court to do justice between parties to the litigation and in moulding the relief in the light of the subsequent developments, to take note of legislative changes. A court of justice should, if it could, adjudicate finally and not leave the door ajar for parties to litigate again. In the present case, it is not seriously disputed that if the plaintiff were to sue for recovery of possession today, the Rent Control Law does not stand in the way. Therefore, it is manifestly a measure of doing justice between t....