Rajasthan High Court - Jodhpur
Naveen Kumar Surana vs Abhishek Maheshwari on 6 August, 2019
Author: Sangeet Lodha
Bench: Sangeet Lodha, Vinit Kumar Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Writ Petition No. 6826/2019
1. Smt.Kiran Surana W/o Shri Naveen Kumar Surana, Aged
About 59 Years, By Caste Jain, Resident of Shop No. 1,
Plot No. 239, 3rd B Road, Sardarpura, Opp. Gandhi
Medan, Jodhpur.
2. Naveen Kumar Surana S/o Shri Umrao Mal Surana, Aged
About 56 Years, By Caste Jain, Resident of Shop No. 2,
Plot No. 239, 3rd B Road, Sardarpura, Opp. Gandhi
Medan, Jodhpur.
----Petitioners
Versus
Abhishek Maheshwari Sister/o Shri Nand Kishore Maheshwari, By
Caste Maheshwari, resident of Plot No. 23, 2nd B Road,
Sardarpura, Jodhpur.
----Respondent
D.B.Civil Writ Petition No.6768/2019
Naveen Kumar Surana son of Shri Umrao Mal Surana, by caste
Jain, aged about 59 years, resident of Shop No.2, Plot No.239,
3rd B Road, Sardarpura, Opp. Gandhi Medan, Jodhpur
...... Petitioner
Versus
Abhishek Maheshwari son of Shri Nand Kishore Maheshwari, by
caste Maheshwari, resident of Plot No.23, 2 nd B Road,
Sardarpura, Jodhpur.
.....Respondent
For Petitioner(s) : Mr. Ravi Bhansali, Sr.Advocate with
Mr.Arpit Bhoot and Mr.Vipul Dharnia
Mr. S.R. Soni Caveator in CW
No.6768/19
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HON'BLE MR. JUSTICE SANGEET LODHA
HON'BLE MR. JUSTICE VINIT KUMAR MATHUR Judgment Per Hon'ble Mr.Sangeet Lodha,J.
6th August, 2019 Reportable
1. These petitions are directed against orders dated 30.3.19 passed by the Appellate Rent Tribunal, Jodhpur Metropolitan, whereby the appeals being No.38/18 & 39/18 preferred by the petitioners arising out of the order dated 22.2.18 passed by the Rent Tribunal, Jodhpur Metropolitan in Rent Case Nos.102/14 & 103/14 respectively, allowing the petitions preferred by the respondent seeking eviction of the petitioners from commercial premises, have been dismissed.
2. The respondent filed two separate petitions against the petitioners before the Rent Tribunal, Jodhpur Metropolitan seeking eviction of the petitioners from two commercial premises on the ground of reasonable & bona fide requirement, in terms of the provisions of Section 9(i) of the Rajasthan Rent Control Act, 2001 (for short "the Act of 2001"). The respondent, who is a lawyer by profession, pleaded the requirement of the premises for establishing his office. The petitioners contested the petition by filing a reply thereto, taking the stand that the respondent has already established his office on the first floor of the disputed premises and therefore, the requirement of the premises as pleaded is not bona fide. The respondent filed a rejoinder to the reply filed on behalf of the petitioners, categorically denying the (Downloaded on 30/08/2019 at 01:09:59 AM) (3 of 14) [CW-6826/2019] factum of the respondent running any office of his own on the first floor of the disputed premises or in the backside of shop no.2, 3 and 4. It was averred that the respondent acquired legal qualification in the year 2010 and since then he is running his advocacy office with his father in the rooms on the ground floor situated in the backside of shop no.2, 3 and 4.
3. On the basis of the pleadings of the parties, the Rent Tribunal framed the issues and parties led their evidence.
4. After due consideration of the evidence on record, the Rent Tribunal decided the issue regarding bona fide requirement of the premises in favour of the respondent and against the petitioners and accordingly, by two separate orders passed in Rent Case Nos.102/14 & 103/14, directed eviction of the petitioners from the rented premises in question.
5. Aggrieved by the orders passed by the Rent Tribunal as aforesaid, the petitioners preferred two separate appeals before the Appellate Rent Tribunal, Jodhpur Metropolitan. The Appellate Rent Tribunal has affirmed the findings arrived at by the Rent Tribunal and accordingly, the appeals have been dismissed. Hence, these petitions.
6. At the outset, learned counsel appearing for the petitioners submitted that though against the order of the Appellate Rent Tribunal and Rent Tribunal, the writ petitions in this court are being laid for consideration before the learned Single Judge, the petitioners have filed the present petitions before the Division Bench inasmuch as, against the order passed by the Rent Tribunal and Appellate Rent Tribunal constituted under Article 323B of the Constitution of India, keeping in view the decision of the Apex (Downloaded on 30/08/2019 at 01:09:59 AM) (4 of 14) [CW-6826/2019] Court in the case of L.Chandra Kumar vs. Union of India & Ors.:
(1997) 3 SCC 261, the petition is maintainable only before the Division Bench.
7. Learned counsel submitted that the finding arrived at by the Appellate Rent Tribunal, affirming the findings of Rent Tribunal on the issue of bona fide requirement of the premises, is ex facie perverse. Learned counsel submitted that the Rent Tribunal as also the Appellate Rent Tribunal have failed to appreciate the evidence on record in correct perspective, which has resulted in erroneous finding being arrived at. Learned counsel while drawing the attention of the court to the cross examination of the respondent- P.W.1-Abhishek Maheshwari, submitted that the landlord himself admitted that there exists two offices in the premises and he has his own office, which is different from his father's office and the way to two offices are also separate. Learned counsel submitted that as a matter of fact, while pleading a case of bona fide requirement, the respondent concealed material facts and made mis-statement and therefore, he was not entitled for any relief. Learned counsel submitted that photograph Ex.1 clearly depicts that the respondent's father is operating his office on the first floor and the respondent is operating his own office on the ground floor in the backside of shop no.2, 3 and 4 and thus, ignoring the material evidence on record, the findings arrived at by the Rent Tribunal, affirmed by the Appellate Rent Tribunal are not sustainable in the eyes of law.
8. We have considered the submissions of the learned counsel and perused the material on record.
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9. Indisputably, the petitions filed against the orders passed by the Rent Tribunal or Appellate Rent Tribunal under the provisions of the Act of 2001, in this Court are being laid for consideration before the learned Single Judge. Since the petitioners have raised the issue regarding the maintainability of such petitions before the learned Single Judge and contended that in view of the decision of the Hon'ble Supreme Court in L.Chandra Kumar's case (supra) such petitions could be dealt with only by the Division Bench, it would be appropriate to consider the said issue first.
10. It is noticed that to reduce the mounting arrears in the High Courts and to secure the speedy disposal of the revenue matters and certain other matters of special importance in the context of socio-economic development and progress, it was considered expedient to provide for administrative and other tribunals for dealing with such matters while preserving the jurisdiction of the Supreme Court in such matters under Article 136 of the Constitution. Accordingly, while making certain modification in the jurisdiction of the High Court under Article 226 of the Constitution, Article 323B was inserted in the Constitution by Constitution (Forty-Second Amendment) Act, 1976. Article 323B as originally enacted reads as under :
"323B. (1) The appropriate Legislature may, by law, provide for the adjudication or trial by tribunals of any disputes, complaints, or offences with respect to all or any of the matters specified in clause (2) with respect to which such Legislature has power to make laws.
(2) The matters referred to in clause (1) are the following, namely:--
(a) levy, assessment, collection and enforcement of any tax;
(b) foreign exchange, import and export across customs frontiers;(Downloaded on 30/08/2019 at 01:09:59 AM)
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(c) industrial and labour disputes;
(d) land reforms by way of acquisition by the State of any estate as defined in article 31A or of any rights therein or the extinguishment or modification of any such rights or by way of ceiling on agricultural land or in any other way;
(e) ceiling on urban property;
(f) elections to either House of Parliament or the House or either House of the Legislature of a State, but excluding the matters referred to in article 329 and article 329A;
(g) production, procurement, supply and distribution of food-stuffs (including edible oilseeds and oils) and such other goods as the President may, by public notification, declare to be essential goods for the purpose of this article and control of prices of such goods;
(h) offences against laws with respect to any of the matters specified in sub-clauses (a) to (g) and fees in respect of any of those matters;
(i) any matter incidental to any of the matters specified in sub-clauses (a) to (h).
(3) A law made under clause (1) may--
(a) provide for the establishment of a hierarchy of tribunals;
(b) specify the jurisdiction, powers (including the power to punish for contempt) and authority which may be exercised by each of the said tribunals;
(c)provide for the procedure (including provisions as to limitation and rules of evidence) to be followed by the said tribunals;
(d) exclude the jurisdiction of all courts, except the jurisdiction of the Supreme Court under article 136, with respect to all or any of the matters falling within the jurisdiction of the said tribunals;
(e) provide for the transfer to each such tribunal of any cases pending before any court or any other authority immediately before the establishment of such tribunal as would have been within the jurisdiction of such tribunal if the causes of action on which such suits or proceeding are based had arisen after such establishment;
(f) contain such supplemental, incidental and consequential provisions (including provisions as to fees) as the appropriate Legislature may deem (Downloaded on 30/08/2019 at 01:09:59 AM) (7 of 14) [CW-6826/2019] necessary for the effective functioning of, and for the speedy disposal of cases by, and the enforcement of the orders of, such tribunals.
(4) The provisions of this article shall have effect notwithstanding anything in any other provision of this Constitution or in any other law for the time being in force.
Explanation.--In this article, "appropriate Legislature", in relation to any matter, means Parliament or, as the case may be, a State Legislature competent to make laws with respect to such matter in accordance with the provisions of Part XI."
11. Later, keeping in view inter alia the fact that the operation of the Rent Control Legislations in various States, suffers from major weaknesses, resulting in deleterious legal consequences including mounting and unending litigation, inability of the courts to provide timely justice, evolution of practices and systems to bypass rent legislations and steady shrinkage of rental housing market, the Parliament by way of Constitution (Seventy-Fifth Amendment) Act, 1993, further amended Article 323B in Part XIV-A of the Constitution so as to extend timely relief to the rent litigants by providing for setting up of State Level Rent Tribunals in order to reduce the tiers of appeals. Accordingly, in clause 2 of Article 323B, sub clause (h) was added and existing sub-clauses (h) and
(i) of clause 2 of Article 323B were re-lettered as sub-clauses (i) and (j). The sub-clause (h) inserted as aforesaid reads as under:
"(h) rent, its regulation and control and tenancy issues including the right, title and interest of landlords and tenants."
12. It is noticed that before the enactment of the Act of 2001, the matters relating to letting out of the residential and commercial premises, the rent and eviction in the State governed by Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (Downloaded on 30/08/2019 at 01:09:59 AM) (8 of 14) [CW-6826/2019] (for short "the Act of 1950"), were being dealt with by the regular Civil Courts of competent jurisdiction.
13. Inter alia, with an object to make adequate provision for timely vacation of premises as also determination of fair rent, while retaining certain inbuilt safeguards for the tenant, the State Legislature replaced the Act of 1950 by the Act of 2001 wherein, under Chapter V, the provisions for constitution of Tribunals, procedure for revision of rent and eviction, appeal and execution, were incorporated. Under Section 13 of the Act of 2001, the constitution of Rent Tribunal and under Section 19, Appellate Rent Tribunals was envisaged. As per Section 18, the jurisdiction to hear and decide all the disputes between landlord and tenants and matters connected therewith and ancillary thereto was conferred upon the Rent Tribunal in the areas to which the Act of 2001 was made applicable. As per provisions of sub-section (6) of Section 19 of the Act of 2001, every final order passed by the Rent Tribunal is made appealable to the Appellate Rent Tribunal within the local limits of whose jurisdiction, the premises is situated. As per mandate of provisions of sub-section (11) (ii)(c) of Section 19, the decision of the Appellate Rent Tribunal shall be final and no further appeal or revision shall lie against its order. Thus, for adjudication of the dispute between landlord and tenants in the State of Rajasthan, setting up of two tiers of the Tribunals was proposed. Accordingly, the Rent Tribunals and Appellate Rent Tribunals have been constituted in the State of Rajasthan for various local areas to which Act of 2001 was made applicable.
14. Precisely, the contention of the petitioner is that the Rent Tribunal and Appellate Rent Tribunal having been constituted (Downloaded on 30/08/2019 at 01:09:59 AM) (9 of 14) [CW-6826/2019] under the provisions of Act of 2001, on the strength of Article 323B of the Constitution of India, keeping in view the decision of the Supreme Court in L.Chandra Kumar's case (supra), the writ petition against the orders of the Rent Tribunal and Appellate Rent Tribunal could be entertained only by the Division Bench of this court.
15. In L.Chandra Kumar's case (supra), following issues of law arose for consideration of the Apex Court:
"(1) Whether the power conferred upon Parliament or the State Legislatures, as the case may be, by Sub-Clause (d) of Clause (2) of Article 323A or by Sub-Clause (d) of Clause (3) of Article 323B of the Constitution, totally exclude the jurisdiction of 'all courts', except that of the Supreme Court under Article 136, in respect of disputes and complaints referred to in Clause (1) of Article 323A or with regard to all or any of the matters specified in Clause (2) of Article 323B, runs counter to the power of judicial review conferred on the High Courts under Articles 226/227 and on the Supreme Court under Article 32 of the Constitution?
(2) Whether the Tribunals, constituted either under Article 323A or under Article 323B of the Constitution, possess the competence to test the constitutional validity of a statutory provision/rule?
(3) Whether these Tribunals, as they are functioning at present, can be said to be effective substitutes for the High Courts in discharging the power of judicial review? If not, what are the changes required to make them conform to their founding objectives."
16. After due consideration of the issues involved including the vires of Clause (2) (d) of Article 323A and Clause (3)(d) of Article 323B of the Constitution, the court held :
"100. In view of the reasoning adopted by us, we hold that Clause 2(d) of Article 323A and Clause 3(d) of Article 323B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the "exclusion of jurisdiction" clauses in all other legislations enacted under the aegis of Articles 323A and 323B would, to the same extent, be unconstitutional. The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution (Downloaded on 30/08/2019 at 01:09:59 AM) (10 of 14) [CW-6826/2019] is part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323A and Article 323B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls. The Tribunals will, nevertheless, continue to act like Courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal. Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated."
(emphasis added)
17. Apparently, in L.Chandra Kumar's case (supra), the Supreme Court was concerned with the Tribunal constituted under Article 323A and 323B of the Constitution, which were possessed of competence to test the constitutional validity of statutory provisions and the rules, totally excluding the jurisdiction of all courts including the High Courts except the Supreme Court under Article 136 of the Constitution. The court after due consideration of the issues involved, while declaring the provisions of Clause 2
(d) of Article 323-A and Clause 3 (d) of Article 323-B as also Section 28 of Administrative Tribunal Act, 1985 to the extent they exclude the jurisdiction of the High Court and Supreme Court under Article 226/227 and Article 32 of the Constitution, unconstitutional, directed that all decisions of these Tribunals shall be subject to scrutiny before a Division Bench of High Court within whose jurisdiction concerned Tribunal falls.
18. It is noticed that the constitutional validity of the Act of 2001 was questioned before this court in the matter of Kamal Kishore (Downloaded on 30/08/2019 at 01:09:59 AM) (11 of 14) [CW-6826/2019] vs. State of Rajasthan: 2008 (1) ILR (Raj.) 478, wherein a coordinate Bench of this court while upholding the constitutional validity of inter alia Chapter V of the Act of 2001 dealing with the Constitution of Tribunals, Procedure for Revision of Rent and Eviction, Appeal and Execution, held:
"14.....xxxxx....Lastly, Chapter V is about the constitution of Tribunals whereby the jurisdiction has been taken away from the Civil Courts to that of Rent Control Tribunals. Part XIV A of the Constitution dealing with the Administrative & other Tribunals, prescribes under Clause (1) of Article 323B that appropriate legislature may, by law, provide for adjudication or trial by tribunals of any dispute, complaints or offences with respect to all or any of the matters specified in Clause (2) with respect to which such legislature has power to make laws. Sub-clause (h) of Clause (2) of Article 323B has been inserted by the Constitution 75th Amendment Act of 1993, whereby the rent, its regulation, control and tenancy issues including the right, title & interest of landlord and tenants had been incorporated in it. Therefore, the validity of Chapter 5 of the New Act regarding constitution of the Rent Control Tribunals cannot be also terms as violative of Article 14 of the Constitution."
19. Thus, the question with regard to the power of the State Legislature to constitute the Rent Tribunal and Appellate Rent Tribunal under the Act of 2001 emanates from Article 323B of the Constitution, already stands concluded by this court.
20. But, in the matters of Union of India Vs. Delhi High Court Bar Association: (2002) 4 SCC, 275 and (2003) 2 SCC, 412, the Supreme Court held that Articles 323-A and 323-B are enabling provisions which enable the setting up of Tribunals contemplated therein; and that the said articles, however, cannot be interpreted to mean that they prohibited the legislature from establishing tribunals not covered by those articles as long as there is legislative competence under the appropriate entry in the VII Schedule. Relying upon the said decision, the view taken as (Downloaded on 30/08/2019 at 01:09:59 AM) (12 of 14) [CW-6826/2019] aforesaid, has been reiterated by the Supreme Court in the matter of Union of India Vs. Madras Bar Association: (2010) 11 SCC 1, wherein the Court held that even though revival/ rehabilitation/ regulation/ winding up of company, are not matters which are mentioned in Article 323-A and 323-B, Parliament has the legislative competence to make law providing for constitution of tribunals to deal with the disputes and matters arising out of the Companies Act.
21. It is pertinent to note that the power of the State Legislature to enact the law controlling eviction from, letting of and rents for, certain premises in the State of Rajasthan is traceable under Entry No.6 of List III of VII Schedule of the Constitution, which deals with "Transfer of property other than agriculture land; registration of deeds and documents". Since, the legislation on the subject is occupied by earlier law made by Parliament, while enacting the Act of 2001 in terms of provisions of Clause (2) of Article 254 of the Constitution, the assent of the President was obtained. Suffice it to say that the power of the State Legislature to enact the law to constitute the hierarchy of tribunals for adjudication of the disputes between landlord and tenant in respect of the premises specified exists even independent of Article 323-B of the Constitution.
22. Be that as it may, even if the power of the State Legislature to make provision for constitution of the Rent Tribunal and Appellate Rent Tribunal under the Act of 2001 emanates from Article 323-B of the Constitution of India as concluded by a Bench of this Court in Kamal Kishore's case (supra), the fact remains that the Rent Tribunal and Appellate Rent Tribunal constituted under (Downloaded on 30/08/2019 at 01:09:59 AM) (13 of 14) [CW-6826/2019] the provisions of the Act of 2001 are not even State Level Tribunal, rather, they are intended to function as substitute of the Civil Court of original jurisdiction and the First Appellate Court for adjudication of the dispute between the landlord and tenant in the areas specified, which are not possessed of competence to test the constitutional validity of any statutory provision and the rules. Thus, in our considered opinion the directions of the Hon'ble Supreme Court that all decisions of the Tribunals created under Article 323A and Article 323B of the Constitution of India shall be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls cannot be ipso facto made applicable in respect of the decisions of the Rent Tribunal and the Appellate Rent Tribunal, ignoring the context in which the directions were issued as aforesaid.
23. There is yet another aspect of the matter. As per Rule 54 of Rules of High Court of Judicature for Rajasthan, 1952 (for short "the Rules"), the matter with regard to the constitution of Benches of the Judges sitting alone or in Division Courts and the work to be allotted to them shall be governed by the order of Chief Justice or in accordance with his directions. Further, as per Rule 55 of the Rules, the writ petition under Article 226 and 227 of the Constitution of India except the writ petition challenging the vires of the provisions of the Act, are ordinarily placed for consideration of a Judge sitting alone. However, as per proviso (a) to Rule 55, the Chief Justice may from time to time direct that any case or class of cases, which may be heard by a Judge sitting alone shall be heard by two or more sitting Judges. Thus, the writ petitions seeking judicial review of the order passed by the Rent Tribunal (Downloaded on 30/08/2019 at 01:09:59 AM) (14 of 14) [CW-6826/2019] and Appellate Rent Tribunal, in absence of any order passed by the Chief Justice under proviso (a) to Rule 55, are required to be placed for consideration before the Single Judge.
24. In view of the discussion above, we are of the opinion that these writ petitions preferred by the petitioners questioning the legality of the order passed by the Appellate Rent Tribunal, affirming the order passed by the Rent Tribunal, deserve to be placed for consideration before the learned Single Judge.
25. Accordingly, the Registrar (Judicial) is directed to list these matters before the Single Bench which is assigned the matters arising out of orders passed by the Rent Tribunal and Appellate Rent Tribunal.
(VINIT KUMAR MATHUR),J (SANGEET LODHA),J
Aditya/-
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