The first amendment in the Rent Control Order, namely, sub-clause 4-A(a) as was brought into force on 27-6-1989 and Clause 13-A introduced in the Rent Control Order, 1949 by the Second Amendment were not applicable to the suit plot.

Headnote:
RENT CONTROL - AMENDMENTS - APPLICABILITY - OPEN PLOT - The first amendment in the Rent Control Order, namely, sub-clause 4-A(a) as was brought into force on 27-6-1989 was not applicable to the suit plot. The second amendment and more particularly, Clause 13-A was introduced in the Rent Control Order, 1949 to make the first amendment applicable to the suits and other proceedings filed and pending against the tenant, which is amply clear from the language of the said clause.
Fact of the Case:

The petitioner had initially inducted the father of Respondent No. 2 as a tenant for the residential house by agreement dated 9-8-1967 and subsequently by agreement dated 4-1-1974. On 5-5-1977, a fresh lease deed was executed between the petitioner and present Respondent No. 2 in respect of the same house and the lease was renewed by another agreement dated 10-5-1983 by signing a Registered Lease Deed. There was an open site adjacent to this residential house, admeasuring 125 Ft. East West x 85 ft. North South excluding the residential premises and the present petitioner entered into an agreement of tenancy with Respondent No. 2 on 2-5-1983 and in the said lease deed it was specifically made clear that the lease period will commence from 2-5-1983 and expire on 1-4-1986, i.e., the lease period was only for 35 months on a monthly rent of Rs. 225/- and Rs. 75/- per month separately towards the taxes.
Finding of the Court:

The first amendment was not applicable to the instant case because tenancy in respect of the open plot was deemed to have expired immediately after 10-4-1986 in view of provisions of section 106 of Transfer of Property Act and the suit plot was not covered under the provisions of the Accommodation Act, 1946 when the suit was decreed. The second amendment brought into force as on 27-10-1989 also specifically provides that the said amendment will come into force on the day it was published in the Gazette and the intention of the competent Authority is made clear from this specific provision inasmuch as the intention is that the Second Amendment would be prospective and not retrospective.
Issues: Whether the first amendment in the Rent Control Order, namely, sub-clause 4-A(a) as was brought into force on 27-6-1989 and Clause 13-A introduced in the Rent Control Order, 1949 by the Second Amendment were applicable to the suit plot.
Ratio Decidendi: The first amendment was not applicable to the suit plot because tenancy in respect of the open plot was deemed to have expired immediately after 10-4-1986 in view of provisions of section 106 of Transfer of Property Act and the suit plot was not covered under the provisions of the Accommodation Act, 1946 when the suit was decreed. The second amendment brought into force as on 27-10-1989 also specifically provides that the said amendment will come into force on the day it was published in the Gazette and the intention of the competent Authority is made clear from this specific provision inasmuch as the intention is that the Second Amendment would be prospective and not retrospective.
Final Decision: Writ Petition No. 540/91 is disposed of in terms of the findings. Civil Revision Application Nos. 160/95 and 161/95 and connected pending matters be decided on the basis of the findings. Leave granted to the respondent No. 2 to approach the Supreme Court.

JUDGMENT - MARLAPALLE B.H., J.:---The petitioner Shri Mohammad Azizul Haq s/o Mohammad Abdul Haq is the owner of the land and Respondent No. 2 Shri Dilip Murlidhar Lohia is a tenant. The petitioner had initially inducted the father of Respondent No. 2 as a tenant for the residential house by agreement dated 9-8-1967 and subsequently by agreement dated 4-1-1974. On 5-5-1977, a fresh lease deed was executed between the petitioner and present Respondent No. 2 in respect of the same house and the lease was renewed by another agreement dated 10-5-1983 by signing a Registered Lease Deed. There was an open site adjacent to this residential house, admeasuring 125 Ft. East West x 85 ft. North South excluding the residential premises and the present petitioner entered into an agreement of tenancy with Respondent No. 2 on 2-5-1983 and in the said lease deed it was specifically made clear that the lease period will commence from 2-5-1983 and expire on 1-4-1986, i.e., the lease period was only for 35 months on a monthly rent of Rs. 225/- and Rs. 75/- per month separately towards the taxes. On 8-3-1986, the petitioner served a notice on the respondent informing him that the tenancy of the open plot was to expire on 1-4-1986 as per agreement dated 2-5-1983 and, therefore, he called upon Respondent No. 2 to vacate the premises (open plot).

2. As there was no response from Respondent No. 2 to vacate the leased open plot, the petitioner approached the Civil Court by filing Regular Civil Suit No. 447 of 1986 and the said Regular Civil Suit came to be registered as Small Causes Suit No. 268 of 1987 as per the order dated 9-6-1987 passed by the Presiding Officer. The said Small Causes Suit came to be allowed by Judgment dated 27-4-1989 by the 5th Joint Civil Judge (Jr. Division), Akola. The learned Joint Civil Judge had, in all, framed 7 points for his consideration and while recording his finding on the first point, he came to the conclusion that the tenancy of the suit plot was separate from the tenancy of the residential house and in reply to the second question, the learned Judge recorded a finding that the suit plot was an open plot and hence the provisions of Rent Control Order, 1949 were not applicable. The learned Judge granted Rs. 900/- towards damages from 2-4-1986 to 2-7-1986.

3. Being aggrieved by the judgment and decree passed by the learned Joint Civil Judge, allowing the suit for eviction, the present Respondent No. 2 filed Appeal No. 193 of 1989. While the said appeal was pending before the District Judge at Akola, by Gazette dated 27-6-1989, the Government of Maharashtra issued Central Provinces and Berar Letting of Houses and Rent Control (Amendment) Order, 1989, in exercise of the powers conferred by section 2 of the Central Provinces and Berar Regulation of Letting of Accommodation Act, 1946, wherein for the word 'house' wherever occurred, the word 'premises' came to be substituted and by clause (4A), the definition of the word 'premises' was incorporated. The State Government thereafter issued the second amendment order, namely, Central Provinces and Berar Letting of Premises and Rent Control (Second Amendment) Order, 1989, in exercise of the powers conferred by section 2 of the Central Provinces and Berar Regulation of Letting of Accommodation Act, 1946. By this second amendment, the Government had, inter alia, incorporated clause 13-A. In para 1(2) of the said Second Amendment Order, it was stipulated that the Second Amendment shall come into force on the date of its publication in the Official Gazettee. In an Extraordinary Gazette dated 27-10-1989, the Second Amendment order came to be published.

4. Two learned Single Judges of this Court in two separate cases, namely, (Smt. Gangubai v. Nilkanth)1, 1991 Mh.L.J. 1178 by Desai, J.) and in (Mohd. Rafik v. Tahera Begum)2, in Second Appeal No. 148 of 1977 with Second Appeal No. 149 of 1977 decided on 7-2-1991 by Chavan J. had held that in view of clause 13-A of the Second Amendmen

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1997 Supreme(Bom) 572

The first amendment in the Rent Control Order, namely, sub-clause 4-A(a) as was brought into force on 27-6-1989 and Clause 13-A introduced in the Rent Control Order, 1949 by the Second Amendment were not applicable to the suit plot.

Cases Referred (3)

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