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Kishan Lal Johar Vs. Nanak Chand and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 394 of 1967
Judge
Reported in9(1973)DLT9
ActsDisplaced Persons (Compensation and Rehabilitation) Act, 1954 - Sections 29; Delhi Rent Control Act, 1958 - Sections 12
AppellantKishan Lal Johar
RespondentNanak Chand and ors.
Cases ReferredHarbans Lal v. Arjan Dass Bhasin
Excerpt:
.....from date sale certificate was granted to purchasers - limitation period ended on 29.07.1964 - held, application not time barred. - - in that judgment, their lordshids had resolved the conflict between the various decisions of the punjab high court and of other high courts relating to the applicability of the rent control acts to properties which had been sold in circumstances like the present. arjan dass bhasin, relied upon by the counsel for the tenant was not based on section 29 of the displaced persons (compensation and rehabilitation) act, 1954, and thus can be of no assistance to the appellant-tenant moreover, the facts of that case seem to suggest that the case was one of adjustment of compensation where the property was sold in 1955 and, the sale-deed was issued in 1966..........of evacuee properly. the properly became a part of the compensation pool under the displaced persons (compensation and rehabilitation) act, 1954 and was auctioned to har kishan lal and others on 2nd july, 1959. provisional possession of the property was delivered to the purchasers on 24th february, 1960 and a sale certificate was granted on 30th july, 1962. in accordance with the letter delivering provisional possession the tenant attorney to the purchasers. an application for fixation of standard rent was instituted before the rent controller on 29th july, 1964. the property was later on transferred to the present landlords. according to the landlords they became entitled to apply for fixation of standard rent only after the sale deed was executed in favor of har kishan lal and.....
Judgment:

D.K. Kapur, J.

(1) This appeal under section 39 of the Delhi Rent Control Act, 1958, is by the tenant and arises out of an application for fixation of standard rent instituted by the landlords. Property in question was originally owned by a Muslim who migrated to Pakistan and consequently the property vested in the Custodian of Evacuee properly. The properly became a part of the compensation pool under the Displaced Persons (Compensation and Rehabilitation) Act, 1954 and was auctioned to Har Kishan Lal and others on 2nd July, 1959. Provisional possession of the property was delivered to the purchasers on 24th February, 1960 and a sale certificate was granted on 30th July, 1962. In accordance with the letter delivering provisional possession the tenant attorney to the purchasers. An application for fixation of standard rent was instituted before the Rent Controller on 29th July, 1964. The property was later on transferred to the present landlords. According to the landlords they became entitled to apply for fixation of standard rent only after the sale deed was executed in favor of Har Kishan Lal and others on 30th July, 1962. The tenant contested this application on the ground that it was barred by time. The Additional Rent Controller held that the limitation period for moving the application started from the date of the coming into force of the Delhi Rent Control Act, 1958 on 9th February, 1959 and, hence the petition should have been brought by reason of Section 12 of the Act within two years of the coming into force of the Act. In short, the Additional Rent Controller held that the limitation period expired on 10th February, 1961 and the application was hopelessly barred by time.

(2) On appeal to the Rent Control Tribunal by the landlords, it was held that the limitation period only started from the date the sale certificate was granted to the purchasers. Relying on Section 29 of the Displaced Persons (Compensation and Rehabilitation) Act 1954, it was held that the letting of the properly took place only when the tenant became a tenant by virtue of this Section, as previously the tenant is only an allottee or a licensee under the Custodian or the Central Government. Thus, the Tribunal held that the limitation period came to an end on 29th July, 1964 and hence the application was filed in time.

(3) He tenant has appealed to this Court and reliance is placed on an unreported judgment of Deshpande J. in Harbans Lal v. Arjan Dass Bhasin. In that case it was held that the letting took place when provisional possession was delivered to the landlord. In that judgment, mention of another decision in Krishan Kumar v. Des Raj was also made. Apparently no referrence was made to Section 29 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954. I had myself an occasion to deal with this question in a decision reported as M/s. R. Wright and Partners (Private) Ltd. New Delhi v S. Jaswant Singh and others, I had there followed the Supreme Court judgment in Bishan Paul v. Mothu Ram. It is quite clear that a tenancy cannot be created by the giving of provisional possession which by itself does not create any tenancy at all. In that judgment, their Lordshids had resolved the conflict between the various decisions of the Punjab High Court and of other High Courts relating to the applicability of the Rent Control Acts to properties which had been sold in circumstances like the present. Their Lordships held that the properly was really transferred not on the date of the sale certificate but on the date of the payment of the compensation. Their Lordships approved of the judgment of the Punjab High Court in Roshanlal Goswami v. Gabind Ram. and held that a landlord's right to bring a suit for ejectment under the Rent Control Act depended on the issue of the sale certificate In other words, their Lordships held that the limitation started on the dale of the confirmation of the sale. Reference was also made to the decision in Bombay Salt and Chemical Industries v. L.J. Johnsan, and several other decisions of the Punjab High Court, Rnjasthan High Court and Allahabad High Court relating to the point of time at which the Rent Control Act became applicable to the property was discussed.

(4) In my view the tenancy in the present case was created by the operation of Section 29 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 According to that Section, persons inoccupation of property sold were deemed to become tenants of the transferees on the same terms and conditions as to payment of rent as they previously held the property. The operative part of the Section runs as under:-

'WHEREany persons to whom the provisions of this section apply, is in lawful possession of any immovable property of class notified under subsection (2), which is transferred to any other person under the provisions of this Act, then. notwithstanding anything contained in any other law, such person shall, without prejudice to any other right which he may have in the property, be deemed to be a tenant of the transferee on the same terms and conditions as to payment of rent or otherwise on which he held the property im- mediately before the transfer.'

1SAO 184 of 1968 decided on. 27th August. 1971 4 Aib 1966 Sc 1994

2SAO No 51 of 1969 decided on 9th April. 1971 6 (1963) 65 Plb 862

: AIR1958SC289

Thus, tenant in the present case became a tenant only after this provision came into application. When did this provision apply Obviously on the date of the transfer to the landlords which was effected on 30th July, 1962. Before that date the tenant was only holding the property as an alottee or a licensee and the landlords were only Cealing with the property as assignees of the Central Government, If the tenant had established in the light of Bishan Paul v. Mothu Ran, that the effective date of transfer was earlier than this sale certiticate then he might have been able to say that the tenancy in the preseat case commenced even before the sale certificate was issued. But, this is not the tenant's case.

(5) I have held in the aforementioned judgment in M/s R Wright and Partners (Private) Ltd., New Delhi v. S. Jaswant Singh and others, that the limitation period under Section 12 of the Act is only two years. The two years period start from 9th February, 1958 if the premises were let before the commencement of the Act. Were these premises let before the commencement of the Act They were obviously not, because the property at that time belonged to the Central Government and this Act did not apply at all by reason of Section 3 of the Act. Did the Act come into application to the premises on the date of the sale dated 2nd July, 1959 This would depend on whether the property can be deemed to be let on the date. As I have already pointed out this property has to be deemed to be let on the date of the transfer by reason of Section 29 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954. it is thereforee, not possible to read the dale of the auction as the date of the transfer because there is nothing on record to show that the transfer was effected on the date. Subsequently provisional possession of this property was delivered to the predecessors in interest of the landlords on 24th February, 1960. This auction was not a transfer in law because the rights of the parlies would still depend on the existing situation under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 and the rules made therein. It is only after the sale certificate was issued on 30th July. 1962 that the property stood transferred to the landlords or their predecessors- in-interest and the tenant became by legal fiction a tenant in the eye of law Thus, the limitation period for making an application for fixation of standard rent would commence from the date of the letting which was after the amendment of the Act and thus sub-clause (b) of Section 12 of the Delhi Rent Control Act, 1958, would apply. The said subclause runs as follows :-

'INthe case of any premises let after the commencement of the Act,-(i) where the application is made by the landlord, within two years from the date on which the premises were let to the tenant against whom the application is made ;

(II)where the application is made by the tenant, within two years from the date on which the premises were let to that tenant;. This provision makes it quite clear that the limitation period is to start from the date of the letting to the particular tenant against whom. the application is made. As I have already held the letting in this case took place on 30th July, 1962 by operation of the deeming provision in Section 29 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 and hence this application is within time. I thus agree with the decision of the Rent Control Tribunal.

(6) Counsel for the tenant-appellant contends that as there is apparently a conflict between the decision in Harbans Lal v. Arjan Dass Bhasin, and the decision in M/s. R. Wright and Partners (Private) Ltd., New Delhi v .S. Jaswant Singh and others, this matter should be referred to a Division Bench.

(7) I may point out that there was a similar conflict of several decisions of the Punjab High Court and of the other High Courts on the same question which was resolved by the aforementioned decision of the Supreme Court. I am thereforee, only following the decision of the Supreme Court, already delivered on this very question. In my view, the decision in Harbans Lal v. Arjan Dass Bhasin, relied upon by the counsel for the tenant was not based on Section 29 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, and thus can be of no assistance to the appellant-tenant Moreover, the facts of that case seem to suggest that the case was one of adjustment of compensation where the property was sold in 1955 and, the sale-deed was issued in 1966 and, hence the conditions mentioned by the Supreme Court in Bishan Paul's case must have been satisfied. Thus, it depends in each case as to what is the dale of transfer of the properly to the landlord. Once the date is determined the period mentioned in Section 12(b) of the Delhi Rent Control Act, 1958 is available for the landlord to move the application. I have already mentioned in R. Wright's case aforementioned that it is possible that the landlord may get another two full years to move the application because of the express provisions of Section 29 of the Act. In that Section it is specified that for two years after the transfer the rights of the parties are to be governed by the special provision contained in Section 29, and thus it may be that for two years the Rent Control Act does not apply to the premises because a special Act, namely Section 29(1) of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 and its proviso will govern the conditions both regarding the rate of rent as well as the grounds of ejectment. Thus, it is possible to conclude that the Rent Control Act does not come into operation qua this property till the expiry of the two years specified in Section 29 of the. Act.

(8) In any case, this application for fixation of standard rent is not barred by time and hence I have to dismiss this appeal. In the circumstances, I make no order as to costs.


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