Holding

The exemption period under the 1971 Notification is to be measured from the date of completion of the building, so the building was not exempt in 1976 and eviction must be sought under the East Punjab Urban Rent Restriction Act.

Summary

The landlord filed a civil suit under the general law to evict the tenant from a shop that was constructed in December 1968. The landlord relied on a 1971 Government Notification exempting buildings constructed in 1968‑1970 from the East Punjab Urban Rent Restriction Act for five years, arguing that the exemption made the suit maintainable. The High Court held that the exemption applied from the date of the Notification, allowing the suit. The Supreme Court examined the wording of the Notification and held that the five‑year exemption must be counted from the date of completion of the building, which expired in December 1973. Consequently, at the time the suit was filed in March 1976 the building was subject to the Rent Restriction Act, and eviction could only be pursued under that Act. The Court set aside the lower courts' decree and allowed the appeal, declaring the civil suit under the general law incompetent.

Issues considered

Whether the exemption granted by Notification dated 22 October 1971 is to be reckoned from the date of completion of the building or from the date of the Notification.
Whether, on the date of filing the eviction suit (30 March 1976), the building was covered by the East Punjab Urban Rent Restriction Act.
Whether a suit for eviction filed under the general law is maintainable when the Rent Restriction Act applies.

Legislation cited

East Punjab Urban Rent Restriction Act, 1949s. 13, s. 3
Transfer of Property Acts. 106

Subjects

evictionrent restriction actexemption periodcivil suittenancy holdoverinterpretation of notificationjurisdiction

Judgment

A ANAND PRAKASH MALIK
v.
BHAGWANDAS

APRIL 28, 1998

B [DR. A.S. ANAND AND V.N. KHARE, JJ.]

East Punjab Urban Rent Restriction Act, 1949: Section 13.
•
Notification dated 22nd October 1971-Exemption from the provisions
C ofAct-Period offive years-Reckoning of-Eviction suit filed by respondent-
Landlord-Suit filed under General Law in 1976-Ground that provisions of
Act inapplicable therefore suit was maintainable under General Law-Trial
Court decided in favour of landlord and decreed the suit-First Appellate
Court confirmed the decree-High Court held that under the Notification
D exemption from the provisions of Act for five years was available from the
date of notification and as such civil suit was maintainable-Appeal preferred
by tenant-Held under the Notification exemption from the provisions of the
Rent Act has been granted to buildings constructed during 1968, 1969 and
1970 for a period offive years from the date of its "completion"-Period of
exemption offive years has to be reckoned from the date of completion of the
E construction and not from the date of the Notification-The building was
constructed in December, 1968-The period of exemption, as such, expired
in December, 1973-Thus exemption was not available on 30th March, 1976
when the civil suit for eviction was filed-The suit filed by the landlord under
the General laws for eviction of the tenant was not competent and the remedy
F for eviction of the appellant lay under the Rent Restriction Act.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5953 of
1990.

From the Judgment and Order dated 18.9.90 of the Punjab & Haryana
G High Court in R.S.A. No. 1796 of 1978.
Harbans Lal and P.N. Puri Appell.ant.

R.P. Gharma (NP) for the Respondent.

H The following Order of the Court was delivered :
50
A.P. MALIK v. BHAGWANDAS [A.S. ANAND, J.] 51

A.S. ANAND, J. Respondent filed a Civil Suit under the general law for A
eviction of the appellant from shop No. 652/W-3 situate at Panipat and for
recovery of Rs. 330 as compensation for use and occupation from January
14, 1976 to March 13, 1976, besides a sum of Rs. 134.06 ps. as house tax and
Rs. 15.94 ps. as notice expenses.

According to the case set up by the landlord in the plaint after the B
demised premises were vacated by an earlier tenant, Bhagwan Smgh, he
reconstructed the shop after getting sanction from the Municipal Committee,
.. Panipat. The construction was completed in December, 1968. The appellant-
tenant took the premises on rent for a period of 11 months with effect from
14.2.1975@ Rs. 165 per month plus house tax after executing a rent note C
dated 14.2.1975.

After the expiry of the period of 11 months, the tenancy stood determined
by afflux of time and the tenant who did not vacate was holding over the
property in suit as a tenant-in-sufferance. lt was pleaded that a valid notice
under Section 106 of the Transfer of Property Act was issued to the tenant D
but despite that he did not vacate the premises. A specific plea was raised
by the landlord to the effect that provisions of the Haryana Act No. 11 of
1973 were not attracted and suit under the General law was competent.

The tenant resisted the suit and in the written statement, apart from
raising other objections regarding the maintainability of the suit in the present E
form and the jurisdiction of the civil court to entertain the suit, it was asserted
that the landlord had filed the ejectrnent petition under Section 13 of the East
Punjab Urban Rent Restriction Act, 1949 in respect of the room upstairs and,
therefore, the suit under the General law could not proceed. Service of any
legal and valid notice was also denied.
F
From the pleadings of the parties the following issues were framed :-

"(l) Whether the property in suit was constructed a new after
31.3.1962 as alleged and, therefore, this Court has jurisdiction to
try this suit ? OPP
G
(2) Whether the tenancy of the defendant was determined by a
valid notice as alleged and if so, to what effect ? OPP
(3) Whether the defendant has been holding over the property after
the expiry of the agreed period of lease as alleged? OPP
(4) Whether the suit is not maintainable in the present form ? OPD H
52 SUPREME COURT REPORTS [1998] 3 S.C.R.

A (5) Whether the plaintiff has filed petition under Section 13 of the
Haryana (Control of Rent and Eviction) Act representing the
property No. 651 as alleged and if so, what effect ? OPD

(6) Whether the shop and a room upstairs constructed one tenancy
for a commercial purposes as alleged and if so to what effect ?
B OPD

(7) Relief."

The trial court after recording the evidence, held under Issue No. I that
C the demised premises had been constructed a new in December, 1968. Issue
Nos. 2 to 7 were decided in favour of the landlord and the suit was decreed.
On appeal, the findings recorded by the trial court under Issues 2 to 7 were
.
not assailed. Finding on Issue No. I, however, was challenged. The first
appellate court set aside the finding on Issue No. I and opined :-

D "(12) The setting aside of finding on issue No. I is necessary, because
if the finding remains on record it is likely to effect adversely one or
the other party. The finding would have been allowed to remain intact
if it would have been shown that a decision on this issue was necessary
for deciding the suit. I have already shown above that decision of this
Issue was not necessary and that this matter was pre-mature.
E
(I 3) In the light of the above discussion I set aside the finding of the
learned lower court on issue No. I and direct that this matter whether
the property in dispute was construct_ed on the date as alleged in the
plaint or whether the property is covered by the Rent Act or not,
F whether the decree of the Civil Court is executable or not, shall be
decided by the Executing Court if and when such a dispute is raised
before the Executing Court."

The first appellate court, however, confirmed the decree passed by the
trial court.
G
A second appeal was filed in the High Court by the appellant. The
learned Single Judge of the High Court rightly found that the approach of the
first appellate court on Issue no. I was wholly erroneous. The learned Single
Judge however, found that despite the application of the provisions of the
East Punjab Urban Rent Restriction Act, 1949 (for short the Punjab Act) to
H the territories forming State of Haryana before the enactment of the Haryana
A.P. MALIK v. BHAGWANDAS [A.S. ANAND, J.] 53

Urban (control of Rent) and Eviction Act, 1973, by virtue of a Notification A
dated 22nd October, 1971 published in the Haryana Government Gazette of
November 2, I 971, the buildings constructed during the years 1968, 1969 and
1970 were exempted from the provisions of the Punjab Act for a period of five
years from the date of"exemption" and as such the civil suit was maintainable.

This appeal by special leave calls in question the order of the High B
Court.

, We have heard learned counsel for the appellant. No body has appeared
for the respondent.

The finding of the learned Single Judge noticed above is based on a C
mis-rea\ling of the Notification.

The Notification dated 22nd October, 1971 issued in exercise of the
powers under Section 3 of the Punjab Act by the Government of Haryana
reads thus :-
D
"Notification No. 5601. S.T.A. 71/30701 - In exercise of power conferred
by Section 3 of East Punjab Urban Rent Restriction Act, 1949 (East
Punjab Act 3 of 1949) the Governor of Haryana hereby exempts every
building constructed during the year 1968, 1969, 1970 from the
provisions of said Act for a period of 5 years from the date of its E
completion."

A plain reading of the Notification shows that exemption from the
provisions of the Rent Act has been granted to buildings constructed during
1968, 1969 and 1970 for a period of five years from the date of its "completion".
It is not disputed and as a matter of fact it has been held by all the three F
"'· courts below that the premises in dispute were constructed a new in December,
1968. Therefore, the period of exemption of five years from the provisions of
the Rent Act pursuant to the Notification dated 22nd October, 1971 has to
be reckoned from the date of completion of the construction and not from the
date of the Notification. The building was constructed in December, 1968. The G
period of exemption, as such, expired in December, 1973. Thus exemption from
the provisions of the Rent Act was not available on 30th March, 1976, when
the civil suit for eviction was filed. Since, the provisions of the Rent Act were
applicable to the building in question on the date when the suit for eviction
was filed, the eviction of the tenant could only be sought under the provisions
of the Rent Act and on the grounds as contained therein. Recourse to a civil H
54 SUPREME COURT REPORTS (1998] 3 S.C.R.

A suit under the General laws for seeking eviction of the tenant was not
permissible. The learned Single Judge fell in complete error in ignoring this
vital aspect of the case.

Consequently, we allow this appeal and set aside the judgment and
decree of the courts below and hold that the suit filed by the landlord under
B the General laws for eviction of the tenant was not competent and the remedy
for eviction of the appellant lay under the Rent Restriction Act. Since, the
respondent is not present, we make no order as to costs.

T.N.A. Appeal allowed.