Mahaveer International Apex vs Mahaveer International ...
2021 Latest Caselaw 5580 Raj/2

              HIGH COURT OF JUDICATURE FOR RAJASTHAN
                          BENCH AT JAIPUR

                     S.B. Civil Writ Petition No. 10544/2021

      Mahaveer International Apex, Having Its Address At S-10, 2Nd
      Floor, Janta Colony, Jaipur (Rajasthan) Through Its International
      President Mr. S.k. Jain.
                                                                        ----Petitioner
                                         Versus
      Mahaveer International Association, Jaipur Center Having Its
      Registered Office At S-10, Janta Colony, Jaipur (Rajasthan)
      Through Its President Mr. Subhash Golcha.
                                                                      ----Respondent

For Petitioner(s) : Ms. Sukriti Kasliwal For Respondent(s) : Mr. Suresh Sahni with Mr. Ram Mohan Sharma Mr. Manendra Singh Solanki

JUSTICE DINESH MEHTA

Order

Reserved on :: 30/09/2021 Pronounced on :: 05/10/2021 Reportable

1. Instant writ petition lays challenge to an order dated

11.08.2021 passed by the Presiding Officer, Rent Tribunal No.2,

Jaipur Metropolitan, Jaipur (hereinafter referred to as the 'Rent

Tribunal').

2. The facts lie in a very narrow compass; which are noted

hereinbelow :

(i) The respondent - landlord demised the property situated at

S-10 Janta Colony, Jaipur (hereinafter referred to as 'demised

property') on 11 years of lease w.e.f. 01.01.2009.

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(ii) On completion of lease period, the respondent - landlord

issued a notice dated 04.02.2020, requiring the tenant -

petitioner to hand over the possession.

(iii) When the tenant (petitioner herein) did not hand over the

possession of the demised property, the landlord (respondent

herein) filed an original application under section 18 of the

Rajasthan Rent Control Act, 2001 (hereinafter referred to as the

'Act of 2001') before the Rent Tribunal, Jaipur, seeking eviction of

the petitioner from the demised property inter alia stating that the

period of lease has expired.

(iv) The petitioner filed an application on 05.04.2021 under

section 18 of the Act of 2001 and contended that petition in

question is not maintainable, as the ground on which the

respondent has sought eviction does not fall in any of the

contingencies/grounds mentioned in section 9 or other provisions

of the Act of 2001.

(v) Learned Member of the Tribunal rejected petitioner's aforesaid

application vide its order dated 11.08.2021 inter alia observing

that there exists a clear relationship of landlord and tenant

between the applicant and non-applicant and the issue of the

jurisdiction as raised by the tenant is not required to be decided at

that stage.

3. Impugning the order dated 11.08.2021, Ms. Kasliwal,

learned counsel for the petitioner, vehemently argued that the

Rent Tribunal has erred in rejecting petitioner's application, which

raised fundamental question of jurisdiction.

4. She submitted that it was required of the Rent Tribunal to

have decided petitioner's application on its merit else; it has

resulted in failure of justice, as the original application is found to

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be rejected on the ground of jurisdiction alone. She submitted that

the Tribunal was not legally justified in refusing to delve upon the

question of jurisdiction by observing that the same is not required

to be decided at this stage.

5. Learned counsel argued that section 9 of the Act of 2001,

which begins with non-obstante clause, is very categorical and

accordingly the Rent Tribunal cannot order eviction of a tenant

unless it has recorded a satisfaction that the case filed by the

landlord falls within the contingencies mentioned in Clauses (a) to

(m) of section 9 of the Act of 2001.

6. She read all the clauses of section 9 of the Act of 2001 to

point out that the ground for which the respondent - landlord has

filed the eviction petition does not fall in any of the

contingencies/grounds mentioned in section 9 of the Act of 2001;

she added that it rather does not fall in any of the provisions of

the Act of 2001 and hence, the petition cannot lie before the Rent

Tribunal. The respondent - landlord, if advised, can maintain a

suit before the Civil Court, she submitted.

7. Mr. Sahni, learned counsel appearing for the respondent,

vehemently submitted that the contentions raised in the petition

have no substance in the eye of law and the same have been

raised only with a view to protract the eviction proceedings.

8. Inviting Court's attention towards section 18 of the Act of

2001, learned counsel argued that there is a clear and complete

exclusion of jurisdiction of Civil Courts, hence, no dispute between

a landlord and a tenant can be tried by a Civil Court.

9. He contended that true it is, that the respondent's case does

not fall in any of the contingencies mentioned in section 9 of the

Act of 2001, but the proviso to section 18 of the Act of 2001 which

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clearly stipulates that in cases where Chapter II and III do not

apply, the Tribunal shall have due regard to the provisions of

Transfer of Properties Act, 1882 and Indian Contract Act, 1872 or

any other substantive law having bearing on the question, does

not confer a jurisdiction to Rent Tribunal.

10. In order to give strength to his argument that a petition

seeking eviction on the ground of expiry or determination of lease

can be tried by the Rent Tribunal and the Tribunal alone, he cited

following judgments of this Court :

(i) Nalini Mehta Vs. State Bank of India : SB Civil Writ

Petition No.3076/2004, decided on 11.07.2005;

(ii) Raisa Bano Vs. Inayat Ali : SB Civil Writ Petition

No.8654/2012, decided on 16.01.2013 and

(iii) Gyaneshwar Bhati Vs. Balu Ram & Ors reported in AIR

2009 Vol.96 (Rajasthan) 94.

11. Heard.

12. While avoiding reproduction of clauses (a) to (m) of section 9

of the Act of 2001, it would be apt to reproduce only the relevant

part of section 9 of the Act of 2001 for ready reference :

"Notwithstanding, anything contained in any other law or contract but subject to other provisions of this Act, the Rent Tribunal shall not order eviction of tenant unless it is satisfied that -"

13. It will also not be out of context to reproduce section 18 of

the Act of 2001 :

"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, only the Rent Tribunal and no Civil Court shall have

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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 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.

14. Arguments advanced by Ms. Kasliwal at the first flush appear

to be attractive and one can form an opinion that the Rent

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Tribunal has the jurisdiction to order eviction only in contingencies

enumerated in clause (a) to (m) of section 9 of the Act of 2001

and if there is any other ground for which eviction is sought, the

landlord has to approach a Civil Court.

15. But a close and conjoint reading of sections 9 and 18 of the

Act of 2001, debunks such misconception and suggests otherwise.

16. Section 9 of the Act of 2001, which begins with a non-

obstante clause in no ambiguous terms provides that subject to

anything contained in any other law or contract, in case the

provisions of section 9 of the Act of 2001 are applicable, the Rent

Tribunal shall not order eviction of a tenant, unless it records a

satisfaction of presence of the contingencies/situations,

encapsulated in clause (a) to (m) of section 9 of the Act of 2001.

17. But then, section 9 of the Act is not the only repository of

powers of the Rent Tribunal. There are other provisions which

convey powers or jurisdiction upon the Rent Tribunals.

18. Section 18 of the Act of 2001 is so worded that while it

creates a complete embargo on the Civil Court to deal with

disputes between a landlord and a tenant, simultaneously it

confers a jurisdiction upon the Tribunal constituted under the Act

to try all disputes between them and matters connected therewith

and ancillary thereto.

19. Such being the position, the applicability of the Act of 2001

cannot be said to be restricted to the petitions that are filed under

Chapter II and III of the Act of 2001. All matters concerning a

landlord and tenant or any other ancillary dispute are required to

be tried under the Act of 2001.

20. A careful reading of sub-section (3) of section 18 of the Act

of 2001 steers clear of even slightest of doubt, inasmuch as it

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clearly provides that when a petition for recovery of possession is

filed in respect of premises or tenancy to which Chapter II to IV of

the Act of 2001 do not apply, the time schedule and procedure

prescribed under section 18 of the Act of 2001 would apply.

Hence, it is crystal clear that a petition for recovery of possession

can be filed in case of any other premise or tenancy, which is not

governed by Chapter II to IV of the Act of 2001.

21. If the intention of legislature was to confine jurisdiction of

Rent Tribunal to the cases governed by clauses (a) to (m) of

section 9 of the Act of 2001 only, then there was no occasion for

inserting sub-section (3) in section 18 of the Act of 2001.

22. In the case in hands, as the lease was for a period of 11

years, it is not governed by section 8 of the Act, hence, Chapter II

and III of the Act of 2001 are applicable.

23. As a corollary of discussion foregoing, this Court is of the

considered view that jurisdiction of Civil Courts to deal with any

matter, the case or the dispute between the petitioner and

respondent is required to be tried and decided by the Rent

Tribunal only.

24. My aforesaid view is fortified by the following judgments

relevant part whereof is reproduced hereinafter :

(i) Nalini Mehta Vs. SBI (supra) :

12. Having given a thoughtful and anxious consideration to the rival submissions and having examined the scheme of the Act of 2001, this Court is clearly of opinion that the impugned order proceeds on total misinterpretation of the plain provisions of law and cannot be sustained.

13. The Rajasthan Rent Control Act 2001 is "to the provide for control of eviction from letting of, and rents

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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 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

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situated at a place in the Municipal are 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.

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 provision 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

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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 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 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."

(ii) Raisa Bano Vs. Inayat Ali (supra) :

"5. Admittedly, Chapters II and III of the Act do not apply to landlord and tenant in the present case. The requirement of the Proviso to Section 18 (1) f the Act is only to mandate that the Rent Tribunal shall in such cases, have due regard to the provisions of the Transfer of Properties Act, 1872 and the Indian Contract Act, 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 being brought before the Civil Court by way of suit. Section 18 (1) otherwise starting with a non-obstante

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clause excludes the jurisdiction of the civil courts and vests the jurisdiction to try the cases arising under this special law, namely, Rajasthan Rent Control Act, 2001 in the specially constituted Rent Tribunals only.

5. The said Proviso and main Section 18 (1) of the Act of 2001, therefore, includes within its compass, the disputes between the landlord and the tenant, including the incidental matters and even matters connected therewith as ancillary thereto. If at the root of the dispute is the relationship between the parties as that of being landlord and tenant, as defined in this Act, the jurisdiction of civil courts is excluded and special jurisdiction is vested in the Rent Tribunals, constituted under this law. The reference to Proviso to Section 18 (1) by the learned counsel for the petitioner in support of his submissions that since the matter arises under the Indian Contract Act, therefore, such jurisdiction of Rent Tribunal should be excluded, is misconceived. The Proviso merely says that the Rent Tribunal shall have due regard to these enactments also while dealing with a dispute arising under the Rajasthan Rent Control Act, 2001 between the landlord and the tenant and the incidental and ancillary matters connected therewith, are also included within the jurisdiction of the Rent Tribunal to the exclusion of civil courts.

6. In the present case in hand, admittedly, the dispute is about the repairs undertaken by the tenant of the suit premises and, therefore, relationship of landlord and tenant is admitted. Upon such repairs purportedly carried out by the tenant under the Rent Agreement and thereby entitling him to claim the costs of such repairs from the landlord, is a dispute in the present application filed before the Rent Tribunal. In view of admitted relationship of landlord and the tenant between the petitioner and the respondent, the

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jurisdiction of civil court is clearly excluded under Section 18 (1) of the Act of 2001. The dispute being necessarily incidental and ancillary to the relationship of landlord and the tenant, the learned Rent Tribunal by passing the impugned order dated 05.03.2012 has rightly decided the issue of jurisdiction holding that it had the jurisdiction to decide such application or suit."

(iii) Gyaneshwar Bhati Vs. Balu Ram (supra) :

"15. However, having heard the learned counsels at length and upon perusal of the impugned order of the learned trial Court and the judgments cited at the bar, this Court is of the opinion that the learned trial Court has erred in rejecting the application under Order 7 Rule 11 C.P.C. filed by the defendants. In fact, the contentions raised by the defendant No.4 - present petitioner in his application which have been reproduced in para 1 at page 3 and 4 of the impugned order have not been met by the learned trial Court at all, but the findings have been returned against him while discussing the reply filed by the plaintiffs to the application under Order 7 Rule 11 C.P.C. filed by other defendants No.1 to 3, namely, Shri Ghanchi Mahasabha through its President and the Secretary. The said reply was discussed in para 2 at page 8 of the order of the learned trial Court below. The learned trial Court while holding on the one hand in para 5 that under resolution dated 13.4.2008, the General Body of Ghanchi Mahasabha had let out the premises in question to the defendant No.4 for auction sum of Rs.11,61,000/- and Rs.7000/- per month, hastened to add his finding that the general body of Shri Ghanchi Mahasabha was not the owner of the suit property. In the opinion of this Court, there was no basis for giving this finding by the learned trial Court. Secondly in para 3(a) at page 7 of the order, the learned trial Court has proceeded to give

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finding that there was no relationship of landlord and tenant between the defendant No.4 and the plaintiffs. Obviously it was not so because it was for General body of Shri Ghanchi Mahasabha which upon an open auction held on 13.4.2008, in which one of the plaintiffs himself had participated, decided to give the suit premises to the defendant No.4 - present petitioner as a tenant. Once the relationship of tenant and landlord between Shri Ghanchi Mahasabha and the present petitioner was prima facie established, any suit which has the effect of ousting the defendant No.4 who was put in possession under the said resolution of the general body would fall within the terms "matters connected therewith and ancillary thereto" used in Section 18 of the Rajasthan Rent Control Act, 2001. If this was not so, any disgruntled member of the Society can upset such established relationship of landlord and the tenant by filing a suit without claiming any relief of possession and thus avoiding payment of court fee ad-valorem. If the main but hidden purpose of filing of suit is to dispossess the tenant put in possession through resolution of general body, the Court can always lift such veil and see real purpose of filing of suit. Section 18 of the Rent Control Act of 2001 admittedly bars the jurisdiction of any Civil Court in the matters relating to tenancy and even ancillary matters are liable to be decided by the Rent Tribunal. In sum and substance, the suit filed by the present plaintiffs was to see revocation of resolution dated 13.4.2008 which could only have the effect of terminating the tenancy in favour of the present petitioner - defendant No.4. Therefore, such a suit could only be filed before the Rent Tribunal."

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25. The writ petition, therefore, fails.

26. Stay application also stands dismissed accordingly.

(DINESH MEHTA),J A.Arora/-

(Reserved)

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