Kantawala, C.J.
1. This matter is referred to the Full Bench by Vadiya. J. by his judgment and order dated April 23, 1971. The question which requires to be decided by the Full Bench is not framed but he has observed that in view of certain conflict of decisions he felt that the rights of landlords and tenants in suits or appeals pending on the date on which the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as 'the Act') was made applicable, should be determined.
2. Ramdas Chitrigi, the petitioner, is the tenant of room No. 8 in a building called 'Monica House' situate within the limits of the Gram Panchayat of Divanman near Bassein in Thana District. On January 20, 1968 the landlady, respondent No. 1 served a notice upon the petitioner terminating his tenancy. On April 27, 1968, respondent No. 1 filed a suit to recover possession of the premises from the petitioner. On March 31, 1970 a decree of eviction was passed against the petitioner, the trial Court inter alia observing that issues regarding landlord's bona fide requirement and comparative hardship need not be decided as admittedly the Act was not applicable to the suit premises. An appeal was preferred by the petitioner on April 29, 1970 and though during the pendency of the appeal the Act was made applicable the appeal was dismissed by the appellate court following a decision of this court in Rupchand Hemandas V. Heers, : AIR1968Bom100 . It is against the order of dismissal of the appeal that this special civil Application under Article 227 of the Constitution has been filed before this court.
3. The argument of Mr. Dighe on behalf of the petitioner is that it is held by the supreme court that the provisions of Section 12(1) of the Act are retrospective in operation; that having regard to the said decision and the provisions of section 50 of the Act a tenant is entitled to claim protection under the Act even if the provisions of part II of the Act are made applicable to the premises at the stage when the appeal is pending though part II was not applicable at the time when the suit was instituted and decreed by the trial Court. His submission was that an appeal is a continuation of a suit and that in view of the proviso to section 50 of the Act a tenant will be entitled to clime protection of the Act once part II is made applicable to the area where the premises are situate.
4. The Act was enacted on January 19, 1948. It was to come into operation on such date as the state Government may, by notification in the official Gazette, appoint in that behalf. A notification was published in the official Gazette making the Act applicable with effect from February 13, 1948. So far as part I and part IV are concerned they extended to the whole of the Bombay area of the State of Maharashtra and so far as Part II and Part III are concerned, they extended to the areas specified in schedules I and II of the Act. Sub-section (3) of section 2 empowered the state Government by a notification in the official Gazettee to extend to any other area any or all of the provisions of Part II or part III or of both. Sub-Section (4) thereof empowered the State Government by like notification to direct that any or all the provisions of part II or part III or of both, as the case may be, shall cease to extend to such area and on such date as may be specified in the notification and on that date the said provisions shall cease to be in a force in such area. Part I of the Act contained preliminary provisions while Part IV contained miscellaneous provisions. Part II of the Act afforded protection to tenants in respect of residential and other premises, while part III thereof afforded protection to lodgers staying in hotels and lodging houses. Section 6 which is contained in part II of the Act provides that in areas specified in Schedule I this part shall apply to premises let for residence, education, business, trade or storage. The first proviso to sub-section (1) of this section empowered the State Government by a notification in the Official Gazette to direct that in any of the said areas, this part shall cease to apply to premises let for any of the said purposes. The second proviso to this sub-section empowered the State Government by like notification to direct that in any of the said areas this part shall re-apply to premises let for such of the aforesaid purposes as may be specified in the notification.
5. When the Act was made initially applicable on February 13, 1948 the entire Thana District was included in Schedule I to the Act and so the provisions of Part II thereof were consequently made applicable thereto. By a notification dated August 30, 1948 in exercise of the powers conferred by the proviso to sub-section (1) of section 6 of that Act the State Government was pleased to direct that in the areas specified in the schedule to the said notification Part II of the Act shall cease to apply to premises let for residence, business, trade or storage or to premises let to the Government or a local authority for the purpose of setting up an office or a public hospital or dispensary with effect from the date of the said notification. Amongst the areas so specified in this schedule was the whole of Thana District except the following areas viz.
(I) ..............
(ii)............
(iii) ...........
(iv) Bassein Taluka -
1. Bassein Municipal District and 2, Virar. (v)..............
(vi)............
(vii)............
The result was Part II ceased to apply to the suit premises which were situate in Bassein Taluka other than Bassein Municipal District with effect from August 30, 1948. In exercise of the powers conferred by the second proviso to sub-section (1) of section 6 by a notification dated May 19, 1970 published in the Maharashtra Government Gazette dated June 4, 1970 the state Government directed that in the area of Divanman Village in the Bassein Taluka of Thana District part II of the Act should with effect from the date of publication of the notification re-apply to premises let for the purpose of residence.
6. At the time when the notice terminating the tenancy was served upon the petitioner and at the time when the suit was instituted in the trial court and decreed by the trial court in view of the aforesaid provisions of the notification dated August 30, 1948 the provisions of Part II of the Act were not applicable to premises situate in divanman village. However, when the appeal was pending before the learned Extra Assistant Judge, Thana, by the said notification dated May 19, 1970 the provisions of part II of the Act were made applicable to the petitioner's premises as the same were let out to him for the purpose of residence.
7. Section 12(1) of the Act provides 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 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 the Act. The argument of Mr. Dighe on behalf of the petitioner is that in view of the decision of the Supreme Court in Shah Bhojraj V. Subhash Chandra, : [1962]2SCR159 the provisions of section 12(1) of the Act have retrospective operation and the petitioner will be entitled to the protection of the Act so long as the complies with the provisions of sub-section (1) thereof. Even though the provisions of part II of the Act were made applicable to premises let out for residence in Divanman village by the notification dated May 19, 1970 while the appeal was pending.
8. Section 50 of the Act deals with repeal. The material part thereof is as under:-
'50. The Bombay Rent Restriction Act, 1939, and the Bombay Rents, Hotel Rates and Lodging House Rates (Control) Act. 1944 are hereby repealed:
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 II 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'. Nothing in this proviso shall apply to execution proceedings and appeals arising out of decrees or orders, passed before the coming into operation of this Act: and such execution proceedings and appeals shall be decided and disposed of as if this act had not been passed...........'
9. The argument of Mr. Dighe is two-fold. First his submission is that the suit is wide enough to include in its scope an appeal. Secondly, he submits that the expression' decrees or orders, passed before the coming into operation of this Act' referred to in the last part of the section quoted above has reference to the date on which the Act is made applicable by a notification under Section 3 of the Act. His argument is that under section 3 of the Act, the Act comes into operation on such date as the State Government by notification in the Official Gazette may appoint in that behalf; that such a notification was published bringing the Act into operation with effect from February 13, 1948. Reliance was place upon the provisions of section 2(1) of the Act which provides that part I and part IV of the Act shall extend to the Bombay area of the State of Maharashtra. It cannot be controverted that so far as part I and Part IV of the Act are concerned, they do not afford any substantive protection either to a tenant or to a lodger in a hotel or a lodging house. Such protection to a tenant or to a lodger is afforded only when the provisions of Part II and part III of the Act are made applicable. Such is the effect of the provisions of section 2(2) of the Act which lays down that parts II and III shall extend respectively to the areas specified in schedules I and II to this Act and shall continue to extend to any such area notwithstanding that the area ceases to be of the description therein specified. When the Act was initially enacted the whole of Thana District was included along with other areas in Schedule I and consequently in view of the provisions of section 6 every tenant to whom premises situate within that District were let out for residence, education, business, trade or storage was entitled to the protection or benefit of Part II thereof and the provisions contained therein, but when in exercise of the powers conferred by the proviso to section 6 (1) of the Act the State Government issued a notification dated August 30, 1948 the premises belonging to the petitioner, as they were situate at Divanman village, ceased to have the benefit of the provisions of Part II. Thus on the date when the tenancy was terminated and the suit was instituted on April 27, 1968 the provisions of Part II were not applicable to the suit premises and the same position continued till March 31, 1970 when the decree for eviction was passed by the trial Court. A Full Bench of this Court in Nilkanth Ramachandra v. Rasiklal : AIR1949Bom210 has taken the view that the retrospective effect of the Act is confined only to what is expressly stated in Section 50 of the Act. While considering the provisions of sub-sections (2) and (3) of Section 12 it observed that the said Section 12 is prospective and not retrospective. The view taken by the Full Bench of this Court in Nilkanth's case was affirmed by the Supreme Court in Chandrasingh V.Surjit Lal, : [1951]2SCR221 . After approving of the view taken by this Court the Supreme Court points out:-
'On a plain reading of the language of Sections 12 and 50 it seems clear to us that the Act was given retrospective operation only to a limited extent and execution proceedings and appeals were excluded from this effect and were to be governed by the provisions of the law in force at the time when the decrees were passed.'
A little later it is observed :-
'Section 50 cannot be described as a section providing merely for transfer of pending cases to Courts having jurisdiction to deal with them. It is on the other hand a 'repeal' section in the new statute. It repeals the two earlier statutes, and while repealing them it provides that the repeal shall not affect 'executions and appeals' and that the provisions of the Act shall apply to all pending suits which shall be transferred to the Courts having jurisdiction to hear them under Section 28 of the Act. We are also inclined to agree with the view of the Full Bench that Section 12 is in terms prospective and not retrospective. Sub-section (2) clearly relates to suits which may be instituted after the Act comes into force. It cannot apply to suits which were already pending when the Act was put on the statute book. Sub-section (3) which gives the right to the tenant to pay or tender the rent at the hearing of the suit only applies to those suits which may be instituted after the Act comes into operation, because it in terms states 'in such suit' and not in 'any suit'. 'Such suit' can only be a suit refereed to in sub-sections (2) and (3) of Section 12.'
In this case the Supreme Court took the view that the High Court in that matter erroneously applied the provisions of the Act to the appeal and was wrong in allowing such an appeal on that basis. In view of these decisions of the Full Bench and the Supreme Court the petitioner as the tenant will not be entitled to the protection of the provisions of Part II of the Act as the said provisions were not applicable to his premised at the time when the decree was passed by the trial Court and to pending appeals the provisions are not applicable.
10. Reliance was, however, placed upon a later decision of the Supreme Court in : [1962]2SCR159 . In this case rival contentions were inter alia advanced as regards the ambit of the proviso to Section 50 of the Act, but the Supreme Court did not consider it necessary to express its view thereon as it took the view that Section 12(1) of the Act was retrospective applied to a pending it. After referring to the decision of the Full Bench in Nilkanth's case 51 Bom LR 280 : AIR 1949 Bom 210 and the decision of the Supreme Court in Chandrasingh's case, : [1951]2SCR221 the Supreme Court points out:
'Both the High Court as well as this Court in their previous decisions, referred to above, were not called upon to interpret sub-section (1) of the Act. They were dealing with appeals arising out of decrees already passed. The observations that Section 12 was prospective were made with reference to sub-sections (2) and (3) and not with respect to sun-section (1), which did not even find a mention in those judgments. The question then was whether Section 12 by itself or read with the proviso to Section 50 was applicable retrospectively to appeals. That is not the question which has arisen here.'
After quoting the provisions of Section 12(1) the Supreme Court observed :-
'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 II comes into force and those to be 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.' Even in this judgment the view taken by the Full Bench and the Supreme Court in the earlier decisions to pending appeals has been reaffirmed and it is merely decided that so far as the provisions of Section 12(1) of the Act are concerned they will apply to suits pending when the provisions of Part II of the Act are made applicable to the area. Thus it is amply clear that so far as the stage of an appeal is concerned, there is no conflict whatsoever in the view taken by the Full Bench in Nilkanth's case and in the view expressed by the Supreme Court in Chandrasingh's case and Shah Bhoirai's case.
11. Reliance was, however, placed by Mr. Dighe upon a decision of a single Judge of this Court in Umedmal Devji v. N. K. Chopda, : AIR1967Bom514 . This is a decision of a single Judge of this Court and Gokhale J. has taken the view that the exception to the first proviso to Section 50 of the Act excepts from the proviso only execution proceedings and appeals, arising out of decrees or orders, passed before the coming into operation of the Act on February 13, 1948, and no others. Decrees which had already been passed before the Act had come into appeals arising out of decrees or orders passed before the coming into operation of the Act, i.e. before February 13,1948. All subsequent proceedings, including appeals, are within the scope of the provisions of the Act.
12. The correctness of the decision of Gokhale J. came to be considered by a Division Bench of this Court in : AIR1968Bom100 . The Division Bench after considering the view of the Full Bench in Nilkanth's case 51 Bom LR 280 : AIR 1949 Bom 210 and the decision of the Supreme Court in the above two matters has taken the view that the Act does not apply to appeals pending on the date on which the provisions of Part II and Part III of the Act were applied to the premise which were the subject-matter of the proceedings. The view taken by Gokhale J. in Umedmal Devil's case. : AIR1967Bom514 has been expressly dissented from and even the observations of the Supreme Court in Shah Bhojra's case. : [1962]2SCR159 have been considered and explained. This Court at page 593 observes:-
'Relying upon some observations in 64 Bom LR 407 : AIR 1961 SC 1969 it is argued that the Supreme Court has decided that Section 12(1) is by itself retrospective notwithstanding the provisions of Section 50 and the provisions thereto and we must therefore apply it to pending appeals. It is true that the language of a section may be capable of retrospective application even to a pending appeal and in such a case the Court must so apply it irrespective of any supposed hardship to any of the parties. So far as it goes, the principle cannot be questioned. But the question, however, is whether when specific provision has been made by the Legislature in the form of Section 50 with its provisos and its exception, is it open to the Court to disregard the same and apply Section 12(1) is retrospectively? Though Section 12(1) is in a way declamatory and is capable of applying to all pending proceedings, that however, is not all. Section 50 with all its three provisos is to be considered and if it applies then Section 12(1) cannot apply to appeals. The rule of construction is a general rule, but the Legislature is ultimately the supreme authority and it is for the Legislature to say an apparently retrospective enactment shall be applied only in a particular way. Section 12(1) is a general provision while the proviso is a special one dealing specifically with the application of the Act retrospectively to appeals and suits. It is well settled that the special provision must over-ride the general provisions. Their Lordships of the Supreme Court did not lay down that in a given case Section 12(1) must be applied irrespective of the exception provided in Section 50 of the Act. On the contrary, while distinguishing the Full Bench case in : [1962]2SCR159 their Lordships said (P.411):
'The question there was whether Section 12 by itself or read with the proviso to Section 50 was applicable retrospectively to appeals. That is not the question which has arisen here.' And their Lordships distinctly said that'............................the language of the sub-section Part II comes into force and those to be filed subsequently' and that 'the contention of the respondent that the operation of Section 12(2) is limited to suits filed after the Act comes is not force in a particular area cannot be accepted.'
13. In Rupchand's case. : AIR1968Bom100 the Division Bench of this Court has considered all the relevant decisions relating to application of the provisions of Part II of the Act to pending appeals. This view has been taken after considering not only the earlier decision of the Full Bench but both the decisions of the Supreme Court in Chandrashingh's case. : [1951]2SCR221 and Shah Bhojari's case : [1962]2SCR159 and it is thereafter that this Court has taken the view that the Act does not apply to appeals pending on the date on which the provisions of Part II and Part III of the Act were applied to the premises which are the subject-matter of the proceedings. We are in agreement with the view taken by the Division Bench in Rupchand's case and, in our opinion, ordinarily a single Judge of this Court ought to follow a decision of a Division Bench which is binding on him. thus, in our opinion, the provisions of the Act do not apply to appeals pending on the date on which the provisions of Part II and Part III of the Act were applied to the premises which are the subject - matter of the proceedings.
14. We may, also, observe that a Division Bench of the Gujarat High Court has taken an identical view in Mehta Keshavlal Pragji v. Bhatia Dwarkadas Gokaldas (1969) 10 Guj LR 857.
15. In our view, the petitioner is not entitled to the benefit of the provisions of Part II of the Act as at the time when the decree of eviction was passed by the trial Court the provisions of the said Part were not made applicable to his premises. Accordingly, the Special Civil Application is dismissed and the rule is discharged with costs.
16. Application dismissed.