UNION OF INDIA v. NARESHKUMAR BADRIKUMAR JAGAD & ORS.

p. 283 Copy page pinpoint

sub-letting. We are, therefore, satisfied that in the instant case the tenant has not sublet any portion without the written consent of the landlady after the commencement of the Act…. Mere continuance of possession by the sub-tenants lawfully inducted by the tenant with the written consent of the landlady contained in rent note does not afford any ground to the landlady for eviction of the tenant on the ground of sub-letting, as the tenant has not sublet after the commencement of the Act any portion without the consent in writing of the landlady.” (emphasis supplied) Of all the decisions cited at the bar, this decision is, admittedly, nearest on facts to the present case with the only difference that the sub-letting in the present case was after expiry of the contractual tenancy and after the commencement of the Act prohibiting sub-letting without the written consent of the landlord when it was made on April 1, 1948, while the sub-letting in Mahabir Prasad case was during the period of contractual tenancy when the express written consent of the landlord for sub- letting was available. The principle for application, however, is the same with the only difference in the result since in Mahabir Prasad case the sub-letting was made during subsistence of the contractual tenancy with the written consent of the landlord. It is significant that the judgment in Mahabir Prasad case was by A.N. Sen, J. who also wrote the opinion in Gian Devi case relied on by Dr Chitale as one of the decisions in line with Damadilal case. It is clear that A.N. Sen, J., who wrote the opinion of the bench in Mahabir Prasad case as well as in Gian Devi case did not construe the earlier decisions starting with Damadilal case in the manner read by Dr Chitale. If Dr Chitale is correct in his submission on this point, then the entire emphasis in Mahabir Prasad case on the sub-letting being made during the period of contractual tenancy in April 1974 and not thereafter being decisive of the validity of sub-letting was misplaced and a futile exercise. G In our opinion this was not so and the correct premise is that landlord’s written consent for sub-letting during the period of contractual tenancy cannot be construed as his consent subsisting after expiry of the contractual tenancy. The submission of learned counsel for the appellants runs counter to the clear decision in Mahabir Prasad case which, in our opinion, is in no way contrary H

p. 284 Copy page pinpoint

A to the decisions starting with Damadilal case, the observations wherein are in the context of heritability of the statutory tenancy. In fact, it is rightly not even contended by Dr Chitale that the decision in Mahabir Prasad case runs counter to Damadilal case and other decisions following them. This is sufficient to indicate that the appellants’ contention is untenable.” B We fail to understand as to how the principle expounded in the reported decision will be of any avail to the respondents (Trust). As already noted, it is not a case of subletting by the statutory tenant (Podar Mills Ltd.) but instead a case of involuntary transfer and vesting of rights and interest of the statutory or protected tenant in respect of the suit property in the Central Government by operation of law. In any case, if the Trust intends to proceed against the statutory tenant on the ground of unlawful subletting or such other ground, it will be obliged to initiate eviction proceedings against the Union of India before the competent jurisdictional Rent Court on that count. In the present case, the subject suit for eviction has been instituted against NTC only. Suffice it to observe that the subject suit not having been filed against the Union of India, the statutory tenant as on the date of filing of the suit; and not invoking the jurisdiction of the Rent Court for seeking eviction of the statutory tenant, the decree as passed by the civil court is rendered unenforceable against the Union of India and, in any case, inexecutable due to legal fiction. E

48Copy pinpoint48. The respondents (Trust) may be justified in pointing out that the judgment and decree rendered by this Court has not been nullified by the Validation Act 2014 as such. However, the said decree is not against the real tenant in whom the rights of the statutory tenant had vested and continue to vest. That right could be snapped only by resorting to the dispensation prescribed for in the rent legislation, as the concerned Rent Act continued to apply to the suit property – consequent to vesting of the rights and interest therein in the Central Government.

49Copy pinpoint49. That takes us to the next argument of the respondents that Section 39 inserted in the 1995 Act operates prospectively and would not impact the judgment delivered by this Court on 5th September, 2011. Second, the said provision applies to only subsisting leasehold rights. Taking the last argument first, the same needs to be rejected on the basis of the view already taken by us that the expression “leasehold rights” or “leasehold property” would include tenancy rights or tenanted property in occupation of a statutory or protected tenant as per the applicable

p. 285 Copy page pinpoint

municipal rent legislation at the relevant time. Be that as it may, Section A 39 opens with a non obstante clause and makes it more explicit that the provisions of the Amendment Act, 2014 shall have and shall be deemed always to have effect for all purposes as if the provisions of the Act have been amended by the said Act, had been in force at all material times. It then predicates that no suit or “other proceedings” shall be maintained or continued in any court for the enforcement of any decree or order or direction notwithstanding any undertaking filed by the NTC in any court. Having observed that Section 3 has been amended w.e.f. 1st April, 1994 and upon giving full effect to the amendment, it must necessarily follow that the Central Government had acquired the status of protected or statutory tenant qua the suit property from that date and continue to remain so, and could be evicted only in the manner prescribed by the concerned rent legislation. The decree passed against NTC is on the assumption that the 1999 Act had no application to the suit property as the right had vested in NTC – which did not enjoy the protection of the 1999 Act. Resultantly, it must follow that the subject suit and the proceedings arising from or in relation thereto cannot proceed in law and moreso because NTC is not the real tenant. Further, as the tenancy rights in relation to the suit property continue to vest in the Central Government by operation of law, the provisions of the 1999 Act will be attracted, warranting suit for eviction to be filed against the Union of India before the jurisdictional Rent Court having exclusive jurisdiction to decide the dispute between the landlord and tenant. We must hasten to add that the validity of the provisions of the Validation Act 2014 is not put in issue in the present proceedings and we do not intend to deal with the same. All questions in that behalf are kept open.

50Copy pinpoint50. Reliance was placed on State of Tamil Nadu Vs. State of F Kerala and Another10, (in paragraph Nos. 127, 148 and 149) to buttress the argument that a judicial decision rendered by recording a finding of fact cannot be made ineffective by enacting a validating law, thereby fundamentally altering or changing its character retrospectively. On a bare perusal of relevant paragraphs of this decision, the Court unambiguously found that the judgment was given by this Court in the G context of disputed factual position between the two States in respect of the safety of a Dam for raising the water level. The Court went on to observe that such decision must be binding upon the parties and enforceable according to the decision being a plain and simple decision 10 (2014) 12 SCC 696 H

p. 286 Copy page pinpoint

A on the fact which cannot be altered by the legislative decision. In that case, the validity of the amended Act was put in issue. In the present case, however, we are not called upon to examine the validity of the provisions of the Validation Act 2014.Whether such a legislation is valid or in excess of legislative competence can be examined in an appropriate proceeding. It is open to the respondents (Trust) to challenge the validity B of the Validation Act 2014, if they so desire. For the same reason, the decisions in Madan Mohan Pathak and Ors. Vs. Union of India (UOI) and Ors.11 (in paragraph Nos. 9, 20, 21 and 31) and Shri Prithvi Cotton Mills Ltd. and Ors. Vs. Broach Borough Municipality and Ors.12, will be of no avail to the respondents.

51Copy pinpoint51. In view of the above, we have no hesitation in concluding that it is not a case for taking contempt action for non-compliance of the direction of this Court inasmuch as the basis for issuing such direction has become non-existent in law. Similarly, the fact that NTC has already filed two undertakings with the approval of the Union of India, assuring to vacate the suit property, will be of no effect and cannot be enforced by operation of law. Further, the decree though validly passed at the relevant time by the concerned Court, would be of no avail nor could it be enforced against the Union of India in whom the rights of the protected or statutory tenant stood transferred to and vested in w.e.f 1st April,

1994. The Trust may have to take recourse to appropriate remedy under the provisions of the applicable rent legislation to evict the real tenant, the Central Government. Those proceedings will have to be decided on their own merits in accordance with law, without being influenced by any observation made in the proceedings which have culminated in the judgment under review.

52Copy pinpoint52. Considering the above, we are not inclined to continue with the contempt proceeding or for that matter application for extension of time filed by NTC. As a result, the dictum of this Court in T. Sudhakar Prasad Vs. Govt. of A.P. and Ors.13,(Paragraph Nos. 9 to 22.), Firm Ganpat Ram Rajkumar Vs. Kalu Ram and Ors.14 (Paragraph Nos. 5 G and 6) and Noorali Babul Thanewala Vs. K.M.M. Shetty and Ors.15 (Paragraph 11), will be of no avail. 11 (1978) 2 SCC 50 12 (1969) 2 SCC 283 13 (2001) 1 SCC 516 14 (1989) Supp. (2) SCC 418 15 H (1990) 1 SCC 259

p. 287 Copy page pinpoint

53Copy pinpoint53. The respondents are seriously opposed to showing any indulgence to A NTC in the garb of Review Petition by the Union of India. For, the review petition is hopelessly time barred as there is delay of 837 days coupled with conduct of Union of India in according approval to NTC for filing two successive undertakings in compliance of the direction of this Court. The objection appears to be attractive at the first blush but it B cannot be taken forward, because of the legal fiction introduced by the amendment Act and giving retrospective effect to the event of vesting of the rights of the statutory tenant in respect of the suit property in the Central Government and also rendering the decree and order including the undertaking given by NTC unenforceable. As a result, the decision in the case of Office of The Chief Post Master General and Ors.Vs. C Living Media India Ltd. and Ors.16 (Paragraph Nos.27 to 29), need not detain us.

54Copy pinpoint54. Considering the above, we do not deem it necessary to dilate on other submissions urged by the parties as it would not have any bearing on the conclusion that we have already reached. D

55Copy pinpoint55. To sum up, we hold that as per the amended Section 3 of the 1995 Act w.e.f. 1st April, 1994, by operation of law the statutory or protected tenancy rights of Podar Mills Ltd. in respect of the suit property stood transferred to and vested in the Central Government and it continues to so vest in it and that the decree against NTC including E the undertaking given by NTC has been rendered unenforceable by a legal fiction. As a result, the Trust being the landlord is obliged to take recourse to remedy against the Central Government (Union of India) to get back possession of the suit property, as per the dispensation specified in the concerned Rent Legislation, if it so desires. It is open to the respondents (Trust) to challenge the validity of the Validation Act F 2014, if they so desire.

56Copy pinpoint56. We further deem it appropriate to grant liberty to the Trust to revive the contempt action in the event the challenge to the validity of the provisions of the Validation Act 2014 is upheld and as a result whereof that Act is struck down. We say so because, it is common ground that G the challenge to that Act is pending consideration before the Bombay High Court at the instance of a third party in Writ Petition No.526 of 2015 (Byramjee Jeejeebhoy Pvt. Ltd. & Ors. Vs. Union of India & Ors.) If that challenge succeeds, the position as it stood before the coming 16 (2012) 3 SCC 563 H

p. 288 Copy page pinpoint

A into force of the Validation Act 2014 would get revived and then the judgment of this Court dated September 5, 2011 in Civil Appeal No.7448 of 2011 can be taken to its logical end against the NTC. For the same reason, it is not necessary to continue with the application for extension of time filed by the NTC.

57Copy pinpoint57. Accordingly, we dispose of these proceedings in the following terms: (i) Application for condonation of delay in filing review petition is allowed; (ii) Application for urging additional grounds in the review petition C is allowed; (iii) The review petition is disposed of with liberty to the respondents (Trust) to pursue other appropriate legal remedy as per law; (iv) Contempt petition stands disposed of with liberty to the respondents as aforementioned; D (v) Application for direction filed by the NTC is also disposed of in the above terms; (vi) All applications are disposed of in the above terms. There shall be no order as to costs. E Ankit Gyan Petitions and applications disposed of.