New Krishi Sewak Co. vs Partap Singh Thakraon and Others

Partap Singh Thakraon and others filed a suit to eject M/s. New Krishi Sewak Company from the premises let out to them for non-residential purpose, after serving notice u/s 106 of the Transfer of Property Act on the pleas that building was constructed after 31-3-1962 was exempted from the operation of the Haryana Urban (Control of Rent and Eviction) Act, 1973(for short the Act) and thus the tenant could be evicted after terminating the tenancy by filing a simple suit for eviction without a ground.

The tenant pleaded that the Act was applicable and it could be ejected only on one of the grounds contained in the Act and not by a simple suit for eviction.

Both the Courts below found that since the building was constructed after 31st Mar., 1962, the Act was not applicable and civil court had the jurisdiction and granted a decree for ejectment of the tenant. Hence, the second appeal by the tenant.

The lower Appellate Court had decided the appeal on 21-2-1978 and according to law, as it stood at that time, probably no interference could be called for in the judgments and decrees of the Courts below. However, during the pendency of second appeal in this Court S. 1(3) of the Principal Act of 1973, was amended by the Haryana Amendment Act of 1978, which came into force with effect from 8-5-1978 when the amendment was notified. By the amendment, the Act was extended to all buildings which were constructed before the commencement of the principal Act and exemption was granted for a period often years in respect of buildings the construction of which is completed on or after the commencement of the Act. On the basis of the amendment it is argued on behalf of the tenant that the landlord''s own case is that the building was completed after 31-3-1962 and the finding of the Courts below also is that the building was, completed somewhere in 1962-63 and, therefore, it is urged that to such a building, the Act is applicable and the tenant cannot be evicted except on one of the grounds contained in the Act. In support of the argument, reliance is placed on the amended provision. To appreciate the point, the unamended and amended provision of the Act may be juxtaposed.

(for Table see below)

"Section 1(3) of the principal Act of 1973.

Short title and extent :

(3) Nothing in this Act shall apply to--

(i) Any residential building the construction of which is completed on or after the commencement of this Act far a period of ten years from the date of its completion

(ii) any non-residential building construction, of which is completed after the 31st March, 1962.

(iii) any rented land let out on or, after 31st March, 1962

A reading of the aforesaid shows that in the principal Act of 1973, complete exemption from the applicability of the Act was granted to all the non-residential buildings constructed after 31-3-1962, whereas after amendment, exemption was limited to all buildings constructed after the commencement of the Act for a period of ten years from completion. Now it has to be seen whether the amendment was retrospective or not. Section 2 of the Amendment Act is in the following terms :

"2. Amendment of S. 1 of Haryana Act I1 of 1973.

Section 1(3) as amended by the Haryana Amendment Act of 1978.

1(3) Nothing in this Act shall apply to any building the construction of which is completed on or after the commencement of this Act for a period of ten years from the date of its completion."

For sub-sec.(3) of S. 1 of the Haryana Urban (Control of Rent and Eviction) Act, 1973(hereinafter referred to as the principal Act), the following subsection shall be substituted and shall be deemed to have been substituted. namely."

A reading of the aforesaid shows that sub-sec.(3) of S. 1 was substituted in the principal Act with retrospective effect because of the words shall be deemed to have been substituted. The effect of the aforesaid wads is as if sub-sec.(3) of S. 1 from the inception of principal Act of 1973, was t he same as was sought to be brought in 1978. Giving retrospective effect and considering the appeal to be a re-hearing and to take notice of all supervening amendments, it has to be seen whether the landlord can have the ejectment of the tenant in a simple suit without a ground of ejectment under the Act or not. In view of the retrospective nature of the amendment and the principle that the Appellate Court is to take notice of alt supervening events, I am of the view that the decree granted by the two Courts below cannot be sustained and the landlord has to take proceedings under the Act for ejectment of the tenant on one of the grounds contained n the Act and in no other manner.

My above view is supported by a precedent in Suresh Kumar v. Bhim Sain . Another case relating to Haryana, under similar circumstances, came up for consideration before a Full Bench of this Court in Sawan Ram v. Govinda Ram. There the landlord had sought ejectment of the tenant by filing a civil suit on the plea that the Act was not applicable as the building was completed after 31-3-1962 i.e., the construction was completed in the month of August, 1969, and sought ejectment of the tenant after serving notice on 31-5-1975 in regard to a shop. During the pendency of the suit, the Amendment Act of 1978 came into force and he applied to the Rent Controller for dismissing the suit. T he application of the tenant was rejected by the Rent Controller against which he came to this Court in revision. A Full Bench of this Court allowed the revision and held that in view of the amendment of 1978. the suit was not competent and the landlord could seek eviction of the tenant only under the Act. Against the decision o f t he Pull Bench, SLP (c) No. 577 of 1980 was dismissed by thc highest court of the land on 5-11-1981. Accordingly, following the aforesaid decisions, I hold that civil suit for ejectment of the tenant in respect of non-residential building completed after 3l-3-1962, but before the Act came into force in 1973, is not maintainable in view of the amendment of 1978, which has retrospective effect.

Shri K.C. Puri, Advocate appearing for the landlord has placed reliance on Bishan Chand Vs. Vth Additional District Judge, Bulandshahr (Uttar Pradesh) and Another, a judgment in the second column of this page. That related to the U. P. Urban Buildings(Regulation of Letting, Rent and Eviction) Act (13 of 1972), where the exemption clause has been reproduced in para 5 of the reported judgment, the relevant portion of which is as follows :--

"nothing in this Act shall apply to a building during a period of ten years from the date on which its construction is completed."

On the aforesaid provision it was held that whether the building is completed before or after the commencement of thc Act, the period of exemption would be applicable for ten years because the starting point was not specified in the enactment. In the Haryana Act, it is specifically mentioned that the exemption would be applicable to any building: the construction of which is completed on or after the commencement of the Act for a period of ten years from the date of its completion. In view of the distinction in the phraseology of the exemption clause, the decision under the U.P. Act is of no avail and the same is clearly distinguishable.

For the reasons recorded above, this appeal is allowed and after setting aside the judgments and decrees of the two Courts, the suit for ejectment of the tenant is dismissed. leaving the plaintiff to have recourse for ejectment under the Act. On the peculiar facts of this case. the parties are left to bear their own costs.

Appeal allowed.

* Against decree of Addl. Dist. J., Gurgaon, D/- 21-2-1978.