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2005 DIGILAW 2869 (RAJ)

Nalini Mehta v. State of Bank of India

2005-11-07

DINESH MAHESHWARI

body2005
Judgment Dinesh Maheshwari, J.-The petitioner has submitted this writ petition being aggrieved of the order dated 20.05.2004 (Annexure-2) passed by the Appellate Rent Tribunal, Udaipur whereby the order dated 20.03.2004 (Annexure-1) passed by the Rent Tribunal, Udaipur in Case No. 43/2003 has been set aside and the petition for eviction filed by the petitioner against the respondent-Bank has been ordered to be dismissed. 2. Brief facts relevant for determination of the questions involved in this writ petition are that the petitioner filed a petition for eviction against the respondent-State Bank of India before the Rent Tribunal, Udaipur with the submissions that a lease-deed was executed between the parties on 04.08.1999 and in accordance with the terms thereof , the demised premises were required to be handed over to the petitioner in the mid night of 14/15.09.2002 and despite several letters, the respondent has not handed over the possession of the premises whose monthly rent was Rs. 39,610/-. The petitioner had informed the respondent by the letter dated 212.2002 that the lease has come to an end on 15.09.2002 and thereafter, the respondent was not a tenant and should make a payment of Rs. 3,50,000/-per month towards use and occupation of the premises. Despite reminders, the Bank has neither handed over the possession of the premises nor paid damages for use and occupation. The Assistant General Manager of the Udaipur Branch of the respondent informed the petitioner by the letter dated 22.01.2003 that they were ready to negotiate for new terms but no person contacted the petitioner nor proposed the rental and terms of the tenancy and a baseless reply was sent to the notice; the petitioner limited her claim of mesne profits at Rs. 1,00,000/-per month and claimed this amount from the month of June, 2003 and so also the relief of delivery of vacant possession. 3. The respondent Bank contested the petition denying the claim of damages at Rs. 1,00,000/-per month and asserted that the rent was being paid to the petitioner which has been accepted by her. It was asserted that the lease deed was executed on 14.09.1999 with a clear stipulation of the option of renewal at the time of the expiry of lease on mutually acceptable conditions and, therefore, the petitioner was not entitled to recover possession of the premises. 4. It was asserted that the lease deed was executed on 14.09.1999 with a clear stipulation of the option of renewal at the time of the expiry of lease on mutually acceptable conditions and, therefore, the petitioner was not entitled to recover possession of the premises. 4. Copies of the pleadings have not been produced on record by either of the parties, however, it appears that an objection was raised about jurisdiction of the Tribunal to hear such a petition and on this objection, issue No. 3 was framed. 5. The issues framed by the Tribunal read as under: - ^^1-vk;k vthZnkj vthZ esa of.kZr ifjlj dk [kkyh HkqäHkksx izR;FkhZ ls izkIr djus dh vf/kdkfj.kh gS \ & vthZnkj 2-vk;k izsnk ifjlj dks yht MhM esa of.kZR;FkhZ }kjk fdjk; lqr vof /k dh lekfIr ds ipkr~ [kkyh HkqäHkksx vthZnkj iqnZ ugha djus ls vthZnkj izdks lqR;FkhZ ls #i;k 1]00]000 #i, v{kjs ,d yk[k #i, izfrekg dh nj ls ekg tuw] 2003 ls ifjlj dk [kkyh HkqäHkksx izkIr gksus rd varZHkwr ykHk dh jkf'k izkIr djus dh vf/kdkfj.kh gS\ & vthZnkj 3- vk;k bl izkFkZuki= dh lquokbZ dk Jo.k vf/kdkj bl vf/kdj.k dks ugha gksdj flfoy U;k;ky; dks izkIr gSA & izR;FkhZ 4- vuqrks"k \** 6. The Tribunal decided issue No. 1 in favour of the petitioner. However, on issue No. 2, it was held that she was entitled to recover mesne profits at the rate of Rs. 39,610/-only. On issue No. 3 relating to the question of jurisdiction, the Tribunal rejected the objection and held thus,- ^^bl lac/k es U;k;ky; us mHk;i{k dh cgl lquh /kkjk 18 jktLFkku fdjk;k fu;a=.k vf/kfu;e 2001 ds izko/kku ds vuqlkj rRle; izo`r fdlh Hkh vU; fof/k esa vUrfoZ"V fdlh ckr ds gksrs gq, Hkh] mu {kS=ksa esa] ftuesa s ds v/khu Hkw&Lokeh vkSsbl vf/kfu;e dk izlkj gS] bl vf/kfu;e ds mica/kkaj fdjk; nkj ds chp ds fooknksa vkSj a Qkby dh xbZ vftZ;ks muls lac) rFkk vkuqa"kfxd fo"k;kas ds laca/k esa dks lquus vkSj fofUkfpr djus dh vf/kdkfjrk dsoy fdjk;k vf/kdj.k dks gksxh u fd fdlh Hkh flfoy U;k;ky; dksA vr% ;g fookfnr fcUnq iz R;FkhZ ds fo#) fuf.kZr fd;k tkrk gSA** 7. On the considerations aforesaid, the Tribunal ordered the respondent-Bank to vacate the suit premises and to deliver vacant possession within three months and mesne profits were allowed from June, 2003 at the rate of Rs. 39,610/-per month. 8. On the considerations aforesaid, the Tribunal ordered the respondent-Bank to vacate the suit premises and to deliver vacant possession within three months and mesne profits were allowed from June, 2003 at the rate of Rs. 39,610/-per month. 8. The respondent Bank preferred an appeal against the order passed by the Tribunal and the learned Appellate Rent Tribunal proceeded to decide this appeal No. 12/2004 by the impugned order dated 20.05.2004. The learned Appellate Tribunal with reference to the provisions of Section 18 of the Rajasthan Rent Control Act, 2001 (the Act hereinafter) came to the conclusion that the Tribunal had no jurisdiction to entertain a dispute where the premises are let out to or by a Bank. The conclusion, as stated by the learned Appellate Tribunal, reads as under: - ^^fu"d"kZ ;g fudyrk gS fd & tgka vthZ ,lss ifjljksa vkSj fdjk;nkjksa ds lEcU/k eas ftu ij bl vf/kfu;e ds v/;k; 2 o 3 ds micas/k ykxw gksrs gSa] ds varxZr fookn dks lquokbZ djus dk vf/kdkj flfoy U;k;ky; dks jgsxkA vFkkZr~ bu izko/kkuksa ls ;g Li"V gks tkrk gS fd fdjk;k vf/kdj.k dks ,lssfookn dks lquokbZ dk vf/kdkj ugha gS ftuesa lEifRr cSad }kjk vFkok cSad ds i{k esa fdjk;s yh o nh xbZ gSA** 9. The learned Appellate Tribunal was of opinion that the matter was of the jurisdiction of a Civil Court only and hence other issues were not required to be decided. The learned Appellate Tribunal, thus set aside the order passed by the Rent Tribunal and rejected the petition filed by the petitioner. 10. Assailing the appellate order aforesaid, learned Counsel for the petitioner vehemently contended with reference to the provisions of Section 18 and Section 29 of the Act of 2001 that the provisions of the Act are having overriding effect so far the dispute between landlord and tenant is concerned and the jurisdiction of the Tribunal is clearly spelt out in Section 18 of the Act. Learned Counsel submitted that the Appellate Tribunal has misinterpreted the provisions of Section 18 of the Act as if wherever Chapters II and III were not applicable, the petition itself was not maintainable before the Rent Tribunal and such interpretation is squarely contrary to the language of Section 18. 11. Learned Counsel submitted that the Appellate Tribunal has misinterpreted the provisions of Section 18 of the Act as if wherever Chapters II and III were not applicable, the petition itself was not maintainable before the Rent Tribunal and such interpretation is squarely contrary to the language of Section 18. 11. Learned Counsel for the respondent-Bank contended, on the other hand, that Section 3 of the Act specifically provides that Chapters II and III of the Act would not apply to certain premises and tenancies and under Sub-clause (b) of Clause (iii) of Section 3, at Divisional Headquarters i.e., Jodhpur, Ajmer, Kota, Udaipur and Bikaner, if the monthly rent of the let out premises is Rs. 4,000/-or more, the Rent Tribunal shall have no jurisdiction to entertain any petition. Clause (X) of Section 3 further provides that Chapters II and III of the Act shall not apply to the premises let out to the Banks or Public Sector Undertakings or any Corporations established by or under any Central or State Act, and in that view of the matter, the petition filed against the State Bank of India does not fall under the provisions of the Act and stands specifically barred and that Section 18 does not overriding effect on Section 3 of the Act. 12. Having given a thoughtful and anxious consideration to the rival submissions and having examined the scheme of the Act of 2001, this Court is clearly of opinion that the impugned order proceeds on total misinterpretation of the plain provisions of law and cannot be sustained. 13. The Rajasthan Rent Control Act, 2001 is “to provide for control of eviction from letting of , and rents for, certain premises in the State of Rajasthan and matters incidental thereto”. The Act has been divided in seven chapters under the heads: (I) preliminary; (II) Revision of Rent; (III) Tenancy; (IV) Restoration of Possession of Illegally Evicted Tenant and Procedure Thereof ; (V) Constitution of Tribunals, Procedure for Revision of Rent and Eviction, Appeal and Execution; (VI) Amenities; and (VII) Miscellaneous. The Act has been divided in seven chapters under the heads: (I) preliminary; (II) Revision of Rent; (III) Tenancy; (IV) Restoration of Possession of Illegally Evicted Tenant and Procedure Thereof ; (V) Constitution of Tribunals, Procedure for Revision of Rent and Eviction, Appeal and Execution; (VI) Amenities; and (VII) Miscellaneous. Section 1 of the Act clearly provides that it extends, in the first instance, to such of the Municipal areas which are comprising the District Headquarters in the State and later on to such of the other Municipal areas having a population exceeding 50,000 as per 1991 census as the State Government, may by notification in the Official Gazette would specify. Sub-section (3) of Section 1 provides that this Act would come into force with effect from such date as may be appointed by the State Government by notification in the Official Gazette. The State Government has appointed First day of April, 2003 as the date on which this Act shall come into force and it shall extend to all the Municipal areas which are comprising the District Headquarters. 14. The premises in question are situated at Udaipur and it is not in dispute that it is a Municipal area comprising a District Headquarter. Therefore, the Act of 2001 directly extends to the area in question. 15. Chapters II and III of the Act, containing Sections 6 to 10, dealing with revision of rent in respect of existing tenancies (Section 6), revision of rent in respect of new tenancies (Section 7), limited period of tenancy (Section 8), eviction of tenants (Section 9) and right of landlord to recover immediate possession in certain cases (Section 10) are the provisions which have clearly been excluded in respect of certain premises and tenancies under Section 3 of the Act. It is also not in dispute that the premises in question are situated at a place in the Municipal area comprising Divisional Headquarter of Udaipur and have been let out at a monthly rent of Rs. 39,610/-but seem not to have been let out for residential purposes. However, the premises in question have been let out to the State Bank of India and clearly, therefore, by virtue of provisions of Section 3 (X), Chapters II and III of the Act do not apply to the premises and the tenancy in question. 16. 39,610/-but seem not to have been let out for residential purposes. However, the premises in question have been let out to the State Bank of India and clearly, therefore, by virtue of provisions of Section 3 (X), Chapters II and III of the Act do not apply to the premises and the tenancy in question. 16. Section 18 of the Act (contained in Chapter V), which deals with jurisdiction of the Tribunal provides thus,-“18. Jurisdiction of Rent Tribunal: -(1) Notwithstanding anything contained in any other law for the time being in force, in the areas to which this Act extends for the time being, only the Rent Tribunal and no Civil Court shall have jurisdiction to hear and decide the petitions relating to disputes between landlord and tenant and matters connected therewith and ancillary thereto, filed under the provisions of this Act: Provided that Rent Tribunal shall, in deciding such petitions to which provisions contained in Chapters II and III of this Act do not apply, have due regard to the provisions of Transfer of Properties Act, 1882 (Act No. 4 of 1882), the Indian Contract Act, 1872 (Act No. 9 of 1872), or any other substantive law applicable to such matter in the same manner in which such law would have been applied had the dispute been brought before a Civil Court by way of suit. Provided further that nothing contained in this Act shall be deemed to empower the Rent Tribunal to entertain a petition involving such dispute between landlord and tenant to which provisions of the Rajasthan Public Premises (Eviction of Unauthorised Occupants) Act, 1964 (Act No. 2 of 1965) and the Rajasthan Premises (Requisition and Eviction) Ordinance, 1949 apply. .(2) Wherethe petition only for recovery of unpaid rent or arrears of rent is filed, the time schedule and procedure enumerated in Section 14 shall mutatis mutandis apply to such petition. .(3) Wherethe petition for recovery of possession is filed in respect of the premises or tenancies to which the provisions of Chapters II and III of this Act do not apply, the time schedule and procedure enumerated in Section 15 shall mutatis mutandis apply to such petition. .(4) A petition shall be instituted before the Rent Tribunal, within the local limits of whose jurisdiction the premises is situated.” 17. .(4) A petition shall be instituted before the Rent Tribunal, within the local limits of whose jurisdiction the premises is situated.” 17. Section 29 of the Act (contained in Chapter VII) provides for an overriding effect of the provisions of this Act and reads as under,-“29. Act to have overriding effect.-The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other Law for the time being in force or in any instrument having effect by virtue of any Law other than this Act.” 18. It is also not in dispute that from the date notified in Sub-section (3) of Section 1, the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 stands repealed by virtue of Section 32 of the Act of 2001. 19. The question is as to whether because of non-applicability of Chapters II and III to the premises in question, the Civil Court only is required to be approached for a dispute concerning such premises and the Tribunal has no jurisdiction to deal with any such dispute? This Court is clearly of opinion that the answer to this question is in the negative. 20. By virtue of Section 3 of the Act only Chapters II and III have been excluded from application to certain premises and tenancies but significantly not all the provisions of the Act whole-hog. By virtue of Section 1 itself , from the date of its coming into force, the Rajasthan Rent Control Act, 2001 applies to the area in question i.e., Udaipur. Obviously, such premises or tenancies which answer to the description as provided under Section 3, would be governed by the provisions of the Act excluding Chapters II and III thereof. 21. The plain meaning is that the provisions of revision of rent, so also of limited period tenancy and obtaining an advance certificate of possession (as provided under Section 8) and of restriction on eviction with several grounds thereof (as provided under Section 9) and of right to recover immediate possession (as provided under Section 10) would not apply to such tenancies. Obviously, therefore, the relationship of parties, where the tenancy is of the nature which answers to the description of the clauses of Section 3, would be governed by the contractual terms and conditions and so also the fundamental principles of the Transfer of Property Act and the Contract Act or any other substantive law, wherever and to whatever extent applicable. 22. Such scheme of the enactment becomes obvious on a bare look at the provisions of Section 18 of the Act as quoted hereinabove. The said provision itself has got an absolute overriding effect over any other law for the time being in force in relation to the areas to which the Act applies and in such areas only the Rent Tribunal and no Civil Court have jurisdiction to hear and decide the petitions relating to the disputes between landlord and tenant. The fact that such petitions could also be in relation to such premises to which the provisions contained in Chapters II and III do not apply is clearly highlighted by the first proviso to Section 18 which clearly provides for the matters to be kept in view by the Tribunal while dealing with such petitions to which the provisions contained in Chapters II and III do not apply; and only exclusion has been provided in second proviso for the premises to which the provisions of Rajasthan Public Premises (Eviction of Unauthorised Occupants) Act, 1964 and the Rajasthan Premises (Requisition and Eviction) Ordinance, 1949 apply. Sub-section (3) of Section 18 makes the position clear that in respect of these kind of premises, to which Chapters II and III do not apply, the time schedule and procedure as enumerated in Section 15 shall mutatis mutandis apply. 23. The learned Appellate Tribunal seems not to have even put a glance at the provisions of the Act it was supposed to deal with and has proceeded to observe that for this petition Civil Court was required to be approached. Such observations are squarely contrary to the plain provisions of law and cannot be sustained. Decision on issue No. 3 by the Rent Tribunal deserves to be upheld. 24. Such observations are squarely contrary to the plain provisions of law and cannot be sustained. Decision on issue No. 3 by the Rent Tribunal deserves to be upheld. 24. The Appellate Rent Tribunal having not decided any other issue and having decided No. 3 on fundamentally incorrect premise, the impugned order is required to be quashed and set aside, and the matter is required to be remanded to the Appellate Tribunal to decide the appeal afresh in accordance with law. 25. As a result of aforesaid, the writ petition is allowed, the impugned order dated 20.05.2004 (Annexure-2) is set aside; decision on issue No. 3 by the Rent Tribunal, Udaipur is upheld; and the matter is remanded to the Appellate Rent Tribunal, Udaipur to restore Civil Appeal No. 12/2004 to its original number and decide it in accordance with law. The parties are directed to appear before the Appellate Tribunal on 12.2005. No costs.