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2015 DIGILAW 834 (RAJ)

Sumit Manchanda v. Appellate Rent Tribunal, Kota

2015-04-13

PRAKASH GUPTA, SUNIL AMBWANI

body2015
JUDGMENT : We have heard learned Senior Counsel appearing for the appellant. 2. This D.B. Civil Special Appeal(W) No. 266/2015, is directed against the judgment of learned single Judge, dated 15-1-2015, by which he has upheld the order passed by the Rent Appellate Tribunal, Kota, whereby the petition for eviction of the appellant from the disputed shop, was allowed on the ground of bona fide need of the landlord. 3. The Rent Appellate Tribunal recorded for finding that apart from bona fide need, which was established, the tenant had also denied the title of the land, which alone was sufficient to pass the eviction order. 4. It is submitted that shop Nos. 4 and 5 in the same premises, owned by the respondent-landlord, were sold by him prior to filing of the eviction petition in the year 2003. The findings that these two shops belonged to his family members, which were sold by them, is erroneous, inasmuch as these two shops were also owned by the landlord. On the plea that the landlord also, owns an open space of 9x30 sq. ft. in the same premises, on which he can construct the shop, the Rent Appellate Tribunal has erred in law in recording a finding that on this 9 ft. wide passage, there is 2½ ft. wide staircase, and that the remaining portion is open to sky. The open space could be used by the landlord for constructions and for his occupation. 5. It is submitted by learned counsel appearing for the appellant that during pendency of the proceedings before the Rent Appellate Tribunal, the landlord had sold the 9x30 sq. ft. open space and that in the sale deed, he had admitted that Shop Nos. 4 and 5 were also sold by him. After rejecting the application for additional evidence, findings were recorded only on the basis of the pleadings, ignoring relevant evidence, and the petition for eviction was allowed. 6. We do not find that the arguments regarding availability of shop Nos. 4 and 5 to the landlord, which were sold by him prior to filing of the eviction petition in the year 2003, and the recitals in the sale deed in respect of 9x30 sq.ft. area regarding its ownership, were raised before learned single Judge. 6. We do not find that the arguments regarding availability of shop Nos. 4 and 5 to the landlord, which were sold by him prior to filing of the eviction petition in the year 2003, and the recitals in the sale deed in respect of 9x30 sq.ft. area regarding its ownership, were raised before learned single Judge. The mention of these two shops and the open space in the judgment, is in reference to narration of the facts of the case, and not the arguments, which were raised before learned single Judge. 7. Learned single Judge has affirmed the findings against the appellant on the ground that the Rent Appellate Tribunal is a final Court of facts, which had considered all the questions and had returned the findings against the appellant. 8. In the end, learned counsel appearing for the appellant has prayed for a reasonable time to vacate the shop. He submits that the Executing Court is likely to issue a warrant for eviction, and thus, this Court may allow some time to vacate the shop, in which the appellant is running his business. 9. Section 15(7)(8) of the Rajasthan Rent Control Act, 2001 (for short, the Act of 2001) provides for six months time, during which an eviction decree shall not be executed after the orders of eviction are passed in respect of a non-residential accommodation. The order was passed by the Rent Appellate Tribunal on 29-10-2012, providing six months time to the appellant to vacate the shop, during which the eviction decree was not to be executed. 10. Learned single Judge decided the matter on 15-01-2015. This Special Appeal has been filed after a period of about three months, and that the tenant-appellant has sought a reasonable time to vacate the premises only after his counsel could not successfully challenge the findings recorded against him. 11. In this case, we find that an eviction petition filed in the year 2003, was pending for about 12 years, within which the counsel appearing for tenant-appellant must have availed several adjournments. The Rent Appellate Tribunal allowed six months statutory period to vacate the premises, and that no more than three months have passed since the judgment was rendered by learned single Judge, in this long period of time, the landlord should have made alternative arrangements for shifting his business. 12. The Rent Appellate Tribunal allowed six months statutory period to vacate the premises, and that no more than three months have passed since the judgment was rendered by learned single Judge, in this long period of time, the landlord should have made alternative arrangements for shifting his business. 12. It is submitted that the High Court ordinarily, grants time in almost every case, while dismissing the writ petition of the tenant, to vacate the premises. The relief, molded in equity, has been made applicable by the High Court, as a matter of practise, and thus, the appellant should not be denied the relief of a reasonable time for vacating the disputed shop. 13. Section 15(7), (8) of the Act of 2001, provides six months time, during which an eviction decree shall not be executed, after the orders of eviction are passed. The provisions of Section 15(7), (8) of the Act of 2001, are quoted as below : "15. Procedure for eviction of tenant. (1)................ (7) Where the Rent Tribunal decides the petition in favour of the landlord, it shall issue a certificate for recovery of possession from the tenant. (8) The certificate issued under sub-section (7) shall not be executable for a period of three months from the date of decision : (Provided that in case of premises let out for commercial use such certificate shall not be executable for a period of six months from the date of decision)." 14. We do not find any justification to make any orders, giving any further time to the appellant to vacate the premises, for the reasons that the practise of grant of time, does not bind the Court, in view of the settled principles that the equity has been excluded when the matter is governed by the statute. In Sandur Manganese and Iron Ores Limited v. State of Karnataka (2010) 13 SCC 1 : (AIR 2011 SC (Civ) 1206) the Supreme Court held, in the matters of exercise of statutory powers by the State Government, that the exercise must be done strictly in accordance with the statutory provisions, and if there is any deviation, the same cannot be sustained. In paragraph 83, it was held that when the field is covered by statutory provisions, equitable considerations cannot be taken into account, as the recommendations against the statutory provisions will be in violation of the statutes. 15. In paragraph 83, it was held that when the field is covered by statutory provisions, equitable considerations cannot be taken into account, as the recommendations against the statutory provisions will be in violation of the statutes. 15. In the present case, when the statutes itself provides for six months time to vacate the premises let out for commercial use, during which an eviction decree is not be executed, the powers to extend the time should not be ordinarily exercised by the High Court under Article 226 of the Constitution, as it not only extends the statutory period, but also causes hardships to the landlord. Since the time is being granted by the Court practically in all the matters of the tenants, and that some of the petitioners are filed only for seeking time, it is necessary, to provided some guidelines in this regard, namely :- (i) The extraordinary powers under Article 226 of the Constitution of India for allowing time beyond the statutory period for vacating the premises, whether residential or commercial, should not be exercised as a matter of course, and in any case, the time cannot be granted in absence of the representation of the landlord in the case. If a caveat has not been filed by the landlord, the time cannot be granted in his absence, to his detriment. (ii) While exercising extraordinary powers, to extend the time beyond the statutory period fixed by the statutes, the High Court must ensure that the plea for grant of time is necessary to avoid any extraordinary hard-ships, in vacating the premises. The High Court must record such findings giving necessary facts to record its satisfaction. (iii) The tenant, in seeking any time beyond the statutory limit, must make necessary pleadings about the adjournments taken by him in the proceedings, in which the matter was pending in the Rent Tribunal/Rent Appellate Tribunal, and in the High Court, and number of adjournments taken by the landlord. The Court must take into account the total period spent by the tenant in pursuing the proceedings, and the number of attempts made by the landlord to delay the proceedings. 16. It is a matter of common practise and experience, that the tenant delays the proceedings ad nousetum, to avoid the decree of eviction. The Court must take into account the total period spent by the tenant in pursuing the proceedings, and the number of attempts made by the landlord to delay the proceedings. 16. It is a matter of common practise and experience, that the tenant delays the proceedings ad nousetum, to avoid the decree of eviction. An order of eviction statutory terminates the contract of tenancy and thus, in seeking time for vacating the premises, if the aforesaid three conditions are satisfied, the Court must ensure that the landlord is compensated by sufficient amount towards use and occupation of the premises, for which the Court permits the tenant to occupy the premises. The compensation for use and occupation must be measured in terms of the prevailing rent, on which such premises are let out in the area. 17. We do not find that any of the aforesaid conditions exists in the present case. There are no pleadings regarding any extraordinary hardships, which will be caused to the tenant, and which were not considered by the Courts below. The proceedings, were pending in the Rent Tribunal, Rent Appellate Tribunal and before learned single Judge, for a period of 12 years. The tenant has not pleaded, as to how many adjournments he has taken to delay the proceedings. 18. In the circumstances, we are not inclined to issue notice to the respondent-land-lord, only to consider to grant time beyond the statutory period for vacating the premises. We are also of the view that since equity begets equity, there are no such circumstances in this case, nor there is any pleadings to that effect, to grant any further time beyond the statutory period, to vacate the premises. 19. The Special Appeal is dismissed.