M/s Matchless Beauty Corner and another vs Smt. Devinder Kaur

J.V. Gupta, J.—The defendants-appellants have filed this appeal against the judgment and decree of the District Judge, Chandigarh, dated March 26, 1980 whereby the decree of the trial Court, dismissing the plaintiff''s suit was set aside.

Plaintiff, Shrimati Devinder Kaur filed the present suit for ejectment of the defendants from Shop-cum-Flat No. 66-67 (right portion), Sector 15, Chandigarh, on the allegations that she is the owner-landlady of the premises in dispute which were let out to Messrs Matchless Beauty Corner through Shri Narinder Kumar, its partner, defendant-appellant. The monthly rent was Rs. 435/-, in addition to water and electricity charges. The tenancy was from the first of every calendar month. It was inter alia pleaded that since the defendants were not regularly making payment of rent, the owner of the building did not wish the tenancy to continue and consequently, a notice, terminating the tenancy, was sent by registered post, giving 15 days time to the defendant to vacate the premises. It has been further pleaded that the premises in dispute were exempted from the provisions of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter called the ''Act'') as applicable to Chandigarh. In the written statement filed on behalf of the defendants, the allegations of the plaintiff were controverted. It was pleaded that the provisions of the Act were applicable to the premises and the suit was not maintainable. No valid notice, terminating the tenancy, was served. It was further pleaded that the alleged notice stood waived when the plaintiff accepted the rent for the subsequent period prior to the suit. The defendants claimed to be the tenants of Shop-cum-Flat No. 67, Sector 15-D, Chandigarh, the tenancy of which was never validly terminated. However, on the pleadings of the parties, the trial Court framed the following issues :--

Whether demised premises are exempt from the provisions of East Punjab Urban Rent Restriction Act, 1949 ? OPP

Whether tenancy was terminated by a valid notice, if not its effect ? OPP

Whether there has been waiver as pleaded in para No. 2 of the preliminary objections raised in the written statement ? If so, its effect ? OPD

Whether defendants are tenants in half portion of SCF No. 66-67, Sector 15-D, Chandigarh and the portion occupied by them is known as shop No. 66, Sector 15-D, Chandigarh. If so, whether tenancy has been validly terminated qua these premises ? If not, its effect ? OPP

Whether the amendment has not been made by the plaintiff in accordance with the orders of the Court ? OPD

Relief.

Before the trial Court, issue No. 5 was not pressed and other issues were decided against the plaintiff and consequently, the suit was dismissed. In appeal, the learned District Judge, Chandigarh reversed the findings of the trial Court on all the issues. He came to the conclusion that the defendants are tenants in the right half portion of shop-cum-flat No. 66-67, Sector 15-C, Chandigarh and their tenancy was validly terminated by issuing a notice. He further found that there was no waiver as pleaded by the defendants in their written statement. On issue No. 1 it was held that the premises in dispute are exempt from the provisions of the Act. Consequently, the plaintiff''s suit was decreed. Feeling aggrieved, the defendants have come up in second appeal in this Court.

The Learned Counsel for the appellants vehemently contested the findings on issue No. 1, whereas the findings on the other issues were not seriously contested. Otherwise also, the findings on the other issues, that is issues No 2, 3 and 4 are findings of fact and could not be challenge in second appeal. According to the Learned Counsel, the notification issued by the Chief Commissioner, Chandigarh, dated January 31, 1973, in exercise of the powers conferred by section 3 of the Act is only prospective in nature and is applicable to the buildings constructed after the enforcement of the Act in the Union Territory of Chandigarh on November 4, 1972. The argument proceeds that the buildings constructed prior to the enforcement of the Act are not exempted under the said notification. In any case, according to the Learned Counsel, the buildings constructed prior to the enforcement of the Act on November 4, 1972 are not exempted, because a right had already vested in the tenant on November 4, 1972 which could not be taken away subsequently by a notification issued in exercise of the powers conferred by section 3 of the Act. To support his contention, he referred to Ratan Lal Singhal v. Smt. Marti Devi 1980 (1) R.C.R. 186; Prabhashanker v. Smt. Rukmani 1976 R.C.R. 857 ; and Mani Subrat Jain Vs. Raja Ram Vohra, On the other hand, the Learned Counsel for the plaintiff contended that the said notification cannot be said to be a legislation and therefore, the presumption that legislation is always prospective in its nature unless otherwise provided, is not applicable to the said notification. u/s 3 of the Act, the State Government could direct that all or any of the provisions of this Act shall not apply to any particular building or class of buildings. Thus, there was no bar on the State Government to exempt any building constructed before the enforcement of the Act in the Union Territory of Chandigarh. A reference was made to Sadhu Singh v. District Board, Gurdaspur and another (1962) 64 S.C. 299.

I have heard the Learned Counsel for the parties at a great length. Section 3 of the Act provides as under :--

Exemption--The State Government may direct that all or any of the provisions of this Act shall not apply to any particular building or rented land or any class of buildings or rented lands.

The notification issued by the Chief Commissioner, Chandigarh, dated January 31, 1973 is as follows :--

In exercise of the powers conferred by Section 3 of the East Punjab Urban Rent Restriction Act, 1949 (Punjab Act No. III of 1949) as applicable to the Union Territories of Chandigarh, the Chief Commissioner, Chandigarh, is pleased to direct that the provisions of the said Act shall not apply to buildings, constructed in the urban area of Chandigarh, for a period of five years with effect from the date the sewerage connection is granted in respect of such buildings by the competent authority under rule 112 of the Punjab Capital (Development and Regulation) Building Rules, 1952.

From a reading of section 3, it is quite clear that the State Government could exempt from the provisions of this Act any particular building or class of buildings. The question of exemption will only arise when the Act is applicable to such buildings. Thus, it could not be said that the power to exempt the buildings in this section is only meant for those buildings which come into existence after the enforcement of the Act in the Union Territory of Chandigarh. Admittedly, the Act came into force in the Union Territory of Chandigarh on November 4, 1972, whereas immediately thereafter on January 31, 1973, the said notification was issued under which it was stated that the provisions of the said Act shall not apply to buildings constructed in the urban area of Chandigarh for a period of five years, with effect from the date the sewerage connection is granted in respect of such buildings. Thus, the terminus quo is the granting of the sewerage connection. The buildings constructed in the urban area of Chandigarh whether prior to the enforcement of the Act or thereafter, is immaterial. The notification applies to all buildings which have been constructed in the urban area of Chandigarh whether prior or after the enforcement of the Act on November 4, 1972. The exemption will be only for five years to such buildings from the date the sewerage connection is granted in respect of such buildings. It is the common case of the parties that this notification is still in force and any building constructed after the enforcement of the Act, will remain exempt for a period of five years from the date the sewerage connection is granted. Thus, it cannot be successfully argued that the exemption under the said notification is only to those buildings which were constructed after the enforcement of the Act. The argument that the tenant had acquired a vested right on November 4, 1972 when the Act was made applicable to the Union Territory of Chandigarh and therefore, the said vested right cannot be taken away by the notification issued subsequently, is also misconceived, in view of the provisions of section 3 of the Act. Section 3 specifically provides that any building or class of buildings may be exempted from the provisions of the said Act. The question of exemption will only arise when the Act is applicable, but for the notification. Under these circumstances, there is no question of taking away any vested right of the tenant as contended by the Learned Counsel for the defendants. The Act itself has provided that the State Government can exempt any building from the provisions of the said Act and therefore, the question of any vested right in the tenant is subject to the other provisions in the Act. The vested right, if any is, under this very Act itself and under the same Act, the State Government has been authorised to exempt any building or class of buildings and this it can take away the said right if, it so chooses. In this view of the matter, the contentions raised on behalf of the appellants have no force. The authorities relied on by the Learned Counsel have no bearing on the point in issue. Rattan Lal Signal''s case (supra) wherein it has been observed that U.P. Act No. 13 of 1972 is prospective and applies only to buildings brought into being de novo after the Act came into force, has no applicability to the facts of the present case.

u/s 3, the Central Government has been authorised to exempt any building or class of buildings from the provisions of the said Act. Thus, it is obvious that there is no question of any retrospective or prospective applicability of the notification issued u/s 3 of the Act. Under this notification, buildings whether constructed earlier, that is prior to the enforcement of the Act or thereafter, have been exempted from the provisions of the Act. The only qualifications are that the exemption will be only for five years and that period will commence from the grant of sewerage connection. It applies to all buildings whether constructed prior or after the enforcement of the Act. The only thing would be that in the case of buildings constructed prior to the Act, the exemption period of five years will vary according to the time when the sewerage connection was made, whereas the buildings to be constructed later, will have full period of five years. Thus the said notification is applicable to all buildings in the Union Territory of Chandigarh irrespective of their time of construction. In the present case, it is the common case of the parties that the sewerage connection for the premises in dispute was granted on 10th/13th March, 1970 and the present suit was filed within five years thereof, that is, on October 15, 1974. Under these circumstances, issue No. 1, has also been rightly decided by the lower appellate Court.

No other point arises. Consequently, the appeal fails and is hereby dismissed with costs.