Harish Chandra Bhatnagar vs Chuni Lal Kalaigar

K.S. Tiwana, J.—Seven Civil Rivision Nos 477, 478, 479, 480, 481, 482 and 483 of 1975, are directed against the orders of the Rent Controller, Ambala Cantt. dismissing the applications filed by the Petitioner-landlords, for the eviction of the Respondents from the premises in Ambala Cantt. u/s 13 of the Haryam Urban (Control of Rent and Eviction) Act 1973 (Haryana Act No 11 of 1973). The orders of the Rent Controller were affirmed by the District Judge Ambala who was the Appellate Authority under the same Act

The facts leading to these revisions are that the East Punjab Urban Rent Restriction Act (III of 1949) was applicable to the areas which form part of the State of Haryana after the re-organisation of the State of Punjab in 1966. After the re-organisation of the State this Act continued to be applicable to the State of Haryana till the enactment of Haryana Act No. 11 of 1973, on the same lines as those of East Punjab Act III of 1949. The East Punjab Act III of 1949 did not extend to the cantonment areas of the State. Similarly Haryana Act II of 1973 vide Section 1(2) excluded these areas from its operation.

Acting u/s 3 of the Cantonmeant (Extention of Rent Control Laws) Act (46 of 1957), the Central Government extended the application of the East Punjab Act III of 1949 to the cantonments within the areas of the States of Haryana and Punjab vide Notification S R Order 7 dated 21st November 1969, which is as under:

In exercise of the powers conferred by Section 3 of the Cantonments (Extension of Rent Control Laws) Act, 1957 (46 of 19(sic)), the Central Government hereby extends to the Cantonments in the States of Haryana and Punjab, the East Punjab Urban Rent Restriction Act, 1949 (East Punjab Act No. III of 1949), as in force, on the date of this notification, in the States of Haryana and Punjab with the following modifications, namely:

In the said Act,-

(1) In Section 1, for Sub-section (2), the following Sub-section shall be substituted, namely:

''(2) It extends to the Cantonments in the States of Haryana and Punjab.''

(3) In Section 2, for Clause (j) the following clause shall be substituted, namely:

''(j) Urban area'' includes any area administered by a Cantonment Board in the States of Haryana and Punjab."

(3) (a) Section 3 shall be numbered as Sub-section (1) thereof and in Sub-section (1) as so renubered, for the words ''State Government'' the words ''Central Government'' shall be substituted ;

(b) after Sub-section (1), the following Sub-section shall be inserted, namely:

''(2) The provisions of this Act shall not apply to:

(a) any premises within the cantonment belonging to the Government ;

(b) any tenancy or other like relationship created by a grant from the Government in respect of premises within the cantonment taken on lease or requisitioned by the Government ; or

(c) any house within the cantonment which, is, or may be, appropriated by the Centrel Government on lease under the Cantonments (House Accommodation) Act, 1923 (6 of 1923).

Thus the area of Ambala Cantonment came to be governed by East Punjab Act III of 1949 for the purposes contained in the Act. In Punjab vide Notification No. l562-Cr-47/9224, published in the Punjab Government Gazette, Extraordinary dated 14th April, 1947, under previous Act which was repealed by East Punjab Act III of 1949, the Governor of Punjab had appointed all the Subordinate Judges of the 1st Class in the erstwhile State of Punjab to perform the functions of the Rent Controllers as defined in Section 2(b) of the said Act. Vide another Notification Mo. 1985-LG(A).51/II/1067, dated 17th April, 1951, the Governor of Punjab appointed all the Subordinate Jadges of the 3rd Class posted at places other than district headquaters to perform the functions of Rent Controllers as defined in Section 2(b) of the East Punjab Act III of 1949. Vide other Notifications No 9803 LB 52/18953, dated 11th November, 1952, and No. 6505-LB-55/8293(sic), dated 1st July, 1955, all Subordinate Judges of 2nd Class, posted at places other than district headquarters and all Subordinate Judges of second and third Class posted at district headquarters in the Punjab were appointed as Rent Controllers within their respective civil jurisdiction. Vide Notification No. 1562-Cr47/9228, dated 14th April, 1947, the Governor of Punjab appointed all the District and Sessions Judges in the Punjab, in respect of the urban areas in their- respective existing jurisdition to, perform the functions of the Appellate Authorities u/s 45(1)(a) of the East Punjab Act III of 1949. Prior to the reorganisation of the States in 196;(sic) Ambala Cantonment was a part of the Punjab State

With the coming into force of the Haryana Act 11 of 1973, on 27th April, 1973, the East Punjab Act III of 1949, in regard to its application to the areas forming part of the State of Haryana was repealed. The proceedings which were pending at the tine of the repeal of the East Punjab Act III of 1949, vide proviso to Section 24 of the Haryana Act 11 of 1973 were allowed to be continued and disposed of or enforced as if the said Act had not been repeled. This means that the proceding were allowed to continue on the files of the Subordinate Judges and the District Judges in their capacity as Rent Controllers and Appellant Authorities, respectively

Vide Notifications No. 9037-2C(1)-73/26753, and No. 9037-20(sic) (1) 78/26756-(sic), dated the September, 1973, the Governor of Haryana appointed all the Deputy Commissioners and the Sub-Divisional Officers Civil) to perform the functions of the Appellate Authorities and the Rent Controllers respectively, within the jurisdiction of their respective areas. Both these notifications are reproduced as under:

No 9047 2C(1)-73/2753. - In exercise of the powers conferred by Sub-section (1) of Section 15 of the Haryana Urban (Control of Rent and Eviction) Act, 1973. and in supersession of all previous notifications issued in this behalf, the Governor of Haryana hereby confers on all the Deputy Commissioners in the Slate the powers of appellate authorities for the purposes of the said Act, in the areas of their respective jurisdiction:

Provided that the persons exercising the powers of appelate authorities immediately before the issue of this notification shall continue to exercise the said powers in respect of the cases pending with them.

No. 9037-2C(1)-73/26756. - In exercise of the powers conferred by Clause (b) of Section 2 of the Haryana Urban (Control of Rent and Eviction) Act 1973, and in supersession of all previous notifications- issued in this behalf, the Governor of Haryana hereby appoints the Sub-Divisional Officers (Civil) to perform the functions of a Controller under said Act within the limits of their respective jurisdiction:

Provided that the persons performing the functions of a Controller immediately before the issue of this notification shall continue to perform the functions of a Controller in respect of the cases with them.

Vide proviso to these notifications the proceedings already pending, at that time with those tribunals, were allowed to continue there On 28th January, 1974 Haryana Act 11 of 1973 was amended by adding Section 20A, directing the transfer of the cases. pending before the Rent Controllsers and the Appellate Authorities appointed under the East Punjab Act III of 1949, which were allowed to act as such by saving clauses of the above enactment and notifications, to the Courts of the rew Rent Controllers and the Appellate Authorities, under Haryana Act II of 1973. Section 20 - Act Haryana Act 11 of 19 3 reads as under:

Transfer of proceedings and filing of appeals and revisions

against orders of Subordinate and District Judges-

(1) Notwithstanding anything contained in any other provision of this Act-

(a) all proceedings pending before Subordinate Judges appointed to perform the functions of the Controllers shall, from the date of coming into force of the Haryana Urban (Control of Rent and Eviction) Amendment Act, 1974(sic), stand transferred to Sub-Divisional Officers (Civil), appointed under Clause (b) of Section 2 to perform the functionsions of the Controllers:

(b) an appeal from the order of the Subordinate Judge appointed to perform the functions of the Controller shall lie to the District Judge conferred with the powers of the appellate authority and a revision from the order of such appellate authority shall lie to the High Court; and

(c) it any appeal from the order of the Subordinate Judge appointed to perform the functions of the Controller has been filed with the Deputy Commissioner conferred with the powers of appellate authority, or if any revisions from the order of District Judge conferred with the powers of the appellate authority has been filed with the Financial Commissioner, the same shall stand transferred to the District Judge and the High Court respectively.

(2) The proceedings transferred under Sub-section (1) shall be disposed of by the District Judge, and the High Court as if the same were originally presented before them." 6. As the operation of the Haryana Act 11 of 1973 did not extend to the areas of the cantonments, the cases pertaining to these arras were not affected and those kept on being governed by the East Punjab Act III of 1949, as it was extended by Notification S.R Order 7, reproduced above. On 24th January, 1974, the Central Government vide Notification S.R.O. 55, in supersession of Notification S.R.O, 7, extended the East Punjab Act III of 1949 with some more modifications to the cantonments with the States of Haryana and Punjab Notification S R.O. 55 is reproduced as under:

"In exercise of the powers conferred by Section 3 of the Cantonments (Extension of Rent Control Laws) Act, 1957 (46 of 1957) and in superesession of the notification of the Government of India in the Ministry of Defence No. SRO 7 dated the 21st November, 1969 and SRO 109 dated the 18th February, 1971 the Central Government hereby extends to the Cantonments in the States of Haryana and Punjab ; the East Punjab Urban Rent Restriction Act, 1949 (East Punjab Act No. III of 1949) with the following modifications, namely:

In the said Act-

(1) In Section 1,

(a) for Sub-section (2), the following Sub-section shall be substituted namely:

''(2) it extends to the Contonments in the States of Haryana and Punjab.''

(b) For Sub-section (3), the following Sub-section shall be substituted, namely:

''(3) It shall be deemed to have come into force on the 26th day of January, 1950;

Provided that the provisions of Section 19 of the East Punjab Urban Rent restriction Act, 1949 (East Punjab Act No. III of 1949). shall be operative only from the 2lst November, 1969.

(2) In Section 2, for Clause (j), the following clause shall be substituted, namely:

'' (j) '' Urban Area '' includes any area administered by a Contonment Beard in the States of Haryana and Punjab. ''

(3) (a) Section 3 shall be numbered as Sub-section (1) thereof and in Sub-section (1) as so renumbered, for the words. State Government, '' the words ''Central Government'' shall be substituted ;

(b) after Sub-section (1), the following Sub-section shall be inserted, namely:

'' (2) The provisions of this Act shall not apply to:

(a) any premises within the Contonment belonging to the Government;

(D) any tenancy or other like relationship created by a grant from the Government in respect of premises within the Cantonment taken on lease or requisitioned by the Government; or

(c) any house within the Cantonment which is, or may be, appropraiated by the Central Government on lease under the Cantonments (House Accomodation) Act 1923 (6 of 1923)

(4) after Section 20, the following section shall be added, namely:

Exemption of buildings constructed in 1968 and 1967 from the provisions of the Act

''(21) Every building in a Cantonment area constructed during the years 1966 and 1967 shall be exempt from the provisions of the East Punjab Urban Rent Restriction Act 1949 (East Punjab Act No. III of 1949), for a period of five years from the date of completion of the building

Explanation:

For the purpose of exemption, the date of completion of a building shall be the date of the certificate of completion granted by a Cantonments Board.

Vide Notification S. R. Order 171 dated 1st May, 1974, Notification S. R. Order 55 dated 24th January, 1974, was partially superseded and Haryana Act 11 of 1973 was extended for application to the Cantonments situated within the State of Haryana. Notification S. R Order 171 reads as under:

In exercise of the powers conferred by Section 3 of the Cantonments (Extension of Rent Control Laws) Act 1957 (46 of 1957) and in partial supersession of he notification of the Government of India in the Ministry of Defence S.R.O. No, 55 dated the 24th January,1974, in so far as it relates to the State of Haryana, the Central Government hereby extends with effect from the 25th April, 1973 to the Cantonments in the State of Haryana the Haryana Urban (Control of Rent and Eviction) Act 1973 (Haryana Act No. 11 of 1973) with the following modifications, namely:

In the said Act-

for Sub-section (2), the following Sub-section shall be substituted namely:

'' (2) It extends to the Cantonment areas in the State of Haryana.''

(2) In Section 2, for Clause (i), the shall be substituted, namely:

'' (i) '' urban area '' means any Area administered by a Cantonment Board in the State of Haryana. ''

(3) (a) Section 3 shall be numbered as Sub-section (1) thereof and in Sub-section (1) as so re-numbered for the words ''state Government '' the words '' Central Government '' shall be substituted;

(b) after Sub-section (1) as so numbered, the following Sub-section shall be inserted, namely:

'' (2) The provisions of this Act shall not apply to:

(a) any premises within the Cantonment belonging to the Government;

(b) any tenancy or other like relationship created by a grant from the Government in respect of premises within the Cantonment taken on lease or requisitioned by the Government ; or

(c) any house within the Cantonment which is, or may be, appropriated by the Central Government on lease under the Cantonment (House Accommodation) Act, 1923 ( 6 of 1923 ).

The above is the history of the legislation of rent laws and their extension to the Cantonment areas in the States of Punjab and Haryana.

In all these revisions the landlords filed applications u/s 13 of the Haryana Act 11 of 1973 for the eviction of their tenants in the Court of the Subordinate Judge 1st Class, Ambala Cantt, discharging the functions of the Rent Controller. In Civil Revision No. 477 of 1975, the application was filed on 26th March, 1974. In Civil Revision No. 4 8 of 1975, the application was filed on 6th June, 1973. In Civil Revision No 479 of 1975 the application was filed on 12th June, 1973. In Civil Revision No. 480 of 1975 the application was filed on 8th June, 1973. In Civil Revision No. 481 of 1973, the application for eviction was filed on 7th June, 1973. In Civil Revision No. 482 of 1975, the application for eviction was filed on 7th June, 1973. In Civil Revision No. 483 of 1975 the application for eviction was filed on 8th June. 1973. Objections were taken by the tenants that the Subordinate Judge, who in his capacity as Rent Controller was seized of the cases had no jurisdiction either to entertain or proceed with the applications The Rent Controller accepted the objections and rejected the applications. The appeal before the District Judge Ambala, in his capacity as Appellate Authority, also met with the same fate. The present revision petitions are directed against those orders.

In Civil Revision No 485 of 1975, the facts are different from the other cases although the point for determination involved in the case is the same. The Rent Controller Ambala Cantt. who in his capacity as a Subordinate Judge was invested with these powers, ordered for eviction in favour of the Petitioner landlord on 15th June, 1974. The tenant filed an appeal before the District Judge Ambala in his capacity as an Appellate Authority. The appeal was accepted holding that the Subordinate Judge had no authority to act as a Rent Controller to decide the case. The landlord has come in revision against that order.

In all these 8 revision petitions including Civil Revision No. 485 of 1975, the orders of the Appellate Authority are almost the same. A common question of law involved in ail these 8 petitions is whether the Subordinate Judge Ambala Cantt., in his capacity as a Rent Controller had jurisdiction to entertain these applications ? All these revision petitions shall be decided by one judgment.

The Cantonments in the States of Punjab and Haryana were brought within the ambit of provisions of East Punjab Act III of 1949 vide Notification S. R. Order 7 dated 21st November, 1969. Haryana Act 11 of 1973, which repealed East Punjab Act III of 1949 could not apply to the Cantonments until and unless the Central Government had extended its provisions to these areas. By the repealing of East Punjab Act III of 1949 in Haryana it cannot be said that its operation ceased even in the cantonments areas. Notification S. R. Order 7 was valid in extending this Act to the Cantonments including Ambala. Notification S.R. Order 55 reiterated the position of Notification S. R Order 7, but it was more exhaustive as compared with Notification S. R. Order 7. It was after Notification S R. Order 171 that Ambala Cantonment came to be governed by Haryana Act 11 of 1973. Till that time the East Punjab Act III of 1949 as extended to that area applied to rent cases. Vide Notifications referred to above the Subordinate Judges in the Punjab were appointed by the Governor to act as Rent Controllers. The provisions of the East Punjab Act III of l949) remained applicable to the Cantonments in Haryana and that position continued til! it was changed by S. R. Order 171. Prior to the coming into force of Notification S R. Order 171 a change had been brought vide Haryana Government notification No. 9037-2C (1)-73/26756, dated 7th September, 1973 in areas excluding the Cantonments vide which the Sub Divisional Officers (Civil) were appointed to discharge the functions of the Rent Controller within the area of their jurisdiction. On 1st May, 1974 when Haryana Act 11 of 1973 was adopted vide Notification S. R. O 171, the Sub-Divisional Officer (Civil) were to function as Rent Controllers and the Subordinate Judges appointed earlier to act as such became functus officio.

When the Subordinate Judge at Ambala Cantt. was divested of the colour of persona designata on 1st May, 1974, he could not dismiss any application under the Haryana Act 11 of 1973 as he could not exercise any power under it. The proceedings were relegated to the same position which existed on 25th January, 1974, when vide Haryana Act No 4 of 1974, Section 20-A was added to Haryana Act 11 of 1973, which provided for the transfer of the pending proceedings. The words of Section 20 A Sub-section (a) quoted above are explicit that the proceedings pending before the Subordinate Judges appointed to perform the functions of Kent Controllers shall, from the date of coming into force of this amending Act, stand transferred to the Sub-Divisional Officers (Civil), who were functioning as Rent Controllers. Immediately after coming into force of Notification S.R.O. 171, dated 1st May, 1974, the Subordinate Judge 1st Class, Ambala Cantt. who, prior to that was acting as Rent Controller, was required to transfer these proceedings to the Court of the Sub Divisional Officer (Civil) who was functioning as Rent Controller.

The dismissal of applications in Civil Revision Nos. 477, 478, 479, 480, 481, 482 and 483 of 1975 is not only bad but also without jurisdiction and the orders of the Courts below in all these revision petitions are also not in consonance with the law.

In Civil Revision No. 485 of 1975, the application of the landlord was allowed on 15th June, 1974, which could not be done as the powers of the Subordinate Judge 1st Class Ambala Cantt, as Rent Controller came to an end on 1st May, 1974 when S.R.O. 171 was published. He should have stayed his hands at the stage and sent the file, in compliance with Section 20-A of Haryana Act 11 of 1973, to the new Rent Controller functioning under this Act. This order is also without jurisdiction and is liable to be set aside. The learned Appellate Authority old not direct its mind to the question of transfer and lack of jurisdiction of the Subordinate Judge 1st Class, Ambala Cantt., inspite of the fact that the counsel for the revision Petitioner had brought this fact to his notice, as is evident from the affidavit of Sh. Sham Lal Sawhny Advocate Ambala Cantt. counsel for the petitionner before the Appellate Authority.

The result of the above discussion is that the orders of both the subordinate Courts in all the revision petitions are set aside and the cases are sent back to the Subordinate Judge 1st Class, Ambala Cantt. for transfer, u/s 20-A of Act; 11 of 1973 to the Court of Sub Divisional Officer (Civil) Ambala. who was the Rent Controller in regard to this area on 1st May, 1974, alter the coming into force of Central Government Notification S.R.O. 171.