<NAME>, J.

1. This appeal is brought from a judgment of <ORG> at Lahore dated March 28, 1944, which was delivered on a reference made by the Commissioner of Income-tax, West Punjab, N.W.F. and Delhi Provinces, under Section 66 (3) of the Indian Income-tax Act (XI of 1922) pursuant to a mandamus issued by the same Court on April 8, 1941.

2. The appeal raises somewhat complicated questions of procedural and substantive law and it is necessary to state the facts at some length.

3. The respondent, <ORG>, which will generally be referred to as "the respondent," was created by one <NAME> in the year 1898 and it appears to have been assessed to, and to have paid, income-tax on the income, profits or gains of its property, from the year 1917-18 to the year 1931-32. But in respect of its assessment for the year 1932-88 it raised an objection on the ground that it was exempt from taxation by virtue of Section 4(3)(i) of the Indian Income-tax Act already mentioned, which provides:

This Act shall not apply to the following classes of income :

(i) any income derived from property held under trust or other legal obligation wholly for religious or charitable purposes....

4. This claim led to a reference to <ORG> at Lahore under Section 66 of the Act. That Court, on June 4, 1935, held, contrary to the contention. of the respondent, that its income was not exempt from tax The respondent appealed to His Majesty in Council, and <ORG>, after referring the matter back to the Commissioner for further findings of fact, on June 13, 1939, reversed the judgment of <ORG> and held that the income, in respect of which the respondent had been assessed for the year in question, was exempt from tax. Their Lordships' decision is reported in tribune <CITATION> (1939) L.R. 66 I.A. 241 : S.C. 41 Bom. L.R. 1150.

5. The assessments of the respondent's income for the years subsequent to 1932-33 were held in abeyance pending the judgment of <ORG> in the matter of the assessment for that year, but after its judgment in June, 1935, assessments were completed in accordance therewith and payments were duly made by the respondent in respect of the assessments for the years 1933-34, 1934-35, 1935-36, 1936-37, 1937-38,1938-39, and also in respect of supplementary assessments for the years 1931-32 and 1936-37.

6. The history of these assessments is briefly as follows :

1931-32. A supplementary assessment was made under Section 23(4) read with Section 34 of the Act on November 14, 1936. An appeal to the Assistant Commissioner was dismissed as no appeal from an order under Section 23(4) was then competent, and an application to the Commissioner under Section 33 was also rejected.

1933-34 and 1934-35. Orders of assessment were passed under Section 23(3) on September 4, 1935. The respondent appealed to the Assistant Commissioner under Section 31 and its appeals were rejected on August 31, 1936. No further action was taken by the respondent.

1935-36. The assessment was made under Section 23(3) on January 27, 1936. No appeal was filed.

1936-37. The assessment was made under Section 23(3) on November 11, 1937. An appeal was rejected by the Assistant Commissioner on May 14, 1938, No further action was taken by the respondent.

1937-38. The assessment was made under Section 23(3) on January 26, 1938. No appeal was filed.

1938-39. The assessment was made under Section 23(3) on October 26, 1938. No appeal was filed.

7. The relevant dates of the different stages of these assessments are tabulated below :

Date of Date of Appellate order Assessment year Assessment Payment. dismissing order. appeal 1931-32 supplementary. 24-11-36 22-1-37 22-7-37 1988-34 4-9-35 21-10-35 31-8-36 1934-35 4-9-35 21-10-35 31-8-36 1935-36 27-11-30 4-1-37 ... 1930-37 11-9-37 4-10-37 14-5-38 1936-87 supplementary. 26-10-38 8-12-38 ... 1937-38 20-1-38 26-3-38 ... 1938-39 20-10-38 7-1-38 ... 8. It is not disputed that all these assessments had been made and had become final and conclusive before this <ORG> gave its decision in respect of the assessment for the year 1932-33. 9. On August 30, 1939, the respondent wrote to the Commissioner of Income-tax, the present appellant, submitting that in view of this decision of the <ORG> all|the assessments above mentioned should be cancelled. The material part of his letter is as follows :

In this connection I have further to submit that in view of the same order our assessment for the years referred above should also stand cancelled. You will, therefore, very kindly review those orders and grant us the refund due to us. All these assessments with the exception of supplementary one made under Section 84 for the year 1931-32, relate to the years subsequent to the year for which our appeal has been accepted by <ORG>. The supplemenry assessment for the year 1981-32 was also made after the year 1932-33 and as such that too was illegal and has to be set aside. For your convenience I have prepared a statement showing the refund due to us for the remaining years.

10. This letter was followed by a letter dated October 25,1939, from the respondent's advocate in which he requested that the appellant would treat the earlier letter "as a joint petition under Section 83 of the Indian Income-tax Act" and praying that the assessments in question might be quashed.

11. At this stage it is relevant to note precisely what course the Commissioner took; for some argument has been founded upon it. He appears to have treated it as a matter of course that his consideration of the matter should be invoked under Section 38 and he made an order, so describing it, on November 23,1939, in the following terms :

In accordance with the recent decision of <ORG> a refund has been granted to the assessees in respect of their assessment for the year 1932-33. The present petition relates to the assessments for 1931-32 (supplementary), 1933-34, 1934-85, 1935-36, 1937-38 and 1938-39. It was open to the assessees to keep those assessments alive by having them included in the reference to <ORG>. As they did not do so, I can see no reason for re-opening the assessments at this stage.

12. Their Lordships will at a later stage comment on the terms of this order.

13. Disappointed by this failure, the respondent on January 22, 1940, filed seven petitions (one in respect of each assessment) to the appellant praying him to state a case and refer it to <ORG> at Lahore under Section 66(2) of the Act on two questions of law which were said to arise under the said order. These questions were in substance (1) whether the assessments in question should not have been quashed under Section 33 of the Act in view of the decision of <ORG> in regard to the 1932-33 assessment and (2) whether the order of November 23,1939, refusing to reopen the assessments was legally correct.

14. On April 9,1940, the Commissioner dismissed these petitions declining to state a case as in his opinion there was no question of law arising which was a proper subject for reference under the section. To this aspect of the case their Lordships will later recur.

15. The respondent then moved <ORG> by seven separate applications {one in respect of each assessment) praying that the Commissioner might be required Tinder Section 66(3) of the Act to state a case on certain questions which were alleged to arise out of his said order of November 23, 1939, On April 3, 1941, <ORG> acceded to these applications and directed the Commissioner to state a case for reference under Section 66 upon the following questions which it thus reformulated :

(A) Whether there were any remedies open to the assessee by which he could have kept the assessments alive for the purposes of demanding a refund under Section 33 ?

(B) Whether the matter of the assessability of the assessee was not res judicata by reason of the <ORG> decision....?

(C) Whether, in view of the matter between the parties being assessability of the assessee, assessments made subsequent to the year 1932-33 are not ultra vires and, therefore, no assessment in the eye of the law at all?

16. Pursuant to this direction the Commissioner on April 1, 1943, stated a case and in effect gave his opinion upon the several questions as follows :(A) Yes ; (B) not as regards any assessment except that for the year 1932-33; (C) the assessments were not ultra vires. He also made some further observations upon the question <NAME> in the circumstances of the case a reference lay, and made a preliminary submission that it did not lie.

17. The reference was duly heard by <ORG>, and on March 3,1944, judgment was delivered by <NAME>, with whom <NAME> agreed. It is significant of the difficulties of the ease that once more the questions were formulated and were re-stated in the following form:

(1) Whether the assessments made subsequent to the years 1932-33 including the supplementary assessment for the year 1031-32 were a nullity in view of the decision of their Lordships of <ORG>...?

(2) Whether the Commissioner of Income-tax acted improperly in refusing to exercise the discretion vested in him to cancel the said assessments and to order the repayment of the sums received from the assessors on account of those assessments?

(3) Whether the assessees could be denied the relief claimed by them under Section 38 of the Income-tax Act on any valid ground?

18. <ORG> rejected the preliminary submission of the Commissioner holding that its own. previous decision on this matter could not be questioned, and upon the questions as restated in the case held in favour of the respondent (1) that the assessments in question were a nullity; (2) that the Commissioner had acted improperly in refusing to exercise the discretion referred to; and (3) that the respondent could not be denied the relief claimed by him under Section 33 on any valid ground. From this decision the present appeal has been brought.

19. Reference must now be made to the relevant sections of the Indian Income-tax Act , and, while, strictly, the only matters of appeal are the questions as finally settled in the case stated, it will not be found possible to avoid reference to the jurisdictional point which formed the subject of the earlier decision of <ORG>. So closely interlocked arc the procedural and substantive law of income-tax.

20. The incidence of income-tax in India is governed by the Indian Income-tax Act , 1922, as subsequently amended. Chapter 1, consisting of Sections 8 and 4 , is headed "Charge of Income-Tax" and s, 4, which by Sub-section (1) enacts that, save as thereinafter provided, the Act shall apply to all income, profits or gains as therein defined, by Sub-section (3) makes the provision for exemption which has already been set out earlier in this judgment. The exemptions are numerous and include "agricultural income" which is elaborately denned in Section 1 .

21. Chapter III consisting of Sections 6 to 17 inclusive is headed "taxable income" and defines the heads of income, profits and gains which are chargeable to tax and by whom the tax shall be paid. The respondent attached some importance to the fact that in contradistinction to the language of Section 4(3) , Section 14 and Section 15 , which also confer exemption, open with the words "The tax shall not be payable." In their Lordships' opinion the difference in language does not create a different legal result.

22. Chapter IV, headed "Deductions and Assessments" and consisting of Sections 18 to 39 inclusive, deals elaborately with these two subjects. It prescribes in detail the duties of the income-tax authorities and the obligations and rights of the assessee and in particular by Section 30 defines the right of pppeal to the Assistant Commissioner against an assessment and the limit of time within which an appeal may be brought, and by Section 31 defines the powers and duties of the Assistant Commissioner upon the hearing of an appeal. This section contains a proviso that the Assistant Commissioner shall not enhance an assessment unless the appellant has had a reasonable opportunity of showing cause against such an enhancement. Section 32 provides that any assessee objecting to an order passed by an Assistant Commissioner under Section 28 or to an order enhancing his assessment under Sub-section (3) of Section 31 may appeal to the Commissioner within 30 days of the date on which he was served with notice of such order. This section provides by Sub-section (3) that in disposing of the appeal the Commissioner may after giving the appellant an opportunity of being heard pass such orders thereon as he thinks fit. Their Lordships pause at this point to observe with what particularity the rights of the assessee in regard to appeal are defined. The sections to which reference has been made are couched in language which is apt to create rights and to define their limits. Then conies Section 33 round which so much argument has ranged.

Section 33 enacts :

(1) The Commissioner may of his own motion call for the record of any proceeding under this Act which has been taken by any authority subordinate to him or by himself when exercising the powers of an Assistant Commissioner under Sub-section (4) of Section 5 .

(2) On receipt of the record the Commissioner may make such enquiry or cause such enquiry to be made and, subject to the provisions of this Act, may pass such orders thereon as he thinks fit:

Provided that he shall not pass any order prejudicial to an assessee without hearing him or giving him a reasonable opportunity of being heard.

23. It is this section, as the third question in the case stated indicates, upon which the respondent relies as establishing a right to relief, and their Lordships will recur to it, observing however that in its language and in its context it appears ill-designed for such a purpose.

24. Sections 33A to 39 deal with specific matters which do not require to be noticed.

25. Chapter V, as its heading "Liability in Special Cases" indicates, deals in Sections 40 to 44 with certain special cases, as does Chapter VA.

26. Chapter VI deals with recovery of tax and penalties and calls for no comment.

27. Chapter VII headed "Refunds" deals in Sections 48 to 50A with that subject. There has been considerable amendment of these sections but there has been no amendment which affects the matter under appeal. Upon the assumption (which appears to be justified by the concluding words of Section 48(4) of the amending Act of 1939) that the operative provisions are contained in the Act before its amendment, in 1939, the position in regard to refund is that, if the Assistant Commissioner or the Commissioner in exercise of their respective appellate powers is satisfied that the amount of tax paid by an assessee for any year exceeds the amount with which he is properly chargeable for that year, he shall cause a refund to be made by the Income-tax Officer of any amount found to have been wrongly paid or in excess. But there is an important proviso, viz. Section 48A(3) , which in the amending Act was replaced by Section 48(4) , that nothing in the section shall operate to validate any objection or appeal which is otherwise invalid or to authorise the revision of any assessment or other matter which has become final and conclusive or the review by any officer of a decision of his own which is subject to appeal or revision or where any relief is specifically provided elsewhere in the Act, to entitle any person to any relief other or greater than that relief.

29. Chapter VIII deals with offences and penalties, Chapter IX with super-tax and Chapter IXA with certain special matters. Chapter X is headed "Miscellaneous" and contains the important section 66 under which upon a case stated reference can be made to <ORG>, This Section 66 provides that:

(1) If, in the course of any assessment under this Act or any proceeding in connection therewith other than a proceeding under Chapter VIII, a question of law arises, the Commissioner may either on his own motion or on reference from any Income-tax authority subordinate to him draw up a statement of the case and refer it with his own opinion thereon to <ORG>.

(2) Within 60 days of the date on which he is served with notice of an order under section 31 or section 32 , or of an order under section 33 enhancing an assessment or otherwise prejudicial to himthe assessee in respect of whom the order or decision was passed may, by application as therein mentioned] require the Commissioner to refer to <ORG> any question of law arising out of such order or decision and the Commissioner shall, within sixty days of the receipt of such application, draw up a statement of the case and refer it with his own opinion thereon to <ORG>:

Provided that a reference shall lie from an order under section 33 only on a question of law arising out of that order itself, and not on a question of law arising out of a previous order under section 31 or section 32 , revised by the order under section 33 :

30. It is further provided by Section 66(3) that, if the Commissioner refuses to state a case on the ground that no question of law arises, the assessee may apply to <ORG> which may require the Commissioner to state a case and refer it. It is this jurisdiction which, as already stated, has been successfully invoked in this case.

31. Finally, it is necessary only to refer to Section 67 of the Act which provides that No. suit shall be brought in any civil Court to set aside or modify any assessment made under this Act and no prosecution, suit or other proceeding shall lie against any Government officer for anything in good faith done or intended to be done under the Act.

32. Having thus briefly reviewed the relevant sections of the Act under which the respondent was in fact assessed to income-tax and paid it, their Lordships return to the questions in the case stated.

33. The first, and perhaps the most important, question, is whether the assessments; were a "nullity". This is the word ultimately chosen to express the legal concept upon which the respondent founds its claim to relief. Their Lordships find some difficulty in understanding what is meant by the word in its present context. The assessments were duly made, as they were bound to be made, by the Income-tax Officer in the proper exercise of his duty. If this <ORG> had otherwise decided the appeal which came before it in 1939, they would have stood unquestionable and unquestioned. It does not appear to their Lordships that they were a 'nullity' in any other sense than that if they had been challenged in due time they might have been set aside. But the same thing is true of every assessment which is open to successful challenge and it is just because convenience of administration demands that the validity of an assessment shall be tested in a particular way that the Income-tax Act provides that way and at the same time enacts by Section 67 that it shall be tested in no other way. Their Lordships in the course of reviewing the Act observed upon the language of the section conferring the exemption now in question. They would repeat that they do not find in it any justification for the view that an assessment, which may ultimately be held to be invalid in that it does not give effect to the provision for exemption, is thereby rendered a "nullity." In coining to this conclusion they find strong support in the recent decision of this <ORG> in <CITATION> in Council (1947) L.R. 74 I.A. 50 S.C. 49 Bom. L.R. 530.

34. Their Lordships then must answer the first question by saying that the assessments were not a nullity.

35. It is then upon the footing that there were assessments validly made, which were effective until they were set aside, that the second question must be answered. This question does not in terms refer to Section 33 of the Act, as does the third question. But it is the power of revision or review contained in that section upon which the respondent relies. It is necessary then to ask what is the "discretion" vested in the Commissioner and what is intended by the use of the word "improper" in connection with its exercise.

36. Upon the first part of this question their Lordships are placed in a position of some embarrassment, as was learned Counsel for the appellant, by an admission which appears to have been made by or on behalf of the appellant in <ORG>, for it seems that it was there conceded that Section 33 empowered the Commissioner to grant to the respondent all the relief that it claimed, to set aside alt assessments whether or not they had under the provisions of the Act become final and conclusive, and to order the refund of all sums paid, whether or not the time for appeal had expired. Their Lordships must not be taken as assenting to this view of the Commissioner's powers, but they will, nevertheless, assume for the purpose of this appeal that he had such a power, and will upon that assumption proceed to consider whether his action in refusing to exercise it in favour of the respondent was improper.

37. Upon this part of the case the argument for the respondent, which found favour with <ORG>, was that the refusal of the Commissioner was "improper" in the sense that it was contrary to equity and good conscience that money should be retained which ought never to have been paid. It was not very clear how far this argument was based on the premise, now held by their Lordships to be fallacious, that the assessments were a 'nullity,' but it can presumably be placed on a broad ethical basis whatever may be the true view of the assessments. Upon this footing then the argument must be that the assessee has a right enforceable against the Commissioner to require refund of tax paid by him upon grounds of equity and good conscience, though the assessment has been made and the tax received in good faith.

38. Their Lordships cannot accept this argument. They have reviewed the code of Income-tax law for the purpose of showing that it exhaustively defines the obligations and remedies of the tax payer. It would be wholly incompatible with this that he should have a collateral right, necessarily vague and ill-defined, founded on the principles of equity and good conscience. Their Lordships are of opinion that the only remedies open to the tax payer, whether in regard to appeal against assessment or to claim for refund, are to be found within the four corners of the Act. This view of his rights harmonises with the provision of Section 67 , to which reference has already been made, that no suit shall be brought in any civil Court to set aside or modify any assessment made under the Act. It is the Act which prescribes both the remedy and the manner in which it may be enforced.

39. It has however as a subsidiary argument been urged on behalf of the respondent t hat it appears upon the face of the order of the Commissioner of November 23, 1.939, that he exercised improperly the discretion assumed to be vested in him and that his order should, therefore, be set aside. It is true that the sentence "It was open to the assessees to keep these assessments alive by having them included in the reference to <ORG>" is not happily expressed, but it is sufficiently clear that what the Commissioner had in mind was that it was open to the assessees to have availed themselves of the procedure which the law provided, including if necessary an appeal to His Majesty in Council, and that, as they had not done so, he refused to re-open the assessments. This was in fact the reason and, as their Lordships think, a valid reason for the course that he took. Moreover, their Lordships, even if they thought that the Commissioner had not expressed himself with sufficient clarity, could do no more than send the matter back to him for further consideration. They would not, upon so slender a ground, conclude that he had exercised his discretion improperly and direct him to exercise it differently.

40. The third question in the case stated is "Whether the assessees could be denied the relief claimed by them under Section 33 of the Income-tax Act on any valid ground?

41. The fallacy implicit in this question has been made clear in the discussion of the first two questions. It assumes that Section 33 creates a right in the assessee. In their Lordships' opinion it creates no such right. On behalf of the respondent the well-known principle which was discussed in <NAME> v. Bishop of Oxford (1880) 5 App. Cas. 214 was invoked and it was urged that the section which opens with the words "The Commissioner may of his own motion " imposed upon him a duty which he was bound to perform upon the application of an assessee. It is possible that there might be a context in which words so inapt for that purpose would create a duty. But in the present case there is no such context. On the contrary Section 33 follows upon a number of sections which determine the rights of the assessee and is itself as its language clearly indicates, intended to provide administrative machinery by which a higher executive officer may review the acts of his subordinates and take the necessary action upon such review. It appears that as a matter of convenience a. practice has grown up under which the Commissioner has been invited to act "of his own motion" under the section, and where this occurs a certain degree of formality has been adopted. But the language of the section does not support the contention, which lies at the root of the third question and is vital to the respondent's case, that if affords a claim to relief. As has been already pointed out, appropriate relief is specifically given by other sections : it is not possible to interpret Section 33 as conferring general relief.

42. Their Lordships therefore can only answer the third question by saying that it is wholly misconceived and that, if the respondent claimed relief under Section 33 , his claim was rightly rejected.

43. Their Lordships have felt much doubt whether they should refer to the procedural point which arises under Sections 33 and 66(2) , i.e. whether, where the Commissioner acting under Section 33 makes an order refusing to set aside an assessment, his order is otherwise prejudicial" to the assessee, so that the latter can under Section 66(2) require him to refer any question of law arising from such order to <ORG>. This question was raised before <ORG> at an earlier stage in these proceedings and the decision of that Court was not appealed. On the present appeal the learned Counsel for the appellant has placed in the forefront of his case the contention that there was no order by the Commissioner prejudicial to the assessee out of which any of the questions of law decided by <ORG> could be said to have arisen. From this the conclusion is drawn that there was no jurisdiction in <ORG> to entertain the reference. Having decided this case on the merits adversely to the respondent so that in any case they must humbly advise His Majesty that this appeal should be allowed, their Lordships think it is not strictly necessary to decide the point. But having heard argument upon it and considered the conflicting decisions in <ORG> they have come to a clear conclusion which they think it right to express. It appears to them that an order made by the Commissioner under Section 33 can only be said to be prejudicial to the assessee when he is, as a result of it, in a different and worse position than that in which he was placed by the order under review. If the assessee has a complaint against any assessment or order made by a subordinate officer, he has the appropriate and specific remedy which the Act provides. The Commissioner may act under Section 33 with or without the invitation of the assessee : if he does so without invitation, it is clear that, if he does nothing to worsen the position of the assessee, the latter can acquire no right: the review may be a purely departmental matter of which the assessee knows nothing. If, on the other hand, the Commissioner acts at the invitation of the assessee and again does nothing to worsen his position, there is no justification for giving him a new right of appeal. He has a specific right of appeal against the assessment or order of the subordinate officer, which is subject to its own time limit. That he cannot enlarge by taking a course which is on his part purely voluntary. This view of the section is confirmed by the exception. For it is proper that, where the Commissioner does make an order which worsens the position of the assessee, the latter should have a right of appeal, since against that order he has no other right. It is further confirmed by the proviso to Section 66(2) which limits a reference from an order under Section 33 to cases where the question of law arises out of that order itself and excludes it where the question of law arises out of a previous order under Section 31 or Section 32 which is revised under Section 33 . In the case in which a reference is permitted, there is a new point of law which could not be otherwise the subject of appeal: in the case in which it is excluded, the point of law was one that could already have been appealed under the appropriate section.

44. For these reasons their Lordships are of opinion that a reference does not lie from an order under Section 33 unless that order is prejudicial to the assessee in the sense that he is in a worse position than before the order was made. Applying that principle to the present case their Lordships are of opinion that, as the Commissioner did not enhance the assessments made upon the respondent or otherwise alter his position for the worse, the reference was from the outset incompetent. They would only add that the respondent could not make an otherwise incompetent reference competent by adducing a reason for setting aside the assessment which was not available to it at the date of the assessment.

45. For the reasons above stated their Lordships arc of opinion that this appeal must be allowed and the judgment of <ORG> at Lahore of March 23, 1944, set aside and they will humbly advise His Majesty accordingly. In the special circumstances of this case they think it right to order that the parties should bear their own costs of this appeal and of all the proceedings in <ORG>.


PETITIONER: SHAH BHOJRAJ KUVERJI OIL MILLS AND GINNING FACTORY Vs. RESPONDENT: SUBBASH CHANDRA YOGRAJ SINHA DATE OF JUDGMENT: 21/04/1961 BENCH: <NAME>, M. BENCH: <NAME>, M. AIYYAR, T.L. VENKATARAMA DAS, S.K. KAPUR, J.L. SHAH, J.C. CITATION: 1961 AIR 1596 CITATOR INFO : E 1968 SC1109 (9) D 1973 SC1227 (55) R 1985 SC 111 (8) R 1985 SC 582 (32) E 1985 SC 709 (4,6,7,13) R 1987 SC2117 (25) RF 1991 SC1654 (43) ACT: Rent Control-Landlord's right to recover possession- Statutory bar-If Prospective or retrospective in operation- Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Bom. 57 of 1947), ss. 6, 12(1). HEADNOTE: On the expiry of the appellant's tenancy for the occupation of the premises indispute, the respondent who was the landlord filed a suit for possession of the premises. Meanwhile under s. 6 of the Bombay Rents, Hotel and Lodging House Rates Control 160 Act, 1947, a notification was issued applying Part 11 of the Act to the area where the property was situated. The appellants claimed protection of s. 12, Part 11 of the Act, which deprived the landlord of the right of possession under certain circum stances. <ORG> first instance decided the suit against the appellant and <ORG> ruled that s. 12 was prospective in character and did not apply to pending suits or proceedings. On appeal by special leave Held, that the point of time when sub-s. (1) of S. 12 operates is when the decree for recovery of possession has to be passed. The language of the sub-section which provides that the landlord is not entitled to recover possession if the tenant pays or shows his willingness to pay the standard rent and to observe the other conditions of the tenancy is such that it applies equally to suits pending when Part It comes into force and those to be filed subsequently and is not limited only to suits filed after the Act comes into force in a particular area. A section may be prospective in one part and retrospective in another part. Sub-sections (2) and (3) of s. 12 were clearly prospective but the words of the first sub-section showed retrospective operation. <CITATION> , (1949) 51 Bom. L.R. 280 and <NAME> v. <NAME>,  S.C.R. 221, distinguished. <ORG> v. <ORG>,  A.C. 253, <NAME> v. <ORG>, (1880) 5 Q.B.D. 170 and <NAME> v. <NAME>, (1861) 70 E.R. 958, referred to. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 49 of 1961. Appeal by special leave from the judgment and order dated August 11, 1960, of <ORG> in Civil Revision Application No. 320 of 1959.

<NAME>, Attorney-General for India, <NAME>, <NAME> and <NAME>, for the appellants. <NAME>, Solicitor-General of India, <NAME> and <NAME>, for the respondent. 1961. April 21. The Judgment of the <ORG> was delivered by HIDAYATULLAH, J.-This is a tenant's appeal, with the special leave of this <ORG>, against an order of <NAME>, J., of the High <ORG> of Bombay in Civil Revision Application No. 320 of 1959, by which he disallowed certain pleas raised by the appellants. The respondent is the landlord.

On September 11, 1942, the appellants had executed a rent note, under which they were in occupation of the premises in dispute. The period of the tenancy was 15 years, and it expired by efflux of time on, March 14, 1957. The landlord thereupon filed a suit on April 25, 1957, for possession of the premises, in <ORG> (<ORG>), Erandol. Meanwhile, under s. 6 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, (to be called the Act, in this judgment), a notification was issued, applying Part II of the Act to the area where the property is situated. The appellants claimed protection of s. 12 in Part 11 of the Act, which deprived the landlord of the right of possession under certain circumstances. The Civil Judge framed three preliminary Issues, which were as follows:

"1. Whether this Court has jurisdiction to try the suit?

2.Whether the plaintiff's suit for possession of the suit property is maintainable in view of the Notification issued by <ORG> on 16th August, 1958, applying Part II of the Bombay Rents, Hotel and Lodging House Rates Control Act? If not, what order should be passed?

3. What order?".

These Issues were decided against the appellants. They filed a revision petition before <ORG>, which was dismissed by the order under appeal. <NAME>, J., who heard the revision, followed a previous <ORG> ruling of <ORG> reported in <NAME> v. <NAME> (1). In that case, <NAME>, C. J. (<NAME> and <NAME>, <NAME>., concurring) had held that s. 12 of the Act was prospective and did not apply to pending cases. Reliance was also placed by <NAME>, J., on the decision of this Court in <CITATION> (2), where the opinion of the <ORG> of <ORG> was approved.

(1) (1949) 51 Bom. L.R. 280.

(2) [1951] S.C.R. 221.

Two Questions have been raised in this appeal, and they are (1) whether by virtue of the first proviso to s. 50 of the Act, all the provisions of Part 11 including s. 12 were not expressly made applicable to all suits; and (2) whether by virtue of s. 12(1) of the Act, which applied independently by the extension of the Act to the area where the property is situate, the suit was not rendered incompetent and the landlord deprived of his remedy of possession. Before we deal with these contentions, it is necessary to see some of the relevant provisions of this Act. The Act was not the first to be passed on the subject of control of houses, etc. Previously, there were two other Acts in force in the State of Bombay, viz., the Bombay Rent Restriction Act, 1939 and the Bombay Rents, Hotel Rates and Lodging House Rates (Control) Act, 1944. By s. 50 of the Act, these Acts were repealed. The first proviso, however, enacted (omitting unnecessary parts):

"Provided that all suits and proceedings between a landlord and a tenant relating to the recovery or fixing of rent or possession of any premises to which the provisions of Part 11 apply............ which are pending in any Court, shall be transferred to and continued before the Courts which would have jurisdiction to try such suits or proceedings under this Act or shall be continued in such Courts, as the case may be, and all the provisions of this Act and the rules made thereunder shall apply to all such suits and proceedings."

It is this proviso which, it is claimed, has retrospective effect and s. 12 of the Act which is in Part II is said to apply to all pending cases, whenever the Act is extended to fresh areas. Section 12 of the Act reads as follows:

"12. (1) A landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay, the amount of the standard rent and permitted increases, if any, and observes and performs the other conditions of the tenancy, in so far as they are consistent with the provisions of this Act.

(2)No suit for recovery of possession shall be instituted by a landlord against a tenant on the ground of non-payment of the standard rent or permitted increases due, until the expiration of one month next after notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in section 106 of the Transfer of Property Act, 1882. (3)(a) Where the rent is payable by the month and there is no dispute regarding the amount of standard rent or permitted increases, if such rent or increases are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub-section (2), the <ORG> may pass a decree for eviction in any such suit for recovery of possession.

(b)In any other case, no decree for eviction shall be passed in any such suit if, on the first day of hearing of the suit or on or before such other date as the <ORG> may fix, the tenant pays or tenders in <ORG> the standard rent and permitted increases then due and thereafter continues to pay or tender in <ORG> regularly such rent and permitted increases till the suit is finally decided and also pays costs of the suit as directed by the <ORG>.

(4)Pending disposal of any such suit, the <ORG> may out of any amount paid or tendered by the tenant pay to the landlord such amount towards payment of rent or permitted increases due to him as the <ORG> thinks fit. Explanation.-In any case where there is a dis- pute as to the amount of standard rent or permitted increases recoverable under this Act the tenant shall be deemed to be ready and willing to pay such amount if, before the expiry of the period of one month after notice referred to in sub-section (2), he makes an application to the <ORG> under sub-section (3) of section II and thereafter pays or tenders the amount of rent or permitted increases specified in the order made by the <ORG>."

By sub-ss. (1) and (2) of the second section, which dealt with the extent of the application of the Act, it was provided that Parts I and IV of the Act shall extend to the pre-Reorganisation State of Bombay, excluding transferred territories, and Parts II and III shall extend respectively to the areas specified in Schs. I and II to the Act, and shall continue to extend to any such area, notwithstanding that the area ceased to be of the description therein specified. By sub s. (3), <ORG> was authorised, by notification in <ORG>, to extend to any other area, any or all the provisions of Part II or Part III or of both. It would appear from this that Parts I and IV came into operation throughout the territories of the pre-Reorganisation State of Bombay. Part II came to be extended to this area by the notification, and after that extension, Parts 1, 11 and IV of the Act began to apply, while the suit was pending. We are not concerned in this appeal with Part 111.

The contention on behalf of the appellants is that by the latter part of the proviso to s. 50 , relevant portions of which have been quoted earlier, all the provisions of Part II were extended to this area, and that all pending suits and proceedings were governed, no matter when filed. The notification extending Part II of the Act to this area had, it is contended, also the same effect independently of the first proviso to s. 50 . It is contended, therefore, that sub-s. (1) of s. 12 , which prohibits a landlord from recovering possession of any premises so long as the tenant pays or is ready and willing to pay the amount of the standard rent and permitted increases, if any, and is also observing the other conditions of the tenancy in so far as they are not inconsistent with the provisions of the Act, applies to the present case and the tenants are protected. It is also contended that if the first proviso to s. 50 was limited to such suits only as were pending on the date of the passing of the Act, s. 12(1) , on its own terms, is applicable to the present case, and being retrospective in character, leads to the same result. These two contentions were apparently raised in <ORG> and before <ORG>. <ORG>, however, ruled that s. 12 was prospective in character and did not apply to pending suits or proceedings.

It is contended by the learned Attorney-General what the construction placed by <ORG> upon the first proviso to s. 50 is erroneous. Though he S. concedes that the proviso must be read as qualifying what the substantive part of s. 50 enacts, he urges that the proviso goes beyond that purpose and enacts a substantive law of its own. He relies upon the following observations of Lord <NAME>, L. C., in <ORG> v. <ORG> (1), where a pro- viso to s. 51 of the Railway Clauses Consolidation Act, 1845, was under consideration:

"It is true that s. 51 is framed as a proviso upon preceding sections. But it is also true that the latter half of it, though in form a proviso, is in substance a fresh enactment, adding to and not merely qualifying that which goes before.", and contends that the latter portion of the proviso, in question, being a substantive enactment, comprehends not only those suits which were pending on the date of repeal but also those cases, which came within the language of the latter part of the proviso, whenever the Act was extended to new areas. On behalf of the landlord, the learned Solicitor-General argues that the proviso should be read as a proviso only to the substantive enactment, and must be taken to qualify the substantive portion of s. 50 only to the extent to which it makes an exception to the repeal and but for the proviso would be governed by the repealed Acts.

He relies upon Craies on Statute Law, 5th Edn., pp. 201-202, where the following passage occurs:

"The effect of an excepting or qualifying proviso, according to the ordinary rules of construction, is to except out of the preceding portion of the enactment, or to qualify something enacted therein, which but for the proviso would be within it and such a proviso cannot be construed as enlarging the scope of an enactment when it can be fairly and (1) [1909] A.C. 253, 258.

properly construed without attributing to it that effect."

He also relies upon the following observations of <NAME>, J., in <NAME> v. Treasurer of Surrey (1):

"When one finds a proviso to a section, the natural presumption is that, but for the proviso, the enacting part of the section would have included the subject-matter of the proviso."

The law with regard to provisos is well-settled and well- understood. As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment, and ordinarily, 'a proviso is not interpreted as stating a general rule. But, provisos are often added not as exceptions or qualifications to the main enactment but as savings clauses, in which cases they will not be construed as controlled by the section. The proviso which has been added to s. 50 of the Act deals with the effect of repeal. The substantive part of the section repealed two Acts which were in force in the State of Bombay. If nothing more had been said, s. 7 of the Bombay General Clauses Act would have applied, and all pending suits and proceedings would have continued under the old law, as if the repealing Act had not been passed. The effect of the proviso was to take the matter out of s. 7 of the Bombay General Clauses Act and to provide for a special saving. It cannot be used to decide whether s. 12 of the Act is retrospective. It was observed by <NAME>, V. C., in <NAME> v. Champneys(2) that saving clauses are seldom used to construe Acts. These clauses are introduced into Acts which repeal others, to safe. guard rights which, but for the savings, would be lost. The proviso here saves pending suits and proceedings, and further enacts that suits and proceedings then pending are to be transferred to the <ORG> designated in the Act and are to continue under the Act and any or all the provisions of the Act are to apply to them. The learned Solicitor-General contends that the savings clause enacted by the proviso, even if treated as substantive law, must be taken to (1) (1880) 5 Q.B.D. 170, 173.

(2) (1861) 2 J. & H. 31:70 E.R. 958.

apply only to suits and proceedings pending at the time of the repeal which, but for the proviso, would be governed by the Act repealed. According to the learned Attorney- General, the effect of the savings is much wider, and it applies to such cases as come within the words of the proviso, whenever the Act is extended to new areas. These arguments are interesting, and much can be said on both Bides, particularly as the <ORG> has by a subsequent amendment changed the proviso. But, in our opinion, they need not be considered in this case, in view of what we have decided on the second point. The second contention urged by the learned Attorney-General that s. 12(1) applied from the date on which the Act was extended to the area in question is, in our opinion, sound. Section 12(1) enacts a rule of decision, and it says that a landlord is not entitled to possession if the tenant pays or shows his readiness and willingness to pay the standard rent and to observe the other conditions of the tenancy. The word "tenant" is defined in the Act to include not only a tenant, whose tenancy subsists but also any person remaining, after the determination of the lease, in possession with or without the assent of the landlord. The present appellants, as statutory tenants, were within the rule enacted by s. 12(1) and entitled to its protection, if the sub-section could be held applicable to this suit. Both <ORG> and this <ORG> had, on the previous occasions, observed that s. 12 of the Act was prospective. In those cases, the learned Judges were concerned with the interpretation of sub ss. (2) and (3) only, which, as the words of those subsections then existing show, were clearly prospective, and were applicable to suits to be instituted after the coming into force of the Act. But a section may be prospective in some parts and retrospective in other parts. While it is the ordinary rule that substantive rights should not be held to be taken away except by express provision or clear implication, many Acts, though prospective in form, have been given retrospective operation, if the intention of the legislature is apparent. This is more so, when Acts are passed to protect the public against some evil or abuse. (See Craies on Statute Law, 5th Edn., p. 365). The sub-section says that a landlord Shall not be entitled to the recovery of possession of any premises so long as the tenant pays or is ready and willing to pay the standard rent etc., and observes and performs the other conditions of the tenancy. In other words, no decree can be passed granting possession to the landlord, if the tenant fulfils the conditions above mentioned. The Explanation to S. 12 makes it clear that the tenant in case of a dispute may make an application to the <ORG> under sub-s. (3) of S. 11 for fixation of a standard rent and may thereafter pay or tender the amount of rent or permitted increases specified in the order to be made by the <ORG>. The tenants, in the present case, have expressed their readiness and willingness to pay, and it is clear that they fulfil the requirements of sub-s. (1) of S. 12 , and the landlord is, therefore, not entitled to the relief of possession.

Both the <ORG> as well as this <ORG> in their previous decisions, referred to above, were not called upon to interpret sub-s. (1) of the Act. They were dealing with appeals arising out of decrees already passed. The observations that S. 12 was prospective were made with reference to sub-ss. (2) and (3) and not with respect to sub-s. (1), which did not even find a mention in those judgments. The question then was whether S. 12 by itself or read with the proviso to S. 50 was applicable retrospectively to appeals. That is not the question which has arisen here. Then again, S. 12(1) enacts that the landlord shall not be entitled to recover possession, not "no suit shall be instituted by the landlord to recover possession". The point of time when the sub-section will operate is when the decree for recovery of possession would have to be passed. Thus, the language of the sub- section applies equally to suits pending when Part 11 comes into force and those to be filed subsequently. The conten- tion of the respondent that the operation of S. 12(1)  is limited to suits filed after the Act comes into force in a particular area cannot be accepted. The conclusion must follow that the present suit cannot be decreed in favour of the respondent. The decisions of the <ORG> and the <ORG> of First Instance are thus erroneous, and must be set aside.

In the result, the appeal is allowed, and the two preliminary Issues are answered in favour of the appellants. Under the orders of this <ORG>, the judgment of the Civil Judge was stayed. The suit will now be decided in conformity with our judgment. The respondent shall pay the costs of this <ORG> and of the High <ORG>.

Appeal allowed.


ORDER

1. The petitioner <NAME> seeks special leave Under Article 136 of the Constitution to file an appeal against the judgment of <ORG> (Lucknow Bench) in Criminal Appeal No. 24 of 1977, confirming his conviction by the learned Additional Sessions Judge, Lucknow for offences punishable under Section 302 read with Section 34 and Section 394 I.P.C. and the sentence of life imprisonment awarded for each of the offences. The murder alleged was of the petitioner's mother's sister <NAME>, wife of <NAME>, P.W. 4 in the house of the deceased and P.W. 4 at about 7.30 p.m. on 22.3.1075. The case of the prosecution was that at about 3.00 p.m. on that day the petitioner and his two friends <NAME> and <NAME> went to the residence of the deceased and P.W. 4, who was employed at that time as Assistant statutory Master at Charbagh Railway Station, Lucknow, and those three persons stayed in the house of the deceased and P.W. 4, when P.W. 4 left the house for going to his duty at the Railway Station. Later at about 7.30 p.m. <NAME>, P.W. 1, a RPF Inspector and neighbour of,P.W 4 came near the main gate of his house on a cycle and heard the shrieks of the deceased coming from the house. Thereupon, P.W. 1 parked his.cycle and moved towards the main exit of P.W. 4's house. <NAME>, P.W. 2, <NAME>, P.W. 3 and others who were present on the road into which the houses of PWs. 1 and open and also P.W. 1 saw the petitioner and two other persons coming out of the house of the deceased and running towards the north after holding out threats to them. One of those three persons had a pistol while the other had an open knife and the petitioner had bag and was wearing only a baniyan and pants and not any shirt. P.W. 1 to 3 went into the house of the deceased and <NAME> found the deceased lying dead in the kitchen and some properties lying scattered and some valuable ornaments missing. There was also a blood-stained shirt lying inside the house of the deceased and <NAME> There was electric light burning in the street when the petitioner and the other two persons came out of the house of the deceased and <NAME> ran away. P.W. 1 lodged the First Information Report about the incident at 8.30 p.m. on the same day. <NAME> sent for, came to the house later, and found his wife dead and the valuable properties missing. In the kitchen where deceased was lying dead, there were three tea cups and water was boiling in the kettle. Autopsy on the body of the deceased disclosed an abrasion on the right frontal area just above the eye-brow and contusion on the lip and multi-purpose abrasions on the face and the neck. The Doctor who conducted the autopsy found clotted blood over the scalp of the deceased on the right temporal and frontal area as also in the right ear and in both the nostrils.

2. The evidence of P.W. 6 showed that no investigation was conducted in respect of <NAME> and <NAME> and no charge-sheet was even filed against them. There was no direct evidence against the petitioner. The case against the petitioner rested only on circumstantial evidence. The trial court as well as <ORG> relied on the circumstantial evidence and the identification of the petitioner by P.Ws. 1 to 3 as the person who came out of deceased's house with a bag in his hand along with other two persons who were armed with a pistol and a knife and had escaped after threatening P.Ws. 1 to 3 soon after the occurrence. P.W. 4 had deposed about the earlier visit of the petitioner and his two friends to his house and about their continuing to remain in the house even when he left for his duty at the Railway Station. The trial court as well as the appellate court found that the circumstantial evidence and identification of the petitioner by P.Ws. 1 to 3 satisfactorily proved the guilt of the petitioner for the offences under Section 302 read with Sections 34 and 394 I.P.C.

3. In the Special Leave Petition notice was ordered to be issued confined to ground No. 1 of the additional grounds filed on 25.8.1983, namely, that the petitioner was a child at the time of the occurrance, namely, 22.3.1975 and his age was recorded as 17 years when his statement was taken on 8.12.1976, more than one year and nine months after the incident, and this itself shows that he was only 15 years old at the time of occurrence and under Section 27 of the U.P. Children's Act, 1951 no court could sentence him to death or imprisonment for life as he was a child below the age of 16 years within the meaning of Section 2(4) of that Act.

4. The learned Counsel for the petitioner was heard in the Special Leave Petition confined to the question of age of the petitioner at the time of the occurrence. We are satisfied on a perusal of the record that the contention of the petitioner that he was only 154 years of age at the time of occurrence is a complete after-thougt, for no such contention was raised either before the trial court or before <ORG> when the appeal was heard or even in the grounds of the Special Leave Petition as originally filed. The plea was taken only in the additional grounds filed on 25.8.1983 long after the filing of the Special Leave Petition. The statement of the petitioner made before the trial court under Section 313 of the CrPC was that the deceased was his aunt and had no issues and she wanted to adopt him as her son and there was no justification for the petitioner to murder her before she adopted him. The further statement and suggestion was that P.W. 4 suspected that the petitioner had illicit connection with the deceased and, therefore, if the petitioner would have thought of murdering, it would have been of P.W. 4 and not the deceased. If the petitioner was only 15 years old at the time of the occurrence and only a little over 18 years of age at the time of trial it is improbable that such a stand would have been taken on behalf of the petitioner and that such an important circumstance that he was a child below 16 years of age under Section 2(4) of the U.P. Children's Act, 1951 would not have been taken note of by the learned Counsel for the petitioner at the time of trial or during the hearing of the appeal in <ORG> or while drafting the grounds in the Special Leave Petition as originally filed. Therefore, we find no material on record on the basis of which it could be held that the petitioner was below 16 years of age at the time of occurrence in this case and that Section 27 of the U.P. Children's Act, 1951 was attracted. There is no merit. The Special Leave Petition is dismissed.