Mehar Singh, J.@mdashIn this second appeal the question for consideration is the executability of decree obtained by Sunder Dass Respondent on July 31, 1960, for eviction of Ram Parkash Appellant from the property in question.
2. The property was acquired by the Central Government u/s 12 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (Act 44 of 1954), and was in the compensation pool for purposes of payment of compensation and rehabilitation grants to displaced persons. It was put to auction and the highest bidder, was the Respondent on September 5, 1955. His bid was accepted on September 23, 1955. He paid the price. The sale was confirmed in his favour. The sale certificate has not been issued under the provisions of the last mentioned Act and the Rules thereunder. A letter of September 3 and 4, 1956, informed the Appellant that provisional possession of the property was given to the auction-purchaser, the Respondent, and directed him to pay rent to the Respondent and otherwise deal with him direct with effect from August 30, 1956. The Respondent alleged that he had leased the property to the Appellant on September 1, 1956. On August 10, 1959, he served a notice, u/s 106 of the Transfer of Property Act, 1882 (Act 4 of 1882), upon the Appellant terminating the tenancy. In this notice the Respondent pointed out that he had created the tenancy in favour of the Appellant on September 1, 1956. The Appellant replied to that notice on August 31, 1959, saying that the Respondent had leased the property to him long before September 1, 1956, and disputing the quantum of the rent. On September 15, 1959, the Respondent instituted the suit for the eviction of the Appellant and all that is material for the present purpose is that he stated in the plaint that he had leased the property to the Appellant on September 1, 1956. The Appellant in his written statement said that the lease of the property had been given to him in December, 1954, and, apart from questioning the quantum of rent, he challenged the right of the Respondent to lease the property on the ground that he had no title to or in it. He also contested the jurisdiction of the civil Court to entertain the suit on the ground that the matter was to be disposed of by the proper authorities under the provisions of Act 44 of 1954 and the Rules thereunder. There was a decision of a preliminary issue on the question of jurisdiction by the trial Court on June 11, 1960, in which the learned Judge found that it being; the case of both the parties that the property was leased by the Respondent to the Appellant, there was relationship of landlord and tenant between the parties, and* so the civil Court had jurisdiction to try the suit. Subsequently by his judgment of July 31, 1961, while decreeing the claim of the Respondent for eviction of the Appellant, the learned Judge found that the Appellant was, in possession of the property--the shop--before September 1, 1956.
3. The Delhi Rent Control Act, 1958 (Act 59 of 1958), came into force on February 9, 1959. It was thus in force on September 15, 1959, the date of the institution of the suit by the Respondent against the Appellant for the latter''s eviction from the shop. At the time Section 3 of this Act read--
Nothing in this Act shall apply--
(a) to any premises belonging to the Government; or
(b) to any tenancy or other like relationship created by a grant from the Government in respect of the premises taken on lease, or requisitioned, by the Government.
This section gave exemption to premises belonging to the Government from the provisions of this Act and with regard to similar provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, their Lordships in
The first part of Section 4(1) provides that the Act shall not apply to any premises belonging to Government or a local authority. The Legislatrue did not by the first part intend to exempt the relationship of landlord and tenant but intended to confer on the premises itself an immunity from the operation of the Act.
In
Merely because Section 20 permits a sale by auction, it cannot be contended; that whenever there is an auction, the sale must be deemed to be complete. Whether there is a transfer or not depends on the conditions of the auction and these have to be examined to find out when a transfer of the property auctioned takes places. There may be a sale by auction where the sale is not complete till, for example, a document is executed. The section, furthermore, states that the transfer under it would be subject to the rules made under the Act.
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Where in respect of a sale by auction of property of the class notified u/s 29(2), it is not shown that the sale certificate was issued to the highest bidder nor that the balance of the purchase-money had been paid, it must be held that there has till then been no transfer of the property sold at the auction and the benefit of Section 29 could not be availed of.
In the case of the Respondent, the sale certificate not having been issued, there has thus not yet been transfer of the title in the shop from the Government to the Respondent. In other words, to the date of the decree it was the Central Government which had the title to this property and not the Respondent. So in view of Section 3 of Act 59 of 1958, the provisions of that Act were not attracted to the claim of eviction from the shop by the Respondent against the Appellant. The decree in favour of the Respondent was consistent with the subsequent decision of this Court in Roshan Lal Gostoami v. Gobind Ram and Ors. ILR (1963) 2 Punj. 745 : 1963 P.L.R. 852, in which the learned Judges of the Division Bench held that in the case of acquired property u/s 12 of Act 44 of 1954 if the title of the auction-purchaser is not complete by the issue of the sale certificate, the property remains that of the Government and thus because of Section 3 of Act 59 of 1958, the provisions of the last mentioned Act are not attracted, and a suit for eviction lies in an ordinary civil Court. It may be pointed out at this stage that the only difference between that case and the facts of the present case is that in that case the lease had been granted to the tenant by the Managing Officer and under his directions the tenant had attorned to the auction-purchaser, in the present case, however, the lease itself--it has been the common case of both the parties--was granted to the Appellant by the Respondent himself. Neither in Roshan Lal Goswami''s case nor in the present case sale certificate came to be issued conferring complete title on the auction-purchaser.
4. The Appellant''s first appeal against that decree failed on December, 1, 1962, and the second appeal on December 10, 1962. The decree thus became final between the parties. It was a decree, when granted, made by the Court having jurisdiction to grant it. As stated, it was a decree which is consistent with a Division Bench judgment of this Court in Roshan Lal Goswami''s case. It was thus a valid and an executable decree.
5. On March 8, 1963, a proviso was added to Section 3 of Act 59 of 1958 by the Delhi Rent Control (Amendment) Act, 1963 (Act 4 of 1963), and that section with the proviso reads--
Nothing in this Act shall apply--
(a) to any premises belonging to the Government; or
(b) to any tenancy or other like relationship created by a grant from the Government in respect of the premises taken on lease or requisitioned, by the Government;
Provided that where any premises belonging to Government have been or are lawfully let by any person by virtue of an agreement with the Government or otherwise, then, notwithstanding any judgment, decree or order of any Court or other authority the provisions of this Act shall apply to such tenancy.
The Amending Act 4 of 1963 provides that the proviso ''shall be deemed always to have been added'', thereby meaning that this proviso to Section 3 must be deemed to have been in force from the date Act 59 of 1958 came into force, that is to say, from February 9, 1959. It has already been pointed out that that is a date earlier to the date of the institution of the suit by the Respondent on September 15, 1959, in which he obtained the decree in question against the Appellant. The proviso takes away the immunity given by Section 3 to property belonging to the Government if its condition is fulfilled. And the condition is that such premises have been or are (i) lawfully let by any person by virtue of an agreement with the Government, or (ii) lawfully let by any person otherwise. When this state of affairs exists then the provisions of Act 59 of 1958 are attracted and that is so notwithstanding any judgment, decree or order of any Court or other authority.
6. The Respondent took out execution of the decree on August 31, 1963, and, on a notice being issued to the Appellant, the latter filed objections to the executability of the decree on September 27, 1963. The objection taken by the Appellant was that in view of the new proviso to Section 3 of Act 59 of 1958, even though the shop in question continues to belong to the Government because the Respondent has not obtained the sale certificate so far, since he has lawfully let the same to him, the provisions of Act 59 of 1959 are attracted to his tenancy of the shop, of which the result is that he cannot be evicted in execution of the decree obtained against him by the Respondent. The executing Court dismissed the objection petition of the Appellant on the ground that such an objection was not open to consideration by the executing Court which must proceed to execute the decree binding as it is between the parties. In appeal, the first appellate Court has made no reference to the ground on which the executing Court dismissed the objection petition of the Appellant but has proceeded to uphold the order of the executing Court following a Division Bench decision of this Court in Attar Lal v. Lakshmi Dass and Company. Letters Patent Appeal No. 139-D of 1963, decided on May 4, 1964, in which the learned Judges had come to the conclusion that on the facts of that case proviso to Section 3 of Act 59 of 1958 was not attracted. In that case the auction-purchaser had been given provisional possession of the premises but had not obtained the sale certificate. The tenant under the Managing Officer had been called upon to attorn to the auction-purchaser on the latter having been given provisional possession of the premises waiting the issue of the sale certificate. The tenant in fact attorned to the auction-purchaser and continued paying rent to him. Subsequently the auction-purchaser sought eviction of the tenant and, ultimately before the Division Bench reliance was placed on behalf of the tenant on the new proviso to Section 3 to resist eviction. The learned Judges were of the opinion that the proviso refers to letting of the premises and in that case there was no letting by the auction-purchase of the premises to the tenant, who had already been inducted into the premises by the Managing Officer. It was in these circumstances that the learned Judges held that the proviso was not attracted to that case. The first appellate Court was of the opinion that the facts of Attar Lal''s case are parallel to the facts of the present case and consequently it proceeded to uphold the order of the executing Court, dismissing the appeal of the Appellant. This second appeal is against the appellate order of the first appellate court by the Appellant. And as pointed out in the beginning the question for consideration is the executability of the decree in question in view of the new proviso to Section 3 of Act 59 of 1958.
7. The Learned Counsel for the Appellant has contended (a) that the Amending Act 4 of 1963, having made the proviso retrospective so as to be operative from the date on which the principal Act 59 of 1958, came into force, on the date on which the Respondent instituted suit in the ordinary civil Court to seek eviction of the Appellant from the shop, no such suit could be competent, as to a claim of eviction as made by the Respondent the provisions of Act 59 of 1958 became applicable, of which the inevitable consequence is that, though as a matter of fact when; the decree was obtained by the Respondent against the Appellant, it was the decree passed by the Court having jurisdiction, it has, because of the new proviso to Section 3, become a decree without jurisdiction by operation of law, and hence the question of its executability cannot possibly arise, (b) that, in any case, once there is admitted letting of the shop in question by the Respondent to the Appellant, as has throughout been the admitted case of the parties,, then the last part of the proviso immediately applies and the provisions of Act 59 of 1958 are attracted even in the presence of the decree in favour of the Respondent, and (c) that this must be considered to be a case of lawful letting by the Respondent to the Appellant for it cannot be otherwise because not only did the trial1 Judge find as a fact that relationship of landlord and tenant had existed between the parties prior to September 1, 1956, but the stand of both the parties in their pleadings had been that the shop was let by the Respondent to the Appellant, with just this difference that the Respondent said that it was let by him on September 1, 1956, and the Appellant said that it was let to him in December, 1954, and, while it was a defence of the Appellant in the suit that the Respondent had no right or title in the shop to create tenancy in his favour, it was the stand of the Respondent that he had every right to let the shop to the Appellant, who was not permitted to deny his title as landlord. The Learned Counsel for the Appellant has urged that the Respondent cannot possibly be allowed to approbate and reprobate first in his pleadings saying that he had the right to let the shop to the Appellant and now urging at this stage that the letting of the shop by him to the Appellant was not lawful within the scope of proviso to Section 3 of Act 59 of 1958. The Learned Counsel for the Respondent in reply had contended that the only effect of the retrospective operation of the proviso to Section 3 is to concern with suits pending on or to be instituted after the date of coming into force of the Amending Act 4 of 1963 and not to affect matters already concluded and having become final as the decree between the parties in the present case, that the words ''notwithstanding any judgment, decree or order of any Court or other authority'' almost at the end of the proviso do not refer to a judgment or decree as was obtained by the Respondent against the Appellant in the present litigation but only to previous precedents that may have binding force on the Courts or the authorities concerned, and that there is no case of lawful letting of the shop in the present litigation by the Respondent to the Appellant and the case is, in substance, not different than Attar Lal''s case.
8. The first matter that has to be considered is the applicability of the proviso to Section 3 of Act 59 of 1958 to the facts of this case. It is necessary to state the facts again, even at the cost of repetition, that in the present litigation it has from the beginning been the case of both the parties that the shop in question was let by the Respondent to the Appellant. It is not a case like Attar Lal''s case in which the premises had been let by the Managing Officer and the tenant was asked and did attorn to the auction-purchaser. Here there is no question of attornment. It is a straight case of letting the premises by the Respondent to the Appellant. For the present purpose, it matters not whether the Respondent let the shop to the Appellant in December, 1954, or September, 1956. The stand of the Respondent has been that he had the right to let the shop to the Appellant and he maintained that stand in spite of the challenge of the Appellant in that respect. It is somewhat strange that now the Respondent should turn and have an argument urged on his behalf that the letting of the shop by him to the Appellant was not lawful letting of it. It is not explained how it was not lawful letting of the shop by him. No doubt, he has not become full owner of the shop in consequence of transfer because the sale certificate has not yet been issued to him. But he has been given possession of the property lawfully by the Government and his possession of the shop being lawful, he has right to create a tenancy of the shop within the scope and limitation of his possessory title. There is nothing either in the facts of this case or in law which made the creation of the tenancy in regard to the shop in question not lawful on the part of the Respondent. He cannot even otherwise be permitted to take shifting stands and to say one thing at one time and another thing at another time so as to suit an argument to his purpose. So the fact is that the Respondent obtained possession of the shop lawfully from the Managing Officer and his creation of the tenancy with regard to it in favour of the Appellant was lawful letting of the same. There was no agreement between the Respondent and the Government giving power to the Respondent to let the shop, but his letting comes under the words--''have been or are lawfully let by any person ... otherwise.'' He was in lawful possession of the shop from the Managing Officer and apparently he had lawful title to let the shop to the Appellant. This is not a case of attornment as was Attar Lal''s case and that is the reason why the ratio of that case has no application to the facts of the present case. In fact this observation of the learned Judges supports the view on the facts of the present case as above--
Letting is a positive act and mere acquiescence or acceptance of the existing state of affairs will not, in law, amount to letting. There could be letting only if the tenancy created by the Government had been determined by the Plaintiff and thereafter he had leased out the premises to the Respondents or had accepted the Respondents as tenants by his conduct. In the present case, there was no determination of the tenancy created by the Managing Officer in favour of the Respondents. All that has happened is that instead of paying rent to the Managing Officer they were required by the Managing Officer to pay rent to the Plaintiff. The position of the Plaintiff is that of a nominee who receives rents from the tenants at the behest of the owner; because till the sale certificate is granted the property in law still belongs to the Government. Merely because the right to receive rent has been transferred by the owner will not lead to the conclusion that the person to whom such a right has been transferred becomes the owner of the premises and thereby becomes entitled to let them out.
The present is not a case in which the Respondent has been given a mere right to receive rent or the Appellant has been directed to pay rent to the Respondent instead of to the Managing Officer. It is a case in which the tenancy itself has been created by the Respondent in favour of the Appellant, a case specifically envisaged by the learned Judges as falling within the proviso to Section 3 when they observed that ''there could be letting only if the tenancy created by the Government had been determined by the Plaintiff and threafter he had leased out the premises to the Respondents or had accepted the Respondents as tenants by his conduct.'' It is apparent that on facts Attar Lal''s case is not parallel to the present case. In that case attornment was not accepted by the learned Judges as amounting to letting of the premises within the meaning and scope of proviso to Section 3, but in the present case there is no question of attornment. Here there is direct letting of the premises by the Respondent to the Appellant. An observation of the learned Judges, as already repeated above, indicates that to the facts of the present case the learned Judges did not intend the decision of Attar Lal''s case to apply but were of the contrary view as has been explained above. It has already been shown that here is a case of lawful letting of the shop by the Respondent to the Appellant and obviously the provisions of the proviso to Section 3 are directly attracted.
9. Once the finding as above is reached, the rest becomes a matter of simple consideration. The proviso to Section 3 applying to the facts of the present case, the matter is taken back to a date prior to the institution of the suit on September 15, 1959, by the Respondent and immediately as the suit was instituted because of proviso to Section 3 the Civil Court had no jurisdiction in the suit and the decree made by it must, therefore, be considered as without jurisdiction Section 50 of Act 59 of 1958 bars jurisdiction of Civil Courts in the matter of eviction of a tenant when the Act applies and Sub-section (1) of Section 14 of that very Act says that "notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any Court or Controller in favour of the landlord against a tenant". Then there is a proviso which gives the grounds upon which eviction of a tenant can be sought by a landlord. So that to premises to which Act 59 of 1958, applies, a Civil Court has no jurisdiction to pass a decree for eviction. In
10. The consequence then is that as the Respondent lawfully let the shop in question to the Appellant, so the new proviso to Section 3 of Act 59 of 1958, applies to the tenancy, attracting the provisions of that Act to it, with the effect that the Respondent can only obtain eviction of: the Appellant from the shop in accordance with the provisions of that Act and not under the decree of which he is seeking execution, which has become a decree without jurisdiction and, in any case, even in the presence of such a decree the proviso to Section 3 expressly ''provides that the Act applies. This second appeal of the Appellant is accepted reversing the orders of the Courts below and in the result the execution application of the Respondent is dismissed. In the circumstances of the case, however, the parties are left to their own a decree throughout.
P.C. Pandit, J.
11. The fate of this appeal largely depends on the question as to whether the Appellant can take advantage of the proviso added to Section 3 of the Delhi Rent Control Act, 1958, on 8th March, 1963. This he can do only if he succeeds in showing that the property in dispute was in his possession by virtue of lawful letting, by the Respondent on the basis of an agreement with the Government or otherwise. It is true that the Respondent had given the highest bid for this property and the same had been accepted, but, admittedly, the sale certificate had not been issued in his favour. It is common ground that till the sale certificate was granted, he could not become the owner of this property,--vide
