Jammu & Kashmir High Court
Manoj Kumar vs < on 16 May, 2024
Author: Sanjay Dhar
Bench: Sanjay Dhar
Sr. No.71
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CR No.04/2024
CM Nos.163/2024 &
2057/2024
Manoj Kumar, Age 53 years ...Petitioner(s)
S/o Sh. Jagdish Raj
R/o H. No.629, Sector 3, Nanak Nagar,
Jammu
Through :- Mr. Himanshu Beotra, Advocate.
V/s
<
Dara Singh S/o Late Ishar Singh .....Respondent (s)
R/o H. No.37/38, Sector 10, Nanak Nagar,
Jammu
't
Through :- Mr. Sachin Dogra, Advocate.
Coram:
HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
ORDER
16.05.2024
1. In the present revision petition, the petitioner has challenged judgment dated
12.12.2023 passed by learned 2nd Additional District Judge, Jammu whereby
order dated 29.11.2021 passed by Rent Controller (Sub Judge)/CJM Jammu in
an application under Section 8 of the Jammu & Kashmir Houses and Shops
Rent Control Act, has been upheld and the appeal against the said order has
been dismissed.
2. It appears that the respondent filed an application under Section 8 of the
Jammu & Kashmir Houses and Shops Rent Control Act for determination and
fixation of fair rent in respect of a shop, which he claims to have taken on rent
from the petitioner. The said application was decided by learned Rent
Controller (CJM) Jammu vide order dated 29.11.2021 whereby the monthly
rent of Rs.6,000/- was fixed in respect of the shop in question. The said order
came to be challenged by the petitioner by way of an appeal before the learned
2nd Additional District Judge, Jammu. The appeal stands dismissed in terms of
the impugned judgment passed by the said Court.
3. During the course of hearing, learned counsel appearing for the petitioner, has
argued that the Jammu & Kashmir Houses and Shops Rent Control Act stands
repealed in terms of the Jammu & Kashmir Residential and Commercial
Tenancy Act, 2012 (hereinafter „the Act of 2012‟) and even though the Act of
2012 has been stayed by this Court in PIL No.22/2012, but due to the
enactment of J&K Reorganisation Act, 2019 (hereinafter „the Act of 2019‟),
the proceedings under the repealed provisions of the Jammu & Kashmir
Houses and Shops Rent Control Act, are not maintainable.
4. In the above context, it is to be noted that Jammu & Kashmir Residential and
Commercial Tenancy Act, 2012 came to be enacted by the erstwhile
legislature of the State of Jammu & Kashmir and in terms of the provisions of
the said Act, the Jammu & Kashmir Houses and Shops Rent Control Act was
repealed. The Act of 2012 came to be challenged by way of a writ petition
before this Court in PIL No.22/2012 & connected matters. A Division Bench
of this Court vide order dated 12.09.2012 was pleased to stay the operation of
the Jammu & Kashmir Residential and Commercial Tenancy Act, 2012.
Subsequently, vide order dated 13.12.2012, earlier order dated 12.09.2012 was
modified and it was provided that mechanism postulated under the Jammu &
Kashmir Houses and Shops Rent Control Act shall continue and the suits &
appeals which were pending or which have been withdrawn by virtue of the
provisions of Section 42 (4) of 2012 Act of 2012 shall continue to be
adjudicated by the Rent Controller or Appellate Rent Tribunal who had been
earlier clothed with the power. A further clarification was made by the
Division Bench of this Court in its order dated 15.12.2022 in the manner
indicated below:-
"5. The order dated 13.12.2012, is accordingly, clarified as below:-
(i) The operation of the Residential and Commercial Tenancy Act, 2012 was
stayed by the Division Bench of this Court by virtue of order dated 12.09.2012 and
the said order, as a matter of fact, came to be modified in terms of order dated
13.12.2012, by virtue of which, the suits and appeals which were pending or which
were withdrawn by virtue of the provisions of Section 42(4) of Act of 2012 were
directed to be continued to be adjudicated by the Rent Controller or Appellate Rent
Tribunal, who had been earlier clothed with the power. The said order also
provided that the withdrawal of earlier suits or Appeals would be deemed to be
restored to the board of the court of competent jurisdiction on filing of appropriate
motion by the party concerned.
(ii) It is manifest from the modification order dated 13.12.2012 that the
concerned Rent Controllers or Appellate Rent Tribunals earlier clothed with the
power are continued to be vested with the powers to adjudicate the suits and
appeals respectively, already pending before the said authorities, which came to be
withdrawn in terms of Section 42(4) of the Act of 2012, however, with the
assistance of the mechanism/procedure postulated under the old act."
5. The question that has been raised by the petitioner in the present proceedings
is as to whether after the enactment of The Jammu & Kashmir Reorganisation
Act, 2019 the mechanism provided under the Jammu & Kashmir Houses and
Shops Rent Control Act would continue to hold the field in respect of the
cases that have been filed after the coming into force of the Act of 2019.
6. In the above context, it is to be noted that as per Section 95 of The Jammu &
Kashmir Reorganisation Act, 2019 all Central laws in Table-1 of Fifth
Schedule to the said Act have been made applicable to the „Union Territory of
Jammu and Kashmir‟ and „Union Territory of Ladakh‟ with effect from the
date of coming into operation of the said Act. Similarly, all other laws in the
Fifth Schedule that were applicable to erstwhile State of Jammu & Kashmir
have been made applicable to „Union Territory of Jammu & Kashmir‟ and
„Union Territory of Ladakh‟. Table 4 of Fifth Schedule of The Jammu &
Kashmir Reorganisation Act, 2019 contains the list of State Laws that have
been made applicable to the „Union Territory of Jammu & Kashmir‟ and
„Union Territory of Ladakh‟ in terms of Section 95(2) of the Act of 2019. In
this list, the Jammu & Kashmir Residential and Commercial Tenancy Act,
2012 figures at S.No.129 meaning thereby that the said Act has been made
applicable to the „Union Territory of Jammu & Kashmir‟ and „Union Territory
of Ladakh‟ by virtue of Section 95(2) of the Act of 2019. In Table 4, there is
no mention of the Jammu & Kashmir Houses and Shops Rent Control Act,
which means that applicability of the said Act to the „Union Territory of
Jammu & Kashmir‟ and „Union Territory of Ladakh‟ has not been continued
in terms of Section 95(2) of the Act of 2019.
7. In other words, the laws that find mention in Table 1 and Table 4 of the Fifth
Schedule are applicable to the Union Territories of J&K and Ladakh, whereas
the laws which do not find mention in these Tables, are not applicable to the
two Union Territories.
8. In view of the aforesaid position, the question that arises for determination is
whether the mechanism provided vide interim orders passed by the Division
Bench of this Court in PIL No.22/2012 & connected petitions for continuance
of the Jammu & Kashmir Houses and Shops Rent Control Act, would apply
even after the promulgation of The Jammu & Kashmir Reorganisation Act,
2019. This Court feels that a clarification in this regard from the Division
Bench is necessary in the facts and circumstances of the case. Such a
clarification would be essential for determination of the issue raised by the
petitioner in the instant case.
9. In view of the above, the Registrar Judicial is directed to place this matter
before Hon‟ble the Chief Justice for seeking appropriate directions regarding
listing of this matter along with PIL No.22/2012 so that a clarification is
issued about the applicability or otherwise of the provisions of the Jammu &
Kashmir Houses and Shops Rent Control Act to proceedings filed after
coming into effect of The Jammu & Kashmir Reorganisation Act, 2019.
( Sanjay Dhar )
Judge
JAMMU
16.05.2024
Narinder
