Dharam Singh Suhalka vs Saifuddin Mohd. Kaji
2021 Latest Caselaw 12765 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

S.B. Civil Writ Petition No. 5046/2020

Dharam Singh Suhalka S/o Fatehlal Suhalka, Aged About 58 Years, Oasis Park, 40 Ambavgarh, Udaipur, Rajasthan.

----Petitioner Versus

Saifuddin Mohd. Kaji S/o Haji Mohd. Kaji, Oasis Park, Ambavgarh, Udaipur, Rajasthan.

----Respondent

For Petitioner(s) : Mr. Sajjan Singh Rajpurohit, Mr. Rajat Rajpurohit

For Respondent(s) : Mr. Rajesh Joshi, Sr. Advocate assisted by Mr. Harshit Bhurani

HON'BLE MR. JUSTICE VIJAY BISHNOI

Judgment / Order

16/08/2021

This writ petition under Article 227 of the

Constitution of India has been preferred on behalf of the

petitioner challenging the judgment dated 4.3.2020

passed by the Rent Appellate Tribunal, Udaipur (for short

'the Appellate Tribunal') whereby, the appeal filed by the

petitioner has been dismissed. The said appeal was

preferred against the judgment and certificate for

recovery of possession dated 28.4.2017 passed by the

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Rent Tribunal, Udaipur (for short 'the Rent Tribunal') in

Case No.378/2014, which is also under challenge.

Brief facts of the case are that the respondent has

filed an application under Section 3 (III) (b) read with

Section 18 of the Rajasthan Rent Control Act, 2001 (for

short 'the Act of 2001') seeking eviction of the petitioner

from the premises located at Flat No.302, Third Floor,

Oasis Park, 40 Ambavgarh, Udaipur (for short 'the rented

premises'). As per the eviction petition, the rented

premises was let out to the petitioner initially on

6.10.2008 for a period of one year through a rent deed.

The said tenancy was extended up to 2011 through rent

deeds for a period of one year each and lastly the rented

premises was let out to the petitioner for a period of six

months through rend deed dated 14.6.2012 whereby, the

tenancy was started from 6.5.2012 and was supposed to

end on 5.11.2013. It is also mentioned that the rented

premises was let out to the petitioner at a rent of

Rs.7500/- per month plus Rs.800/- per month as society

charges and he was supposed to make payment of the

electricity and water bills.

It is contended by applicant-respondent that the

tenancy of the petitioner was terminated by serving a

notice under Section 106 of the Transfer of Property Act,

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1882 (for short 'the Act of 1882'), however, despite

service of notice, the petitioner has not evicted the

premises in question and, therefore, the eviction petition

may be allowed and the petitioner be evicted from the

rented premises.

Reply to the eviction petition was filed on behalf of

the petitioner wherein, he has objected about the

maintainability of the eviction petition before the Rent

Tribunal. It was urged that the respondent can only file a

civil suit for the purpose of eviction of the petitioner from

the rented premises. It was further urged that the rented

premises was let out to the petitioner permanently on

monthly rent and not for the period of one year. It was

also urged that as a matter of fact, the respondent has

entered into an oral agreement to sale the rented

premises to the petitioner and in lieu of that he has paid

rupees one lakh in advance, but later on, the respondent

has not executed the sale deed in his favour. Certain

other objections regarding the rent deeds were also

raised by the petitioner.

On the basis of the pleadings of the parties, the Rent

Tribunal has framed as many as three issues, which are

reproduced hereunder :-

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After taking into consideration the documentary as

well as the ocular evidence, the Rent Tribunal has decided

issue Nos.1 to 3 against the petitioner and in favour of

the respondent and has passed the judgment and

certificate for recovery of possession on 28.4.2017. Being

aggrieved with the same, the petitioner has preferred an

appeal before the Appellate Tribunal, which came to be

dismissed vide judgment dated 4.3.2020.

Learned counsel for the petitioner has mainly

challenged the findings of Rent Tribunal and Appellate

Tribunal in respect of issue No.3. It is argued that the

Rent Tribunal as well as the Appellate Tribunal have erred

in deciding the issue No.3 in favour of the respondent. It

is further argued that in fact, the eviction petition was

filed by the respondent for termination of tenancy under

the provisions of the Act of 1882 and the Act of 2001. It

is argued that Section 3 of the Act of 2001 specifically

provides that Chapter II and III of the Act would not

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apply to certain premises and tenancies. Clause (b) of

Clause (iii) of Section 3, before it was deleted, provided

that if the premises is situated at the Divisional

Headquarters i.e. Jodhpur, Ajmer, Kota, Udaipur and

Bikaner and if the monthly rent of the premises is rupees

four thousand or more, Chapter II and III would not

apply. It is submitted that as per admitted case of the

parties, the property is situated in Udaipur and rent is

more than Rs.4000/-, as such, the Rent Tribunal has no

jurisdiction to entertain the application filed by the

respondent.. It is further argued by learned counsel for

the petitioner that the Appellate Tribunal has passed the

judgment on 4.3.2020 whereas the Rent Control

(Amendment) Act, 2017 came into force on 18.10.2017

whereby, clause (i)(ii)(iii) of Section 3 of the Act of 2001

were deleted and in such circumstances, the Appellate

Tribunal is required to take into consideration the fact

that the Rent Tribunal has no jurisdiction to pass the

judgment dated 28.4.2017.

In support of the contention, learned counsel for the

petitioner has placed reliance on a Division Bench's

decision of this Court at Jaipur dated 26.10.2017 passed

in DB Civil Reference No.1/2015 (K Ramnarayan

Vs. Shri Pukhraj) and other connected appeals. Learned

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counsel for the petitioner has also casually challenged the

findings of the Rent Tribunal as well as the Appellate

Tribunal in respect of issue Nos.1 and 2.

Per contra, learned counsel for the respondent has

opposed the writ petition and argued that by virtue of

Section 18 of the Act of 2001, he has rightly filed the

eviction petition before the Rent Tribunal as jurisdiction of

civil courts was barred at the places where the Act of

2001 extends. It is further submitted that the property in

question is situated in Udaipur, which is a Divisional

Headquarter and the Act of 2001 extends to the city of

Udaipur.

In support of the contention, learned counsel for the

respondent has placed reliance on the decision of this

Court rendered in the case of Smt. Nalini Mehta Vs.

State Bank of India & Ors., reported in 2007 (3) CDR

1903 (Raj.) and decision dated 26.8.2011 rendered in

the case of Uma Shanker Vs. Seth Sugan Chand

Charitable Trust, Sriganganagar (SB Civil Revision

Petition No.35/2011).

In relation to the findings on the other issues,

learned counsel for the respondent has argued that the

Rent Tribunal as well as the Appellate Tribunal, after

taking into consideration the ocular and documentary

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evidence produced on behalf of the parties, have not

committed any illegality in deciding the issue Nos.1 and 2

and the concurrent findings of fact on the said issues are

not liable to be interfered with.

Heard learned counsel for the parties and perused

the material available on record.

So far as the contention of the petitioner to the

effect that the Rent Tribunal has no jurisdiction to

entertain the eviction petition preferred on behalf of the

respondent is concerned, I am of the view that the said

contention is bereft of any merit. It is to be noticed that

the rented premises is situated in Udaipur and the Act of

2001 applies in Udaipur also at the time of filing of

eviction petition. This Court in the case of Smt. Nalini

Mehta (supra) while considering a dispute in relation to

premises situated in Udaipur has held as under :-

"13. The Rajasthan Rent Control Act, 2001 is "to provide for control of eviction from letting of , and rents for, certain premises in the State of Rajasthan and matters incidental thereto". The Act has been divided in seven chapters under the heads: (I) preliminary; (II) Revision of Rent; (III) Tenancy; (IV) Restoration of Possession of Illegally Evicted Tenant and Procedure Thereof ; (V) Constitution of Tribunals, Procedure for Revision of Rent and Eviction, Appeal and Execution; (VI) Amenities; and (VII) Miscellaneous. Section 1 of the Act clearly provides that it extends, in the first instance, to such of the

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Municipal areas which are comprising the District Headquarters in the State and later on to such of the other Municipal areas having a population exceeding 50,000 as per 1991 census as the State Government, may by notification in the Official Gazette would specify. Sub-section (3) of Section 1 provides that this Act would come into force with effect from such date as may be appointed by the State Government by notification in the Official Gazette. The State Government has appointed First day of April, 2003 as the date on which this Act shall come into force and it shall extend to all the Municipal areas which are comprising the District Headquarters.

14. The premises in question are situated at Udaipur and it is not in dispute that it is a Municipal area comprising a District Headquarter. Therefore, the Act of 2001 directly extends to the area in question.

15. Chapters II and III of the Act, containing Sections 6 to 10, dealing with revision of rent in respect of existing tenancies (Section 6), revision of rent in respect of new tenancies (Section 7), limited period of tenancy (Section 8), eviction of tenants (Section 9) and right of landlord to recover immediate possession in certain cases (Section 10) are the provisions which have clearly been excluded in respect of certain premises and tenancies under Section 3 of the Act. It is also not in dispute that the premises in question are situated at a place in the Municipal area comprising Divisional Headquarter of Udaipur and have been let out at a monthly rent of Rs. 39,610/-but seem not to have been let out for residential purposes. However, the premises in question have been let out to the State Bank of India and clearly, therefore, by virtue of provisions of Section 3 (X), Chapters II and III of the Act do not apply to the premises and the tenancy in question.

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16. Section 18 of the Act (contained in Chapter V), which deals with jurisdiction of the Tribunal provides thus,-

"18. Jurisdiction of Rent Tribunal: -(1) Notwithstanding anything contained in any other law for the time being in force, in the areas to which this Act extends for the time being, only the Rent Tribunal and no Civil Court shall have jurisdiction to hear and decide the petitions relating to disputes between landlord and tenant and matters connected therewith and ancillary thereto, filed under the provisions of this Act:

Provided that Rent Tribunal shall, in deciding such petitions to which provisions contained in Chapters II and III of this Act do not apply, have due regard to the provisions of Transfer of Properties Act, 1882 (Act No. 4 of 1882), the Indian Contract Act, 1872 (Act No. 9 of 1872), or any other substantive law applicable to such matter in the same manner in which such law would have been applied had the dispute been brought before a Civil Court by way of suit.

Provided further that nothing contained in this Act shall be deemed to empower the Rent Tribunal to entertain a petition involving such dispute between landlord and tenant to which provisions of the Rajasthan Public Premises (Eviction of Unauthorised Occupants) Act, 1964 (Act No. 2 of 1965) and the Rajasthan Premises (Requisition and Eviction) Ordinance, 1949 apply.

(2) Where the petition only for recovery of unpaid rent or arrears of rent is filed, the time schedule and procedure enumerated in Section 14 shall mutatis mutandis apply to such petition.

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(3) Where the petition for recovery of possession is filed in respect of the premises or tenancies to which the provisions of Chapters II and III of this Act do not apply, the time schedule and procedure enumerated in Section 15 shall mutatis mutandis apply to such petition.

(4) A petition shall be instituted before the Rent Tribunal, within the local limits of whose jurisdiction the premises is situated."

17. Section 29 of the Act (contained in Chapter VII) provides for an overriding effect of the provisions of this Act and reads as under,-

"29. Act to have overriding effect.-The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other Law for the time being in force or in any instrument having effect by virtue of any Law other than this Act."

18. It is also not in dispute that from the date notified in Sub-section (3) of Section 1, the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 stands repealed by virtue of Section 32 of the Act of 2001.

19. The question is as to whether because of non- applicability of Chapters II and III to the premises in question, the Civil Court only is required to be approached for a dispute concerning such premises and the Tribunal has no jurisdiction to deal with any such dispute? This Court is clearly of opinion that the answer to this question is in the negative.

20. By virtue of Section 3 of the Act only Chapters II and III have been excluded from application to certain premises and tenancies but significantly not all the provisions of the Act whole-hog. By virtue of Section 1 itself , from the date of its coming into force, the Rajasthan Rent Control Act, 2001 applies to the area in question

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i.e., Udaipur. Obviously, such premises or tenancies which answer to the description as provided under Section 3, would be governed by the provisions of the Act excluding Chapters II and III thereof.

21. The plain meaning is that the provisions of revision of rent, so also of limited period tenancy and obtaining an advance certificate of possession (as provided under Section 8) and of restriction on eviction with several grounds thereof (as provided under Section 9) and of right to recover immediate possession (as provided under Section

10) would not apply to such tenancies. Obviously, therefore, the relationship of parties, where the tenancy is of the nature which answers to the description of the clauses of Section 3, would be governed by the contractual terms and conditions and so also the fundamental principles of the Transfer of Property Act and the Contract Act or any other substantive law, wherever and to whatever extent applicable.

22. Such scheme of the enactment becomes obvious on a bare look at the provisions of Section 18 of the Act as quoted hereinabove. The said provision itself has got an absolute overriding effect over any other law for the time being in force in relation to the areas to which the Act applies and in such areas only the Rent Tribunal and no Civil Court have jurisdiction to hear and decide the petitions relating to the disputes between landlord and tenant. The fact that such petitions could also be in relation to such premises to which the provisions contained in Chapters II and III do not apply is clearly highlighted by the first proviso to Section 18 which clearly provides for the matters to be kept in view by the Tribunal while dealing with such petitions to which the provisions contained in Chapters II and III do not apply; and only exclusion has been provided in second proviso for the premises to which the provisions of Rajasthan Public Premises (Eviction of Unauthorised Occupants) Act, 1964 and the Rajasthan Premises (Requisition and Eviction) Ordinance, 1949 apply. Sub-section (3) of Section 18 makes the position

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clear that in respect of these kind of premises, to which Chapters II and III do not apply, the time schedule and procedure as enumerated in Section 15 shall mutatis mutandis apply."

Further in the case of Uma Shanker (supra), this

Court has held as under :-

"5. Having heard the learned counsels at some length and upon perusal of provisions of the Act of 2001 and the case laws cited at the bar, this Court is of the opinion that in view of proviso to Section 18(1) and Section 18(3) of the Act, it is clear that even though a Trust, like the present respondent, to whom Chapter II and III of the said Act of 2001 do not apply, it can approach the Rent Tribunal for seeking eviction of a tenant or even a trespasser. Section 18 of the Act reads as under:-

"18.Jurisdiction of Rent Tribunal.-(l) Notwithstanding anything contained in any other law for the time being in force, in the areas to which this Act extends, only the Rent Tribunal and no civil court shall have jurisdiction to hear and decide the petitions relating to disputes between landlord and tenant and matters connected therewith and ancillary thereto, filed under the provisions of this Act:

Provided that Rent Tribunal shall, in deciding such petitions to which provisions contained in Chapter II and III of this Act do not apply, have due regard to the provisions of Transfer of Properties Act, 1882 (Act No.4 of 1882) the Indian Contract Act, 1872 (Act No. 9 of 1872), or any other substantive law applicable to such matter in the same manner in which such law would have been applied had the dispute been brought before a civil court by way of suit:

Provided further that nothing contained in this Act shall be deemed to empower

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the Rent Tribunal to entertain a petition involving such dispute between landlord and tenant to which provisions of the Rajasthan Public Premises (Eviction of Unauthorised Occupants) Act, 1964 (Act No. 2 of 1965) and the Rajasthan Premises (Requisition and Eviction) Ordinance, 1949 apply.

(2) Where the petition only for recovery of unpaid rent or arrears of rent is filed, the time schedule and procedure enumerated in section 14 shall mutatis mutandis apply to such petition. (3) Where the petition for recovery of possession is filed in respect of the premises or tenancies to which the provisions of Chapter II and III of this Act do not apply, the time schedule and procedure enumerated in section 15 shall mutatis mutandis apply to such petition." (4) A petition shall be instituted before the Rent Tribunal, within the local limits of whose jurisdiction-the premises is situated."

6. Since the Rent Tribunals have been given power to deal with incidental matters relating to dispute between landlord and tenant also, the case in hand, where suit for possession has been filed before the civil court, is also covered by the said proviso to Section 18 (1) of the Act and could be held to be rightly maintainable before the Rent Tribunal. There is also considerable force in the submission of learned counsel for the petitioner defendant that the plaintiff, on the other hand, would get better remedy in view of specialized Tribunal, quicker time frame for getting the petition tried rather than a civil court."

This Court is of the opinion that the reliance placed

by learned counsel for the petitioner on the judgment of

Division Bench of this Court at Jaipur in the case of K

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Ramnarayan (supra) is wholly misplaced. The Division

Bench in that case was considering the issue that a

decree of eviction passed by a civil court at the time

when the Act of 2001 was not applicable in the area

where the premises is situated would survive after the

Act of 2001 extends to such area and what would be the

fate of the appeal against such decree of eviction which is

pending adjudication before the appellate court. The

Division Bench has held that once the Act of 2001 was

extended to the municipal area, the civil courts would

lose its jurisdiction to adjudicate the dispute between

landlord and tenant and the appeal against the decree of

eviction passed by the civil court would also lapse.

However, in the present case, when the eviction

petition was filed, the Act of 2001 was applicable in

Udaipur where the premises is situated, therefore, by

virtue of Section 18 of the Act of 2001, exclusive

jurisdiction of adjudicating the dispute between landlord

and tenant in the Udaipur city was with the Rent Tribunal

only. In such circumstances, I find no illegality in the

judgments passed by the Rent Tribunal as well as the

Appellate Tribunal in respect of issue No.3 regarding

jurisdiction.

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So far as the other issues are concerned, the Rent

Tribunal as well as the Appellate Tribunal have

meticulously examined the evidence produced before

them and have concluded that the rented premises was

let out to the petitioner initially for one year in the year

2008 on monthly rent of Rs.7500/- plus Rs.800/- as

society charges and the said tenancy came to an end on

5/6th of March, 2013 through a notice sent by the

respondent and received by the petitioner. The Rent

Tribunal as well as Appellate Tribunal have not found

favour with the contention of the petitioner that the

respondent has sold the rented premises to the petitioner

through an oral agreement while receiving rupees one

lakh in advance. Both the Tribunals have observed that

the petitioner has failed to prove that any such oral

agreement was ever executed between him and the

respondent and he has also failed to prove that he has

paid rupees one lakh to the respondent in advance on a

particular date and place.

Having gone through the evidence adduced by the

parties before the Rent Tribunal as well as the Appellate

Tribunal, I am of the view that the findings of both the

Tribunals in respect of issue Nos.1 and 2 cannot be said

to be perverse in any manner and, as such, the said

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concurrent findings of fact are not liable to be interfered

with.

In view of the above discussion, I do not find any

illegality in the judgments passed by the Rent Tribunal as

well as the Appellate Tribunal.

Hence, this writ petition being bereft of any force is

hereby dismissed.

Stay petition is also dismissed.

(VIJAY BISHNOI),J

ms rathore

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