Rajasthan High Court - Jodhpur
Chittorgarh Grah Nirman Sah. Samiti Ltd vs New India Assurance Co. Ltd., & Ors on 22 November, 2013
Author: Vijay Bishnoi
Bench: Vijay Bishnoi
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
ORDER
S.B.CIVIL WRIT PETITION NO.65/2012
Chittorgarh Grah Nirman Sahakari
Samiti Ltd.
Vs.
New India Assuarance Co. Ltd. & Ors.
Date of Order : 22.11.2013
PRESENT
HON'BLE MR JUSTICE VIJAY BISHNOI
Mr Manish Shishodia, for the petitioner
Mr Anil Bachhawat, for the respondents
BY THE COURT:
Being aggrieved with the orders dated 02.01.2009 (Annexure-7), 13.04.2009 (Annexure-9) and 10.11.2009 (Annexure-11) passed by the Rent Tribunal Chittorgarh as well as Rent Appellate Tribunal, Chittorgarh, the petitioner has preferred this writ petition.
Brief facts of the case are that the petitioner - Co-operative Society filed an application for eviction of the respondents from the premises, description of which is given in the eviction application, on the ground of reasonable and bonafide necessity under section 9 (i) 2 of the Rajasthan Rent Control Act, 2001 (for short 'the Act of 2001' hereinafter). In response to the eviction petition, the respondent No.1 filed its written statement and denied all the grounds raised by the petitioner, while raising preliminary objection that the provisions of Chapter II and III of the Act of 2001 are not applicable in the present matter as they are public sector company having a paid up share capital of more than rupees one crore and the eviction petition preferred by the petitioner is liable to be rejected. The petitioner filed rejoinder to the said written statement and the Rent Tribunal had framed issues on 12.09.2008 on the basis of the pleadings of the parties.
The respondent No.1 thereafter filed an application under Order 7 Rule 11 read with section 151 CPC stating therein that the petitioner is a public limited company having a paid up share capital of more than rupees one crore and therefore, the provisions of Chapter II and III of the Act of 2001 are not applicable as per section 3(10) of the Act of 2001 and the eviction petition filed by the petitioner 3 is liable to be rejected.
The Rent Tribunal, Chittorgarh after hearing the parties concerned on the application filed on behalf of the respondent No.1 under Order 7 Rule 11 read with section 151 CPC, has allowed the said application and rejected the eviction petition filed by the petitioner vide order dated 02.01.2009.
Being aggrieved thereof, the petitioner preferred an appeal before the Rent Appellate Tribunal, Chittorgarh, which too came to be dismissed vide order dated 13.04.2009 and the review petition preferred by the petitioner has also been rejected by the Rent Appellate Tribunal vide order dated 10.11.2009.
Assailing the validity of the impugned orders, the learned counsel for the petitioner has argued that the Rent Tribunal, Chittorgarh has erred in accepting the application filed on behalf of the respondent No.1 under section 7 Rule 11 read with section 151 CPC on the ground that the provisions of Chapter II and III of the Act of 2001 are not applicable and, therefore, the eviction petition is not 4 maintainable.
It is further contended by the learned counsel for the petitioner that the Tribunals below have failed to take into consideration the provision of section 18 of the Act of 2001, which provides that disputes relating to landlord and tenant and the matters connected therewith and ancillary thereto are to be governed by the Act of 2001. The learned counsel for the petitioner has further argued that it is not in dispute that the Act of 2001 is applicable in Chittorgarh and, therefore, the orders passed by Tribunals below are illegal and without jurisdiction and liable to be quashed and set aside. The learned counsel for the petitioner has placed reliance on a decision of this Court rendered in Smt. Nalini Mehta vs. State Bank of India & Ors. reported in 2007(3) CDR 1903 (Raj.).
Per contra, the learned counsel for the respondent No.1 has argued that eviction petition preferred by the petitioner under section 9 of the Act of 2001 was not maintainable in view of the provisions of section 3(10) of the Act of 5 2001 and, therefore, the Tribunals below have not committed any illegality in passing the impugned orders.
Heard learned counsel for the parties and perused the impugned orders.
After going through the material placed on record and considering the arguments of the learned counsel for the rival parties, this Court is of the opinion that the Tribunals below have erred in rejecting the eviction petition preferred by the petitioner against the respondent No.1 while holding that the same is not maintainable in view of the provisions of section 3(10) of the Act of 2001.
The learned tribunal below has not appreciated the provisions of section 18 of the Act of 2001, which provides that only the Rent Tribunal and no Civil Court shall have jurisdiction to hear and decide the petitions relating to the disputes between landlord and tenant and matters connected therewith and ancillary thereto, filed under the provisions of this Act, where the Act of 2001 is applicable. First proviso to section 18 of the Act of 2001 provides that the Rent Tribunal shall, in 6 deciding such petitions 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, 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.
Sub-section (3) of section 18 of the Act of 2001 provides that 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.
In Smt. Nalini Mehta vs. State Bank of India & Ors.(supra), this Court, after taking into consideration the provisions of sections 18 and 29 of the Act of 2001, has held as under:
"The Rajasthan Rent Control Act, 2001 is "to provide for control of eviction from letting of, and rents for, certain premises in the State of Rajasthan and matters incidental thereto".7
The Act has been divided in seven chapters under the heads: (I) preliminary; (II) Revision of Rent; (III) Tenancy; (IV) Restoration of Possession of Illegally Evicted Tenant and Procedure Thereof; (V) Constitution of Tribunals, Procedure for Revision of Rent and Eviction, Appeal and Execution; (VI) Amenities; and (VII) Miscellaneous. Section 1 of the Act clearly provides that it extends, in the first instance, to such of the municipal areas which are comprising the District Headquarters in the State and later on to such of the other municipal areas having a population exceeding 50,000 as per 1991 census as the State Government, may by notification in the official gazette would specify. Sub-section (3) of Section 1 provides that this Act would come into force with effect from such date as may be appointed by the State Government by notification in the official gazette. The State Government has appointed First day of April, 2003 as the date on which this Act shall come into force and it shall extend to all the municipal areas which are comprising the District Headquarters. The premises in question are situated at Udaipur and it is not in dispute that it is a municipal area comprising a District Headquarter. Therefore, the Act of 2001 directly extends to the area in question. Chapter II and III of the Act, containing Section 6 to 10, dealing with revision of rent in respect of existing tenancies (Section 6), revision of rent in respect of new tenancies (Section 7), limited period of tenancy (Section
8), eviction of tenants (Section 9) and right of 8 landlord to recover immediate possession in certain cases (Section 10) are the provisions which have clearly been excluded in respect of certain premises and tenancies under Section 3 of the Act. It is also not in dispute that the premises in question are situated at a place in the municipal area comprising Divisional Headquarter of Udaipur and have been let out at a monthly rent of Rs.39,610/-, but seem not to have been let out for residential purposes. However, the premises in question have been let out to the State Bank of India and clearly therefore, by virtue of provisions of Section 3 (x), Chapter II and III of the Act do not apply to the premises and the tenancy in question.
Section 18 of the Act (contained in Chapter V), which deals with jurisdiction of the Tribunal provides thus,-
"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 petitions 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 9 in this Act shall be deemed 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."
Section 29 of the Act (contained in Chapter VII)provides for an overriding effect of the provisions of this Act and reads as under,-
"29. Act to have overriding effect.- The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other Law for the time being in force or in any instrument having effect by virtue of any Law other than this Act."
It is also not in dispute that from the date notified in sub-section (3) of Section 1, the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 stands repealed by virtue of Section 32 of the Act of 2001.
The question is as to whether because of non- applicability of Chapter II and III to the premises in question, the civil court only is required to be approached for a dispute concerning such premises and the Tribunal 10 has no jurisdiction to deal with any such dispute? This Court is clearly of opinion that the answer to this question is in the negative. By virtue of Section 3 of the Act only Chapter II and III have been excluded from application to certain premises and tenancies but significantly not all the provisions of the Act whole-hog. By virtue of Section 1 itself, from the date of its coming into force, the Rajasthan Rent Control Act, 2001 applies to the area in question i.e. Udaipur. Obviously, such premises or tenancies which answer to the description as provided under Section 3, would be governed by the provisions of the Act excluding Chapter II and III thereof. The plain meaning is that the provisions of revision of rent, so also of limited period tenancy and obtaining an advance certificate of possession (as provided under Section 8) and of restriction on eviction with several grounds thereof (as provided under Section 9) and of right to recover immediate possession (as provided under Section 10) would not apply to such tenancies. Obviously, therefore, the relationship of parties, where the tenancy is of the nature which answers to the description of the clauses of Section 3, would be governed by the contractual terms and conditions and so also the fundamental principles of the Transfer of Property Act and the Contract Act or any other substantive law, wherever and to whatever extent applicable.
Such scheme of the enactment becomes obvious on a bare look at the provisions of Section 18 of the Act as quoted hereinabove. 11
The said provision itself has got an absolute overriding effect over any other law for the time being in force in relation to the areas to which the Act applies and in such areas only the Rent Tribunal and no civil court have jurisdiction to hear and decide the petitions relating to the disputes between landlord and tenant. The fact that such petitions could also be in relation to such premises to which the provisions contained in Chapter II and III do not apply is clearly highlighted by the first proviso to Section 18 which clearly provides for the matters to be kept in view by the Tribunal while dealing with such petitions to which the provisions contained in Chapters II and III do not apply; and only exclusion has been provided in second proviso for the premises to which the provisions of Rajasthan Public Premises (Eviction of Unauthorised Occupants) Act, 1964 and the Rajasthan Premises (Requisition and Eviction) Ordinance, 1949 apply. Sub-section (3) of Section 18 makes the position clear that in respect of these kind of premises, to which Chapters II and III do not apply, the time schedule and procedure as enumerated in Section 15 shall mutatis mutandis apply." It is not in dispute that the Act of 2001 is applicable in Chittorgarh and in view of the law laid down by this Court in Smt. Nalini Mehta's case (supra), the eviction petition filed by the petitioner - society against the respondent No.1 is very much maintainable and the Rent Tribunal, 12 Chittorgarh has erred in rejecting the eviction petition preferred by the petitioner vide judgment dated 02.01.2009, while holding it as not maintainable and the Rent Appellate Tribunal, Chittorgarh has also erred in rejecting the appeal as well as the review application preferred by the petitioner vide orders dated 13.04.2009 and 10.11.2009.
In the result, the writ petition is allowed, the impugned orders dated 02.01.2009 (Annexure-7), 13.04.2009 (Annexure-9) and 10.11.2009 (Annexure-11) are set aside and the matter is remanded to the Rent Tribunal, Chittorgarh to restore the Rent Control Original Petition No.1/2008 to its original number and decide it on merits in accordance with law.
No order as to costs.
[VIJAY BISHNOI],J.
m.asif/-