MANAKCHAND Vs. BANSIDHAR

JUDGEMENT

(1.) THIS is an application to revise the order of the Sessions Judge, Churn, dated 5th September 1949. The short question in this revision is that whether the Notification No. 19 dated 17th March 1947 making an amendment in the Prevention of Eviction Order 1942, Bikaner State, with regard to the eviction from "houses" applies to "shops" also or not.

(2.) THE applicant Manakchand applied in the Court of the Tehsildar, Churu under Notification No. 19 dated 17th March 1947 to evict Bansidhar and Mahadeo from the shop which belonged to the applicant and which was rented by him to Bansidhar and Mahadeo. The Tehsildar dismissed this application on the ground that the Notification No. 19 does not apply to shops and this order of Tehsildar was upheld by the Sessions Judge, Churu. Notification No. 19 dated 17th of March 1947 runs as follows : "In modification of this office Notification No. 80, dated 17th October 1946, the Government are pleased to order that the following amendments shall be made in the Prevention of Eviction Order, 1942 : The following clauses shall be added after clause 3 of the said Order : "4. If the house is bona fide required by the landlord for his own occupation, he may serve a notice on the tenant through the Court of a Magistrate of 1st or 2nd class to vacate the house within 60 days after service of the notice : Provided that the Magistrate shall not issue any such notice to the tenant unless the landlord files an affidavit before him that he requires the house for his own occupation or has no other accommodation available for his immediate domestic requirements. 5. After the expiry of the period of notice the Court shall if satisfied that the landlord needs the house for his own use or has no other accommodation available to meet his immediate domestic requirements make an order for the delivery of possession to the landlord : Provided that if the house is not occupied by the landlord within a month of its delivery to him, or if it is relet before the expiry of 12 months from the delivery thereof to the landlord, the Court may, on complaint made by the outgoing tenant within a period of three months, and on being satisfied after enquiries as to the correctness of the complaint, take steps to place the tenant in occupation of the house on the terms and subject to the conditions on which he was holding at the time of his eviction, or order such compensation to be paid to the tenant as the Court considers reasonable, and may impose a fine on the landlord which may extend to a figure equivalent to a year's rent of the house. 6. Any compensation ordered to be paid under the preceding clause shall be recoverable as a fine inflicted by the Court. 7. Nothing herein contained shall affect the right of the Court to take action against the landlord in connection with the falsity of any statement made in the affidavit submitted by him. 8. Notwithstanding anything hereinbefore contained, or the provisions of any previous Notification no order to vacate a house shall issue against a servant of the State, and no notice already issued shall be effective, if such servant agrees to an increase of 30 per cent. in the rent of the house in his occupation. 9. Every landlord approaching a Court with a notice to be served on his tenant shall deposit the necessary process fee for service of notice on the tenant, and unless the deposit is made, or freshly made for the issue of a fresh notice, no process will issue from the Court."

(3.) THE appellant's learned counsel has strenuously contended before us, that the word "house" in the above mentioned Notification includes "shop" also, because the Prevention of Eviction Order, 1943 of which the Notification No. 19 is an amendment, was extended to "shops" also through Notification No. 51 dated 9th December 1942 of the Government of Bikaner. The Prevention of Eviction Order, 1942, and Notification No. 51 dated 9th December 1942 run as follows : "No. 33. - Whereas it is necessary to supplement the Rent Restriction Order, 1942, and further to provide some restriction on the right of landlords to evict tenants from their residence. His Highness' Government are pleased, in exercise of the power vested in them by Rules 81(2)(bb)(ii), Defence of India Rules, 1939, to make the following Order : 1. (a) This Order will be called the Prevention of Eviction Order, 1942. (b) It shall come into force at once. 2. The terms 'landlord' and 'house' shall have the same meaning in this Order as they have in the Rent Restriction Order of 1942. 3. No notice of eviction served by a landlord on his tenant requiring him to vacate his house on or after 30th day of June, shall be valid, and no action would be open under it either in Court or otherwise : Provided that nothing herein contained shall be a bar to eviction for non -payment of rent or for any other material breach of the terms of the tenancy." "No. 51 - Whereas representations have been made to Government that the benefits of the Rent Restriction Order, 1942, and the Prevention of Eviction Order, 1942, should be extended to tenants of shops also, and Government are satisfied that circumstances exist which justify the claim they have by virtue of all the authority vested in them been pleased to order that the above two Orders shall be extended to shops also as from the day of the publication of this Notification, subject to this modification that the restriction as to the increase of rent shall be 75 per cent. of the average rent received for any shop during the twelve months ending on 30th April 1942."