BISWANATH BHAGAT Vs. RAMANANDALAL FB

JUDGEMENT

(1.) proceeding for eviction is maintainable before the House Rent Controller, even after the Orissa House Rent Control Act, 1967 (for short, "the Act") ceased to be in force, has made it necessary for this larger Bench to consider that question. In the Umakant Pradhan v. S.D.J.M.-cum-House Rent Controller, 69 (1990) CIT 207, this Court held that the House Rent Controller would have no jurisdiction to entertain a proceeding for eviction initiated after the expiry of the Act. The reasons given for taking that view are that under Section 1(4) of the Act read with S. 5 of the Orissa General Clauses Act what is saved is an acquired or accrued right and not a mere possibility of acquiring a right; that the right which the landlord gets under Section 7 of the Act, either because of default in payment of rent or on any other ground for eviction mentioned therein is merely a right to approach the House Rent Controller with a prayer to evict the tenant; and that such a right cannot be regarded as an 'acquired' or 'accrued' right within the meaning of Section 5(1)(c) of the Orissa General Clauses Act as against that, another Division Bench in Abdul Gafoor v. Md. Suleman, 1990 (II) OLR 262, has held that the House Rent Controller will have jurisdiction to entertain a proceeding for eviction if the wilful default in payment of a rent had taken place before the expiry of the Act, because as a result of nonpayment of rent by tenant, the landlord acquired a right to demand vacant possession of the premises and a corresponding liability was incurred by the tenant for eviction, and in respect of such right or liability, a proceeding can be instituted, continued and enforced in view of Section 1(4) of the Act with Section 5 of the Orissa General Clauses Act.

(2.) Before we proceed to consider which view is correct, we may state the relevant facts. The petitioner owns a house in the locality known as Nayasarak in Cuttack town. It was originally let out to opposite parties 1 to 5 for carrying on business. After some time, they shifted their business to some other places, but opposite parties 4 and 5 along with the wives (opposite parties 6, 7 and 8) of opposite parties 1 to 3, started another partnership business of the same type therein. Opposite party No. 7 and the sons of opposite parties 8 and 9 are also carrying on business in that house in a different name. The petitioner's case is that the opposite parties have not paid rent since August, 1983. They have wilfully defaulted in making payment in spite of repeated demands and have thus become liable to be evicted. It is also the petitioner's case that he bona fide requires the house for his personal use and occupation. On these grounds and also for determination of fair rent, he filed House Rent Control Case No. 49 of 1988 in the Court of the House Rent Controller, Cuttack. The House Rent Controller, relying upon the decision of this Court in Umakant's case, held that the proceeding was not maintainable as it was filed on 20-6-1988, i.e., after expiry of the Act on 4-5-1988. That order passed by the House Rent Controller is challenged in this petition.

(3.) It was submitted by the learned advocate for the petitioner that even though the Act was a temporary statute and it ceased to be in force from 4-5-1988, in view of the specific provision made in Section 1(4) of the Act, Section 5 of the Orissa General Clauses Act would apply as if the Act had been repealed and, therefore, if any right was acquired by or had accrued to the landlord or any liability was incurred by the tenant in respect of things done or omitted to be done before the expiration of the Act, a proceeding can be initiated, continued and enforced as if the said Act still continues to be in force for that limited purpose. In support of the submission, the learned advocate relied upon the decision of this Court in Shadiram Sharma v. State of Orissa, (1990) 69 CLT 783, and also upon the decision in Kuberdas v. State of Bombay, AIR 1960 Bom 459; A.K.L. Labbai v. Govt. of India, AIR 1983 Mad 102; Sakharam v. Manikohand, AIR 1963 SC 354; and Amadalvalasa v. Union of India, AIR 1976 SC 958: (1976 Lab IC 628). As this position of law is now no longer in dispute, it is not necessary to consider all these decisions.