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Kailash Chand Gupta and anr. Vs. Financial Commissioner, Haryana, Chandigarh and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ Petn. No. 3587 of 1978
Judge
Reported inAIR1981P& H374
ActsHaryana Urban (Control of Rent and Eviction) Act, 1973 - Sections 2 and 13; East Punjab urban Rent Restriction Act
AppellantKailash Chand Gupta and anr.
RespondentFinancial Commissioner, Haryana, Chandigarh and ors.
Cases Referred and Karnail Singh v. Vidya Devi
Excerpt:
- sections 80 (2) & 89 & punjab motor vehicles rules, 1989, rules 85 & 80: [t.s. thakur, cj, jasbir singh & surya kant, jj] appeal against orders of state or regional transport authority imitation held, a stipulation regarding the period of limitation available for invoking the remedy shall have to be strictly construed. that is because any provision by way of limitation is in the nature of a restraint on the remedy provided under the act. so viewed two inferences are clear viz., (1) sections 80 and 89 of the act read with rule 85 of the rules make it obligatory for the authorities making the order to communicate it to the applicant concerned and (2) the period of limitation for any appeal against the order is reckonable from the date of such communication of the reasons would imply..........for the ejectment against the respondent in 1974-75 on the ground of personal requirement. the rent controller vide order dated august 31, 1976, (annexure p.1) held that in view of the amendment of section 2 of the haryana urban (control of rent and eviction) act, 1973, made by haryana act no. 14 of 1976, which come into force on february 13, 1976, the ground of personal requirement for getting the respondent evicted was not available. the petition of the petitioners was consequently dismissed. the petitioners preferred an appeal against the order of the rent controller which was dismissed by the appellate authority vide order dated april 4, 1977, (annexure p.2). the appellate authority upheld the view taken by the rent controller that the petitioners could not secure the eviction of.....
Judgment:
ORDER

1. These petitioners are the owners-landlords of the house in dispute situate within the town of Palwal, District Gurgaon, which is in occupation of the as respondent as a tenant for the last 30/- 35 years. The petitioners filed a petition for the ejectment against the respondent in 1974-75 on the ground of personal requirement. The Rent Controller vide order dated August 31, 1976, (Annexure P.1) held that in view of the amendment of Section 2 of the Haryana Urban (Control of Rent and Eviction) Act, 1973, made by Haryana Act No. 14 of 1976, which come into force on February 13, 1976, the ground of personal requirement for getting the respondent evicted was not available. The petition of the petitioners was consequently dismissed. The petitioners preferred an appeal against the order of the Rent controller which was dismissed by the appellate authority vide order dated April 4, 1977, (Annexure P.2). the appellate authority upheld the view taken by the Rent controller that the petitioners could not secure the eviction of the respondent on the ground of personal requirement after the coming in to force of Haryana Act No. 14 of 1976. The petitioners then attempted revision which was dismissed by the Financial Commissioner (Revenue) vide order dated May 1, 1978, (Annexure P. 3) upholding the view taken by the Rent Controller as also the Appellate Authority. It is against the orders P. 1, P. 2 and P. 3 that the present writ petition is directed.

2. Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973, (hereinafter the Act) deals with the eviction of tenants. Section 13(3) reads:--

'13(3). A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession-

(a) in the case of a residential building if,-- (i) he requires it for his own occupation, is not occupying another residential building in the urban area concerned and has not vacated such building without sufficient cause after the commencement of the 1949 Act in the said urban area. x x x x x x

3. Section 2(d) and (g) of the Act define 'non-residential building' and 'residential building' respectively. These two sub-sections before the amendment of Section 2(d) by Haryana Act No. 14 of 1976 red as under:--

'2(d) 'non-residential building' means a building being used solely for the purpose of business or trade;

2(g) 'residential building' means any building which is not a non-residential building.'

4. The definition of non-residential building contained in Section 2(d) was amended by Haryana Act No. 14 of 1976 and it reads as under:

'2(d) 'non-residential building' means a building being used-

(i) mainly for the purpose of business or trade; or

(ii) partly for the purpose of business or trade and partly for the purpose of residence, subject to the condition that the person who carries on business or trade in the building resides there: Provided that if a building is let out for residential and non-residential purposes separately to more than one person, the portion thereof let out for the purpose of residence shall not be treated as anon-residential building. Explanation:--Where a building is used mainly for the purpose of business or trade, it shall be deemed to be a non-residential building even though a small portion thereof is used for the purpose of residence.'

5. Under Section 2(d) before amendment building solely used for the purpose of business or trade was anon-residential building and a building piiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiily used for the purpose of business and trade was thus covered by the definition of residential building given under Section 2(g). After the amendment of Section 2(d) by Haryana Act No. 14 of 1976, a building partly used for the purpose of business or trade became a non-residential building with the result that a landlord could not seek ejectment of the tenant on the ground of personal requirement under Section 13(3)(a)(I) of the Act.

6. The respondent is admittedly a practicing lawyer at Palwal. The petitioners filed a petition for the ejectment of the respondent in 1974-75, that is before the Haryana Act No. 14 of 1976 came into force on Feb 13, 1976. The Rent Controller, Appellate Authority and the Revisional Authority (Financial Commissioner Revenue) have consistently held that the amendment of Section 2(d) of the Act made by Haryana Act No. 14 of 1976 shall govern the petition filed by the petitioners in 1974-75 and as such the petitioners cannot avail of the provisions contained in Section 13(3)(a)(I) of the Act for securing the ejectment of the respondent.

7. The contention of the learned counsel for the petitioners is that Haryana Act No. 14 of 1976 came into force on February 13, 1976, and it has not been made applicable with retrospective effect. The petitioners had a right to seek the ejectment of the respondent on the ground of personal requirement under Section 13(3)(a)(I) of the Act in 1974-75 when they filed the petition for ejectment against him. In view of the fact that Haryana Act No. 14 of 1976 has been enforced prospectively and not retrospectively it shall not adversely affect the right of the petitioners to claim eviction of the respondent on the ground of personal requirement. The authorities have wrongly held otherwise. The impugned orders are liable to be quashed on that ground. In my opinion, the contention of the learned counsel for the petitioners must prevail.

8. In Moti Ram v. Suraj Bhan, AIR 1960 SC 655, the impact of Section 13(3)(a)(iii) of the East Punjab urban Rent Restriction Act as amended on the proceedings pending before the Rent Controller or the Appellate Authority was considered and their Lordships held that where an amendment affects vested rights the amendment would operate prospectively unless it is expressly made retrospective or its retrospective operation follows as a matter of necessary implication. It was further held that where the legislature intends to make substantive provisions of law retrospective in operation it generally makes its intention clear by express provision in that behalf. It was consequently held that Section 13(3)(a)(iii) as amended did not apply to proceedings which were pending before the Rent Controller or before the Appellate Authority at the time when the amendment was made.

9. A similar point arose in Dev Raj v. union of India, (1973) 75 Pun LR 270; (AIR 1974 Punj 65)(FB). It was held that retrospective operation is not to be given to a statute so as to impair an existing right or obligation otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. A statute is not to be construed to operate retrospectively so as to take away or impair a vested or substantive right unless the intention is made manifest by language so plain and unmistakable that there is no possibility of any choice of meanings. If the amendment is expressed in language which is capable of either interpretation, it ought to be construed as prospective only.

10. The petitioners filed the petition for ejectment against the respondent in 1974-75 under Section 13(3)(a)(I) of the Act. The right of the petitioners to secure ejectment of the respondent under Section 13(3)(a)(i) of the Act is substantive. This substantive right could be negatived by Act No. 14 of 1976 provided it had been enforced retrospectively. This Act which came into force on February, 13, 1976, has not been made applicable retrospectively with the result that it will apply prospectively. The Haryana Act No. 14 of 1976, therefore, could not affect the substantive right of the petitioners under Section 13(3)(a)(i) of the Act which they had enforced in 1974-75.

11. The learned counsel for the respondent has argued that Act No. 14 of 1976 applies retrospectively in spite of the fact that it has not been done so specifically. The retrospective effect of an Act can be inferred from the intention of the Legislature as reflected therein. Haryana Act No. 14 of 1976 was enacted for the benefit of the tenants. The Legislature did intend to cover the cases which had been initiated before it came into force. It has, therefore, been rightly held by the authorities in the impugned orders that the petition for ejectment filed by the petitioners against the respondent in 1974-75 would be governed by Haryana Act No. 14 of 1976. Reliance has been placed on Smt. Safali Roy Chowdhary v. A. K. Dutta, AIR 1976 SC 1810, Channan Singh v. Smt. Jai Kaur, AIR 1970 SC 349, Suresh Kumar v. Bhim Sain, ILR (1979) 1 Punj and Har 225 and Karnail Singh v. Vidya Devi, (1980) 2 Ren CJ 188. I see no force in the contention of the learned counsel for the respondent. The ratio of the authorities relied upon by the learned counsel for the respondent has no application to the facts of the case under consideration. Haryana Act No. 14 of 1976 has neither been made applicable retrospectively nor does it contain any provision which would make it so applicable by necessary implication or intendment.

12. In view of discussion above, I accept the writ petition and quash the impugned orders of the Rent Controller dated August 31, 1976, (Annexure P. 1), of the Appellate Authority dated April 4, 1977, Annexure P. 2) and of the Revisional Authority (Financial Commissioner Revenue) dated May 1, 1978, (Annexure P. 3). No order as to costs.

13. The parties through their counsel are directed to appear before the Rent Controller on July 27, 1981, who will proceed to decide the petition of the petitioners for ejectment of the respondent under Section 13(3)(a)(i) of the Act on merits.

14. Petition allowed.


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