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Jamna Lal Mohan Lal Vs. Barkat Ali - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtRajasthan High Court
Decided On
Case NumberD.B. Civil Revision No. 177 of 1978
Judge
Reported in1986(1)WLN350
AppellantJamna Lal Mohan Lal
RespondentBarkat Ali
DispositionPetition dismissed
Cases ReferredIn Juvabhai Purshottam v. Chhagan Karsen
Excerpt:
rajasthan premises (control of rent & eviction) act, 1950 - section 15--period of 5 years--computation of--held, period prior to 29-9-75 in not excluded;the words 'at any time' do not exclude the period prior to 29-9-75, i.e. the total period of 5 years from the date of obtaining possession. if within a period of 5 years, the premises are let out for commercial and business purposes, then the evicted tenant has a right to move the court to be put in possession of the premises.;(b) rajasthan premises (control of rent & eviction) act, 1950 - section 15--amendment--effect of--period of restriction has been extended to five years incase of premises for commercial and business purposes but it remains same 1 year in case of premises for residential purpose;it is true that under the old.....milap chand jain, j.1. by order dated july, 8, 1980, the learned single judge has referred this revision petition to the larger bench as the revision petition involves an important question of law as to the interpretation of section 15 of the rajasthan premises (control of rent and eviction) act, 1950 (for short 'the act') as amended by the rajasthan premises (control of rent and eviction) (amendment) ordinance, 1975 (ordinance no. 26 of 1975) promulgated on september 29, 1975, which was subsequently replaced by the rajasthan premises (control of rent and eviction) (amendment) act, 1976 (act no. 14 of 1976).2. the facts leading to the present revision petition are, briefly stated as under:the non-petitioner no. 1 barkat ali instituted a civil suit no. 344 of 1967 against the petitioners.....
Judgment:

Milap Chand Jain, J.

1. By order dated July, 8, 1980, the learned Single Judge has referred this revision petition to the larger Bench as the revision petition involves an important question of law as to the interpretation of Section 15 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short 'the Act') as amended by the Rajasthan Premises (Control of Rent and Eviction) (Amendment) Ordinance, 1975 (Ordinance No. 26 of 1975) promulgated on September 29, 1975, which was subsequently replaced by the Rajasthan Premises (Control of Rent and Eviction) (Amendment) Act, 1976 (Act No. 14 of 1976).

2. The facts leading to the present revision petition are, briefly stated as under:

The non-petitioner No. 1 Barkat Ali instituted a civil suit No. 344 of 1967 against the petitioners for eviction on the ground that he needs the suit shop for carrying on business of stationery by his son Abbas Ali and the suit was decreed on August 19, 1968. The decree-holder obtained possession of the suit-shop on August 5, 1972. The petitioners submitted an application under Section 15 of the Act on the ground that after obtaining the possession of the suit-shop, the same has not been put to use or purpose for which, the decree was obtained. The decree-holder's son Abbas Ali continues to do his business at Baneda. The decree holder has let-out the suit-shop on a monthly rent of Rs. 51/- to non-petitioner No. 2 M/s Suwalal Kanhaiyalal and Company on November 5, 1973. It was alleged that the decree-holder has played fraud in obtaining the decree. It was prayed that possession of the suit-shop may be restored to the petitioner. The application was filed on January 10, 1974.

3. The decree-holder submitted reply to the application denying the allegations. It was averred that Abbas Ali occupied the suit-shop and carried on business there for about 15 months and, there-after, on account of ill-health, he left Bhilwara. It was, also averred that the decree holder's father Abdul Rehman had gifted the shop to Liyaqat Ali and Ahmed Ali. Both Liyaqat Ali and Ahmed Ali had let-out the suit-shop to non-petitioner No. 2 An objection was taken that application under Section 15 of the Act is not maintainable. The learned Civil Judge, Bhilwara after recording the evidence of the parties, dismissed the application on November 13, 1976. The learned Civil Judge found that Section 15 of the Act is retrospective in operation. However, he further found that the appellants have failed to prove that the decree-holder did not use the suit-shop for carrying on business. He further found that the suit-shop had been let out by Liyaqat Ali and the will (Ex.1) does not appear to be forged. He dismissed the application considering the nature of the provision to be discretionary. It was observed by him that the tenant-non-petitioner No. 2 has taken the premises on rent and is doing his business at the suit shop. The shop was let out by Liyakat Ali and this fact has also appeared on record that the title vests in Liyaqat Ali and Ahmed Ali. It was also considered by the learned Civil Judge that the petitioners are already doing business in a nearby shop. On these basis, the learned Civil Judge did not think it proper to restore possession of the suit-shop to the petitioners, even assuming that the suit-shop was not used for business by Abbas Ali.

4. The petitioner preferred an appeal against the order of the learned Civil Judge. The learned District Judge, however dismissed the appeal on February 17, 1978. The learned District Judge found that the provision of Section 15 is not retrospective in operation. He further found that it is proved that Abbas Ali did business in the suit-shop within the period as provided in Section 15 of the Act. He further found that the petitioners have failed to prove that the suit-shop was let out within a period of one year i.e. before August 5, 1973. In view of these findings, the appeal was dismissed.

5. Dis-satisfied with the order of the learned District Judge, the petitioners have filed this revision petition. It is an admitted case of the parties that the suit-shop was let out to non-petitioner No. 2 on 5-11-1973. The rent-note in respect of the suit-shop, has been placed on record. Section 15 of the Act as it stood on January 10, 1974 i.e. the date of filing of the application, was as under:

Section 15. Eviction from premises required for personal use;

(2) Where a decree for eviction of any premises has been passed by the Court on any of the grounds specified in Clause (h) of Sub-section (1) of Section 13 and the landlord fails to utilise the premises to the use or purpose for which such eviction shall have been decreed within two months of obtaining possession thereof or at any time within one year of obtaining possession of the premises lets the whole or any part thereof to any person other than evicted tenant, the Court which passed the decree may on the application of the evicted tenant place him in possession of the premises.

6. By Section 11 of the Amending Ordinance No. 26 of 1975 for Section 15 of the Principal Act, the following section was substituted; namely:

15. Restoration of possession to evicted tenant : Where a decree for eviction of any premises has been passed by the court against a tenant on any of the grounds specified in Clause (h) of Sub-section (1) of Section 13 and the landlord fails to utilise the premises to the use or purpose for which such eviction shall have been decreed within two months of obtaining possession thereof, or in the case of premises let out for residential purposes, at any time within one year and in the case of premises let out for commercial or business purposes, at any time within five years of obtaining possession, lets the whole or any part thereof to any person other than the evicted tenant the court which passed the decree may, on the application of the evicted tenant, place him in possession of the premises.

7. The Ordinance was replaced by the Amending Act No. 14 of 1976. By Section 11 of the Amending Act, it was provided that for Section 15 of the Principal Act, the above quoted section as amended by the Ordinance, shall be substituted.

8. In the statement of objects and reasons, it was stated that one of the change brought about in the Principal Act by the Ordinance, was:

(9) If the landlord failed to occupy the premises from which a tenant had been got ejected on the ground of personal necessity within two months of obtaining possession thereof or re-let such premises within one year in case of residential premises or within five years in case of commercial permises, the court might restore the possession of the same to the evicted tenant.

9. Amendment in Section 15 of the Act was made on September 29, 1975, when the application of the petitioners was pending in the court of Civil Judge, Bhilwara. A perusal of un-amended and amended provisions of Section 15 of the Act, would show that a change has been brought about in respect of the premises let out for commercial or business purposes. Under the amended provision, the application could be presented by the evicted-tenant:

Firstly, when the landlord fails to utilise the premises for the use or purpose for which eviction was sought, within a period of two months from obtaining possession; or

Secondly, when the landlord, at any time within five years of obtaining possession of the premises, lets the whole or any part thereof to any person other than the evicted tenant.

10. In either of two situations, the application by the evicted tenant could be filed. When either of the two conditions is proved, it is discretionary with the court to allow the application and restore possession to the evicted tenant, in case, the evicted tenant fails to prove that the premises were not used within two months of obtaining the possession thereof to the use or purpose for which eviction was sought or when the evicted tenant fails to prove that the premises were let out within one year, then the application of the tenant is liable to be dismissed. In the amended provision, the period of 1 year has been extended to 5 years in case of the premises let out for commercial or business purposes.

11. The question that arises in the present case, is, whether the amended provision of Section 15 will apply to the premises, which have been let out after 1 year but before the commencement of the Amending Ordinance No. 26 of 1975.

12. Mr. N.P. Gupta, learned counsel for the petitioners with all emphasis at his commend urged that amended Section 15 would be attracted when the premises for commercial or business purposes are let out any time within 5 years of obtaining possession. He submitted that possession was obtained by the decree-holder on 5-8-1972 and according to the amended provision he is under an obligation not to let out the premises or part thereof, at any time within 5 years, i.e., upto 5-8-1977. Such an interpretation is borne out from the clear and unambiguous language of Section 15 of the Act and it is in accord with the legislative intent. The Act is a beneficient legislation and Section 15 is also enacted with a view to provide summary remedy to the evicted tenant to get back the possession when the decree for eviction has been obtained on the ground of bonafide and personal need and the premises have not been put to use for the need of the purpose for which the eviction is sought. Mr. Gupta, pointed out that the provision is intended for the benefit of the tenant and in respect of commercial or business purposes, the period is intentionally extended in view of the fact that the evicted tenant was doing his business in the premises earlier, so that he may get back the possession of the suit-premises, when the same has been let out by the landlord-decree-holder at any time during the extended period of 5 years. The evicted tenant would be rehabilitated and will easily re-establish his business at the same site.

13. It is to be seen how the amended Section 15 of the Act is to be interpreted.

14. In the statutory construction by Crawford-1940 on prospective and retrospective operation, it is stated (at page 562-63) that retroactive legislation is looked upon with disfavour, as a general rule, and properly so, because of its tendency to be unjust and oppressive. Indeed, there is a presumption that the legislature intended its enactments to have this effect to be effective only in future. This is true because of the basic presumption that the legislature does not intend to enact legislation, which operates opressively and unreasonably; and retrospective laws will generally have such operation. Consequently, in the absence of any indication in the statute that the Legislature intended for it to operate retroactive, it must not be given retrospective effect.

15. Craies on Statute Law (1971) deals with the subject 'retrospective enactments' at page 387, it is stated that:

a statute is to be deemed to be retrospective which takes away or impairs any vested right acquired under existing laws or creates a new obligation, or imposes a new duty, or attaches a new disability in respect to transactions or considerations already past:

In Lauri v. Renad 1892 : [1962]2SCR159 , Lindley L.J. said : 'It is a fundamental rule the English Law that no statute shall be construed so as to have a restropective operation, unless its language is such as plainly to require such construction.'

16. But in the general law it was concisely stated by Lord Natherley in his judgment in Pardo v. Bingham 1970 LR 4 Ch. Page 735-739, where he said. The question is... secondly whether on general principles the statute ought in this particular second to be held 10 operate retrospectively, the general rule of law undoubtedly being, that except there be a clear indication either from the subject-matter or from the wording of a statute, the statute is not to receive a retrospective construction...In fast, we must look at the general scope and purview of the statute, and at the remedy sought to be applied, and consider what was the former state of the law, and what it was that the legislature contemplated.

At Page 396, it is said that:

If a statute is passed for the purpose of protecting the public against some evil or abuse, it may be allowed to operate retrospective, although by such operation it will deprive some person or persons of a vested right.

17. In Bindra's Interpretation of Statutes (VII Ed.) at page 858, it is mentioned that:

The principles covering retrospective operations of statutes are well settled. When a statute takes away or impairs vested rights acquired under existing laws, or creates a new obligation or imposes a new duty or attaches a new disability in respect of transactions or considerations already past, the presumption is, but it is only a presumption that it is not to have retrospective operation. It is a general rule that a statute, which takes away or affects a right of action is presumed not to apply to pending action. But these are general rules and are displayed when the intention of the Legislature, either expressed or to be gathered by necessary implication is otherwise. Where the intention of the Legislature to give retrospective operation is not indicated by express words, the scope of the Act must be taken into consideration in deciding whether retrospective operation was intended by necessary implication.

18. In Chapter IV Maxims Interpretation, at page 123, it is stated as under:

A verbis legis non set recendum (from the words of the law there should not be any departure). Lord Machaghten quoted in Vacher & Sons Ltd. v. London Society of Compositors 1913 AC 107 the note of warning given by Tindal, C J., delivering the opinion of the Judges who advised the House of Lords in the Sussex Bearaga Case (1844(11) Clause & F. 85 : 8ER 1034) : 'If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words themselves alone do in such case best declare the intention of the law-giver sinse index aniul sermo (language conveys the intention of the mind), and maladicts expositic quae corrupt, the text is bad.)

19. Maxwell in Interpretation of Statutes (IX Ed.) at page 3-4 says:

When the language is not only plain but admits of but one meaning, the task of interpretation can hardly be said to arise. It is not allowable says Vattel, to interpret what has no need of interpretation. Absolute contentia expositore non indiget (language that is unequvio-cal and unambiguous does not require an interpreter, in other words, plain words need no explanation). Such language best declares, without more, the intention of the law giver, and is decisive of it.

20. In Mst. Rafiquennessa v. Lal Bahadur Chetri : [1964]6SCR876 the construction and effect of Section 5 of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955 was considered. Sub-section (1)(a) of Section 5 of that Act provided that not with standing anything in any contract or in any law for the time being in force--(a) where under the terms of a contract entered into between a landlord and his tenant whether before or after the commencement of this Act tenant is entitled to build, and has in pursuance of such terms actually built within the period of five years from the date of such contract, a permanent structure on the land of the tenancy for residential or business purposes or where a tenant not being so entitled to build, has actually built any such structure on the land of the tenancy for any of the purposes, aforesaid with the knowledge and acquiescence of the landlord, the tenant shall not be ejected by the landlord from the tenancy except on the ground of nonpayment of rent. In that case, the question arose whether Section 5 would apply to the proceedings, which were pending between the parties at the appellate stage. A contention was advanced that a right to eject the tenant is accrued when the suit is filed under the terms of the Tenancy and when the vested rights are affected by any statutory provision, it should normally be construed to be prospective in operation and not retrospective unless the provision in question relates merely to a procedural matter. Their Lordships of the Supreme Court observed as under:

The legislature is competent to take away vested rights by means of retrospective legislation. Similarly, the legislature is undoubtedly competent to make laws, which override and materially affect the terms of contracts between the parties; but the argument is that unless a clear and unambiguous intention is indicated by the legislature by adopting suitable express words in that behalf no provision of a statute should be given retrospective operation if by such operation vests rights are un-exceptionable and as a matter of law, objection can be taken to them;

In order to make the statement of law relating to the relevant rule of construction which has to be adopted in dealing with the effect of statutory provisions in this connection, we ought to add that retrospective operation of a statutory provision can be inferred even in cases where such retroactive operation appears to be clearly implicit in the provision is held to be retroactive either when it is so declared by express terms, or the intention to make it retroactive clearly follows from the relevant words and the context in which they occur.

21. While dealing with the section and after considering the provision of Section 2, their Lordships, said that Section 5 itself gives an unmistake-ble indication of legislative intention to make its provisions retrospective. Their Lordships then observed that:

Thus, the plain object of Section 5 is to protect the tenants, who have built a permanent structure either for business or for residence, provided it has been built within five years of the terms of contract, would fall within Section 5(I)(a) even though those constructions had been made before the date of commencement the Act. Thus, the very scheme of Section 5(/)(a) clearly postulates the extension of its protection to constructions already made. That is another point which is significant in dealing with the controversy between the parties before us.

22. Their Lordships in para 12 further observed that:

If legislature had intended that this protection should operate prospectively, it would have been easy to say that the tenant shall not be sued in ejectment; such an expression would have indicated that the protection is afforded to the suits brought after the Act came into force and that might have introduced the element of prospective operation; instead, what is prohibited by Section 5(1)(a) is the eviction of the tenant, and so, inevitably, the section must come into play for the protection of the tenant even at the appellate stage when it is clear that by the proceedings pending before the appellate court, the landlord is seeking to evict the tenant, and that obviously indicates that the pending proceedings are governed by Section 5(1)(a), though they may have been initially instituted before the Act came into force.

23. In Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha : [1962]2SCR159 , it is observed:

While it is the ordinary rule that substantive right should not be held to be taken away except by express provision or clear implication, many Acts though prospective in form, have been given reterospective operation, if the intention of the Legislature is apparent. This is more so, when Acts are passed to protect the public against some evil or abuse.

24. The Act has been enacted to protect and to ameliorate the lot and condition of the tenants. It incorporates several provisions beneficial to the tenants. The Act is actually intended to protect the tenant from eviction. The tenant can only be evicted on certain specific grounds and not otherwise. In case, the landlord gets a decree for eviction by making false representation regarding the ground of personal bonafide necessity, the evicted tenant is conferred a right of restoration of possession, if the conditions in Section 15 are fulfilled. The hardship that may be caused to the tenant by eviction, has been taken into account, so, it is provided in Section 15 that if the landlord does not use the premises for the purpose for which, the eviction is sought within two months or if he lets out the premises within one year of obtaining possession of the premises, the tenant has right to move the court for restoration of possession to him. The landlord may let on the premises on enhanced rate of rent after having obtained the decree by making of false representation. Section 15 of the Act, therefore, appears to be a beneficial provision to an evicted tenant providing him a remedy to get back the possession if the landlord has acted in the manner contemplated in Section 15. How such a provision should be interpreted for that reference may be made to a decision of the Supreme Court in Alembic Chemical Works Co. Ltd. v. Workmen : (1961)ILLJ328SC , Their Lordships considered the provision of Section 79(1) of the Factories Act, 1948, it was oberved as under:

Even on the basis that Section 79(1) is capable of the construction sought to be placed on it by the appellant, the question would still remain whether the said construction should be preferred to the alternative construction Which, as we have just indicated, is reasonably possible. The answer to this question must be in the negative for two reasons; firstly having regard to the obvious policy and object of the Act, if Section 79(1) is capable of two constructions that construction should be preferred which further the policy of the Act and is more beneficial to the employees in whose interest the Act has been passed. It is well settled that in construction of the provisions of a welfare legislation courts should adopt what is sometimes described as a beneficent rule of construction; but apart from this general consideration about the policy and object of the Act. Sections 78 and 84 occurring in the same Chapter as Section 79 clearly indicate that Section 79(1) is not intended to standardise leave provisions as contended by the appellant, and that is the second reason why the appellant's argument can not be accept.

25. In Juvabhai Purshottam v. Chhagan Karsen : [1962]1SCR568 , their Lordships observed as under:

Moreover, the Amending Act being a piece of legislation meant for the protection of tenants, if there is any doubt about the meaning of Sub-section (2A) that doubt be resolved in favour of the tenant, for whose benefit the Amending Act was passed. In this view, it is obvious that the legislature could not have intended that the benefit of this beneficient measure should not be extended to tenants in whose cases the tenancy had not yet terminated, though notices had been given, when the further restrictions were being put on the right to terminate the tenancy.

26. The rules of interpretation as discussed above, therefore, clearly lay down that the provision of law should be interpreted according to the legislative intent expressed by the legislature in the words used by it. If the words clearly indicate that the provision should be made applicable to past acts, deeds, events and transactions then irrespective of the consequences like hardship, unreasonableness and oppressiveness, the law has to be interpreted according to the legislative intent as expressed in the words or according to the legislative intent, which can be otherwise gathered. It is true that simply substitution has taken place of Section 15 as amended in place of the old section and enacting provision of Section 11 of the Amending Act used the words 'shall be deemed to be substituted' not the words 'shall be deemed to have been substituted'. Still if the words in the provisions of Section 15 itself give us a clear legislative intent, then, Section 15 can be made applicable when the premises have been let out for commercial or business purposes after one year but before 29-9-1975, i.e. before the commencement of the Ordinance. The plain meaning of the word 'at any time within five years of obtaining possession' is that Section 15 will apply when the premises are let out for commercial or business purposes at any time within five years of obtaining possession. The words 'at any time' do not exclude the period prior to 29-9-1975, i.e. the total period of 5 years from the date of obtaining possession. If within a period of 5 years, the premises are let out for commercial and business purposes, then evicted tenant has a right to move the court to be put in possession of the premises. The act of letting by the landlord, if takes place within a period of 5 years of obtaining possession, then Section 15 would come into play. It is true that under the old Section 15, the restriction or disability was only upto one year. The disability to let out would come to an end after one year and it can be said that after expiry of one year of obtaining possession, the landlord could let out the premises let out for residential or commercial and business purposes. But different periods have been provided in the amended Section 15. The period of one year is retained in case of residential premises but the period in case of commercial or business purposes has been extended to 5 years. The extension is without any break. If the legislature has intended that letting out before 29-9-1975 and after a period of one year would not fall within the mischief of the amended Section 15 the legislature could have so provided and could have made it clear that amended Section 15 will apply to only those leases of the premises for commercial or business purposes, which are created after commencement of the Ordinance, On the contrary, the words 'at any time' clearly indicate that all letting out would be within the purview of Section 15, which have been made at any time within the period of five years from the date of obtaining possession. We are, therefore, clearly of the opinion that Section 15 would apply to the lease created after the expiry of the period of one year of obtaining possession and before commencement of the Ordinance i.e. 29 91975 and in this view of the matter, the present lease granted by the landlord decree-holder in favour of non-petitioner No. 2 M/s Suwalal Kanhaiyalal is within the mischief of Section 15 and Section 15 shall apply to the present case.

27. The next question that arises for consideration is as to whether in the facts and circumstances of the case, the relief should be granted under Section 15 or not. The trial court has not exercised its discretion in favour of the petitioner, for the reasons already stated above. This aspect of the case was not taken into consideration by the learned District Judge and he decided the case by holding that Section 15 is not retrospective and as the premises were let out after one year; so no cause of action accrued to the petitioners under the old Section 15. The trial court considered the defence taken by the landlord non-petitioner No. 1 regarding vesting of the title in Liyaqat Ali and Ahmed Ali letting out of the shop by Liyaqat Ali. The trial court also considered that the tenant non-petitioner No. 2 took the premises bonafide for carrying on his business and the petitioners have also taken another premises on rent, so, the trial court did not feel persuaded to grant any relief to the petitioners. It may be stated that non-petitioner No. 2 is an innocent lessee and for no fault of theirs, they would be put greater hardship in case they are put out of possession. They are in possession for more than 11 years. The parties must have settled in their business during such alone period. The conduct of the landlord non-petitioner No. 1 cannot be said to be proper in case it is found that he himself let out the premises, which were got vacated by making false averment that the same are needed for business to be run by his son. He too let out the premises after the expiry of one year and it cannot be said that his act was in disregard of the provision of Section 15 as it stood then. In these circumstances we are not inclined to allow the application of the petitioners under Section 15 of the Act. It may further be observed that in case, any decree is obtained by fraud the ordinary remedy for getting the decree cancelled is available to a party against whom the decree has been obtained. That furnishes an independent cause of action. But so far as the amended Section 15 of the Act is concerned, it cannot be said that the landlord will not suffer any disability of not letting out the premises after the expiry of one year. The application under Section 15 of the Act, therefore, deserves to be dismissed.

28. Accordingly, the application under Section 15 of the Act is dismissed and the revision petition fails. In the facts and circumstances of the case, the parties shall bear their own costs throughout.


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