Prakash Kumar Vs Kanahiya Lal Agrawal and others

Chhatisgarh High Court (Single Judge)

ACQA->ACQUITTAL APPEAL [ APPEAL U/S 378 ], 93 of 2014 of 2015, Judgment Date: Mar 13, 2015

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HIGH COURT OF CHHATTISGARH AT BILASPUR
M. A. No. 93 of 2014
APPELLANT : Prakash Kumar
Versus
RESPONDENTS Kanahiya Lal Agrawal and others
Single Bench: Hon’ble Shri Goutam Bhaduri, J.
Appearance:-
Mr. Rajeev Shrivastava, Advocate for the appellant.
Mr. Manoj Paranjpe, Advocate for the respondents No.1 to 3.
Mr. Syed Mazid Ali, Advocate for the respondent No.4
JUDGMENT
(Delivered on 13/03/2015)
1. Challenge in this appeal is to the judgment and decree dated
12.09.2014, passed in Civil Appeal No.12-A/2014, passed by the
Court of First Additional District Judge, Sakti, whereby the order
dated 15.05.2014, passed in Civil Suit No.1-A/2014, by the Court
of Civil Judge Class-II, Sakti, was reversed and the case was
remanded back to the learned Trial Court for adjudication on
merits.
2. Brief facts which are necessary for adjudication of this case are
that one Kanhaiya Lal Agrawal, Anil Kumar Agrawal and Sanjay
Kumar Agrawal filed a civil suit before the Court of Civil Judge
Class-I, Sakti against Prakash Kumar for declaration and
injunction. The plaintiffs were the tenant and the Prakash Kumar
being the landlord was arrayed as a defendant No.1 and the
Officer-in-charge C.G. State Power Distribution Company Ltd.,
was arrayed as defendant No.2. It was pleaded that the plaintiffs
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are the tenants were carrying on the business in the name and
style of Vijay Book Depot and General Stores in the schedule
suit property. The said suit premises was obtained on rent 40
years back. It was stated that on 22.01.2013, at the instance of
owner, Prakash Kumar, the defendant No.2, C.G. State Power
Distribution Company Ltd, disconnected the electricity line and
took away the meter, whereby the electricity connection to the
premises of the tenant stopped. It was stated that when the
matter was enquired, it was orally stated that since the road was
to be widened and therefore, some part of the premises were
being demolished. After such incident, 5-6 months passed but
electricity connection was not restored as such civil suit was filed
on 03.01.2014 and it was prayed that the removal of meter on
22.01.2013 be declared bad and illegal and direction was sought
to restore electricity connection to the suit premises. In the said
civil suit, the pleading was also made to the effect that at the
time of filing, an application was preferred U/s. 38 of the C.G.
Accommodation Control Act, 1961 (hereinafter referred to as
“the Act of 1961”) but nothing transpired as such, the civil suit
was preferred.
3. In reply to the plaint allegation, an application under Order 7
Rule 11 CPC was filed by the defendant, landlord. The landlord
made reference to the plaint allegation that since the tenant has
admitted the fact of pendency of the application under Section 38
of the Act of 1961, before SDO, Sakti, meaning thereby remedy
is being exhausted at forum, therefore, present civil suit was not
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tenable. It was also contended that specific remedy is provided
U/s.38 of the Act of 1961 and therefore, the civil suit is barred.
4. Learned Trial Court by its order dated 15.05.2014 allowed the
application moved by the defendant/landlord under Order 7 Rule
11 of CPC and held that admittedly the relation of landlord and
tenant exists and has held that the C.G. Rent Control Act, 2011
(hereinafter referred to as “the Act of 2011”) has come to an
existence on 06.11.2012, which repealed the earlier Act i.e. the
Act of 1961. The Trial Court, therefore held that with the coming
of the new Act, the Civil Court does not have jurisdiction since
the entire dispute has to be decided by the Tribunal and on that
ground dismissed the suit.
5. The said order was assailed before the Appellate Court. The
Appellate Court of First Additional District Judge, Sakti came to
the conclusion that the Act of 2011 was not applicable in the
Nagar Palika Parishad, Sakti and as such set-aside the order of
the learned Trial Court and remanded the case back to the Trial
Court for fresh adjudication.
6. Learned counsel for the appellant would submit that new Act of
2011 was not operative in the District – Sakti when the suit was
filed therefore, it would be governed by the provisions of the Act
of 1961, as per Section 1 (2) read with Section 14 of the Act of
2011. He would submit that in such case, the respondents
having availed the remedy U/s. 38 of the Act of 1961, before the
SDO for restoration of the electricity, the subsequent civil suit
was barred U/s. 45 of the Act of 1961. He further submits that by
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operation of Section 45 of the Act of 1961, specific bar has been
created in the statute, which takes away the jurisdiction of the
Court in respect of the specified relief, therefore, the suit filed by
the tenant before the Civil Court was barred.
7. Per contra, learned counsel for the respondents would submit
that though the averments of the plaint contained that an
application is pending U/s. 38 of the Act of 1961, before the
SDO, but the said petition was withdrawn. He would further
submit that on 06.01.2014, civil suit was filed and on 01.03.2014
application for withdrawal of the proceeding before the Rent
Control Authority was filed. Subsequently such application was
also placed before the Civil Judge. He would further submit that
when the application was filed under Order 7 Rule 11 by the
appellant/ landlord before the Civil Judge Class-II on 25.04.2014,
the application U/s. 38 of the Act of 1961 already stood
withdrawn before the Rent Controlling Authority thereby only civil
suit was pending before the Court. The counsel would further
submit that with the promulgation of the new Act of 2011, no bar
is created to file the civil suit. He further placed his reliance in
AIR 1966 SC 1089, AIR 1964 SC 322 and would submit that
exclusion of the jurisdiction of Civil Courts to entertain civil
causes will not be assumed unless the relevant statute contains
an express provision to that effect. Therefore, would submit that
the order of the Appellate Court to remand the case afresh for
adjudication is well merited as the jurisdiction of the Civil Court
can not be inferred to be barred.
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8. I have heard the learned counsel for the parties at length and
perused the documents on record.
9. There are certain facts, which would be relevant for decision of
this case are as under :- The respondents initially had filed an
application for restoration of the electricity U/s. 38 of the Act of
1961. While such application was pending, on 06.01.2014, a civil
suit was filed for declaration and injunction valued at Rs.600/-,
wherein the prayer was made that the removal of electricity
meter from the suit premises and disconnection thereof be
declared illegal. Mandatory injunction was also prayed that the
defendant/owner, Prakash Kumar, the appellant herein be
directed to restore the electricity connection and not to
disconnect the electricity during the subsistence tenancy. While
such suit was pending and the application before the Rent
Control Authority U/s.38 of the Act of 1961 was also pending, an
application was filed, before SDO - Rent Controlling Authority on
01.03.2014 to withdraw the petition U/s.38, as per Annexure R-7.
On such date, the said prayer was allowed and the application
U/s.38 stood withdrawn. Reading of Annexure R-7 would go to
show that the said proceeding U/s.38 was fixed for 24.03.2014,
wherein application was moved with the urgent petition on
01.03.2014 and the proceeding U/s.38 of the Act of 1961 stood
withdrawn. Such order of withdrawal, passed by the learned
SDO was further placed before the Civil Court on 26.03.2014 by
Annexure R-8.
10. Since the civil suit filed by tenant was pending, an application
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was moved under Order 7 Rule 11 of C.P.C. by landlord on the
ground that the plaint averments contains the pendency of
proceeding before the Rent Control Authority/SDO and therefore,
the suit be dismissed, as similar proceeding was pending before
the SDO U/s.38 of the Act of 1961.
11. After reply of the said application, the learned Trial Court,
dismissed the suit by its order dated 15.05.2014, which is
evident from the Annexure A-2. The Trial Court held that the suit
is not tenable in view of the fact that the Act of 2011 has come
into force, wherein the Act of 1961 stood repealed. When the
order was assailed in appeal, the Appellate Court, allowed the
appeal with a finding that the Act of 2011 has not come into
operation in Sakti Nagar Palika and therefore, the finding arrived
at by the learned Court below was bad accordingly the case was
remanded for adjudication. Hence this appeal.
12. The first question which falls for consideration as to whether the
Act of 1961 stood repealed at relevant place Sakti after
promulgation of new Act of 2011. To find out the answer, it would
be relevant to quote Sub-section 2 of Section 1 of the Act of
2011, which reads as under :-
“1. Short title, extent and commencement. - (1)
This act may be called the Chhattisgarh Rent Control
Act, 2011.
(2) It shall extent in first instance to such of the
Municipal areas which are comprising the District
Headquarters in the State and later on to such of the
other Municipal areas or any areas within the State
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as the State Government may, by Notification in the
Official Gazette, specify from time to time.”
13. Further relevant section would be of repeal in Act of 2011.
Section 14 of the Act of 2011 speaks about repeal and savings,
which is reproduced as here under:-
“14. Repeal and Savings. – (1) On this Act,
becoming law, through notification in the Official
Gazette, the Chhattisgarh Accommodation Control
Act, 1961 (No. XLI of 1961) in its application to the
State of Chhattisgarh is hereby repealed.
(2) The repeal under sub-section (1) shall not
affect the previous operation of this enactment so
repealed and anything done or action taken or
deemed to have been done or taken (including any
appointment or delegation made, notification,
order, direction or notice issued, or rules made), by
or under the provisions of the repealed enactment
shall, so far as it is not inconsistent with provisions
of this Act, be deemed to have been done or taken
under the provisions of this Act and shall continue
in force unless and until suspended by anything
done or any action taken under this Act.”
14. On reading the relevant sections of the Act of 2011, it would
show that the Act of 2011 received the assent of the President on
the 5th October, 2012 and Governor on the 23rd May, 2011,
thereby the Act of 2011 came into force on 06.11.2012. But subsection
2 of Section 1 arrest the uniform applicability in entire
State. Reading of Section (1) (2) of the Act of 2011 would reveal
that at the first instance the act would be applicable to such
Municipal areas, which are comprising the District Head Quarters
in the State and latter on to such of the other Municipal areas
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which the State notifies it from time to time in official gazette.
15. So reading of the application of the Act of 2011 shows that it is in
two fold. Firstly to the Municipal District Head Quarter and
secondly to the areas, which are notified. Admittedly, Sakti was
not a Municipal area comprising District Head Quarters,
therefore, necessarily for application of the act, notification is a
condition precedent.
16. Section 14 of the Act of 2011 speaks of repeal and savings. The
Section starts with the word “On this Act, becoming the law,
through notification in the Official Gazette, the Chhattisgarh
Accommodation Control Act, 1961” shall stand repealed meaning
thereby for the purpose of Sakti, unless and until notification is
made, the Act of 2011 would not become law for respective area.
17. In case of State of Punjab Vs. Mohar Singh, reported in AIR
1955 SC 84, the Supreme Court has laid down that whenever
there is a repeal of an enactment, the consequences laid down
in Section 6 of the General Clauses Act will follow unless, as the
section itself says, a different intention appears. In the case of a
simple repeal there is scarcely any room for expression of a
contrary opinion. But when the repeal is followed by fresh
legislation on the same subject we would undoubtedly have to
look to the provisions of the new Act, but only for the purpose of
determining whether they indicate a different intention.
18. Taking into such proposition and reading of Section 14 of the Act
of 2011 it lays down the application of the Act of 2011 other than
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the District Head Quarter will depend on the notification,
thereafter the old Act of 1961 would be applicable unless and
until is repealed by the notification. Therefore, in the line of
query, it would be relevant that new act expressly keeps alive old
rights and liabilities. Consequently, it is held that when the civil
suit was filed on 06.01.2014 in the instant case, the old Act of
1961 was applicable with full force as new Act of 2011 was not
notified for Sakti Municipality.
19. As has been held, the old Act of 1961 is applicable therefore, it
would be relevant to quote Section 38 of Act of 1961, which is
meant for restoration of essential supply or service, which reads
as under :-
“38. Cutting off or withholding essential supply or
service. – (1) No landlord either himself or through
any person purporting to act on his behalf shall
without just and sufficient cause cut off or withhold
any essential supply or service enjoyed by the tenant
in respect of the accommodation let to him.
(2) If a landlord contravenes the provisions of sub-section
(1), the tenant may make an application to the Rent
Controlling Authority complaining of such
contravention.
(3) If the Rent Controlling Authority on inquiry finds that
the essential supply or service enjoyed by the tenant
in respect of the accommodation was cut off or
withheld by the landlord without just and sufficient
cause, it shall make an order directing the landlord to
restore such supply or service.
(4) The Rent Controlling Authority may in its discretion
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direct that compensation not exceeding fifty rupees –
(a) be paid to the landlord by the tenant, if
the application under sub-section (2) was made
frivolously or vexatiously;
(b) be paid to the tenant by the landlord, if
the landlord had cut off or withheld the supply or
service without just and sufficient cause.
Explanation I. – In this Section, “essential supply or
service” includes supply of water, electricity, lights in
passages and on staircases, conservancy and
sanitary services.
Explanation II. – For the purpose of this Section,
withholding any essential supply or service shall
include acts or omissions attributable to the landlord
on account of which the essential supply or service is
cut off by the local authority or any other competent
authority.
20. Further Section 45 of Act of 1961 bars certain jurisdiction of Civil
Court. Reading of Section 45 would make it clear that whatever
is cognizable and within the domain of the Rent Controlling
Authority, it would not be adjudicated by the civil court. For
reference Section 45 of the Act of 1961 is reproduced as under:-
“45. Jurisdiction of Civil Courts barred in respect of
certain matters. – (1) Save as otherwise expressly
provided in this Act, no Civil Court shall entertain any
suit or proceeding in so far as it relates to the fixation
of standard rent in relation to any accommodation to
which this Act applies or to any other matter which
the rent Controlling Authority is empowered by or
under this Act to decide, and no injunction in respect
of any action taken or to be taken by the Rent
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Controlling Authority under this Act shall be granted
by any Civil Court or other authority.
(2) Nothing in sub-section (1) shall be construed
as preventing a Civil Court from entertaining any suit
or proceeding for the decision of any question of title
to any accommodation to which this Act applies or
any question as to the person or persons who are
entitled to receive the rent of such accommodation.”
21. In case law reported in AIR 1969 SC 78, Dhulabhai Vs. State of
M.P., the Court has laid down the guidelines for exercising the
jurisdiction of the Civil Court, which reads as under :-
“(1) Where the statute gives a finality to the orders of the
special tribunals the civil court's jurisdiction must be
held to be excluded if there is adequate remedy to do
what the civil courts would normally do in a suit. Such
provision, however, does not exclude those cases
where the provisions of the particular Act have not
been complied with or the statutory tribunal has not
acted in conformity with the fundamental principles of
judicial procedure.
(2) Where there is an express bar on the jurisdiction of
the court, an examination of the scheme of the
particular Act to find the adequacy or the sufficiency
of the remedies provided may be relevant but is not
decisive to sustain the jurisdiction of the civil court.
Where there is no express exclusion the
examination of the remedies and the scheme of the
particular Act to find out the intendment becomes
necessary and the result of the inquiry may be
decisive. In the latter case it is necessary to see if the
statute creates a special right or liability and provides
for the determination of the right or liability and further
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lays down that all questions about the said right and
liability shall be determined by the tribunals so
constituted, and whether remedies normally
associated with actions in civil courts are prescribed
by the said statute or not.
(3) Challenge to the provisions of the particular Act as
ultra vires cannot be brought before tribunals
constituted under that Act. Even the High Court
cannot go into that question on a revision or
reference from the decision of the tribunals.
(4) When a provision is already declared unconstitutional
or the constitutionality of any provision is to be
challenged, a suit is open. A writ of certiorari may
include a direction for refund if the claim is clearly
within the time prescribed by the Limitation Act but it
is not a compulsory remedy to replace a suit.
(5) Where the particular Act contains no machinery for
refund of tax collected in excess of constitutional
limits or illegally collected a suit lies.
(6) Questions of the correctness of the assessment apart
from its constitutionality are for the decision of the
authorities and a civil suit does not lie if the orders of
the authorities are declared to be final or there is an
express prohibition in the particular Act. In either case
the scheme of the particular Act must be examined
because it is a relevant enquiry.
(7) An exclusion of the jurisdiction of the civil court is not
readily to be inferred unless the conditions above set
down apply.”
22. It is well settled that there is a presumption that a civil court will
have jurisdiction and the ouster of civil court's jurisdiction is not
to be readily inferred. But where the Act itself specifically barred
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the jurisdiction of Civil Court such presumption of jurisdiction of
civil court can not be adopted.
23. Reading of Section 45 of the Act of 1961 would further make it
clear that there is unmistakable and express bar of civil court in
respect of the matters covered U/s. 38 of the Act of 1961. Here
the statute Section 38 read with Section 45 of the Act of 1961
necessarily excluded the jurisdiction of civil court to deal with a
case brought before it in respect of the some of the matters
covered by the said statute.
24. Similar proposition was laid down in the case of Param Lal
Burman Vs. Ravi Kumar Sharma, reported in 2003 (3) M.P.L.J.
104 therefore, reading the Act, application of the facts in the
given case, the suit for restoration of the electricity supply which
was filed by the respondents is not maintainable before the Civil
Court as there exists a express bar of jurisdiction of Civil Court.
25. Consequently, the appeal is allowed. The order of the Appellate
Court is set-aside.
26. No order as to costs.
JUDGE