Bombay High Court
Shrikrishna Jugalkishore Goenka vs Govind Trimbak Vaidya on 26 November, 2008
Equivalent citations: AIR 2009 (NOC) 2112 (BOM.), 2009 (3) AIR BOM R 758, 2009 AIHC (NOC) 997 (BOM.), (2009) 1 MAH LJ 666, (2009) 1 ALLMR 602 (BOM), (2009) 2 BOM CR 721
Author: C. L. Pangarkar
Bench: C. L. Pangarkar
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH
NAGPUR.
SECOND APPEAL NO. 73 OF 2008
Shrikrishna Jugalkishore Goenka,
aged 63 yrs., Occu. Business,
R/o Alsi Plots, Akola. APPELLANT.
ig VERSUS
Govind Trimbak Vaidya,
aged 49 yrs., Occu. Service,
R/o Old City, Akola. RESPONDENT.
Shri. M. G. Bhangde, Counsel for the appellant.
Shri. C. A. Joshi, Counsel for the respondent.
CORAM: C. L. PANGARKAR J.
Date: 26th NOVEMBER 2008.
ORAL JUDGMENT:
1. Rule, returnable forthwith.
2. Heard finally with consent of parties.
::: Downloaded on - 09/06/2013 14:05:33 ::: 23. This Second Appeal is by defendant against whom a decree was passed by the trial Court for ejectment which was confirmed by the Additional District Judge.
4. The facts giving rise to this appeal are as follows:
Respondent/plaintiff is the owner of the suit plot described in the plaint. Defendant is said to be a monthly tenant. The tenancy commences on the first day of each calender month and ends on the last day of the month. The plaintiff issued a notice of termination of tenancy of the defendant on 03.08.1993 calling upon the defendant to vacate the suit plot at the end of the month of March 1993. The defendant failed to do so, hence the suit.
5. Defendant resisted the suit on various grounds. The defendant mainly contended that the suit plot is governed by the provisions of C. P. & Berar Letting of Houses and Rent Control Order.
Plaintiff therefore had no right to terminate the tenancy of the defendant without obtaining the permission of the Rent Controller.
::: Downloaded on - 09/06/2013 14:05:33 ::: 3Since the notice has been issued without obtaining the permission of the Rent Controller the said notice is invalid and therefore no suit for ejectment could lie.
6. Courts below found that during the pendency of the suit a new legislation known as Maharashtra Rent Control Act came into force and in view of the coming into force of that Act and repeal of the C. P. & Berar Rent Control Order the said property is no more governed by Central Provisions and Berar Rent Control Order and open plot of land is also not governed by the Maharashtra Rent Control Act 1991 and therefore the suit could be decreed. The Appellate Court also confirmed the finding of the trial Court and dismissed the appeal. Being aggrieved by that this Second Appeal has been preferred.
7. Appeal was heard finally with the consent of parties at the stage of admission itself.
::: Downloaded on - 09/06/2013 14:05:33 ::: 48. The following substantial questions of law arise for determination:
1. Whether the plaintiff could evict the defendant tenant upon repeal of C. P. & Berar Letting of Houses & Rent Control order particularly when the said Rent Control Order covered the open plot of land since 1989 Amendment and also on the date of issue of termination of tenancy and institution of suit?
2. Whether the exemption available under the Maharashtra Rent Control Act which came into force in 1999 could be said to be available to the plaintiff on the date of institution of suit in 1993?
9. I have heard Shri M. G. Bhangade, Senior Counsel for the appellant and Shri C. A. Joshi learned counsel for the respondent.
10. Following few undisputed facts may be noted first. Plaintiff is the landlord and the defendant is the tenant. The tenancy is in respect of an open plot of land. Rent Control Order was amended on 27.06.1989 and Sub Clause 4(A) was inserted in Clause 2 i.e. the definition clause. By this amendment particularly, any land not being agricultural land was included in the definition of premises, hence all open plots of land except agricultural were governed by C. P. & Berar ::: Downloaded on - 09/06/2013 14:05:33 ::: 5 Rent Control Order. The notice of termination of tenancy was given on 03.08.1993 and suit was instituted in 1993 itself. C. P. & Berar Rent Control Order was repealed when Maharashtra Rent Control Act 1999 came into force on 31.03.2000.
11. In fact every owner of the property has a right to repossess the same. The Rent Control order had however put an embargo on such right till such time the order was in force. Therefore, the protection available to a tenant could be said to have come to an end when such Rent Control Order was repealed. The embargo put by the rent legislation i.e. the Rent Control Order could not be said to be complete because such right could be exercised by the landlord upon existence of certain conditions/grounds as laid down in the Rent Control order. Clause 13 of the C. P. & Berar Rent Control Order reads thus:
Clause 13:
13. (1) No landlord shall, except with the written permission of the Controller -
(a) give notice to a tenant determining the lease or ::: Downloaded on - 09/06/2013 14:05:33 ::: 6 determining the lease if the lease is expressed to be determinable at his option; or
(b) where the lease is determinable by efflux of the time limited thereby, require the tenant to vacate the [premises] by process of law or otherwise if the tenant is willing to continue the lease on the same terms and conditions.
(2) A landlord who seeks to obtain permission under sub-clause (1) shall apply in writing to the Controller in that behalf:
provided that where the tenancy is for a specified period agreed upon between the landlord and the tenant, no application under items (vi_ and (vii) of sub clause (3) shall be entertained by the Controller before the expiry of such period.
(3) If after hearing the parties the controller is satisfied -
(i) that on the date of filing the application the tenant was in arrears of rent for any aggregate period of [six months] and that he failed to deposit with the Controller the amount of arrears along with simple interest at the rate of nine percent perannum] ordered to be deposited by the Controller within such time as may be fixed by him; or
(ii) that the tenant is habitually in arrears with the rent or
(iii) that the tenant has without the written permission of the landlord sub-let the entire [premises] or any portion thereof; or ::: Downloaded on - 09/06/2013 14:05:33 ::: 7
(iv) that the tenant has used the [premises] or premises or any part there of for a purpose other than that for which it was leased; or
(v) that the tenant has secured alternative accommodation or has left the area for a continuous period of four months and does not reasonably need the premises.
(vi) that the landlord needs the [premises] or a portion thereof for the purpose of his bona fide occupation, provided he is not occupying any other [premises] of his own in the city or town concerned; or
(vii) that the landlord desires to make essential repairs or alterations which cannot be made without the tenant vacating the [premises]; or
(viii) that the tenant has committed or is committing such acts of waste as are likely to impair materially the value or utility or the [premises]; or
(ix) that the tenant has committed a nuisance;
(4) Whether the landlord who has obtained possession of a [premises] or a portion whereof in pursuance of the permission granted by the Controller under Sub-clause (1) on the ground specified in item (vi) of sub clause (3) does not himself occupy it without good cause, for the purpose specified in such ground, within one month of the date of obtaining possession, the tenant who has been evicted may apply to the ::: Downloaded on - 09/06/2013 14:05:33 ::: 8 Controller for an order directing that he shall be restored possession of the [premises] or a portion thereof and the Controller shall make an order accordingly.
(5) Where the landlord has obtained possession of a [premises] or a portion thereof in pursuance of the permission granted by the Controller under sub-clause (1) on the ground specified in item (vi) of sub clause (3), he shall not let the said [premises] or portion thereof to any person other than the evicted tenant except with the previous approval in writing of the Controller in that behalf.
(6) When the landlord applied for approval under sub-Clause (5) the Controller shall issue notice to the evicted tenant, and if the said tenant agrees to take the [premises] or portion thereof on fair rent, the Controller shall refuse to give his approval to the landlord to let the [premises] or portion thereof to any other person.
(7) Whether the landlord has obtained possession of a [premises] or portion thereof in pursuance of the permission granted by the Controller under sub-clause (1) on the ground specified in item (vii) of sub-clause (3), he shall, after the repairs or alterations have been made, restore possession of the [premises] or portion thereof on the same conditions as before to the tenant who vacated it and shall not let the same to any other person or occupy it himself unless such tenant has waived in writing his claim to have such possession restored to him.
(8) When a landlord applies to the Controller ::: Downloaded on - 09/06/2013 14:05:33 ::: 9 under item (vi) of sub-clause (3) the Controller shall enquire into the needs of the landlord and if on enquiry the Controller is satisfied that the needs of the landlord will be met by the occupation of a portion of the [premises] he shall give permission in respect of such portion only.
(9) The Controller shall summarily reject any application made under sub-clause (20 which raises substantially the same issues as have been finally decided under the provisions of this Order in a former proceeding between the same parties or between parties under whom they or any of them claim."
It is thus clear that the landlord gets a right to terminate the tenancy only when he satisfies the Rent Controller of existence of one or more of such grounds as mentioned in Clause 13 to issue a notice of termination of tenancy. Before the C. P. & Berar Rent Control Order was amended in 1989 only residential and non residential buildings were covered. In 1989 the order was amended and lands other than agricultural was included in the definition of word premises.
Obviously prior to 1989 the open plots of lands were exempted.
12. Learned Judges of the Courts below have found that since ::: Downloaded on - 09/06/2013 14:05:33 ::: 10 the suit for eviction was pending and the C. P. & Berar Rent Control Order is repealed and the open plot of land is not governed by the new Maharashtra Rent Control Act 1999 the suit was liable to be decreed.
There is no doubt that the suit was pending when the Rent Control Order was repealed and the new Act came into force. Effect of such repeal no doubt entitles one, to evict a tenant by filing a suit under the common law in respect of a open plot of land. Shri Joshi learned counsel for the respondent/plaintiff submitted that the Court must take notice of the law as existing on the date of suit/on the date of decision of the appeal. He submits that if position as on the date of passing of decree is considered, there is no restriction on landlord's right to issue notice and to institute a suit. Shri Joshi submits that because the Rent Control Order is no more in existence on the date of passing of the decree, there is no impediment in passing decree as open plot of land is not governed by the Maharashtra Rent Act. He submits that even though the plaintiff may not be having the right to terminate the tenancy in 1993 but he has a right to maintain such a suit on the date the Court is deciding the suit and therefore Courts ::: Downloaded on - 09/06/2013 14:05:33 ::: 11 below have rightly passed a decree. He submits that the law as on the date of decree or date of decision in appeal should be considered by the Court. He relied on the decision reported in A. I. R. 1959 Supreme Court 577 Gummalapura Taggina Matada Kotturuswami Vs. Setra Veeravva and Others . Their Lordships of the Supreme Court have held that appellate Court is entitled to take into consideration the change in law. The Supreme Court was considering the question as to whether the provisions of Hindu Succession Act 1956 could be taken into consideration while deciding the appeal before the Supreme Court since the Act came into force while appeal was pending before the Supreme Court. The facts of the reported case are not akin. The decision reported in AIR 1974 Supreme Court 396 Qudrat Ullah Vs. Municipal Board Bareily was also cited by him. I propose to deal with this decision later on. Shri Joshi had cited two other decisions of this Court to me. One of them is reported in 2006(2) of All Maharashtra Reporter 133 Maharaji wd/o Bajrangi Vishwakarma & Ors. Vs. Sayeedabi w/o Haji Sayyad Gani . The other is a judgment in Civil Revision decided by Shri B. P. ::: Downloaded on - 09/06/2013 14:05:33 ::: 12 Dharmadhikari J. at Nagpur on 29.08.2008. These two decisions have no bearing on the case at hand. These decisions do not have any bearing because of the fact that when both suits were instituted and tenancy was terminated the amended definition of the word premises in C. P. & Berar Rent Control Order had not come into operation. The amendment to Clause 4(A) i.e. the amendment to word definition of premises came into force when the suit were pending and the Rent Control Order was repealed and when the appeals were pending. It is obvious that in both cases the date on which the tenancy was terminated and suit was instituted there was no restriction/embargo on the landlord's right to evict as the open plots of land were not governed on those dates. Landlords therefore have had a right on the date of termination of tenancy and on the date of institution of suit to terminate the tenancy and to institute a suit without the permission of the Rent Controller. It is clear from the judgments of this Court referred to above that in Jamnadas case civil suit was filed in 1984 while in Maharaji Bai the suit was filed on 28.11.1985. Thus when both the suits were filed, both the landlords did not suffer from any ::: Downloaded on - 09/06/2013 14:05:33 ::: 13 handicap in terminating the tenancy and instituting a suit.
13. The difficulty in the instant case is that the amended Sub Clause 4(A) came into operation in June 1989 and Rent Control Order came to be repealed in 2000. Thus from 1989 to the year 2000 open plot of land was included in the definition of word premises in the C. P. & Berar Rent Control Order. The suit being Civil Suit No. 228 of 1993, obviously came to be instituted in 1993. In 1993 as said earlier the amended Sub Clause 4(A) of Clause 2 was very much in existence on the statute book. Therefore, the question is whether on the date the tenancy was terminated i.e. on 31.03.1993 and suit was filed in 1993, the landlord could do it in the teeth of existence of such embargo. Whether lifting of such embargo during the pendency of suit could validate the act of institution of suit which on the date of institution of suit could be said to be illegal abinitio.
14. Shri Bhangde the learned Senior Counsel for the appellant submitted that the date on which the notice of termination was issued as well the date on which the suit was filed Clause 13 read with that ::: Downloaded on - 09/06/2013 14:05:33 ::: 14 definition in said Clause 4(A) was very much in force and on the statute book. He submitted that the act which is abinitio illegal could not be validated even if such embargo is later lifted by repeal of the Act. Shri Bhangde Senior Counsel submitted that the Court has to decide the suit on the basis of law as was existing on the date of suit unless and until it is shown that new law or the fresh law has a retrospective effect. Shri Bhangde relied on a decision of the Supreme Court reported in 2001(8) Supreme Court Cases 24 Shyam Sunder And Others .Vs. Ram Kumar And Another . This is a decision rendered by the Constitution Bench of the Supreme Court. Their Lordships held as follows after dealing with the several decisions of the Supreme Court on the question.
10. On an analysis of the aforesaid decisions referred to in the first category of decisions, the legal principles that emerge are these:
1. The pre-emptor must have the right to pre-empt on the date of sale, on the date of filing of the suit and on the date of passing of the decree by the court of the first instance only.
2. The pre-emptor who claims the right to pre-::: Downloaded on - 09/06/2013 14:05:33 ::: 15
empt the sale on the date of the sale must prove that such right continued to subsist till the passing of the decree of the first court. if the claimant loses that right or a vendee improves his right equal or above the right of the claimant before the adjudication of suit, the suit for pre-emption must fail.
3. A pre-emptor who has a right to pre-empt a sale on the date of institution of the suit and on the date of passing of decree, the loss of such right subsequent to the decree of the first court would not affect his right or maintainability of the suit for pre-emption.
4. A pre-emptor who after proving his right on the date of sale, on the date of filing the suit and on the date of passing of the decree by the first court, has obtained a decree for pre-emption by the court of first instance, such right cannot b e taken away by subsequent legislation during pendency of the appeal filed against the decree unless such legislation has retrospective operation.
30. After passing of Act 7 of 1939, it was argued before the Federal Court that the defendants are entitled to the benefit of Section 7 of the Act of 1939 whereas the respondents' argument was based on the theory that hearing an appeal the appellate Court was only concerned to see whether or not the judgment of the Court was in conformity with the law as it stood at that time, that judgment was given and further that as the Act of 1939 had not been enacted at the time when the High Court decided the case, the Federal ::: Downloaded on - 09/06/2013 14:05:33 ::: 16 Court was not competent to give relief to the appellants in terms of Section 7 of the new Act. in the background of the aforesaid facts, the Federal Court while interpreting Section 7 of the Act was of the view that Section 7 has in terms been made applicable to appeals in suits brought before the commencement of the Act and that the decree in appeal yet remained to be passed. The Federal Court after having found that Section 7 is retrospective held that the appellate court is required to consider and give effect to legislative changes which have taken place during pendency of the appeal as an appeal is a continuation of the suit. it is in this context, the decision in Lachmeshwatr Prasad Shukul V. Keshwar Lal Chaudhari has to be understood. Where a repeal of an enactment is followed by fresh legislation having no retrospective operation, an appellate court is not required to take into account the change in law but to dispose of the appeal on the basis of right of pre-emption on the date of adjudication of the suit. In that view of the matter the decision in Lachmeshwar Prasad V. Keshwar Lal has no application in the present case.
Subsequently, the view taken in Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhari was followed in Ram Lal v. Raja Ram by the Punjab and Haryana High Court. In the said case the plaintiff brought a suit for pre-emption on the ground of vicinage. The trial court dismissed the suit on the ground that the land fell outside the limit of Panipat town and in that locality no custom of pre-emption prevailed. On appeal the appellate court reversed the decision of the trial court and decreed the suit. Second appeal was filed by the vendee before the High Court. During ::: Downloaded on - 09/06/2013 14:05:33 ::: 17 pendency of appeal, the State Legislation amended the Punjab Pre-emption Act by amending Act 10 of 1960. By the said amending Act, Section 15 of the parent Act was deleted and in its place new Section 15 was substituted whereby the grounds on which the urban property was pre-empted was taken away. The new substituted Section 31 further provided that no court shall pass decree in a suit for pre-emption whether instituted before or after the commencement of the amending Act which is inconsistent with the provision of the Act. The High Court applying the principles laid down in Lachmeshwar Prasad Shukul case held that an appeal being a continuation of the suit, the appellate court is to take into account the subsequent change in law which has retrospective operation. The said decision of the Punjab and Haryana High Court in Ram Lal v. Raja Ram was approved in Ram Sarup v. Munshi. in the said case a Constitution Bench of this Court held that Section 31 of amending Act 10 of 1960 being retrospective, the right to pre-empt a sale which was accrued before coming into force of the amending Act stood defeated. The Constitution Bench also noted and explained that in Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhari the Federal Court was construing Section 7 of the Bihar Moneylenders (Regulation of Transactions) Act which has retrospective operation and in that context held that appeal being a continuation of the suit, the appellate court is required to take into account subsequent change in law. it is appropriate to reproduce the following passage from Ram Sarup case:
"Though we agree that there is a ::: Downloaded on - 09/06/2013 14:05:33 ::: 18 presumption against the retrospective operation of a statute and also the related principle that a statute will not be construed to have a greater retrospective operation than its language renders necessary, we consider that in the present case the language used in Section 31 is plain and comprehensive so as to require an appellate court to give effect to the substantive provisions of the amending Act whether the appeal before it is one against a decree granting pre-emption or one refusing that relief. The decision of the Federal Court in Lachmeshwar Prasad v. keshwar Lal on which learned counsel for the appellant relied fully covers this case. The question there raised related to the duty of the Federal Court when an amending Act enacted after the decree appealed from was passed adversely interfered with the rights of the respondent before the Court. The learned Judges held that the provisions of the Act were clearly retrospective and should be applied to the decree which was the subject matter of appeal before it..."
The observations in para 30 are particularly important and can be treated as dicta. What is therefore important to be seen is whether the fresh legislation has a retrospective effect. If the fresh legislation does not have retrospective effect the appellate Court is not required to take into account the change in law but to dispose of the appeal on the basis of the law as it stood on the date of suit. If the law in the instant ::: Downloaded on - 09/06/2013 14:05:33 ::: 19 case as on the date of suit is considered it is clear that open plot of land stood included in the word definition of premises on the date the notice of termination of tenancy is issued and suit was instituted. No notice without permission from the Rent Controller therefore could have been issued in view of the embargo put by Clause 13 of the C. P. & Berar Rent Control Order, consequently no suit could have been instituted in the Court. The fresh legislation i.e. Maharashtra Rent Control Act 1999 has certainly no retrospective effect at all. Since the new Act has no retrospective effect it could not be said that there was no embargo on landlords right. The embargo as observed earlier was very much there and the notice issued by the landlord therefore was invalid and the suit therefore could also be said to be invalid. The decision in Shyamsunder's case is rendered by 5 Judge Bench of the Supreme Court which binds this Court in preference to the decision cited by Shri Joshi learned counsel reported in AIR 1974 Supreme Court 396.
15. To conclude I find that the notice terminating the tenancy ::: Downloaded on - 09/06/2013 14:05:33 ::: 20 issued by the plaintiff/respondent was invalid. The suit was not maintainable for want of termination of tenancy. The substantial questions of law are answered accordingly. The appeal is allowed and the suit is dismissed. No order as to costs.
JUDGE svk ::: Downloaded on - 09/06/2013 14:05:33 :::