Patna High Court
Hardeo Prasad vs Depot Manager, Biscomaun Hilsa And Ors. on 25 April, 1997
Equivalent citations: AIR1997PAT137, 1997(45)BLJR1400, AIR 1997 PATNA 137, (1997) 2 BLJ 171 1997 BLJR 2 1400, 1997 BLJR 2 1400
Author: M.Y. Eqbal
Bench: M.Y. Eqbal
ORDER M.Y. Eqbal, J.
1. This civil revision application is directed against the order dated 12-9-1995 passed by the Subordinate Judge, 1st Court, Hilsa (hereinafter to be referred to as the Court below) in Execution Case No. 2 of 1992, whereby the objection petition filed by the judgment debtors-opposite parties has been allowed and the execution case filed by the petitioner-decree-holder has been dismissed.
2. The relevant facts for the purpose of disposal of this civil revision application are as follows:
The opposite parties were occupying the premises belonging to the petitioner as tenants and the same was used as godown. The petitioner filed a petition for fixation of fair rent before the Controller being B.B.C. Case No. 5 of 1983-84 and the Controller after hearing the parties determined the fair rent of the tenanted premises at Rs. 1800/- per month in terms of the order dated 28-9-1987. As the opposite parties did not pay the rent so directed by the Controller, the petitioner filed an application before the Controller for passing necessary order directing the opposite parties to pay the rent so fixed by the Controller. The Controller accordingly directed the opposite party No. 1 to pay the rent as determined within one month from the date of receipt of the order. The opposite parties even thereafter did not pay the rent so determined by the Controller and the petitioner then levied execution case for realisation of the dues of rent, as determined by the Controller for the period 21-1-1982 to February, 1992, amounting to Rs. 1,27,950/-. The said execution case was filed in the Court below and the same was numbered as Execution Case No. 2 of 1992. The opposite parties appeared and filed objection in the said execution case, contending, inter alia, that the order passed by the Controller is not a decree and the execution case is not maintainable. It has further been contended that the Civil Court has no jurisdiction to proceed with the execution case for recovery of the fair rent, so determined by the Controller. It was further contended that the tenanted premises was vacated on 29-2-1992 and the entire dues has been paid. The opposite parties accordingly prayed for dismissal of the execution case.
The Court below after hearing the parties dismissed the execution case is terms of the order dated 12-9-1995. The Court below held that the Controller has power only to determine the fair rent and it has no jurisdiction to make an order giving direction for payment of fair rent. The Court below further held that it is the Civil Court only which has jurisdiction to pass a decree for payment of arrears of rent. It has further held that the order passed by the Controller is not a decree and the execution proceeding is wholly misconceived.
3. Mr. S.K. Verma, learned Sr. counsel appearing on behalf of the petitioner submitted that the Court below has committed serious illegality in dismissing the execution proceeding by taking the view that the order of the Controller is inexecutable. Mr. Verma has further submitted that the order of the controller is a decree as contemplated under Section 23 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter to be referred to as 'the Act' for short) and, therefore, the said order can be executed by a Civil Court.
On the other hand, Mr. Rakesh Kumar, learned counsel appearing on behalf of the opposite parties, supported the order passed by the Court below by reiterating the reasons given in the said order.
4. Before appreciating the submissions of the learned counsel for the parties, it would be helpful to examine the history of the Rent Control Act.
Section 23 of the Act corresponds to Section 17 of the Bihar Buildings (Lease, rent and Eviction) Control Act, 1947 (hereinafter to be referred to as the 1947 Act) and Section 20 of the Act of 1977. The 1947 Act was amended by Act V of 1951 and thereafter the Act XVI of 1955. In view of the definition of the Court, necessary changes have been effected to make it in consonance with the other provisions of the Act. In House Control Order, 1942 decree for eviction passed by the Controller was not executable and hence the landlord had to file another suit for eviction in the Civil Court and then it was executable. This was simply duplication of work, wastage of time and labour and unnecessary expenditure and also it created multiplicity of suits and proceedings and hence it was repealed by Section 16 of the Ordinance of 1946. By amendment in 1955 power of eviction was given to Civil Court and hence now the decree passed by Civil Court is executable just like any other decree of Civil Court under the provisions of the Civil Procedure Code.
5. Sections 2(c) and 2(d) of the said Act define the words 'Controller' and 'Court' as under:
"2. Definitions. - In this Act unless there is anything repugnant in the subject or context-
(c) "Controller" means in respect of any local areas comprised within the limit of subdivision, the Sub-divisional Officer Incharge of the Sub-division, and includes any other officer appointed in this behalf by the State Government to perform the functions of a Controller under this Act;
(d) "Court" means the Court having jurisdiction under the Code of Civil Procedure, 1908 (Act V of 1908), to entertain a suit by a landlord against a tenant for recovery of possession of building in respect of which a suit or application is filed under this Act;"
Section 5 of the Act empowers the Controller to determine fair rent of buildings in occupation of tenants and Section 6 empowers the Controller to determine the fair rent of buildings not in occupation of tenants. Section 7 only gives powers to the Controller for re-determination of fair rent in certain cases. Section 8 of the said Act provides that what matters and what factors shall have to be taken into consideration for determining the fair rent. For better appreciation, Sections 5 and 6 of the said Act are re-produced hereinbelow:
"5. Determination of fair rent of buildings in occupation of tenants. -- (1) When, on application by the landlord or by the tenant in possession of a building or otherwise, the Controller has reason to believe that the rent of that building is low or excessive, he shall hold a summary enquiry and record a finding.
(2) If, on a consideration of all the circumstances of the case, including any amount paid by the tenant by way of premium or any other like sum in addition to the rent, the Controller is satisfied that the rent of the building is low or excessive he shall determine the fair rent for such building."
"6. Determination of fair rent of buildings not in occupation of tenants. -- The Controller may, on his own notion, and shall on the application of the landlord or a prospective tenant and after making such enquiry, as he may thinks fit, determine the fair rent for any building not in the occupation of a tenant."
From a plain reading of Sections 5 and 6 it is abundantly clear that these provisions only empower the Controller to determine the fair rent of a building. The said provisions do not empower the Controller to make any direction for payment of fair rent so determined by him.
6. Now the only question arises for consideration is whether on the basis of an order of the Controller determining the fair rent of the building, the landlord can recover the fair rent, which became due, by directly filing execution proceeding. Before answering this question, one more provision, i.e. Section 23 of the Act is worth to be looked into. Section 23 of the said Act reads as follows :
"23. Execution of orders of Controller and Commissioner. -- Every order of the Controller passed under this Act, where no appeal against such order has been preferred under Section 24 every order of the appellate authority on appeal under Section 24 and every order of the Commissioner passed in revision under Section 26 shall be executed by the Court as if such orders were a decree passed by such Court."
From a plain reading of the aforesaid provision, it appears that every order of the Controller passed under the Act and every order of the appellate authority and the order of the Commissioner shall be executed by the Court as if such orders were a decree passed by such Court. As stated above. Section 23 of the Act corresponds to Section 17 of the 1947 Act, which reads as under:
"17. Execution of order of Controller and Commissioner -- Every order of the Controller passed under this Act where no appeal against such order has been preferred under Section 18 every order of the appellate authority on appeal under Section 18 and every order of the Commissioner passed in revision under Section 18B shall be executed by the Court, as if such order were a decree passed by such Court."
7. On consideration of the relevant provisions of the Act, quoted hercinabove, and on examination of Sections 5 and 6, I am of the view that the power and jurisdiction of the Controller is restricted to the extent that he can only determine as to what should be the fair rent of a building premises, either in occupation of the tenant of in occupation of the person other than the tenant. The Controller has not been empowered under the aforesaid provisions of the Act to make an order or direction for payment of fair rent or arrears of rent lying due against the tenant. The Controller exceeds in his jurisdiction if he after determining the fair rent make any; further order or direction for payment of arrears of rent, so determined by him and such order would be wholly without jurisdiction.
8. It is well settled that the powers of a tribunal of special jurisdiction are circumscribed by the statute under which it is constituted. Such tribunal must act within its powers and so long as it does so, its orders whether right or wrong, cannot be challenged. But where and in so far as, its actions are in excess or in contravention of the powers conferred on it, they are ultra vires and of no legal effect.
9. Mr. Verma could not produce before me any authority for the proposition that if fair rent is determined by the Controller, the landlord can recover the arrears of rent at the rate fixed by the Controller, directly by filing any execution proceeding and without obtaining the decree of a Civil Court for arrears of rent by filing a regular money suit.
In R.P. Choudhary v. A.K. Nandi, 1962 BUR 282, a question arose as to whether the Controller while fixing the fair rent of a building can fix a date of its effect pro-spectively or retrospectively. In that case the plaintiff-landlord filed a suit for recovery of arrears of house rent @ Rs. 30/- per month. The said suit was contested by the defendant on the ground, inter alia, that the plaintiff himself filed a petition for fixation of rent and fair rent was fixed at Rs. 20/- per month and, therefore, the plaintiff was entitled to a decree only at that rate. The trial Court held that as the order of the House Controller fixing the fair rent did not mention the date from which the order was to take effect, the fair rent so fixed should take effect three months prior to the date when the application was made. The matter ultimately came to this Court. It was held that the Civil Court has jurisdiction to fix the date from which the fair rent fixed under Section 5 is to take effect, and merely because in the order the Controller does not fix the date from which it will take effect, it does not make the order without jurisdiction.
However, in another decision of this Court in R.C. Jain v. D.C.C.C. Store, 1974 BUR 379 a Similar question arose in a suit filed by the landlord for eviction of the tenant as to from which date the order of the Controller fixing the fair rent shall take effect. It was held that the power conferred upon the Controller is a power which can be exercised exclusively by him and the same cannot be exercised by a Civil Court. It is the exclusive jurisdiction of the Controller to determine and appoint a date with effect from which the fair rent has to be determined. If the power is not exercised and nothing is indicated in the order determining a fair rent to that effect, then by no stretch of imagination, any retrospectivity can be applied to an order to the detriment of any party. In that case the order must have a prospective operation.
10. Be that as it may, the question involves in this case cannot be answered in affirmative. As stated above Sections 5 and 6 simply empower the Controller to determine the fair rent of a building premises in the event any application is filed to that effect, either by the landlord or by the tenant. While determining the fair rent, the Controller may fix a date from which this order shall take effect, but it cannot make an order directing the tenant to pay the arrears of rent of the building premises at the rate so fixed by him. In my considered view if such an order/direction is made by the Controller, that cannot be and shall not be held to be a decree, so as it could be executed by a Civil Court as contemplated under Section 23 of the Act. Even if fair rent of any building in occupation of a tenant is determined or re-determined by the Controller under the provisions of Sections 5, 6, 7 and 8 of the Act, the landlord is not entitled to recover the arrears of rent from the tenant at the rate fixed by the Controller by executing his order unless a decree for recovery of such is obtained from a Civil Court by filing a regular money suit.
11. In the facts and circumstances of the case, I do not find any illegality or infirmity in the order passed by the Court below (under challenge) who rightly dismissed the execution proceeding as not maintainable.
12. In the result, this civil revision application is dismissed.