Civil Appeal Nos. 3467-3468, 3471, 3472, 3473, 3474-3475, 3476 of 2010, 7825-7826 of 2012, 2569 of 2013, Civil Appeal No. 2406 of 2015 (Arising out of SLP (C) No. 16508 of 2012), Civil Appeal Nos. 2403-2405 of 2015 (Arising out of SLP (C) Nos. 15230-15232 of 2012), Civil Appeal No. 2407 of 2015 (Arising out of SLP (C) No. 35787 of 2012) and .... Case: Noorunissa Begum Vs Brij Kishore Sanghi. Supreme Court (India)
| Case Number | Civil Appeal Nos. 3467-3468, 3471, 3472, 3473, 3474-3475, 3476 of 2010, 7825-7826 of 2012, 2569 of 2013, Civil Appeal No. 2406 of 2015 (Arising out of SLP (C) No. 16508 of 2012), Civil Appeal Nos. 2403-2405 of 2015 (Arising out of SLP (C) Nos. 15230-15232 of 2012), Civil Appeal No. 2407 of 2015 (Arising out of SLP (C) No. 35787 of 2012) and ... |
| Counsel | For Appellant: Dhruv Mehta, Sr. Adv., Yashraj Singh Deora, Abhishek P., Advs. Mitter & Mitter Co., Promila, S. Thananjayan, T.V. Ratnam, V. Sridhar Rao, V.N. Raghupathy, D. Bharathi Reddy, Roy Abraham, Ranjit Chadha, Seema Jain, Aabhas Parimal, Himinder Lal, Pramod B. Agarwala, Prashant M., Vishnu Shakar Jain, Prasant Shukla, Sriram P. and Ajay... |
| Judges | Sudhansu Jyoti Mukhopadhaya and Sharad Arvind Bobde, JJ. |
| Issue | Andhra Pradesh Buildings (Lease, Rent & Eviction) Control (Amendment) Act, 2005 - Sections 3, 32; Andhra Pradesh Buildings (Lease, Rent & Eviction) Control Act, 1960 - Sections 2, 10, 10(1), 12, 13, 13(1), 26, 32; Andhra State Act, 1953; Madras Buildings (Lease and Rent Control) Act, 1949; States Reorganisation Act, 1956; Hyderabad House (Rent,... |
| Judgement Date | February 24, 2015 |
| Court | Supreme Court (India) |
Judgment:
Sudhansu Jyoti Mukhopadhaya, J.
1. Leave granted.
2. All these appeals involves common question of law as to the applicability of Section 32(c) of the Andhra Pradesh Buildings (Lease, Rent & Eviction) Control (Amendment) Act, 2005 (hereinafter referred to as the 'Amendment Act, 2005') to eviction cases pending on the date of its coming into force and the effect of the said Section on G.O. dated 29th December, 1983 issued by the Government of Andhra Pradesh. Therefore they were heard together and being disposed of by this common judgment.
3. The background of Section 32 of Andhra Pradesh Buildings (Lease, Rent & Eviction) Control Act, 1960 (Act No. XV of 1960):
The State of Andhra Pradesh came into existence on 1st October, 1953 under the provisions of Andhra State Act, 1953. By virtue of the provisions of the said Act, the Madras Buildings (Lease and Rent Control) Act, 1949 continued to be in operation in the State of Andhra Pradesh. By the States Reorganisation Act, 1956 with the merger of Telangana area, which formerly formed a part of the erstwhile State of Hyderabad, to the territories of State of Andhra Pradesh the new State of Andhra Pradesh came into existence by Notification dated 1st November, 1956. By virtue of States Reorganisation Act, Hyderabad House (Rent, Eviction and Lease) Control Act, 1954 continued to be in force in the Telangana area. In the Andhra area, the Madras Buildings (Lease and Rent Control) Act, 1949 also continued to be in force. In this background both the Madras Act and Hyderabad Act were repealed and replaced by the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 (hereinafter referred to as the 'Act'). The Section 32 of the Act, as it stood on the date of enactment exempted buildings owned by the Government and buildings constructed on and after 26th August, 1957 from the purview of the Act.
4. The constitutional validity of Section 32(b) of the Act which exempted buildings constructed on or after 26th August, 1957 from the operation of the Act was challenged before this Court in Motor General Traders and Anr. v. State of Andhra Pradesh and Ors. (1984) 1 SCC 222. This Court by judgment dated 26th October, 1983 held the said section to be unconstitutional being violative of Article 14 of the Constitution of India.
5. Section 26 of the Act authorizes the State Government to exempt any building or class of building from all or any of the provisions of the Act.
Later, in exercise of power Under Section 26 of the Act the Government of Andhra Pradesh issued G.O. Ms. No. 636 dated 29th December, 1983 whereby it exempted from operation of the provisions of the Act, (a) all buildings for a period of 10 years from the date on which the construction is completed, and (b) buildings, the monthly rent of which exceeds Rs. 1,000/-.
The exemption was given effect from 26th October, 1983 i.e. the date on which this Court struck down Section 32(b) of the Act.
6. After declaration of Section 32(b) unconstitutional and invalid, Section 32(a) which exempted buildings owned by the Government from the operation of the Act stood till Section 32 was amended by the Amendment Act, 2005. By amended Section 32, the Act was made inapplicable to buildings the rent of which as on the date of commencement of the Amendment Act, 2005, exceeds Rs. 3,500/- per month in the areas covered by the Municipal Corporations in the State and Rs. 2,000/- per month in other areas.
7. All the buildings with respect to which these appeals are preferred belong to the category of buildings of which rent was more than Rs. 1,000/- (one thousand). i.e. who were exempted by G.O. Ms. No. 636 dated 29th December, 1983. On the amendment of Section 32 the tenants of such buildings against whom eviction cases or appeal or revision or execution cases were pending before various courts approached the Andhra Pradesh High Court raised a contention before the learned Single Judge that-in view of the amended Section 32, the pending suits cannot be adjudicated by the civil courts and the decrees already passed cannot be executed because courts which passed the decrees will be deemed to have become "coram non judice".
8. The learned Single Judge of the High Court referred the matter to the Division Bench.
The Division Bench noticed the judgments in Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha AIR 1961 SC 1596; Rafiquennessa v. Lal Bahadur Chetri AIR 1964 SC 1511; Dilip v. Mohd. Azizul Haq and Anr. AIR 2000 SC 1976 and other cases including unreported judgment of Full Bench of the said High Court in Second Appeal No. 532 of 2002 dated 6th January, 2005 and felt that the issue raised in the cases needs to be addressed by a Full Bench and accordingly referred the matter to Full Bench.
9. The Full Bench, after hearing the cases at some length, by an elaborate order, observed that the judgment rendered by a Bench of equal strength in Second Appeal No. 532 of 2002 requires reconsideration by a Larger Bench in the light of various judgments referred to in the reference order.
10. On such reference, the matter was heard by the Larger Bench of 5-Judge of the High Court of Judicature of Andhra Pradesh at Hyderabad. By the impugned common judgment dated 30th April, 2007 in S.A. No. 1475, 1449 of 2005 etc., the Larger Bench by majority held the Amendment Act, 2005 to be prospective and observed that:
A reading of the amended Section 32 makes it clear that Section 32(b) as it originally stood has been substituted with Section 32(c) and with this, G.O. Ms. No. 636 dated 29.12.1983 issued by the State Government Under Section 26 of the Act has become redundant.
The Larger Bench further answered the reference as follows:
(a) Section 32(c) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 as brought into force by Section 3 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control (Amendment) Act, 2005 is prospective in operation and this provision does not affect the proceedings pending as on the date of its coming into force before the Civil Courts or Appellate, Revisional or Executing Courts. These cases are required to be decided without reference to and application of the provisions of the amendment Act of 2005.
11. In his minority judgment, one of the Judges held the Amended Section to be retrospective and answered the reference as follows:
i) with effect from 28.05.2005, when the amended Section 32(c) came into force, persons, by whom rent payable for a building does not exceed Rs. 3,500/- p.m. within the Municipal Corporations of the State and does not exceed Rs. 2,000/- p.m. in other areas, would come within the definition of "tenant" Under Section 2(ix) of Act 15 of 1960.
ii) even if such persons have suffered a decree for eviction prior thereto, they are entitled for the protection of Act 15 of 1960 provided they continue in possession of the building.
iii) after 28.05.2005, such tenants cannot be evicted in execution of a decree in view of the protection conferred on them by Section 10(1) of Act 15 of 1960.
iv) after the amended Section 32(c) came into force, with effect from 28.05.2005, the civil court must be held to have become coram non judice, not to have jurisdiction to pass a decree of eviction in respect of buildings the rent of which in areas within Municipal Corporations of the State does not exceed Rs. 3,500/- p.m. and in other areas not exceeding Rs. 2,000/- p.m. and its proceedings, resulting in the decree, a nullity.
v) even if at the time of institution of the suit, or when a decree for eviction was passed, the amended Section 32(c) was not in force, but was introduced during the pendency of the appeal a tenant, who continues to remain in possession of a building whose rent is below the limits prescribed in the amended Section 32(c), for being exempted from the provisions of the Act, is entitled for the protection of Act 15 of 1960, more particularly Section 10(1) thereof, and the Appellate Court is divested of its jurisdiction to pass a decree of eviction.
12. As one or other party in all these appeals addressed the Court either supporting the majority decision of the Larger Bench or minority decision, it is not necessary to record the individuals' submissions made by the learned Counsel.
13. THE STATUTORY PROVISIONS:
To determine the issue involved it is necessary to refer to relevant provisions of the Act. Section 2(iii) of the Act defines 'building' as under:
Section 2(iii) -'Building' means any house or hut or part of a house or hut, let or to be let separately for residential or non-residential purposes and includes:
(a) the gardens, grounds, garages and outhouses if any, appurtenant to such house, hut or part of such of house or hut and let or to be let along with such house or hut or part of such house or hut;
(b) any furniture supplied or any fittings affixed by the landlord for use in such house or hut or part of a house or hut, but does not include a room in a hotel or boarding house;
Section 2(ix) of the Act defines 'tenant' for the purpose of the Act as under:
Section 2(ix)-'Tenant' means any person by whom or on whose account rent is payable for a building and includes the surviving spouse, or any son or daughter, of a deceased tenant who had been living with the tenant in the building as a member of tenant's family up to the death of the tenant and a person continuing in possession after the termination of the tenancy in his favour, but does not include a person placed in occupation of a building, by its tenant or a person to whom the collection of rents or fees in public market, cart-stand or slaughter-house or of rents for shops has been framed out or leased by a local authority.
Section 10 of the Act deals with 'eviction of tenants'. It protects the tenant from eviction in execution of a decree or otherwise in all cases except in those cases where the eviction is in accordance with the...
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