Chotemiyan Rajesaheb v. Rambhau Venkatrao Nandedkar
1993-02-26
N.P.CHAPALGAONKER
body1993
DigiLaw.ai
JUDGMENT - CHAPALGAONKER N.P., J.:---If a tenant loses possession otherwise than by order of the Rent Controller, will an application to the Rent Controller lie under the Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954, hereinafter referred to for the sake of brevity as 'the Hyderabad Rent Act', is the question raised in this revision application. 2. Petitioner-Chotemiyan-aetel and cigarette vendor was running his business in the premises owned by the respondent landlord and the landlord had provided a wooden box for this purpose. It is alleged that the landlord represented to the tenant that he wants to reconstruct the premises and after reconstruction, he would again allot the same space to the tenant. Therefore, the tenant vacated the premises. However, landlord backed out his promise and neither reconstructed the premises nor gave it back to the tenant. Therefore, an application was moved by the tenant petitioner to the Rent Controller, Nanded under section 15 of the Hyderabad Rent Act for restoration of possession. The learned Rent Controller, Nanded was pleased to allow the application directing the landlord to put the tenant back in possession by the order dated 30th August, 1985 in File No. 81/MAG/RCA/41. This order was challenged by the landlord in an appeal under section 25 of the Hyderabad Rent Act. This Appeal No. 141 of 1985 was allowed by the learned District Judge, Nanded holding that the Rent Controller had no jurisdiction to pass such an order. This Appellate Order has been challenged in this revision application. 3. I heard Shri K.G. Khader, learned Counsel for petitioner and Shri A.G. Godhamgaonkar, learned Counsel for respondent. 4. Section 15 of the Hyderabad Rent Act prohibits eviction of a tenant whether in execution of decree or otherwise, except in accordance with the provisions of that section. Therefore, an application of the landlord for the eviction of the tenant is maintainable under this section. There is no provision in the Hyderabad Rent Act which entitles the tenant to apply for possession, if he has not lost the possession in furtherance of order of the Rent Controller. 5.
Therefore, an application of the landlord for the eviction of the tenant is maintainable under this section. There is no provision in the Hyderabad Rent Act which entitles the tenant to apply for possession, if he has not lost the possession in furtherance of order of the Rent Controller. 5. Third proviso to section 15(3)(iv) of the Hyderabad Rent Act gives tenant first preference for occupying the house on such terms as may be settled by the Rent Controller after the work of repairs, alterations or re-building is completed by the landlord after evicting the tenant by an order of the Rent Controller under sub-clause (3)(a)(iv). Similarly, if the landlord has obtained possession in pursuance of an order under sub-section (3) and does not himself occupy it within one month from the date of obtaining the possession or having so occupied, vacates it without reasonable cause, within six months of such date, then the tenant, who has been evicted can apply to the Rent Controller for restoration of possession. Hyderabad Rent Act thus gives right to tenant to get the possession back in certain cases where he was evicted by an order of the Rent Controller. Losing the possession of the tenanted premises because of the order passed by the Rent Controller is an essential prerequisite for tenant's right to apply for possession and that too in certain circumstances. 6. The Hyderabad Rent Act is a special remedy and the special remedy provided will have to be resorted to for obtaining the reliefs available in that Act. If the reliefs are not specifically available under the special remedy, the jurisdiction of the Civil Court under section 9 of the Code of Civil Procedure, 1908 cannot be presumed to have been taken away. Considering the scope of section 11 of the Hindu Marriage Act, 1955, this Court in the case of (Smt. Rajeshbai and others v. Smt. Shantabai)1, 1981 Bom.C.R. 699, was pleased to observe as follows :--- "It is only when a special relief of the kind mentioned in section 11 is being sought so as to annual the marriage solemnised after the commencement of the Act that the special remedial procedure will have to be followed.
It will be too narrow a construction to hold that in, every case whenever an issue of validity of marriage arises, having reference to the conditions of section 5, the matter must be referred or the matter must arise only in the special jurisdiction under Hindu Marriage Act. .... .... ... Special remedial provisions available in sections 9 to 13 of the Act, permitting marital reliefs, are not exhaustive nor compulsively universal so as to exclude powers of ordinary Civil Courts to find out legality of marital relations." There is nothing in Hyderabad Rent Act which excludes the jurisdiction of the Civil Court in all matters concerning with the relations of the landlord and the tenant. Only the decree passed by Civil Court or order passed by any authority other than the Rent Controller has been made ineffective to enforce the eviction of the tenant. This follows that no Civil Court will have jurisdiction to entertain a suit for eviction of the tenant who is protected by the Hyderabad Rent Act and only an application under section 15 of the Hyderabad Rent Act before the Rent Controller would be competent for the purpose. 7. Shri K.G. Khader, learned Counsel for the petitioner, was fair enough to concede that there is no specific provision entitling the tenant to restore possession of the tenanted premises from the landlord, in case, it is obtained either by private agreement or by force but without the order of the Rent Controller. However, Shri Khader submitted that such a jurisdiction will have to be inferred by liberally construing the provisions of the Hyderabad Rent Act since it is a beneficial legislation. Shri Khader mainly relied on the preamble of the Act which runs as follows :--- "Whereas it is expedient to make provision for the better control of the rent of houses and to prevent unreasonable eviction of tenants therefrom and to regulate the leasing of houses in certain areas of the State of Hyderabad." Relying on the words 'to prevent unreasonable eviction of tenants', Shri Khader submits that the Rent Controller has the jurisdiction to restore the possession back to the tenant if it is unlawful or under any pretext taken away from him by the landlord. A preamble of the statute is to announce the purpose of the Act. But it does not form the substantive part of the Act.
A preamble of the statute is to announce the purpose of the Act. But it does not form the substantive part of the Act. A preamble can be read if there is some ambiguity in the provisions of the statute. At best, it would be an aid for interpretation. It cannot by itself enable the Court to add anything in the statute which is not there and particularly extend or enlarge jurisdiction which the legislature has not given to authorities under the Act. Supreme Court in the case of (M/s. Burrakur Coal Co. Ltd. v. The Union of India and others)2, A.I.R. 1961 S.C. 954, was pleased to observe thus :--- "It is one of the cardinal principles of construction that where the language of an Act is clear, the preamble must be disregarded though where the object or meaning of an enactment is not clear, the preamble may be resorted to explain it." The Hyderabad Rent Act is intended to provide the procedure for eviction of the tenants on certain grounds, if established by the landlord and is not an exhaustive law to govern all eventualities which may occur in relation between the landlord and the tenant. For matters not covered by Hyderabad Rent Act, parties will have to invoke jurisdiction of the Civil Court. Therefore, the learned District Judge rightly came to the conclusion that the Rent Controller had no jurisdiction to entertain the application of the tenant for the reliefs sought by him. 8. Shri K.G. Khader, learned Counsel for petitioner, at this stage, submitted that, in case, now tenant wants to file a civil suit, the question of limitation may arise and the time consumed in the proceedings before the Rent Controller, the District Court and in this Court may be considered for condoning the delay. Whether the suit is within limitation or not is to be decided by the learned trial Judge as is required by section 9 of the Indian Limitation Act, 1963. Whether by virtue of any provision of the Limitation Act, the Court is entitled to condone the delay is also a question to be considered by that Court. It is not necessary for this Court to express any opinion on this question. 9. Civil Revision Application is, therefore, dismissed. The judgment and order passed by the learned District Judge, Nanded, in H.R.C.A. No. 14/1985 dated 8th August, 1986 is hereby confirmed.
It is not necessary for this Court to express any opinion on this question. 9. Civil Revision Application is, therefore, dismissed. The judgment and order passed by the learned District Judge, Nanded, in H.R.C.A. No. 14/1985 dated 8th August, 1986 is hereby confirmed. Rule is discharged. However, in the circumstances of the case, there shall be no order as to costs of this revision application. Civil Revision Application dismissed. -----