IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. Regular Second Appeal No.861 of 2005 (O&M) Sat Pal … Appellant Versus Joginder Singh … Respondent 2. Regular Second Appeal No.862 of 2005 (O&M) Mehar Chand … Appellant Versus Joginder Singh … Respondent 3. Regular Second Appeal No.863 of 2005 (O&M) Inder Sain … Appellant Versus Joginder Singh … Respondent 4. Regular Second Appeal No.2101 of 2005 (O&M) Inder Sain and another … Appellants Versus Bhagwati Parshad and others … Respondents 5. Regular Second Appeal No.2127 of 2005 (O&M) Mangat Ram … Appellant Versus Sushil Kumar … Respondent 6. Regular Second Appeal No.2129 of 2005 (O&M) M/s Hari Chand Ishwar Dass and another … Appellants Versus Jai Parkash … Respondent Date of decision: 23rd December, 2011 Regular Second Appeals No.861, 862, 863, 2101, 2127 and 2129 of 2005 CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. V.K. Jain, Senior Advocate with Mr. J.L. Malhotra, Advocate and Mr. Alok Jain, Advocate for the appellant(s). Mr. Y.K. Sharma, Advocate for respondent(s) in RSA Nos.861, 862 & 863 of 2005. Ms. Alka Sarin, Advocate for respondent(s) in RSA Nos. 2127 and 2129 of 2005. None for the respondent in RSA No.2101 of 2005. KANWALJIT SINGH AHLUWALIA, J. These six regular second appeals, raising a common question of law, have been listed together for final adjudication. Four of these appeals, viz. RSA No.861, 862, 863 and 2101 of 2005 pertain to Sadhaura, which was earlier administered by the Municipal Committee and by issuance of a subsequent notification dated 2nd March, 2000, Municipality of Sadhaura was abolished and a Gram Panchayat was constituted. The other two appeals, viz. RSA No.2127 and 2129 of 2005, pertain to Radaur, the Municipality of which was also, by notification dated 2nd March, 2000, constituted as a Gram Panchayat by abolishing Municipality. The question, which arises for consideration of this Court in these appeals, is: Whether the provisions of Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter referred to as, ‘the Act’) will be applicable and the suit for possession by way of ejectment is maintainable or not in terms of the definition of ‘urban area’ given under Clause (i) of Section 2 of the Act. In other words, whether on the basis of 2 Regular Second Appeals No.861, 862, 863, 2101, 2127 and 2129 of 2005 evidence, the Court will determine the character of a town or a village to be urban or it will strictly comply with the definition to invoke provisions of the Act? Though the question of law is common, facts of each case are different; therefore, each appeal shall be dealt with separately. Civil Misc. No.2267-C of 2005 in Regular Second Appeal No.861 of 2005 The application is allowed and the documents (Annexures A-1 to A-3) are taken on record. Regular Second Appeal No.861 of 2005 To answer the question of law, first brief facts are required to be recapitulated. Joginder Singh respondent-plaintiff filed a suit for possession by way of ejectment of Sat Pal appellant-defendant from a shop bearing No.5, measuring 10 feet x 20 feet along with Varandah, the details and description whereof were given in the head note of the plaint. This Court need not to notice inception of tenancy and rate of rent, suffice it to say that the landlord-respondent-plaintiff served a legal notice dated 1st September, 2000 upon the tenant-appellant-defendant calling upon him to hand over physical possession of the demised shop within 15 days from the date of receipt of the notice. In the notice, he also demanded arrears of rent with effect from 1st May, 2000 to 31st August, 2000 @ Rs.300/- per month amounting to Rs.1,200/- with interest @ 12 % per annum. Since the tenant had not handed over possession of the demised shop, the suit was filed for possession by way of ejectment and a further claim was raised that the landlord- 3 Regular Second Appeals No.861, 862, 863, 2101, 2127 and 2129 of 2005 respondent-plaintiff is entitled to recover the mesne profit @ Rs.1,000/- per month. The tenant-appellant-defendant raised a plea that he is a tenant in the demised shop since the year 1960. He admitted the prevalent rate of rent as Rs.300/- per month but he took a plea that when the tenancy was created, Sadhaura was a Municipal Committee and therefore, provisions of the Act would be applicable. It was further pleaded that abolition of Municipal Committee pertaining to Sadhaura in the month of May 2000 will not affect urban character of Sadhaura and therefore, Civil Court has no jurisdiction to try the suit and eviction could only be caused by approaching the Court of Rent Controller under the Act. The trial Court formulated following issues: “1. Whether the plaintiff is entitled to get the possession of the suit land by way of ejectment of the defendant from the demised shop, as alleged? OPP 2. Whether the plaintiff is entitled to recover Rs.1200/- along with interest at the rate of 12% per annum on account of arrears of rent w.e.f. 01.05.2000 to 30.08.2000 at the rate of Rs.300/- P.M. and Rs.200/- being the amount from 01.09.2000 to 20.09.2000 for the use and occupation of the demised shop? OPP 3. Whether the plaintiff is entitled to recover mesne profits at the rate of Rs.1000/- per month from the date of filing of the suit till the delivery of possession? OPP 4. Whether the suit is bad for non-joinder of necessary parties? OPD 5. Whether the suit is not maintainable in the present form? OPD 6. Relief.” The trial Court dismissed the suit primarily on the ground that the same was not maintainable in the present form. The Court relied 4 Regular Second Appeals No.861, 862, 863, 2101, 2127 and 2129 of 2005 upon testimony of Gurnam Singh DW-3, Senior T.O. Accounts Office, who stated that relying upon 2001 census Bharat Sanchar Nigam Limited had decided to treat Sadhaura as a city/town and therefore, the tariff of an urban area is applicable and not of rural area. The trial Court noticed as under: “9. … … … Accordingly, it has been decided that for charging of monthly telephone rentals, the classification of the areas into Urban and Rural and vice- versa, be made as per the latest Census Report of 2001. The monthly rentals based on such classification shall be implemented for all subscribers with effect from 01.05.2002… … …” The trial Court concluded as under: “9. … … … Taking this view of the matter, I am of the view that the provisions of Haryana Urban (Control of Rent & Eviction) Act, 1973 are applicable in the case at hand and the Civil Court has no jurisdiction to entertain and try this suit, which is not maintainable in the present form… … …” On an appeal filed by the landlord, the above said findings were reversed. The lower appellate Court relied upon the definition of the term ‘urban area’ given under Clause (i) of Section 2 of the Act. The same reads as under: “Urban Area means any area administered by a Municipal Committee, notified area committee, Faridabad Complex Administration of any area declared by the State Government by notification to be urban area for the purpose of this Act.” 5 Regular Second Appeals No.861, 862, 863, 2101, 2127 and 2129 of 2005 The lower appellate Court held that Sadhaura, where the property is located, is neither administered by a Municipal Committee nor by Notified Area Committee nor by Faridabad Complex Administration, nor has it been declared as urban area by the State Government by notification for the purpose of the Act. Therefore, the provisions of the Act will not be applicable. The trial Court was bound to strictly comply with the provisions of the Act and it committed an illegality in relying upon the circular issued by Bharat Sanchar Nigam Limited to arrive at a conclusion that the suit property is situated within the urban area and hence, the lower appellate Court accepted the appeal and ordered eviction of the tenant-appellant-defendant. When the present appeal was admitted, a writ petition assailing the notification, whereby the Municipal Committee was abolished, was pending in this Court. Therefore, the present regular second appeal was ordered to be heard along with the civil writ petition assailing the notification. On March 26, 2010, a Division Bench of this Court ordered that since the writ petitions have either been dismissed for non- prosecution or as withdrawn, the regular second appeals be heard by the appropriate Bench as per roster. Hence, these appeals are before this Bench. In the grounds of appeal, following have been framed as substantial questions of law: “(i) Whether the provisions of the Haryana Urban (Control of Rent and Eviction) Act, 1973 would be applicable to the area of Sadhaura, in view of the fact that the residents are paying telephone bills, electricity bills, water bills etc. at the rate of urban area or it would termed to be a non-urban area in the absence of a Municipal Committee? 6 Regular Second Appeals No.861, 862, 863, 2101, 2127 and 2129 of 2005 (ii) Whether the Notification dated 02.03.2000, issued by the State of Haryana, is valid or not? (iii) Whether the Notice, Exh.P-1, which does not conform to the requirements of Section 106, can be termed to be valid or not?” So far as the question No.(ii) is concerned, challenge in the writ petitions to the notification has already come to an end, therefore, the notification has received approval of this Court. Furthermore, on question No.(iii) there was no serious challenge before the courts below. The lower appellate Court held that the notice was received by the tenant-appellant-defendant and he had replied it stating that the same was illegal and defective. Furthermore, the Court held that since provisions of Section 106 of the Transfer of Property Act, 1882 are not strictly applicable to the States of Haryana and Punjab, on application of equitable principles a reasonable time of 15 days in the notice was given to the tenant to vacate the premises. The findings of the lower appellate Court regarding validity of the notice Ex.P1 suffer from no infirmity and the notice issued by the landlord complied with the provisions of Section 106 of the Transfer of Property Act, 1882 and furthermore, no serious arguments were advanced qua this question termed as question No.(iii). Thus, this Court has to concentrate on substantial question No.(i) alone. Mr. V.K. Jain, Senior Advocate assisted by Mr.J.L. Malhotra and Mr.Alok Jain, Advocates appearing on behalf of the appellants, has contended that Sadhaura is essentially an urban area and narrated its history. It was urged that Sadhaura was constituted as a Municipal Committee by the then British Government in the year 1885 vide notification No.1044-5 dated 22nd August, 1885 and it was notified as a Municipal Committee along with Lahore (now in Pakistan). Furthermore, 7 Regular Second Appeals No.861, 862, 863, 2101, 2127 and 2129 of 2005 it was stated that the notification dated 2nd March, 2000, by which Municipality of Sadhaura was abolished and was treated as a Gram Panchayat, was a malafide act on the part of the then Chief Minister. It was further stated that during the pendency of the present appeal, vide notification No.18/3/2006-3C1 dated 28th March, 2006 Sadhaura was again constituted as a Municipal Committee but later-on vide notification No.18/1/2005-3C1 dated 28th February, 2007 Municipal Committee was again abolished and Sadhaura was constituted as a Gram Panchayat. It is apparent that on the date of institution of the suit, at the time of decision of first appeal and as on today, Sadhaura remained a Gram Panchayat. Therefore, on a bare perusal of the definition of ‘urban area’ given in the Act, Sadhaura cannot be treated as an urban area and provisions of the Act are not applicable. It will be necessary to notice that the question raised herein was also a subject matter of RSA No.559 of 2006 titled as ‘Jaswinder Kumar v. Parkash Lal’ decided on 3rd February, 2006, wherein a Single Bench of this Court had held as under: “Learned counsel appearing for the tenant-appellant has argued that in fact Sadhaura was an urban area and therefore, the protection of the Rent Control Legislation was applicable. However, during the course of the arguments, it was conceded by the learned counsel that on the date of filing of the suit and as of today also, Sadhaura, where the property in question is situated is not having a municipal council. In these circumstances, the argument of the learned counsel appearing for the tenant- appellant cannot be accepted and it cannot be held that the Rent Control Legislation shall protect the relationship between the parties.” 8 Regular Second Appeals No.861, 862, 863, 2101, 2127 and 2129 of 2005 The above said findings given in Jaswinder Kumar’s case (supra) were challenged in Special Leave to Appeal (Civil) No.7729 of 2006. On 8th May, 2006, the above said Special Leave to Appeal was dismissed. Besides Sadhaura, where the demised property is situated, another town Radaur had a similar background. There also, the Municipality was abolished and Gram Panchayat was constituted. Therefore, a similar question was raised in ‘Leela Kishan v. Devi Sarup’ (RSA No.1235 of 2007 decided on 13th July, 2010), and the Court held that with the abolition of Municipality, provisions of the Act will not be applicable. The Special Leave to Appeal (Civil) No.26692 of 2010 filed against Leela Kishan’s case (supra) was also dismissed on 27th September, 2010. Mr. V.M. Jain, Senior Counsel has relied upon a Full Bench judgment of this Court rendered in ‘Sawan Ram v. Gobinda Ram and another’ 1980 Vol.LXXXII PLR 271 to say that with the enactment of the Act, jurisdiction of the Civil Court is barred. I fail to understand as to how the ratio of law laid down in Sawan Ram’s case (supra) advances the case of the tenant-appellant- defendant. The issue in the present appeal is applicability of the Act. Once the area, where the demised shop is situated, does not fall within the definition to which the Act is applicable, the only inference is that the jurisdiction will vest in the Civil Court. Next, it has been vehemently contended that since Sadhaura became a Municipality on 28th March, 2006, the decree passed by the lower appellate Court became in-executable. In support of this, reliance has been placed upon ‘Ram Narain and others v. Ram Lal and others’ 2004 (1) PLR 634; ‘Diwan Chand v. M/s Amar Nath 9 Regular Second Appeals No.861, 862, 863, 2101, 2127 and 2129 of 2005 Prem Nath’ 1986 (1) RCR (Rent) 521 and ‘H. Shiva Rao and another v. Cecilia Pereira and others’ 1987(1) RCR (Rent) 273. To buttress this argument, further reliance has been placed upon ‘Kiran Singh and others v. Chaman Paswan and others’ 1954 AIR (SC) 340 to contend that the decree passed by a Court without jurisdiction, is a nullity. It is urged that for the period between 28th March, 2006 to 28th February, 2007 application of the Act was revived and thus, between that period the decree became in-executable and hence, will continue to be a nullity. This issue, to some extent, has been dealt with by a Single Bench of this Court in ‘Smt. Sarvjit Kaur v. Gurcharan Singh’ 2010 (4) PLR 154 wherein it was held as under: “7. The suit was instituted on 15.09.2003. On that date, Radaur was admittedly Gram Panchayat and therefore, provisions of the Haryana Rent Act were not applicable to the demised property. Consequently, civil court had jurisdiction to try the ejectment suit. Rights of the parties had to be determined at the time of the institution of the suit. In this context, it may be noticed that even in urban areas, provisions of the Haryana Rent Act are not applicable to a building for ten years after its completion. If ejectment suit is filed during the said period of ten years, civil court continues to have jurisdiction to pass ejectment decree in such a suit, even if provisions of the Haryana Rent Act become applicable to the demised property during the pendency of the suit, on expiry of the initial period of ten years from the date of completion of the building. On the same analogy, in the instant case, provisions of the Haryana Rent Act were not applicable when the suit was instituted and therefore, applicability of provisions of the Haryana Rent Act during the pendency of the suit on declaration of Radaur as municipal town would not divest the civil court of its jurisdiction to try the suit.” 10 Regular Second Appeals No.861, 862, 863, 2101, 2127 and 2129 of 2005 Furthermore, to counter the arguments raised by counsel for the appellants, counsel for the respondent has relied upon ‘Sudhir G. Angur and others v. M. Sanjeev and others’ (2006) 1 SCC 141 to urge that the law as existing on the date of institution of the suit or on the date on which the suit comes for hearing is to be considered by the Court. The relevant portion of the judgment rendered in Sudhir G. Angur’s case (supra) reads as under: “11. In our view, Mr. G.L. Sanghi is also right in submitting that it is a law on the date of trial of the suit which is to be applied. In support of this submission, Mr. Sanghi relied upon the Judgment in ‘Shiv Bhagwan Moti Ram Saraoji v. Onkarmal Ishar Dass’, A.I.R. (1952) Bombay 365, wherein it has been held that no party has a vested right to a particular proceeding or to a particular forum. It has been held that it is well settled that all procedural laws are retrospective unless the Legislature expressly states to the contrary. It has been held that the procedural laws in force must be applied at the date when the suit or proceeding comes on for trial or disposal. It has been held that a Court is bound to take notice of the change in the law and is bound to administer the law as it was when the suit came up for hearing. It has been held that if a Court has jurisdiction to try the suit, when it comes on for disposal, it then cannot refuse to assume jurisdiction by reason of the fact that it had no jurisdiction to entertain it at the date when it was instituted. We are in complete agreement with these observations. As stated above, the Mysore Act now stands repealed. It could not be denied that now the Court has jurisdiction to entertain this suit.” In view of the observations made by Hon’ble the Apex Court in Sudhir G. Angur’s case (supra), I have no hesitation to reject the 11 Regular Second Appeals No.861, 862, 863, 2101, 2127 and 2129 of 2005 arguments advanced by counsel for the appellant. The date when the suit was filed and as on today when the appeal is being decided, Sadhaura and Radaur continued to be a Gram Panchayat. Hence, provisions of the Act are not applicable. The date the suit was instituted, it was decided and furthermore, the date when the appeal, which is a continuation of suit, is being decided; Sadhaura and Radaur were, remained and continue to be a Gram Panchayat. Thus, the question formulated at the outset is answered in favour of the landlord by holding that the area, where the demised shop is situated, cannot be termed as an area falling within the definition of Clause (i) of Section 2 of the Act. Therefore, the provisions of the Act cannot be invoked and the Court cannot take any other evidence to determine the character of the area as urban or rural, except which expressly and specifically falls within the definition of ‘urban area’ given in the Act. Consequently, there is no merit in the present appeal and the same is hereby dismissed. Civil Misc. No.2269-C of 2005 in Regular Second Appeal No.862 of 2005 The application is allowed and the documents (Annexures A-1 to A-3) are taken on record. Regular Second Appeal No.862 of 2005 This appeal also pertains to Sadhaura, where by a notification the Municipality was abolished and a Gram Panchayat was constituted. Herein also, the respondent-landlord had filed a suit for possession by way of ejectment of the appellant-tenant. Except the date of inception of tenancy and rate of rent, the question of law formulated by this Court and the substantial questions of law raised by counsel for the appellant are identical. Thus, in view of the 12 Regular Second Appeals No.861, 862, 863, 2101, 2127 and 2129 of 2005 answer given to the above said questions in RSA No.861 of 2005, present appeal is also dismissed. Civil Misc. No.2272-C of 2005 in Regular Second Appeal No.863 of 2005 The application is allowed and the documents (Annexures A-1 to A-3) are taken on record. Regular Second Appeal No.863 of 2005 This appeal also pertains to Sadhaura, where by a notification the Municipality was abolished and a Gram Panchayat was constituted. Herein also, the respondent-landlord had filed a suit for possession by way of ejectment of the appellant-tenant. Except the date of inception of tenancy and rate of rent, the question of law formulated by this Court and the substantial questions of law raised by counsel for the appellant are identical. Thus, in view of the answer given to the above said questions in RSA No.861 of 2005, present appeal is also dismissed. Civil Misc. No.5577-C of 2005 in Regular Second Appeal No.2101 of 2005 The application is allowed and the documents (Annexures A-1 and A-2) are taken on record. Regular Second Appeal No.2101 of 2005 This appeal also pertains to Sadhaura, where by a notification the Municipality was abolished and a Gram Panchayat was constituted. In the present case, a suit for possession by way of ejectment of the tenant was filed by the landlord. The same was decreed and the appeal filed by the tenant was dismissed. 13 Regular Second Appeals No.861, 862, 863, 2101, 2127 and 2129 of 2005 This Court need not to notice description of the suit property, commencement of the tenancy and the rate of rent as the question of law formulated by this Court and the substantial questions of law raised by counsel for the appellants are identical to those, which have been noticed and answered against the tenant-appellant in RSA No.861 of 2005. Hence, for the detailed reasons given in RSA No.861 of 2005, the present appeal is also dismissed. Civil Misc. No.5638-C of 2005 in Regular Second Appeal No.2127 of 2005 The application is allowed and the documents (Annexures A-1 and A-2) are taken on record. Regular Second Appeal No.2127 of 2005 This appeal pertains to Radaur, where also by a notification the Municipality was abolished and a Gram Panchayat was constituted. In the present case, a suit for possession by way of ejectment of the appellant-tenant was filed by the respondent-landlord. The same was decreed and the appeal filed by the tenant was dismissed. This Court need not to notice description of the suit property, commencement of the tenancy and the rate of rent as the question of law formulated by this Court and the substantial questions of law raised by counsel for the appellant are identical to those, which have been noticed and answered against the tenant-appellant in RSA No.861 of 2005. Hence, for the detailed reasons given in RSA No.861 of 2005, the present appeal is also dismissed. 14 Regular Second Appeals No.861, 862, 863, 2101, 2127 and 2129 of 2005 Civil Misc. No.5642-C of 2005 in Regular Second Appeal No.2129 of 2005 The application is allowed and the documents (Annexures A-1 and A-2) are taken on record. Regular Second Appeal No.2129 of 2005 This appeal pertains to Radaur, where also by a notification the Municipality was abolished and a Gram Panchayat was constituted. In the present case, a suit