Rajasthan High Court - Jaipur
Firm Khetsi Dass Sheoji Ram, ... vs Mohani Devi And Anr. on 4 July, 1994
Equivalent citations: 1994(2)WLC551, 1994(2)WLN126
JUDGMENT Milap Chandra Jain, J.
1. This revision petition has been filed by the tenant against the order of the Civil Judge, Churu dated February 19, 1994 by which he has allowed the appeal and set aside the order of the Munsiff, Sardar Shahar dated October 07, 1985 fixing provisional rent @ Rs.400/- p.m. Under Section 7, Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short 'the Act') and has fixed provisional rent at the agreed rate of Rs.700/- per month.
2. The facts of the case giving rise to this revision petition may be summarized thus. In the year 1983, the plaintiff- non-petitioners M/s Khetsidas Sheoji Ram and its two partners (tenants) filed a suit for fixation of standard rent Under Section 6 of the Act against the defendant-non-petitioners (landlords) with the averments, In short, that on May 05,1979, the suit shop was taken on monthly rent of Rs.700/-, it is exorbitant and excessive and the prevailing rent of the neighbouring shops ranges in between Rs.100-150/- p.m. and praying that the standard rent be fixed @ Rs.150/- per month. In their joint written statement, the defendants admitted that the suit, shop was let out to the plaintiffs on monthly rent of Rs.700/-. They have further averred that the suit shop is 'CHARKHANI' and the agreed rent is neither excessive nor exorbitant. By order dated November 03, the Munsiff, Sardarshahar determined the provisional rent @ Rs.400/- per month. Appeal was filed against it, it was allowed and the case was remanded for fresh determination of provisional rent. After remand, the trial Court again determined the provisional rent @ Rs.400/- per month by its order dated October 07, 1985. As said about appeal, filed against their order was allowed and provisional rent was determined @ Rs.700/- per month by the appellate Court. The appellate Court observed in its order that the suit shop was taken on rent in the year 1979 after paying advance rent for four years @ 700/- per month, if this rate of rent would have been exorbitant or excessive, amount of Rs. 33,600/- would not have been paid in advance towards rent of four years, after a lapse of 15 years it cannot be said that the agreed rent is exorbitant or excessive particularly when value of rupee has considerably gone down and accordingly, fixed provisional rent at the agreed rate of Rs.700/-per month.
3. It has been contended by the learned Counsel for the petitioners that the prevailing rent in the year 1979 of the neighboring shops wasin between 100-150/- per month, the lower Courts should have fixed provisional rent at the maximum rate of Rs.150/- per month, affidavits of Bhanwarlal, Kushilal, Hart Ram and Udomal were filed for proving this fact and they were not at all considered. He further contended that the learned appellate Court seriously erred to fix provisional rent at the agreed rate of Rs.700/- per month standard rent is always less than the agreed rent and the well settled law was ignored by it while fixing provisional rent @ Rs.700/- per month. He lastly contended that the impugned order would greatly prejudice the case of the petitioners in the suit filed for their ejectment by the non- petitioners.
4. There is no substance in the revision petition. The first proviso to Sub-section (2) of Section 6 of the Act states that where the premises have been first let out after the 1st day of January 1965, the standard rent shall not exceed the basic rent thereof. Explanation given in this sub-section defines "basic rent" as the rent at which the premises were let out on the first day January, 1962 and, if not let out on that day, rent at which they were first let out after that day. It means that if the premises have been let out for the first time after 1st January, 1965, the agreed rent cannot be enhanced despite great price excalation and tremendous fall in he value of the rupee. In other words, rent of the premises first let out after 1965 has has been freezed. If the premises have been let out prior to this date (1st January, 1965), enhancement is permissible to the extent of 50% in the case of residential building and 150% in the case of non-residential buildings. These provisions are highly unreasonable and are hit by Article 14 of the Constitution of India. It has been observed in Ratan Arya v. State of Tamilnadu para 4, as follows:
We are entitled to take judicial notice of the enormous multifold increase of rents throughout the country, particularly in urban areas. It is common knowledge today that the accommodation which one could has possibly got for Rs. 400/- per month in 1973 will today cost at least five times more. In these days of universal day today escalation of rentals any ceiling such as that imposed by Section 30(ii) in 1973 can only be considered to be totally artificial and irrelevant today. As held by this Court in Motor General Traders v. State of Andhra Pradesh , a provision which was perfectly valid at the commencement of the Act could be challenged later on the ground of unconstitutionality and struck down on that basis. What was once a perfectly valid legislation may; in course of time, become discriminatory and liable to challenge on the ground of its being violative of Article 14. After referring to some of the earlier cases Venkataramiah J. observed:
...The garb of constitutionality which it may have possessed earlier has become worn out and its unconstitutionality is now brought out to a successful challenge.
5. In Joan Nath v. Chandrabhan, 1988(1) Rent Control Reporter 629 (S.C.) at page 632 para 9, it has been observed as follows:
It has, however, to be borne in mind that rent in these areas has increased enormously. So while exercising our jurisdiction under Article 136 of the Constitution, we will enhance the rent to four times. We are told that the mesne profit at present payable was Rs. 75/- per month. We direct that mesne profit/rent should be Rs.300/- per month.
6. It has been observed in E.P. Royappa v. State of Tamil Nadu, para, 85 as follows:
In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Articles 14 strikes at arbitrariness in State action and ensure fairness and equality of treatment. The principle of reasonableness which legally as well as philosophically is an essential element of equality or non- arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14, it must be right and just and fair and not arbitrary, fanciful or oppressive.
7. It has been observed in famous case of Maneka Gandhi v. Union of India para 56, as follows:
Now, the question immediately arises as to what is the requirement of Article 14; what is the content and reach of the great equalising principle enunciated in this article ? There can be no doubt that it is a founding faith of the Constitution. It is indeed the pillar on which rests securely the foundation of our democratic republic. And, therefore, it must not be subjected to a narrow, pedantic or lexicographic approach. No. attempt should be made to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits. We must reiterate here what was pointed out by the majority in E.P. Royappa v. State of Tamil Nadu namely, that "from a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic, while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14". Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be "right and just and fair" and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement Article 21 would not be satisfied.
How far natural justice is an essential element of procedure established by law.
8. In Ajay Hasis v. Khalid Mujib, para 16, it has been observed as follows:
The true scope and ambit of Article 14 has been the subject matter of numerous decisions and it is not necessary to make any detailed reference to them. It is sufficient to state that the content and reach of Article 14 must not be confused with the doctrine of classification. Unfortunately, in the early stages of the evolution of our consitutional law, Article 14 came to be identified with the doctrine of classification because the view taken was that that Article forbids discrimination and there would be no discrimination where the classification making the differentia fulfills two conditions, namely, (1) that the classification is founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and
(ii) that that differential has a rational relation to the object sought to be achieved y the impugned legislative or executive action. It was for the first time in E.P. Royappa v. State of Tamil Nadu, that this Court laid bare a new dimension of Article 14 and pointed out that that Article has highly activist magnitude and it embodies a guarantee against arbitrariness. This Court speaking through one of us (Bhagwati, J.) said:
The basic principle which therefore informs both Articles 14 and 16 is equality and inhibition against discrimination. Now what is the content and reach of this great equalising principle ? It is a founding faith, to use the words of Bose J. "a way of life", and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspect and dimensions and it cannot be "cribbed, cabined and confined" within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and consitutional law and is therefore violative of Article 14, and if it affects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in state action and ensure fairness and equality of treatment.
9. It has been observed in Motor General Traders v. State of Andhra Pradesh, AIR 1984 S.C. 121 at page 130 para 24, as follows:
The second answer to the above contention is that mere lapse of time does not lend constitutionality to a provision which is otherwise bad. "Time does not run in favour of legislation. If it is ultra vires, it cannot gain legal strength form long failure on the part of lawyers to perceive and set up its invalidity. Albeit, lateness in an attack upon the constitutionality of a state is but a reason for exercising special caution in examining the arguments by which the attack is supported". (See W.A. Wynes:'Legislative, Executive and Judicial Powers in Australia', Fifth Edition, p.33). We are constrained to pronounce upon the validity of the impugned provision at this late state because the garb of constitutionality which it may have possessedearlier has become worn out and its unconstitutionality is now broght to a successful challenge.
10. Explanation of Sub-section (2) of Section 6 of the Act continues to be same without responding to see change in the price structure. There is galloping increase in the prices and the value of the rupee has been eroding fast. It has come down to less then 1/10th of its original value. The rates of rent prevailing during the year 1962-65 are far removed from real state of affairs. It is heartening to note that the Rajasthan Law Commission in Its report given in the year 1993 has realised the need of overulling of these provisions. It has been observed in its second report at pages 2,9,10 and 11 as follows:
nwljh vksj Hkw&Lokfe;ksa ds fy, Hkh ;g vf/kfu;e 'kkjhfjd] ekufld ,oa vkfFkZd Dys'k dk dkj.k cu x;kA o"kksZa ls uke ek= ds fdjk;s ij cSBk fdjk;snkj ifjlj dh vko';drk ugha gksus ij Hkh mls [kkyh dj ugha lkSairk gS] D;ksafd orZeku fo/kku mlds i{k esa bruk gS fd fof/k vuqlkj mls ifjlj ls ljyrk ls fu"dkflr ugha fd;k tk ldrkA vkt ifjlj [kkyh djus ds fy, mls foiqy /kujkf'k fey tkrh gSA dfri; fdjk;snkjksa dk rks ;g ,d O;;lk; gh cu x;k gSA&&&&&&& &&&&&&&& ijUrq ekud fdjk;s dh orZeku njsa vkt dh ifjfLFkfr;ksa esa vR;f/kd de gSaA le; ,oa ifjfLFkfr;ksa ds vuqlkj bu njksa esa o`f) fd;k tkuk visf{kr gSA ftl xfr ls fodkl gqvk gS vkSj eagxkbZ c+h gS ml xfr ls fdjk;s dh njksa esa o`f) ugha gqbZ gSA vk;ksx dk vk'k; ;g ugha gS fd fdjk;snkjksa ls vR;f/kd vFkok vuko';d fdjk;k olwy fd;k tk;sA ij Hkw&Lokeh dks vius ifjlj dk i;kZZIr ,oa ;qfDr;qDr izfrQy rks feyuk gh pkfg;sA vkt U;k;ky;ksa esa vf/kdka'k eqdnesa blhfy, vkrs gSa D;ksafd Hkw&Lokeh dks feyus okyk fdjk;k vR;f/kd de gksrk gSA ;fn le; le; ij fdjk;s dh njksa esa leqfDr o`f) gksrh jgs rks laHkor% eqdneksa dh la[;k esa vR;f/kd fxjkoV vk ldrh gS mnkgj.kkFkZ ;fn fdlh O;fDr us 50 o"kZ iwoZ viuk dksbZ ifjlj ikap :i;s izfrekg ij fdjk;s ij fn;k gS rks mDr izko/kkuksa ds vuqlkj vkt mldk fdjk;k vf/kdre kbZ xquk vFkkZr lk+s ckgj :i, gks ldrk gS tks ux.; gSA tcfd vkt fdjk;s ij mBus okys ,sls gh ifjlj dk fdjk;k dbZ xquk vf/kd gksrk gSA blls Hkw&Lokeh esa vlarks"k O;kIr gksuk LokHkkfod gSA vr% ns'k dky ,oa ifjfLFkfr;ksa ds vuqlkj ekud fdjk;s dh njksa esa o`f) fd;k tkuk mfpr gSA vk;ksx vkoklh; iz;kstu ds fy, fdjk;s ij fn;s tkus okys ifjljksa ds ekud fdjk;s dh fuEukafdr njsa izLrkfor djrk gS& fdjk;s ij fn;s tkus okys ifjlj ds fuekZ.k ij vkbZ ykxr rFkk Hkw[k.M dh dher ds dqy ;ksx dk 10 izfr'kr ekud fdjk;k gksxkA ;fn ifjlj fuekZ.k iwjk gksus okys o"kZ esa fdjk;s ij fn;k tkrk gSA ;fn ifjlj fuekZ.k ds ckn okys o"kksZa esa fdjk;s ij fn;k tkrk gS rks fuekZ.k ds o"kZ ds izfr rhu fnu ckn vk/kkjHkwr ekud fdjk;s esa 10 izfr'kr o`f) lfgr tks jkf'k cusxh] og ml ifjlj dk ekud fdjk;k gksxkA&&&&&&&&&& blds i'pkr izfr rhu o"kZ ckn ekud fdjk;s esa 10 izfr'kr dh o`f) gksrh jgsxh vkSj ifjlj dks fdjk;s ij nsrs le; tks jkf'k cusxh] og mldk ekud fdjk;k gksxkA ekud fdjk;s dh ;g njsa mu lHkh ifjljksa ij ykxw ekuh tk;sxh tks bl vf/kfu;e ds izorZu esa vkus dh frfFk ls iwoZ fdjk;s ij mBk;s x;s gks ;k mlds i'pkr~! vU; lq[k&lqfo/kk,a vfrfjDr izHkkj gksxh% ekud fdjk;s dh mDr njksa esa fo|qr ikuh vkfn dk O;; lfEefyr ugha gksxkA xSj&vkoklh; vFkkZr~ O;kolkf;d iz;kstu ds fy;s fdjk;s ij fy;s x;s ifjlj dk ekud fdjk;k% ;fn dksbZ ifjlj xSj vkoklh; iz;kstu vFkkZr~ O;kolkf;d iz;kstu ds fy, fdjk;s ij fn;k x;k gS rks mldk ekud fdjk;k vkoklh; iz;kstu ds fy, fdjk;s ij fn;s tkus okys ifjlj ds ekud fdjk;s dk lok xquk gksxkA These suggestions have been made by the Rajasthan Law Commission on the lines of the Model Rent Control Legislation proposed by the Government of India, Ministry of Urban Development, New Delhi in July, 1992.
11. In view of the above-quoted authoritative observations, the provisions of Sub-section (2) of Section 6 of the Act are hit by Article 14 of the Constitution and cannot be invoked for the reduction of the agreed rent payable under Section 5 of the Act.
12. There is yet another aspect of the matter. In a suit filed Under Section 6 for fixation of standard rent, the trial Court is required to forthwith fix provisional lent Under Section 7 of the Act in a summary manner. Section 7 does not lay down any criteria for it. The provisional rent so fixed is subject to the standard rent fixed Under Section 6 of the Act. As such the provisional rent has also to be fixed on the basis of the same criteria which are to be taken into consideration while fixing standard rent Under Section 6 of the Act. It does not appeal from the order of the trial Court as well as the order of the appellate Court as to what was the rent of the suit shop on 1st January, 1962 or thereafter. It is not the case of the plaintiff- non-petitioners that the suit shop had earlier been let out. It appears that the plaintiff-non-petitioners were inducted as tenansts in the suit shop for the first time in the year 1979. According to the Explanation of Sub-section (2) of Section 6 the basic rent of the suit shop would be the agreed rent i.e., Rs.700/- per month. The consideration of the prevailing or the standard rent for similar premises in the same locality, the various amenities attached to, the cost of construction, maintenance and repairs arises only when standard rent can not be fixed for want of availability of the figure of the basic rent. As already observed above, the basic rent of the suit shop is Rs. 700/- per month. Section 6(3) of the Act also provides that besides considering the factors enumerated therein, Other relevant facts and special reasons may also be taken into consideration. The appellate Court has taken into consideration that the rent during the period from 1979 to 1994 has increased manifold-times. The Hon'ble Supreme Court has also observed so vide paras No. 4 & 5 (supra). It also took into consideration that the amount of rent of 4 years would not have been paid in advance while taking the shop in suit on rent by the tenant (plaintiffs) if the rent @ Rs.700/- per month would have been considered to be excessive or exorbitant. It cannot, therefore, be said that the learned appellate Court erred in fixing provisional rent at the rate of Rs.700/- per month.
13. It has been observed in Prabhakaran Nair v. State of Tamil Nadu, para 36 as follows:
Tenants are in all cases not the weaker Section. There are those who are weak both among the landlords as well as the tenants.
14. Accordingly, the revision petition is summarily dismissed.