Sawan Ram vs Gobinda Ram and another

S.S. Sandhawalia, C.J.—Whether the jurisdiction of the Civil Courts is impliedly barred from the field covered specifically and squarely by the provisions of the Haryana Urban (Control of Rent and Eviction) Act, 1973 is the significant and the pristinely legal question which is before this Full Bench on a reference.

The relevant facts would pale into relative insignificance in view of the primarily legal nature of the issue aforesaid. Nevertheless, the matrix of facts giving rise to the controversy had inevitably to be noticed in the first instance. Gobind Ram Respondent landlord had on May 31, 1975 preferred a suit for possession of a shop claiming that the construction thereof had been completed in the month of August, 1969. During the pendency of the suit, the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter called the Act) was amended with the result that all the non-residential buildings constructed after March, 1962 would also come within the ambit of the Act. As a necessary consequence the ground on which the ejectment of the tenant was sought from the shop in dispute disappeared and the Petitioner-tenant preferred an application that the suit may be dismissed atleast qua the relief of ejectment. The trial court however, rejected the application holding apparently that despite the virtual barring of the relief of ejectment by a decree of the Civil Court, the suit was nevertheless maintainable. The Petitioner tenant has come up by way of this Revision Petition.

The matter came up before my learned brother S.P. Goyal, J. Noticing the thin and perhaps an unsustainable line of distinction between Section 13 (1)of the Act and the East Punjab Urban Rent Restriction Act, 1949 which had been drawn in Suresh Kumar v. Bhim Sen (1978) 80 P.L.R. 751 and further two Division Bench judgments of the Court holding that Section 13 (1)of the East Punjab Urban Rent Restriction Act, 1949 did not affect the jurisdiction of the Civil Court to pass the decree for ejectment, he referred the matter to a Larger Bench to examine the correctness of the view expressed.

As the legal position both under the Punjab and the Haryana rent statutes would herinafter inevitably come for consideration, it becomes necessary to notice the history of this rent legislation in order to place the matter in a correct perspective. The parent statute was enacted nearly four decades ago, when in pre-partition India, in the wake of the 2nd World War and the imposition of taxes on buildings and lard within the limits of Lahore Municipality and the other urban areas of the State, it became necessary to promulgate the Punjab Rent Restriction Act, 1941 (Act X of 1941). The primary object thereof was to restrict the increase of rents of certain premises, but the decision of all the questions arising thereunder was still left to the ordinary Civil Courts. However, when six years later the Punjab Rent Restriction Act 1947 was promulgated on April 14, 1947, more meaningful changes were introduced in the law and the earlier statute was substantially recast. The concept of a controller to be appointed by the previcial Government to perform the functions under the Act, was introduced and the material issues arising for determination under the Act were designedly excluded from the ordinary run of Civil Courts and vested in the Controller so appointed. This Act applied to all urban areas in the undivided Punjab (including the territories now in Haryana) and set up a new machinery for determining the fair rent and performing the other functions under the Act by the Controller and appeals therefrom were prescribed to lie before an Appellate Authority. This procedure was given finality and Sub-Section 15 (4) of 1947 Act provided that these decisions would not be liable to be called in question in any court of law, whether in a suit r(sic) other proceedings by way of appeal or revision. These provisions of the aforesaid Act continued to hold sway after the partition till the enactment of the Punjab Urban Rent Restriction Act, 1949. The said statute continued to apply with amendments to both the States of Punjab and Haryana till(sic) in 1973 the Haryana Urban (Control of Rent & Eviction) Act, 1973 was enacted.

Now it has not been disputed before us that the Haryana Act is a complete Code about the tenant-landlord relationship as regards the matters for which it specifically provides. It would therefore, be wastful to elaborate this question in any great detail. Nevertheless, a bird''s eye view of some provisions of the Act is inevitably called for Section 2 is the defining provision and sab, sections (c) and (b) thereof specify with some precision the meanings which are to be attached to the words ''landlords'' and ''tenant''. Significantly, Section 2 (b) also defines the Controller who is to be appointed by the State Government to perform the functions under the Act. Perhaps at this very stage, it may be highlighted that for all practical purposes, jurisdiction with regard to the matters covered by the Act is taken away from the ordinary run of the Civil Courts and vested in the Controller. Particular reference, in this context is called for to Section 13 pertaining to the eviction of tenants and Section 15 which spells out the appellate and revisional power under the same Perhaps it bears repetition that the appellate authority which is again to be constituted by the State Government is solely vested with this jurisdiction and specifically Sub-section (6) of Section 15 constitutes the High Court as the revisional authority.

Coming now to the specific provisions, the relevant parts thereof may be read at the very out set:

S. 13. Eviction of tenants.

(1) A tenant in possession of a building or a rented land shall not be evicted therefrom except in accordance with the prousions of this section."

X X X X X X X

X X X X X X X

"S. 15. Appellate and Revisional Authorities.

X X X X X X X

(5) The decisions of the appellate authority and subject to such decision, the order of the Controller shall be final and shall not be liable to be called in question in any court of law except as provided in Sub-section (6) of this section.

Now particular exphasis is called for to the afore-quoted Sub-section (1) of Section 13, which lays down in no uncertain terms that a tenant is not to be evicted except in accordance with the provisions of this very Section. That this provision is exclusory in nature is patent and that it bars all other laws and confines the remedy to what is spelt out in the statute itself is, therefore, manifest. Coupled with this is the fact that the procedural jurisdiction to decide the questions in accordance with Section 13 is again vested only in the Controller subject, of course, to the decision of the appellate authority constituted under the Act and the final revisional jurisdiction has been conferred expressly on the High Court by the amending Act of 1956. It is thus evident that both as regards the substantive law applicable and also the forum in which is to be enforced, the Act covers the field to the total exculsion of all other laws. What exactly, therefore, does it exclude. Plainly it excludes on the substantive aspect the general law of the tenant-landlord relationship and on the procedural aspect bars the forum of the ordinary run of the Civil Courts.

Reference in this context may again be instructively made to Section 15 (6) of the Haryana Act. As has been made evident from the history of the legislation in the preceding enactments, the corresponding provisions of Section 15 (4) of the East Punjab Uaban Rent Restriction Act, 1949 do indeed attach finality to the orders of the Controller and the Appellate Authority as the case may be even to the exclusion of the revisional jurisdiction of the High Court. This was so held by the Full Bench judgment in M/s. Pitman''s Shorthand Academy v. B. Lila Ram & Sons. (1950) 52 P.L.R. 1. It would thus be plain that prior to 1965 in the rent jurisdiction, the Civil Courts in this particular field were so totally excluded so as to even bar any interference by the High Court itself. It was only by Punjab Act No. 29 of 1956 that the revisional jurisdiction of the High Court was expressly inducted. Therefore, the provision of Section 15 (5) of the Haryana Act and the corresponding provisions of the Punjab Act are a strong pointer to the fact that in matters comprising the tenant-landlord relationship and all others for which the rent legislation provided the final determination was left to the Controller and the appellate Authority appointed under the Act and the revisional jurisdiction expressly vested thereby in the High Court to the total exclusion of the other Civil Courts.

It appears to be plain from the aforesaid discussion that the history of the legislation, the larger scheme of the Act and the construction of the specific statutory provisions are all pointers to the only conclusion that the intent of the legislature writlarge over the provisions was to exclude both the jurisdiction of the Civil Courts as also the application of the general law of landlord and tenant.

What thus appears to be plain on principle and the statutory provisions is equally buttressed by the high authority in AIR 1940 105 (Privy Council) . Their Lordships were construing a similar exclusrry provision in Section 188 of the Sea Customs Act (1878) attaching finality to the decision and orders of the authorities therein.

It was held as follows:

By Sections 188 and 191 a precise and self contained code of appeal is provided in regard to obligations which are created by the statute itself, and it enables the appeal to be carried to the supreme head of the executive Government. It is difficult to conceive(sic) what further challenge of the order was intended to be excluded other than a challenge in the Civil Courts .....

To the same tenor are the following observations in the basic judgment of Their Lordships with regard to the exclusion of the jurisdiction of the Civil Courts in Dhulabhai and Others Vs. The State of Madhya Pradesh and Another,

...... The result of this inquiry into the diverse views expressed in this Court may be stated as follows:-

(1) Where the statute gives a finality to the order of the special tribunals the civil Court''s jurisdiction must be held to be excluded if there is adequate remedy to what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in confirmity with the fundamental principles of judicial procedure.

It is thus obvious that the statutory provisions of both the Punjab and Haryana Act which fall for construction amoly satisfy the aforesaid test. It is unnecessary to multiply authorities and it would saffi e(sic) to mention that the reiteration of the view in Dhulabhai etc., case (supra) has been unreservedly made in The State of West Bengal Vs. The Indian Iron and Steel Co. Ltd., and the Premier Automobiles Ltd. v. Kamulkar Shantaram Wadke AIR 1975 S.C 2236. The latest enunciation in refreshing terms is as follows, in Gujarat State Co-operative Land Development Bank Ltd. Vs. P.R. Mankad and Others,

...... In substance, it was an industrial dispute. It was not restricted to a claim under the contract or agreement of employment. The Civil Court t.annot grant the reliefs claimed by the second Respondent. As rightly submitted by Mr. Rama Reddy, if a court is incapable of granting the relief claimed, normally, the proper construction would be that it is incompetent to deal with the matter.

On behalf of the Respondent, some argument, was sought to be raised on the ground that the draftsmen of the rent statutes had not resorted to the usdal(sic) or the express provision declaring that the jurisdiction of the Civil Courts is barred. The answer to this appears to be plain Despite the enactment of the rent statutes, undoubtedly there are certain areas which are yet left open for the applicability of the general law of the land and the jurisdiction of the Civil Courts as also there are certain specifie exemptions granted by the rent statutes themselves. In these areas invitably neither the application of the general law is excluded nor the forum of ordinary run of the Courts is barred. The case in hand is itself a specific example of this nature. Herein, when the suit was originally preferred in 1975, the building in dispute was not within the ambit of the Haryana Act, because the construction thereof had been completed in the months of August, 1969. Therefore, the general law was applicable and a suit for possession was competent. However, by an Amending Act, these buildings were also brought within the ambit of the Haryana Act. This case, therefore, is a specific example which would show that any blanket exclusion of the Civil Courts in the statute itself was neither possible nor perhaps practicable or desirable.

Apparently taking a cue from the observations of R.N. Mittal, J., in Suresh Kumar v. Bhim Sain] it was argued that Section 13 (1) of the East Punjab Urban Rent Restriction Act, 1949 makes a reference to Civil Courts'' decrees passed before and after the coming into force of that Act and this was indicative of the fact that the statute itself visualized civil suits and the passing of decrees therein despite the enactment of this Rent Act. Though ingenuous, the argument on an indepth analysis turns out to be fallacious(sic). It is well met on two patently strong grounds. When first enacted, Section 13(1) of the Punjab Rent Restriction Act had obviously to make a provision against ejectment orders which might have been passed prior to its enactment and which, might be binding or possible of execution thereafter. Inevitably, therefore, it was provided that because of the protection being afforded to the tenants under the Act, the earlier decrees would be rendered inexecutable and the tenants should not be evicted thereunder. The second aspect which had been taken in mind and was plainly in the ken of the legislature when enacting the rent legislation was the fact that this applied only to the specified urban areas coming within its ambit and not uniformally to the whole of the geographical jurisdiction of the State. Now what is an ''urban area'' to which the Act would be applicable may fluctuate and the Rent Restriction Act may designedly be extended to area which were earlier out of its reach and where consequently civil suits for ejectment and inevitably decrees were both possible Therefore, to visualise one situation, the statute had to provide that such like d crees though granted after the promulgation of the Act would again be rendered infructuous by the extension of the Act to a new area. Taking an example nearer home, if we may assume that a small township like Marinda(sic) which may earlier have not been an urban area, was later brought within the ambit of the Act. then the decrees of eviction granted under the general law by the Civil Courts would be rendered inexecutable by Section 13 (1) and the object of granting protection to the tenants fulfilled. Therefore, Section 13(1) of the Punjab Act had to take into account all the eventualities out of which some have been visualised above. Consequently, the language of the provision designed to meet these situations appears to us as no warrant for the proposition that the legislature had itself curiously contemplated either suits for ejectment in Civil Courts or decrees to be granted therein, even in areas and fields covered exclusively by the rent legislation.

Having ealt(sic) with the matter on principle, one(sic) must inevitably turn to precedent. Now the corner stone of the stand on behalf of the Respondent, both chronlogically(sic) and logically is based on the observations of Harnam Singh, J, Debi Prasad v. Messrs Choudhary Brothers Ltd., Narwana Wherein, he had cryptically observed as follows:

Now, Section 13 (1) clearly contemplates decrees for the eviction of tenants in possession of a building or rented land being passed subsequent to 15th April, 1947. when the Act came into force. Now if a decree can be passed in a suit for the eviction of the tenant in possesion of a building or rented land after the commencement of Act VI (6) of 1947, a suit for the eviction of any such, tenant is not prohibited by the Act.

Again, I am fortified in my view set out in the proceeding paragraph, for I find that wherever the Legislature intended to prohibit the institution of a suit it has in express words provided for such prohibition .....

And, thereafter seems to have concluded that there was non(sic) implied prohibition to the jurisdiction of the Civil Courts in Section 13(1) of the Act.

A bare look at the aforsaid judgment would make it manifest that the matter was not adequately convassed before the learned Single judge. Neither the history of the rent legislation nor the matarial provisions of the Act were adverted to in a larger perspective. In particular, the implied exclusion of the jurisdiction of the Civil Courts flowing from the provisions referred to above, was not at all noticed in the judgment, especially the provisions of Section 15(4) and the others which have been discussed in the earlier part of this judgment attaching finality to the orders of the Controller and the Appellate Authority, etc, as also the whole scheme of the Act was not kept in view in a broad conspectus. As has already been noticed by looking narrowly at Section 13(1) and placing overly reliance there on in isolation, the conclusion was arrived at by Harnam Singh, J. with great respect it appears to me that for the reasons earlier recorded the said view is untenable. There appears to be no option but to overrule the said judgment.

The Division in Sadhu Singh v. District Board, Gurdaspur (1962) 64 P.L.R I had merely followed the observations in Debi Parsad''s case (supra). It is plain from a reference to para No. 21 of the report that neither the correctness of the earlier view was challenged nor any disscusion what-so-ever on principle or otherwise v. was made. For the identical reasons given earlier the obervations of the Division Bench in this context have, therefor, to he also overruled.

It would be conducive to clarity of precedent if we notice that some misleading reliance on the Full Bench judgment in Sham Sunder v. Ram Das AIR 1951 P&H. 52., was sought to be placed on behalf of the Respondent. This judgment, however, is totally and completely distinguishable. What deserves highlighting herein is the fact that the question before the Full Bench was entirely with regard to the provisions of the Delhi and Ajmer-Merwara Rent Control Act. 1947, and had been formulated in the following terms:

Whether S. 9 (1), Delhi and Ajmer-Merwara Rent Control Act, 1947, applies to decrees passed before the Act came into force?

Now a reference to the Delhi and Ajmer-Merwara Rent Control Act, 1947 and in particular to Section 14 thereof would make it plain that thereby the jurisdiction under the said Act continued to vest in the Civil Courts and consequently not even a hint of a question regarding the exclusion of their jurisdiction could possibly arise under the said statute. Indeed a reference to the Delhi and Ajrner-Merwara Rent Control Act, 1947 would show that thereunder as yet, the very concept of the Rent Controller and the Appellate Authority was totally alien to the statute, The very tribunal being non existent under the said statute, the issue of the exclusion of the jurisdiction of Civil Courts could not therefore, possibly arise Therefore, the passing observations made in the Full Banch, in the context of the Delhi and Ajmer-Mer-wara Rent Control Act, 1947 have little or no relevance to what is now before us under the Punjab and the Haryana statutes. Nevertheless, as a matter of abundant caution it may be noticed that Harnam Singh J. who prepared the judgment of the Full Bench, in passing, repeated the trend of the reasoning which he had earlier taken in Debi Parshad v. Messrs Chaudhari Brothers Ltd. Narwana AIR 1949 E.P. 357. (Supra). No great argument is needed to conclude that in the context of Delhi and Ajmer-Merwara Rent Control Act, 1947, any reference and observations with regard to Section 13(1) of the Punjab Rent Restriction Act were totally obitar being not even remotely in issue. It is significant to repeat that neither the Punjab Rent Restriction Act nor any provisions thereof had fallen for construction before the Full Bench in Sham Sunder''s case (supra) and consequently any passing observation made therein was plainly obiter and could not possibly lay down any binding principle

In view of what is now held above, it necessarily follows that the observations of the learned single Judge in Suresh Kumar v. Bhim Sain'' (supra) to the effect that the jurisdiction of the Civil Courts to pass the decree for ejectment against a tenant had not been takan away by Section 13(1) of the l ast Punjab Rent Restriction Act, 1949 are equally unsupportable. The learned Single Judge had merely followed Sadhu Singh v. District Board Gurdaspur, {Surpa), and sought sustenance from Sham Sunder''s case. For the detailed reasons recorded on this specific point, the view of the learned single Judge in Suresh Kumar v. Bhim Sain (supra), is hereby overruled.

So far as the issue has been disscussed in the twin context of the provisions of Section 13(1) of the East Punjab Urban Rent Restriction Act. 1949 and the Haryana Urban (Control and Eviction Act, 1973. Even at the cost of a little repetition the two provsions may be juxtaposed as under:

PUNJAB ACT

HARYANA ACT

Eviction of tenants

Eviction of tenants

(1) A tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of this Act or otherwise and whether before or after termination of the tenancy, except in accordance with the provision of this section, (or in pursuance of an order made u/s 13 of the Punjab Urban Rent Restriction Act, 1947, as subsequently amended)."

(1) A tenant in possession of a building or a rented land shall not he evicted therefrom except in accordance with the provision of this section."

It is plain from the above comparison that the view taken earlier is doubly strengthened in the context of the language of Section 13 (1) of the Haryana Act. Herein, there is not the least reference to the decrees of the Civil Courts or their inexeutability either before an after the enactment of the statute. It would be recalled that the whole argument before Harnam Singh. J, in Debi Parshad''s case had turned on the specific language of Section 13(1) of the Punjab Rent Restriction Act, 1947. In the Haryana Act which we are now called upon to construe, there is nothing even remotely analogeous to the pre and post enactment decrees of the Punjab Act. Learned Counsel for the Petitioner is thus on even surer ground in contending that here at least there is nothing which can give the last inkling for any erroneous assumption that the legislature even after the enactment of the Act visualized the filing of suits for ejectment on the indentical cause of action covered by the rent statute or the subsquent passing of decrees which would be plainly inexecutable in view of the provisions of the Act. It is well settled that the law frowns on merely academic exercises in the forum of courts. It cannot, therefore, possibly enjoin an exercise in furtility and, therefore, the Courts should neither be called upon nor litigants harassed to prosecute suits, in which decrees cannot possibly be executed. In short, there should be no prosecution of futile suits and obtaining of sterile decrees.

Mr. N. C. Jain, learned Counsel for the Respondent was indeed hard put to take any firm stand on the point, in view of the illogical position to which he was inevitably pushed. More as an argument of despair than with any sense of conviction, he argued that even though the decree granted by the Civil Court may be totally inexectable, yet a parallel jurisdiction for the grant of the same should be allowed to remain. The learned counsel had to goto the length of faintly contending that at the same time, an application for ejectment before the Rent Controller under the Act could be prosecuted along with a suit for ejectment under the general law before a court of civil jurisdiction. Half-heartedly it was submitted that only at the stage of execution the bar of rent legislation would come in and not earlier. It suffices to say that one cannot possibly sanctify so anomalous a proposition.

The answer to the quesiton formulated at very out set is therefore, returned in affirmative.

The Civil Revision succeeds and the application of the Petitioner seeking a dismissal of the suit, as regards the relief of ejectment, is hereby allowed with costs.

Bhopinder Singh Dhillon, J.

I agree.

S.P. Goyal, J.

I agree