Vimal Chand vs Ram Ballabh on 10 August, 2011

[Cites 12, Cited by 3]

Rajasthan High Court - Jaipur

Vimal Chand vs Ram Ballabh on 10 August, 2011

Bench: Prem Shanker Asopa

    

 
 
 

 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JAIPUR BENCH JAIPUR

ORDER

S.B.CIVIL SECOND APPEAL NO.109/2009
Vimal Chand
Versus 
Shri Ram Ballabh

  DATE OF ORDER    ---    August 10,2011

PRESENT 

HONBLE MR.JUSTICE PREM SHANKER ASOPA

Mr.Vishwajeet Mantri, for the appellant 
Mr.Rajesh Sharma and Mr.Sanjeev Maheshwari, 
for the respondent

BY THE COURT

Heard learned counsel for the parties.

The following substantial questions of law have been framed by the appellant in this second appeal:

(A) Whether Rajasthan Premises (Control of Rent & Eviction) Act, 1950 has not been repealed by virtue of Section 32 of the Rajasthan Rent Control Act 2001 for the municipal area where Rajasthan Rent Control Act 2001 has not been extended.

(B) Whether the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 was repealed, in the absence of notification regarding the repeal of the Act, specially notification regarding the enforcement of Rent Control Act, 2001 is limited to the Municipal Head Quarters ?

(C) Whether the learned Trial Court rightly dismissed the application under Order 6 Rule 17 of the C.P.C. in which defendant denied the fact that plaintiff his land lord.

Counsel for the respondent submits that in view of the various judgments of this Court, the substantial questions of law, as raised by the appellant, no more remain substantial questions of law to be decided by this Court, as the controversy has been set at rest by this Court in the following judgments:

1. Rampal V. All Brahmin Swarnkar Panchayat & ors. (2007(4) WLC (Raj.) 532

2. Akhtar Ali V. A.D.J. (Fast Track), Merta City & anr. (2008(1) WLC (Raj.) 278.

3. Mumtaz Khan V. Civil Judge (S.D.) Bhadra & anr. (2008 WLC (Raj.)75).

4. Bhanwarlal & ors. V.Rajendra Prasad & ors. (2008 WLC 725).

5. Mangi Lal Saini V. Civil Judge (JD) Chomu and another (SBCWP No.12872/2008 decided on 6.4.2009).

6. Ram Narayan V. Smt.Asha Devi (2010(2) WLC (Raj.) 204.

7. Balram V. Shri Kishan Swaroop (SB Civil Second Appeal No.49/2009 decided on 22.5.2009).

8. Shri Bitthaldas Dargad V. Shri Kishan Swaroop (S.B. Civil Second Appeal No. 293/2008 decided on 7.8.2009).

As regards rejection of the amendment application on 16.1.2009 by the appellate court, the same relates to substantial questions (1) and (2), which has been dealt with by the appellate court while dealing with the issue of maintainability of civil suit under the Transfer of Property Act and after referring some of the judgments of this Court, came to the conclusion that no gazette notification for Kishangarh has been issued for making the Rajasthan Rent Control Act, 2001 applicable, therefore, civil siut under the Transfer of Property Act is maintainable.

Before proceeding further, it is necessary to quote the relevant portion of the aforesaid judgments. The same are as under:

Para 7 of Rampal V. All Brahmin Swarnkar Panchayat & ors. (2007(4) WLC (Raj.) 532

7.From out of the above provision, after deletion of the words deleted by Second Amendment Act, the remaining part of sub-section (2) would read as under:

(2) It shall extend in 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 as the State Government, may by notification in the Official Gazette, specify from time to time.

In my view, thus, on the reading of the consequently amended sub-section (2) also, it cannot be said that the Act is applicable to the municipal area of Merta City, in absence of any notification, published in Official Gazette, specifying the Act to have become applicable to this area. In that view of the matter, though for different reason, I do not find any sufficient ground to interfere with the impugned order.

The writ petition is, therefore, dismissed summarily.

Para 9 of Akhtar Ali V. A.D.J. (Fast Track), Merta City & anr. (2008(1) WLC (Raj.) 278.

Para 9 of Mumtaz Khan V. Civil Judge (S.D.) Bhadra & anr. (2008 WLC (Raj.)75).

In my view, thus, on the reading of the consequently amended sub-section (2) also, it cannot be said that the Act is applicable to the municipal area of Bhadra, in absence of any notification, published in Official Gazette, specifying the Act to have become applicable to this area. In that view of the matter, though for different reason, I do not find any sufficient ground to interfere with the impugned order.

Para 8 of Bhanwarlal & ors. V.Rajendra Prasad & ors. (2008 WLC 725).

8.In view of the specific requirement of Section (2) of the Act of 2001 and for the view taken by this Court in Rampal's case (supra), the plea as taken by the petitioners remains untenable for want of requisite notification extending the Act to the area in question. Thus, the impugned orders call for no interference.

Relevant portion of the order dated 6.4.2009 in CWP No.12872/2008 decided on 6.4.2009.

The Division Bench of this Court in the case of Kamal Kishore and 16 Others Vs. State of Rajasthan reported in 2008 (1) WLC (Raj.) 29 had an occasion to consider the provisions of the Act of 2001.

In para 4 of the said report, the Division Bench while considering the contention with regard to the constitutional validity of the Act of 2001 had occasion to deal with the object of the Act of 2001. The observations made by the Division Bench in this rgard in para 4 of the said report are as under:-

..... The Old Act of 1950 has been repealed in the year 2001 after a lapse of more than 50 years and its objects and reasons were broadly as follows:-

Statement objects and reasons The Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (Act No.17 of 1950) has been in force for nearly five decades and during these years the situation prevailing with regard to the premises in the State has undergone a considerable change and as a result of changed scenario, the law relating to premises warrants change. This matter has been engaging attention of the State Government for the past several years and the matter was considered time and again from all angles. The existing law owing to feeling of insecurity among the landlords in getting the premises vacated, is impeding the growth of letable premises. Hence, adequate provision for timely vacation of premises as also determination of fair rent is the necessity of the hour. Certain inbuilt safeguards for tenants are also required to be retained and certain premises are required to be kept out of the scope of new law. It has, therefore, become necessary to replace the existing law relating to control of rent and eviction of premises.

(Emphasis supplied.) From the above, it becomes clear that though the Division Bench was not concerned so far as the question of repeal of Act of 1950 is concerned but the Division Bench has observed in para 4 of the said report that Act of 1950 has been repealed in the year 2001 (sic 2003) i.e. after a lapse of more than 50 years.

With a view to appreciate the present contention, it is necessary to look into the statement of object and reasons, quoted above. The Legislature consciously with a view to remove the existing anomaly took into consideration the fact that it was striking a balance of keeping the safeguards for the tenants intact and at the same time excluding the applicability of the New Act to certain premises and for that purpose the Government was left with the discretion of applying the New Act to areas at its discretion under subsection (2) of Section 1.

Thus, the plain reading of sub-section (1) of Section 32 does not leave any room for doubt that the Act of 1950 stood repealed in its entirety w.e.f. 01.04.2003 on coming into force of the Act of 2001 by virtue of sub-section (1) of Section 32, as sub-section (1) of Section 32 of the Act of 2001 does not restrict the application of repeal only to the areas to which the Act of 2001 has been made applicable.

Balram V. Shri Kishan Swaroop (SB Civil Second Appeal No.49/2009 decided on 22.5.2009) In this second appeal the appellant has formulated the following substantial question of law:-

Whether the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 has been repealed by virtue of Section 32 of Rajasthan Rent Control Act, 2001 for the municipal area where Rajasthan Rent Control Act, 2001 has not been extended?

This question has been raised as the present suit for eviction of the appellant who was a tenant had been filed under the provisions of the Transfer of Property Act. After the repeal of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 by Section 32 of the Rajasthan Rent Control Act, 2001 the tenants do not enjoy the protection of the rent control legislation save in areas where the New Act of 2001 has been made applicable.

The learned counsel for the appellant has raised much the same submissions which have already been decided by this court in S.B.Civil Writ Petition No.12872/2008 [Mangi Lal Saini Vs. Civil Judge (Jr.Div.), Choumu and Another] vide judgment dated 06.04.2009 where the contention regarding partial repeal of the Act of 1950 by virtue of Section 32(1) has been rejected.

In view of the above, I am not persuaded to take a different view.

This appeal is accordingly dismissed summarily.

Relevant portion of Shri Bitthaldas Dargad V. Shri Kishan Swaroop (S.B. Civil Second Appeal No. 293/2008 decided on 7.8.2009) Learned counsel for the parties frankly submitted that the substantial question of law which was framed by this court has already been answered by this Court in the earlier decision in S.B. Civil Writ Petition No.12872/2008 (Mangi Lal Saini Vs. Civil Judge (JD), Chomu and another) decided on 06.04.2009. It is also admitted that on the basis of the aforesaid decision, Civil Second Appeal No.49/2009 was disposed of by this court vide order dated 22.05.2009 and this second appeal may be dismissed in the light of the judgment of Mangi Lal Saini's case.

In view of the above, since the substantial question of law which was framed by this court vide order dated 07.11.2008 has been answered in Mangi Lal Saini's case (supra), this second appeal and the stay application stand disposed of. The interim order dated 07.11.2008 stands vacated.

Para 23 of Ram Narayan V. Smt.Asha Devi (2010(2) WLC (Raj.) 204.

23. In view of the aforesaid discussion in my view, the Rajasthan Rent Control Act, 2001 has been made applicable w.e.f. 1.4.2003 to those areas mentioned in the notification dated 21.3.2003 issued in exercise of the powers conferred under sub section (2) and (3) of Section 1 of the New Act 2001 and not in any other area and on repeal of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, the Old Act, 1950, it shall not be applicable to the areas which have not been made applicable under the New Act by notification dated 21.3.2003. All these matters relating to a suit filed under Section 106 of the Transfer of Property Act and have been decreed by the trial court and on an appeal the decree of the trial court has been affirmed. There is concurrent finding of facts recorded by the courts below in respect of the appeals challenging judgment and decree of eviction and therefore, I do not find any error in the concurrent finding of facts recorded by two courts below.

Counsel for the appellant made an oral attempt to distinguish the aforesaid judgments on the basis of interpretation of the provisions involved as answered by this Court as regards the applicability of the Act of 2001 but could not substantiate the same by citing any judgment.

I have gone through record of the second appeal and further considered the rival submission of counsel for the parties.

In my view, the substantial question of law has already been answered by this Court and the same remains no longer res integra, therefore, the same cannot be termed as question of law and hence, the second appeal deserves to be dismissed.

Accordingly, the second appeal is dismissed.

(Prem Shanker Asopa) J.

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