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Manakchand Vs. Bansidhar and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCriminal Revn. No. 57 of 1949
Judge
Reported inAIR1950Raj29
ActsPrevention of Eviction Order, 1942 - Sections 4 and 8
AppellantManakchand
RespondentBansidhar and anr.
Appellant Advocate Hastimal, Adv.
Respondent Advocate Ugam Raj, Adv. for; Chaitan Das, Adv.
DispositionRevision dismissed
Cases ReferredGeedra Devi v. Kedarnath
Excerpt:
.....and may impose a fine on the landlord which may extend to a figure equivalent to a year's rent of the house. 51--whereas representations have been made to government that the benefits of the rent restriction order, 1942, and the prevention of eviction order, 1942, should be extended to tenants of shops also, and government are satisfied that circumstances exist which justify the claim they have by virtue of all the authority vested in them been pleased to order that the above two orders shall be extended to shops also as from the day of the publication of this notification, subject to this modification that the restriction as to the increase of rent shall be 75 per cent. whatever is provided, is, that the prevention of eviction order, 194?, extends to shops as well. 7. i agree,..........and may impose a fine on the landlord which may extend to a figure equivalent to a year's rent of the house. 6. any compensation ordered to be paid under the preceding clause shall be recoverable as a fine inflicted by the court. 7. nothing herein contained shall affect the right of the court to take action against the landlord in connection with the falsity of any statement made in the affidavit submitted by him. 8. notwithstanding anything hereinbefore contained, or the provisions of any previous notification no order to vacate a house shall issue against a servant of the state, and no notice already issued shall be effective, if such servant agrees to an increase of 30 per cent. in the rent of the house in his occupation. 9. every landlord approaching a court with a notice.....
Judgment:

Datta, J.

1. This is an application to revise the order of the Sessions Judge, Churu, dated 6th September 1949. The short question in this revision is that whether the Notification No. 19 dated 17th March 1917 making an amendment in the Prevention of Eviction Order 1942, Bikaner State, with regard to the eviction from 'houses' applies to 'shops' also or not.

2. The applicant Manakchand applied in the Court of the Tehsildar, Churu under Notification No. 19 dated 17th March 1947 to evict Bansidhar and Mahadeo from the shop which belonged to the applicant and which was rented by him to Bansidhar and Mahadeo. The Tehsildar dismissed this application on the ground that the Notification No. 19 does not apply to shops and this order of Tehsildar was upheld by the Sessions Judge, Churu. Notification No. 19 dated nth of March 1947 runs as follows:

'In modification of this office Notification No. 80, dated 17th October 1946, the Government are pleased to order that the following amendments shall be made in the Prevention of Eviction Order, 1942:

The following clauses shall be added after Clause 3 of the said Order:

'4. If the house is bona fide required by the landlord for his own occupation, be may serve a notice on the tenant through the Court of a Magistrate of 1st or 2nd class to vacate the house within 60 days after service of the notice:

Provided that the Magistrate shall not issue any such notice to the tenant unless the landlord files an affidavit before him that he requires the house for his own occupation or has no other accommodation available for his immediate domestic requirements. 5. After the expiry of the period of notice the Court, shall if satisfied that the landlord needs the house for his own use or has no other accommodation available to meet his immediate domestic requirements make an order for the delivery of possession to the landlord:

Provided that if the house is not occupied by the landlord within a month of its delivery to him, or if it is relet before the expiry of 12 months from the delivery thereof to the landlord, the Court may, on complaint made by the outgoing tenant within a period of three months, and on being satisfied after enquiries as to the correctness of the complaint, take steps to place the tenant in occupation of the house on the terms and subject to the conditions on which he was holding at the time of his eviction, or order such compensation to be paid to the tenant as the Court considers reasonable, and may impose a fine on the landlord which may extend to a figure equivalent to a year's rent of the house. 6. Any compensation ordered to be paid under the preceding clause shall be recoverable as a fine inflicted by the Court.

7. Nothing herein contained shall affect the right of the Court to take action against the landlord in connection with the falsity of any statement made in the affidavit submitted by him.

8. Notwithstanding anything hereinbefore contained, or the provisions of any previous Notification no order to vacate a house shall issue against a servant of the State, and no notice already issued shall be effective, if such servant agrees to an increase of 30 per cent. in the rent of the house in his occupation.

9. Every landlord approaching a Court with a notice to be served on his tenant shall deposit the necessary process fee for service of notice on the tenant, and unless the deposit is made, or freshly made for the issue of a fresh notice, no process will issue from the Court.'

3. The appellant's learned counsel has strenuously contended before us, that the word 'house' in the above mentioned Notification includes ''shop' also, because the Prevention of Eviction Order, 1942 of which the Notification No. 19 is an amendment, was extended to 'shops' also through Notification No. 61 dated 9th December 1912 of the Government of Bikaner. The Prevention of Eviction Order, 1942, and Notification No. 51 dated 9th December 1942 run as follows:

'No. 38.--Whereas it is necessary to supplement the Rent Restriction Order, 1942, and further to provide some restriction on the right of landlords to evict tenants from their residence. His Highness' Government are pleased, in exercise of the power vested in them by Rules 81 (2) (bb) (ii), Defence of India Rules, 1939, to make the following Order:

1. (a) This Order will be called the Prevention of Eviction Order, 1842.

(b) It shall come into force at once.

2. The terms 'landlord' and 'house' shall have the same meaning in this Order as they have in the Rent Restriction Order of 1942.

3. No notice of eviction served by a landlord on his tenant requiring him to vacate his house on or after 30th day of June, shall be valid, and no action would be open under it either in Court or otherwise:

Provided that nothing herein contained shall be a bar to eviction for non-payment of rent or for any other material breach of the terms of the tenancy.' 'No. 51--Whereas representations have been made to Government that the benefits of the Rent Restriction Order, 1942, and the Prevention of Eviction Order, 1942, should be extended to tenants of shops also, and Government are satisfied that circumstances exist which justify the claim they have by virtue of all the authority vested in them been pleased to order that the above two Orders shall be extended to shops also as from the day of the publication of this Notification, subject to this modification that the restriction as to the increase of rent shall be 75 per cent. of the average rent received for any shop during the twelve months ending on 30th April 1942.'

4. We feel much difficulty in agreeing with the learned counsel for the applicant that the word 'house' occurring in Notification No, 19 dated 17th March 1947 includes shop also.

5. The definition of the 'house' given in the Bent Restriction Order, 1942, runs as follows:

'(1) 'House' means a building or part of a building suitable

(a) for occupation as a residence or

(b) for accommodating a school, hospital or other institution

and includes any grounds or outhouses, if any, appurtenant to such building or part of a building.'

6. From this definition, it is clear that the word 'house' does not include 'shop' and the Prevention of Eviction Order, 1942, as it originally stood, applied in the face of this definition of the word 'house,' to residential houses only and not to shops. Afterwards, when on the representation of the public, the Government of Bikaner felt the necessity of applying the Prevention of Eviction Order 1942, to shops also, Notification No. 51, dated 9th December 1942, stated above, was issued. In this notification it is nowhere provided that the word 'house' when and wherever it may occur in the Prevention of Eviction Order, 1942, will include 'shops' also. Whatever is provided, is, that the Prevention of Eviction Order, 194?, extends to shops as well. The effect of this notification, at the utmost, can be taken to mean, that all the provisions of the Prevention of Eviction Order, 1949, enacted previous to the Notification No. 61, dated 9th December 1942, applied to shops also and the word 'shop' can be inserted, after the word 'house,' wherever it occours in the Prevention of Eviction Order, 1942. It cannot be inferred, that after the enactment of the Notification No. 51, the legislating authority of Bikaner could not add clauses to the Prevention of Eviction Order, 1942, which applied to houses only. In our opinion, the legislating authority of Bikaner was fully empowered to make additions to the Prevention of Eviction Order 1942, after the date of the Notification No. 61, which addition applied to 'houses' only or to 'shops' only. The intention of the legislating authority of Bikaner, that whether the clauses added were meant to apply to 'houses' only or to both 'houses' and 'shops' can be inferred from the words and language used in the addions. The additition made by the Government of Bikaner, with which we are concerned in the present application, is that made under Notification No. 19 dated 17th March 194T stated above. As far as the wordings of this notification go, it does not include the word 'shop.' In the proviso to Clause 4 of the notification it is provided that the Magistrate shall not issue any such notice to the tenant, unless the landlord files an affidavit before him that he requires the house for his own occupation or has no other accommodation available for his immediate domestic requirements. The word 'or' occurring in this proviso means 'and.' In the face of this proviso, it can be said, without doubt, that this Notification No. 19 dated 17th March 1947, was meant to apply to residential houses only, and not to shops, because the word 'domestic requirements cannot be used in connection with shops. Moreover, in Clause 8 of the notification, it is provided that notwithstanding anything hereinbefore contained or the provisions of any previous notification no order to vacate a house shall issue against a servant of the State, and no notice already issued shall be effective, if such servant agrees to an increase of 30 per cent. in the rent of the house in his occupation. A servant of the State cannot fee expected to live in a shop. Clause 8 also settles the matter beyond doubt, that it was a residential house and not a shop that was in the contemplation of the authority enacting the Notification No. 19 dated 17th March 1947. We are also supported in our opinion by an unreported judgment of the Judicial Committee of Bikaner given in Geedra Devi v. Kedarnath, in case No. 35 dated 18th February 1948 decided on 5th January 1949 in which it was held that Notification No. 19 dated 17th March 1947 does not apply to a shop. Although we do not agree with all the reasoning given in this judgment but we do not feel any difficulty in agreeing with the result that Notification No. 19 dated 17th March 1947 does not apply to shops but to residential houses only. For the reasons given above, we dismiss the application and uphold the judgment of the Sessions Judge, Churu.

Bapna, J.

7. I agree, but would like to add a few words. This case is a striking example of the difficulties and obscurity which arise in legislation by reference to other statutes. By Notification No. 51, dated 9th December 1942, the provisions of the Bikaner Rent Restriction Order, 1912, and the Bikaner Prevention of Eviction Order, 1942, which were applicable to houses as defined in the former Order, were directed to be applicable to shops also. The simple expedient of amending the definition of 'house' to include a shop was not resorted to, and as such Notification No. 61 stood as a separate piece of legislation in respect of shops, and the provisions relating to the eviction or restriction of rent in the two Orders were to be read as having been incorporated by reference in the legislation regarding shops. It is apparent from a perusal of the provisions of the Prevention of Eviction Order, 1949, which have been quoted by my learned brother in extenso, that it only purported to affect certain notices to quit. The said Order was, however, amended by Notification No. 80 of 1946, and subsequently by Notification No. 19 of 1947, which laid down elaborate provisions as to how the landlord of a house has to proceed for eviction of the tenant in certain cases. These provisions, which are contained in Sections 4 to 9, provide a speedy remedy by approaching a Magistrate in oases where the landlord required the house for his own occupation. This amendment did not touch the ordinary remedy in a civil Court in cases mentioned in Section 3 of that Order, The entire Order, therefore, left the landlord to pursue his remedy in a civil Court in matters which came within the scope of Section 3, and in a criminal Court in matters which came within the scope of Section 4. Since a legislative authority is presumed to know the state of law, the omission to make any further provision with respect to shops at the time of amending the law relating to houses, must be deemed to have been so done deliberately leaving the landlords of shops to the position in which they were placed by Notification No. 51, Even in the Notification No. 31 there is no provision-that the Rent Restriction Order and the Prevention of Eviction Order would be applicable as then existing or as may be amended from time to time. In that state of law it is obvious that a landlord cannot take advantage of the provisions contained in Sections 4 to 7, Prevention of Eviction Order, which were added in 1946 and 1947. These provisions had no existence in 1942, when Notification No. 51 was issued, and it could not be said that they were in contemplation of the Legislature at the time of issuing of Notification No. 51. As discussed by my learned brother, the language used in the proviso to Sections 4 and 9 (8?) clearly indicates that these new provisions could only refer to residential houses, and could not by any stretch of imagination be extended to shops. I, therefore, agree that this revision should be dismissed.


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