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PETITIONER: ANAND PRAKASH MALIK

       Vs.

RESPONDENT: BHAGWANDAS

DATE OF JUDGMENT:       28/04/1998

BENCH: A.S. ANAND, V.N. KHARE

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Respondent filed a Civil Suit under the general law for eviction of  the appellant  from shop No. 652/W-3 situate at Panipat and  for recovery  of Rs.  330/- as compensation for use and  occupation from January 14, 1976 to March 13, 1976, besides a  sum of  Rs. 134.06 ps. as house tax and Rs. 15.94 ps. as notice expenses.      According to  the case  set up  by the  landlord in the plaint after the demised premises were vacated by an earlier tenant, Bhagwan  Singh,  he  reconstructed  the  shop  after getting sanction  from the Municipal Committee, Panipat. The construction was completed in December, 1968. The appellant- tenant took  the premises  on rant for a period of 11 months with effect from 14.2.1975 @ Rs. 165/- per months plus house tax after executing a rent note dated 14.2.1975.      After the  expiry of  the  period  of  11  months,  the tenancy stood  determined by  afflux of  time and the tenant who did  not vacate was holding over the property in suit as tenant-in-sufferance. It  was pleaded  that a  valid  notice under Section 106 of the Transfer of Property Act was issued to the  tenant but  despite  that  he  did  not  vacate  the premises. A  specific plea was raised by the landlord to the effect that provisions of the Haryana Act No.11 of 1973 were not attracted and suit under the General law was competent.      The  tenant   resited  the  suit  and  in  the  written statement, apart from raising other objections regarding the maintainability of  the suit  in the  present form  and  the jurisdiction of  the civil  court to  entertain the suit, it was asserted  that the  landlord  had  filed  the  ejectment petition under  Section 13  of the   East  Punjab Urban Rent Restriction Act,  1949 in  respect of the room upstairs and, therefore, the suit under the General law could not proceed. Service of any  legal and valid notice was also denied.      From the  pleadings of the parties the following issues were framed :- "1)  Whether the  property in  suit was  constructed  a  new      after 31.3.1962  as alleged  and, therefore, this Court      has jurisdiction to try this suit ? OPP 2)   Whether the  tenancy of the defendant was determined by      a valid  notice as  alleged and if so, to what effect ?

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    OPP 3)   Whether  the   defendant  has  been  holding  over  the      property after the expiry of the agreed period of lease      as alleged? OPP 4)   Whether the  suit is  not maintainable  in the  present      form ? OPD 5)   Whether  the  plaintiff    has  filled  petition  under      Section  13   of  the  Haryana  (Control  of  Rent  and      Eviction) Act  representing the  property  No.  651  as      alleged and if so, what effect ? OPD 6)   Whether the  shop and  a room  upstairs constructed one      tenancy for  a commercial purposes as alleged and if so      to what effect ? OPD 7)   Relief."      The trial  court after  recording  the  evidence,  held under Issue  No.  1  that  the  demised  premises  had  been constructed a  new in December, 1968. Issue Nos. 2 to 7 were decided in  favour of the landlord and the suit was decreed. On appeal,  the findings  recorded by  the trial court under Issues 2  to 7  were not  assailed. Finding  on Issue  No.1, however, was challenged. The first appellate court set aside the finding on Issue No.1 and opined :-      "12)   The setting aside of finding      on  issue   No.  1   is  necessary,      because if  the finding  remains on      record  it   is  likely  to  effect      adversely one  or the  other party.      The finding would have been allowed      to remain  intact if  it would have      been shown  that a decision on this      issue was  necessary  for  deciding      the  suit.  I  have  already  shown      above that  decision of  this Issue      was not  necessary  and  that  this      matter was pre-mature.      13)   In the  light  of  the  above      discussion I  set aside the finding      of the learned lower court on issue      No.1 and  direct that  this  matter      whether the property in dispute was      constructed on  the date as alleged      in  the   plaint  or   whether  the      property is covered by the Rent Act      or not,  whether the  decree of the      Civil Court  is executable  or not,      shall be  decided by  the Executing      Court and  when such  a dispute  is      raised before the Executing Court."      The  first  appellate  court,  however,  confirmed  the decree assed by the trial court.      A second  appeal was  filed in  the High  Court by  the appellant. The  learned  Single  Judge  of  the  High  Court rightly found that the approach of the first appellate court on Issue no.1 was wholly erroneous. The learned Single Judge however,  found   that  despite   the  application   of  the provisions of  the East  Punjab Urban  Rent Restriction Act, 1949(for short  the Punjab  Act) to  the territories forming State of  Haryana before  the enactment of the Haryana Urban (control of  Rent) and  Eviction Act,  1973, by  virtue of a Notification dated  22nd  October,  1971  published  in  the Haryana  Government   Gazette  of   November  2,  1971,  the buildings constructed  during the  years 1968, 1969 and 1970 were exempted  from the  provisions of  the Punjab Act for a period of  five years  from the date of "exemption"   and as such the civil suit was maintainable.

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    This appeal  by special  leave calls  in  question  the order of the High Court.      We have  heard learned  counsel for  the appellant.  No body has appeared for the respondent.      The finding  of the  learned Single Judge noticed above is based on a mis-reading of the Notification.      The Notification  dated 22nd  October, 1871  issued  in exercise of the powers under Section 3 of the Punjab A ct by the Government of Haryana reads thus :-      "Notification  No.   5601.   S.T.A.      71/30701 -  In  exercise  of  power      conferred  by  Section  3  of  East      Punjab Urban  Rent Restriction Act,      1949 (East  Punjab Act  3 of  1949)      the  Governor   of  Haryana  hereby      exempts every buildings constructed      during the  year 1968,  1969,  1970      from the provisions of said Act for      a period  of 5  years from the date      of its completion."      A  plain   reading  of   the  Notification  shows  that exemption from  the provisions  of the  Rent  Act  has  been granted to  buildings constructed during 1968, 1969 and 1970 for  a   period  of   five  years   from  the  date  of  its "completion". It  is not disputed and as a matter of fact it has been  held by  all  the  three  courts  below  that  the premises in  dispute were  constructed a  new  in  December, 1968. Therefore,  the period of exemption of five years from the provisions  of the Rent Act pursuant to the Notification dated 22nd October, 1971 has to be reckoned from the date of completion of  the construction and not from the date of the Notification. The  building  was  constructed  in  December, 1968. The period of exemption, as such, expired in December, 1973. Thus exemption from the provisions of the Rent Act was not available  on 30th  March, 1976, when the civil suit for eviction was  filed. Since,  the provisions  of the Rent Act were applicable to the building in question on the date when the suit  for eviction was filed, the eviction of the tenant could only  be sought  under the  provisions of the Rent Act and on the grounds as contained therein. Recourse to a civil suit under  the General  laws for  seeking eviction  of  the tenant was not permissible. The learned Single Judge fell in complete error in ignoring this vital aspect of the case.      Consequently, we  allow this  appeal and  set aside the judgment and  decree of  the courts  below and hold that the suit filed  by the  landlord  under  the  General  laws  for eviction of  the tenant was not competent and the remedy for eviction of  the appellant  lay under  the Rent  Restriction Act. Since,  the respondent is not present, we make no order as to costs.