Rajasthan High Court - Jaipur
Hindustan Petro Corp vs Smt Usha Gupta And Anr on 16 December, 2013
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.19878/2013 With Stay Application No.16982/2013 Hindustan Petroleum Corporation Limited Vs. Smt. Usha Gupta and Another Date of Order ::: 16.12.2013 Present Hon'ble Mr. Justice Mohammad Rafiq Shri Sudhanshu Kasliwal, Senior Counsel, with Ms. Sukriti Kasliwal and Shri Ram Naresh Vijay, counsel for petitioner Shri S.M. Mehta, Senior Counsel, with Ms. Pallavi Mehta, counsel for respondents #### //Reportable// By the Court:-
This writ petition has been filed by Hindustan Petroleum Corporation Limited against order dated 23.09.2013 of the Rent Appellate Tribunal affirming thereby order dated 02.07.2011 of the Rent Tribunal, Jaipur Metropolitan, Jaipur, and dismissing appeal of the petitioner. The Rent Tribunal by order dated 02.07.2011 allowed the application of the respondent no.1 Smt. Usha Gupta.
Facts of the case are that respondent no.1 Smt. Usha Gupta, landlord of the suit premises, filed an application before the Rent Tribunal seeking eviction of petitioner-Corporation as also for recovery of rent at the rate of Rs.900/- per month till the disputed property was handed over to the respondent no.1. It was pleaded in the application that a lease agreement was executed between petitioner-Corporation and respondent no.1 on 07.03.1998 for a period of ten years, which was renewed until 31.03.2008. Therefore, the lease agreement came to an end by efflux of time on that day. It was pleaded that since the petitioner-Corporation has paid up capital of more than one crore rupees, therefore the eviction petition matter would be governed by the Transfer of Property Act, 1882 and that general provision of the Rajasthan Rent Control Act would not apply. It was further pleaded that after termination of lease agreement by to efflux of time, possession of petitioner-Corporation in the lease premises became unauthorized after 31.03.2008 entitling respondent to seek its eviction and recovery of possession. Even though the respondent was not required to serve a notice upon petitioner-Corporation, nevertheless a notice dated 15.04.2008 was sent to petitioner-tenant calling upon him to vacate the premises. Despite the said notice, petitioner continued to occupy the leased premises. Therefore, the respondent filed the application praying for eviction of petitioner and till the suit premises was handed over to respondent, petitioner be directed to pay monthly rent at the rate of Rs.900/-.
The petitioner-Corporation contested the aforesaid application and disputed that the property was taken on lease of Rs.900/- per month. It was stated that actually agreed monthly rent was Rs.800/-. Respondent earlier also filed a suit for eviction on 17.02.1998, on the premise that the lease agreement stood terminated with effect from 31.03.1998. Petitioner had specifically denied that statement. Petitioner further denied that provisions of Chapter II and Chapter II of the Rent Control Act, 2001 cannot be made applicable to the present dispute. It was admitted that provisions of the Transfer of Property Act, 1882 (for short, the TP Act) would apply to disputed property. The tenancy of the petitioner continued as petitioner had become tenant by holding over. Petitioner by way of additional plea brought on record order dated 06.01.2006 of the Civil Judge, Jaipur District, Jaipur, whereby earlier suit filed by the respondent was decided. It is clear from that order that lease agreement dated 07.03.1998 came to an end on 31.03.1998 and thereafter possession of petitioner over leased premises was as a trespasser. The relationship of landlord and tenant between the parties came to an end. The application for eviction filed under the provisions of the Rent Control Act was thus not maintainable.
The Rent Tribunal, after hearing both the parties, allowed application filed by respondent landlord vide order dated 02.07.2011. Petitioner filed an appeal before the Appellate Rent Tribunal, which too was dismissed by order dated 23.09.2013. Hence this writ petition.
Shri Sudhanshu Kasliwal, learned Senior Counsel for petitioner, argued that with the efflux of time when the tenancy came to an end on 31.03.2008, petitioner became a tenant at sufferance, whose position was akin to that of a trespasser. In such matters, the provisions of the Transfer of Property Act would apply. It was argued that respondent earlier filed a civil suit for eviction of the petitioner on the ground of default in payment of rent and bona-fide necessity. It was also pleaded by petitioner-tenant in that suit that as per the condition of the lease agreement the tenant exercised the option by sending registered AD letter on 22.01.1998 to get the lease agreement extended and that the landlord did not specifically deny such extension and therefore the lease period stood extended. Issue no.5 was framed on that question and finding on that issue was recorded against petitioner in terms that he failed to prove that he exercised the option for extension of lease. Respondent-landlord filed an appeal against the aforesaid judgment and decree of the civil court but she chose not to challenge the finding on Issue no.5. The appeal filed by the respondent-landlord in any case was dismissed and thus the finding on that issue attained finality. Learned Senior Counsel therefore argued that when the lease was taken to have expired by efflux of time and extension was not accepted, second notice of termination of tenancy subsequently served by respondent-landlord on petitioner-tenant on 15.04.2008 had no effect as the tenancy already stood terminated. In support of this argument, learned Senior Counsel relied on judgment of the Supreme Court in M/s. Raptakos Brett & Co. Ltd. Vs. Ganesh Property AIR 1998 SC 3085, and also a Division Bench judgment of the Bombay High Court in Verma K.K. Vs. Union of India AIR 1954 Bom 358.
Shri Sudhanshu Kasliwal, learned Senior Counsel, argued that the Rent Tribunal would have no jurisdiction as referred to in Section 18 of the Rajasthan Rent Control Act, 2001 (for short, the Act of 2001), to entertain a suit for eviction and recovery of possession against a trespasser. In this connection, learned Senior Counsel has led much emphasis on Section 18 of the Act of 2001, which provides that notwithstanding anything contained in any other law for the time being in force, in the areas to which this Act extends, only the Rent Tribunal and no civil court, shall have jurisdiction to hear and decide the petitions relating to disputes between landlord and tenant and matters connected therewith and ancillary thereto. It was argued that since the petitioner has ceased to be a tenant, therefore the dispute between petitioner-tenant and respondent-landlord is not a dispute between the tenant and landlord. Even the phraseology connected therewith or ancillary thereto, cannot be so read so as to cover a petition for eviction filed against a trespasser.
Per contra, Shri Sagar Mal Mehta, learned Senior Counsel appearing on behalf of respondent-landlord, argued that the suit that was earlier filed by respondent-landlord against petitioner-tenant for eviction was based on the ground of default in making the payment of rent and bona-fide necessity. Issue no.5 was whether the period of lease agreement of the tenancy has come to an end and therefore the suit was not maintainable? Learned trial court observed that since the lease agreement was not accepted by the petitioner-tenant, therefore, the court cannot draw adverse inference on the clause of lease agreement. The question of duration of lease agreement was not decided by the trial court as the lease agreement was not produced before the court. The judgment of the learned trial court dated 06.01.2006 on that issue was therefore not conclusive. Learned Senior Counsel submitted that in the facts and circumstances of the present case when petitioner-tenant was regularly paying the rent on month to month basis and respondent-landlord was accepting the same, thus permitting him to continue in possession of the suit premise, despite expiry of time of lease, he would be a tenant in the premise by holding over. In this connection, learned Senior Counsel referred to the provisions of Section 116 of the TP Act. Petitioner-tenant always paid and respondent-landlord accepted the rent, there being no default in making of payment of rent. Learned Senior Counsel, Shri Sagar Mal Mehta, in support of his arguments has relied on a judgment of the Supreme Court in Dattonpant Gopalvarao Devakate Vs. Vithalrao Marutirao - AIR 1975 SC 1111 and Payal Vision Limited Vs. Radhika Choudhary - (2012) 11 SCC 405.
I have given my anxious consideration to rival submissions, perused the material on record and respectfully studied the cited case law.
What is now argued by the petitioner in the present case is in fact contrary to what was argued on its behalf before the Appellate Rent Tribunal as would be evident from the discussion made on Issue no.4. Under that issue, learned Appellate Rent Tribunal has taken note of the argument of the landlord that the earlier suit was filed taking the tenancy having come to an end from the midnight of 31.03.2008 but the status of the tenant thereafter remained as that of a tenant by holding over on month to month basis, by virtue of Section 116 of the TP Act. His status can never be considered to be that of a trespasser. Counsel appearing for the petitioner before the Appellate Tribunal admitted that as per settled proposition of law, relationship between petitioner and respondent has remained as that of tenant and landlord. That argument of landlord was not accepted by the Appellate Rent Tribunal because it was accepted before it that the tenant was paying rent and the landlord was receiving the same. It is in this context that the provisions of Section 18 of the Act of 2001 would be attracted.
It would be instructive to reproduce Section 18 of the Act of 2001, which reads as under:-
18. Jurisdiction of Rent Tribunal.-(1) Notwithstanding anything contained in any other law for the time being in force, in the areas to which this Act extends (for the time being), only the Rent Tribunal and no civil court shall have jurisdiction to hear and decide the petitions relating to disputes between landlord and tenant and matters connected therewith and ancillary thereto, filed under the provisions of this Act:
Provided that Rent Tribunal shall, in deciding such petition to which provisions contained in Chapter II and III of this Act do not apply, have due regard to the provisions of Transfer of Properties Act, 1882 (Act No.4 of 1882) the Indian Contract Act, 1872 (Act No.9 of 1872), or any other substantive law applicable to such matter in the same manner in which such law would have been applied had the dispute been brought before a civil court by way of suit.
Provided further that nothing contained in this Act shall be entitled to empower the Rent Tribunal to entertain a petition involving such dispute between landlord and tenant to which provisions of the Rajasthan Public Premises (Eviction of Unauthorised Occupants) Act, 1964 (Act No.2 of 1965) and the Rajasthan Premises (Requisition and Eviction) Ordinance, 1949 apply.
(2) Where the petition only for recovery of unpaid rent or arrears of rent is filed, the time schedule and procedure enumerated in Section 14 shall mutatis mutandis apply to such petition.
(3) Where the petition for recovery of possession is filed in respect of the premises or tenancies to which the provisions of Chapter II and III of this Act do not apply, the time schedule and procedure enumerated in Section 15 shall mutatis mutandis apply to such petition.
(4) A petition shall be instituted before the Rent Tribunal, within the local limits of whose jurisdiction the premises is situated.
The intention of legislation in providing that in all such areas in which the said Act extends, only the Rent Tribunal and no civil court shall have jurisdiction to hear and decide the petitions relating to disputes between landlord and tenant and matters connected therewith and ancillary thereto, is to ensure uniformity in availability of speedy forum of Rent Tribunal where summary procedure is applied for adjudication of dispute between landlord and tenant. It was intended to ensure that wherever the Act applies, there was no disparity between landlord and tenant. Chapter II and III of the Act provide certain protection to tenant and certain rights to landlord. But those premises to which provisions contained in Chapter II and III do not apply, according to Sub-Section (3) of Section 18 of the Act of 2001, the time schedule and procedure enumerated in Section 15 shall nonetheless applies. It is thus clear that the legislation in Section 18 of the Act of 2001 has sought to cover all disputes between landlords and tenants. The intention of the legislation is evident from sub-Section (1) of Section 18 of the Act of 2001 which begins with non-obstante clause providing that notwithstanding anything contained in any other law for the time being in force, in the areas to which this Act extends, only the Rent Tribunal and no civil court shall have jurisdiction to hear and decide the petitions relating to disputes between landlord and tenant and matters connected therewith and ancillary thereto. The phraseology matters connected therewith and ancillary thereto thus brings all disputes subsidiary to the main dispute within the purview of the Rent Tribunal, and bar jurisdiction of the civil court. In order to ensure applicability of the general law, however, the first proviso stipulates that in deciding such petitions to which provisions contained in Chapter II and II of this Act do not apply, the Rent Tribunal shall have due regard to the provisions of Transfer of Properties Act, 1882, the Indian Contract Act, 1872 or any other substantive law applicable to such matter in the same manner in which such law would have been applied had the dispute been brought before a civil court by way of suit. The only excluded category is that of disputes between the landlord and tenant to which provisions of Rajasthan Public Premises (Eviction of Unauthorised Occupants) Act, 1964 and the Rajasthan Premises (Requisition and Eviction) Ordinance, 1949 apply.
The Supreme Court in New India Assurance Company Ltd vs Nusli Neville Wadia And Another (2008) 3 SCC 279, held that Section 5 of the Delhi Rent Act, 1995, as it appears from its plain reading, would place the entire onus upon a noticee. It, in no uncertain terms, states that once a notice under Section 4 is issued by the Estate Officer on formation of his opinion as envisaged therein, it is for the noticee not only to show cause in respect thereof but also adduce evidence and make oral submissions in support of his case. The question was whether it would not be necessary for the landlords in any situation to plead in regard to its need for the public premises. In those facts in Para 49 to 51 it was held by their Lordships as under:-
49. Section 5 of the Act, on a plain reading, would place the entire onus upon a noticee. It, in no uncertain terms, states that once a notice under Section 4 is issued by the Estate Officer on formation of his opinion as envisaged therein it is for the noticee not only to show cause in respect thereof but also adduce evidence and make oral submissions in support of his case. Literal meaning in a situation of this nature would lead to a conclusion that the landlord is not required to adduce any evidence at all nor it is required even to make any oral submissions. Such a literal construction would lead to an anomalous situation because the landlord may not be heard at all. It may not even be permitted to adduce any evidence in rebuttal to the one adduced by the noticee nor it would be permitted to advance any argument. Is this contemplated in law? The answer must be rendered in the negative. When a landlord files an application, it in a given situation must be able to lead evidence either at the first instance or after the evidence is led by the noticee to establish its case and/ or in rebuttal to the evidence led by the noticee.
50. The literal interpretation of the statute, if resorted to, would also lead to the situation that it would not be necessary for the landlords in any situation to plead in regard to its need for the public premises. It could just terminate the tenancy without specifying any cause for eviction.
51. Except in the first category of cases, as has been noticed by us hereinbefore, Sections 4 and 5 of the Act, in our opinion, may have to be construed differently in view of the decisions rendered by this Court. If the landlord being a State within the meaning of Article 12 of the Constitution of India is required to prove fairness and reasonableness on its part in initiating a proceeding, it is for it to show how its prayer meets the constitutional requirements of Article 14 of the Constitution of India. For proper interpretation not only the basic principles of natural justice have to be borne in mind, but also principles of constitutionalism involved therein. With a view to read the provisions of the Act in a proper and effective manner, we are of the opinion that literal interpretation, if given, may give rise to an anomaly or absurdity which must be avoided. So as to enable a superior court to interpret a statute in a reasonable manner, the court must place itself in the chair of a reasonable legislator/ author. So done, the rules of purposive construction have to be resorted to which would require the construction of the Act in such a manner so as to see that the object of the Act fulfilled; which in turn would lead the beneficiary under the statutory scheme to fulfill its constitutional obligations as held by the court inter alia in Ashoka Marketing Ltd Vs. Punjab National Bank (1990) 4 SCC 406.
In the present case too, if the court were to take so literal interpretation as is placed by the learned Senior Counsel for petitioner-tenant, that tenancy came to an end by efflux of time, relationship of landlord and tenant between the parties ceased to exist and therefore only civil court and not the Rent Tribunal would have jurisdiction to entertain the dispute, this would result in frustrating the very purpose for which Section 18 of the Act of 2001 has been incorporated into the Statute by the Legislature. The purpose is to provide speedy and hassle free remedy before the Rent Tribunal where the petition is decided by applying summary procedure rather than the lengthy process in a civil suit.
Even though the golden rule of interpretation is that the words of a statute have to be read and understood in their natural, ordinary and popular sense. Where however the words used are capable of bearing two or more constructions, it is necessary to adopt purposive construction, to identify the construction to be preferred, by posing the following questions: (i) What is the purpose for which the provision is made? (ii) What was the position before making the provision? (iii) Whether any of the constructions proposed would lead to an absurd result or would render any part of the provision redundant? (iv) Which of the interpretations will advance the object of the provision? The answers to these questions will enable the court to identify the purposive interpretation to be preferred while excluding others. This was held by the Supreme Court in Bengal Immunity Co. Ltd. Vs. State of Bihar - AIR 1955 SC 661.
In M/S. Raptakos Brett & Co. Ltd. vs Ganesh Property AIR 1998 SC 3085, cited by learned senior counsel for petitioner, it was held that on expiry of period of lease the erstwhile lessee continues in possession because of the law of the land namely that the original landlord cannot physically throw out such an erstwhile tenant by force. He must get his claim for possession adjudicated by a competent court as per the relevant provisions of law. The status of an erstwhile tenant has to be treated as tenant at sufferance akin to a trespasser having no independent right to continue in possession. In a suit filed by landlord against erstwhile tenant, the claim for possession by itself has nothing to do with the contract of tenancy which had already come to an end. The dispute in the aforesaid case arose out of a deed stipulating for obligation of lessee to handover possession to lessor after expiry of lease period. The landlord filed suit for possession based on covenant. It was held that the suit cannot be said to be not arising out of contract of lease on the ground that covenant would not remain effective and pending between the parties after the lease gets determined by efflux of time. This is precisely what has been canvassed on behalf of the respondent.
The Supreme Court in Dattonpant Gopalvarao Devakate, supra, held that even in a case where the lease of immovable property determines under clause (a) of Section 111 of the TP Act by efflux of the time limited thereby, no notice is necessary. Even when the tenancy ends on expiry of the period of lease, the tenant lessee would be tenant by holding over from month to month.
In the present case, it is not disputed that despite efflux of time, petitioner continued to pay the rent and respondent also continued to receive such rent. Whether the petitioner became a tenant by holding over or tenant at sufferance akin to trespasser, in whatever capacity the petitioner may have been in possession of the suit premises, provisions of Section 18 of the Act of 2001 would in either case cover the dispute between petitioner and respondent as the original character of relationship was that of the tenant and landlord by virtue of lease agreement executed between them. This is why Section 18 of the Act of 2001 is so comprehensively worded as to confer the Rent Tribunal only with the power to hear and decide the petitions relating to dispute between the landlord and tenant and matters connected therewith and ancillary thereto by emphatically excluding the jurisdiction of the civil court.
The courts have to therefore take a purposive interpretation by taking holistic view of he matter and keeping in view the mischief which it intended to remedy.
The arguments of the petitioner were to be accepted, this situation would even arise in cases where the notice is served by the landlord under Section 106 of the TP Act for determination of tenancy and immediately on service of such notice, the tenant would have to be accepted as trespasser, thus taking the dispute out of purview of the Rent Tribunal by virtue of Section 18 of the Act of 2001 or relegating the parties to the remedy of the full length trial of a civil suit. Such an interpretation if accepted would lead absurd consequences and defeat the very purpose for which Section 18 of the Act of 2001 has been engrafted in the Act, which is to ensure that all dispute between the landlord and tenant wherever the Act of 2001 applies are brought before the Rent Tribunal and not any other Court In view of the above, I do not find any error in the impugned order passed by the Rent Tribunal. The writ petition fails and is hereby dismissed.
(Mohammad Rafiq) J.
//Jaiman// All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Giriraj Prasad Jaiman PS-cum-JW