Himachal Pradesh High Court
Anand Sharma vs Shri Rajesh Sachdeva on 15 June, 2022
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 15th DAY OF JUNE, 2022
BEFORE
.
HON'BLE MS. JUSTICE JYOTSNA REWAL DUA
CIVIL REVISION NO.10 OF 2022
Between:-
ANAND SHARMA,
S/O SH. K.D. SHARMA,
AGED 65 YEARS,
AT PRESENT CHANDAN HOTEL,
ROOM NO.102, THE MALL,
SHIMLA-171001 (HP)
.....PETITIONER
(BY MR. Y. P. SOOD, ADVOCATE)
AND
BHAGAT RAM SACHDEVA,
R/O 37, MIDDLE BAZAR, SHIMLA
SINCE DECEASED THROUGH
HIS LEGAL REPRESENTATIVE
SHRI RAJESH SACHDEVA,
S/O SHRI BHAGAT RAM SACHDEVA,
RESIDENT OF 33, MIDDLE BAZAR,
SHIMLA-171001, H.P.
.....RESPONDENT
_________________________________________________________________
This petition coming on for admission this day, the
Court passed the following:
ORDER
Petitioner has invoked Section 24 (5) of the H.P. Urban Rent Control Act, 1987 (Act in short) against the impugned order passed by learned Rent Controller on ::: Downloaded on - 18/06/2022 20:02:18 :::CIS 2 09.08.2018, rejecting the prayer of the petitioner for withdrawal of amount of Rs.34800/- deposited by him in the Court as arrears of rent.
.
2. Relevant facts are as under: -
2(i) Petitioner moved an application under Section 21 of the Act. This application filed in the year 2016/2017 was with the averments that the petitioner was tenant in the premises in question, belonging to the respondent-landlord Sh. Bhagat Ram Sachdeva. Petitioner had been paying the rent of the premises in question. The landlord Sh. Bhagat Ram Sachdeva had refused to accept the rent w.e.f. August 2014. The prayer was made in the application to allow the petitioner to deposit a sum of Rs.34800/- towards rent of the tenanted premises in the Court for the period 1.08.2014 to December, 2016.
2(ii). The petitioner deposited a sum of Rs.34800/- in the Court on 01.01.2017 by way of a demand draft.
2(iii). It appears that reply to the application moved by the petitioner was filed by the landlord Sh. Bhagat Ram Sachdeva, contending that the rate of rent was Rs.1500/- per month. He also alleged in the reply that original tenant was one Shri Naresh Gupta, who had sublet the premises in question to the petitioner.::: Downloaded on - 18/06/2022 20:02:18 :::CIS 3
2(iv). The landlord Sh. Bhagat Ram Sachdeva died during pendency of the proceedings.
2(v). During hearing of the case before learned Rent .
Controller on 09.08.2018, learned counsel for the petitioner made an oral prayer for withdrawing the application filed by the petitioner under Section 21 of the Act with further prayer to allow the petitioner to withdraw the rent deposited by him.
2(vi). The oral prayer made by learned counsel for the petitioner Rs.34800/-
qua
withdrawal of the rent amounting
was disallowed by learned Rent Controller vide order dated 09.08.2018.
3. Aggrieved against non-acceptance of his prayer for withdrawing the rent amount so deposited, the petitioner has preferred the instant civil revision.
In the instant case, notice was issued to the sole respondent Shri Rajesh Sachdeva, son of landlord Sh. Bhagat Ram Sachdeva, (respondent in application under Section 21 of the Act). As per office report, the said respondent has been served, however, none appeared on his behalf.
4. To a query of the Court regarding maintainability of the civil revision, learned counsel for the petitioner placed reliance upon the notification dated 10.10.2006, issued by the ::: Downloaded on - 18/06/2022 20:02:18 :::CIS 4 State Government under Section 24 (1) of the Act, which reads as under:-
"No. LSG-A(3)-1/71-11-In supersession of this Department notification of even number dated 26-5-1988, .
published in Rajpatra, Himachal Pradesh (Extra-
ordinary), dated 7th June, 1988 and in exercise of powers vested in him under sub section (1) of Section 24 of the Himachal Pradesh Urban Rent Control Act, 1987 (Act No. 25 of 1987) the Governor, Himachal Pradesh is pleased to confer the powers of appellate authorities on all the District and Sessions Judges/Additional District and Sessions Judges in respect of the urban areas in their respective existing jurisdictions to hear appeals against the orders made by the Rent Controllers under sections 4,5,11,12,13,14 [Except 14(3) (a) (i) and 21 of the said Act."
The order impugned herein has not been passed under the provisions made specifically appealable in the aforesaid notification. Therefore, in terms of Section 24(5) of the Act, the instant civil revision would be maintainable.
5. Coming to the merits of the matter, the petitioner had moved an application under Section 21 of the Act for deposit of the rent. He deposited an amount of Rs.34800/-
towards the rent of the premises in question for the period August 2014 to December, 2016. Learned Rent Controller has recorded in the impugned order that landlord Sh. Bhagat Ram Sachdeva died during pendency of the application under Section 21 of the Act. The oral prayer made by learned ::: Downloaded on - 18/06/2022 20:02:18 :::CIS 5 counsel for the petitioner before the learned Rent Controller on 09.08.2018 for withdrawing the application under Section 21 of the Act and for withdrawing the rent deposited by him, .
has been disallowed by the learned Rent Controller for the following reasons: -
"There is no provisions under H.P. Urban Rent Control Act for withdrawal of the rent once deposited by the tenant under Section 21 of the H.P. Urban Rent Control Act. As per section 23 of the H.P. Urban Rent Control Act, any rent which is not withdrawn by the landlord within 5 years which is deposited will be forfeited to the government by an order made by the Controller. Thus, if respondent does not claim the rent same will be forfeited to the government of Himachal Pradesh."
6. Learned counsel for the petitioner canvassed the following pleaded reasons for making the prayer for withdrawing the application as well as the deposited rent:-
(a). During the pendency of the application moved by the petitioner-tenant under Section 21 of the Act, the landlord Sh. Bhagat Ram Sachdeva died.
(b). After the death of Sh. Bhagat Ram Sachdeva, a settlement was arrived between the petitioner and the legal heirs of Sh. Bhagat Ram Sachdeva.
(c). In terms of the said settlement/arrangement, the possession of the tenanted premises was handed over by the ::: Downloaded on - 18/06/2022 20:02:18 :::CIS 6 petitioner to the legal heirs of the landlord Sh. Bhagat Ram Sachdeva.
(d). The payment of rent was also settled between the .
petitioner and the legal heirs of Sh. Bhagat Ram Sachdeva.
The due and admissible rent payable by the petitioner was paid to the legal heirs of the landlord Sh. Bhagat Ram Sachdeva.
(e). The disputes between the petitioner and landlord were settled, therefore, the petitioner did not intend to pursue the application moved by him under Section 21 of the Act.
Accordingly, he made an oral prayer before the learned Rent Controller on 09.08.2018 for withdrawing the application as well as for withdrawing the rent deposited by him.
7. As already observed above, there is no appearance on behalf of the respondent-legal heir of the original landlord Sh. Bhagat Ram Sachdeva, therefore, factual assertions projected on behalf of the petitioner having gone unrebutted, are to be accepted.
While turning down petitioner's prayer for withdrawal of deposited rent, learned Rent Controller has observed in the impugned order that there is no provision in the Act for withdrawal of the rent once deposited by the tenant. As per the impugned order, in terms of Section 23 of ::: Downloaded on - 18/06/2022 20:02:18 :::CIS 7 the Act, the rent which is not withdrawn by the landlord within five years from the date of deposit, will be forfeited to the State Government by an order made by the Controller.
.
Learned Rent Controller has further observed that if the respondent does not claim the rent, the same will be forfeited to the State Government.
The above observations are not in consonance with the provisions of Sections 21 and 23 of the Act. Section 21 (1) of the Act reads as under: -
"21.
Deposit of rent by the tenant. - (l) Where the landlord does not accept any rent tendered by the tenant within the time referred to in section 20 or refuses or neglects to deliver a receipt referred to therein or where there is a bona fide doubt as to the person or persons to whom the rent is payable, the tenant may deposit such rent with the Controller in the prescribed manner."
Section 21 (4) pertains to withdrawal of deposited rent and is extracted hereinafter: -
"21(4). If an application is made for the withdrawal of any deposit of rent, the Controller shall, if satisfied that the applicant is the person entitled to receive the rent deposited, order the amount of the rent to be paid to him in the manner prescribed:
Provided that no order for payment of any deposit of rent shall be made by the Controller under this sub-section without giving all persons named by the tenant in his application under sub-section (2) as claiming to be entitled to the payment of such rent an opportunity of being heard and ::: Downloaded on - 18/06/2022 20:02:18 :::CIS 8 such order shall be without prejudice to the rights of such persons to receive such rent being decided by a court of competent jurisdiction."
Section 23 of the Act pertains to forfeiture of the .
deposited rent and runs as follows: -
"23. Savings to acceptance of rent and forfeiture of rent in deposit.-
(1) The withdrawal of rent deposited under section 21 in the manner provided therein shall not operate as an admission against the person withdrawing it of the correctness of the rate of rent, the period of default, the amount due, or of any other facts stated in the tenant's application for depositing the rent under the said section.
(2) Any rent in deposit which is not withdrawn by the landlord or by the person or persons entitled to receive such rent shall be forfeited to Government by an order made by the Controller, if it is not withdrawn before the expiration of five years from the date of posting of the notice of deposit.
(3) Before passing an order of forfeiture, the Controller shall give notice to the landlord or the person or persons entitled to receive the rent in deposit by registered post at the last known address of such landlord of person or persons and shall also publish the notice in his office and in any local newspaper."
Section 21(4) of the Act provides for withdrawal of the deposited rent subject to the satisfaction of the Rent Controller that the applicant seeking withdrawal of the deposited rent is the person entitled to receive the same. The person entitled to receive the deposited rent can be either the landlord or any other person. It is open for the tenant to ::: Downloaded on - 18/06/2022 20:02:18 :::CIS 9 indicate in his application, names of the persons, who according to him, are entitled to receive the rent. Section 23(2) makes it evident that the deposited rent, which is not .
withdrawn before the expiry of five years from the date of posting of deposit notice either by the landlord or the person who is entitled to receive such rent, shall be forfeited to the State Government by an order made by the Rent Controller.
Section 23(3) makes it incumbent upon the learned Controller to give notice to the landlord or the person(s) entitled to receive the deposited rent before passing an order of forfeiture. Sub-Sections (2) and (3) of Section 23 of the Act envisage that it is not just the landlord who can withdraw the deposited rent amount, the withdrawal of the deposited rent can be by any other person entitled to receive the rent. In the instant case, on 09.08.2018, petitioner had prayed for withdrawal of his application moved in the year 2016/2017 under Section 21 of the Act as well as the rent deposited by him before the learned Rent Controller. Five years had not elapsed at the time even from the date of deposit. No order of forfeiture of deposited rent was passed by the learned Rent Controller. The petitioner had not moved any formal application for withdrawal of deposited rent but had prayed orally for withdrawal of his application moved under Section ::: Downloaded on - 18/06/2022 20:02:18 :::CIS 10 21 of the Act as well as for refund of deposited rent. In the facts of the case, when the applicant has now pleaded having settled the matter amicably with the legal heirs of the landlord .
and further that the payment of rent of the premises in question had been made to the legal heirs of the original landlord Sh. Bhagat Ram Sachdeva and also that possession of the premises in question has been handed over by him to the legal heirs of landlord, then under the circumstances, prayer for withdrawal of the application moved by the petitioner under Section 21 of the Act as well as for withdrawal of the rent deposited by him deserves to be allowed. The impugned order rejecting the prayer cannot be sustained in the facts of the case now canvassed by learned counsel for the petitioner, which have not been rebutted by the other side.
For the foregoing reasons, the civil revision is allowed. The impugned order dated 09.08.2018, passed by learned Rent Controller, Court No. (2), Shimla is set-aside.
The application No.29-2 of 2017 moved under Section 21 of the Act by the petitioner before learned Rent Controller is ordered to be treated as withdrawn. The amount of Rs.34800/- deposited by the petitioner in application No.29-2 of 2017 before learned Rent Controller, Court No.(2), Shimla ::: Downloaded on - 18/06/2022 20:02:18 :::CIS 11 is ordered to be refunded to him alongwith up to date interest.
Pending miscellaneous application(s), if any, also stand disposed of.
.
Jyotsna Rewal Dua
Judge
June 15, 2022
R.Atal
r to
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