Rajasthan High Court - Jaipur
Kamal Kishore Chitlangiya vs Smt Ramkanwari Devi Jhawar on 3 August, 2012
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH J U D G M E N T S.B.Civil Second Appeal No. 296/2012 Kamal Kishore Chitlagiya Vs. Smt. Ramkawari Devi Jhawar Date of Judgement : 03.08.2012 PRESENT HON'BLE MR. JUSTICE PRASHANT KUMAR AGARWAL Mr. Vishvajeet Mantri for the appellant. Mr. B.L.Agarwal ) Mr. Amit Gupta ) for the respondent. BY THE COURT:-
REPORTABLE The defendant-appellant has preferred this civil second appeal under Section 100 of the Code of Civil Procedure against the judgment and decree dated 22.5.2012 passed by the Additional District Judge, Kishangarh (District Ajmer) in Civil Regular Appeal No.24/2009 whereby the learned appellate Court has upheld and affirmed the judgment and decree dated 29.7.2009 passed by the trial Court i.e. Civil Judge (Junior Division), Kishangarh (District Ajmer) in Civil Suit No.134/2004 whereby the learned trial Court decreed the suit for eviction filed by the plaintiff-respondent.
In the present appeal 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 the Municipal Towns of the State of Rajasthan other than the municipal areas which are comprising the District Headquarters and a suit for eviction is required to be filed under the provisions of the Old Act.
Brief relevant facts for the disposal of this question are that the plaintiff-respondent filed a suit for eviction under the provisions of the Transfer of Property Act, 1882 (hereinafter to be referred as the Act) against the defendant-appellant in respect of the suit shop situated at Kishangarh, a Municipal Town, with the averment that tenancy of the appellant has been terminated by reason of a notice dated 10.7.2004 issued under Section 106 of the Act. Although, in the written statement filed by the appellant no such objection was taken that the suit filed under Section 106 of the Act is not maintainable by the reason that with effect from 1.4.2003, the Rajasthan Rent Control Act, 2001 (hereinafter to be referred as the New Act) has been made applicable or that even after the repeal of the Old Act, the provisions of the same are still applicable to those Municipal towns of the State of Rajasthan which do not comprise the District Headquarters and the suit should have been filed under the provisions of the new Act or in the alternative under the provisions of the Old Act but during trial a specific objection was raised on behalf of the appellant that the suit is not maintainable under the provisions of the Act as provisions of New Act are applicable to the Municipal Town of Kishangarh also. The objection so raised was considered and rejected by the trial Court. Ultimately, the suit was decreed by the Court by finding that the tenancy of the appellant has been validly terminated. Feeling aggrieved, the appellant filed appeal under Section 96 CPC and the same was dismissed by the appellate Court vide judgment and decree dated 22.5.2012.The learned appellate Court upheld and affirmed each and every finding of the trial Court including the finding that provisions of the New Act have not been made applicable to those municipal areas of the State of Rajasthan which do not comprise District Headquarters and the suit has been validly filed under the provisions of the Act. It is pertinent to note that no such question was raised by the appellant before both the Courts below that even after repeal of the Old Act, the provisions of the same are still applicable to the Municipal Towns other than the Municipal areas which are comprising the District Headquarters and a suit for eviction is required to be filed under the provisions of the Old Act. It is for the first time in this second appeal a question has been raised on behalf of the appellant that the premises situated in the Municipal Town of Kishangarh are governed by the provisions of the Old Act.
It was contended by the learned counsel for the appellant that although the provisions of the New Act are not applicable to the Municipal Town of Kishangarh, where the suit premises is situated, as further notification has not been issued by the State of Rajasthan as required by sub-section (2) of Section 1 of the New Act but a conjoint reading of Section 32 and sub-section (2) and (3) of Section 1 of the New Act makes it clear that by Section 32 of the new Act, the Old Act has not been repealed in its entirety and it has been repealed in respect of those areas only to which the New Act has been made applicable vide notification dated 21.3.2003 i.e. areas comprising the District Headquarters and, therefore, to remaining Municipal areas of the State still the provisions of the Old Act are applicable. It was further submitted that unless further notification as required under sub-section (2) of Section 1 of the New Act is issued by the State Government, the provisions of the Old Act shall continue to apply to such Municipal areas of the State which do not comprise the District Headquarters. It was also submitted that the intention of the legislature was that provisions of the New Act may also be made applicable to the other municipal areas and it can never be intention of the legislature that the premises of other municipal areas will not get protection of rent control legislation during the period in which the provisions of the New Act are not applicable.It was also contended that there is no material inconsistency between the provisions of the New Act and the Old Act as both of them have been enacted mainly for the protection of the tenants, in the State of Rajasthan both may apply at the same time, i.e. the New Act to the areas comprising of District Headquarters and the Old Act to the remaining municipal areas as it was earlier applicable.
In support of his submissions, learned counsel for the appellant relied upon the case of Parma Nand Vs. Kalyan Dass & anr. reported in AIR 1959 Punjab 610.
3. On the other hand, it was submitted by the learned counsel for the respondent that Section 32 of the New Act clearly indicates that the Old Act has been repealed as a whole and not partially as contended by the appellant and there is no indication in the repealing clause of the New Act that the areas of the State of Rajasthan to which the provisions of the New Act have not been made applicable by the State Government by issuing further notification under sub-section (2) of Section 1 of the New Act, provisions of the Old Act shall continue to be applicable. According to learned counsel for the respondent repeal of the Old Act by Section 32 of the New Act is from the date as notified by the State Government i.e. 1.4.2003 and not for the area, so what is relevant in the repealing provisions is the date from which the Old Act came to be repealed. It was further submitted that sub-section (3) of Section 1 of the New Act provides for the date from which the New Act shall be in force in the whole State of Rajasthan whereas sub-section (2) thereof provides provision for extension of the provisions of the New Act to different areas of the State from different dates as notified by the State Government from time to time and there is difference between the extension of the Act and the enforcement thereof.
I have considered the submissions made on behalf of the respective parties and also gone through the relevant provisions of law and the case law.
First of all it would be useful to consider the relevant legal provisions of the new Act as referred by learned counsel for the appellant which are as below:-
Section 1. Short title, extent and commencement.-(1) This Act may be called The Rajasthan Rent Control Act, 2001.
(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.
(3) It shall come into force with effect from such date as the State Government may, by notification in the Official Gazette, appoint.
Section 32. Repeal and savings.-(1) The Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (Act No.17 of 1950) shall stand repealed with effect from the date notified under Sub-sec.(3) of Sec. 1 of this Act.
(2) The repeal under Sub-sec.(1) shall not affect,-
(a) anything duly done or suffered under the enactment so repealed;- or
(b) any right, title, privilege, obligation or liability acquired or incurred under the enactment so repealed; or
(c) any fine, penalty or punishment incurred or suffered under the provisions of the enactment so repealed;
(3) Notwithstanding the repeal under Sub-sec.(1),-
(a) all applications, suits or other proceedings under the repealed Act pending on the date of commencement of this Act before any Court shall be continued and disposed of, in accordance with the provisions of the repealed Act, as if the repealed Act had continued in force and this Act had not been enacted. However, the plaintiff within a period of one hundred and eighty days of coming into force of this Act shall be entitled to withdraw any suit or appeal or any other proceeding pending under the repealed Act with liberty to file fresh petition in respect of the subject matter of such suit or appeal or any other proceeding under and in accordance with the provisions of this Act and for the purposes of limitation such petition shall, if it is filed within a period of two hundred and seventy days from the commencement of this Act, be deemed to have been filed on the date of filing of the suit which was so withdrawn and in case of withdrawal of appeal or other proceeding, on the date on which the suit, out of which such appeal or proceeding originated, was filed;
(b) the provision for appeal under the repealed Act shall continue in force in respect of applications, suits and proceedings disposed of thereunder,
(c) all prosecutions instituted under the provisions of the repealed Act shall be effective and disposed of in accordance with such repealed law;
(d) any rule or notification made or issued under the repealed Act and in force on the date of commencement of this Act shall continue to govern the pending cases.
Thus, Sub-sec.(1) of Section 32 of the New Act clearly provides that the Old Act shall stand repealed with effect from the date notified under sub-sec.(3) of Section 1 of the New Act. It is pertinent to note that this provision does not provide that the Old Act shall stand repealed with effect from the date notified under sub-section (2) of Section 1 of the New Act i.e. when the provisions of the New Act are extended or made applicable to different Municipal areas of the State of Rajasthan including the District Headquarters. The legislative intention is that the Old Act shall stand repealed as soon as the New Act is enforced by the State Government by issuing the required notification in the Official Gazette. It is not in dispute that in pursuance of sub-section (3) of Section 1 of the New Act, the State Government has issued notification on 21.3.2003 and it has been provided therein that the New Act shall come into force w.e.f. 1.4.2003. I am of the view that sub-section (2) and sub-section (3) of Section 1 of the New Act operates in two different spheres. Whereas sub-section (2) provides that the provisions of the New Act shall extend in the first instance to such of the Municipal areas which are comprising the District Headquarters in the State and lateron such of the other Municipal areas as the State Government may by notification in the Official Gazette specify from time to time, on the other hand according to sub-section (3) the provisions of the New Act shall come into force with effect from such date as the State Government may by notification in the Official Gazette appoint. Thus, the former provision provides for extension of the New Act to different areas of the State with effect from such dates as notified by the State Government whereas the later provision provides that the provisions of New Act shall come into force as soon as a date is appointed by the State Government by issuing a notification to that effect. Therefore, merely because the provisions of New Act have not been extended to other Municipal areas of the State, it cannot be said that the Old Act as a whole has not been repealed by sub-section (1) of Section 32 of the New Act and provisions of the same are still applicable to the remaining Municipal areas of the State. Clause (a) of sub-section (3) of Section 32 of the New Act provides that all applications, suits or other proceedings under the Old Act pending on the date of commencement of the New Act before any Court shall be continued and disposed of, in accordance with the provisions of the Old Act, as if the Old Act had continued in force and the New Act had not been enacted. It is therefore, legislative intention is further clear that only pending cases filed under the provisions of the Old Act have been saved and not any other case. If the legislative intention would have been that until the provisions of the New Act are extended or made applicable by the State Government by issuing a notification to such Municipal areas which do not comprise the District Headquarters in the State, the provisions of the Old Act shall continue to apply, it would have specifically provided. In absence of such saving clause it cannot be said that despite repeal of the Old Act, provisions of the same are applicable to remaining Municipal areas of the State.
Apart from that, the question raised is no longer res-intigra as in many cases it has been held that the Old Act stood repealed in its entirety with effect from 1.4.2003 on coming into force of the New Act by virtue of sub-section (1) of Section 32, as sub-section (1) of Section 32 of the New Act does not restrict the application of repeal only to the areas to which the provisions of the new Act have been made applicable.
In the case of Ram Narain & others Vs. Smt. Asha Devi & others reported in 2010 (3) RLW (Raj.) 2426, 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.
In S.B. Civil Second Appeal No.109/2009 (Vimal Chand Vs. Shri Ram Ballabh) decided on 10.8.2011 learned Single Bench after considering various decisions has held that 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.
In the case of S.B. Civil Revision Petition No.9/2012 (Nand Kishore & another Vs. Vishwanath Kayal) decided on 21.06.2012, a specific question was raised on behalf of the petitioner-tenant that in the case of Ram Narain & others Vs. Smt. Asha Devi & others (supra), the provisions of Section 27 of the Rajasthan General Clauses Act were not considered and that decision shall be deemed to have been decided per incurium. In the light of contention raised on behalf of the tenant the question regarding applicability of the Old Act to the remaining Municipal areas of the State of Rajasthan was considered in detail by this Court and it was held that no different view is possible to be taken from the one taken by the learned Single Bench in the case of Ram Narain & others Vs. Smt. Asha Devi & others (supra) even in the light of Section 27 of the Rajasthan General Clauses Act. It was also held that after the repeal of the Old Act and enforcement of the New Act with effect from 1.4.2003, 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 Transfer of Property Act.
So far as withdrawal of protection of Rent Control legislation is concerned, the well settled legal position is that a tenant does not have a vested right under the Rent Control legislation but it has only a protective right and such right can be withdrawn at any time and the tenant can not contend that as at one point of time, he had protection of such legislation, that can never be withdrawn or that he cannot be left without there being such protection. The tenant enjoys the statutory protection as long as the statute remain in force and is applicable to him but as soon as the statute ceases to be operative, the tenant cannot claim to have continued benefit of the old statutory protection. When the protection does not exist, the normal relations of landlord and tenant come into operation. Merely because at one point of time, the Old Act was applicable to all municipal towns of the State of Rajasthan does not mean any vested right was acquired by the tenants of those town for the continued applicability of the same for all times to come or protection of similar enactment is provided to them. Therefore, in the present case the appellant cannot claim that as the provisions of the new Act has not been made applicable to him, he is entitled to the protection of the Old Act.
Consequently, the appeal being meritlesss is, hereby, dismissed at the admission stage itself. 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 Secretar