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2005 DIGILAW 1566 (BOM)

Maharaji v. Sayeedabi

2005-11-21

R.C.CHAVAN

body2005
( 1 ) THIS appeal brings to the fore how fortunes of the parties change with passage of time because of change in the law. ( 2 ) IT is not in dispute that open land was let out to one Bajrangi Vishwakarma. The appellants are the legal representatives of the said Bajrangi. On 28-11-1985, the landlady filed a suit for recovery of possession of this open land. This suit came to be decreed on 24-8-1987. The provisions of C. P. and Berar letting of Premises and Rent Control Order, 1949 (for short, "the Rent Control Order") did not apply to open sites. The defendant preferred an appeal bearing Regular Civil appeal No 404 of 1987 before the District judge, Amravati. On 27-6-1989, the provisions of Rent Control Order, 1949 came to be amended, whereby sub-clause (4-A) defining "premises" was inserted in clause (2) of the Rent Control Order. By this sub-clause, the term "premises" came to encompass even open spaces. On 26-10-1989, clause 13-A was inserted making it necessary to obtain permission from the Rent Controller to file any suit for eviction of a tenant from houses or premises. The validity of these amendments has been upheld by a judgment of this Court dated 21-4-2005 On 31-3-2000, a comprehensive Maharashtra Rent Control Act came into force, whereby the provisions of the rent Control Order cease to have application in Vidarbha area of State of Maharashtra. Clause (9) of Section 7 of Maharashtra Act defined the term "premises" and this definition does not include open sites. ( 3 ) BY a judgment in Dilip Vs. Mohd. Azizul Haq and another, reported in 2000 (2) Mh. L. J. 741: 2000 (2) ALL MR 560 (S. C.), the Apex Court has held that when during the pendency of an appeal arising out of a decree for ejectment of a tenant in respect of an open plot, the amendment to the Rent control Order came into force, the Appellant court would not be justified in dismissing the appeal or passing a decree for eviction, because the tenant would be entitled to protection of the amended provision of the Rent Control order. The Court observed that though the amended provision is prospective in force, it has a retrospective effect ( 4 ) THE learned counsel for the appellants, therefore, submitted that since at the time when the District Judge was considering the appeal, the Rent Control Order was amended making the provision thereof applicable to open plots, the Appellate Court ought to have dismissed the suit allowing the appeal. Therefore, according to the learned counsel for the appellants, the substantial question of law on which the appeal ought to have been admitted is whether the learned district Judge erred is dismissing the appeal overlooking the amended provisions of the rent Control Order. ( 5 ) WHEN the matter had come up for admission before D. G. Karnik, J on 13-2-2005, he had put the parties to notice that the appeal would be heard finally at the stage of admission itself. This is how the appeal is being finally disposed of by this judgment. ( 6 ) THERE can be no doubt that the learned District Judge ought to have considered the amended provisions of the Rent Control order in view of the judgment of the Apex court in the case of Dilip Vs Mohd Azizul haq and another, referred to above. Once it is accepted that the legislative changes would have to be taken into consideration while deciding the appeal, it would have been imperative for the learned Judge of the First appellate Court to apply the provisions of the maharashtra Rent Control Act, 1999, which came into force on 31-3-2000 before the appeal was decided on 29-1-2002. Thus, when the appeal was decided, the enactment in force was the Maharashtra Rent Control Act, 1999 there is no dispute that the definition of the term "premises" in clause (9) of Section 7 of this Act does not include an open site and thus this Act has no application to open site Thus, both, when the suit and appeal were filed and decided, open sites were not within the purview of Rent Law in force. ( 7 ) THE leaned counsel for the respondent pointed out that the question of applicability of the Maharashtra Rent Control act, 1999 to open sites was duly considered by this Court in Second Appeal No. 44 of 1985 (Nathmal Bhioraj Kathecha, since deceased by his heirs and legal representatives Trilokchand nathmal and others Vs. ( 7 ) THE leaned counsel for the respondent pointed out that the question of applicability of the Maharashtra Rent Control act, 1999 to open sites was duly considered by this Court in Second Appeal No. 44 of 1985 (Nathmal Bhioraj Kathecha, since deceased by his heirs and legal representatives Trilokchand nathmal and others Vs. Bindraj Sirernal Burad and others ). In the case too, open land had been let out to the tenant and possession there of was sought to be recovered without obtaining permission from the Rent Controller. This court eventually held that the Rent enactments are in the nature of temporary legislation creating procedural embargo on the landlordss right to evict tenants and upon withdrawal of such embargo, the land lords right, which was under the clog of procedural embargo, is freed. The Court then proceeded to dismiss the second Appeal filed by the tenants, who had assailed the decree on other grounds too. ( 8 ) THE learned counsel for the appellants submitted that while deciding the second appeal, the Court had not considered the implications of clause (2) of Section 2 of the Maharashtra Rent Control Act, 1999. According to the learned counsel, the amended provisions of the Rent Control Order would continue to apply to the suit premises in view of provisions of clause (2) of Section 2. Section 2 reads as under :" (1) This Act shall, in the first instance, apply to premises let for the purposes of residence, education, business, trade or storage in the areas specified in Schedule I and Schedule II. "" (2) Notwithstanding anything contained in sub-section (1), it shall also apply to the premises or, as the case may be, houses let out in the areas to which the Bombay Rents. Hotel and Lodging House Rates Control act, 1947 (Bom. LVII of 1947) or the central Provinces and Berar Letting of houses and Rent Control Order, 1949 issued under the Central Provinces and berar Regulation of Letting of accommodation Act, 1946 (C. P. and Berar act XI of 1946) and Hyderabad Houses (Rent, Eviction and Leases Control Act. 1954 (Hyd. Hotel and Lodging House Rates Control act, 1947 (Bom. LVII of 1947) or the central Provinces and Berar Letting of houses and Rent Control Order, 1949 issued under the Central Provinces and berar Regulation of Letting of accommodation Act, 1946 (C. P. and Berar act XI of 1946) and Hyderabad Houses (Rent, Eviction and Leases Control Act. 1954 (Hyd. Act No. XX of 1954) were extended and applied before the date of commencement of this Act and such premises or houses continue to be so let on that date in such areas which are specified in Schedule I to this Act, notwithstanding that the area ceases to be of the description therein specified. " ( 9 ) ORDINARILY, provisions of the maharashtra Act would apply to areas in schedules I and II as per clause (1) ot Section2. Clause (2) is intended to take care of a situation where any area in Schedule I, to which erstwhile rent legislation applied, ceased to carry the description in Schedule I. Such contingencies could arise due to creation of new local bodies, change in the jurisdiction of such bodies and the like. The clause is not intended to cover lease of open plots which have been consciously excluded by the legislature while drafting the comprehensive maharashtra Act. ( 10 ) HAD the Legislature intended that section 2 (2) was meant to continue to bring open sites within the sweep of Maharashtra Act in spite of restrictive definition of premises in section 7 (9) of tne Maharashtra Act, the legislature would not have referred to description of areas. In that case, the legislature would have simply said that notwithstanding anything contained in subsection (1), the Act shall also apply to all premises and houses to which the erstwhile rent laws applied on the date of commencement of the Act. Such a clause would have taken in its sweep not only change in description of areas but also overridden the change brought about by clause (9) of Section 7. ( 11 ) THE Legislature could have even added a rider in clause (9) of Section 7 itself by saying that "premises" shall also include any leasehold to which the provisions of erstwhile rent laws applied; provided that such premises continue to be let on the date of commencement of the Act. ( 11 ) THE Legislature could have even added a rider in clause (9) of Section 7 itself by saying that "premises" shall also include any leasehold to which the provisions of erstwhile rent laws applied; provided that such premises continue to be let on the date of commencement of the Act. ( 12 ) THEREFORE, the phraseology used in drafting clause (2) of Section 2; the placement of this clause in Section 2 to override clause (1) of the said Section; and conscious exclusion of open spaces in definition of "premises" in clause (9) of Section 7 all rule out the interpretation sought to be put by the learned counsel. ( 13 ) IN view of this, it would have to be held that the appellants do not have any protection under the Maharashtra Rent Control act, 1999 and, therefore, their eviction ordered by the two Courts below cannot be assailed. ( 14 ) IN view of this, the appeal fails and is dismissed with costs. Appeal dismissed.