Jharkhand High Court
Smt. Rekha Charanpahari vs Pushpanjalee Traders on 9 September, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No.124 of 2023
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(Against the judgment dated 31.03.2023 passed by learned Principal District Judge, Dhanbad in Civil Appeal No.159 of 2020)
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Smt. Rekha Charanpahari, aged about 66 years, wife of Late Arun Kumar Charanpahari, resident of Pahari Niwas, Near Big Bazar, P.O.- Saraidhela, P.S.- Saraidhela, District- Dhanbad .... .... .... Plaintiff/ Respondent/Appellant.
Versus
1. Pushpanjalee Traders, represented by its Proprietor Sri Swetank, Son of Sri U.P. Singh, resident of Sugiadih Bast, P.O. and P.S.- Saraidhela, District- Dhanbad. Worksite Address Pushpanjalee Traders, Furniture World, Near Big Bazar, P.O. and P.S.- Saraidhela, District- Dhanbad.
.... .... .... Defendant / Appellant / Respondent
2. Vineet Charanpahari, son of Late Arun Kumar Charanpahari, resident of Pahari Niwas, Near Big Bazar, P.O.- Saraidhela, P.S.- Saraidhela, District- Dhanbad (Jharkhand).
.... .... .... Plaintiff/Respondent/Proforma Respondent
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For the Appellant : Mr. Krishna Shankar, Advocate
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PRESENT HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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By the Court:- Heard the counsel for the appellant.
2. This Second Appeal filed under section 100 of the Code of Civil Procedure, 1908 has been preferred against the judgment of reversal dated 31.03.2023 passed by learned Principal District Judge, Dhanbad in Civil Appeal No.159 of 2020 whereby and where under the learned first appellate court 1 S.A. No.124 of 2023 being the learned Principal District Judge, Dhanbad has held that the Original Suit No.362 of 2015 filed by the plaintiff, who is the appellant of this Second Appeal and the respondent before the First appellate court; in the court of Civil Judge (Senior Division)- III, Dhanbad dated 14.09.2015, filed with a prayer for eviction of the defendant of this suit in terms of Section 11 (1) (d) of the Jharkhand Buildings (Lease, Rent & Eviction) Control Act, 2011 and also under Section 11 (1) (b) and 11 (1) (c) of the said act is without jurisdiction, in view of the enactment of the Jharkhand Buildings (Lease, Rent & Eviction) Control Act, 2011 by Section 47 of which, the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 was repealed and under Section 19 of which power for eviction has been vested upon the controller which according to Section 2 (d) meaning a person appointed by the State Government under Section 31 of the said Act.
3. Learned counsel for the appellant submits that the learned appellate court has committed a perversity by holding that the trial court has no jurisdiction even though the jurisdiction of the trial court was not challenged in the written-statement by the defendant. It is next submitted that the learned first appellate court has misconstrued the notification dated 16.05.2016 wherein it has been mentioned that a fresh proceeding initiated after the enactment of the Jharkhand Buildings (Lease, Rent & Eviction) Control Act, 2011 notified on 15.04.2015 shall be guided and governed by the new Act on and from 15.04.2015 but the clarification having been came for that on 16.05.2016, the learned first appellate court ought to have held that the provisions of the Jharkhand Buildings (Lease, Rent & Eviction) Control Act, 2011 would be effective only from 16.05.2016. Hence, it is submitted that the impugned 2 S.A. No.124 of 2023 judgment and decree passed by the learned first appellate court be set aside and the judgment and decree passed by the trial court being the Civil Judge (Senior Division)- III, Dhanbad in Original Suit No.362 of 2015 dated 25.09.2018 be restored.
4. Having heard the submissions of the learned counsel for the appellant and after going through the materials available in the record, it is pertinent to mention here that the verbatim of the notification issued by the Urban Development & Housing Department of the Government of Jharkhand which reads as under:-
la[;k 219] jk¡ph] cq/kokj 25 pS= 1937 ¼'k0½
15 viSzy 2015 ¼bZ0½
uxj fodkl foHkkx
&&&&&&&&
vf/klwpuk
15 viSzy] 2015
la[;k&02@u0fo0@Reform-09/2010-..1336.. >kj[kaM Hkou ¼iV~Vk] fdjk;k ,oa fu'dklu½ fu;a=.k vf/kfu;e&2011 ¼>kj[kaM vf/kfu;e&06] 2012½ dh /kkjk&¼1½ dh mi/kkjk&¼3½ esa mDr vf/kfu;e ds izHkkoh frfFk ds laca/k esa 'kkldh; jkti= esa vf/klwpuk izdkf'kr fd;s tkus dk izko/kku gSA mDr izko/kku ds vkyksd esa izHkkoh frfFk fu;r djus gsrq ;g vf/klwpuk >kj[kaM xtV esa izdkf'kr dh tk jgh gSA vf/klwpuk ds >kj[kM xtV esa izdkss"ku dh frfFk ls >kj[kaM Hkou ¼iV~Vk] fdjk;k ,oa fu'dklu½ fu;a=.k vf/kfu;e&2011 ¼>kj[kaM vf/kfu;e&06] 2012½ izHkkoh le>k tk;sxkA >kj[kaM jkT;iky ds vkns"k ls] vt; dqekj flag ljdkj ds lfpoA &&&&&&&&&
5. It is crystal clear from the notification that the provisions of the Jharkhand Buildings (Lease, Rent & Eviction) Control Act, 2011 has come into effect from 15.04.2015; that is the date of publication of the notification in the 3 S.A. No.124 of 2023 official Gazette. The contention of the appellant is the notification clarifying the date from which the provisions of Jharkhand Buildings (Lease, Rent & Eviction) Control Act, 2011 would be effective which reads as under:-
NOTIFICATON The 16th May, 2016 No.-8/Noti/101/2016/N. Vi-2660- In exercise of the powers conferred under section 46 of the Jharkhand Buildings (Lease, Rent & Eviction) Control Act, 2011 and to avoid ambiguity arising out of the language used under Section 47 (2) of the Jharkhand Buildings (Lease, Rent & Eviction) Control Act, 2000 and first appeals, second appeals and execution proceedings filed and pending in different Court under the old Jharkhand Buildings (Lease, Rent & Eviction) Control Act, 2000 shall be governed and guided till their finality under the old Jharkhand Buildings (Lease, Rent & Eviction) Control Act, 2000 and only the fresh proceedings initiated after the enactment of the new Jharkhand Buildings (Lease, Rent & Eviction) Control Act, 2011 notified on 15.04.2015 shall be guided and governed by New Act. All subsequent proceedings arising out of order/judgments shall be governed under the New Act.
It shall come into force with effect from the issuance date of this notification.
By the order of the Governor of Jharkhand Arun Kumar Singh, Principal Secretary of Government Urban Development & Housing Department.
(Emphasis supplied) 4 S.A. No.124 of 2023
6. It is then submitted by the learned counsel for the appellant that by the said notification dated 16.05.2016, it has been clarified that the provisions of Jharkhand Buildings (Lease, Rent & Eviction) Control Act, 2011 shall come into force with effect from the date of issuance of the said notification.
7. Learned counsel for the appellant submits that the sentence "It shall come into force with effect from the issuance date of this notification." means that the Jharkhand Buildings (Lease, Rent & Eviction) Control Act, 2011 shall be effective from 16.05.2016. Hence, it is submitted that the impugned judgment and decree passed by the first appellate Court be set aside and the judgment and decree passed by the trial court be restored, after formulating the appropriate substantial question of law.
8. Having heard this submissions made at the bar, and going through the materials in the record, it is relevant to refer to Section 1 of the Jharkhand Buildings (Lease, Rent & Eviction) Control Act, 2011 which reads as under:-
"1. Short title, Extent and Commencement- (1) This Act may be called the Jharkhand Buildings (Lease, Rent & Eviction) Control Act, 2011.
2. This Act shall apply to the whole of the State of Jharkhand.
3. It shall come into force on such date as the Government of Jharkhand may, by notification in the Official Gazette, appoint." (Emphasis supplied)
9. The perusal of Section 1 (3) of the Jharkhand Buildings (Lease, Rent & Eviction) Control Act, 2011, in no uncertain manner makes it abundantly clear that the said Act shall come into force on such date as the Government of Jharkhand may, by notification in the official gazette, appoint. It also remains undisputed that the Government of Jharkhand by notification in the official gazette has appointed the date of publication of said notification No.219 in the 5 S.A. No.124 of 2023 official gazette, to be 15.04.2015; since the said notification was published in the official gazette by the Government of Jharkhand dated 15.04.2015. So, obviously the Jharkhand Buildings (Lease, Rent & Eviction) Control Act, 2011 has come into force from 15.04.2015. Since, as per Section 1(3) of the Jharkhand Buildings (Lease, Rent & Eviction) Control Act, 2011, shall come into force on such date as the Government of Jharkhand may, by notification in the Official Gazette, appoint; consequent upon the said notification in the official gazette, that 15.04.2015 is the appointed date, certainly the Principal Secretary of the Government, Urban Development Housing Department, having not been vested with any power to change the said date of coming into force of the Jharkhand Buildings (Lease, Rent & Eviction) Control Act, 2011; the said appointed date of 15.04.2015, cannot be changed by an ambiguous notification of clarification, as in this notification itself, it has been categorically mentioned, that for fresh cases, the appointed day is 15.04.2015.
10. Hence, this Court do not find any merit in the contention of the learned counsel for the appellant that the Principal District Judge, Dhanbad has committed perversity by holding that the Jharkhand Buildings (Lease, Rent & Eviction) Control Act, 2011 has come into force on 15.04.2015.
11. So far as the contention of the learned counsel for the appellant that the issue of jurisdiction was never challenged by the defendant is concerned, it is a settled principle of law that the issue of jurisdiction, if it is a pure question of law, can be raised in an appeal for the first time, hence, this Court has no hesitation in holding that in this case the issue of jurisdiction do not involve any fact and which is a pure question of law. So, the learned first appellate court has not committed any illegality by holding that in view of coming into 6 S.A. No.124 of 2023 force of the provisions of the Jharkhand Buildings (Lease, Rent & Eviction) Control Act, 2011 on 15.04.2015, that is, before filing of the suit on 14.09.2015, the Civil Judge (Senior Division)-III, Dhanbad was not having the jurisdiction to entertain the suit and setting aside the judgment and decree passed by the Civil Judge (Senior Division)-III, Dhanbad; with a direction to return the plaint to the plaintiff for presenting the same before the Controller appointed by the Government of Jharkhand in terms of Section 31 of the Jharkhand Buildings (Lease, Rent & Eviction) Control Act, 2011.
12. Under such circumstances, this Court is of the considered view that there is absolutely no substantial question of law involved in this Second Appeal.
13. Accordingly, this Second Appeal, being without any merit, is dismissed but under the circumstances without any costs.
14. Let a copy of this judgment be sent to the courts concerned forthwith.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 09th of September, 2024 AFR/ Animesh 7 S.A. No.124 of 2023