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Himachal Pradesh High Court · body

2008 DIGILAW 271 (HP)

Raj Kumari v. Jyoti Swaroop

2008-05-30

DEEPAK GUPTA

body2008
JUDGMENT : Deepak Gupta, J. 1. This judgment shall dispose of the aforesaid two petitions as both petitions arise out of one eviction petition. 2. The petitioners are the landlords and the respondent is a tenant in the building. The premises are situated in a building known as Raj Uttam Building, below HIMFED building, New Shimla-171009. The entire controversy has arisen because some time the area in which the building is situate is brought within the Municipal area and as such the H.P. Urban Rent Control Act becomes applicable and some times the area is taken out of the Municipal area with the result that the Rent Controller ceases to exercise jurisdiction in respect of the premises. The landlords filed an eviction petition No.50-2 /2002 on 27.8.2002 against the tenant alleging that the premises had been initially rented out to the tenant at a monthly rental of Rs.550/-. It was further alleged that w.e.f. 1.1.2002 in terms of Section 5(2) of the H.P. Urban Rent Control Act, 1987 (hereinafter referred to as the Act) 10% increase had to be made in the rent. 3. The learned Rent Controller came to the conclusion that the respondent-tenant was in arrears of rent to the tune of Rs.3300/- and therefore ordered his eviction on this ground. However, it was ordered that in case the tenant deposits a sum of Rs.3300/- with interest @ 9% p.a. and costs of the petition assessed at Rs.1000/- within a period of 30 days then the tenant would not be evicted. 4. Both the parties filed appeals against the said orders of the Rent Controller before the learned Appellate Authority. The landlords in their appeal claimed that they were entitled to enhancement of rent @ 10% from January, 2002 and consequent enhancement of 10% after every five years in terms of Section 5 of the Act. The tenant challenged the findings with regard to the tenant being in arrears of rent and another plea was raised that the Rent Controller had no jurisdiction to decide the matter since the State Government had taken out the area falling in New Shimla Nagar Panchayat from Municipal limits w.e.f. 24.11.2003. 5. When the petition was filed admittedly the area in question fell within the Municipal limits and the provisions of the H.P. Urban Rent Control Act were applicable to the premises. 5. When the petition was filed admittedly the area in question fell within the Municipal limits and the provisions of the H.P. Urban Rent Control Act were applicable to the premises. Later the area was withdrawn from the Municipal areas and did not fall within the purview and meaning of urban area under Section 2(k) of the Act, which reads as follows: “(k) ‘Urban area’ means any area administered by a municipal corporation, a municipal committee, a cantonment board, or a notified area committee or any area declared by the State Government, by notification, to be an urban area for the purposes of this Act.” 6. The learned lower Appellate Authority relying upon a judgment of this Court reported in Ram Bhaj vs. The Principal Government Urdu Teaching & Research Centre, Latest HLJ 2004 (HP) 677, came to the conclusion that since the area where the building was situated had been excluded from the Municipal limits during the pendency of proceedings the Rent Controller had no jurisdiction to pass the eviction order. 7. It would be pertinent to mention that though this judgment was reported in 2004, the same was actually delivered on March 26, 1997. In this case the Court held that once the area where the premises was situate was taken out from municipal limits the Rent controller would cease to have jurisdiction to pass any order in respect thereto. 8. On behalf of the landlords it is contended that this inclusion and withdrawal from the Municipal area is leading to great problems since some times the Government for various reasons first includes the area in municipal limits and then excludes the area from municipal limits. When the area is included the Rent Controller is vested with jurisdiction. However, by the time an order of eviction is passed or the order has to be executed the area is taken outside the municipal limits. It is contended that once a petition has been filed under the Act as at that time the urban area was within municipal limits then the subsequent notification withdrawing the area from the municipal limits would not divest the Rent Controller from jurisdiction to pass the order. 9. Reliance is placed on the judgment of the Apex court in Atma Ram Mittal vs. Ishwar Singh Panja, 1988 (2) RCR 423 decided on 22.8.1988. In that case the position was converse. 9. Reliance is placed on the judgment of the Apex court in Atma Ram Mittal vs. Ishwar Singh Panja, 1988 (2) RCR 423 decided on 22.8.1988. In that case the position was converse. Newly constructed buildings in Haryana were exempted from the provisions of Rent Control Act for a period of 10 years. The landlord filed a suit for possession under ordinary law. During the pendnecy of suit period of 10 years expired and it was contended that the tenant got the right of protection under the Rent Control Act and therefore the Civil Court had no jurisdiction to deal with the case. The Apex Court after considering a number of judgments held as follows: “8. It is well-settled that no man should suffer because of the fault of the Court or delay in the procedure. Broom has stated the maxim "actus curia neminem gravibit" an act of Court shall prejudice no man. Therefore, having regard to the time normally consumed for adjudication, the 10 years exemption or holiday from the application of the Rent Act would become illusory, if the suit has to be filed within that time and be disposed of finally. It is common knowledge that unless a suit is instituted soon after the date of letting it would never be disposed of within 10 years and even then within that time it may not be disposed of. That will make the 10 years holiday from the Rent Act illusory and provide no incentive to the landlords to build new houses to solve problem of shortages of houses. The purpose of legislation would thus be defeated. Purposive interpretation in a social amelioration legislation is an imperative irrespective of anything else. 9. Judicial time and energy is more often than not consumed in finding what is the intention of the Parliament or in other words, the will of the people. Blackstone tells us that the fairest and most rational method to interpret the will of the legislator is by exploring his intentions at the time when the law was made, by signs most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law. (Underlined by the Court). See Commentaries on the Laws of England (facsimile of 1st edition of 1765, University of Chicago Press, 1979) Vol. 1, p. 59). And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law. (Underlined by the Court). See Commentaries on the Laws of England (facsimile of 1st edition of 1765, University of Chicago Press, 1979) Vol. 1, p. 59). Mukherjea, J. as the learned Chief Justice then was, in Popatlal Shah v. State of Madras 1953 SCR 677 : ( AIR 1953 SC 274 ) said that each word, phrase or sentence was to be construed in the light of purpose of the Act itself. But words must be construed with imagination of purpose behind them said Learned Judge Hand, long time ago. It appears, therefore, that though we are concerned with seeking of intention, we are rather looking to the meaning of the words that the legislator has used and the true meaning of what words as was said by Lord Reid in Black-Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenburg A.G., 1975 AC 591 at p. 613. We are clearly of the opinion that having regard to the language we must find the reason and the spirit of the law. If the immunity from the operation of the Rent Act is made and depended upon the ultimate disposal of the case within the period of exemption of 10 years which is in reality an impossibility, then there would be empty reasons. In our opinion, bearing in mind the well-settled principles that the rights of the parties crystalise on the date of the institution of the suit as enunciated by this Court in Om Prakash Gupta v. Dig Vijendrapal Gupta ( AIR 1982 SC 1230 (2)) (supra), the meaningful construction must be that the exemption would apply for a period of 10 years and will continue to be available until suit is disposed of or adjudicated. Such suit or proceeding must be instituted within the stipulated period of 10 years. Once rights crystalise the adjudication must be in accordance with law.” 10. A similar view was taken by the Apex Court in Shri Kishan @ Krishan Kumar vs. Manoj Kumar, 1998 (1) RCR 283 decided on 12.2.1998. 11. In Mansoor Khan vs. Motiram Harebhan Kharat and another, AIR 2002 SC 2396 , the landlord had filed a suit for eviction of the tenant-appellant from the suit premises after terminating his tenancy. This suit was filed on 2.5.1985. 11. In Mansoor Khan vs. Motiram Harebhan Kharat and another, AIR 2002 SC 2396 , the landlord had filed a suit for eviction of the tenant-appellant from the suit premises after terminating his tenancy. This suit was filed on 2.5.1985. The area in which the building was situated was brought within the municipal limits on 9.10.1989. The Civil court passed a decree of eviction against the tenant. The tenant challenged the decree of eviction on the ground that the area having been notified as a municipality, the trial Court had no jurisdiction to proceed with the suit or pass an eviction order. This plea was not accepted by the Apex Court. The Apex Court held as follows: 5. So long as the provisions of the order are not applicable to any premises, the rights and obligations of landlord and tenant are governed by the provisions of the Transfer of Property Act. Once the order becomes applicable, a landlord cannot give notice to a tenant determining the lease nor can initiate proceedings for recovery of possession from the tenant except with the previous written permission of the controller in accordance with clause 13 of the order. What is prohibited by the order is initiation of the proceedings by the landlord. In the present case, the proceedings were initiated by filing suit before a civil court, much before the provisions of the order became applicable to the suit premises. There is nothing in the order which makes it applicable to the pending suit for eviction of tenant. 6. The learned counsel for the tenant-appellant has placed reliance on a decision of this Court in Nandlal and Others v. Motilal [ AIR 1977 SC 2143 ]. The said decision is an authority for the proposition that the order becomes applicable to any area which is notified to be a municipality from the date of such notification because the order was already applicable in the province of C.P. and Berar. However, this Court has very specifically held that the provisions of the order would become applicable from that date, i.e. the date on which a particular area within which the suit premises are situated, is notified to be a municipality. The order is not retrospective in operation in operation. 7. It does not affect the validity of the proceedings initiated before the date on which the order became applicable. The order is not retrospective in operation in operation. 7. It does not affect the validity of the proceedings initiated before the date on which the order became applicable. Clause 13 of the order does not restrain the court from exercising its power to pass a decree of eviction. All that clause 13 provides is to impose a restriction on the right of the landlord to initiate the proceedings for eviction. Inasmuch as the proceedings for eviction were already initiated and the order is not retrospective in operation, it does not affect the validity of the previously instituted proceedings nor does it take away the power of the court to pass a decree of eviction in the pending suit.” 12. From a perusal of the judgment of the Apex Court cited hereinabove, it is apparent that the tribunal or the Court which had the jurisdiction at the time of initiation of proceedings will continue to do so even if the area later fell within the municipal limits. As far as the decision of the Single Judge of this Court in Ram Bhaj’s case referred to hereinabove is concerned, in view of the later pronouncements of the Apex court this judgment cannot be held to be a good law. 13. The position in the present case is converse. The Rent Control legislations are social welfare legislations meant to benefit the tenant. The tenant gets protection under these Acts. It is the landlord whose rights are curtailed by the Rent Control Act. Therefore, in the converse situation when the area where the building is situated is taken out from municipal area normally the landlord would benefit. Therefore, in my opinion the authorities cited above would apply with even greater force and the Rent Controller cannot be said to loose jurisdiction merely because area wherein the premises are situate is taken out of the Municipal limits. 14. In the present case the factual situation has undergone another change. Vide notification dated 23rd August, 2006 the area has again been brought within the municipal limits. Therefore, in my opinion even if there was any lack of jurisdiction this stands rectified and the order of the Rent Controller cannot be said to be without jurisdiction. 15. I have been informed at the Bar that there is one other litigation pending between the parties in respect of non-payment of rent. Therefore, in my opinion even if there was any lack of jurisdiction this stands rectified and the order of the Rent Controller cannot be said to be without jurisdiction. 15. I have been informed at the Bar that there is one other litigation pending between the parties in respect of non-payment of rent. Coming to the merits of this case, it is not disputed that the rate of rent in 1997 was Rs.550/- per month. Therefore, in terms of Section 5 of the Act the landlord was entitled to 10% increase at the latest by 1.1.2003 and the rent becoming due and payable from that date will be Rs.605/- per month and w.e.f. 1.1.2008 the landlord would be entitled to another increase of 10% and the rent would work out to Rs.665.50 per month. 16. It would also be pertinent to mention that in these proceedings earlier an order had been passed by the then Hon’ble Chief Justice directing the tenant to pay rent and to file a supplementary affidavit to show what was the amount of rent paid by him. This order was passed on 30.4.2007. The tenant took up the plea that he had paid rent up to February, 2006. The learned Court vide order dated 7th May, 2007 prima facie came to the conclusion that the respondent had made false averments before this Court and vide order dated 20th August, 2007 proceedings were ordered to be initiated against the tenant under Section 193 of the IPC. 17. Keeping in view the acrimony between the parties and instead of wasting precious time of the Rent Controller in dealing with these matters relating to arrears of rent I hereby direct the landlords through their counsel to file an affidavit within one month from today with advance copy to the learned counsel for the tenant stating therein the bank account number in which they want the tenant to remit the rent. The tenant is directed to remit the rent on or before the 10th of each month in the said bank account. I have been informed at the Bar that the tenant has already deposited the amount payable in terms of the order of the Rent Controller. The tenant is directed to remit the rent on or before the 10th of each month in the said bank account. I have been informed at the Bar that the tenant has already deposited the amount payable in terms of the order of the Rent Controller. He is ordered to deposit all the arrears of rent as on date as per the rates fixed hereinabove alongwith interest @ 9% p.a. within a period of 2 months from today in the said bank account and in future shall continue to deposit the amount of rent in advance by the 10th of each month in the said bank account. On the tenant depositing the rent in terms of this order, the landlord shall withdraw the petition filed for ejectment on the ground of arrears of rent. 18. Both the petitions are disposed of in the aforesaid terms. The tenant is burdened with costs which are assessed at Rs.3000/- which shall also be paid by him along with the rent.