P.L. Morada vs S.D. Bakshi

Chet Ram Thakur, J.—This is an application filed by Major (Retd.) P.L. Morada for a certificate for the purpose of filing an appeal to the Supreme Court against the judgment and order passed by this Court dismissing the R.S.A. No. 40 of 1973 against the judgment and order of the appellate authority under the East Punjab Urban Rent Restriction Act as applicable to Himachal Pradesh affirming on appeal the judgment and order of the Rent Controller dismissing the objections filed by the present Petitioner u/s 47 of the Code of Civil Procedure.

The Petitioner is a tenant of a portion of the Grange Villa, Simla, which belongs to Shri S.D. Bakshi. Shri Bakshi had filed and application u/s 13 of the East Punjab Urban Rent Restriction Act, 1949 (shortly called the Act of 1949) for eviction of Shri Morada on the ground that he required the premises for his personal'' use. The eviction order was passed by the Rent Controller on 23-2-1972 and the same was confirmed by the High Court in revision on 9-11-1972. Thereafter a review petition was filed and the same was also dismissed. While the landlord took out execution before the court of the Senior Sub-Judge the Petitioner filed objections u/s 47 of the CPC (shortly called the Code) which was also dismissed on 5-12-1975 right upto the High Court in the, second appeal, against which the Petitioner wants a certificate for the purpose of filing the appeal.

Under Article 133 of the Constitution, as amended, an appeal shall lie to the Supreme Court from the judgment, decree or final order in a civil proceeding of a High Court if the High Court certifies that: (a) the case involves a substantial question of law of general importance, and (b) in the opinion of the High Court the said question needs to be decided by the Supreme Court.

During the pendency of the objection petition u/s 47 of the Code the Himachal Pradesh Urban Rent Control Act, 1971 (shortly referred to as the Act of 1971) had also come into force. Section 14 of this Act provides for eviction of a tenant on the grounds mentioned therein. The order of eviction was to be executed by the Rent Controller in terms of Section 23 of the said Act, whereas under the Act of 1949 the order had to be executed by the civil court as if it was a decree of the civil court. Before the High Court the Petitioner had taken up the contention that that decree could not be executed by the civil court and again at the time of execution the landlord had to satisfy the executing court that he required the premises for his personal use. This contention was sought to be raised, because, according to the Petitioner, the landlord after the order of eviction by the Rent Controller had come into possession of a considerable portion of the premises and as such he stood no more in need of any accommodation for his personal use. This Court upheld the contention of the Petitioner and also held that it was Section 14 of the Act of 1971 which was applicable. Against this order, on a certificate being granted, the landlord went in appeal to the Supreme Court. The Supreme Court held that it was Section 13 of the Act of 1949 which was applicable and not Section 14 of the Act of 1971, and while remanding the case their Lordships of the Supreme Court observed that it would be open for the High Court to consider whether the landlord has come into possession of a considerable portion of the premises and as to whether the Petitioner should be permitted to take up this objection at the stage of execution.

This Court after remand dismissed the appeal filed by Shri Morada. The learned Counsel for the Petitioner submit that the question whether the executing court has to consider at the stage of execution that the landlord requires the premises for his personal use is a substantial question of law of general importance, which needs to be decided by the Supreme Court as there is no decision of the Supreme Court on the interpretation of Section 13 of the Act of 1949. To us, it appears that this is not a substantial question of law of general importance, because, in the first place, this Act of 1949 already, stands repealed by the Act of 197 1 and, therefore, it is no longer a law applicable to Himachal Pradesh so as to require the interpretation of Section 13 of the said Act, and, secondly, the phraseology of Section 13 is quite plain and admits of no difficulty. It is well settled that the executing court cannot go behind the decree, and in the opinion of this Court it is not a question which needs to be decided by the Supreme Court. The authority relied upon by the learned Counsel in support of his contention is Pasupuleti Venkateswarlu Vs. The Motor and General Traders, . This authority has already been considered by this Court and has been distinguished and as such the same has got no application to the facts of the present case. According to Sir Chunilal V. Mehta and Sons, Ltd. Vs. The Century Spinning and Manufacturing Co., Ltd., , one of the tests for determining whether a question of law raised in the case is substantial would be whether it is of general public importance. Here, in the instant case, as already stated, the law has since been repealed and it no longer remains a substantial question of law of general importance. Therefore, in our opinion, this case does not involve any substantial question of law which needs to be decided by the Supreme Court. Hence the petition fails and is hereby dismissed.

In so far as C.M.P. 15 of 1976 for stay is concerned the same is also hereby dismissed.

R.S. Pathak C.J.

The Petitioner is a resident of village Saryala, situated in Jagjitnagar block, Tehsil and District Solan. He is aggrieved by the elections held in Gram Sabha Ghandi. He contends that the Gram Sabha area of that Gram Sabha was altered and consequently the Gram Sabha itself stood abolished. According to him, the Gram Sabha should have been constituted afresh in respect of the altered area, and as there was no fresh constitution of the Gram Sabha the action taken to hold elections to the Executive Committees consequent to the notification dated September 29, 1972, must be treated as invalid. By this writ petition the Petitioner prays for relief against the elections in respect of the Gram Sabha, Ghandi.

The writ petition is without force. Any change in the Gram Sabha area over which the existing Gram Sabha has jurisdiction does not affect the constitution of the Gram Sabha itself. Section 5 of the Himachal Pradesh Panchayati Raj Act, 1968, contemplates a Gram Sabha as a body corporate having perpetual succession and a common seal. Its jurisdiction in respect of a Sabha area is defined u/s 4 of the Act. The Government is empowered under that Section to include or exclude any area from the Sabha area. Merely because the extent of the Sabha area over which the Gram Sabha has jurisdiction is altered u/s 4 does not mean that the Gram Sabha in its nature is affected in any way. The contention of the Petitioner must fail.

The writ petition is dismissed with costs.