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2010 DIGILAW 1194 (HP)

Church of Scotland v. Changez Daniel

2010-10-28

DEEPAK GUPTA

body2010
JUDGMENT : Deepak Gupta, J. 1. This aforesaid second appeal has been admitted on the following substantial questions of law:-“1. Whether legal heirs of an employee who had been allotted by the employer rent-free accommodation by reason of his being in service, on death of the employee, can acquire status of a tenant within the meaning of Section 2(j) of the H.P.Urban Rent Control Act, 1987 thereby ousting the jurisdiction of the Civil Court to entertain a suit for possession by the employer against such legal representatives? 2. Whether for the application of the provisions of H.P.Urban Rent Control Act, 1987 the existence of relationship of a tenant and landlord is a sine qua non, more especially for the applicability of Section 2(j) and Section 14(3)(a)(ii) of the H.P.Urban Rent Control Act, 1987? 3. Whether the jurisdiction of the Civil Court to entertain the suit for eviction against the tenant is not barred within the meaning of Section 14(1) of the H.P.Urban Rent Control Act, 1987? 4. Whether on proper construction of the pleadings of the parties and correct interpretation of the provisions of H.P.Urban Rent Control Act, 1987 vis-à-vis the nature of the reliefs claimed in the instant suit, the jurisdiction of the Civil Court to entertain and adjudicate the suit is barred? 5. Whether the intricate disputed question of title raised qua the suit property, more especially when even a tenant sets up title in himself qua the suit property, in law, cannot be adjudicated by the Rent Controller under the Rent Control Legislation?” 2. The undisputed facts are that Reverend Daniel Tajdeen, father of the respondents here-in was employed as priest with the Church of Scotland (here-in-after referred to as the plaintiff). He was initially posted at Sialkot in the year 1946. He was transferred as priest in-charge of the church being run under the Church of Scotland at Chamba. It is also not disputed that the demised premises known as Pastor house/Manse situate in Chamba town alongwith land pertinent thereto comprise in Khasra No. 1440, 1441, 1441/1, 1442, 1443, 1443/1 and 8726/1446 measuring 3875 sq. yards and Khasra No. 2050 measuring 112-4 sq. yards in revenue estate Chamba. Reverend Daniel Tajdeen expired on 5.9.1987. His wife Mrs. Daniel Tajdeen expired on 8.2.1988. Thereafter, a suit was filed on behalf of the plaintiff on 10.07.1990 for possession of the suit property. yards and Khasra No. 2050 measuring 112-4 sq. yards in revenue estate Chamba. Reverend Daniel Tajdeen expired on 5.9.1987. His wife Mrs. Daniel Tajdeen expired on 8.2.1988. Thereafter, a suit was filed on behalf of the plaintiff on 10.07.1990 for possession of the suit property. The allegation in this suit was that Rev. Daniel Tajdeen, predecessor-in-interest of the respondents-defendants had been allotted the house and land in question free of cost in consideration of his rendering services to the Church. According to the plaintiff, since the Rev. Daniel Tajdeen, who was the employee of the Church, had expired, the respondents had no right to remain in possession of the property and they were ranked tress-passers therein. 3. Written statement was filed on behalf of the defendants and the stand of the defendants was that Rev. Daniel Tajdeen had been allotted the house known as Mission Hospital on payment of Rs.14/- as monthly rent. As far as the house situated in Khasra No. 2050 was concerned according to respondents only defendant/ respondent No.3 was in possession thereof. The respondents also claimed that the property was given to Rev. Daniel Tajdeen on payment of rent @ Rs.14/-per month which amount was being adjusted from his pay. Various other objections were raised but we are at this stage not concerned with all these objections. The issues which are relevant for decision are as follows:-“1. Whether this Court has no jurisdiction to try this suit, as alleged? OPD. 2. Whether the suit property is in the possession of the defendants as tenant, as alleged? OPD. 3. Whether the plaintiff is entitled to the possession of the disputed property? OPP. 4. Whether the defendant No.3 had purchased khasra Number 2050, as alleged? OPD.” 4. The parties led evidence and the learned trial Court decided the issues in favour of the plaintiff and against the defendants and the suit was decreed with costs for possession of the suit property and further for correction of the revenue record. 5. The respondents filed an appeal before the learned District Judge, Chamba, who vide his judgement dated 3.5.2000 set-aside the judgement and decree of the learned trial Court mainly on the ground that Rev. 5. The respondents filed an appeal before the learned District Judge, Chamba, who vide his judgement dated 3.5.2000 set-aside the judgement and decree of the learned trial Court mainly on the ground that Rev. Daniel Tajdeen was a tenant paying monthly rent of Rs.14/- per month and therefore, his legal heirs inherited the tenancy in terms of the provisions of the H.P.Urban Rent Control Act and consequently eviction of the tenant could only be ordered under the provisions of the said act and as such the Civil Court had no jurisdiction to try the suit. 6. To appreciate the rival contentions of the parties, it is necessary to refer to certain provisions of the H.P.Urban Rent Control Act, 1987. Tenant has been defined in Section 2(j) of the Act, which reads as follows:-“Tenant means any person by whom or on whose account rent is payable for a building or rented land and includes a tenant continuing in possession after termination of the tenancy and in the event of the death of such person such of his heirs as are mentioned in Schedule-I to this Act and who were ordinarily residing with him at the time of his death, subject to the order of succession and conditions specified, respectively in Explanation-I and ExplanationII to this caluse, but does not include a person placed in occupation of a building of rented land by its tenant, except with the written consent of the landlord, or a person to whom the collection of rent or fees in a public market , cart-stand or slaughter house or of rents for shops has been farmed out or leased by a municipal corporation or a municipal committee or a notified area committee or a cantonment board;” 7. We are not concerned with the explanation to this Section since it only deals with the order of succession and also provides that the succession shall be personal to the successor and shall not devolve upon the successor’s successor. 8. Under the provisions of the H.P. Urban Rent Control Act, 1987 eviction of a tenant can only be ordered by the Rent Controller on the grounds mentioned in Section 14 of the Act. 8. Under the provisions of the H.P. Urban Rent Control Act, 1987 eviction of a tenant can only be ordered by the Rent Controller on the grounds mentioned in Section 14 of the Act. Section 14 (1) of the Act reads as follows:-“A tenant in possession of a building or rented land shall not be evicted there from in execution of a decree passed before or after the commencement of this Act or otherwise, whether before or after the termination of the tenancy, except in accordance with the provisions of this Act.” 9. The only ground with which we are concerned is ground enumerated in Section 14(3)(ii) of the Act, which reads as follows:-“it was let to the tenant of use as a residence by reason of his being in service or employment of the landlord and the tenant has ceased, whether before or after commencement of this Act, to be in such service or employment Provided that where the tenant is a workman who has been discharged or dismissed by the landlord from his service or employment in contravention of the provisions of the Industrial Dispute Act, 1947, he shall not be liable to be evicted until the competent authority under that Act confirms the order of discharge or dismissal made against him by the landlord.” 10. The learned lower Appellate Court held that the heirs of Rev. Daniel Tajdeen were also tenants within the meaning of Section 2(j) of the Act and therefore, they could not be evicted in proceedings before a Civil Court. 11. The important question which arises for decision in this case is whether the heirs of an employee who has been allotted accommodation, will fall within the definition of tenant and would be covered by the provision of Section 2(j) of the Act or not? There is no manner of doubt that if an employee who has been allotted accommodation on payment of rent has to be evicted then proceedings for his eviction will lie only under Section 14(3)(ii) of the Act. The question that arises is whether this protection is available to the heirs or not? For the sake of this appeal, I am assuming that Rev. Daniel Tajdeen was paying monthly rent of Rs.14/- per month. As stated above, it is apparent that this Rs.14/- was being deducted from his salary. This is the case put up by the defendants themselves. For the sake of this appeal, I am assuming that Rev. Daniel Tajdeen was paying monthly rent of Rs.14/- per month. As stated above, it is apparent that this Rs.14/- was being deducted from his salary. This is the case put up by the defendants themselves. It is clear from the perusal of the written statement itself that the defendants admitted that the disputed property was allotted to Rev. Daniel Tajdeen in view of the fact that he had been posted as priest of the Church at Chamba. Even if Rs.14/- per month was being charged from him this would not make the tenancy independent of his employment. The property belongs to the Church. The rent was being adjusted from the salary and as such it can be held that Rev. Daniel Tajdeen was occupying the premises only on account of his being an employee of the Church. 12. If we peruse Section 14(3)(ii) carefully, it provides that when some residence has been let out to a tenant for use by reason of his being in service of the landlord and the tenant has ceased to be in such service or employment then the employer/landlord has the right to get the premises vacated. We are not concerned with the proviso, since the proviso deals only with such a tenant who is a workman within the meaning of Industrial Dispute Act, 1947 and the proviso only lays down that such a tenant shall not be evicted unless the order of termination made against him is confirmed by the competent authority under the Act. It is obvious that the Act itself provides that as soon as a tenant who has been allotted rented accommodation on account of his being an employee, ceases to be an employee the landlord has a right to evict such a tenant. Eviction of such a tenant can be sought under Section 14(3)(ii) of the Act. The learned lower appellate Court held that in view of the definition of tenant in Section 2(j) the heirs of a tenant in the event of his death are deemed to be tenants. On behalf of the appellant, it is urged that the concept of heritability of tenancy cannot be extended to employees since the employee has no right to retain the premises beyond his employment. 13. There is apparent conflict between Section 2(j) and Section 14(3)(ii). On behalf of the appellant, it is urged that the concept of heritability of tenancy cannot be extended to employees since the employee has no right to retain the premises beyond his employment. 13. There is apparent conflict between Section 2(j) and Section 14(3)(ii). As pointed out above under Section 14(3)(ii) any tenant can be evicted as soon as he ceases to be in employment. On the other hand, Section 2(j) extends the protection of the Rent Control Act to the heirs mentioned in Schedule-I of the Act. There is apparent conflict between these two provisions. When an employee is given accommodation in consideration of his being in employment even if rent is being deducted from his salary the understanding between the parties is very clear that such tenancy comes to an end on the cessation of the employment. On the other hand as far as the tenancy under normal law is concerned the same is heritable, does not come to an end and therefore, the legislature in its wisdom extended the protection of the Rent Control Legislation to the heirs specified in the schedule but limited the protection to them alone and not the successors. 14. In my considered view this benefit cannot be extended to the heirs in a case where the employee is allotted accommodation on account of his employment. This will negate the very purpose of giving accommodation to an employee. We need not look at any other example. In the present case itself both Rev. Daniel Tajdeen as well as is widow expired before the filing of the suit. The heirs are not employees of the Church. They have no right to continue in possession. They in my humble opinion cannot be treated to be the tenants within meaning of Section 2(j). When there is conflict between two provisions of the Act they must be construed harmoniously and in such a manner that both the provisions can co-exist peacefully. If heirs of an employee/tenant are given the benefit of succession the very purpose of making cessation of employment a ground of eviction would be nullified. Though statutory tenancy in view of Section 2(j) may be heritable but this benefit of heritability in my considered opinion cannot be extended to the heirs of an employee tenant. 15. In case the interpretation as above is not given it will lead to absurd results. Though statutory tenancy in view of Section 2(j) may be heritable but this benefit of heritability in my considered opinion cannot be extended to the heirs of an employee tenant. 15. In case the interpretation as above is not given it will lead to absurd results. We may take the case of an employee, who has been granted official accommodation. The services of such an employee are terminated but he refuses to vacate the accommodation. An eviction petition is filed against him. Obviously, he has no defence available to him except to say that the order of his termination is illegal. If the termination is legal, he is bound to be evicted. In case such a tenant dies during the course of proceedings and his legal heirs are brought on record can the legal heirs claim that they are tenants under Section 2(j) and as such entitled to the protection of the Act and cannot be evicted except if one of the grounds mentioned in the Act is available to the landlord. The obvious answer is that they cannot be placed on a better footing than the person from whom they claim to inherit the tenancy. Therefore, it is obvious that the heirs of an employee-tenant cannot be termed to be tenant(s) within the meaning of Section 2(j) of the Act. 16. In view of the above discussion the substantial question No.1 is answered by holding that the legal heirs of an employee granted accommodation by reason of his service do not acquire the status of tenant within the meaning of Section 2(j) of the H.P.Urban Rent Control Act. Consequently, it is not necessary to answer the other questions of law framed. 17. In view of the above discussion, the appeal is allowed and the judgement of the learned Appellate Court is set-aside and the judgement and decree passed by the learned trial Court is upheld and the suit of the plaintiff-appellant is decreed with costs for possession of Pastor house/manse comprising Khata Khatouni No.703min/829, Khasra Nos.1440, 1441, 1441/1, 1442, 1443, 1443/1 and 8726/1446 measuring 3879 Square-yards and property bearing Khasra Number 2050 Khata Number 751 min Khatouni Number 873 situated in Mouja Chamba Sehar-II, Chamba town, Distt. Chamba as entered in Jamabandi for the year 1990-91 and entries in the revenue record showing Daniel S/o Tajdeen in possession of the land bearing Khasra No. 1440, 1441, 1441/1, 1442, 1443/1, 8726/1446 measuring 3879.5 square yards are wrong and illegal. Decree sheet be drawn up accordingly.