Kanhaiyalal Kishanlal vs Additional Collector And Anr.
2007 Latest Caselaw 63 Bom

JUDGMENT

B.P. Dharmadhikari, J.

1. The petitioner-tenant has challenged the order dated 4-2-1994 passed in review, order dated 30-11-1992 passed in appeal and order dated 19-8-1991 passed by the Rent Controller under Clause 7 of C.P. and Berar Letting of Houses and Rent Control Order, 1949, (hereinafter referred to as Rent Control Order), determining the fair rent of premises in his occupation at Rs. 3/- per square feet. It is stated by the learned Counsel for the petitioner that the petitioner has continued to pay rent at Rs. 3/- per square feet during the pendency of writ petition.

2. I have heard Smt. Dewani, learned Counsel for the petitioner, Shri Kankale, learned AGP for respondent No. 1 and Shri Chandurkar, learned Counsel for respondent No. 2.

3. The learned Counsel for the petitioner has stated that in this matter, Rent Controller has not passed a separate order on preliminary point as he has done in other matters. It is argued that clause 4 requires the Rent Controller to first record its satisfaction about insufficiency of existing rent being paid and after that satisfaction is reached, enquiry under Clause 5 has to be taken to find out what is fair rent. In this case, Rent Controller has passed a joint order on 19-8-1991 and has first held that existing rent being paid was insufficient and thereafter has proceeded to decide the fair rent. The learned Counsel contends that following such procedure, Scheme of Rent Control Order in this respect has been violated and the petitioner has been deprived of a chance to file appeal under Clause 4 challenging the finding of Rent Controller about insufficiency or inadequacy of rent being paid. It is also stated that because the petitioner was expecting only an order under Clause 4, the petitioner did not examine an Engineer or other tenants to show the position or nature of construction of tenanted premises and to establish comparative rates being received by other landlords for similar structures. It is contended that because of this, a serious prejudice has been caused to the petitioner-tenant. Though this error has been pointed out to appellate authority and thereafter to reviewing authority, the authorities have mechanically brushed it aside. Reliance has been placed upon the judgments of this Court in the case of Forest Development Corporation of Maharashtra Ltd. v. State of Maharashtra, reported at , Oyaldas v. Shrikant, reported at 1986 Mh.L.J. 706, Shrikisan H. Shop v. Manaklal reported at AIR 1953 Nagpur 284. In order to demonstrate prejudice, attention has been invited to factors which are required to be looked into while proceeding further by the Rent Controller under Clause 5 by placing reliance upon the judgment reported in the case of Gulabrao v. Devidas, reported at 797/ Mh.L.J. 36, NOC 75, and it has also been stated that the application filed did not disclose the year of construction and hence it was liable to be dismissed. Support is sought to be derived from the judgment of this court in the case of Shantilal v. Secretary, K.U.B.S., reported at 1995(2) Mh.L.J. 12, for this purpose.

4. Shri Chandurkar, learned Counsel for the respondent-landlords contends that orders passed by all three lower authorities are concurrent and findings reached are based upon evidence adduced. He contends that there is no law which requires separate trial under Clause 4 and Clause 5 of Rent Control Order. He argues that by very nature of proceedings, evidence under Clause 4 and evidence under Clause 5 is bound to be overlapping and if such a view of separate trial is accepted, it would result in unnecessary duplication of work by the Rent Controller. He argues that none of the judgments on which the petitioner has placed reliance hold that joint trial is not permissible. He further invites attention to the judgment in the case of Randhirsingh v. Chunnilal, reported at 1972 Mh.L.J. NOC 28, to point out that while challenging the determination of fair rent under Clause 7, the petitioner-tenant has got right to challenge the order passed even on preliminary point. He has invited attention to evidence on record to argue that parties have led evidence even relevant for the determination of fair rent and that has been correctly appreciated by the authorities below. He argues that technical ground raised by the petitioner in this respect, therefore, is without any substance. He states that the petitioner-tenant has accepted that construction is after 1940 and has also accepted the prevailing rate of rent. According to him, therefore, finding of Rent Controller and Appellate Authority based upon such evidence needs no interference in writ jurisdiction.

5. With the assistance of respective counsel, I have perused all the orders and also relevant evidence. It is first necessary to consider the argument of the petitioner that the Rent Controller has to first decide the issue under Clause 4 and after passing an order under Clause 4, he can proceed further with enquiry and thereafter pass order under Clause 5. The learned Counsel for the petitioner states that it is not her contention that there has to be two separate cases. However, the contention has been correctly reproduced above and the petitioner states that the Rent Controller has to first pass an order under Clause 4 and thereafter he has to undertake further enquiry to arrive at determination of fair rent under Clause 7. In this respect when the judgments on which the learned Counsel for the petitioner has placed reliance are perused, in Forest Development Corporation of Maharashtra Ltd. v. State of Maharashtra (supra), this Court has held that preliminary enquiry under Clause 4 is held only with a view to find out whether rent being paid by the tenant to landlord is insufficient or excessive and not about fixation of fair rent which is to be done at the stage of provisions of Clauses 6 and 7. It has been observed that under Clause 5, the Rent Controller, upon consideration of all circumstances of the case, including any amount paid before the 1st December 1952, by the tenant, by way of premium or any other like sum in addition to rent, the Rent Controller shall determine the fair rent to be charged for the tenanted premises, if he finds that the rent of the house is insufficient or excessive. The observations in this judgment nowhere state that Rent Controller has to first pass an order under Clause 4 and thereafter stop at that stage, give opportunity to parties to lead evidence for determination of fair rent or market rent and thereafter pass separate order under Clause 5 or 7. The perusal of second judgment in Oyaldas v. Shrikant (supra), again does not show that this Court has found there that Rent Controller has to pass such two orders at two different stages. The judgment of Division Bench of this Court in Shrikisan H. Shop v. Manaklal (supra) considers the controversy at appellate stage. The respondent-tenant had moved application under Clauses 4, 5 and 7(1) of Rent Control Order, contending that rent of Rs. 75/- paid by him was excessive. The petitioner-landlord had filed proceedings for his eviction on account of bona fide need. The Rent Controller dismissed the application and tenant appealed to Additional Deputy Commissioner who fixed the rent at Rs. 20 per month. However, this was done by the appellate authority without recording a finding whether the rent of Rs. 75/- paid by the tenant to the landlord was insufficient or excessive. In this background, the Division Bench has observed that the appellate authority, if it wishes to fix the rent, it has to conform to provisions of Clause 4 of Rent Control Order and has to find out whether rent was insufficient or excessive before proceeding to fix fair rent. Clause 21 of the Rent Control Order does not imply that in deciding the appeal, it can disregard the said provision. It is apparent that said judgment has no application in the facts of present case.

6. In Gulabrao v. Devidas, this Court has interpreted the phrase "All circumstances of the case" appearing in Clause 5 of the Rent Control Order and has held that it includes consideration of prevailing rates of rent for same or similar houses used for similar purposes. This is also the requirement of Clauses 5 and 7. This is helpful only to find out whether the petitioner has succeeded in showing that he has been denied opportunity to lead further evidence and to show prevailing rate of rent. The learned Counsel for the petitioner argued that the petitioner was expecting only order under Clause 4 i.e. preliminary order and because preliminary and final order has been passed together, the petitioner could not lead necessary evidence. It has been argued that the petitioner wanted to examine an Engineer to point out the position and nature of construction, he wanted to examine independent witness to show prevailing rate of rent and also about facilities not provided by the landlord. It is contended that evidence about renovation not being done and valuation or depreciation of premises were also relevant issues in relation to which the petitioner could not lead any evidence. In order to ascertain this aspect, I have perused the appeal memo filed by the petitioner under Clause 21 of Rent Control Order before the appellate authority. The petitioner has not made any such specific grievance in grounds raised before the appellate authority. If the petitioner wanted to lead any such evidence, he could have pointed out that he wanted to examine any Engineer or Architect or any named person as tenant or resident of area to substantiate his stand about prevailing rate of rent. Even in review application filed before the appellate authority, there are no such specific assertions. In Writ Petition filed before this Court, again the petitioner has not pointed out that because of common order passed by the Rent Controller, he was prohibited from leading evidence of any particular authority or person. It appears that during the pendency of the appeal, an application was made for appointment of Commissioner but that has been rejected by the appellate authority. That by itself is not sufficient to hold that because of passing of common order by the Rent Controller, any prejudice has been caused to the petitioner.

7. In these circumstances, when the order passed by the Rent Controller is perused, the said order shows that while considering the matter under Clause 5 of Rent Control Order, the Rent Controller has considered evidence which was made available to him. He has found that present petitioner accepted that shop premises are constructed after 1940 and in cross-examination, he also admitted that he was paying Rs. 81/- and Rs. 30/- per month for tenanted premises. The situation of tenanted premises is also admitted by the petitioner-tenant and it is also recorded that the shops are pakka construction. The schedule filed by the landlord in relation to details of tenanted premises and rents thereof is also mentioned and rent paid in the year upto 1986 is pointed out. It has been found that shops shown in Exh. A-7 are situated on first floor while shops shown at A-4 is situated on ground floor. It has also been recorded that for shops situated on ground floor, tenants have been paying rent @ Rs. 2 to 3 per square feet. Article A-1-Lease Deed between the landlords and tenant Shri Chhutwani is also mentioned. Not only this, the Rent Controller has also found that sons of the petitioner have taken shop premises admeasuring 38 sq. ft. on rent and they are paying rent of Rs. 125/- per month for it. The Rent Controller has found that thus his sons are paying rent more than Rs. 3/- per sq. ft. In view of this material on record, the Rent Controller has arrived at a finding that rent paid in market was Rs. 3/- per sq. ft. and has fixed rent of Rs. 900/- per month for shop admeasuring 300 sq. ft. and rent of Rs. 675/- for shop admeasuring 225 sq. ft. of petitioner. This rent has been fixed from the date of presentation of application i.e. 21-3-1988. These findings are not shown to be perverse at all. On the contrary, the evidence adduced and cross examination clearly reveal that the question of determination of fair rent was also considered by the authorities at that stage. The petitioner has examined himself and he has also examined one person by name Keshwani to substantiate his stand. Keshwani has no doubt stated about rent being paid by him but then he feigned ignorance about rent of premises which his sons were paying. However, he admitted in cross-examination the prevailing rate of rent. Thus, I find that grievance made by the petitioner that because of any order they were prohibited from leading further evidence in this respect is clearly misconceived and by way of afterthought. In any case, the petitioner is only trying to take advantage of technicalities. The petitioner has contended that application did not disclose that house has been constructed after 1940. The reliance has been placed upon the judgment of this Court in the case of Shantilal v. Secretary, K.U.B.S. (supra) to point out its significance. In the facts of present case, it is to be noticed that Respondent-landlords proved that their house is constructed after 1940 i.e. in the year 1950 and this fact was not disputed by the petitioner. The perusal of judgment particularly para 9 on which reliance has been placed reveal that there the challenge was raised by landlords who did not disclose year of construction either in their application to Rent Controller or even in evidence. Here, landlord deposed about year of construction and it is accepted by the petitioner before the Rent Controller. I find that said ruling has no application in the facts of present case.

8. In present case, it is not that Rent Controller has passed order fixing rent without recording preliminary finding. Bare perusal of order shows that it is in two parts. The Rent Controller will not get jurisdiction to pass final order until and unless he first decided preliminary point. It is not necessary that he must pass separate order on preliminary point and thereafter give opportunity to aggrieved party to file appeal and postpone passing of final orders. The appellate authority has found that such joint consideration by Rent Controller saves time and work both. The petitioner tenant has challenged entire order in Appeal and thereafter in Review. It failed to point out any prejudice suffered by it on account of course of action followed by the Rent Controller. In the circumstances, I do not find any substance in the petition. Writ Petition is accordingly dismissed. Rule is discharged. However, in the facts of present case, there shall be no order as to costs.