Rajasthan High Court - Jaipur
Narayan Lal vs Rent Tribunal And Ors on 28 February, 2013
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION NO.16532/2012. Narayan Lal Vs. Rent Tribunal, Baran & Ors. Date of Order :- February 28, 2013. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri B.L. Mandhana for the petitioner. Shri R.K. Agrawal senior counsel with Shri Akshay Sharma for the respondent. ****** Reportable BY THE COURT:-
This writ petition has been filed by petitioner Narayan Lal against the order of the Appellate Rent Tribunal Baran dated 27/9/2012 and that of the Rent Tribunal Baran dated 28/2/2012. Rent Tribunal by the aforesaid order had allowed the eviction petition filed by the respondent- landlord on the ground contained in Section 9(j) of the Rajasthan Rent Control Act, 2001 (for short, the Act of 2001) holding that the petitioner- tenant has purchased and acquired possession of the nearby shop on 17/12/1999, which was sufficient and adequate for his requirements and the Appellate Rent Tribunal while dismissing the appeal filed by the petitioner-tenant, has affirmed that order of the Rent Tribunal.
Facts giving rise to this writ petition are that while respondent-landlord asserted that petitioner has purchased and acquired possession of the nearby shop, which is adequate for his requirement and therefore, the petitioner was liable to be evicted on the ground contained in sub-Section (j) of Section 9 of the Act of 2001, petitioner-tenant disputed this fact by contending that in the family arrangement, the said shop has been exclusively given to his son Sunil Kumar on 7/6/2008, who along with another brother Dinesh Kumar, who had purchased the adjoining shop, started their own business by demolishing the wall of the adjoining shop and joined two shops together. Thus, the shop was no longer available for the petitioner-tenant for his business requirement.
Shri B.L. Mandhana, learned counsel for the petitioner has argued that Section 9(j) of the Act of 2001 postulates that premise, which has become available to tenant should be sufficient and adequate for his requirement. Tribunal can not order eviction unless it is satisfied about the suitability and adequacy of such premises. This is a pre-requisite mandatory requirement, which is evident from the very language of Section 9(j), which inter-alia provides that Rent Tribunal shall not order eviction of tenant unless it is satisfied that the tenant has built or acquired vacant possession of or has been allotted suitable premises, adequate for his requirement. Neither Rent Tribunal nor Appellate Rent Tribunal has considered, discussed and recorded such satisfaction about suitability and adequacy of the said premises.
Shri B.L. Mandhana, learned counsel for the petitioner has contended that the shop in question was purchased on 17/12/1999 when the Act of 2001 was not even enacted. Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short, the Act of 1950) was in vogue at that time. In that old Act, acquiring possession of suitable residential premises alone was a ground of eviction, there being no such provision for commercial premises. New Act came into force on 1/4/2003, thus for the period of four years prior thereto, there was no law, which created any such inhibition for purchase of shop. Respondent- landlord has filed eviction petition much belatedly thereafter on 15/3/2011 namely; 11 years after purchase of the shop. Provisions of the new Act, especially those contained in Section 9(i) therefore cannot be retrospectively applied to the case of petitioner. Learned counsel argued that the petitioner had acquired a vested right, which cannot be taken away in this manner. If at all the new Act is applied, it should be applied only prospectively and not retrospectively. This intention of the legislature is evident from the language of clause (j) of Section 9, which provides that the tenant has built or acquired vacant possession of or has been allotted suitable premises adequate for his requirement. Word 'has' denotes to the present point of time and not to the past. Whatever had been purchased by the petitioner prior to enforcement of the new Act, cannot be therefore made basis for his eviction under the new Act. Shri B.L. Mandhana, learned counsel for the petitioner has further argued that the Act of 2001 contemplates that the premises so acquired should be in possession of the tenant for his requirement. In the present case, shop purchased in 1999 by the tenant was not presently available to him for use because, it has been given in the family settlement to his younger son Sunil Kumar on 7/6/2008, three years before filing of the eviction petition by the respondent. Family settlement is not compulsorily registrable and is therefore admissible in law. Appellate Rent Tribunal committed serious illegality in not considering this aspect.
Shri B.L. Mandhana, learned counsel for the petitioner has in support of his submissions relied on the judgment of Delhi High Court in Gian Singh Vs. Tarlok Singh : 1975 All India Rent Control Journal 475 and argued that in that case, the Delhi High Court while interpreting similar provision of the Delhi Rent Control Act held that since the tenant on the date of filing of the petition was not in possession of a Government allotted accommodation, the landlord was not entitled to invoke clause (h) of Section 14(1) of the Act to seek his eviction. Clause (h) supra is almost analogous provision to clause (j) of Section 9 of the Act of 2001. The Delhi High Court in the aforesaid judgment while interpreting the word has relied on the judgment of Supreme Court in Gappulal Vs. Thakurji Shriji Shriji Dwarkadheeshji : 1969 (1) SCC 792, which matter went to Supreme Court from Rajasthan High Court and held that word 'has' represents present perfect tense, which is not relevant in a given present time. It was argued that shop was purchased twelve years before the date of filing of the eviction petition, therefore the said event cannot be accepted to have taken place in the present point of time. In this connection, reliance has also been placed on the judgment of the Supreme Court in Mst.Rafiquennessa Vs. Lal Bahadur Chetri & Ors. : AIR 1964 SC 1511.
Shri B.L. Mandhana, learned counsel for the petitioner has contended that respondent- landlord having not filed any petition for eviction of petitioner-tenant on the ground of Section 9(j) of the Act of 2001 for a long period of eight years after commencement of the Act of 2001, has waived this ground and acquiesced in favour of the tenant. It is argued that ground of subletting or default, even if they have taken place at the time of old Act, can be the basis for passing order of eviction even in a petition filed after the new Act came into force because such grounds continues to subsists. Whether or not the issue of vacant possession of adequate or suitable shop, has become available to the tenant, would have to be decided depending on the fact whether at the time of filing of the eviction petition, shop was in his possession or not.
Shri R.K. Agarwal, learned senior counsel for the respondent-landlord has opposed the writ petition and argued that plea of waiver cannot be a matter of inference. It has to be specifically pleaded with reference to Order 6 Rule 4 of the Code of Civil Procedure, 1908 but neither this argument was raised before the Rent Tribunal nor before the Appellate Tribunal. It is being orally argued for the first time before this Court. Had the petitioner-tenant raised any such plea of waiver earlier, the respondent-landlord would have had the opportunity to rebut the same. In any case, there can be no question of waiver if the law as under Section 9(j) provided a ground of eviction to the respondent-landlord. It was denied that the Rent Tribunal and the Appellate Rent Tribunal did not record any finding as to the suitability and adequacy of the premises in question. The learned senior counsel argued that the respondent-landlord specifically in his affidavit asserted the fact that the shop, which became available to the petitioner-tenant was adequate and suitable for the purpose of his business. Petitioner in cross examination did not put a single question to the respondent on this aspect of the matter. It is therefore admitted case of the petitioner that the shop, which had become available to him was adequate and suitable for his purpose.
Shri R.K. Agrawal, learned senior counsel appearing for the respondent-landlord has cited the judgment of Single Bench of Madhya Pradesh High Court in Ramgopal Vs. Shantilal reported in 1977 All India Rent Control Journal 372 and argued that this is immaterial that after availability of shop, petitioner-tenant has given the same to his son in the family settlement. The acquisition of the vacant possession of the shop is the relevant fact. In the cited case, petition for eviction was filed by the landlord on the same ground of vacant possession of a house but then he sold the same before filing of the suit for eviction by the landlord on such ground. In those facts, it was held by the High Court that the tenant was still liable to eviction. As regards the judgment of Delhi High Court in Gian Singh supra, it was argued that judgment of Supreme Court in Gappulal supra was not correctly read and analysed by the Delhi High Court therein. In that case also, ground for eviction was of subletting, which had arisen when the Jaipur Rent Control Order, 1947 was in force. It was held that subletting even if it was made before coming into force the new Act but has continued upto the present time, the same would be available as ground of eviction under clause (e) of Section 13(1) of the Act of 1950. Learned senior counsel in this regard has also placed reliance on the judgment of Karnataka High Court in H.S. Jayaram Vs. Smt.Vijaylakshmi : 1998(2) RCR 565.
I have given my anxious consideration to the rival submissions and perused the material available on record.
In order to appreciate the true spirit and scope of Section 9(j) of the Act of 2001, it would be apposite to reproduce the same, which is as follows:-
9.Eviction of tenants.-Notwithstanding anything contained in any other law or contract but subject to other provisions of this Act, the Rent Tribunal shall not order eviction of tenant unless it is satisfied that,-
(j). the tenant has built or acquired vacant possession of or has been allotted suitable premises adequate for his requirement.
In contrast, however, Section 13(1)(i) of the Act of 1950 provides the following as the ground of eviction:-
13. Eviction of tenants.(1) Notwithstanding anything contained in any law or contract, no Court shall pass any decree or make any order, in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to pay rent therefor to the full extent allowable by this Act, unless it is satisfied.
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(i) that the tenant has built, acquired vacant possession of or been allotted a suitable residence It is not disputed even by the petitioner that he purchased a shop and acquired vacant possession thereof on 17/12/1999 but his contention is that he had in the family arrangement given the said shop exclusively to his son Sunil Kumar on 7/6/2008, who alongwith his another son Dinesh Kumar, after demolishing the wall between two shops, joined the same with the shop purchased by Sunil Kumar. They started their joint business from such premises. It should be noted that Dinesh Kumar purchased shop at the same time when petitioner-tenant purchased shop, which he claims to have given to his son Sunil Kumar. Admittedly, shop was available with the petitioner-tenant till 7/6/2008 when he claims to have given the same to his son Sunil Kumar in family arrangement, whereas the Act of 2001 came into force w.e.f. 1/4/2003.
The question therefore arises whether availability of commercial premises can be a ground of eviction under the new Act when procurement of such shop and the availability thereof was not a ground under the old Act? If in the Act of 1950, this was not a ground of eviction of a tenant, it does not mean that this had conferred upon him immunity from eviction on such ground for all times to come if the legislature had at a subsequent point of time amended the existing law or legislated a new law to the effect. Section 13 in the Act of 1950, like Section 9 in the Act of 2001 merely protected tenant's rights in certain specified cases. However, the argument has been sought to be built on behalf of the petitioner-tenant that since there was no inhibition under the Act of 1950 for purchase of business premises and therefore if petitioner purchased shop, it should confer upon him a vested right, so to say, immunity from eviction of the shops in his tenancy on the ground like the one contained in sub-section (j) of Section 9 of the Act of 2001. This argument shall have to be examined in the light of the Act of 2001. Section 29 of the Act of 2001 provides that 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. Section 32 of the Act of 2001 deals with repeal and savings. While sub-Section (1) of Section 32 provides that the Act of 1950 shall stand repealed with effect from the date notified under sub-Section (3) of Section 1 of this Act, sub-Section (2) of Section 32 provides that the repeal under sub-Section (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. If the provisions of Section 32(2) are analyzed in juxtaposition to Section 6 of the Rajasthan General Clauses Act, it would be evident that what is saved is only concluded transaction and not otherwise.
The Supreme Court in Gappulal supra while dealing with the similar argument, albeit with slight difference, whether eviction can be ordered on the ground of subletting made before the Act of 1950 came into force in a suit for eviction filed on such ground under the Act of 1950? In those facts, it was observed by the Supreme in paras 9 and 11 thereof, as under:-
9. The question whether a sub-letting before the coming into force of the Act is within the purview of clause (e) of Section 13(1) depends upon the construction of that clause. The relevant words are has sub-let. The present perfect tense contemplates a completed event connected in some way with the present time. The words take within their sweep any sub-letting which was made in the past and has continued up to the present time. It does not matter that the subletting was either before or after the Act came into force. All such sub-lettings are within the purview of clause (e).
11. The argument that Section 13(1)(e) takes away vested rights and should not be given a retrospective effect is based on fallacious assumptions. Apart from the Rent Act the landlord is entitled to eject the tenant on the expiry of the period mentioned in the notice to quit. Section 13(1) protects the tenant from eviction except in certain specified cases. If one of the grounds of ejectment is made out the tenant does not qualify for protection from eviction. We find no reason for presuming that Section 13(1)(e) is not intended to apply to sub-lettings before the Act came into force. If the tenant has sub-let the premises without the permission of the landlord either before or after the coming into force of the Act, he is not protected from eviction under Section 13(1)(e), and it matters not that he had the right to sub-let the premises under Section 108(j) of the Transfer of Property Act.
In H.S. Jayaram supra, a Karnataka High Court judgment, Hon'ble Mr.Justice R.V. Raveendran (as his lordship then was) considered the matter whether tenant acquired vacant possession of premises of his own. Suit was filed by the landlord for eviction on the ground of bonafide requirement as tenant had acquired the vacant possession of another shop, which was referable to proviso (p) to Section 21(1) of the Karnataka Rent Control Act, 1961. The landlord required the suit premises on the ground of vacant possession of another shop being acquired by the tenant in 1993 during the pendency of eviction petition. Argument was raised that since premises has become available during pendency of eviction petition, this will not be available for the tenant because what is required to be proved by the landlord is that the tenant has vacant possession of another vacant premises as on the date of filing of the eviction petition. It was held by the Karnataka High Court in paras 9 to 11, as under:-
9. It is no doubt true that proviso (p) refers to tenant acquiring vacant possession of a suitable building. But, the interpretation put forth by the tenant, that eviction can be ordered under proviso (p) only if the tenant has vacant possession as on the date of petition, is not sound. The relevant portion of Section 21 reads as follows:
Provided that the court may, on an application made to it, make an order for the recovery of possession of a premises on one or more of the following grounds only, namely.....
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(p) that the tenant whether before or after the coming into operation of this part has built, or acquired vacant possession of or been allotted, a suitable building.
A careful reading of the section shows that the tenant need not have vacant possession of a suitable building on the date of eviction petition to maintain a petition under proviso (p).
10. It is now well settled that the court can take note of the subsequent events in granting relief under the Act [see the decision of the Supreme Court in P.V. Papanna v. K.Padmanabhaiah, AIR 1994 SC 2320 : 1994(1) RCR 504 (SC)}. The fact that the tenant had filed eviction petitions against his tenants and obtained vacant possession of two shops on the ground that he has to vacate the petition schedule premises, is not in dispute. Though on the date of filing of eviction petition by the landlords, the tenant was holding only orders/decrees for possession against his tenants and did not have actual vacant possession, having regard to the fact that during the pendency of the petition, the petitioner obtained the vacant possession before the date of the order, the landlords are entitled to succeed under proviso (p).
11. The position can be elaborated by another illustration. Let us assume a case where a tenant constructs a suitable house in the year 1996 and instead of occupying it, lets it out in 1996. The landlord may file a petition under proviso (p) in 1997 and obtain an order of eviction, as the conditions prescribed in (p) are fulfilled, even though the tenant did not have actual vacant possession on the date of eviction petition. Similarly, if the tenant secures vacant possession of a suitable building and after an eviction petition is filed against him under proviso (p), sells the property and therefore does not have vacant possession of a suitable building on the date of order of eviction, nevertheless the landlord will be entitled to an order of eviction under proviso (p), as the conditions for eviction are satisfied.
Judgment of Madhya Pradesh High Court in Ramgopal supra delivered by Hon'ble Mr.Justice J.S. Verma (as his lordship then was) also considered identical provision contained in Section 12 of the Madhya Pradesh Accommodation Control Act. In that case also, similar argument was raised. In that case, landlord filed eviction petition contending that vacant possession of the house was available to the tenant and the house was sold by him even before filing of the suit for eviction. In those facts, it was held by the High Court as under:-
A plain construction of the provisions shows that there is nothing therein to require that the tenant should continue to have the vacant possession on the date of suit, he having acquired it once so as to fulfil all the conditions of this clause. The plain meaning is that the tenant becomes disentitled to the protection available to him under the Act, the moment he acquires vacant possession of an accommodation suitable for his residence. This ground for eviction becomes available to the landlord immediately on the happening of that event and the process of obtaining a decree for eviction by institution of a suit, of necessity, requiring some time, that right having accrued to the landlord cannot be defeated by a voluntary act of the tenant parting with the possession of that accommodation. A literal construction admits of no ambiguity and the provision is wholly workable on its plain construction so that there is no reason to strain the natural meaning of the words used in the clause to either introduce therein ambiguity when there is none or thereby to give an opportunity to a tenant to needlessly harass a landlord, if he be so minded when the need of the tenant for protection given by the Act has come to an end. The use of the word has in the clause is sufficient to show that the clause includes within its ambit even a past event with reference to the date of suit and does not require the continuance of that situation on the date of the suit. In my opinion, there is nothing in the relevant provision to control this plain and unambiguous meaning of clause (i).
Question however arises whether in a eviction petition filed on 15/3/2011, availability of another suitable shop, which the petitioner-tenant claims to have given to his son Sunil Kumar on 7/6/2008, who by demolishing the wall of the adjoining shop of his brother joined two shops together and started their business jointly, can now be made a ground to hold that he has acquired vacant possession of suitable premises adequate for his requirement? What is argued is that since at the time tenant purchased the shop, there was no corresponding provision one contained in Section 13(1) of the Act of 1950, which is now reflected in Section 9(j) of the Act of 2001, a landlord cannot maintain a suit for eviction on the ground of availability of the vacant possession of such shop to the tenant when the eviction petition itself has been filed much belatedly on 15/3/2011? Argument further advanced is that there was no inhibition in the old Act for purchase of the commercial premises and therefore in the new Act, even if such provision has been made, vested right acquired by petitioner-tenant would not be affected thereby.
Such a right, in my considered view, can hardly be said to be vested and accrued right in favour of the tenant. Relied constitution bench judgment of Supreme Court in Mst.Rafiquennessa supra does not at all help the petitioner. In that judgment, Supreme Court held to the contrary. It was held therein that the legislature is competent to take away vested rights by means of retrospective legislation. Similarly, the legislature is undoubtedly competent to make laws, which override and materially affect the terms of contracts between the parties. Retrospective operation of a statutory provision can be inferred even in cases where such retrospective operation appears to be clearly implicit in the provision construed in the context where it occurs. It was held by the Supreme Court in paras 11 and 12 as under:-
(11) Now, S.5 itself gives an unmistakable indication of the legislative intention to make its provisions retrospective. What does S.5 provide? It provides protection to the tenants who have actually built within five years from the date of leases executed in their favour, permanent structures on the land let out to them for residential or business purposes, and this protection is available either when the construction of the permanent structure has been made by the tenant in pursuance of the terms of the lease, or even without any term of that kind and the landlord had knowledge of it and had acquiesced in it. Thus, the plain object of S.5 is to protect the tenants who have built a permanent structure either for business or for residence, provided it has been built within 5 years from the date of contract of tenancy. Therefore, cases where permanent structures had been built within 5 years of the terms of contract would fall within S.5(1)(a), even though those constructions had been made before the date of the Act. Thus, the very scheme of S.5(1)(a) clearly postulates the extension of its protection to constructions already made. That is another point which is significant in dealing with the controversy between the parties before us.
(12) There is yet another point which is relevant in this connection. Section 5(1)(a) provides that the tenant shall not be evicted by the landlord from the tenancy except on the ground of non-payment of rent, provided of course, the conditions prescribed by it are satisfied. If the legislature had intended that this protection should operate prospectively, it would have been easy to say that the tenant shall not be sued in ejectment; such an expression would have indicated that the protection is afforded to the suits brought after the Act came into force and that might have introduced the element of prospective operation; instead, what is prohibited by S.5(1)(a) is the eviction of the tenant, and so, inevitably, the section must come into play for the protection of the tenant even at the appellate stage when it is clear that by the proceedings pending before the appellate court, the landlord is seeking to evict the tenant, and that obviously indicates that the pending proceedings are governed by S.5(1)(a), though they may have been initially instituted before the Act came into force.
In M/s.Ambalal Sarabhai Enterprises Ltd. Vs. M/s.Amrit Lal & Co. and anr. : (2001) 8 SCC 397, it was held by the Supreme Court that Delhi Rent Control Act provides protective rights to tenant but does not confer any vested right on him and on withdrawal of the protection tenant is relegated to seek his rights and remedies under the general law except where S.6 of General Clauses Act applies. Such Act also does not confer any vested right on the landlord by virtue of its provision for seeking eviction of tenants when that provision is only a proviso to the main provision giving protective rights to tenants. By operation of the special enactment viz. The Rent Act, landlord's vested right under the general law remains suspended but as soon as the protection granted to tenants by the Act is withdrawn, the vested right of landlord under the general law is revived, except where S.6(c) of General Clauses Act applies. In that case, exemption from operation of the Rent Control Act was done away with by amendment making the Act inapplicable to tenancies, monthly rent of which exceeds Rs.3500/-. The landlord filed eviction petition against the appellant-tenant on the ground of sub-letting under Section 14(1)(b) of the Delhi Rent Control Act on 13/9/1985. When the petition was pending, Section 3(c) was introduced by way of amendment dated 1/12/1988 by which tenancies fetching monthly rent exceeding Rs.3500/- were excluded thereby, taking the tenancy out of the purview of the aforesaid Act. Tenant contended that the civil court alone had the jurisdiction after the aforesaid amendment and not the Rent Controller, whereas landlord insisted that despite of amendment, it was Rent Controller alone, who would have jurisdiction. Relying earlier judgment in M.S. Shivananda Vs. Karnataka SRTC : (1980) 1 SCC 149, it was held by the Supreme Court that the distinction between what is, and what is not a right preserved by the provisions of Section 6 of the General Clauses Act is often one of great fineness. What is unaffected by the repeal of a statute is a right acquired or accrued under it and not a mere 'hope or expectation of', or liberty to apply for, acquiring a right. It was further held by the Supreme Court in the said case that a ground of eviction based on illegal sub-letting under proviso (b) to Section 14 of the Rent Act would not constitute to be a vested right of a landlord, but it would be a right and privilege accrued within the meaning of Section 6(c) of the General Clauses Act in a matter if proceeding for eviction is pending. It was further held that when the tenant has no vested right under a Rent Act having only protective right, withdrawal of such protection would not confer on a landlord a vested right to evict a tenant under the Rent Act except where clause (c) of Section 6 of the General Clauses Act is applicable.
In Kapur Chand Vs. B.S. Grewal, Financial Commissioner, Punjab, Chandigarh AIR 1965 SC 1491, Section 14-A added from 1955 to the Punjab Security of Land Tenures Act, 1953, permitted a landowner to bring a suit for eviction notwithstanding anything to the contrary if the tenant failed to pay rent regularly as provided in Section 9(ii) of the Punjab Security of Land Tenures Act, 1953. The suit was filed by the land owner for eviction for arrears due for the years 1952, 1953, 1954 and January, 1955. It was decreed and the argument that since the provision came into force in 1955 the arrears of certain period could not furnish the cause of action else it would become retrospective was repelled. The Supreme Court holding so observed as under:-
... In our opinion, the conduct of the tenant prior to the coming into force of the new section can be taken into account. No doubt a statute must be applied prospectively. But a statute is not applied retrospectively because a part of the requisites for its action is drawn from a moment of time prior to its passing. The clause in question makes a particular conduct the round for an application for eviction. The necessary condition for the application of s. 9 (1) (ii) may commence even before the Act came into force and past conduct which is as relevant for the clause as conduct after the coming into force of the Act, cannot be overlooked.
The Supreme Court in Parripati Chandrasekharrao and Sons Vs. Alapati Jalaiah (1995) 3 SCC 709, has discussed the distinction between the rights of a landlord and the rights of a tenant. In was held in that case that the theory of vested rights which may validity be pleaded to support the landlord's case is not available to the tenant. Relevant discussion was made in Para 12 of the judgment, which is reproduced as follows:-
12. According to us there is a material difference between the rights which accrue to a landlord under the common law and the protection which is afforded to the tenant by such legislation as the Act. In the former case the rights and remedies of the landlord and tenant are governed by the law of contract and the law governing the property relations. These rights and remedies continue to govern their relationship unless they are regulated by such protective legislation as the present Act in which case the said rights and remedies remain suspended till the protective legislation continues in operation. Hence while it can legitimately be said that the landlords' normal rights vested in him by the general law continue to exist till and so long as they are not abridged by a special protective legislation in the case of the tenant, the protective shield extended to him survives only so long as and to the extent the special legislation operates. In the case of the tenant therefore the protection does not create any vested right which can operate beyond the period of of protection or during the period the protection is not in existence. When the protection does not exist, the normal relations of the landlord and tenant come into operation. Hence the theory of the vested right which may validly be pleaded to support the landlords' case is not available to the tenant. ...
It is settled proposition of law that there is vast difference between a mere right and what is the right acquired and accrued. The Supreme Court in D.C. Bhatia Vs. Union of India (1995) 1 SCC 104, has on this aspect held that right of a statutory tenant to get standard rent determined is a right governed by the Act and if the Legislature repeals the Act or a part of it, the statutory tenant can do nothing about it. It is a mere right and not a vested right. Similarly in the case of Thyssen Stahlunion Gmbh Vs. Steel Authority of India Limited (1999) 9 SCC 334, it was held by the Supreme Court that right to be governed by an Act is not a right of an enduring nature. What is exempted by repeal is a right acquired or accrued under the Act. The mere right existing on the date of repeal and taking advantage of the repealed provision is not a right accrued within Section 6(c) of the General Clauses Act and in such cases, Section 6 of the General Clauses Act would not apply.
In Gajraj Singh and others Vs. State Transport Appellate Tribunal and others : (1997) 1 SCC 650, it was held by the Supreme Court that whenever an Act is repealed it must be considered, except as to transactions past and closed, as if it had never existed. The effect thereof is to obliterate the Act completely from the record of Parliament as if it had never been passed; it never existed except for the purpose of those actions which were commenced, prosecuted and concluded while it was an existing law. Repeal is not a matter of mere form but is of substance, depending on the intention of the legislature. If the intention indicated either expressly or by necessary implication in the subsequent statute was to abrogate or wipe off the former enactment wholly or in part, then it would be a case of total or pro tanto repeal. When there is a repeal and simultaneous re-enactment, Section 6 would be applicable in such cases unless the new legislation manifests intention inconsistent with or contrary to the application of the section. Such incompatibility would have to be ascertained from all relevant provisions of the new Act. Therefore, when the repeal is followed by a fresh legislation on the same subject, the Court would undoubtedly have to look to the provisions of the new Act only for the purpose of determining whether the new Act indicates a different intention. The object of repeal and re-enactment is to obliterate the repealed Act and to get rid of certain obsolete matters. It was held that there is distinction between right acquired or accrued obviously with 'hope or expectation of' to get a right.
In view of the settled proposition of law as noticed above, it must be held that Section 6 of the General Clauses Act only saves those rights which are acquired, accrued or incurred. Only those rights would not be affected by repeal but this is always subject to any contrary intention manifested in the simultaneously enacted new law while repealing the earlier law. However, if any Act is repealed without specifying the consequence of repeal, Section 6 of the General Clauses Act will apply and repeal would not affect any statutory right, privilege and obligation, a liability accrued or incurred under the repealed Act. Any legal proceedings or remedy with regard thereto may be instituted, continued or enforced as if the repealing Act has not been passed. But where the repeal is accompanied by fresh legislation on the same subject, the provisions of the new Act will have to be examined to determine whether and how far the new Act envisages a contrary intention affecting operation of Section 6 of the General Clauses Act.
In view of law discussed above, it must be held that petitioner-tenant had mere hope and expectation at the time when the Act of 1950 was in force that availability of suitable commercial premises by way of purchase or otherwise would not be a ground for his eviction. This however did not give rise to a vested and accrued right in his favour since in the present case though the Act of 1950 was repealed but simultaneously, the Act of 2001 was re-enacted and contrary intention in the new enactment now emerges from Section 9(j) of the Act of 2001, which provides a ground of eviction to the landlord if vacant possession of even commercial premises has become available to the tenant, which is suitable and adequate for his requirement. Respondent-landlord in the present case would be entitled to maintain eviction petition on such ground even if vacant possession of suitable and adequate premises for his requirement had become available to him prior to commencement of the Act of 2001 and petition for eviction is filed after commencement of the said Act, because even as per own showing of the petitioner-tenant, he acquired vacant possession of the shop on 17/12/1999, which continued to be available with him till 7/6/2008, the date on which he claims to have given it to his younger son Sunil Kumar. That would mean that the vacant possession of the shop remained with the petitioner tenant more than five years after the commencement of the Act of 2001 with effect from 1/4/2003. Mere delayed filing of the eviction petition cannot be therefore considered either waiver or acquiescence on the part of landlord.
In those facts, no fault can be found with the orders passed by the learned Rent Tribunal and Appellate Rent Tribunal in allowing the petition on the ground contained in Clause 9(j) of the Rajasthan Rent Control Act, 2001. Contention that no finding as to the suitability and adequacy of the shop in question for requirement of tenant-petitioner was recorded by the Rent Tribunal as also the Appellate Rent Tribunal deserves to be rejected because such finding has indeed been recorded in the impugned orders inasmuch as the petitioner-tenant despite specific assertion made by the respondent-landlord in his affidavit to that effect, did not put a single question to him in the cross-examination on this aspect of the matter. The requirement of Section 9(j) of the Act of 2001, thus stood fully complied with.
In view of the above discussion, I do not find any infirmity or illegality in the order passed by the Rent Tribunal as also the Appellate Rent Tribunal. The writ petition is therefore dismissed. There shall be no order as to costs.
(MOHAMMAD RAFIQ), J.
Anil/91 All corrections made in the judgment/order have been incorporated in the judgment/order being e-mailed Anil Kumar Goyal Sr.P.A. Cum JW