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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 1778 OF 2010

HARKESH CHAND                          ... APPELLANT

VERSUS

KRISHAN GOPAL MEHTA & ORS.                        ... RESPONDENTS

JUDGMENT

S. A. BOBDE, J.

This is a tenant’s appeal.  In the impugned judgment, the High

Court directed the tenant to be evicted.  The Trial Court dismissed the

suit for eviction filed by the respondent-landlord.  The First Appellate

Court dismissed the landlord’s appeal.  In the Second Appeal, the High

Court reversed the concurrent findings of both the courts below.

2. The tenancy is in respect to a small shop situated in a rural area

in the village of  Daishwala,  Doiwala  Town, located in the Dehradun

district of Uttarakhand. On the 19th of September, 1972, the landlord

issued a notice terminating the tenancy of the shop under Section 106

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of the Transfer of Property Act, 1882, and demanded the possession  

of the shop.   

3. The  landlord  filed  the  present  suit  for  eviction  on  the  1st of

October 1972.  The Court  of  Civil  Judge (Junior Division),  Dehradun

dismissed Small Cause Case No.85 of 1972 with costs.  The Trial Court

held that even though The United Provinces (Temporary) Control  of

Rent and Eviction Act, 1947 (U.P. Act No. III of 1947 ) hereinafter

referred  to  as  “the  Act  of  1947”  had  been  repealed  by  the

aforementioned  date  and  replaced  by  a  new  rent  act1 hereinafter

referred to as “the Act of 1972” which was brought into force on the

15th of July, 1972, the old act applied to the suit property.

4. The Additional  District Judge, Dehradun, dimissed the revision

petition No. 43 of  1976 filed by the landlord.  It  was  held that  the

notification by which the provisions of the old act were applicable to

the Doiwala area in the year 1949 continued and remained in force on

the date when the notice of termination of the tenancy was issued.

Accordingly, the tenancy was protected by the Act of 1947.

5. The  landlord  approached  the  High  Court  of  Judicature  at

Allahabad by way of Writ Petition No. 25951 of 2000. This writ petition

1 The Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 2

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was  transferred  to  the  High  Court  of  Uttarakhand  at  Nanital  and   

re-numbered as Writ Petition No. 4882 of 2001.

6. The High Court of Uttarakhand upheld the landlord’s plea that

the  notice  which  terminated  the  tenancy  of  the  shop  under  the

provisions of the Transfer of Property Act, 1882 was valid.  The High

Court held that the old Act under which the Doiwala area was covered

by a notification had been repealed and replaced by the new Act.  The

old Act of 1947 did not cover the rural areas that are not specially

notified.  The special notification with respect to Doiwala area came

into  existence  only  on  the  23rd of  January,  1973  and  therefore,

between  the  15th of  July,  1972  (when  the  old  act  along  with  its

notification stood repealed), and the 23rd of January, 1973 (when the

notification was  issued),  there  was  no protection  to  the  tenants  in

Doiwala area under any law. Thus, the notice terminating the tenancy

was valid.  Accordingly, the High Court allowed the writ petition and

set aside the orders of the Trial Court and the Revision Court by which

the landlord’s suit was dismissed.  

7. Aggrieved by the order of the High Court that decreed the suit

for eviction filed by the respondent-landlord, the appellant approached

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this Court.  This Court granted special leave to appeal, and hence this

appeal.

8. The questions that fall for consideration before us are -  

(i) Whether  or  not,  the  tenancy  in  question  is  protected  by  Act

No.III of 1947.

(ii) Whether or not, the notification dated 31st of March 1949 which

applied the provisions of the Act of 1947 to Doiwala town was in force

on the 19th of September, 1972, i.e. when the landlord terminated the

tenancy and sought possession of the suit premises.

(iii) Whether or not, Section 24 of the U.P. General Clauses Act, 1904

continued  the  notification  dated  31st of  March  1949  that  protects

Doiwala town by applying the provisions of the Act of 1947.

9. A  similar  notification  was  issued  under  the  re-enacted  Act  of

1972 on the 21st of March, 1973.  The Act of 1947 was a temporary

statute enacted to control the letting and renting of property as well as

to  prevent  the eviction of  tenants  from such accommodation.   The

provisions of the Section 3 (c) of the Act of 1972 inter alia restricted

evictions without the permission of the District Magistrate which could

be granted only on the grounds specified in the Act.   

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10. The Act of 1947 was extended from time to time and was in

force when the Act of 1972 was enacted.   

Sub-section (2) of Section 1 of Act No.III of 1947 provided as

follows:-

“Section 1…

(2) It  extends  to  the  whole  of  the  United Provinces and applies to every Municipal Area and Cantonment  Area  and  to  every  Notified  Area contiguous to such municipal area or cantonment area  and  to  accommodation  situated  within  one mile of the boundaries of any such municipal area, cantonment  area  and  notified  area,  and  to  such other area as the Provincial Government may, from time to time, notify in the official Gazette in this behalf. “                                              (emphasis supplied)

Sub-section  (3)  brought  the  Act  into  force  on  the  1st day  of

October, 1946.  It provided as follows:-

“(3) It shall apply to-

(a) every city as defined in the Uttar Pradesh   Nagar Mahapalika Adhiniyam, 1959;

(b)  every municipality as defined in the United   Provinces Municipalities Act, 1916;

(c) every  notified  area  constituted  under  the   United  Provinces  Municipalities  Act,  1916;   and

(d) every  town  area  constituted  under  the   United  Provinces  Town  Areas  Act,  1914.”   

Sub-section  4,  which  provided  for  its  expiry  on  the   

30th September, 1948, read as follows:- 5

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“(4) It shall cease to have effect on the expiry of September  30,  1948,  except  as  respects  things done or omitted to be done before the expiration thereof,  and  Section  6  of  the  United  Provinces General  Clauses Act,  1904,  shall  apply  upon the expiry of the Act as if it had then been repealed by an United Provinces Act.“

Section  43  of  the  Act  of  1972  repealed  the  Act  of  1947.   

Sub-section (2) of Section 1 of the Act of 1972 extended the Act of

1972 to the whole of Uttar Pradesh.

11. A notification under Section 1 (1) of the Act of 1972 declaring

that the Act shall apply to Doiwala town area was issued on the 21st of

March,  1973.   Even  though,  the  subsequent  Act  is  essentially  a   

re-enactment of  the earlier  Act  of  1947,  the landlord acted on the

presupposition that with the repeal  and re-enactment of  the Act of

1947 on the 15th of July, 1972, the notification dated 31st March, 1949

also ceased to exist, thus assuming that there was no law restricting

the eviction of tenants in the Doiwala area during the period between

the two notifications;  ergo,  terminating  the  tenancy  on the 19th of

September, 1972.  

(a) As stated earlier, the primary question before us is as to whether

or not there existed a protection of tenants in the Doiwala area under

Act No.III of 1947 by virtue of the notification dated 31st March, 1949  

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The  answer  to  this  depends  on  whether  Section  24  of  the   

U.P.  General  Clauses  Act,  1904  continued  the  notification  dated   

31st March, 1949.

12. Shri Nikhil Goel, Advocate for the appellant, contended that by  

virtue of Section 24 of the U.P. General Clauses Act, the notification

dated 31st March, 1949 that applied Act No.III of 1947 to the Doiwala

area continued even after the expiry of the Act.  Thus, the protection

to the tenants in the Doiwala area also continued and was in force on

the 1st of October, 1972, when the suit was filed.  The protection of the

tenants under the 1947 Act continued throughout and in any case up

to the issue of the notification dated 23rd of January, 1973, under the

Act No. XIII of 1972. It made no difference that the new Act of 1972

was  specifically  applicable  to  Doiwala  town  area  by  the  aforesaid

notification.   As  long  as  there  was  nothing  inconsistent  in  the

notification dated 31st March, 1949 with the re-enacted provisions of

the Act of 1972, the notification continued in force by virtue of Section

24 of the U.P. General Clauses Act, 1904.   

13. Thus, it was submitted that at all times, and particularly on the

date when the notice was issued on the 19th of September, 1972, and

the date when the suit for eviction was filed on the 1st of  October,

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1972, the appellant’s tenancy in the Doiwala town area was protected

by the notification issued under Act No. III of 1947.  The notice issued

by the respondent-landlord terminating the tenancy under Section 106

of the Transfer of Property Act was not valid and hence, the suit filed

on the basis of such a notice was not tenable.

Applicability of U.P. Act No. III of 1947 to Doiwala Area

14. It is clear from sub-section (1) and sub-section (2) of the Act of

1947 that it extended to the whole of the erstwhile United Provinces

and applied to  every  municipal  area,  cantonment  area and notified

area  as  per  the  provincial  government  notification  in  the  official

gazette.  Undisputedly, the Governor declared that the provisions of

Section 2, 3(a), 4, 5, 6, 8, 11, 12 and 16 of the Act shall apply to

Doiwala town located in Dehradun by a notification dated 31st March,

1949 because this notification has never been expressly repealed.

Whether the notification dated 31st March, 1949 continued by virtue of Section 24 of the U.P. General Clauses Act, 1904

15. The question  whether  the  notification dated  31st March,  1949

continued  to  exist  even  after  the  Act  was  repealed  upon  the

reenactment of the Act of 1972 may be considered.

Section 24 of the U.P. General Clauses Act, 1904:- 8

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“24. Continuation  of  appointments,  notifications, orders, etc., issued under enactments repealed and re-enacted.  –  Where  any  enactment  is  repealed and re-enacted by an [Uttar Pradesh] Act, with or without  modification,  then,  unless  it  is  otherwise expressly provided, any appointment, [or statutory instrument or  form],  made  or  issued  under  the repealed  enactment,  shall,  so  far  as  it  is  not inconsistent  with  the  provisions  re-enacted, continue  in  force,  and  be  deemed to  have been made or issued under the provisions so re-enacted, unless  and  until  it  is  superseded  by  any appointment,  [or  statutory  instrument or  form] made  or  issued  under  the  provisions  so   re-enacted.”

                (emphasis supplied)

16. A  plain  reading  of  the  above  provision  suggests  that  any

statutory instrument (which a notification is) issued under the repealed

enactment continues in force as if it were issued under the re-enacted

provisions to the extent that it is not inconsistent with the re-enacted

provisions.   Such continuance exists  till  the statutory instrument  is

superseded  by  a  statutory  instrument  issued  under  the  re-enacted

provisions.   

17. It is therefore necessary; to see whether the notification dated  

31st March, 1949, issued under the Act of 1947 is inconsistent with the  

re-enacted  provisions  of  the  Act  of  1972.   Obviously,  if  the  1949

notification cannot stand along with the re-enacted provisions and is

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inconsistent with them, it cannot be said to have been continued in

force by virtue of Section 24 of the U. P. General Clauses Act, 1904.  

18. The Governor of the erstwhile United Provinces, through the said

notification, simply declared that the provisions of Sections 2, 3 (a), 4,

5, 6 etc. shall apply to Doiwala town in Dehradun district.  The effect

of  this  notification  thus,  was  that  the  protection  to  the  tenants   

offered by Section 3 (a) i.e.  the restrictions on eviction, applied to

Doiwala town.   

19. We find nothing inconsistent between the protection accorded to

the tenants under the Act of 1947 as applied to Doiwala town by the

notification dated 31st March, 1949, and the protection accorded to the

tenants in the re-enacted provision of the Act of 1972, both of which

regulated  the  eviction  of  tenants  in  the  whole  of  Uttar  Pradesh.

Section  21  of  the  later  act  provided  the  same  restrictions  on  the

eviction of tenants on specified grounds that Section 3 (a) of the 1947

Act did.  Thus, there is no inconsistency whatsoever found between

the two provisions.  We also, do not find any express provision to the

contrary in the subsequent enactment.

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20. The provisions of an Act, and a conditional legislation such as a

notification,  belong  to  a  different  order  of  things.  A  statutory

instrument (i.e. the notification) itself does not enact the protection to

the  tenants.   The Act  of  1947  does  that.   The  notification  merely

makes the enactment applicable to the Doiwala area.  Apparently the

purpose  of  the  re-enacted  provision  is,  inter  alia,  to  protect  the

tenants from eviction, except on special grounds.  Nothing in the Act

shows that such a protection was intended to be removed from any

area or for that matter, the Doiwala area.  In fact, the contrary is clear

from the  fact  that  a  notification  expressly  applying  the  re-enacted

provisions to the Doiwala area was issued on the 21st of March, 1973.

     Thus, there can be no inconsistency between the notification

applying the Act to the Doiwala area, and the re-enacted provisions of

the  Act  unless  the  Act  of  1972  clearly  expresses  an  intention  to

remove the protection accorded to the tenants from an area.   

21. Section 24 of the General Clauses Act, 1904 clearly provides that

a  statutory  instrument  issued  under  a  repealed  enactment  shall

continue in force and be deemed to have been made or issued under

the re-enacted provisions unless  

(a) the re-enacted provision expressly provides otherwise  

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or

(b) it  is  superseded  by  a  statutory  instrument  made  under  the   

re-enacted provision

The  section  further  provides  that  the  extent  to  which  the

statutory instrument under the repealed enactment shall continue is

“so far as it is not inconsistent with the re-enacted provisions.”   

22. We find that  none of  the conditions  which derogate from the

continuation of the notification exist in the present case.  There is no

express  provision to  the  contrary, there  is  no supersession by any

statutory  instrument  under  the  re-enacted  provisions  and  there  is

nothing inconsistent in the continuance of the notification with any of

the re-enacted provisions.   

23. At this stage, it is apposite to consider the central purpose of the

General Clauses Act in relation to a statute.  In The Chief Inspector of

Mines and Anr vs. Lala Karam Chand Thapar Etc2., this Court stated its

purpose as follows:-

“…it  will  be  profitable  to  remember  that  the purpose of the General Clauses Act is to place in one single  statute different  provisions  as regards interpretations of words and legal principles which would otherwise have to be specified separately in many different acts and regulations. Whatever the General Clauses Act says, whether as regards the

2 (1962) 1 SCR 9 12

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meanings of words or as regards legal principles, has  to  be  read  into  every  statute  to  which  it applies.”

24. The decision of this Court in The State of Bombay vs. Pandurang

Vinayak Chaphalkar and Ors3, throws a light on the present case. The

Building Control Ordinance, enacted in 1948 empowered the provincial

Government  to  extend its  provisions  to  any  other  area  as  may be

specified  by  notification.   A  notification  was  issued  on  the  15th of

January, 1948 extending the provisions of the Ordinance to Ratnagiri

district.   

The aforementioned  Ordinance was repealed  by an Act  which

contained a provision empowering the State Government to issue a

notification to extend the Act to any other specified area.  The Act

provided  that  the  Bombay General  Clauses  Act  would  apply  to  the

repeal as if the Ordinance were an enactment.

The  respondent  started  constructing  a  cinema  at  Ratnagiri

district on the 15th of August, 1948, after the commencement of the

Act. Since the district of Ratnagiri was not specified in the Schedule to

the  Act,  the  respondent  assumed  that  the  Act  did  not  apply  to

3 (1953) 4 SCR 773 13

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Ratnagiri.   As  a  result,  the  construction  was  carried  out  without

obtaining the permission of the Controller.

The  High  Court  acquitted  the  respondent,  and  the  State

preferred an appealed to this Court.  This Court held that, by virtue of

the repealing provision and Section 25 of the Bombay General Clauses

Act,  1904  which  is  in  pari  materia with  the  provisions  of  the  U.P.

General Clauses Act, 1904, the notification issued under the Ordinance

continued  in  force  under  the  Act  (XXXI  of  1948).   Therefore,  the

provisions of the Act stood extended to the other areas as indicated in

the notification.  The appeal was allowed and the judgment of the High

Court was set aside.

25. We find that the ratio in the above case squarely applies to the

present case. An identical notification extending the provisions of an

earlier enactment to an area was issued through an Ordinance. Though

the  repealing  Act  was  not  specifically  extended  to  that  area,   

it  was  held  that  the  notification  under  the  earlier  enactment   

continued in force under the new enactment by virtue of the General

Clauses Act, 1904.

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26. In The Chief Inspector of Mines case (supra), the question that

fell for consideration was whether or not the regulations framed under

the Mines Act, 1923 (for short, “the 1923 Act”) continued in force after

its repeal by the Mines Act, 1952.  The accused was prosecuted for the

violation of the regulations framed under the 1923 Act.  The appellants

applied for the quashing of the criminal proceedings on the ground

that they were prosecuted for the breach of the regulations that had

ceased to exist by the repeal of the Mines Act, 1923.  The regulations

were “as if enacted in this Act”, and therefore, repealed along with   

the 1923 Act.   

     This Court held that though the regulations were a part of the

1923  Act  for  some  purposes,  but  for  the  purpose  of  continuity  of

existence they would not be considered a part of the Act:-  

“… even though the Act is repealed, the regulation will  continue  to  exist,  in  accordance  with  the provisions of Section 24 of the General Clauses Act 1904.”4   

Section 24 was given full effect for holding that the regulations

or rules framed under a repealed law would continue in force in spite

of the repeal. Expounding on the purpose of Section 24 of the General

Clauses Act, 1904, the Court held:-                             

4 Page 19, (1962) 1 SCR  9 15

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“One may pause here to remember that regulations framed  under  an  Act  are  of  the  very  greatest importance.  Such  regulations  are  framed for  the successful  operation  of  the  Act.  Without  proper regulations,  a  statute  will  often  be  worse  than useless.  When  an  Act  is  repealed,  but   re-enacted, it is almost inevitable that there will be some  time  lag  between  the  re-enacted  statute coming  into  force,  and  regulations  being  framed under the re-enacted statute. However efficient the rule making authority may be, it is impossible to avoid some hiatus between the coming into force of the re-enacted statute and the simultaneous repeal of  the  old  Act,  and  the  making  of  regulations. Often,  the  time  lag  would  be  considerable.  Is  it conceivable that any legislature, in providing that regulations made under its statute will have effect as if  enacted in the Act,  could have intended by those words to say that if ever the Act is repealed and re-enacted (as is more than likely to happen sooner  or  later),  the  regulations  will  have  no existence for the purpose of the re-enacted statute, and thus the re-enacted statute,  for  some time   at least, will be in many respects, a dead letter.”5

27. We are  in  respectful  agreement  with  the  above observations.

Applying the said observations to the present case, it must be held

that the notification under the 1947 Act continued in spite of its repeal

and the enactment of the 1972 Act. It cannot be said that in the hiatus

between the repeal of the 1947 Act and the issuance of a notification

applying the 1972 Act to the Doiwala area, the Legislature intended

that the tenants had no protection from eviction and there was an

unrestricted right to evict them.  

5 Page 20, (1962) 1 SCR  9 16

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28. This  Court  construed  Section  24  of  the  General  Clauses  Act

1904, in a similar way in Neel alias Niranjan Majumdar vs. The State

of West Bengal6.  It was held that though the offence of the possession

of a sword would allege to have been committed in 1970, i.e. after the

repeal  of the Arms Act,  1878,  the notification dated 19th of  March,

1923 issued under the repealed Arms Act of 1878 would continue in

force and would be deemed to have been enacted under the new Act

by virtue of Section 24 of the General Clauses Act, 1904.

29. This  Court  has  taken  a  concurrent  view  in  State  of  Punjab

vs. Harnek Singh7.

30. In the result, we hold that the old Act, i.e. the Act No.III of 1947

applied  to  the  Doiwala  area  by  virtue  of  notification  dated  31st of

March, 1949, when the suit for the eviction of the appellant was filed.

The suit is untenable for the want of permission under the provisions

of the U.P. Act No. XIII of 1972 and is liable to be dismissed.  However,

having heard the learned counsels for both sides on the point, and in

view of the circumstances of this case, as well as in the interest of

justice, we direct that the appellant-tenant shall hand over possession

of the premises to the respondent after a period of three years from

6 (1972) 2 SCC 668 7 (2002) 3 SCC 481

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today. The premise admittedly belongs to the respondent, which he

bona fide needs after the said period. Till the time the appellant hands

over  the  possession  to  the  respondent,  the  appellant  shall  pay  a

monthly rent of Rs.4,000/- to the respondent.

Accordingly, the appeal is disposed off.

….………………………………..J. [S.A. BOBDE]

….………………………………..J. [ASHOK BHUSHAN]

New Delhi February 13, 2017

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