DILIP Vs. MOHAMMAD AZIZUL HAQ

JUDGEMENT

(1.) Leave granted in S.L.P. (C) Nos. 6767-6768 of 1999.

(2.) Respondent No. 1 filed a civil suit against the appellant regarding the plot in Civil Suit No. 268 of 1987 on the ground that the premises is open land and the provisions of C.P. and Berar Letting of Houses and Rent Control Order, 1949 (hereinafter referred to as 'the Order') was not applicable to the said premises and that the tenancy of the appellant stood terminated by efflux of time followed by a notice dated 8th March, 1986 with effect from 1st April, 1986. The appellant took the stand that the premises in question is not an open plot but is a house as defined in the Order as the said land is a part and parcel of the residential house and the residential house cannot be used without the said land. Further it was contended that permission to construct a shed had been granted, the open land was no longer an open land as such shed had been constructed with permission. There is a well also situate in this land which is for the use of the occupants of the house in the premises and, therefore, clause 13-A of the Order would disentitle the respondent from obtaining the relief of a decree. The Civil Judge, Akola, passed a decree. The appellant preferred an appeal challenging the findings of the trial Court that the premises in possession of the appellant is an open plot and not a house as defined in clause 13 of the Order. On 27th June, 1989 the Order was amended by substituting the word "premises" for the word "house", wherever it occurs, and by this amendment, sub-clause (4-A) was also inserted in clause 2 whereby lands not being used for agricultural purposes also stood included in the definition of the "premises". Thereafter the State of Maharashtra made another amendment which became effective from 26th October, 1989 and introduced clause 13-A in the Order to the effect that 'no decree for eviction shall be passed in a suit or proceeding filed and pending against the tenant in any Court or before any authority unless the landlord produces a written permission of the Controller as required by sub-clause (1) of clause 13'. At that stage, the appellant filed an application under Order 7, Rule 11 of the Civil Procedure Code to contend that in view of the amendment introduced by insertion of clause 13-A read with the definition of "premises" in clause 2(4-A) the Order stood extended to open plots and, therefore, even on the basis of the plaint allegations the same was liable to be rejected. In the meanwhile, the respondent filed a writ petition before the High Court of Judicature at Bombay, Nagpur Bench, challenging the validity of clause 2(4-A) and clause 13-A of the Order on the ground that the same are ultra vires Section 2 of the C.P. and Berar Regulation of Accommodation Act, 1947 (hereinafter referred to as 'the Act'). The High Court stayed the proceedings in the appeal pending before the District Court. A Division Bench of the High Court declared the said provisions in clause 2(4-A) and clause 13-A of the Order ultra vires the Act. The appellant preferred an appeal by special leave to this Court. This Court allowed the said appeal and the matter stood remanded to the High Court with a direction to restore to its file the original writ petition and to decide the question with regard to the applicability of clause 2(4-A) and clause 13-A of the Order to the facts as available in the present case and to dispose of the writ petition afresh as to the vires of the clauses, if so warranted. In the meanwhile, Joint District Court, Akola, allowed the appeal filed by the appellant and the suit filed by the respondent No. 1 was dismissed. A revision application was filed before the High Court questioning the correctness of the order made in the appeal which is pending consideration by the High Court.

(3.) After remand in the writ petition, the High Court took the view that there was no appeal filed or pending against the tenant on 26th October, 1989 when the second amendment was published and hence it has to be inferred that no proceedings are filed or pending against the tenant as on that date and thus the amendment was not applicable to the instant case as the tenancy in respect of the open plot was deemed to have expired immediately on 10th April, 1986 in view of Section 106 of the Transfer of Property Act and the suit plot was not covered under the provisions of the Central Provinces and Berar Regulation of Letting of Accommodation Act, 1946 and the suit was decreed. The second amendment brought into force on 26th October, 1989 was not applicable to the plot as the same would be prospective and not retrospective. On that basis the High Court held that clause 2(4-A) and clause 13-A of the Order would not be applicable to the suit land and disposed of the writ petition. This order is in challenge before us.