Surjit Singh vs Pritam Singh

R.S. Pathak, C.J.—This is a landlord''s revision petition arising out of proceedings for eviction of a tenant u/s 14 (2) of the Himachal Pradesh Urban Rent Control Act, 1971.

The Petitioner, Kr. Surjit Singh, is the landlord and the Respondent, Shri Pritam Singh Patpatia, is the tenant of accommodation in the premises known as "Lyndhurst West" situated on the Mall, Simla. The Petitioner filed a petition u/s 14 (2) of the Himachal Pradesh Urban Rent Control Act, (hereinafter referred to as "the Himachal Act") seeking the eviction of the Respondent on a number of grounds. The Controller, by his order dated November 27, 1973, found that the landlord had made out a case for the eviction on the ground that the Respondent had cease to occupy the accommodation for more than 12 months continously before the institution of the petition. Accordingly, he directed that the Petitioner be put in possession on the eviction of the Respondent. An appeal by the Respondent has been allowed by the Appellate Authority by its order dated March 27, 1974. The Appellate Authority, while agreeing with the appreciation of evidence by the Controller, has come to the opinion that Section 14 (2) of the Himachal Act was not attracted, and that the case was governed by Section 13(2) of the East Punjab Urban Rent Restriction Act, (hereinafter referred to as "the East Punjab Act") by virtue of Section 28 of the Himachal Act. He held that as the ground of ceasing to occupy accommodation for a period did not apply under the East Punjab Act to buildings in a hill station, no case had been made out for eviction of the Respondent. Against the appellate order the Petitioner now applies in revision.

Two points have been urged by learned Counsel for the Petitioner. One is that the Appellate Authority erred in applying the East Panjab Act and that the case properly falls under the Himachal Act. The other is that the Appellate Authority is vested with jurisdiction to hear appeals against orders made by Rent Controllers u/s 13 of the East Punjab Act and not u/s 14 of the Himachal Act, and therefore the appeal is incompetent.

On the first point learned Counsel for the Petitioner is right. The Himachal Act came into force with effect from November 5, 1971. The application for the eviction of the Respondent was made by the Petitioner on December 9, 1971. Section 28(1) of the Himachal Act repealed the East Punjab Act as enforced in Himachal Pradesh. Section 28(2) saves the application of the East Punjab Act in respect of those proceedings only which were pending at the commencement of the Himachal Act. Clearly, the Respondent is not entitled to the benefit of Section 28 (2). The application for eviction was made after the Himachal Act had come into force, and it falls to be determined under the provisions of that Act.

Section 14 (2) (v) of the Himachal Act entitles a landlord, who seeks to evict his tenant, to apply to the Controller for a direction in that behalf, and if the Controller after giving the tenant a reasonable opportunity of showing cause against the application is satisfied that "the tenant has ceased to occupy the building or rented land for a continous period of twelve months without reasonable cause", the Controller can make an order directing the tenant to put the landlord in possession of the building. The question is whether the period of twelve months mentioned in the clause must commence after the Himachal Act has come into operation or it can also refer to a period which has commenced before that Act came into operation and terminates after the coming into force of the Act. The question is easily answered. When the application for eviction comes before the Controller, he has to direct his mind to the point whether on the date when the application was made the tenant had ceased to occupy the building for a continuous period of twelve months, and if so, whether there is reasonable cause for his so doing. It is immaterial that the period of twelve months in fact commenced before the Act came into operation. The material date is the date on which Section 14(2)(v) is invoked. If on that date the period of twelve months has been completed the landlord can base his application on Section 14(2)(v). The liability to be evicted which is contemplated by that provision is a liability which arises only on the date the period of twelve months is completed. There is no liability to be evicted until the last day completing the period of twelve months. If that last day falls after the Himachal Act came into operation, the liability to eviction can be said to arise after the Act came into force. There is no retrospective operation of the Act in such a case. I am of opinion, therefore, that the period of twelve months contemplated in Section 14(2)(v) can be a period commencing before the Himachal Act came into operation. The only requirement is that it must stand completed on the date the application u/s 14(2)(v) is made.

It is pointed out by learned Counsel for the Respondent that there was no ground similar to that set out in Section 14(2)(v)applicable to buildings in a hill station before the Himachal Act was brought into force, and therefore all the period during which the building was not occupied by the tenant prior to that date must be ignored for the purposes of Section 14(2)(v). As I have said, the liability to which the ground refers arises only on the completion of the period of twelve months, and if the period is completed on the date when the application under the Act is made Section 14(2)(v) will apply.

Learned Counsel for the Respondent then contends that the Respondent had acquired a right under the East Punjab Act against eviction on the ground that the Respondent had not occupied the accommodation for a certain continuous period, and that he is entitled to the continuation of that right by reason of Section 6 of the Himachal Pradesh General Clauses Act. Now, it is not Section 13(2)(v) of the East Punjab Act which confers any right against eviction. Construed as a positive provision, all that it declares is that if a tenant has ceased to occupy a building for the statutory period without reasonable cause, and the building is situated in a place other than a hill station, that constitutes a ground for the eviction of the tenant. It cannot be inferred from this that by virtue of this provision protection was extended to a tenant occupying a building in a hill station. Even before the East Punjab Act if a tenant could no be evicted from a building, that was because of the general law and the terms of the tenancy. An encroachment was made into that position by Section 13(2)(v) of the East Punjab Act, but only to the extent that it referred to a building situated in a place other than a hill station. It is plain that no privilege, such as is pleaded by the Respondent, was conferred by the East Punjab Acton him. In the circumstances, no reliance can be placed on Section 6 of the Himachal Pradesh General Clauses Act.

It is also pointed out by learned Counsel for the Respondent that the period of twelve months was completed in the present case long before the Himachal Act was brought into force, and therefore, if any liability existed at all it had come into existence before the Himachal Act. If, learned Counsel goes on to argue, the completion of twelve months is taken into consideration, Section 14(2)(v) of the Himachal Act refers to a position obtaining before the Act came into operation and, therefore, such application of the Act must necessarily contemplate a retrospective operation, which on the terms of the clause it does not have. It seems to me that the expression "for a continuous period of twelve months" must be applied in the manner in which it is intended by Section 14(2)(v), and that intention is that if on the date of application made by the landlord it appears that the tenant has not occupied the building continuously during the past twelve months, the Controller would be within his jurisdiction to make an order of eviction. That is for the reason that the liability must exist on the date the statute is invoked. And the period of twelve months must be computed backwards from the date of the application. That is the material period and not any earlier period. Two conditions must be satisfied before Section 14(2)(v) can be applied. One is that on the date of the application the tenant is not in occupation of the building. The other is that on that date he has not been in occupation of the building for a continuous period of twelve months.

It is finally urged by learned Counsel for the Respondent that there was reasonable cause for the tenant not being in occupation of the building for a continuous period of twelve months. It does appear from the order of the Appellate Authority that this ground was ever urged and pressed before it. It was not even taken as a ground in the memorandum of appeal filed by the Respondent. The ground therefore, can not be allowed to be raised.

The Petitioner succeeds on the first point.

On the second point the Petitioner must fail. The notification issued u/s 15(1)(a) of the East Punjab Act confers on all District and Sessions Judges in respect of the urban areas in their respective jurisdiction the powers of an Appellate Authority for the purpose of that Act with regard to orders made by Rent Controllers, inter alia, u/s 13 of the said Act. It is not disputed that by reason of the Himachal Pradesh General Clauses Act the notification must be deemed to be valid for the purposes of the Himachal Pradesh Urban Rent Control Act, and that a District and Sessions Judge in Himachal Pradesh is vested with appellate jurisdiction under that Act also. It is urged on behalf of the Petitioner that Section 13 of the East Punjab Act is not in identical terms with Section 14 of the Himachal Pradesh Act and therefore, that principle cannot [be invoked. Now, when the notification refers to an order made u/s 13 of the East Punjab Act it refers to an order of eviction. So does Section 14 of the Himachal Pradesh Act. There is no substantial difference between the powers exercised by the Controller u/s 13 of the East Punjab Act and Section 14 of the Himachal Act. There is no reason, then, why the notification should not operate as appointing District and Sessions Judges in Himachal Pradesh as Appellate Authorities with regard to the orders made by Rent Controllers under the provisions of the Himachal Act.

The revision petition is allowed, the order of the Appellate Authority dated March 27, 1974, is set aside and the order of the Rent Controller dated November 27, 1973, is restored, subject to the direction that the Respondent is allowed to continue in occupation of the accommodation for a period of two weeks only from to day.