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East Punjab Urban Rent Restriction Act 1949 – Evolution

Avnish Mittal
29 May 2020 4:31 PM GMT
East Punjab Urban Rent Restriction Act 1949 – Evolution
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As the word Rent suggests it can easily be construed that any Rent Law is a law that is used as a tool to control and regulate the relationship and also adjudicate the disputes arising between the landlord and tenant.

The historical background of the rent legislation in the erstwhile State of Punjab relates back to the time of Second World War, which started in the year 1939, when various taxes were imposed by the British Government to set off the cost of the war under the provisions of Punjab Urban Immoveable Property Tax Act, 1940. The effect of imposition of this new tax on the urban property led to a steep rise in rents of the property in the concerned area which further led to the various landlords getting their rented accommodation vacated for letting it out fresh on a higher rent.

In order to control the said situation, and also to avoid the shortage of accommodation, the British Government enacted The Punjab Rent Restriction Act 1941. The object and purpose of the said Act was to ensure that the rent was not increased unduly by the landlords. The said Act came into force, initially for a period of 5 years, however the same could be extended further by a resolution of the State Assembly. The rate of rent, as in the act, was chosen to be the rent existing on 01.01.1939, or the rate on which the properties were first let out. There was a clear embargo in the said Act, whereby the rent could only be increased if the landlord provided extra amenities, at his own expense, to the tenant. Any amount, in excess of the such rent, if taken by the landlord, could be legally recovered back by the tenant.

The said Act was, although, to remain in force for a period of 5 years, but however, it was extended further and continued to operate till the time it was replaced by The Punjab Urban Rent Restriction Act 1947. The said Act introduced the concept of Controller and Appellate Authority (Judicial Authorities to administer the Act), and was made applicable to the entire province.

In this new enactment, grounds of ejectment were introduced, whereby the landlord could seek the ejectment of the tenant from the demised premises only on such grounds and no other; Concept of fair rent was also introduced. Further Many provisions of CODE OF CIVIL PROCEDURE were made applicable for the purpose of summoning of witnesses and execution of orders. Any violation of these provisions was made punishable under section 19 of the said Act.

After the partition of the Country in 1947, the part of Punjab that remained in India was popularly called as East Punjab in those days, and as a result the 1947 Rent Act was replaced by the East Punjab Rent Restrictions Act 1949. The said act was a complete legislation in itself, whereby it not only defined the concept of landlord and tenant, but also classified the building into three categories - residential, non residential and scheduled building, apart from a separate category of rented land. It further laid down the exhaustive procedure for protection of tenants from unscrupulous landlords, but also laid down detailed and exhaustive grounds under Section 13, whereby the landlord could seek the eviction of his tenant. The grounds specified therein were like arrears of rent, subletting, material alteration so as to affect the value and utility of the premises, nuisance, tenant ceasing to occupy and the personal necessity of the landlord.

The East Punjab Urban Rent Restriction Act, 1949 (the Act) - prior to 1956 - permitted a landlord to evict his tenant from a non-residential building on the ground of bona fide requirement for his own use, however, the said right of the landlord was taken away by the East Punjab Urban Rent Restriction (Amendment) Act, 1956 (Punjab Act 29 of 1956) (the Amendment) which came into force on September 24,1956. The relevant provisions of the Act prior to the amendment were as under:

"Section 13 - Eviction of Tenants.

(3)-

(a) A landlord may apply to Controller for an order directing the tenant to put the landlord in possession:

(ii) in case of a non-residential building or rented land, if-

(a) he requires it for his own use;

(b) he is not occupying in the Urban Area concerned for the purpose of his business any other such building or rented land as the case may be; and

(c) has not vacated such a building or rented land without sufficient cause after the commencement of this Act, in the Urban Area concerned."

The amendment was enforced by the notification dated September 24, 1956. The relevant provisions of the Amendment are as under:

"1. Short title -This Act may be called the East Punjab Urban Rent Restriction (Amendment) Act, 1956.

2. Amendment of section 13 of East Punjab Act III of 1949. - In clause (a) of sub section (3) of section 13 of the East Punjab Urban Rent Restriction Act, 1949, hereinafter referred to as the principal Act -

(i) (a)

(b)

(ii) (a) In sub-clause (iii) the words "a non-residential building or" shall be omitted.

(b) In sub-paragraph (b), the words "building or" and the words "as the case may be" shall be omitted.

(c) In sub-paragraph (c), the words "a building or" shall be omitted.

(iii)

(iv) In sub clause (iv), for the words "any building", where they first occur, the words ("any residential building") shall be substituted.

In the second proviso, for the words "a residential, a scheduled or non-residential building or rented land", the words ("a residential building or rented land") shall be substituted.

After the enforcement of the amendment the provisions of the Act are as under:

"(3) (a) A landlord may apply to Controller for an order directing the tenant to put the landlord in possessions.

(ii) in case of (xxx) rented land, if.

(a) he requires it for his own use;

(b) he is not occupying in the urban area concerned for the purpose of his business any other such 2(xxxx) rented land 3 (xxxx), and

(c) has not vacated such 4 (xxx) rented land without sufficient cause after the commencement of this Act, in the urban area concerned."

A bare perusal of the above-mentioned Amendment, and unamended provisions, will reveal that prior to the coming into force of the Amendment, a landlord could seek eviction of his tenant from a non-residential building for his own bona fide requirement, but the said amendment had taken away the said right of the landlord.

The constitutional validity of the said amendment was challenged in the case of HARBILAS RAI BANSAL Vs. THE STATE OF PUNJAB & ANR. (1996 AIR 857), whereby the Supreme Court while relying upon its earlier constitutional bench Judgement in Gian Devi Anand Vs. Jeevan Kumar & Ors. 1985(2) SCC 683, had struck down the said amendment as unconstitutional.

The relevant portion of the observation made by the Supreme Court is as under:

"The observations of the Constitution Bench that "bona fide need of the landlord will stand very much on the same footing in regard to either class of premises, residential or commercial" fully support the view, we have taken, that the classification created by the amendment has no reasonable nexus with the object sought to be achieved by the Act. We, therefore, hold that the provisions of the amendment, quoted in earlier part of the judgment, are violative of Article 14 of the Constitution of India and are liable to be struck- down.

We allow the appeal, set aside the impugned judgment of the High Court, declare the above said provisions of the amendment as constitutionally invalid and as a consequence restore the original provisions of the Act which were operating before coming into force of the amendment. The net result is that a landlord - under the Act - can seek eviction of a tenant from a non-residential building on the ground that he requires it for his own use. The parties to bear their own costs. "

Thus, after the said amendment was struck down by the Supreme Court, the landlord under the said Act of 1949, is free to seek ejectment of the tenant from the demised premises for his own occupation from a residential as well as a commercial building.

In case an ejectment is sought by the landlord on the ground of his personal necessity, then although it has been held by various Courts that the rent controller shall proceed on a presumption that the requirement of landlord is bonafide [Sarla Ahuja 1998 (2) RCR (R) 533] and again in 2004 (1)RCR (R) 395, however, this does not mean that the ejectment of the tenant is automatic, and is on mere asking. On the other hand, for seeking the ejectment of a tenant on the said ground, the landlord has to satisfy the conscious of the court, and strictly fall under the parameters of Section 13, as envisaged under the said Act, and prove that his need is more than a mere wish and a desire, and also that he is not guilty of any concealment as envisaged under section 13 (3) (a) 1 (b) and (c). The said situation came to be analysed before the Punjab and Haryana High court in the full bench judgement of Banke Ram vs Smt. Sarasti Devi (AIR 1977 P H 158) when it was held as under: -

" To sum up, the reply to the question referred for decision is that it is essential for a landlord to plead the ingredients of Sub-clauses (to) and (c) of paragraph (i) of Section 13 (3) (a) of the Act in his eviction application and that the decision of the Division Bench in Krishan Lal Seth's case (1961-63 Pun LR 865) (supra), in this regard, does not lay down a good law."

However, it may also be relevant to point out here that while the Full Bench clearly held that it is essential for the landlord to plead the ingredients of sub clause b and c of section 13 (3) (a), it also held in para 12 of its decision that:

" In the present case, we are concerned only with the question as a principle of law as to whether it is essential to plead in an eviction application the ingredients of Sub-clauses (b) and (c) and not the question that if in a particular case these ingredients are not pleaded, but the parties have led evidence with regard to them, what will be the effect? In any given case, where facts have not been averred in the pleading, a number of questions can arise as to whether proper evidence has been adduced by the landlord regarding those facts which do not find place in the pleadings and secondly whether such evidence will be admissible or not and lastly, whether the tenant was taken by surprise or not and had led evidence with full knowledge of the requisite contentions raised toy the landlord and whether the tenant has in those circumstances been prejudiced or not. The Court would be required to give full consideration to the contentions raised by the respective parties and the facts and circumstances of each case before giving its decision in favour of the landlord or the tenant, tout the decisions of the High Courts or the Supreme Court, in this regard, cannot be of any avail to detract from the validity of the proposition that it is necessary for the landlord to make averments regarding the ingredients of Sub-clauses (b) and (c). However, it may be made clear that when it is held that it is essential to plead the ingredients of Sub-clauses (b) and (c) in the eviction application by the landlord, it should not be understood that under no circumstances, in the absence of pleadings, the evidence regarding the ingredients envisaged in Sub-clauses, (b) and (c) can be looked into. This is not peculiar to the eviction applications. Similar considerations come into operation even in the case of suits which are governed by the specific and detailed provisions of the Code of Civil Procedure regarding pleadings."

Thus, even where no such pleadings with regard to the rider so contained in section 13 have been made, but evidence to that effect has been led, then depending upon the facts and circumstances of each case, the same may not be treated as fatal, so as to lead to dismissal of the ejectment petition of the landlord.

The said view was further confirmed by the Punjab and Haryana High court in 2013 (2) RCR (R) 230, whereby it has been held: -

"11. As far as the judgment that has been relied upon by the learned Counsel for the petitioners(tenants) is concerned regarding non mentioning of shops under ownership of landlord in his ejectment application, thereby making himself liable for concealment, the said judgment is not applicable to the facts and circumstances of the case in hand and is also distinguishable on the law point itself. It has been held by a Co-ordinate Bench of this Court in Banwari Lal v. Ram Parkash & Anr. 2009 (2) RCR (Rent) 160 that a landlord can always prove the ingredients of Section 13(3) of the Act in evidence and if it is shown that no prejudice is caused to the tenant on account of non pleading of Section 13(3) of the Act, then petition cannot be rejected. Thus, the strict proposition of pleading of the ingredients in an ejectment petition has been diluted to a larger extent and the landlord is at liberty to prove the ingredients of Section 13(3) of the Act in its evidence itself, if it is shown that no prejudice is caused to the tenant."

Although Rent controller and Appellate Authority, as constituted under the said Act, have powers to adjudicate the disputes between landlords and tenants, but they are not be treated as civil courts, as under CPC. They are merely to be treated as persona designata, under the Act, who are free to design their own procedure, and strict principles of Code of Civil Procedure are not applicable to them. It has been held so in Raghu Nath v. Romesh Duggal, (P&H) (D.B.) 1980 AIR (PB) 188 and Sawan Ram Vs. Gobinda Ram and anr. 1980 AIR Punjab 106 (FB).

While under the Act of 1949, no second appeal is provided, however under section 15 (5), the High Court may call for and examine the records relating to the proceeding under the said act. As a matter of fact, this power of the High Court is a Power of Revision. However, it has been held time and again by various Courts that the scope of interference under section 15 (5) is very limited and the said power cannot be exercised lightly to interfere. In Manmohan Sharma Vs. Smt. Swaran Kaur 2003 (1) PLR 300, it was laid down:

"21. Undoubtedly, findings of fact can be examined by the High Court under Section 15(5) of the Act in appropriate cases, but it must be remembered that the revisional court is not "a second court of first appeal". As noticed earlier, both the courts below have given concurrent findings of fact in accepting the bonafide need of the respondents to settle in India in the only house owned by them in Chandigarh. Mr. Sharma had laid considerable stress on the fact that need of the respondents could not be held to be bonafide as two petitions seeking similar relief had been dismissed earlier. The Appellate Authority has observed that the present rent petition was filed in the year 1999. It has also been observed that a lot of change can be seen with the passage of time between institution and disposal of the eviction petition on 21.11.1976 and 10.3.1982 and the dismissal of the appeal by the Appellate Authority on 9.3.1983. The health which respondent No. 1 was having in the year 1976 or 1982, she cannot be said to be enjoying in the year 1999. It has been observed that she has become pretty old, being 75 years of age and other respondent No. 2, landlord has undergone bye-pass surgery. Thereafter, the Appellate Authority relied on the observations of the Supreme Court in the case of Ramji Dass and another v. Ram Babu and another, 2000(1) R.L.R. 329. In the aforesaid case, the Supreme Court has observed as follows: -

"6. The High Court after examining the facts on this question found that the findings of the Courts below of reletting the accommodation after getting it vacated for the personal need in the year 1980 cannot defeat the bonafide need of the landlord for the year 1987.

7. High Court rightly considered the fresh need which was after the passage of seven long years between the last order and the present application made by the landlord by this passage of time the need has changed, his minor son has become major for whose need there was specific pleading and evidence was also led."

It was further held in Hindustan Petroleum Corporation Ltd v. Dilbahar Singh, 2014(2) R.C.R. (Rent) 210, the Apex Court has again defined the scope of interference with the orders of Courts below in a revision petition by the High Court. Observations of the Supreme Court on this point are reproduced are:

"We hold, as we must, that none of the above Rent Control Acts entitles the High Court to interfere with the findings of fact recorded by the First Appellate Court/First Appellate Authority because on re-appreciation of the evidence, its view is different from the Court/Authority below.

The consideration or examination of the evidence by the High Court in revisional jurisdiction under these Acts is confined to find out that finding of facts recorded by the Court/Authority below is according to law and does not suffer from any error of law. A finding of fact recorded by Court/Authority below, if perverse or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, is open to correction because it is not treated as a finding according to law. In that event, the High Court in exercise of its revisional jurisdiction under the above Rent Control Acts shall be entitled to set aside the impugned order as being not legal or proper. The High Court is entitled to satisfy itself the correctness or legality or propriety of any decision or order impugned before it as indicated above. However, to satisfy itself to the regularity, correctness, legality or propriety of the impugned decision or the order, the High Court shall not exercise its power as an appellate power to re-appreciate or re-assess the evidence for coming to a different finding on facts. Revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as a court of first appeal. Where the High Court is required to be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers from procedural illegality or irregularity."

It may also be pertinent to mention here that another significant challenge under the 1949 Act was faced by the Non Resident Indians (NRI), who though were of Indian origin but were settled abroad , that they had no remedy/procedure for summary disposal of their cases, and had to follow and fulfill the strict and lengthy parameters of Section 13, in order to get the property vacated, by proving their strict bonafides to settle back in India. Such questions came before various courts, whereby the bonafides of the NRI landlord were doubted and strictly tested. In AIR 1988 (Cal) 259, one of the landmark cases, a Division Bench of Calcutta High Court, relying upon the teachings from the Epic Ramayana, held:

"7. It may be, as urged by Mr. Dasgupta, that the respondent is for the present settled in Canada quite comfortably with a lucrative job earning very much more than what he would be able to earn herein Calcutta even with his high academic qualifications, But that, by itself cannot be a ground to persuade us to hold that he cannot decide to come back to his home land, even if we were inclined to examine (sic) could examine the finding of fact reached by the Courts below that he sincerely intends to do so. Human mind being as it is, attraction for the home-land may be irresistible for one, notwithstanding all his prospects and prosperities, luxuries and comforts in a foreign land. When Sri Ramachandra, after he vanquished Ravana, was told by Laxman that the golden country of Srilanka was at his disposal, he replied - Api Swarnamoyee Lanka Laxmana Tannarochate, Janani Janmabhumischa Swargadapi Gariashi and preferred Ajodhya to Srilanka. Tagore also demonstrated his irresistible attachment to his home town Calcutta, when he said in one of his favourite poems that if he would take birth again, he would be born in Calcutta only, notwithstanding all its woes and miseries. We would accordingly hold that the finding that the respondent intends to come back to India and to settle in Calcutta and is not in a position to do so for want of accommodation and would reasonably require the suit-premises for such accommodation are findings of fact and not being based on 'no evidence' nor being palpably unreasonable all challenges against these findings in this second appeal would fail even according to the tests laid down by the Supreme Court in Muttulal (supra) under Section 100 of the Code of Civil Procedure, as it stood before the amendment of 1976 and must, therefore, fail under the said Section as it now stands.'

Thus, in order to overcome many such hurdles and hinderances faced by the NRI landlords, an amendment was made under the East Punjab Urban Rent Restriction Act 1949, whereby Section 13-B was inserted by way of Punjab Act No 9 of 2001, dated 31.05.2001, dealing with the cases of NRI Landlords.

"Section 13-B: Right to recover immediate possession of residential building or scheduled building and/or non-residential building to accrue to Non-resident Indian.

(1) Where an owner is a Non-Resident Indian and returns to India and the residential building or scheduled building and/or non-residential building, as the case may be, let out by him or her, is required for his or her use, or for the use of any one ordinarily living with and dependent on him or her, he or she, may apply to the Controller for immediate possession of such building or buildings, as the case may be :

Provided that a right to apply in respect of such a building under this Section, shall be available only after a period of five years from the date of becoming the owner of such a building and shall be available only once during the life time of such an owner.

(2) Where the owner referred to in sub-section (1), has let out more than one residential building or scheduled building and/or non-residential building, it shall be open to him or her to make an application under that sub-section in respect of only one residential building or one scheduled building and/or one non-residential building, each chosen by him or her.

(3) Where an owner recovers possession of a building under this Section, he or she shall not transfer it through sale or any other means or let it out before the expiry of a period of five years from the date of taking possession of the said building, failing which, the evicted tenant may apply to the Controller for an order directing that he shall be restored the possession of the said building and the Controller shall make an order accordingly.

Although the said amendment appeared as an easy summary step for the NRI landlords to get their premises vacated, yet the same has been a matter of challenge right from its inception.

The constitutional validity of the said provision was ultimately upheld by the Supreme Court in Ram Kishan Grover and others Vs. Union of India and others. Civil Appeal No. 8597 of 2019 (Arising Out of Special Leave Petition (Civil) No. 26925 of 2011). D/d. 14.11.2019, wherein it was held:

"40. Rent control legislation are quintessentially social legislation that were enacted in the 1940's and 1950's to protect and curb exploitation of tenants in view of the prevailing socio-economic conditions due to large scale immigration to towns and cities, increase in population, lack of housing facilities as landed property was owned by a few well-off and wealthy persons. The rent control legislation, therefore, interfered with the general freedom of contract and right of the landlord to seek eviction under the Transfer of Property Act. However, all such legislations invariably also provide for balancing the conflicting rights of the landlords. In several decisions, this Court has emphasised that there is a need for balancing the two rival interests as has been observed in Malpe Vishwanath Acharya and Others v. State of Maharashtra and Another, (1998) 2 SCC 1 Joginder Pal v. Naval Kishore Behal, (2002) 5 SCC 397, Satyawati Sharma (Dead) By LRs v. Union of India and Another, (2008) 5 SCC 287 and in the recent decision in Vinod Kumar v. Ashok Kumar Gandhi in Civil Appeal No. 3793 of 2016 decided on 05.08.2019.

41. In Kewal Singh (supra), this Court had rejected the challenge of discrimination and arbitrariness predicated on Article 14 to the summary procedure under Section 25B of the Delhi Rent Control Act, 1958 applicable in cases of personal necessity of landlords. The contention that Section 25B creates a special class of landlords who are given favourable treatment for speedy eviction of tenants was rejected as without any substance. The rent control legislation should be just and fair to the landlords. Accordingly, it was observed that it is always open to the legislature to check, regulate and also confer rights upon the landlords to enable them to seek eviction in certain circumstances. Referring to the ground of personal necessity, it was observed:

"17. [...] Thus, such a landlord becomes a class by himself. The statute thus puts personal necessity of the landlord as a special class requiring special treatment for quick eviction of the tenant and cuts out all delays and plugs all the loopholes which may cause delay in getting the relief by the landlord. It is obvious, therefore, that the classification made by the legislature is in public interest and is in complete consonance with the objectives sought to be achieved. The landlords having personal necessity have been brought together as a separate class because of their special needs and such a classification cannot be said to be unreasonable particularly when the legislature in its wisdom feels that the landlords should get this relief as quickly as possible."

42. The following observations in Ravi Dutt Sharma (supra) relating to the right given to the landlords for eviction in context of the rent control legislation are pertinent:

"7. [...] Tenants cannot complain of any discrimination because the Rent Act merely gave certain protection to them in public interest and if the protection or a part of it afforded by the Rent Act was withdrawn and the common law right of the tenant under the Transfer of Property Act was still preserved, no genuine grievance could be made."

Similar views were also expressed in Kewal Singh (supra) in the following words:

"22. Thus, we do not see how can the tenant challenge the validity of such a provision enacted by the legislature from which the tenant itself derived such rights.

23. In the instant case, the legislature has not taken away the right of the tenant at all but has merely simplified the procedure for eviction of the tenant in cases falling within the ambit of Sections 14A and 14(1)(e) of the Act as discussed in the judgment. In these circumstances, therefore, any challenge by the tenant to the constitutionality of the Act must necessarily fail and hence Section 25B is constitutionally valid."

43. Section 13B of the Rent Act cannot be held to be unconstitutional because it grants a right to claim eviction for bona fide need by summary procedure to a certain group of landlords, that is, Non- Resident Indians subject to and on the satisfaction of statutory conditions which incorporate a check on frivolous evictions. The plea that Section 13B ought to be struck down on the ground that similar rights can be extended to other landlords is without substance and should be rejected. It rests with the legislature to make laws and extend it to other similarly situated persons. The rent act(s) invariably give similar rights by a controlled mechanism and alluded riders to various other classes/groups of landlords, namely, government servants, members of armed forces, the retired or soon to retire employees of the Central and the State Governments, widows, etc."

However with the passage of time, the East Punjab Rent Restriction Act 1949, which was enacted at that point of time, (and amended also on a couple of occasions), in order to protect the interest of tenants who had migrated from Pakistan, has also been replaced by the Punjab Rent Act of 1995, which has come into force w.e.f. 30.11.2013 stands repealed.

As per Section 75 of the 1995 Act, the East Punjab Urban Rent Restriction Act, 1949 (East Punjab Act No. III of 1949), stands repealed, but as per the proviso to the said Section, it is provided that:

Provided that such repeal shall not affect, -

(a) the previous operation of the Act so repealed or anything duly done or suffered thereunder;

(b) any right, privilege, obligation or liability acquired, accrued or incurred under the Act so repealed;

(c) any penalty, forfeiture or punishment incurred in respect of any offence committed under the Act so repealed; and

(d) any investigation legal proceeding or remedy in respect of any such right, privilege, obligation, liability penalty, forfeiture,

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the repealing Act had not been passed.

(2) Notwithstanding the repeal of the East Punjab Urban Rent Restriction Act, 1949 (East Punjab Act No. III of 1949), under sub-section (1), all cases and other proceedings in respect of the premises, other than owned by a non-resident Indian, let out prior to the commencement of this Act shall be governed and disposed of in accordance with the provisions of the Act so repealed.

The issue with regard to the conflict between the two enactments also came to be analysed by the Punjab and Haryana High Court in Krishan Kumar and others Vs. Kamla Devi and others 2016 (1) RCR (Rent) 525, where in it was held that:

"77. Section 3 (1) (a) lays down that the provisions of this Act shall not apply to any premises which are let out before the commencement of this Act; the implication being that even if the premises are owned by an NRI and were let out before the commencement of this Act they would have to be dealt with under the Act of 1949. On the other hand Section 24 (3) says that any future petition to be filed by an NRI would be under the present Act notwithstanding the fact that the premises were let out prior to the commencement of this Act. Section 75(1) provides that the East Punjab Urban Rent Restriction Act, 1949 would stand repealed but such repeal should not affect, interalia any legal proceeding with regard to any right, privilege, obligation or liability acquired, accrued or incurred under the repealed Act and any legal proceedings may be instituted, continued or enforced in respect of any such right, liberty, privilege or obligation. Section 75 (2) on the other hand stipulates that premises let out prior to the coming into force of this Act would be governed by the provisions of the repealed Act {in terms of Section 3(1) (a) supra}, except those owned by NRIs. Thus within the same Act we have not only anomalous but even contradictory provisions with regard to NRI-landlords.

78. As per Section 3 all properties which are let out prior to 30.11.2013 would have to be governed by the Act of 1949 but as per Section 75 (2) this would not apply to properties of NRI-landlords. Section 24 (3) makes a different provision. It lays down that any petition filed after 30.11.2013 by an NRI-landlord would have to be filed under the provisions of the 1995 Act notwithstanding the fact that it was let out prior to 30.11.2013. Section 75 (1) also strikes a discordant note and says that any legal proceedings for any remedy for a right which has accrued may be instituted, continued or enforced under the Act of 1949. It is trite to say that all words of every legislation have to be given due effect and all provisions have to be harmoniously construed as far as possible. Support can be taken from Union of India & Ors. v. Dileep Kumar Singh, Civil Appeal Nos.2466-2467 of 2015 arising out of SLP (Civil) Nos.25565-25569 of 2014 decided on 26.02.2015, wherein the Hon'ble Supreme Court held that: -

"17. This Judgment has been subsequently followed by the High Court of Australia in Project Blue Sky Inc. v. Australian Broadcasting Authority, 153 ALR 490, in the following terms: "A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions."

79. Keeping these two principles in mind as well as the principle of 'dominant and subservient provisions' as explained by the Supreme Court in Commercial Tax Officer, Rajasthan v. M/s Binani Cement Ltd. and another, (2014) 3 SCR,1 the only harmonious construction which would give effect to these disparate provisions would be to hold that as regards NRI-landlords, those cases which were filed prior to 30.11.2013 would be taken up under the Act of 1949 and those which were filed after that date would have to be filed and proceeded under the 1995 Act, not withstanding the date of the tenancy.

80. Apart from these procedural aspects, the three material changes in the substantive law as regards NRI between the Act of 1949 and the 1995 Act are that under the Act of 1949 the NRI need not return to India for permanent residence while under the 1995 Act he has to return to India permanently. Secondly under the Act of 1949 there was a stipulation that the NRI should have owned the building for five years while there was no such requirement under the 1995 Act. Thirdly under the Act of 1949 a further condition was laid down to the effect that the right of summary eviction would be available only once in a life time and this limitation is imposed upon Landlords mentioned in Section 24(1) of the 1995 Act but is not applicable to NRIs. In sum, one additional condition (viz permanent residence) has been imposed by the 1995 Act, while two conditions (viz ownership for 5 years and the one time in life restriction) have been removed. The next major change is with regard to the remedy provided against an order passed by the Rent Controller. Under the Act of 1949 the remedy of appeal was taken away and under Section 18(A) only a revision lay before this Court. Under the 1995 Act Section 38(7) (e) provides a remedy to a tenant to file an application for review against an order declining leave to defend and Section 50 permits an appeal against any final order "

Though with the coming of the new 1995 Act the old Act of 1949 stands explicitly repealed, yet it is fully enforceable for all the exceptions carved out under section 75 of The Punjab Rent Act 1995.

Views Are Personal Only.

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