Time House vs Smt. Kailashi Devi

Hari Lal Agarwal, J.—In this revision application, the defendant-petitioner has challenged an order dated 14-2-1977 passed by the Subordinate Judge, Bhagalpur. in Title Suit No. 117 of 1975 instituted by the plaintiff-opposite party for its eviction from the suit premises in its occupation in the town of Bhagalpur on the ground of default in payment of rent and personal necessity. The petitioner filed its written statement on 4-5-1996.

plaintiff filed an application u/s 11-A of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (hereinafter referred to as the ''old Act'') with a prayer to direct the defendant to deposit the arrears of rent from the month of April, 1972 to July, 1976 and current and future rents at the rate of Rs. 150/- per month. The petitioner opposes the prayer on the grounds, namely, (i) that the Act in question had already expired on 31-3-1976 and, therefore, the application was not maintainable, and (ii) the fair rent of the premises was fixed by the House Controller at Rs. 120/-per month from the 8th of June, 1972, and, therefore, the landlord was not entitled to claim at a rate higher than that.

The learned Subordinate Judge by the impugned order, however, directed the petitioner to deposit the arrears of rent at the rate of Rs. 150/-per monthand also for payment of rent for the current and subsequent months by the 15th of each succeeding month, failing which the defence against ejectment on the petitioner was ordered to be struck off in terms of Section 11-A of the old Act. He took the view that the expiration of the old Act would not affect any liability already incurred and that the order of the House Controller being already pending in appeal, was not final and, therefore, of no effect. The petitioner has challenged the order of the trial court in this application on both the grounds taken by it in the court below.

In support of the first point, Mr. Bimal Bhushan Sen appearing on behalf of the petitioner contended that on the date when the application u/s 11-A of the old Act was made, the same being not in force in view of the said Act itself having expired, the order passed by the learned Subordinate Judge was without jurisdiction.

It is not disputed that the old Act which was extended up to 31st March, 1976 by successive notifications lapsed on 31st March, 1976. Therefore, on the day (26-8-1976) when the application in question was made by the plaintiff as well as on 14-2-1977, when the impugned order was passed, there was no law in force in the State of Bihar which could entitle a plaintiff-landlord to make an application in his pending suit for eviction of his tenant for a direction upon him by the court for deposit of the arrears and current and future rents. Prima facie, the contention advanced on behalf of the petitioner appears unassailable. As when the old Act was already dead, Section 11-A did not exist and no court, therefore, could make an order acting under the said provision.

The question, however, requires a consideration in view of the promulgation of anew Act, namely, Bihar Act 16 of 1977. On 31st August, 1977, the President of India gave assent to a new Act, namely, The Bihar Buildings (Lease, Rent and Eviction) Control Act, 1977 (hereinafter to be referred to as the new Act'') which was, however, published in the Extraordinary issue of the Bihar Gazette on 8-9-1977- Some of the provisions contained in Section 1 of this new Act create some anomaly, namely, Sub-section (3) and its second proviso. It may be mentioned that the new Act contains practically all the old provisions without any material change. The sections of the old Act, have been cast in the new Act with new numbers, and Section 11-A of the old Act is now... numbered as Section 13 and is a reproduction of the old provision Sub-section (3) of Section 1 of the new Act provides that all the provisions except Section 25 of the new Act "shall be deemed to have come into force on the 1st of April, 1976..."Clause (b) of the second proviso of this sub-section provides that the period between the expiration of the old Act from the 1st April, 1976 and the commencement of the new Act, will not:

(a)...

(b) affect any liability incurred under that Act or any punishment incurred in respect of any contravention of that Act or any order made thereunder;

(c)...

Learned Counsel for the landlord, on the basis of the aforesaid provision of the new Act contended that notwithstanding the expiration of the old Act, by the deeming provision referred to above, Section 13 of the new Act will be seemed to be very much in forge on the date when the application in question was made by his client and on the date when the impugned order was passed. In the first flash, the argument appeared to be attractive, but on a closer scrutiny of it, the same seems to be untenable.

It is well settled principle of interpretation of statutes that every statute is prima Jade prospective unless expressly made or by implication is retrospective. It is, no doubt, true that the new Act makes a specific express provision for giving retrospective effect to practically all the provisions of the new Act including Section 13, corresponding to Section 11-A of the old Act. It need not be emphasized that Section 13 of the new Act exposes a tenant in a suit for his eviction who contests the suit to the obligation of paying all the arrears as well as the current and future rents to his landlord if an application is made in that behalf by him. Failure to comply with the same has been made penal and throws away his defence. In order, however, toenable the landlord to get this privilage/advantage, an application has got to be made, and unless that is made by him, there is no suo motu obligation of the tenant, nor is it the duty of the court to put that condition on a tenant for maintaining his defence. During the intervening period, i. e., the 1st of April, 1976, and the 8th of September, 1977, when the new Act was published, neither the landlord nor the tenant could foresee that any provision creating their respective rights and obligations would be enforced. the tact remains that factually there was no such law during that period for about a year and a half. Can then it be argued that a Tenant should be lastened with an obligation of carrying out an order under the provision of a legislation still to take its birth which might contain a provision disabling him to defend himself? in my opinion, if the argument put on behalf of the landlord is accepted, then this inevitable consequence which is bound to follow would lead to incongruity on the very face of it, and certainly have the effect of nullifying the very purpose of the Act which was passed by the binar Legislature keeping in view the prevailing hardship of the tenants who were already occupying buildings on lease or rent. It is no doubt not the duty of the court not to give effect to it merely because it would lead to hardship, the courts are not concerned with the policy of such legislature, or or otherwise. It cannot however, be gainsaiamat one of the duties imposed on the courts in interpreting a particular Particular provisison of law, rule or notification is to ascertain the meaning and intendment of the legislature or of the delegate which in exercise of the powers conferred on it has made the rule or the notification in question. It was said by he Supreme Court in Firm Amar Nath Basheshar Dass Vs. Tek Chand, , that in doing so, we must always presume that the impugned provision was designed to effectuate a particular object or to meet a particular requirement and not that it was intended to negative that which it sought to achieve. It is clear that the legislature intended to grant certain protection to the tenants in the Mate of Bihar and if the construction as sought for by the Learned Counsel for the landlord is accepted, then it will defeat the very purpose as intnat event, a tenant, on account of the fictional retrospective operation of me rigorous imposed u/s 13 of the new Act, would be taken unawares and labouring under a bona fide impression that there was no law enjoining upon him an obligation to carry out the order, certainly his defence against ejectment will stand struck off, although he might have carried out the order dehgently if there was a law on the statute book on that date, ftucti an interpretation will cause irreparable loss and injury to a tenant. Ine landlord is, however, quite secure as he can well maintain an application u/s 13 of the new Act and claim all the arrears which might have accrued in between the intervening period, i.e. 1st of April. 1976 and 31st August, 1977. The impugned order cannot be either said to have been passed under the old Act, and, therefore, saved by the Clause (b) of the proviso to Sub-section (3) of Section 1 extracted earlier.

There is yet another aspect of the matter. Section 13 of the new act simply entitles a landlord to "make an application at any stage of the suit for order on the tenant to deposit month by month rent The expression may make" contemplates a thing to be done in future. Therefore, even assuming for the sake of argument that Section 13 by the fiction of law will be deemed to be in force on the day when the landlord made the application, he did not make any such application contemplated under the Act. Kataer ne could not even be aware that any such law was on the eavil of the legislature. He made the application under a completely erroneous impression of the old Act was'' stil in force. The view that I have taken has also been taken by a learned single Judge of this court S. K. Chaudhuri, J. in Dr. Sailendra Nath Roy v. Dr. Miss Geeta Mazumdar Civil Revision No. 249 of 1977, decided on 14-10-1977

This application, therefore, must succeed and the impugned order set aside on the first ground alone.

As some argument has been advanced by the Learned Counsel for the petitioner on the second ground also that the rate of rent at which the impugned order should have been, made could not be else than the rate of rent fixed by the Rent Controller in the fair rent proceeding, I would like to answer that question also inasmuch as the landlord still may make a fresh application u/s 13 of the new Act in the court below. It is, no doubt, true that the previous view of this court was that if a fair rent pf the premises in question is determined, then that will be taken notice of by the civil court while passing an order u/s 11-A, of the old Act then in force. But there has been a shift in the view of this court, In the case of M.M. Verma v. Upendra Narain Slngh 1978 P.L.J.R. 32, where a Full Bench of five Judges of this court ruled by a majority view that the expression contained in Section 11-A of the old Act must be given a literal interpretation and the expression "...Order of the tenant to deposit month by month rent at a rate at which it was last paid..." was not subject to any variation so as to make it consistent with the fair rent fixed by the Controller, and the decision of the smaller Full Bench of this count. In Mahabir Ram''s case AIR 1978 Pat. 415, taking a contrary view in support of the contention advanced on behalf of the petitioner was overruled. In view of the authoritative decision of this court in the above case, the second point has got no substance.

The result of the above discussions is that this application is allowed and the order of the learned Subordinate Judge is set aside. It goes without saying that the plaintiff-landlord would be entitled to make a fresh application u/s 13 of the new Act in the trial court. In the circumstances of the case, the parties must bear their own costs.