M/S Labhshetwar And Sakkarwar ... vs The State Of Maharashtra & Anr
2017 Latest Caselaw 9749 Bom

                                                                 cwp1150.15
                                        1


                                        
      IN  THE HIGH COURT OF JUDICATURE AT BOMBAY

                               BENCH AT AURANGABAD


             CRIMINAL WRIT PETITION NO.1150 OF 2015


 1) M/s. Labhshetwar & Sakkarwar 
    Constructions, a registered
    Partnership Firm Reg. No.58/2001,
    Having its office at Lab Chambers,
    Station Road, Aurangabad,
    Through its partners.

 2) Vitthal Ganpatrao Labhshetwar,
    Age-70 years, Occu:Business,
    R/o-Plot No.50, Vedant Nagar,
    Aurangabad,

 3) Mahesh Vitthalrao Labhshetwar,
    Age-41 years, Occu:Business,
    R/o-Plot No.50, Vedant Nagar,
    Aurangabad,

 4) Sau Shanta Vitthalrao Labhshetwar,
    Age-64 years, Occu:Business,
    R/o-Plot No.50, Vedant Nagar,
    Aurangabad,

 5) Sau. Madhuri w/o Mahesh Labhshetwar,
    Age-37 years, Occu:Business,
    R/o-Plot No.50, Vedant Nagar,
    Aurangabad,

 6) Vijay s/o Ramdas Sakkarwar,
    Age-37 years, Occu:Business,
    R/o-Labh Chambers, Station Road,
    Aurangabad,




::: Uploaded on - 19/12/2017                  ::: Downloaded on - 20/12/2017 02:11:18 :::
                                                           cwp1150.15
                                 2


 7) Sau. Vijayalaxmi Ramdas Sakkarwar,
    Age-64 years, Occu:Household & Business,
    R/o-"Gurukrupa", Ganeshnagar,
    Nanded,

                                 ...PETITIONERS 
        VERSUS             

 1) The State of Maharashtra,
    Through the Secretary,
    Law and Judiciary Department,
    Mantralaya, Mumbai,

 2) Ravindra s/o Vitthalrao Songire,
    Age-44 years, Occu:Business,
    R/o-Bansilal Nagar,
    Aurangabad.   
                                 ...RESPONDENTS

                      ...
    Mr. A.P. Bhandari Advocate for Petitioners.
    Mr. Ashutosh Kumbhkoni, learned Advocate
    General with Mr. A.B. Girase, Government
    Pleader and Mr. Akshay Shinde Advocate 
    for Respondent No.1.
    Mr. A.P. Avhad, Advocate for Respondent No.2. 
                      ...

               CORAM:   S.S. SHINDE AND
                        MANGESH S. PATIL, JJ.

DATE OF RESERVING JUDGMENT : 27TH NOVEMBER, 2017

DATE OF PRONOUNCING JUDGMENT: 19TH DECEMBER, 2017

JUDGMENT [PER S.S. SHINDE, J.]:

1. Rule. Rule made returnable forthwith and

cwp1150.15

heard finally with the consent of the learned

counsel appearing for the parties.

2. This Petition is filed with following

prayers:

"(C) By a suitable writ, order or direction the Section 55 of the Maharashtra Rent Control Act, 1999 be struck down on the ground that, the same is beyond legislative competence of State Legislature.

(D) By a suitable writ, order or direction Section 55 of the Maharashtra Rent Control Act, 1999 be struck down on the ground that, the same is violative of fundamental right of the Petitioners guaranteed by Article 14, 19(1)(g) of the Constitution of India,

(E) By a suitable writ, order or direction the order dated 06.08.2015 passed by the learned XIIIth Judicial Magistrate, First Class, Aurangabad and

cwp1150.15

entire proceedings in SCC No.3181 of 2015 be quashed."

3. The background facts for filing the

present Petition as disclosed in the memo of the

Petition, in brief, are as under:

A). It is the case of the Petitioners that

Petitioner No.1 is a partnership firm and

Petitioner Nos.2 to 7 are the partners of said

firm. The hotel premises constructed on Plot No.4,

CTS No.18349/1/4, situated at Vedant Nagar,

Aurangabad is the subject matter of various

proceedings between the parties (for short "the

property"). Said premises is owned by the

Petitioners. Petitioner No.1 firm executed a

registered leave and license document in favour of

Respondent No.2 on 21st April, 2004 and the same

was registered at Sr. No.1591 of 2004 with Sub-

Registrar-1, Aurangabad. Said Leave and license

Agreement was to operate for a period of 33 months

cwp1150.15

and the agreement clearly spells out the terms and

conditions agreed upon by and between the parties.

B) It is the further case of the Petitioners

that according to allegations made in complaint on

19th January, 2007 another agreement was executed

for a period of 27 months. Initially, proceeding

under Section 9 of Arbitration Act bearing MARJI

No.133 of 2009 were filed by Respondent No.2

thereby praying for the relief of injunction. In

the said proceedings, by order dated 27th April,

2009 learned Principal District Judge, Aurangabad

directed the Petitioners to deposit an amount of

Rs.7,00,000/-, which was deposited by the

Petitioners. Feeling aggrieved by order dated 19th

June, 2009, Respondent No.2 filed Arbitration

Appeal No.3 of 2009 before this Court, which was

later on withdrawn.

C) It is the case of the Petitioners that on

26th November, 2009, Respondent No.2 filed Regular

cwp1150.15

Civil Suit No.1001 of 2009 praying therein for

grant of relief of injunction. Along with the said

suit, application Exhibit 5 was filed for

temporary injunction, which came to be allowed.

Feeling aggrieved by the said order, the

Petitioners filed Misc. Civil Appeal No.26 of 2010

before the District Court, which came to be

rejected by order dated 6th April, 2010. Being

aggrieved by the orders passed by Courts below,

Petitioners filed Writ Petition No.3668 of 2010

before this Court. In the said Petition, order

dated 3rd May, 2010 was passed by consent of

parties.

D) It is the further case of the Petitioners

that ultimately Regular Civil Suit No.1001 of 2009

filed by Respondent No.2 was heard and dismissed

by order dated 20th February, 2013 by the Civil

Court, Aurangabad. Respondent No.2 preferred

Regular Civil Appeal No.66 of 2013 before the

District Court, Aurangabad, along with an

cwp1150.15

application below Exhibit 5 for temporary

injunction. The said application for temporary

injunction came to be allowed. Against the said

order dated 16th March, 2013 the Petitioners filed

Appeal from Order No.36 of 2013 before this Court,

which came to be disposed of. The Petitioners were

granted specific liberty to file an application

for escalation in the amount of compensation paid

to the Petitioners.

E) It is the case of the Petitioners that in

terms of liberty granted to the Petitioners,

application Exhibit 63 was filed, praying therein

for escalation in amount of compensation. The said

application was partly allowed and it was held

that an amount of Rs.4,00,000/- is payable with

effect from 1st April, 2015. The said order is

challenged by the Petitioners for further

escalation in the amount of compensation.

Respondent No.2 filed an application for review of

said order, which application came to be

cwp1150.15

dismissed.

F) It is submitted by the Petitioners that

parties are litigating various proceedings for

more than six years. Respondent No.2 then filed

S.C.C. No.3181 of 2015 against the Petitioners for

the offence under Section 55 of the Maharashtra

Rent Control Act, 1999 read with Section 34 of the

Indian Penal Code. It is the case of the

Petitioners that the learned XIII Judicial

Magistrate, First Class, Aurangabad, by order

dated 12th May, 2015, without even considering the

fact that the complaint in question is hopelessly

time barred, issued process against the

Petitioners. The said order dated 12th May, 2015

is a subject matter of challenge in this

Petition.

4. It is submitted that the Petitioners are

challenging the constitutional validity of

Section 55 of the Maharashtra Rent Control Act,

cwp1150.15

1999 on the ground that the same is inconsistent

with the provisions of the Central Act, and also

on the ground that the said provision imposes

unjust, unfair and unreasonable restriction on the

landlord to get the instrument registered. In fact

such a responsibility is required to be imposed on

the licensee. Furthermore, the said provision

discourages the transactions of leave and licence.

It is submitted that said provision has now become

a tool in the hands of licensees to obstruct the

proceedings for eviction and to coerce the

landlord for bringing him to terms. It is

submitted that the relations between a Licensor

and Licensee were governed by the provisions of

Indian Easements Act, 1882. Said Act is a Central

Act and the same does not prescribe compulsory

registration of a Leave and Licence agreement and

an agreement for continuation of the same.

Therefore, the obligation now cast to compulsorily

register such agreement is inconsistent with the

provisions of Indian Easements Act. Therefore,

cwp1150.15

provision of Section 55 of the Maharashtra Rent

Control Act being inconsistent with the provisions

of Central Act, is beyond legislative competence

of State Legislature and is therefore void.

5. Referring to the grounds taken in the

Petition, learned counsel appearing for the

Petitioners submitted that the registration and

requirement of compulsory registration of

agreements between the parties are prescribed in

the Indian Registration Act. Section 17 of the

said Act does not prescribe compulsory

registration of a leave and licence agreement.

Thus, provision of Section 55 of the Maharashtra

Rent Control Act is inconsistent with the

provisions of the Central Act.

6. Learned counsel appearing for the

Petitioners submitted that the said provision

imposes unjust, unfair and unreasonable

restriction on the landlords/ licensors. There may

cwp1150.15

be several cases wherein the tenant is responsible

for non-registration of documents and therefore

casting duty only on the landlord is unjust. It is

submitted that Section 55 of the Maharashtra Rent

Control Act is misused by the licensees, not

desirous of handing over the possession of

property, with sole intention of obstructing the

proceedings for eviction or to coerce the licensor

and therefore the said provision is not

sustainable in law.

7. Referring to the grounds taken in the

Petition for quashing the proceedings in S.C.C.

No.3181 of 2015, it is submitted that according to

the contents of the complaint the alleged offence

is committed on and between 19th January, 2007 to

18th July, 2009 and till date. The factum of non

registration of the document occurred for the

first time on 19th January, 2007 and the period of

limitation deserves to be counted from the said

date. Learned counsel invited our attention to the

cwp1150.15

provisions of Section 468 (2)(b) of the Code of

Criminal Procedure and submitted that the

prosecution is barred and therefore the learned

Magistrate could not have taken cognizance of the

matter.

8. Learned counsel placed reliance upon the

exposition of law by the Supreme Court in the case

of Zandu Pharmaceutical Works Ltd. vs. Mohd.

Sharful Hqaue1, and submitted that when the

complaint itself is barred by limitation, the same

can be quashed by the High Court, by exercising

powers under Section 482 of the Code of Criminal

Procedure read with Article 226 and 227 of the

Constitution of India. It is submitted that the

parties are prosecuting various proceedings for

more than six years and filing of such proceedings

by Respondent No.2 at this stage, clearly

demonstrates that the proceedings are filed by

abusing the process of law and therefore the same

1 AIR 2005 S.C. 9

cwp1150.15

deserves to be quashed. Learned counsel further

placed reliance upon the exposition of law by the

Supreme Court in the case of State of Haryana vs.

Bhajanlal2 and submitted that the proceedings

deserve to be quashed.

9. On the other hand, relying upon the brief

note submitted on record on behalf of the State of

Maharashtra, learned Advocate General submitted

that it is settled principle of law that there is

always presumption of constitutionality of the

Statute and the burden is upon the person who

questions it, to show that there has been clear

transgression of Constitutional principles. It is

submitted that this rule is based on judicially

recognized and accepted assumption that, the

legislature understands and correctly appreciates

the needs of its people and its laws are directed

to problems made manifest by experience. It is

submitted that in order to sustain the strong

2 AIR 1992 S.C. 604

cwp1150.15

presumption of constitutionality, the Court may

take into consideration matters of common

knowledge, matters of common reports, history of

times and may assume every state of facts which

can be conceived existing at the time legislation

was made. It is further submitted that the only

grounds on which it is permissible in law to

question the constitutional validity of a

statutory provision are: a) Lack of legislative

competence and b) Inconsistency with Part-III of

the Constitution. Learned Advocate General invites

our attention to the grounds taken in the Petition

and submits that the grounds taken by the

Petitioners that Section 55 of the Maharashtra

Rent Control Act is violative of fundamental

rights of all licensors and that the said

provision is misused by Licensee and the same is

unsustainable in the eyes of law is concerned,

these grounds are tried to be made out without any

pleadings and the same are vague. There is no

material placed on record in support of such tall

cwp1150.15

claims.

10. Learned Advocate General further

submitted that the Petition does not mention any

specific fundamental right out of the rights

comprised in Part-III of the Constitution, which

is adversely affected. It is submitted that 'Right

to acquire, hold and dispose of property' no

longer continues to be a fundamental right with

deletion of Article 19(1)(f) and Article 31 of the

Constitution of India vide Constitution (Forty

Fourth Amendment) Act, 1978 with effect from 20th

July, 1979. It is further submitted that in the

absence of any fundamental right having been spelt

out, no occasion has arisen for this Court to

examine the contention of the Petitioners whether

or not the provision in issue imposes any unjust,

unfair and unreasonable restriction on any such

right of the landlords/ licensors. The Petitioners

miserably failed to plead as to how the duty cast

upon the landlord by the provision is unjust,

cwp1150.15

unfair and unreasonable.

11. It is further submitted that it is well

settled position of law that mere possibility of

abuse of a provision of law does not per se

invalidate a legislation. Such a claim does not

make a legislation arbitrary, discriminatory or

violative of Article 14. Even in case of an abuse

or misuse of a provision of law, the impugned

'action' becomes illegal and vulnerable and not

the 'section' under which such an action is taken.

It is further submitted that claim of

inconsistency and resultant alleged legislative

incompetence in as much as Indian Easement Act is

concerned, the said contention is fundamentally

unsustainable since the provisions of the Indian

Easements Act have no application at all to 'the

licence' contemplated under the provision in

issue. It is settled position of law that licence

contemplated by the provisions of Rent Act and the

one contemplated by the provisions of Indian

cwp1150.15

Easements Act are not pari-materia. Even otherwise

the Indian Easements Act does not prohibit

registration of documents in issue so as to say

that the provision in issue is inconsistent with

the Central Act. It is submitted that Section 17

of Indian Registration Act also does not prohibit

registration of documents in issue and therefore

it cannot be said that the said provision is

inconsistent with the provision in issue.

12. It is further submitted that the

provision in issue is enacted by the State

Legislature in exercise of its legislative power

under Entry 6, List-III of the Seventh Schedule of

the Constitution of India which reads thus:

"Transfer of property other than Agricultural

land; registration of deeds and documents". It is

submitted that the aforesaid provision clearly

spells out legislative competence of the State

Legislature, being concurrent list, to enact a law

relating to 'registration of deeds and documents'.

cwp1150.15

Since the State Legislature has legislative

competence to enact an independent State law in

the aforesaid regard, it has legislative

competence to make a law for registration of a

document by including/inserting only a separate

provision i.e. a section in a State law which has

been done by virtue of provision in issue. It is

further submitted that it was also open for the

State legislature to provide for a "State

amendment" to any provision of the said Central

Act, including Section 17 thereof and to make such

a provision. It is submitted that many States have

made State amendments to various provisions of the

said Central Act, including Section 17 in respect

of various documents, which amendments have been

upheld. It is submitted that once legislative

power is traced out, the challenge ought to fail.

13. It is further submitted that the

provision in issue is certainly not inconsistent

with any of the provisions of the aforesaid

cwp1150.15

Central Acts. The impugned provision and both the

aforesaid Central Acts operate in different

fields, without encroaching upon each other's

filed. Since all these Statutes can operate

simultaneously without any collision, this quest

of repugnancy does not even arise for

consideration.

14. It is further submitted that the

Presidential assent has been obtained on 10th

March, 2000 to the entire Rent Act, which contains

the provision in issue and only thereafter the Act

has come into force with effect from 31st March,

2000. Therefore, by virtue of the provisions of

Article 254(2) of the Constitution, the State Act

containing the provision in issue will prevail

over the Central Act, the State Act being a later

Act promulgated with the Presidential assent. It

is therefore prayed that the challenge to

constitutional validity of Section 55 of the Rent

Act is not at all valid and the same may be turned

cwp1150.15

down.

15. It is further submitted that, even

according to the contents of the complaint the

alleged offence is committed since 19th January,

2007 and till date the offence is being committed

and therefore the proceedings are not at all time

barred. It is further submitted that the order

dated 6th August, 2015 passed by the XIII Judicial

Magistrate, First Class, Aurangabad is perfectly

right and therefore the proceedings in S.C.C.

No.3181 of 2015 are not liable to be quashed.

Hence it is prayed that the Writ Petition be

rejected.

16. In support of aforesaid submissions,

learned Advocate General placed reliance on

exposition of law in following cases:

(i) Amrit Banaspati Co. Ltd. vs. Union of

cwp1150.15

India and others3,

(ii) Sushil Kumar Sharma vs. Union of India4,

(iii) M. Karunanidhi vs. Union of India and another5,

(iv) Bharat Hydro Power Corpn. Ltd. and others vs. state of Assam and another6

(v) Amit B. Dalal vs. Rajesh K. Doctor7,

(vi) Prabhudas Damodar Kotecha and others vs. Manhabala Jeram Damodar and another8

(vii) Raj Prasanna Kondur vs. Arif Taker Khan and others9,

(viii) Suraj Lamp and Industries Private Limited Through Director vs. State of Haryana and another10,

(ix) Suraj Lamp and Industries Private Limited (2) Through Director vs. State of

3 (1995) 3 S.C.C. 335 4 (2005) 6 S.C.C. 281 5 1979(3) S.C.C. 431 6 (2004) 2 S.C.C. 553 7 2010(7) Mh.L.J. 1 8 (2013) 15 S.C.C. 358 9 (2005) 4 Bom.C.R. 383 10 (2009) 7 S.C.C. 363

cwp1150.15

Haryana and another11,

(x) State of Rajasthan and others vs. Basant Nahata12.

17. We have carefully considered the

submissions of learned counsel appearing for the

Petitioners, learned Advocate General appearing

for the State and learned counsel appearing for

Respondent No.2. With their able assistance we

have carefully perused the grounds taken in the

Petition, annexures thereto, and also the other

documents placed on record including brief note

submitted on record on behalf of the State of

Maharashtra.

18. At this juncture, it would be apt to

reproduce herein below the grounds taken in the

Petition challenging the constitutional validity

of Section 55 of the Maharashtra Rent Control Act,

which read thus:

11 (2012) 1 S.C.C. 656 12 (2005) 12 S.C.C. 77

cwp1150.15

"I) The Petitioners say and submit that, the relations between a Licensor and Licensee were governed by the provisions of Indian Easements Act, 1882. Said Act is a Central Act and the same does not prescribe compulsory registration of a Leave and License agreement and an agreement for continuation of the same. Therefore, the obligation now cast to compulsorily register such agreement is inconsistent with the provisions of Indian Easements Act, 1882. Therefore, provisions of section 55 of the Maharashtra Rent Control Act, 1999 being inconsistent with the provisions of Central Act, are beyond legislative competence of State legislature and therefore, void.

II) The Petitioners say and submit that, the registration and requirement of compulsory registration of agreements between the parties are prescribed in the Indian Registration Act, 1908. Section 17 of the said Act, which has been amended from time to time does not prescribe the requirement of compulsory registration of a leave and license agreement. Therefore, provisions of section 55 of the Maharashtra

cwp1150.15

Rent Control Act, 1999 being inconsistent with the provisions of Central Act, are beyond legislative competence of State legislature and therefore, void.

IV) The Petitioners say and submit that, Section 55 of the Maharashtra Rent Control Act, 1999 is misused by the Licensees, not desirous of handing over of the possession of the property, with sole intention of obstructing the proceedings for eviction or to coerce the Licensor, therefore, said provision is not sustainable in the eyes of law."

19. Upon careful perusal of the

aforementioned grounds, it is abundantly clear

that without giving better particulars or clearly

spelling out specific grievances, only aforesaid

grounds are incorporated in the Petition with

prayer to struck down the provisions of Section 55

of the Maharashtra Rent Control Act, 1999, on the

ground that the same is beyond competence of State

Legislature. The Supreme Court in the case of

Amrit Banaspati Co. Ltd. vs. Union of India and

cwp1150.15

others, cited supra, in Para 6 of the Judgment

held as under:

"6. It is settled law that the allegations regarding the violation of constitutional provision should be specific, clear an unambiguous and should give relevant particulars, and the burden is on the person who impeaches the law as violative of constitutional guarantee to show that the particular provision is infirm for all or any of the reasons stated by him. In the recent decision of this Court Gauri Shanker v. Union of India13 to which both of us were parties, it was reiterated that-

(a) there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles;

13 (1994) 6 SCC 349

cwp1150.15

(b) it must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds;

(c) in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation."

20. We scanned the entire pleadings and

grounds in the Petition. If the pleadings and

grounds are tested in the light of above

principles, we are of the opinion that there is no

sufficient or specific or definite pleadings with

cwp1150.15

particulars, to state that the provisions of

Section 55 of the Maharashtra Rent Control Act are

inconsistent with the provisions of Section 17 of

the Indian Registration Act, 1908 and the

provisions of Indian Easement Act, 1882. There are

no specific, clear, unambiguous, relevant and

material particulars in the Petition to show that

there is violation of constitutional provision and

in particular fundamental rights of the

Petitioner. Merely because Section 55 of the

Maharashtra Rent Control Act provides for

compulsory registration of leave and licence, does

not mean it is inconsistent with the provisions of

Section 17 of the Indian Registration Act and the

provisions of Indian Easement Act, when the

aforesaid provisions can be harmoniously

constructed and interpreted so as to achieve the

legislative object/intent.

21. The provision of Section 55 of the

Maharashtra Rent Control Act, 1999 reads as under:

cwp1150.15

"55. Tenancy Agreement to be compulsorily registered:-

(1) Notwithstanding anything contained in this Act or any other law for the time being in force, any agreement for leave and license or letting of any premises, entered into between the landlord and tenant or the licensee, as the case may be, after the commencement of this Act, shall be in writing and shall be registered under the Registration Act, 1908 (XVI, 1908),

(2) The responsibility of getting such agreement registered shall be on landlord and in the absence of the written registered agreement, the contention of the tenant about the terms and conditions subject to which a premises have been given to him by the landlord on leave and license or have been let to him, shall prevail, unless proved otherwise.

(3) Any landlord who contravenes the provisions of this section shall, on conviction, be punished with imprisonment which may extend to three months or with fine not exceeding rupees five thousand or

cwp1150.15

with both."

22. So far as legislative competence of State

Legislature to enact the Maharashtra Rent Control

Act is concerned, it would be apt to reproduce

herein below Entry 6 in List III of Schedule 7

under Article 246 of the Constitution of India,

which reads as under:

"6. Transfer of property other than agricultural land; registration of deeds and documents."

. Therefore, the contention of learned

counsel appearing for the Petitioner that the

State Legislature was not competent to enact

Section 55 of the Maharashtra Rent Control Act has

no substance.

23. The Supreme Court in the case of M.

Karunanidhi vs. Union of India and another, cited

supra, in Para 24 of the Judgment, held as under:

cwp1150.15

"24. It is well-settled that the presumption is always in favour of the constitutionality of a statute and the onus lies on the person assailing the Act to prove that it is unconstitutional. Prima facie, there does not appear to us to be any inconsistency between the State Act and the Central Acts. Before any repugnancy can arise, the following conditions must be satisfied :

1. That there is a clear and direct inconsistency between the Central Act and the State Act.

2. That such an inconsistency is absolutely irreconcilable.

3. That the inconsistency between the provisions of the two Acts is of such a nature as to bring the two Acts into direct collision with each other and a situation is reached where it is impossible to obey the one without disobeying the other."

24. As is already observed, the pleadings and

grounds taken in the Petition are too general,

cwp1150.15

vague and do not spell out that there is clear and

direct inconsistency between the provision of

Section 55 of the Maharashtra Rent Control Act

vis-a-vis the provision of Section 17 of the

Indian Registration Act, 1908 and the provisions

of Indian Easement Act, 1882 and that such an

inconsistency is absolutely irreconcilable. The

Petitioner has not demonstrated as to how the

provision of Section 55 of the Maharashtra Rent

Control Act is inconsistent with the provisions of

Section 17 of the Indian Registration Act, 1908

and the provisions of Indian Easement Act, 1882.

25. Another argument of the counsel appearing

for the Petitioner that the provision of Section

55 of the Maharashtra Rent Control Act is misused

by the Licensees and therefore the said provision

be struck down, deserves to be rejected in view of

the exposition of law by the Supreme Court in the

case of Sushil Kumar Sharma vs. Union of India and

others, cited supra. In Para 12 of the said

cwp1150.15

Judgment, the Supreme Court has held as under:

"12. It is well settled that mere possibility of abuse of a provision of law does not per se invalidate a legislation. It must be presumed, unless the contrary is proved, that administration and application of a particular law would be done "not with an evil eye and unequal hand". (See A. Thangal Kunju Musaliar v. M. Venkatichalam Potti14)."

26. As is already observed, the State

Legislature was competent to legislate the

Maharashtra Rent Control Act. The said Act has

received the assent of the Hon'ble President of

India, on 10th March, 2000 which contains the

provision of Section 55 of the Act, and only

thereafter the Act came into force with effect

from 31st March, 2000.

27. Learned counsel appearing for the

Petitioner pressed into service exposition of law

14 (1955) 2 SCR 1196: AIR 1956 SC 246

cwp1150.15

in the case of Kaiser-I-Hind Pvt. Ltd. and others

vs. National Textile Corporation Ltd. and others15

and submitted that merely because the Hon'ble

President of India has given assent to the

Maharashtra Rent Control Act, it would not

automatically lead to the conclusion that

provision of Section 55 of the Maharashtra Rent

Control Act is valid and it cannot be subject

matter of challenge. If the specific inconsistency

of particular provision is pointed out, like the

provision of the State Act is

repugnant/inconsistent to the provision in the

Central Act, in that case in view of the aforesaid

Judgment, such challenge can survive and can be

gone into.

28. Upon careful perusal of the provision of

Section 55 of the Maharashtra Rent Control Act

vis-a-vis the provision of Section 17 of the

Indian Registration Act, 1908 and the provisions

15 AIR 2002 S.C. 3404

cwp1150.15

of Indian Easement Act, 1882, we do not find any

repugnance as such and the pleadings and the

grounds taken in the Petition proceed on mere

possibilities without demonstrating how the

provision of Section 55 of the Maharashtra Rent

Control Act is inconsistent with the provision of

Section 17 of the Indian Registration Act and the

provisions of Indian Easement Act. The provisions

of Section 55 of the Maharashtra Rent Control Act,

Section 17 of the Indian Registration Act, 1908

and the provisions of Indian Easement Act, 1882

can be harmoniously interpreted, and there is no

inconsistency as such giving rise to challenge and

judicial scrutiny, to hold that said provisions

are inconsistent.

29. Upon careful perusal of the relevant

provisions, it is clear that the provision of

Section 55 of the Maharashtra Rent Control Act is

not inconsistent with the provisions of the Indian

Easement Act and Indian Registration Act.

cwp1150.15

Section 55 of the Maharashtra Rent Control Act and

the provisions of Indian Easement Act and Indian

Registration Act operate in different fields. As

is already observed, we find considerable force in

the arguments advanced by the learned Advocate

General that the Petitioners have challenged the

constitutional validity of Section 55 of the

Maharashtra Rent Control Act without any pleadings

or better particulars, and the Petitioners have

not specifically mentioned that the said provision

is violative of which fundamental right of the

Petitioners. Hence the challenge to the

constitutional validity of Section 55 of the

Maharashtra Rent Control Act deserves to be

rejected.

30. We need not go into greater details since

in our opinion the pleadings and grounds taken in

the Petition are without particulars or clearly

spell out specific grievance of the Petitioner or

which fundamental right has been violated because

cwp1150.15

of the provision of Section 55 of the Maharashtra

Rent Control Act. As is already observed, the

grounds are vague and general in nature and

therefore the prayer of the Petitioner to grant

relief in terms of prayer clause (C) and (D)

reproduced herein above in Para-2 of the Judgment

stands rejected.

31. The Petitioners have also challenged the

order passed by the Judicial Magistrate directing

issuance of process under Section 55 of the

Maharashtra Rent Control Act read with Section 34

of the Indian Penal Code, against the Petitioners.

32. We have perused the impugned order passed

by the Magistrate. While passing the order dated

6th August, 2015, the Magistrate has not recorded

the reasons. The Magistrate ought to have assigned

the reasons, at least in brief, keeping in view

the exposition of law by the Supreme Court in the

case of Anil Kumar and others vs. M.K. Aiyappa and

cwp1150.15

another16 and the Division Bench of the Bombay High

Court Bench at Nagpur in the case of State of

Maharashtra vs. Shashikant Eknath Shide17.

33. It is also relevant to mention that

already the civil dispute arising out of the

proceedings of Regular Civil Suit No.1001 of 2009

is pending between the parties.

34. Thus, on both counts, firstly no reasons

are assigned by the Magistrate while passing the

said order, and secondly the civil dispute is

pending between the parties, the order dated 6th

August, 2015 passed by XIII Judicial Magistrate,

First Class, Aurangabad and consequential

proceedings in S.C.C. No.3181 of 2015 deserve to

be quashed and set aside.

35. For the reasons stated herein above, the

order dated 6th August, 2015 passed by XIII 16 (2013) 10 S.C.C. 705 17 2013(4) Bom.C.R.(Cri.) 801

cwp1150.15

Judicial Magistrate, First Class, Aurangabad and

consequential proceedings in S.C.C. No.3181 of

2015 are quashed and set aside.

36. Rule is partly made absolute in above

terms. The Writ Petition stands disposed of,

accordingly.

[MANGESH S. PATIL, J.] [S.S. SHINDE, J.] asb/NOV17