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Kanhubhai Kotocha Vs. MinajuddIn Ahmed and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtOrissa High Court
Decided On
Case NumberCivil Revision No. 96 of 1983
Judge
Reported in1985(II)OLR130
ActsOrissa House Rent Control Act, 1967 - Sections 13
AppellantKanhubhai Kotocha
RespondentMinajuddIn Ahmed and ors.
Appellant AdvocateS.K. Misra, Adv.
Respondent AdvocateS.P. Misra and S.C. Ray
DispositionPetition dismissed
Cases Referred(Patel Khan Kachara v. Jedaja Bhikhubha Pathubha and Anr.
Excerpt:
.....statutory rules. - the learned counsel for the opposite parties on the other hand contended that the impugned order rejecting the petitioner's objection to the execution proceeding was based on good grounds and accordingly it is not available to be interfered with. further in the facts and circumstances of the present case, there can be no manner of doubt that the petitioner was well aware of the order of eviction by the date of filing of the execution petition and also thereafter when notice of execution petition was. it was further held therein that the mere presence of the aggrieved party in court at the time of when the order is delivered 1 may at best amount to his knowledge of the order and not 'communication' within the meaning of section 12 and the period of limitation..........the said premises. the opposite parties filed an application under the provisions of orissa house rent control act, h. r. c. case no. 27 of 1979, for eviction of the petitioner. the said application was allowed by the house rent controller, balasore, on 7. 1. 1982. the controller passed an order for eviction of the petitioner and directed the latter to put the landlords in possession or the house. under the provisions of section 15 of the act, the order of the controller made under section 7 of the act directing the tenant to put the landlord in possession of the house, shall be deemed to be a decree and shall be executable as such in the court of the munsif within the local limits of whose jurisdiction the house is situated. as per the said prevision the opposite parties filed.....
Judgment:

D.P. Mohapatra, J.

1. The judgment-debtor in Execution Case No. 10 of .1982 pending before the Munsif, Balasore, is the petitioner in this application under Section 115 of the Civil Procedure Code seeking to challenge the order of the Court dated 13. 1. 1983 rejecting his application under Section 47 of the Civil Procedure Code.

2. The petitioner is the tenant in the suit house situated in Balasore town and the opposite parties are the landlords in respect of the said premises. The opposite parties filed an application under the provisions of Orissa House Rent Control Act, H. R. C. Case No. 27 of 1979, for eviction of the petitioner. The said application was allowed by the House Rent Controller, Balasore, on 7. 1. 1982. The controller passed an order for eviction of the petitioner and directed the latter to put the landlords in possession or the house. Under the provisions of Section 15 of the Act, the order of the Controller made under Section 7 of the Act directing the tenant to put the landlord in possession of the house, shall be deemed to be a decree and shall be executable as such in the Court of the Munsif within the local limits of whose jurisdiction the house is situated. As per the said prevision the opposite parties filed Execution Case No. 10 of 1982 on 26. 2.1982 for execution of the eviction order passed in the case On being noticed in the said case, the petitioner appeared and filed an objection to the executability of the decree mainly on the grounds :

(i) That the order passed by the House Rent Controller having not been communicated to the petitioner in the manner prescribed in Rule 13 of the H. R. C. Rules (for short 'the Rule') the execution petition was premature. It was contended by the petitioner that he had a right of appeal against the order of eviction after the same was duly communicated to him in accordance with the rules ;

(ii) Since the Orissa House Rent Control Act, 1968 was not in force in Balasore town on 7. 1. 1982 when the order of eviction was passed by the Controller, the said order was null and void and could not be enforced against the petitioner ; and

(iii) The Controller had no jurisdiction to pass the order of eviction and hence his order was a nullity.

On consideration of the matter, the learned Munsif came to bold :

(a) The order of the House Rent Controller was passed in presence of the judgment-debtor and his counsel, in the Court ;

(b) The order of eviction becomes a decree immediately after its pronouncement, as provided under Section 15 of the Act ;

(c) Communication of the order was not necessary as the party and his counsel were present in the Court on the date of pronouncement of the order ;

(d) Orissa House Rent Control Act, 1967 (Act 4 of 1968) was applicable to Balasore Municipal area on the date of the order of eviction ; and

(e) The S. D. J. M , Balasore, was competent to pass the order of eviction which was legal, valid and executable.

3. At the hearing, the learned counsel for the petitioner has reiterated the points already noticed above.

The learned counsel for the opposite parties on the other hand contended that the impugned order rejecting the petitioner's objection to the execution proceeding was based on good grounds and accordingly it is not available to be interfered with.

4. It is contended on behalf of the petitioner that the execution petition is premature since the order has not yet been communicated to the petitioner in accordance with the procedure prescribed under Rule 13 of the Rules. The impugned order records a concession by the counsel for the petitioner that the order of eviction was passed in presence of the lawyer for the petitioner. Section 13 of the Act which provides for appeal and Rule 13 of the Rules which prescribes the mode of service read as follows :

Section 13. Appeal (1) Any person aggrieved by an order of the Controller may within thirty days from the date on which the order is communicated to him, present an appeal in writing to (...(the Chief Judl. Magistrate) or any other officer specially appointed by the State Government for the purpose.

(2) The authority before whom an appeal is presented shall send for the record of the case from the Controller and after perusing such record, bearing the parties after making such further enquiries, as he thinks fit, shall decide the appeal.

Rule 13. Service of orders :__The copies of the orders passed by the Controller under Sections 5, 7, 9, and 10 of the Act shall be served on the parties concerned either personally or through the lawyers representing them or by registered post.

The rule prescribes the procedure to be followed after an order of eviction is passed. The communication arises in connection with the time prescribed for filing of appeal against the order of eviction. The communication prescribed in the rule which is purely procedural, cannot affect the executability of the order of eviction, which is deemed to be a decree under Section 15 of the Act. Further in the facts and circumstances of the present case, there can be no manner of doubt that the petitioner was well aware of the order of eviction by the date of filing of the execution petition and also thereafter when notice of execution petition was. published in the newspaper. In this circumstances, the executing Court was right in rejecting the objection to the executability of the order of eviction on the ground of want of communication under Rule 13 of the Rules.

The learned counsel for the petitioner has placed reliance on a Division Bench decision of this Court in the case of Keshab Chandra Rana v. State of Orissa and Anr. (A. I. R. 1957 Orissa 201), wherein it was held 'that expression in Section 12 of the Orissa House Rent Control Act (Orissa Act 31 of 9153) the date on which the order is communicated to him' cannot mean to be 'the date of knowledge to him' in view of the specific provision under Rule 10 of the Rules. It was further held therein that the mere presence of the aggrieved party in Court at the time of when the order is delivered 1 may at best amount to his knowledge of the order and not 'communication' within the meaning of Section 12 and the period of limitation begins to run not from the date of delivery of the order or knowledge thereof bat only from the date it is communicated in writing to the 'party aggrieved.' This decision is distinguishable since what was under consideration therein was whether the appeal was barred by limitation or not. It rather lends assurance to my observation that the provision of Rule 13 is relevant on the question of computation of period of limitation for filing the appeal. It does not affect the executability of an order of eviction under the Statute which deemed to be a decree and is executable as such in the Court of the Munsif having jurisdiction over the area where the house in question is situated.

5. The next question for consideration is whether the eviction order can be held to be a nullity since the Orissa House Rent Control Act, 1967 was not in force within the Municipal area of Balasore town on 7. 1. 1982 when the order of eviction was passed. Orissa House Rent Control Act, 1958 (Orissa Act, 31 of 1958) received assent of the President of India on 3. 12. 1958. It was published in the Orissa Gazette on 12. 12. 1958.

Initially the provisions of Act were extended to the municipal limits of the towns of Cuttack, Sambalpur and Berhampur with effect from 1.1.1959 by notification dated 24. 12. 1958. Subsequently, by notification dated 2. 6. 1960 the provisions of the Act were extended to several other municipal areas including that of Balasore town with effect from 15. 6. 1930. In Section 1(4) of the Orissa Act, it was provided that the Act shall cease on the expiry of 5 years from the date of its commencement except as respect things done or omitted to be done before the expiration thereof and Section 5 of the Orissa General Clauses Act, 1937 (Orissa Act 1 of 1937) shall apply upon the expiry of this Act as if it had then been a repealed by an Orissa Act. Thus, the lite of Orissa Act 31 of 1958, so far as Balasor town was concerned. was for five years from 15 6 ,1960. By Orissa House Rent Control (Amendment) Act, 1963 (Orissa Act 30 of 1963), the words 'five years' occurring in Section 1(4) of the Act were substituted by the woe is 'eight years'. This Amendment Act (Orissa Act 30 of 1953) after receiving assent of the President was published in the Official Gazette on 18. 12. 1963__Thus the life of the Orissa Act 31 of 1958 stood extended upto 8 years from the date of its commencement on the basis of amending statute. Cri 23. 12. 1966, the Government of Orissa promulgated an Ordinance, Ordinance No. 5 of 1936, to amend the Orissa House Rent Control Act, 1958. In the said Ordinance which was published in the Orissa Gazette on 29.12. 1966, the words ,eight years' occurring in Section 1(4) of the Orissa Act 31 of 1958 were substituted by 'eleven years'. Thus under this provision, the life of Orissa Act 31 of 1958 stood extended to 11 years from the date of its commencement. The provisions of the aforesaid Ordinance were incorporated in Orissa House Rent Control (Amendment) Act, 1967 (Orissa Act 7 of 1957) which received the assent of President on 29. 4. 1957, published in the Orissa Gazette on 19. 5.1967.

As noticed earlier the Amendment Act intended to extend life of Orissa Act 31 of 1958 to eleven years from the date of its commencement. But it was found that by the time Orissa Act 7 of 1967 was enacted, the Ordinance 4 of 1966, which the act intended to replace, had spent its force since 4. 5. 1967. In the situation stated above a fresh Act, Orissa House Rent Control Act, 1967 (Orissa Act 4 of 1968) was enacted. The Act was given restrospective operation with effect from 4.5.1967. The President of India's assent was obtained in 1968 and it was published in the Official Gazette on 4. 3. 1969.

Section 1(3) of the Act provides as follows :

'It shall be deemed to have come into force on the 4th day of May, 1967 in those local areas of the State in which the Orissa House Rent Control Act, 1958 (Orissa Act 31 of 1958) was in force immediately prior to its expiry and it shall come into force in such other local area or areas on such date as the State Government may, by notification, appoint in that behalf.

Provided that Secs. 17 and 18 shall come into force in the earlier mentioned local areas on the day on which the assent of the President to this Act is first published in the Gazette.

6. From the aforesaid narration of facts, it is clear that the life of Orissa Act 4 of 1958 was for seven years from the date of commencement as envisaged under Section 1(4) of the Act. Before expiry of the Orissa, Act 4 of 1968 on completion of seven years from the date of its commencement, an Ordinance, Orissa House Rent Control {Amendment) Ordinance. 1974 (Orissa Ordinance 5 of 1974) was promulgated on 2. 5. 1974. The same was published in the Official Gazette on 3. 5. 1974. Under the provisions of the said Ordinance, Section 1(4) of the Orissa Act 4 of 1958 was omitted and in its place a provision was inserted that during the operation of the Ordinance, the House Rent Control Act, 1967 shall have effect subject to the above amendment. Subsequently this Ordinance was replaced by Orissa Act 10 of 1974. It was assented to by the President of India on 12.7.1974 and published in the Official Gazette on 13. 7. 1974. By this Act, in Orissa Act 10 of l.7., Section I(4) Orissa Act 4 of 1968 was amended and the words 'seven years' were substituted by the words and figures '4th day of May 1981, The effect of this amendment was that the life of Orissa Act 4 of 1968 stood extended upto the 3rd May, 1981. The life of the said Act was further extended by Orissa Act 15 or 1981 upto 24th May of 988. This act was assented to by the President on 2. 3. 1981 and was published in the Official Gazette on 4. 3. 1981.

The basis of the contention on behalf of the petitioner is that on 7. 1. 1982 when the Controller passed an order of eviction in question, the Orissa House Rent Control Act, 1958 has not expired in the municipal area of Balasore town and hence its life could not be extended under the Orissa House Rent Control Act, 30 of 1983. This argument is based on a fallacy. Orissa Act 31 of 1958 was a temporary statute, which was to expire on completion of 5 years from the date of its commencement. .Admittedly, the statute was enforced on 12. 12. 1958 when it was published in the Official Gazette and hence the Act was to expire on 12. 12. 19V3. Before expiry of the period of 5 years the life of the Act was extended from 5 years to 8 years under the Orissa Act 30 of 1963. It was assented to by the President on 16.3. 1983. The life of the statute was extended from time to time under the Ordinance and Acts as stated in the foregoing paragraphs. Since the statute itself was to spend its force on expiry of 5 years, it could not have been in force in Balasore Municipal area till 16. 6. 1935 as suggested by the learned counsel for the petitioner.

7. Some of the decisions relied upon by the learned counsel for the petitioner may be discussed In the case of Baidyanath Sharma v. Sabitribala Mitra and Ors., reported in 35(1969) C.L.T. 464, this Court dealing with the question of executability of an order under Section 1(2) of the Orissa House Rent Control Act (Orissa Act XXXI of 1958) as a decree in the Court of the Munsif after coming into operation of the Orissa House Rent Control Act, 1968 held as follows :

'The 1958 Act was initially for a period of 5 years. By Orissa Act 30 of 1963, it was amended before its expiry and the 1958 Act was to remain in before for a period' of 8 years from the date of its commencement which was on 1. 1. 1959. In normal course the life of this Act would have expired on 1. 1.1967. By Orissa Ordinance No. 5 of 1966 promulgated by the Governor on 26. 12. 1966 the life of the 1958 Act was further extended to 11 years. This Ordinance was laid before the Legislative Assembly, Orissa, when the Assembly first met after the Ordinance on 23.3. 1967 by virtue of the provisions under Articles 213 of the Constitution. The Ordinance wars converted into Act 7 of 1967 and it received the assent of the President on 29. 4. 1967. This Act was however published late in the Orissa Gazette (Extraordinary) ?dated 19. 5. 1967. According to Section 3(1) (ii) of the Orissa General Clauses Act, 1937 this Act ought to have come into operation only from the date on which the President's assent was published in the Gazette, that is, 19. 5. 1967. But in the Orissa Ordinance No. 5 of 1966 which extended the life of the 1958 Act from 8 years to 11 years ceased to operate et the expiration of 6 weeks f com the re-assembly of the Legislature. In other words, the Ordinance expired on 4. 5. 1967. So the 1958 Act expired on that day. When the principal Act of 1958 expired on 4. 5. 1967, the Amending Act 7 of 1967 which, was published in the Orissa Gazette on 19. 5. l967 became infructuous and could not come into operation. The result was that there was no House Rent Control Act in Orissa after 4.5.1967.

To save the aforesaid situation, the Orissa House Rent Control Act, 1967 (Orissa Act 4 of 1968) was passed by the State Legislature and it received the assent of the President on 17. 2. 1968. It was published in the Orissa Gazette (Extraordinary) on 4. 3.1968. This Act has been given retrospective operation, in, the area in which the 1958 Act was in force, from 4. 5. 1967, by virtue of Section 1(3). The result, therefore, is that the Orissa Act 4 of 1968 is in force with effect from 4. 5.1967.

Section 22 of the 1968 Act, so far as relevant, runs thus :

'22. Notwithstanding the expiration of the Orissa House Rent Control Act, 1958

a) anything done, any action taken, any order, appointment or rules made or any notification issued in exercise of or in purported exercise of any power conferred by or under the said Act; and

b) any proceedings instituted thereunder, shall be deemed to have been done, taken, made or issued in exercise of the powers conferred by or under this Act

As a result of these saving clauses, the order dated 12- 9.1963 passed by the appellate Court in the House Rent Control case under Section 7(2) of the 1958 Act shall be deemed to be an order passed under Sec 7(4) of the 1966 Act.'

In the case of Sayeed Noorul Haque and Ors. v. Mohammed Hafi and Ors. 38(1972) C. L. T. 592 in a Division Bench of this Court on interpretation of various provisions of the Orissa House Rent Control Act, 1958 (Orissa Act 31 of 1958) and House Rent Control Act, 1967, (Orissa Act 4 of 1968) came to the conclusion that factually, there was no House Rent Control Act from 4. 5. 1967 to 4. 3. 1968. The Court held :

'That all the three saving clauses (a) to (c) of Section 22 of the 1967 Act relate to matters partaining to actions done or procee dings instituted or pending under the 1958 Act. In the facts of that case it was held that the application for eviction filed on 30. 11. 1967 had not been instituted or remained pending under the 1958 Act which expired about a little more than six months before the filing of the application for eviction. Such an application is not saved by Section 22 of the 1967. The Court observed that the application for eviction was filed before an authority having no jurisdiction and is liable to be dismissed on that short ground'.

The principle laid down in this case has no application to the present case since on the date of filing of the application for eviction, the Orissa House Rent Control Act, 1967 (Orissa Act 4 of 1968 ) as extended by Orissa Act 10 of 1974 was in force and as such it cannot be said that when proceedings were commenced on 29. 11. 1979 the House Rent Controller had no jurisdiction to entertain the application for eviction.

The learned counsel for the petitioner next relied upon a decision of the Supreme Court, reported in A. I. R. 1957 S. C. 517 (State of Bombay v. Salat Pragji Karamsi ) in support of his contention that the Orissa House Rent Control Act, 1967 ( Orissa Act 4 of 1968) could not be said to be applicable to the area within Balasore Municipality in the . absence of a notification under Section 1(4) of the Act. The Supreme Court in the aforementioned case on interpretation of the provisions of Adaptation of Laws Order (1950) extending Bombay Prevention of Gambling Act to Kutch; came to hold that the whole of the Act including amended Section 1 became applicable to Kutch and therefore a notification was necessary before it could be brought into force in any part of Kutch. It was applied to Kutch, but its provisions were not in operation before the notification.

The distinctive feature between the decided case and the present case is that the provisions of the Bombay Prevention of Gambling Act (4 of 1887) were not in force in Kutch area before the notification in question which merely extended the Act to be applicable in that area. Interpretating this notification, the Court held that by merely extending the Act to the area of Kutch, it did not make the provisions of the Act operative in the said area for which another notification as required under Section 1 of the Act was necessary.

In the present case the Orissa House Rent Control Act 1958 (Orissa Act 15 of 1958) had already been extended to the area of Balasore Municipality by notification dated 2. 6. 1968, which Act continued upto 4. 5. 1967 and from that date lapsed since ordinance 5 of 1966 had spent its force by efflux of time. In order to get over this difficulty, Orissa House Rent Control Act, 1967 (Orissa Act 4 of 1968) was given retrospective operation with effect from 4. 5. 1967 for a period of 7 years. As a consequence of this provision, Orissa Act 4 of 1968 would apply to the area where Orissa Act 15 of 1958 was extended from time to time and was in force till 4. 5. 1967.

In these circumstances, there was no necessity for issue or another notification bringing in the provisions of Orissa House Rent Control Act, 1967 (Orissa Act 4 of 1968) within the local limits of Balasore Municipality.

The learned counsel for the petitioner has cited several decisions, i. e., A. I. R 1974 Madras, 129. (The Commissioner of H. R. and C. E. Madras v. H H. Pararulala Ramannja Jeer and Ors. ) and, (A. I. R. 1953. Saurashtra, 195 (Patel Khan Kachara v. Jedaja Bhikhubha Pathubha and Anr.), relating to the principle of repeal and reactment by a temporary statute, it is not necessary to refer to the said decisions since in the present case, there was no question of repeal and reactment of the statute. Ali that has been done by different Acts and Ordinance is to extend the life of the Orissa House Rent Control Act (Orissa Act 15 of 1958).

On the aforesaid analysts it has to be held that the Court below rightly rejected the contentions raised on behalf of the judgment-debtor-petitioner challenging the maintainability of the Execution Case, No other contention challenging the power of the House Rent Controller to pass the order of eviction was raised in the case.

8. Regarding the applicability of Rule 13 of the Rules, as noticed earlier, the Court below proceeded on the uncontroverted position that the order directing the petitioner to deliver possession of the house in question to the opposite parties was passed in presence of the counsel for the petitioner. Regarding the questions relating to the maintainability of the execution proceeding since the Orissa House Rent Control Act was not in force on the date when order for eviction was passed, the point was not seriously pressed by the counsel for the judgment-debtor-petitioner. Ordinarily, I would not have permitted the learned counsel for the petitioner to agitate these points in view of the concession recorded in the impugned order. Since the question relates to the jurisdiction of the Court to execute the order of eviction, I permitted the learned counsel for the parties to argue the points.

9. In the result, the revision petition is devoid of merit and the same is accordingly dismissed with costs. Hearing fee is madeat Rs. 200/-.


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