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Tek Chand Melamal Vs. Firm Amar Nath Basheshar Das - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 1783 of 1970 with Civil Misc. No. 1094 of 1971
Judge
Reported inAIR1972P& H46
ActsPunjab Urban Rent Restriction Act, 1949 - Sections 3 and 13; Code of Civil Procedure (CPC), 1908 - Sections 47
AppellantTek Chand Melamal
RespondentFirm Amar Nath Basheshar Das
Excerpt:
.....must always be satisfied--namely, that the suit for ejection must have been filed within the period of exemption and also that the decree of ejectment must also be obtained within the said exempt period. 5. in construing the notification above-said, what first deserves notice is that it does not stand in isolation and has to be viewed in the context of its legislative history,.this notification is one of a series of notifications issued chronologically under section 3 of the east punjab rent restriction act (hereinafter called the act) for over a period of well-high 20 years. this situation may well explain the slight obscurity of language which consequently has crept in. would this right be defeated by the mere fact of the decree being framed accidentally by the court a day later..........included within its ambit, buildings constructed in 1959 and 1960 and it is obvious that the five years period of exemption for these buildings which may have been completed up to the 29th july, 1960, had expired at the time of its issue. the language of clause (b) was hence designed to cover both the past and the future institution of suits as also the past and the future decrees which may be passed in regard to those suits. it is hence that the use of the words 'are' and 'were' twice in this context of the suits and the resultant decrees became inescapable. this situation may well explain the slight obscurity of language which consequently has crept in.7. nevertheless even on a plain reading of cl.(b) it is obvious that the period of exemption is related to the institution of the.....
Judgment:

1. This execution second appeal raises an interesting question regarding the true construction to be placed on the Government notification No. 6487-ICI-65/29820, dated the 30th July, 1965, issued under Section 3 of the Punjab Urban Rent Restriction Act, 1949.

2. The facts are not in dispute. Tek Chand appellant had completed the construction of the premises in dispute in March, 1960. The suit for ejectment was instituted on the 12th of February, 1963, and it seems a tortuous trial followed and it was not till the 14th of August, 1969, that the decree was granted in favour of the appellant landlord. Thereafter the appellant moved the application for the execution of the decree abovesaid and objections were filed thereto by the judgment-debtor under Section 47, Civil P. C., alleging that in view of the provisions of East Punjab Urban Rent Restriction Act and also otherwise in law the decree was not executable. On behalf of the appellant-decree-holder it was also contended that the objection petition was false and frivolous and previously a revision petition of the judgment-debtor in the High Court in which this very objection had been raised had been dismissed. On the pleadings of the parties, the following issues were framed :--

1. Whether the decree is not executable as alleged in the objection petition?

2. Relief.

On issue No. 1 the trial Court on the construing notification referred to above held that on the strict language of the same, it was necessary that the decree for ejectment should also have been secured within a period of five years from March, 1960, which was the date of the completion of the building. The decree having been granted after the said date, it was held that the decree was inexecutable and consequently the execution application was dismissed. On appeal, the learned Additional District Judge, Hoshiarpur, accepted the view expressed by the trial Court and affirming the judgment dismissed the appeal. Hence the present second appeal.

3. The notification on the provisions of which the whole argument turns may first be set down :--

'No. 6487-ICI-65/29820, dated 30th July, 1965 In exercise of the powers conferred by Section 3 of the Punjab and Urban Rent Restriction Act, 1949 and all other powers enabling him in this behalf the Governor of Punjab is pleased to direct that the provisions of Section 13 of the said Act shall not apply in respect of decrees for ejectment of tenants in possession of buildings which satisfy the following conditions namely-

(a) buildings constructed during the years 1959, 1960, 1961, 1962 and 1963 and exempted from all the provisions of the said Act for a period of five years to be calculated from the dates of their completion, and

(b) during the aforesaid period of exemption suits for ejection of tenants in possession of those buildings were or are instituted in Civil Courts by the landlords against the tenants and decrees of ejectment were or are passed'.

4. In particular Clause (b) the above-said in the provision around which the whole controversy revolves. It was admitted before me, as it was in both the Courts, below as well that the appellant satisfies the requisite conditions of Clause (a) of the notification. The focal point in the case, therefore, is whether Clause (b) requires that a two-fold condition must always be satisfied--namely, that the suit for ejection must have been filed within the period of exemption and also that the decree of ejectment must also be obtained within the said exempt period.

5. In construing the notification above-said, what first deserves notice is that it does not stand in isolation and has to be viewed in the context of its legislative history,. This notification is one of a series of notifications issued chronologically under Section 3 of the East Punjab Rent Restriction Act (hereinafter called the Act) for over a period of well-high 20 years. The first of these which has been brought to my notice by the learned counsel for the parties is the notification No. 1120-LG(A)-51/II-411, dated the 8th March 1951 and was in the following terms :--

'Exemption to newly constructed buildings:-- In exercise of the powers conferred by Section 3 of the East Punjab Rent Restriction Act 1949, the Governor of Punjab is pleased to exempt all the buildings constructed during the years 1951 and 1952 from the provisions of the said Act for a period of five years with effect from the date of completion of any such building.'

Thereafter followed a string of notifications in identical or similar terms and these are Nos. 10665-LB-53/957, dated the 19th January, 1957; 9186-LB(Ch)-53/35123, dated the 29th December, 1955; 3941-C-III-60/45906, dated the 8th August 1960; 12431-ICI-63/45658, dated the 27th December, 1963; 14210-ICI-65/791, dated the 7th January, 1966 and 7043-ICI-66/22940, dated 18th August, 1966. Now it does not seem to be a matter of any dispute as to what was the purpose for the issuance of these notifications. The stringent and restrictive provisions of the Rent restriction Act, had come to hamper new construction in urban areas. The avowed object of these notifications was to offer a fresh incentive to the landlords for the purposes of new urban construction. To do so, a guaranteed right was sought to be given to landlords that for a period of five years at least from the completion of a new building, their larger rights as landlords, would remain untrammeled by the constricting provisions of Section 13 of the Act. A reference to the contents of these notifications pertaining both to the period prior and subsequent to the present one leaves one in no manner of doubt that the requirement of the suit should be filed within the period of exemption and the decrees should also be obtained within the said period was never contemplated earlier nor ever so expressed in the language of these notifications. I would hereafter again advert to a notification which followed the present notification of the 30th July, 1965, and the other related ones regarding houses constructed for the period from 1959 to 1963, which again appeared to be of similar import. This being so the inference seems to be inescapable that the authorities in issuing the present notification were merely continuing an identical course policy, both prior to and subsequent to the present one. There appears nothing from which it could be inferred that in the particular context of this notification alone a drastic change of policy was envisaged and the learned counsel for the respondent was unable to suggest any reason or indication that for this particular notification a sharp change of policy was contemplated.

6. Now adverting to the language of the notification it is undoubtedly true that it could have been more happily and explicitly worded. Nevertheless I find myself wholly unable to agree with the view of the Courts below that its language admits of only one construction, which they have chosen to adopt. In construing the language abovesaid it must be kept in mind that the notification was promulgated on the 30th July, 1965 and related to buildings constructed during the years 1959 to 1963. Thus it included within its ambit, buildings constructed in 1959 and 1960 and it is obvious that the five years period of exemption for these buildings which may have been completed up to the 29th July, 1960, had expired at the time of its issue. The language of Clause (b) was hence designed to cover both the past and the future institution of suits as also the past and the future decrees which may be passed in regard to those suits. It is hence that the use of the words 'are' and 'were' twice in this context of the suits and the resultant decrees became inescapable. This situation may well explain the slight obscurity of language which consequently has crept in.

7. Nevertheless even on a plain reading of Cl.(b) it is obvious that the period of exemption is related to the institution of the suits alone. The language further makes explicit that these suits may either be those which were already instituted or are to be instituted in future. The relevant part thereof reads-

'Suits for ejectment of tenants in possession of those buildings were or are instituted in Civil Courts by the landlords against the tenants'.

Now the very opening part of the notification had made reference to the decrees of ejectment which would be exempt from the requirements of Section 13. Hence it was inevitable that these decrees of ejectment were expressly referred to in Clause (b), because unless such a decree resulted or was sought there would be nothing upon which the notification can operate. However, these decrees are correlated to the suits filed and are not connected with the time and period of exemption of five years mentioned earlier. It is the filing of the suit alone which is related to the period of exemption and not the decrees which followed. To put it in another way the period of exemption is directly related to the filing of the suit whilst the resultant decree therefrom is not. Merely because the decree is related to the suit it would be impermissible to hold that such a decree also must be within the exempt period of five years. Hence the way I construe Cl (b), it requires only a single condition that the filing of the suit must be within the period of exemption. This is more so, because the filing of a suit is within the hands of a litigant but the obtaining of a decree is obviously not.

8. I have taken the above view on the language of the notification itself. However, even if it may be said that the language of the provision is equivocal and admits of two constructions then one of them has to be adopted. It is a settled canon of constructions that in such a situation the ultimate test then would be the intention of the framers of the notification. That intention seems to be obvious. It was to give a five years' exemption to the newly constructed buildings from the restrictive provisions of Section 13 of the Act. It conferred a larger right upon the landlord in order to provide him with incentives for constructing new buildings urgently required by the appealing housing shortage within the State. The clear intent was to give a substantive right to the landlords of newly constructed building that for a period of five years, the restrictive provisions of Section 13 of the Act would not be applicable to them. In effect, the notification confers a substantive right that for the said period their rights would be governed under the ordinary law of landlord and tenant unaffected by the constricting provisions of Section 13 which are heavily weighed in favour of the tenants. Was this substantive right expressly given to be set at naught, by the vagaries of civil litigation? Where the framers of the notification intending to take away with one hand what they had given by the other by providing that the decree also must be obtained within the specified period of five years? Was it an illusory right to the landlord depending upon the dilatory tactics of an obstructive defendant-tenant? Would this right be defeated by the mere fact of the decree being framed accidentally by the Court a day later from the expiry of the period of exemption? I am of the view that everything must militate against so unreasonable a construction and one which may lead to results so anomalous.

9. The appellant's case itself highlights the anomalous and curious consequences which may well flow from the construction of the notification which has been adopted by the Courts below. The building in dispute was completed in March 1960 and a five year period of exemption was to take effect from that time. Well within that period the appellant instituted the suit for ejectment on the 12th February, 1963. A protracted and tortuous trial followed and it was not till nearly 6 1/2 years after the institution of the suit that a decree was granted in favour of the appellant on the 14th August, 1969. According to the view, taken by the Courts, below the remedy of the appellant would become barred by March, 1965. Was he then chasing an illusory and fruitless remedy by carrying on the litigation? It is significant to note that had he instituted the suit for ejectment the very next day after the commencement of the period he would still have obtained a decree beyond a period of five years. With the utmost vigilance on his part, therefore, his rights and remedies would be merely futile legal pursuits. I am unable to hold that the framers of the notification could have intended such a result. One cannot easily attribute to the Legislature an intention of wanting to place a premium upon the dilatory and delaying tactics of a tenant which may enable him to defeat a substantive right by the mere passage of time. I am unaware of any other statutory provision which lays the impossible burden of obtaining a decree within a specific time upon the litigant on the pain of losing a valuable right if he fails to do so. To repeat the securing of a decree by a particular date is not within the powers of those who seek justice before the Courts of law.

10. Viewed from another angle the case of the appellant is equally entitled to succeed. As regards the buildings constructed during the years from 1959 to 1963 the exemption was first granted up to 31st December1963 by Notification No. 3941-C-III-60/45906 dated 8th August, 1960. This notification, however, was superseded by the following notification:

'Notification No. 12431-ICI-63/45658, dated 27-12-1963,--In super session of the Punjab Government Local Government Department Notification No. 3941-C-III-60/45906, dated 8th August, 1960, and in exercise of powers conferred by Section 3 of the East Punjab Rent Restriction Act, the Governor of Punjab is pleased to exempt every building constructed during the years 1959, 1960, 1961, 1962 and 1963 from the provisions of the said Act, for a period of five years with effect from the dates of its completion'

Similarly regarding the buildings constructed during the following years 1964-65 an exemption for five years was granted by the under-mentioned notification:--

'Notification No. 14210-ICI-65/791, dated 7-1-1966,--In exercise of the powers conferred by Section 3 of the East Punjab Rent Restriction Act, 1949 (East Punjab Act No. III of 1949), the Governor of Punjab is pleased to exempt every building constructed during the years 1964 and 1965 from the provisions of the said Act, for a period of 5 years from the date of its completion'

The above quoted two notifications have now been followed by the under mentioned notification dated 29th November, 1970 published in the Punjab Government Gazette of December 18, 1970 which is expressly related to them-

'No. 13701-A-4CI-70/13158,--In exercise of the powers conferred by Section 3 of the East Punjab Rent Restriction Act, 1949 (East Punjab Act No. III of 1949) and all other powers enabling him in this behalf, the Governor of Punjab is pleased direct that the provisions of Section 13 of the said Act shall not apply to buildings, exempted from the provisions of the Act for a period of five years,--vide Punjab Government Notification No. 12431-ICI-63/45658, dated 27th December, 1963 and No. 14210-ICI-65/791, dated 7th January 1966, in respect of decrees passed by Civil Courts in suits for ejectment of tenants in possession of those buildings instituted by the landlords against such tenants during the period of their exemption whether such decrees were or are passed during the period of exemption or at any time thereafter.

2. This supercedes Punjab Government Notification No. 6487-ICI-65/29820, dated 30th July, 1965 and No. 1127-ICI-66/4314, dated 14th February, 1966 issued in this behalf.'

A plain reading of the provisions of the above quoted notification makes it obvious that it would operate in a dual manner in favour of the appellant. It has been rightly argued with weight by the learned counsel for the appellant that this notification in fact merely makes explicit what was implicit in the earlier notifications. It is argued that the intention merely is to clear the obscurity of language in the notification dated 30th July, 1965 and in lucid terminology to reaffirm the intention of the framers that the fact of a decree being passed during or after the period of exemption is irrelevant to the issue.sss As long as the fundamental requirement of the suit having been instituted within the said period is satisfied, the passing of the decree after the said period would not in any way affect the validity or the executability of the same. The relevant part of the language is 'whether such decrees were or are passed during the period of exemption or at any time thereafter'. It is significant to note that five years' period of exemption was granted by the notification dated 27th December, 1963 and the notification dated 29th November, 1970 expressly makes mention thereof and relates its provisions to that earlier notification.

11. Yet again this notification supplants or supercedes the present notification dated the 30th July, 1965. It has not been denied on behalf of the respondents that the ultimate effect of the latter notification, dated the 29th November, 1970, would be that its provisions would become operative from the date of the present notification which has been the subject-matter of construction. In any case even if it be assumed entirely for argument sake that the 1970 notification was designed to bring a change of the law the appellant is entitled to the benefit thereof as long as the matter has not achieved finality and is pending before the Court in this appeal.

12. In the light of the foregoing discussion the appellant must succeed and the findings of the Courts below on issue No. 1 is hereby reversed. The judgments appealed from are set aside and it is directed that the application for execution of the decree be proceeded with expeditiously. There will, however, be no orders as to costs.

13. It remains to advert briefly to Civil Miscellaneous No. 1094-C of 1971, moved by the respondent which has been directed to be heard with the appeal. This belated application was given almost at the time of the final hearing seeking the State of Punjab be made a party in the above case. It is significant that at the very admission of the present appeal the learned counsel for the appellant had cited the notification of 29th November, 1970 which was expressly noticed in the admitting order by the learned Motion Bench. The above said notification is a statutory provision of which judicial notice can be taken independently. The prayer in this context, on behalf of the respondents, that the State of Punjab be impleaded as a party because it is the author of the above said notification is thus wholly devoid of merit. This petition, therefore, must fail and is dismissed.

14. Appeal allowed.


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