Ram Kumar vs Shyam Sunder on 13 March, 2001

Punjab-Haryana High Court
Ram Kumar vs Shyam Sunder on 13 March, 2001
Author: M Singhal
Bench: M Singhal


JUDGMENT

M.L. Singhal, J.

1. Shyam Sunder filed application for ejectment of Ram Kumar from a shop situated within the municipal limits of Kalyat town under Section 13 of the Haryana Urban (Control of Rent Eviction) Act, 1973 (hereinafter to be referred as the Haryana Rent Act, 197) in January, 1992. During the pendency of the ejectment application, the Government of Haryana promulgated notification in its official gazette dated 2.3.2000 whereby “Kalayat town” ceased to be a municipal town and it became the subject of the Haryana Panchayati Raj Act, 1994 (being a Gram Panchayat).

2. Looking to this notification, Ram Kumar made an application whereby he prayed for the dismissal of this ejectment petition, saying that with the promulgation of that notification, “Kalayat town” has ceased to be a municipal town and as such this shop is no longer subject to the provisions of the Haryana Rent Act, 1973, Ejectment application is not cognizable by the Rent Controller and as such this ejectment application cannot proceed further before the Rent Controller and it be dismissed and remedy of Shyam Sunder is to file suit for ejectment before the Civil Court under the general law of the land.

3. Vide order dated 17.8.2000, this application was declined by the Rent Controller, Kaithal (though she has described herself to be Civil Judge (Jr. Division), Kaithal.

4. Aggrieved from this order dated 17.8.2000, Ram Kumar (tenant) has come up in revision to this Court.

5. I have heard the learned counsel for the parties and have gone through the record.

6. It was submitted by the learned counsel for the petitioner that at the time, when the ejectment application was filed, the shop was situated within the municipal limits of “Kalyat town” and it was subjected to the provisions of the Haryana Rent Act, 1973 and cognizable by the Rent Controller, but in view of the notification dated 2.3.2000, promulgated by the Government of Haryana, the shop in question no longer remains subject to the provisions of the Haryana Rent Act, 1973 as “Kalayat town” has ceased to be a municipal town but had become a Gram Panchayat subject to the provisions of the Haryana Panchayati Raj Act, 1994. It was submitted that the ejectment application has ceased to be maintainable before the Rent Controller in view of the said notification and as such it should have been dismissed as not maintainable.

7. It was submitted by the learned counsel for the petitioner that how could the Rent Controller be said to have possessed of jurisdiction for throwing him out of the shop when his jurisdiction had come to an end in view of that notification. It was submitted that the jurisdiction of the Rent Controller to try this ejectment application should have been alive right up to the day of its decision and when before the day of its decision, he had ceased to possess the necessary jurisdiction, it ought to have been dismissed as not maintainable. It was submitted that no proceedings could be contined before the Rent Controller when there was cessation of the very applicability of the provisions of the Haryana Rent Act, 1973 over this shop. It was submitted that on the date of decision, no order at all can be passed by the Rent Controler, which could be said to be valid and legal.

8. Learned counsel for the respondents, on the other hand submitted that notification dated 2.3.2000 shall not affect the pending proceedings as it was only prospective in operation and it was not retrospective in operation. It was submitted that “Kalayat town” ceased to be a municipal town only with effect from the date of its promulgation as notified in the official gazette of the State of Haryana. In support of his submission, he drew my attention to Gram Panchayat Deh Mauza Gharhi Brahman Tehsil Sonepat v. Kesho Narain and others. AIR 1964 Punjab 464, where it was held that the provision contained in Section 13 of the Punjab Act 18 of 1961, which takes away the jurisdiction of the Civil Courts over any matter arising out of the operation of that Act cannot be considered to be a mere matter of procedure so as to operate retrospectively. Where a suit has been instituted in a Civil Court at a time when that Court was fully competent to entertain the suit (i.e. before the Pubjab Act 18 of 1961 had come into force) and that suit is pending at the date the Act comes into force, the Act cannot without express words or necessary intendment, divest the Court of the jurisdiction which it exercised at the time of entertaining the suit, so as to undo the entire proceedings, held by the Civil Court up to the date of the amendment. Such a construction would be contrary to all canons of statutory interpretation and would also tend to defeat the cause of justice and fair play.

9. Learned counsel also drew my attention to The Punjab State v. K.L. Grover and others, 1984 PLR 179, where in a suit for ejectment of tenant which was filed before the expiry of be mentioned here there is a notification in the State of Punjab exempting the buildings constructed for a period of 5 years of its completion from the provisions of the East Punjab Urban Rent Restriction Act), decree for ejectment was passed after the expiry of 5 years period, it was held that decree can well be executed.

10. In Firm Amar Nath v. Tek Chand, AIR 1972 SC 1548: 1972 RCR (Rent) 380 (SC), it was observed that where the building was completed in March, 1960 and the suit was filed on 14.1.1963, that is, before the expiry of 5 years from the date of the completion of the building but the decree was passed on 14.8.1969 i.e. after the period of exemption, exemption from Section 13 was available to the landlord-decree holder and the decree was executable.

11. He drew my attention to R. Rajagopal Reddy v. P. Chandrasekharan, AIR 1996 SC 238, where it was held that Section 4(1) of the Act cannot be applied to suit, claim or action to enforce any right in property held benami against person in whose name such property is held or any other person, if such proceeding is initiated by or on behalf of a person claiming to be real owner thereof, prior to the coming into force of Section 4(1) of Act. So far as Section 4(2) is concerned, all that is provided is that if a suit is filed by a plaintiff who claims to the owner of the property under the document in his favour and holds the property in his name, once Section 4(2) applies no defence will be permitted or allowed, in any such suit, claim or action by or on behalf of a person claiming to be the real owner of such property held benami. The disallowing of such a defence which earlier was available, itself, suggests that a new liability or restriction is imposed by Section 4(2) on a pre-existing right and such a provision cannot be said to be retrospective or retroactive by necessary implication. It is also pertinent to note that Section 4(2) does not expressly seek to apply retrospectively. So far as such a suit which is covered by the sweep of Section 4(2) is concerned, the prohibition of Section 4(1) cannot apply to it as it is not a claim or action filed by the plaintiff to enforce right in respect of any property held benami. On the contrary, it is suit, claim or action flowing from the sale deed or title deed in the name of the plaintiff. Even though such a suit might have been filed prior to 19.5.1988, if before the stage of filing of defence by the real owner is reached, Section 4(2) becomes operative from 19th May, 1988, then such a defence as laid down by Section 4(2) will not be allowed to such a defendant. However, that would mean that Section 4(1) and 4(2) only on that score can be treated to be impliedly retrospective so as to cover all the pending litigations in connection with enforcement of such rights or real owners who are parties to benami transactions entered into prior to the coming into operation of the Act and specially Section 4 thereof.

12. The preamble of the Act itself states that it is an act to prohibit benmai transactions and the right to recover property held benami, for matters connected therewith or incidental thereto. Thus it was enacted to efface the then existing rights of the real owners of property held by others benami. Such an act was not given any retrospective effect by the legislature. Section 4 is not retrospective. A mere look at the provision of sub-section (1) of Section 3 also shows that the prohibition under Section 3(1) is against persons who are to enter into benami transactions and if it has down that no person shall enter into any benami transaction which obviously means from the date on which this prohibition comes into operation i.e. with effect from September 5, 1988. That takes care of future benami transactions. Sub-section (3) of Section 3 also throws light on this aspect. It states that whoever enters into any benami transaction shall be punishable with imprisonment for a term which may extend to three years or with fine or with both. Therefore, the provision creates a new offence of entering into such benami transactions. It is made non-cognizable and bailable as laid down under sub-section (4). It is obvious that when a statutory provision creates a new liability and new offence, it would naturally have prospective operation and would cover only those offences which take place after Section 3(1) comes into operation.

13. In essence what was held by the Hon’ble Supreme Court in R. Rajagopal Reddy’s case (supra) is that Benami Transactions (Prohibition) Act, 1988 is not retrospective in operation. The benami transaction that took place before the enforcement of the Benami Transactions (Prohibition) Act (45 of 1988) can well be shown to be benami.

14. If “A” purchases property in the name of “B” and not in his own name after the promulgation of this Act, “B” will be viewed as absolute owner of the property and it will not be open to “A” to say that he is the real owner of the property and “B” was only a benamidar but if this sale took place prior to the enforcement of this Act, it would be open to “A” to prove that he is the real owner of the property and “B” was only a benamidar.

15. On the strength of these authorities, learned counsel for the respondent submitted that notification dated 2.2.2000 was not retrospective in operation but was only prospective in operation. Kalayat ceased to be a municipal town right when the said notification was promiulgated in its official gazette by the State of Haryana.

16. The said notification cannot be said to be retrospective in operation, as if that notification is given retrospective effect, such interpretation would be contrary to all canons of statutory interpretation and would also tend to defeat the cause of justice and fair play. Plaintiff Shyam Sunder spent 9 years before the Rent Controller and it would be working injustice to him if now it is stated that the Rent Controller has no jurisdiction, though he had jurisdiction when this ejectment application was instituted and Shyam Sunder is directed to approach the Civil Court for ejectment of Ram Kumar under the General law of the land.

17. So, this revision fails and is dismissed.

18. Revision dismissed.

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