Bindeshwary
Choudhary & ANR Vs. Ajay Kumar [1997] INSC 450 (22 April 1997)
S.C.
AGRAWAL, D.P. WADHWA
ACT:
HEADNOTE:
D.P. Wadhwa,
J.
Delay
condoned.
Special
leave granted.
These
are landlord's appeals against the orders of the Patna High Court holding that
landlord was antitled to arrears of rent under Section 15 of the Bihar
Buildings (Lease, Rent & Eviction) Act. 1982 (for short the Act') only from
the data of institution of the suit for eviction, Section 15 in as under :
"15.
Deposit of Rent by tenants in suits for ejectment, - (1) if, in suit for
recovery of possession of any building the tenant contests the suit as regards
claim for ejectment. landlord may move an application at any stage of the suit
for order on the tenant to deposit rent month by month at a rate at which it
was last paid and also subject to the law of limitation, the arrears of rent,
it any and the Court after giving heard may make any order for deposit of rent
month by month at such rate as may be determined and the arrears of rent, both
of before or after the institution of the suit if any and on failure of the
tenant to deposit the arrears of rent within fifteen days of the date of order
or the rent at such rate for any month by the fifteenth day of the next
following month, the Court shall order the defence against ejectment to be
struck off and the tenant to be placed in the same position as if he had not
defended the claim to ejectment and further the Court shall not allow the
tenant to cross examine the landlord's withnesses.
(2) If
in any proceeding referred to in sub-section (1) there is any dispute as to the
person or parsons to whom the rant is payable the Court may direct the tenant
to deposit in Court the amount payable by him under sub-section (1) and in such
case no person shall be entitled to withdraw the amount in deposit until the
Court decides the disoute and makes an order for payment of the same.
(3) if
the Court is satisfied that any dispute referred to in sub- section (2) has
been raised by a tenant for reasons which are false or frivolous the Court may
order the defence against the eviction to be struck off and proceed with the
hearing of the suit as laid down in sub-section(1)." Landlord filed a suit
against the respondent-tenant for eviction from a shop premises under Section
11(1)(c) of the Act which provided that premises could be pot vacated if the
same were reasonably and in good faith required by landlord for his own
occupation or for the occupation of any person for whose banefit the premises
were held by the landlord. On notice being issued to the tenant and after
following the procedure prescribed the tenant was granted leave to defend the
suit. After the tenant filed his written statement contesting the suit the
landlord moved an application under Section 15 of the Act claiming arrears of
rent for the period prior to filing of the suit and also the current rent. This
application of the landlord was allowed by the subordinate Court but on a
revision filed by the tenant in the High Court the said order was modified. The
following an earlier single Judge Bench decision in Deep Narain vs Anil Kumar Sinha.
(1905 BBCJ 782) directed the tenant to deposit the arrears of rent only from
the date of filing of the suit. The landlord thereafter filed an application in
the High Court seeking review of the order on the ground that the single Judge
in following the decision in Deep Narain's case (supra) did not take notice of
a Division Smt. Chandra Mania Devi (1987 PLJR 864) which held that the decision
in Deep Narain's case did not lay down good law and that the Court could under
Section 15 of the Act direct the arrears of rent even for the period prior to
the institution of the suit to be deposited under Section 15 of the Act.
Thereafter
it appears that in the case of Shri Ratan Lal Nain's vs. The State of Bihar and
others (1989 PLJR 1273 = AIR 1970 Patna 107) another Division Bench of the High
Court declared Section 15 of the Act as being violative of Article 14 of the
Constitution in so far as it empowered the court to order deposit of arrears of
rent for the period prior to the institution of the suit for ejectment of a
tenant.
Considering
the Bench decision in Ratan Lal Nai's case (supra) the learned single judge did
not think it fit to review his earlier order whereunder he had modified the
order of the Subordinate Court and directed payment of arrears of rent from the
date of institution of suit. The application for review was, therefore. dismissed.
Thus these two appeals.
During
the pendency of the special leave petitions in this court a Full Bench of the Patna
High Court in the interpretation of Section 15 of the Act held that (1) the
Court could order payment of arrears of rent even for the period prior to the
institution of the suit for eviction and (2) the expression "Subject to
law of limitation" applied only with regard to claim of arrears of rent
prior to the institution of the suit. Nagendra Rai. J. who spoke for the Court.
in a well reasoned judgment, has observed as under:
"Thus,
after having considered the past history of the legislation, mischief in the
previous legislation, the intention of the legislature in adding the aforesaid
expressions in Section 15. the purpose and object of the provision. I hold that
Section 15 of the Act empowers the Court to pass an order for arrears of rent
even prior to the institution of the suit for a period not barred by limitation
as well as for arrears of rent and rent by month to month during the pendency
of the suit.
The
expression "subject to law of limitation" applies only with regard to
claim of arrears of rent prior to the institution of the suit. The claim for
arrears of rent during the pendency of the suit is not controlled on
circumscribed by period of limitation." At this stage we may also note the
Bench decision of the High Court in Ratan Lal Nai's case (supra). In this case
the bench held that Section 15 of the Act in so far as it empowered the court
to order for the deposit of the arrears of rent for the period prior to the
institution of a suit for ejectment of the tenant was ultra vires the powers
conferred on the State Legislature. As to how it was ultra vires the Judgment proceeded
as under:
"A
suit for eviction on one or more than are of the grounds enumerated in Sail of
the Act is a suit which may besides the relief of ejectment of the tenant
include the relief of arrears of rent. A tenant may in such a suit raise defence
against ejectment and also contest the Claim of any money decree. A Suit for
arrears of rent only cannot of allowed to include any relief with respect to
any claim of arrears prior to the period of limitation.
It
will always be possible for the Plaintiff landlord to apply under S.15 of the
Act for deposit of arrears of rent in a suit for eviction of the tenant in
which besides the relief of ejectment of the tenant relief of arrears of rent
is also asked for unless the words "of before the institution of the
suit" in Section 15 with respect of the arrears of rent are qualified by
the words not barred by limitation. Thus before any decree for arrears of rent
is granted by the court the landlord may achieve the object of claiming arrears
already barred by limitation. Even with respect to arrears falling within the
period of limitation a tenant-defendant may successfully demonstrate that he
has no liability, that he can do while contesting the claim of arrears rent in
the suit. It will be unfair, therefore, to grant only on a prima facie
determination arrears before the institution of the suit to the landlord as the
Act has got no provision to get such arrears of rent realised by the landlord
under Section 15 of the Act recovered from the Landlord. A provision of law
which is striken by arbitrariness is hit by Article 14 of the Constitution of
India.
The
provision in Section 15 that the court may order for the deposit of the arrears
of rent prior to the institution of the suit, therefore, is ultra vires."
The Act as the preamble shows is an Act to regulate the letting of buildings
and the rent of such buildings and to prevent unreasonable eviction of tenants therefrom.
The purpose of the Act is to avoid hardship to the tenants due to paucity of
accommodation and also save them from exploitation by the landlords charging
premium and higher rents (See Sections 3-B). At the same time a duty is cast on
the tenant to pay rent to the landlord regularly so long he is entitled to
protection from ejectment under the Act except on the grounds specified thereunder.
One of the essential elements of lease is rent payable by the tenant to the
landlord. Under Section 19 of the Act when a landlord refuses to accept any
rent lawfully payable to him by a tenant in respect of any building, the tenant
may remit such rent and continue to remit any subsequent rent which becomes due
in respect of such building, by postal money order to the landlord. At this
stage we may also refer Section 16 of the Act which requires deposit of rent as
determined by the Controller during the pendency of appeal or revision. Under
this Section the appellate or revisional authority may require the tenant to
pay the rent at the rate fixed by the Controller month to month by the
fifteenth day of the following month. together with arrears, if any, Section 16
does not talk of arrears arising only during the pendency of the proceedings.
In the present case before us we do not find that there is any ambiguity in the
language of Section 15. Under this section the Court can require the tenant to
pay all the arrears of rent even for the period prior to the institution of the
suit subject to the law of limitation. It is the duty of the tenant to pay rent
regularly to the landlord when he is enjoying the security of tenure under the
rent restrictions laws. Considering the whole aspect of the matter. we are of
the view that when the expression "subject to law of Limitation" has
been used in Section 15 it applies to the recovery of arrears of rent as on the
date of institution of suit. The Full Bench of the Patna High Court in Priyavarta
Mehta's case has taken a correct view of the matter. We find it difficult to
appreciate the reasoning advanced by the Division Bench in the Case of Ratan Lal
Nai (supra) holding that Section 15 suffers from the Vice of arbitrariness and
is ultra vires the powers of the state Legislature.
These
appeals are accordingly allowed. the orders of the High Court are set aside and
that of the Subordinate
Court upheld. There
will be no order as to Costs.
Back
Pages: 1 2