R.C.Lahoti, J. - (1.)PROCEEDINGS for eviction were initiated under clause (i) of sub-section (2) of Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter referred to as the 'Haryana Act' for short) and culminated in favour of the landlord, directing the tenant to be evicted from the premises in his occupation, on the finding that he had not paid or tendered the rent due from him in respect of the rented premises. The tenant preferred Appeal by Special Leave. By judgment dated 16.12.2002 this Court allowed the tenant's appeal, set aside the judgments of the High Court and the authorities below and directed the case to be sent back to the Controller for hearing and decision afresh in accordance with the law laid down by this Court in Rakesh Wadhawan and Ors. vs. Jagdamba Industrial Corporation and Ors. (2002) 5 SCC 440. This petition for review of the judgment dated 16.12.2002 seeks to question the correctness of the law laid down by this Court in Rakesh Wadhawan's case.
(2.)WE have heard the learned counsel for both the parties. The principal submission, rather the only one, made by the learned senior counsel for the Review-petitioner is that two earlier decisions of this Court, namely, M/s. Rubber House vs. M/s. Excelsior Needle Industries Pvt. Ltd. (1989) 2 SCC 413 and Rajinder Kumar Joshi vs. Veena Rani (1990) 4 SCC 526, were not brought to the notice of this Court while deciding Rakesh Wadhawan's case and, therefore, Rakesh Wadhawan's case does not lay down the correct law. All the three decisions, namely, the decisions in Rakesh Wadhawan's case (supra), M/s. Rubber House's case (supra) and Rajendra Kumar Joshi's case (supra), are two-Judges Bench decisions and, therefore, the matter has been placed for consideration by a three-Judges Bench.
In Rakesh Wadhawan's case, the decree for eviction was passed under Section 13(2)(i) of the East Punjab Urban Rent and Restriction Act, 1949 (hereinafter referred to as 'the Punjab Act' for short). It is, therefore, necessary to consider the relevant provisions of the two Acts. The same are extracted and reproduced hereunder: JUDGEMENT_25_SUPREME6_2003Html1.htm

The learned senior counsel for the Review-petitioner tried to draw a distinction between the provisions of the Punjab Act and the Haryana Act, submitting that the phraseology employed in the two Acts is different, and, therefore, the decision in Rakesh Wadhawan's case which is under the Punjab Act has no relevance and applicability insofar as the provisions of the Haryana Act are concerned. We find no merit in the submission so made. Except for a difference in the manner of constructing the sentences there is no substantial difference in effect between the two provisions and the crux of the issue emerging for decision under the relevant provisions of the two Acts remains the same.

(3.)IN Rakesh Wadhawan's case, this Court noticed a lacuna in the drafting of Section 13(2)(i) of the Punjab Act and resolved the same by applying well-settled principles of statutory interpretation so as to cull out the legislative intent and then held that the expression "assessed by the Controller" as occurring in the proviso to Section 13(2)(i) of the Act qualifies all the three things, i.e., (i) the arrears of rent, (ii) interest at 6% per annum on such arrears, and (iii) the cost of application, which are included in the preceding part of the sentence. The order of assessment made by the Controller is not an assessment of costs alone; it is an assessment of the arrears and interest as well. The Court further held that such order of the Rent Controller making an assessment shall, in the scheme of the section, be an interim or provisional order which would be based on a summary enquiry leading to the formation of a prima facie opinion based on the consideration of relevant material brought on record by the parties, which may consist of the documents, affidavits and pleadings which would enable the Controller to make a provisional and yet judicial assessment, and place it on record by way of an order to satisfy the spirit of the proviso. Having said so, the Court explained the mechanism to be followed by the Controller in this regard and the meaning to be assigned to the expression "the first date of hearing" so as to make it practical and workable. Failing the interpretation adopted by the Court in Rakesh Wadhawan's case, the provision under consideration could have run the risk of being struck down, because it would be unworkable and lead to uncertainty. The provision had remained on the statute book for more than 50 years but was creating practical difficulties in its working and applicability to different sets of facts. Such meaning has been placed on the language of the proviso to Section 13(2)(i) as would make it workable and sensible and would least offend the sense of justice. Care has been taken to protect the interests of both the landlord and the tenant. The interpretation protects the landlord from frivolous pleas raised by recalcitrant tenants and at the same time saves the tenants from undue hardship likely to be caused by unscrupulous landlords accusing the tenants of such default as may not exist.
In M/s. Rubber House's case (supra), the provisions of the Haryana Act came up for the consideration of the Court. Having scrutinized Section 13(2)(i) and the first proviso thereto, the Court held that there is no statutory duty cast on the Controller even in the first instance to determine and calculate the arrears of rent and the interest but, on the contrary, the proviso requires the tenant to pay or tender the actual arrears of rent within 15 days of the hearing of the application for ejectment after due service. The calculation by the Controller is confined only to calculating the interest at 8% per annum on such arrears together with the cost of the application. The argument advanced by the learned counsel for the tenant in that case that the proviso casts a statutory duty on the Controller to calculate and determine the arrears of rent as well as the interest to be paid by the tenant within a period of 15 days of the first hearing of the application for ejectment after due service was rejected by the Court on the reasoning that such an argument, if accepted, would result in the Rent Controller holding an enquiry at the first instance in every case and determining the arrears of rent even on the first date of hearing which is in the nature of things not possible without any evidence, nor is contemplated under the scheme of the Act. We find it difficult to agree with the above-said reasoning in M/s. Rubber House's case. On the plain language of the Haryana Act, the expression "to be calculated by the Controller" qualifies both the arrears of rent and interest. The succeeding expression "such costs of the application" is again qualified by the expression "if any, as may be allowed by the Controller". Thus the provision itself casts an obligation on the Controller to calculate and determine by its order (i) the arrears of rent; (ii) the interest; and (iii) the costs, quantifying the amount which should be paid or tendered by the tenant (at that stage) to comply with the proviso. The words 'calculated' and 'allowed' occurring in the proviso imply a duty cast on the Controller which has to be discharged judicially. Such determination will be only for the purpose of securing compliance by the tenant on 'the first date of hearing' succeeding the date of order by the Controller, which order would be based on a summary enquiry and would obviously be subject to final determination by the Controller at the end of the regular full-fledged enquiry. Thus it is not correct to say that the provision does not contemplate an enquiry, nor is it correct to say that such an interpretation would result in the holding of a full-fledged enquiry on the first date of hearing, which is not possible.