IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.: 506 of 2004 Reserved on.: 9.7.2009 Date of decision : 7.8.2009 Sunit Kumar Appellant. Versus Laxmi Chand Respondent Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the Appellant: Mr. Bhupinder Gupta, Sr. Advocate with Mr. Neeraj Gupta, Advocate. For the Respondent : Mr. Ajay Kumar with Ms. Shilpa Sood, Advocates. Per Deepak Gupta, J. Interesting questions arise in these matters. The State Government in exercise of the powers conferred on it under Section 2(k) of the H.P.Urban Rent Control Act, 1987 (here-in- after referred to as the Rent Act) sometimes declares the area of Kandaghat to be an urban area and sometimes this notification is withdrawn. When the area of Kandaghat was not within the purview of the Rent Act, civil suits were filed for eviction of the tenants. In the mean time, the area was brought within the ambit of the Rent Act. However, before the decrees could be passed or executed fresh notification was issued again bring the area within the purview of the Rent Act. Later this notification was also withdrawn. Now, the area of Kandaghat has again been declared to be an 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. 2 urban area and thus the Rent Act is again applicable. This has given rise to various disputed questions of law with regard to the jurisdiction of the Civil Court to pass a decree and also in respect of the executability of such decrees. RSA No. 506 of 2004 was listed before the then Hon’ble Chief Justice on 30th November, 2004 on which date the order of admission was passed, relevant portion of which reads thus:- “My attention has been invited to notification No. UD- E(3)-35/97 dated 30th May, 2003 whereby the State Government rescinded the earlier notification of even No. dated 11.11.1998. This was done in purported exercise of the powers vested in the State Government under Clause (k) of Section 2 of H.P. Urban Rent Control Act, 1987. The suit was filed in the Court of Sub Judge Kandaghat in 1995 when admittedly 1987 Act was not applicable to the property in question. It was during the pendency of the suit that in 1998 vide the aforesaid notification dated 11.11.1998 this Act was made applicable. As noticed, the aforesaid notification dated 30th May, 2003 has once again made the Act inapplicable to the property in question. Evidently this has been done by rescinding the notification dated 11.11.1998. In the aforesaid background, therefore, what is the extent, if at all, of the enforceability of the decree impugned passed by the learned Trial Court and upheld by the learned first Appellate Court. In the aforesaid background, the appeal is admitted only on the two questions of law being question Nos. 4 and 5 as formulated by the appellant appended to the memo of appeal. xxx…. Xxx… xxx…. Xxx…. Because of the important question of law involved touching upon the interpretation given to Section 14(1) of 1987 read with other provisions of the Act with respect to the definition of the urban area as occurring in Section 2(k) of the Act and in the light of the aforesaid two notifications dated 11.11.1998 and 30th May, 2003, the appeal is referred to a Division Bench of this Court.” 3 This is how RSA No. 506 of 2004 is before a Division Bench for final hearing. The appeal was admitted on the following substantial questions of law:- 1. Whether both the Courts below have further acted without jurisdiction in passing a decree of ejectment by ignoring the observations made by the learned District Judge in its order dated 28th October, 2000 in Civil Misl. Appeal whereby the suit of the plaintiff-respondent was remanded to the trial Court with an observation that decree passed by the trial Court would be unexecutable? Were not the said observations made by the learned District Judge, which have attained finality binding on both the courts below? 2. Whether both the courts below have committed grave error of jurisdiction in granting a decree in favour of the plaintiff-respondent on the basis of notice which lost its validity due to enforcement of the HP Urban Rent Control Act? Was not it incumbent for the plaintiff- respondent to have again served a notice on the defendant-appellant before the institution of the suit? Was not the suit filed by the plaintiff-respondent lost its validity on account of subsequent proceedings which could not have been revived on account of excluding the area from the operation of HP Urban Rent Control Act? As far as the other four cases i.e. RSA Nos. 206 of 2007, 311 of 2007, 312 of 2007 and 327 of 2007 are concerned, when these cases were listed before a learned Single Judge of this Court they were ordered to be listed before the appropriate Division Bench alongwith RSA No. 506 of 2004. Therefore, by this judgement, we propose to dispose of RSA No. 506 of 2004 and decide the legal questions raised and thereafter sent back RSA Nos. 206 of 2007, 311 of 2007, 4 312 of 2007 and 327 of 2007 to the Hon’ble Single Judge for disposal in accordance with law. For the purpose of deciding this appeal, we may refer to the facts of RSA No. 506 of 2004. In this case, the landlord filed a suit for possession against the tenant and also prayed for recovery of arrears of rent of a three storeyed building situated in the Main Bazar of Kandaghat. According to the landlord, the rent of the premises was Rs.165/- per month and the tenancy of the tenant was terminated on 30.11.1995 vide notice dated 28.10.1995. Since the defendant-tenant did not hand over possession of the suit land the landlord was constrained to file the suit. Various defences were taken by the tenant. During the pendency of the suit the State issued a notification dated 11.11.1998 whereby the area of Kandaghat was brought within the purview of the Rent Act. Thereafter, the learned Civil Judge closed the proceedings vide order dated 19.5.1999 on the ground that the Civil Court had no jurisdiction. An appeal was filed against the said order by the landlord and the learned District Judge, Solan held that the plaintiff had a right to prosecute the suit to its legitimate conclusion and the suit must proceed and be decided regardless of the fact whether the decree was rendered unexecutable or not. The learned trial Court thereafter proceeded with the suit and came to the conclusion that the tenancy has been validly terminated and passed a decree of possession qua the suit premises in favour of the 5 plaintiff and also passed a decree for recovery of Rs.495/- as arrears of rent from 1.9.1995 to 30.11.1995 alongwith interest @ 9% per annum. The learned trial Court also held that the landlord could not execute the decree in view of the bar contained in the Rent Act. The tenant filed an appeal in the Court of the learned District Judge, Solan which was assigned to the Presiding Officer, Fast Track Court, Solan. The main grouse was that during the pendency of the proceedings, the area in which the premises were situate were brought under the purview of the Rent Act and therefore, the suit could not have proceeded. The learned Additional District Judge rejected this appeal and hence the second appeal. It may be noted that when the suit was filed on 8.12.1995, admittedly the Rent Act was not applicable to the Kandaghat town. Vide notification dated 11.11.1998 the area of Kandaghat was declared to be Urban Area in terms of Section 2(k) of the Rent Act. However, vide notification dated 30th May, 2003 the State Government rescinded the earlier notification with the result that the Rent Act ceased to be applicable to the Kandaghat town. During the pendency of this appeal, an application under Order 41 Rule 27 was filed and notification dated 5th May, 2008 has been permitted to be brought on record, which notification clearly shows that now the area of Kandaghat town has again been brought within the purview of the Rent Act. As such, the Rent Act again becomes applicable to Kandaghat town. 6 It would be apposite to refer to certain provisions of the Rent Act- Section 1(2) It extends to all urban areas in the State of Himachal Pradesh. Section 2(j) “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-1 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-1 and Explanation-II to this clause, 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 framed out or leased by a municipal corporation or a municipal committee or a notified area committee or a cantonment board. The explanations are not relevant for our purpose. It is, however, apparent that even a tenant who is continuing in possession after termination of his tenancy is deemed to be a tenant in possession in terms of the definition set out here-in- above. Section 2(k) defines Urban Area as follows:- “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. A bare reading of this provision shows that when any area which falls within municipal limits, i.e. either governed by 7 the Municipal Corporation, Municipal Committee or falls within the jurisdiction of a cantonment board or a notified area committee, shall be deemed to be an Urban Area. In addition thereto, the State Government by notification can declare any area i.e. an area not even falling within municipal limits, cantonment limits or notified area committee limits to be an urban area for the purpose of this act. Section 14 of the Act deals with the eviction of tenants. Section 14(1) 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 provision of this Act.” The following questions arise for consideration in these appeals :- 1. Whether if proceedings are commenced under the ordinary law before an area is declared to be an urban area should those proceedings under ordinary civil law culminate in the decree or should they be stayed/come to an end on the ground that the Civil Court has no jurisdiction to pass a decree? 2. In case question No.1 is answered in the negative, whether a decree for eviction passed in such civil proceedings can be executed in respect of the areas falling within the purview of the H.P.Urban Rent Control Act? 3. Whether a decree passed in such civil proceedings not for eviction but on other grounds can be executed in accordance with law? A number of authorities have been cited before us by both the sides. 8 In Mani Subrat Jain vs. Raja Ram Vohra, 1980 (1) RCR, 325, the Apex Court held that a decree passed under general law before the Rent Act became applicable to the area cannot be executed. The Apex Court in para 3 held as follows:- “3. An advocate, under this Act, belongs to a ‘scheduled’ class of tenants whose dwellings enjoy special protection. The appellant-advocate tenanted a building belonging to the respondent. The later sued for possession and the former, with refreshing realism, entered into a compromise and agreed to vacate by a certain date on certain terms regarding rent which do not bear upon the dispute before us. A decree in terms thereof was passed on 9.10.1972. Then came the Act, which by extension of its operation, applied to Chandigarh with effect from 4.11.1972. Held the decree been passed but a few day’s later, the Act would have admittedly interdicted the eviction because of Section 13. Had the decree been made and executed a day before the extension of the Act, the years of litigative procrastination of eviction might have been impossible. These mystic ‘might have beens’ are gambles of time which spill beyond our jurisdiction and statutory cognizance. The salvation of the appellant is certain if he be a tenant within the meaning of the Act. His eviction is certain if the definition of tenant does not ensconce him in its amplitude.” After considering the provision of Section 2(i), definition of tenant, which is similar to the definition of tenant in our Act and the provisions of Section 13 of the Punjab Urban Rent Restriction Act, which are pari-materia to Section 14 of our Act the Apex Court went on to hold as under:- “The expression ‘tenant’ includes ‘a tenant’ continuing in possession after the termination of the tenancy in his favour. It thus includes, by express provision, a quondam tenant whose nexus with the property is continuance in possession. The fact that a decree or any other process extinguishes the tenancy under the general law of real property does not terminate the status of a tenant under the Act having regard to the carefully drawn inclusive clause. Even here, we may mention by way of contrast that Subudhi’s case (supra) related to a statute where 9 the definition in Section 2(5) of that Act expressly included “any person against whom a suit for ejectment is pending in a court of competent jurisdiction” and more pertinent to the point specially excluded “a person against whom a decree or order for eviction has been made by such a court”. We feel no difficulty in holding that the text reinforced by the context, especially Section 13, convincingly includes ex-tenants against whom decrees for eviction might have been passed, whether on compromise or otherwise. The effect of the compromise decree, in counsel submission is that the tenancy has been terminated. Nobody has a case that the appellant is not continuously in possession. The conclusion is inevitable that he remains a tenant and enjoys immunity under Section 13(1). The execution proceedings must, therefore, fail because the statutory roadblock cannot be removed. Indeed, an application under the Act was filed by the landlord-defendant which was dismissed because the ground required by the Act was not made out.” In Narayanan vs. Ratnamma, 1988(1) RCR 288, a learned Single Judge of the Kerala High Court held that once the tenant could not be evicted except in accordance with an order passed under the Rent Act and as such a decree passed by a Civil Court when challenged is liable to be set-aside as invalid. With due respect, we are unable to agree with this judgement. There is nothing which debars the passing of the decree. What is barred is the execution of a tenant pursuant to a decree passed in favour of the landlord. Reliance by the tenant has been placed on the judgement of the Apex Court in H.Shiva Rao and another vs. Cecilia Pereira and others, 1987(1) RCR 273. In that case, the Apex Court held that even if a decree for eviction had been passed and thereafter the tenanted premises were brought within the purview of the Rent Act, the protection of the Rent 10 Act would be available to the tenant and the decree for possession could not be executed. Shri Ajay Kumar, learned counsel for the landlord, has placed reliance on the judgement of the Apex Court in Nand Kishore Marwah and others vs. Samundri Devi, (1987) 4 SCC 382. In that case newly constructed buildings in U.P. were exempted from the provisions of U.P.Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 for a period of 10 years. The landlord filed a suit for possession under ordinary law. During the pendency of suit the 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: “14. xxx… xxx… xxx… This is put in Chapter IV with the heading "Regulation and Eviction" and the section starts with title which is printed in bold "bar of suit for eviction of tenant except on specified grounds" and again in the wording of the section itself it provides: "No suit shall be instituted for eviction." This clearly indicates that the restriction put under S. 20 is to the institution of the suit itself and therefore it is clear that if the provision of this Act applies then no suit for eviction can be instituted except on the grounds specified in the sub-sections of this Section. Keeping in view the language of this section if we examine the provisions contained in sub-section (2) of Section 2 it will be clear that for a newly constructed building the provisions of this Act will not apply for 10 years and therefore so far as the restriction under Section 20 is concerned they will not apply and therefore it is clear that within 10 years as provided for in sub-section (2) of Section 2 restriction on the institution of suit as provided for in Section 20 sub-section (1) quoted above will not be applicable and it is thus clear that during the pendency 11 of the litigation even if 10 years expired the restriction will not be attracted as the suit has been instituted within 10 years and therefore restriction as provided for in S. 20 cannot be attracted. 15. In the light of the discussions above, therefore, in our opinion, the contention advanced by learned counsel for the appellant cannot be accepted. The appellant-tenant could not be given the advantage of the provisions contained in this Act. In this view of the matter therefore the appeal is without any substance and is dismissed.” The Apex Court in Atma Ram Mittal vs. Ishwar Singh Panja, 1988 (2) RCR 423 also dealt with a similar question. Similar exemption of 10 years was granted to newly constructed buildings in Haryana under the Rent Control Act for a period of 10 years. The Apex Court 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). Mukherjea, J. as the learned Chief Justice then was, in Popatlal 12 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.” 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. 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 13 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