Rajasthan High Court - Jaipur
Nand Kishore And Others vs Vishwanath Kayal on 21 June, 2012
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH O R D E R S.B. Civil Revision Petition No.9/2012 Nand Kishore & another Vs. Vishwanath Kayal Date of Order : 21.06.2012 PRESENT HON'BLE MR. JUSTICE PRASHANT KUMAR AGARWAL Mr. N.K.Maloo Senior Advocate with Mr.V.K.Tamolia for the petitioners. Mr.Mahendra Goyal for the non-petitioner. BY THE COURT:-
REPOTABLE The defendant-petitioners have preferred this revision petition under Section 115 of the Code of Civil Procedure against the impugned order dated 17.10.2011 passed by the Civil Judge (Senior Division) Fatehpur Shekhawati (District Sikar) in Civil Suit No.84/2010 whereby the learned Court below has dismissed the application under Order 7 Rule 11 CPC filed by the petitioners.
2. In the present revision petition the following important question of law has been raised :-
Whether the provisions of Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (hereinafter to be referred as the Old Act) are still applicable to Municipal Towns of the State of Rajasthan other than the municipal area which are comprising the District Headquarters and a suit for eviction is required to be filed under the provisions of the Old Act?
3. Brief relevant facts for the disposal of this petition are that plaintiff-non-petitioner filed a suit for eviction under the provisions of the Transfer of Property Act, 1882 against the defendant-petitioners in respect of the suit shop situated at Laxmangarh, a Municipal town, with the averment that tenancy of the petitioners has been terminated by reason of a notice dated 15.2.2010 issued under Section 106 Act. The petitioners filed an application under Order 7 Rule 11 CPC stating therein that the suit is not maintainable under the provisions of the of the Transfer of Property Act. Reply to the application was filed by the non-petitioner and the learned Court below after hearing both the parties dismissed the application vide order dated 17.10.2011. Feeling aggrieved, the petitioners are before this Court by way of this civil revision petition.
4. In support of the question of law raised learned counsel for the petitiones has submitted the following grounds:-
(i) Provisions of the Old Act were made applicable to the Municipal Towns of the State of Rajasthan by various notifications issued under the Old Act and in this respect a notification was also issued on 10.5.1979 and the Old Act was applied to remaining Municipal Towns of the State including the Municipal Town of Laxmangarh where the suit shop is situated and that notification is still operative as it has not been superseded by a notification issued under sub-section (2) of Section 1 of the Rajasthan Rent Control Act, 2001 (hereinafter to be referred as the New Act).
(ii) The New Act has been extended to such of the muncipal areas of the State which are comprising the District Headquarters with effect from 1.4.2003 vide notification dated 21.3.2003 and provisions of the New Act have not been made applicable to other Municipal Towns of the State as no notification in this regard has been issued by the State Government as required by sub-section (2) of Section 1 of the New Act.
(iii) Section 27 of the Rajasthan General Clauses Act, 1955 (hereinafter to be referred as the Act) which is similar to Section 24 of the Indian General Clauses Act provides that where any enactment is repealed and re-enacted with or without modifications, then, unless it is otherwise expressly provided any notification issued under the repealed enactment shall, so far as it is not inconsistent with the provisions so re-enacted, continue in force, and be deemed to have been issued under the provisions so re-enacted unless and until it is superseded by any notification issued under the provisions so re-enacted. Accroding to learned counsel as no notification has been issued by the State Government under sub-section (2) of Section 1 of the New Act, notification dated 10.5.1979 issued under Section 1 of the Old Act shall be deemed to be issued under the provisions of the New Act and shall also be deemed to continue to operate and applicable to all remaining Municipal Towns of the State including the Municipal town of Laxmangarh unless it is superseded by a notification issued under the provisions of the New Act. If under the provisions of the New Act, a notification is issued, the provisions of the New Act will apply to the remaining Municipal Towns of the State also but unless that is done, in the meantime, the provisions of the Old Act shall continue to apply to the remaining Municipal Towns of the State.
(iv) Provisions of the Old Act were made applicable to all the Municipal Towns of State of Rajasthan and in this regard various notifications including the notification dated 10.5.1979 were issued from time to time and protection of Rent Control Law was extended to the premises of these towns also and that protection cannot be said to have been taken away only by the reason that provisions of the New Act have not been made applicable to those Municipal Towns. The intention of the legislature while re-enacting the Rent Control Law in the form of New Act was to extend the protection of Rent Law to all Municipal Towns of the State but for that a notification is required to be issued by the State Government which has not been done so far. As soon as the provisions of the New Act are made applicable to other Municipal Towns also, protection of Rent Control would be extended to the premises of those towns also and a situation cannot be visualized that in the meanwhile protection of Rent Control is not available to those towns.
(v) The Statement of objects and reasons appended to the New Act also makes clear the intention of the legislature. It has been provided that certain in built safeguards for tenants are also required to be retained and certain premises are required to be kept out of the scope of the New Law. According to learned counsel the intention of the legislature is that the rights of the tenants are still required to be safeguarded and for that matter certain provisions are incorporated in the New Act also. When the legislative intention is that rights of tenants are also to be protected, there could not be any intermediate period in which such protection is not extendable to the tenants.
(vi) That the provisions of the New Act are to be harmoniously read and if read in that manner it is clear that although vide Section 32 of the New Act, the Old Act has been repealed with effect from 1.4.2003, the date on which the New Act was made applicable but as the provisions of the New Act have not been specifically made applicable to the remaining Municipal Towns of the State, it will be deemed that the Old Act is still applicable to the remaining Municipal Towns of the State.
(vii) There is no express provision in the New Act indicating that notification dated 10.5.1979 issued under Section 1 of the Old Act is no more in existence. Even sub-section (3) of Section 32 of the New Act doe not provide that notifications issued under the Old Act including the notification dated 10.5.1979 stand inoperative.
(viii) There is no inconsistency between the provisions of the New Act and the notification dated 10.5.1979 because by virtue of sub-section (2) of Section 1 of the New Act and the notification dated 21.3.2003, the provisions of New Act are applicable to the District Headquarters of the State whereas by virtue of notification dated 10.5.1979 the provisions of the Old Act are applicable to the remaining Municipal Towns of the State and both the Acts may apply to different areas of the State of Rajasthan together.
(ix) It can never the intention of the legislature that till 31.3.2003 the disputes between landlord and tenant were to be Governed by Rent Control Law and the tenants would get protection of the said law but from 1.4.2003, such disputes will be resolved under the General Law i.e. the Transfer of Property Act and the tenant will not get protection of any Rent Control Law.
(x) Although, in the case of Ram Narain & others Vs. Smt. Asha Devi & others reported 2010 (3) RLW (Raj.) 2426 the learned Single Judge of this High Court has held that on repeal of the Old Act, it shall not be applicable to the areas which have not been made applicable under the New Act by notification dated 21.3.2003 and a suit for eviction is to be filed under Section 106 of the Act but in that case provisions of Section 27 of the Act were not considered and that decision shall be deemed to have been decided per incurium and in the present matter the question of law raised by the petitioners is to be freshly decided in the light of Section 27 of the Act.
In support of his submissions, learned counsel for the petitioners relied upon the cases of Mohan Lal Goenka and another Vs. State of W.B. reported in AIR 1961 (SC) 1543, State of Punjab Vs. Harnek Singh reported (2002) 3 SCC 481, Jag Dutta Vs. Smt. Savitri Devi reported in AIR 1997 (Punjab & Haryana) 68 (1), State of M.P. Vs. A.K.Jain and others reported in AIR 1958 (MP) 162, Neel, Niranjan Majumdar Vs. The State of W.B. reported in AIR 1972 (SC) 2066 and N.Chinnakannu Pillai Vs. N.S.Sundaram reported in AIR (38) 1951 Madras 437.
5. On the other hand, the learned counsel for the non-petitioner has contended as below :-
(i) In the case of Ram Narain & others Vs. Smt. Asha Devi & others (supra) after elaborate discussion and consideration of various relevant legal provisions, it has clearly been held that with the repeal of the Old Act the provisions of the same do not apply to those areas also to which the provisions of the New Act have not been made applicable and in those areas the suit for eviction is required to be filed under Section 106 of the Transfer of Property Act. It was also submitted that merely because in that case provisions of Section 27 of the Act were not taken into consideration it cannot be held that decision is per incurium and a different view is required to be taken. For the applicability of Section 27 of the Act, it is necessary that there is no express provision in the re-enacted Act indicating that the notification issued under the repealed Act is no more in existence whereas in Section 32 of the New Act, there is express provision indicating that the notifications issued under the Old Act including the notification dated 10.5.1979 are no more in existence. Clause (d) of sub-section (3) of Section 32 of the New Act clearly provides that only such notification issued under the Old Act will remain in force which govern the pending cases filed under the provisions of the Old Act. According to learned counsel for the non-petitioner if a suit was filed under the provisions of the Old Act and it was pending on the date on which the Old Act was repealed and the New Act was enforced, for the purpose of governing that pending case notification dated 10.5.1979 shall be deemed to be in force although the Old Act under which it was issued has been repealed but if a new suit is to be filed relating to a premises situated at a Municipal Town not comprising a District Headquarter the notification dated 10.5.1979 will not be applicable.
(ii) For Section 27 of the Act to apply, it is also necessary that there should not be any inconsistency between the notification issued under the repealed Act and the provisions of the re-enacted Act but there are various inconsistencies between the notification dated 10.5.1979 and provisions of the New Act. For example under the provisions of Old Act Civil Court has jurisdiction to entertain and decide a suit for eviction but under the provisions of the New Act only a Rent Tribunal is competent to entertain a petition for eviction and jurisdiction of Civil Court is barred.
(iii) In the State of Rajasthan at the same time two Rent Control Acts cannot be made applicable, one applicable to the areas comprising District Headquarters and the other to the areas of remaining municipal towns.
(iv) According to Section 27 of the Act the notification issued under the repealed Act shall be deemed to have been issued under the provisions of the New Act but it is not possible that a notification by virtue of which provisions of the Old Act were made applicable to all Municipal towns of the State of Rajasthan is deemed to be issued under the provisions of the New Act as under the provisions of the New Act only the New Act can be made applicable and not the provisions of the Old Act. According to learned counsel for the non-petitioner such notification cannot be deemed to have been issued under the provision of a re-enacted Act.
In support of his submissions, learned counsel for the non-petitioner relied upon the case of Ram Narain & others Vs. Smt. Asha Devi & others reported 2010 (3) RLW (Raj.) 2426.
6. I have considered the submissions made on behalf of the respective parties and also gone through the material made available for my perusal as well as the relevant legal provisions and the case law relied upon by the parties.
7. In the case of Ram Narain & others Vs. Smt. Asha Devi & others (supra), a specific question was raised as to whether the Old Act does not stand repealed in those areas where the State Government had not made the new Act applicable. The learned Single Bench after elaborate discussion and consideration of various relevant legal provisions and relying upon the case of Kanhaiyalal Vs. Rajaram S.B.Civil Revision Petition No.445/2004 decided on 2.12.2004 came to a conclusion that it cannot be held that the provisions of the Old Act would continue to apply in respect of other Municipal areas other than the areas comprising the District Headquarters of the State of Rajasthan as no such saving clause has been provided by Section 32 of the new Act. It was further held that simply because for some time there happened to prevail certain rent law in all Municipal Towns of the State, it does not entitle the tenants to inherently claim protection of some rent control legislation notwithstanding no one being in force or enacted by the Legislature. So far as in the light of relevant provisions of the Old Act and the New Act is concerned, I find no reason to take a different view from the one taken in that case, but as the learned counsel for the petitioners emphasised that in the above case provisions of Section 27 of the Act have not been considered and the judgment is per incurium, it would be useful to consider and decide whether a different view from the one taken by the learned Single Bench in the case of Ram Narain & others Vs. Smt. Asha Devi & others (supra) is possible to be taken in the light of Section 27 of the Act.
The relevant portion of Section 27 of the Act provides that where, any enactment is repealed and re-enacted with or without modifications, then, unless it is otherwise expressly provided any notification issued under the repealed enactment shall, so far as it is not inconsistent with the provisions so re-enacted, continue in force and be deemed to have been issued under the provisions so re-enacted unless and until it is superseded by any notification issued under the provisions so re-enacted.
An analysis of Section 27 reveals that for the applicability of the same following conditions are required to be fulfilled:-
(i) There should not be any provision in the new Act expressly providing that the notification issued under the provisions of the repealed Act is no more applicable or operative. If any provision of the new Act expressly provides that the notification issued under the provisions of repealed Act has become inoperative or inapplicable, Section 27 will not be applicable.
(ii) The notification issued under the provisions of the repealed Act should not be in any way inconsistent with the provisions of the re-enacted Act i.e. the new Act. If the notification issued under the provisions of the old Act is in any way inconsistent with the provisions of the new Act, such notification cannot be held to be still operative and applicable after the repeal of the Old Act under which it was issued.
Only on fulfillment of the above two conditions, a notification issued under the repealed enactment shall continue in force and be deemed to have been issued under the provisions of the re-enacted Act but as soon as such notification is superseded by a notification issued under the provisions of the new Act such notification will become inoperative and inapplicable.
Now, it is to be seen whether there is any provision in the new Act expressly providing that the notification dated 10.5.1979 issued under the provisions of the old Act has become inoperative and inapplicable after the enforcement of the new Act. But for such an express provision, the effect of Section 27 would be that a notification issued under the Old Act shall continue in force, and be deemed to have been issued under the new Act. Section 32 of the new Act provides for repeal and savings. Clause (d) of sub-section (3) of Section 32 of the new Act provides that notwithstanding the repeal of the old Act any notification issued under the same and in force on the date of commencement of the old Act shall continue to govern the pending cases. It is thus clear that a notification issued under the provisions of the old Act has been saved only to the extent that the cases filed under the provisions of the old Act and still pending on the date on which the new Act was enforced can continue to be governed under the provisions of the old Act. Thus, according to this provision notification dated 10.5.1979 on which the learned counsel for the petitioners has emphasized is applicable and operative only to the pending cases and not to the cases to be filed after the commencement of the new Act. I am of the considered view that in the light of clause (d) of sub-section (3) of Section 32 of the new Act, the first requirement for the applicability of Section 27 of the Act cannot be said to be fulfilled.
So far as the second requirement as already referred is concerned, there are several provisions in the new Act which are inconsistent with the notification dated 10.5.1979. If it is held that that notification is still operative and applicable to the other Municipal Towns of the State of Rajasthan, the same would mean that the old Act is still applicable to those areas. If the two Acts are compared several inconsistencies come to light. For example, under the old Act Civil Court has jurisdiction to entertain the suits filed for eviction whereas under the provisions of the new Act only Rent Control Tribunal constituted under the same has jurisdiction to deal such cases and jurisdiction of Civil Court is barred. Under the new Act Officers having certain qualifications can be appointed to preside over the Rent Control Tribunals/Appellate Tribunals whereas under the provisions of the old Act Civil Court/Appellate Court constituted under the provisions of Code of Civil Procedure has jurisdiction. There is inconsistency in the procedure to be followed as provisions of Civil Procedure Code are not applicable under the provisions of new Act whereas under the old Act procedure provided by CPC is to be followed to deal with a suit or appeal. In the old Act there is no provision regarding revision of rent as provided in Sections 6 and 7 of the new Act and also there is no provision of limited period tenancy in the old Act as provided in the new Act. There are no provisions in the new Act like Section 13 (3) to 13 (6), Sections 14 (1) to 14 (3), Section 19-A, Section 22 etc. as provided in the old Act. As there are several inconsistencies between the two Acts, the second requirement for the applicability of Section 27 is also not fulfilled.
Apart from that, I am of the considered view that there is difference between a notification issued under the provisions of an Act by which the Act itself has been made applicable and a notification issued under some provision of the Act which has been issued to make that provision workable and functional. Section 27 of the Act saves only that notification issued under the provisions of the repealed Act which has been issued to make the provisions of the repealed Act workable and functional and not a notification by which the repealed Act itself was enforced. Section 27 provides that the notification issued under the repealed Act shall continue in force and be deemed to have been issued under the provisions so enacted unless and until it is superseded by any notification issued under the provisions so re-enacted. This part of Section 27 makes it clear that if some notification was issued under the provision of the repealed Act to make the provision of the same workable and functional but no such notification has been issued under the similar provision of the re-enacted Act i.e. new Act and such notification is not inconsistent with the provision of the new Act, then such notification shall remain applicable and operative and be deemed to have been issued under the provision of the new Act to make the provision of the new Act workable and functional unless and until it is superseded by any notification issued under the provision of the new Act. If the contention of learned counsel for the petitioners is accepted that would mean that notification dated 10.5.1979 issued under the provisions of the old Act shall be deemed to have been issued under the provisions of the new Act whereas sub-section (2) of Section 1 of the same provides that only provisions of the new Act can be made applicable by the State Government by issuing a notification under it. It is hard to understand that the notification dated 10.5.1979 issued under the provisions of the old Act by which provisions of the old Act were made applicable to all the Municipal Towns of the State of Rajasthan can be deemed to have been issued under sub-section (2) of Section 1 of the new Act. Even the decisions relied upon by the learned counsel for the petitioners support the view that only such notification which has been issued under the provision of the repealed Act to make the provision of the same workable and functional is saved under the provision of Section 24 of the Indian General Clauses Act or Section 27 of the Act and not such notification by which the provisions of the repealed Act were made applicable.
In the case of State of Punjab Vs. Harnek Singh reported in (2002) 3 SCC 481 the question was raised whether notifications issued under Section 5-A (1) of the Prevention of Corruption Act, 1947 empowering and authorising Inspector of Police to investigate the cases registered under that Act are still applicable even after repeal of that Act and commencement of the Prevention of Corruption Act, 1988 as no similar notifications have been issued under the provisions of the new Act. It was found by Hon'ble Supreme Court that those notifications were issued under the provisions of the repealed Act to make the provisions workable and as no similar notifications have been issued under the provisions of newly enacted Act of 1988 and there is no inconsistency between the notifications so issued and the provisions of the new Act, Section 24 of the General Clauses Act is applicable and notifications issued under the old Act are still operative and applicable and they shall be deemed to have been issued under the provisions of the new Act.
Similar is the case of Neel, Niranjan Majumdar Vs. The State of W.B. reported in AIR 1972 (SC) 2066. It was held that notification issued under Section 15 of the repealed Act would be deemed to be in force after repeal of that Act as if enacted under Section 4 of the Act of 1959. In that case also the notification in question was issued under the provisions of the repealed Act to make the provisions of the same workable and functional whereas inspite of similar provision in the new Act no notification was issued and in such circumstances it was held that notification issued under the provisions of the old Act shall be deemed to be still operative although the Act under which it was issued has already been repealed as it is essential to make the provisions of new Act to be workable and effective. Almost similar is the position in other decisions upon which reliance has been made by the learned counsel for the petitioners. In none of the cited cases it has been considered that a notification by which the repealed Act was made applicable can be held to be still operative and applicable and deemed to be issued under the provisions of the new Act Thus, in view of that also it cannot be held that even after repeal of the old Act the provisions of the same are still applicable to all Municipal Towns of the State of Rajasthan other than the areas comprising in the District Headquarters.
This contention of learned counsel for the petitioners is also not legally tenable that as previously protection of Rent Control Law was extended to the premises situated in all the Municipal Towns of the State and there is provision in the new Act also that provisions of the same can be made applicable by the State Government by issuing a required notification under sub-section (2) of Section 1 of the new Act, the legislative intention is clear that unless and until the provisions of the new Act are made applicable to other Municipal Towns, in the meanwhile protection of Rent Control Law in the form of old Act is available to the remaining Municipal Towns of the State. Such contention was considered and rejected in the case of Ram Narain & others Vs. Smt. Asha Devi & others (supra) by holding that the Rent Control Legislation only provided certain protection to the landlord or to the tenants, wherever, it was thought fit to be provided by the legislature and simply because for some time there happened to prevail certain Rent Law, it does not entitle the tenants to inherently claim protection of some rent control legislation, notwithstanding no one being in force or enacted by the Legislature. It is pertinent to note that provisions of the old Act were made applicable to various municipal towns of the State by way of different notifications issued from time to time including the notification dated 10.5.1979 and protection of Rent Control Law was extended but before that the dispute between landlord and tenant were governed by the General Law i.e. the Transfer of Property Act and the tenants were not getting protection of the Rent Control Law. As soon as the provisions of the old Act were made applicable, protection of the Rent Control Law was provided to all the municipal towns and even the pending matters were governed by the old Act but it cannot be said that once protection of the Rent Control Law has been extended, the same cannot be taken back. By way of sub-section (2) of Section 1 of the new Act, the legislature has left it to the discretion of the State Government to decide from which date the protection of the same has to be extended to other municipal towns of the State. In the present case also the petitioners are not entitled to contend that as previously provisions of the old Act were applicable to the Municipal Town of Laxmangarh and protection of Rent Control Law was extended to them, they are entitled to get the benefit of the same until the provisions of the new Act are made applicable by the State Government by issuing a notification under sub-section (2) of Section 1 of the new Act.
The net result of all this discussion is that no different view is possible to be taken from the one taken by the learned Single Bench of this Court in the case of Ram Narain & others Vs. Smt. Asha Devi & others (supra) even in the light of Section 27 of the Act. Thus, it is held that after the repeal of the old Act and commencement of the new Act with effect from 1.4.2003, presently the provisions of the old Act are not applicable also to the areas of other Municipal Towns of the State of Rajasthan and the relationship between a landlord and tenant is to be governed by the provisions of the Transfer of Property Act.
Consequently, the revision petition being meritless is, hereby, dismissed at the admission stage itself without any order as to costs. The stay application also stands dismissed.
(PRASHANT KUMAR AGARWAL), J teekam All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Teekam Khanchandani Private Secretary