Jharkhand High Court
Smt. Rekha Charanpahari vs Pushpanjalee Traders on 9 September, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No.124 of 2023
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(Against the judgment dated 31.03.2023 passed by learned Principal
District Judge, Dhanbad in Civil Appeal No.159 of 2020)
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Smt. Rekha Charanpahari, aged about 66 years, wife of Late Arun
Kumar Charanpahari, resident of Pahari Niwas, Near Big Bazar,
P.O.- Saraidhela, P.S.- Saraidhela, District- Dhanbad
.... .... .... Plaintiff/ Respondent/Appellant.
Versus
1. Pushpanjalee Traders, represented by its Proprietor Sri Swetank,
Son of Sri U.P. Singh, resident of Sugiadih Bast, P.O. and P.S.-
Saraidhela, District- Dhanbad. Worksite Address Pushpanjalee
Traders, Furniture World, Near Big Bazar, P.O. and P.S.- Saraidhela,
District- Dhanbad.
.... .... .... Defendant / Appellant / Respondent
2. Vineet Charanpahari, son of Late Arun Kumar Charanpahari,
resident of Pahari Niwas, Near Big Bazar, P.O.- Saraidhela, P.S.-
Saraidhela, District- Dhanbad (Jharkhand).
.... .... .... Plaintiff/Respondent/Proforma Respondent
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For the Appellant : Mr. Krishna Shankar, Advocate
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PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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By the Court:- Heard the counsel for the appellant.
2. This Second Appeal filed under section 100 of the Code of Civil
Procedure, 1908 has been preferred against the judgment of reversal dated
31.03.2023 passed by learned Principal District Judge, Dhanbad in Civil Appeal
No.159 of 2020 whereby and where under the learned first appellate court
being the learned Principal District Judge, Dhanbad has held that the Original
Suit No.362 of 2015 filed by the plaintiff, who is the appellant of this Second
Appeal and the respondent before the First appellate court; in the court of Civil
Judge (Senior Division)- III, Dhanbad dated 14.09.2015, filed with a prayer for
eviction of the defendant of this suit in terms of Section 11 (1) (d) of the
Jharkhand Buildings (Lease, Rent & Eviction) Control Act, 2011 and also under
Section 11 (1) (b) and 11 (1) (c) of the said act is without jurisdiction, in view of
the enactment of the Jharkhand Buildings (Lease, Rent & Eviction) Control Act,
2011 by Section 47 of which, the Bihar Buildings (Lease, Rent & Eviction)
Control Act, 1982 was repealed and under Section 19 of which power for
eviction has been vested upon the controller which according to Section 2 (d)
meaning a person appointed by the State Government under Section 31 of the
said Act.
3. Learned counsel for the appellant submits that the learned appellate
court has committed a perversity by holding that the trial court has no
jurisdiction even though the jurisdiction of the trial court was not challenged in
the written-statement by the defendant. It is next submitted that the learned
first appellate court has misconstrued the notification dated 16.05.2016 wherein
it has been mentioned that a fresh proceeding initiated after the enactment of
the Jharkhand Buildings (Lease, Rent & Eviction) Control Act, 2011 notified on
15.04.2015 shall be guided and governed by the new Act on and from
15.04.2015 but the clarification having been came for that on 16.05.2016, the
learned first appellate court ought to have held that the provisions of the
Jharkhand Buildings (Lease, Rent & Eviction) Control Act, 2011 would be
effective only from 16.05.2016. Hence, it is submitted that the impugned
judgment and decree passed by the learned first appellate court be set aside
and the judgment and decree passed by the trial court being the Civil Judge
(Senior Division)- III, Dhanbad in Original Suit No.362 of 2015 dated 25.09.2018
be restored.
4. Having heard the submissions of the learned counsel for the appellant
and after going through the materials available in the record, it is pertinent to
mention here that the verbatim of the notification issued by the Urban
Development & Housing Department of the Government of Jharkhand which
reads as under:-
la[;k 219] jk¡ph] cq/kokj 25 pS= 1937 ¼'k0½
15 viSzy 2015 ¼bZ0½
uxj fodkl foHkkx
&&&&&&&&
vf/klwpuk
15 viSzy] 2015
la[;k&02@u0fo0@Reform-09/2010-..1336.. >kj[kaM Hkou ¼iV~Vk] fdjk;k ,oa
fu'dklu½ fu;a=.k vf/kfu;e&2011 ¼>kj[kaM vf/kfu;e&06] 2012½ dh /kkjk&¼1½ dh
mi/kkjk&¼3½ esa mDr vf/kfu;e ds izHkkoh frfFk ds laca/k esa 'kkldh; jkti= esa
vf/klwpuk izdkf'kr fd;s tkus dk izko/kku gSA
mDr izko/kku ds vkyksd esa izHkkoh frfFk fu;r djus gsrq ;g vf/klwpuk >kj[kaM
xtV esa izdkf'kr dh tk jgh gSA vf/klwpuk ds >kj[kM xtV esa izdkss"ku dh frfFk ls
>kj[kaM Hkou ¼iV~Vk] fdjk;k ,oa fu'dklu½ fu;a=.k vf/kfu;e&2011 ¼>kj[kaM
vf/kfu;e&06] 2012½ izHkkoh le>k tk;sxkA
>kj[kaM jkT;iky ds vkns"k ls]
vt; dqekj flag
ljdkj ds lfpoA
&&&&&&&&&
5. It is crystal clear from the notification that the provisions of the
Jharkhand Buildings (Lease, Rent & Eviction) Control Act, 2011 has come into
effect from 15.04.2015; that is the date of publication of the notification in the
official Gazette. The contention of the appellant is the notification clarifying the
date from which the provisions of Jharkhand Buildings (Lease, Rent &
Eviction) Control Act, 2011 would be effective which reads as under:-
NOTIFICATON
The 16th May, 2016
No.-8/Noti/101/2016/N. Vi-2660- In exercise of the powers conferred
under section 46 of the Jharkhand Buildings (Lease, Rent & Eviction) Control
Act, 2011 and to avoid ambiguity arising out of the language used under
Section 47 (2) of the Jharkhand Buildings (Lease, Rent & Eviction) Control Act,
2000 and first appeals, second appeals and execution proceedings filed and
pending in different Court under the old Jharkhand Buildings (Lease, Rent &
Eviction) Control Act, 2000 shall be governed and guided till their finality
under the old Jharkhand Buildings (Lease, Rent & Eviction) Control Act, 2000
and only the fresh proceedings initiated after the enactment of the new
Jharkhand Buildings (Lease, Rent & Eviction) Control Act, 2011 notified on
15.04.2015 shall be guided and governed by New Act. All subsequent
proceedings arising out of order/judgments shall be governed under the New
Act.
It shall come into force with effect from the issuance date of this
notification.
By the order of the Governor of Jharkhand
Arun Kumar Singh,
Principal Secretary of Government
Urban Development & Housing Department.
(Emphasis supplied)
6. It is then submitted by the learned counsel for the appellant that by the
said notification dated 16.05.2016, it has been clarified that the provisions of
Jharkhand Buildings (Lease, Rent & Eviction) Control Act, 2011 shall come into
force with effect from the date of issuance of the said notification.
7. Learned counsel for the appellant submits that the sentence "It shall
come into force with effect from the issuance date of this notification." means
that the Jharkhand Buildings (Lease, Rent & Eviction) Control Act, 2011 shall
be effective from 16.05.2016. Hence, it is submitted that the impugned
judgment and decree passed by the first appellate Court be set aside and the
judgment and decree passed by the trial court be restored, after formulating
the appropriate substantial question of law.
8. Having heard this submissions made at the bar, and going through the
materials in the record, it is relevant to refer to Section 1 of the Jharkhand
Buildings (Lease, Rent & Eviction) Control Act, 2011 which reads as under:-
"1. Short title, Extent and Commencement- (1) This Act may be
called the Jharkhand Buildings (Lease, Rent & Eviction) Control
Act, 2011.
2. This Act shall apply to the whole of the State of Jharkhand.
3. It shall come into force on such date as the Government of
Jharkhand may, by notification in the Official Gazette,
appoint." (Emphasis supplied)
9. The perusal of Section 1 (3) of the Jharkhand Buildings (Lease, Rent &
Eviction) Control Act, 2011, in no uncertain manner makes it abundantly clear
that the said Act shall come into force on such date as the Government of
Jharkhand may, by notification in the official gazette, appoint. It also remains
undisputed that the Government of Jharkhand by notification in the official
gazette has appointed the date of publication of said notification No.219 in the
official gazette, to be 15.04.2015; since the said notification was published in the
official gazette by the Government of Jharkhand dated 15.04.2015. So,
obviously the Jharkhand Buildings (Lease, Rent & Eviction) Control Act, 2011
has come into force from 15.04.2015. Since, as per Section 1(3) of the Jharkhand
Buildings (Lease, Rent & Eviction) Control Act, 2011, shall come into force on
such date as the Government of Jharkhand may, by notification in the Official
Gazette, appoint; consequent upon the said notification in the official gazette,
that 15.04.2015 is the appointed date, certainly the Principal Secretary of the
Government, Urban Development Housing Department, having not been
vested with any power to change the said date of coming into force of the
Jharkhand Buildings (Lease, Rent & Eviction) Control Act, 2011; the said
appointed date of 15.04.2015, cannot be changed by an ambiguous notification
of clarification, as in this notification itself, it has been categorically mentioned,
that for fresh cases, the appointed day is 15.04.2015.
10. Hence, this Court do not find any merit in the contention of the learned
counsel for the appellant that the Principal District Judge, Dhanbad has
committed perversity by holding that the Jharkhand Buildings (Lease, Rent &
Eviction) Control Act, 2011 has come into force on 15.04.2015.
11. So far as the contention of the learned counsel for the appellant that the
issue of jurisdiction was never challenged by the defendant is concerned, it is a
settled principle of law that the issue of jurisdiction, if it is a pure question of
law, can be raised in an appeal for the first time, hence, this Court has no
hesitation in holding that in this case the issue of jurisdiction do not involve
any fact and which is a pure question of law. So, the learned first appellate
court has not committed any illegality by holding that in view of coming into
force of the provisions of the Jharkhand Buildings (Lease, Rent & Eviction)
Control Act, 2011 on 15.04.2015, that is, before filing of the suit on 14.09.2015,
the Civil Judge (Senior Division)-III, Dhanbad was not having the jurisdiction
to entertain the suit and setting aside the judgment and decree passed by the
Civil Judge (Senior Division)-III, Dhanbad; with a direction to return the plaint
to the plaintiff for presenting the same before the Controller appointed by the
Government of Jharkhand in terms of Section 31 of the Jharkhand Buildings
(Lease, Rent & Eviction) Control Act, 2011.
12. Under such circumstances, this Court is of the considered view that there
is absolutely no substantial question of law involved in this Second Appeal.
13. Accordingly, this Second Appeal, being without any merit, is dismissed
but under the circumstances without any costs.
14. Let a copy of this judgment be sent to the courts concerned forthwith.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 09th of September, 2024
AFR/ Animesh
