Research › Browse › Judgment

Patna High Court · body

1985 DIGILAW 277 (PAT)

Shanti Devi v. State of Bihar

1985-09-23

HARI LAL AGRAWAL, YADUNATH SHARAN SINGH

body1985
JUDGMENT : H. L. Agrawal, J.- This application arises out of a proceeding initiated by respondent No. 5 for fixation of fair rent of a building and the question of law that has fallen for my consideration in this case is as to whether the proceeding, which was initiated some time in the year 1979 but remained pending till the 1983 Act came into force laying down an entire different criteria for fixation of fair rent, would be governed by the provisions of the old Act or the new Act. 2. The petitioner is the owner of a building situated in Ward No.7, Circle No.6 of the Bhagalpur Municipality bearing Municipality Holding No. 11 (c). A part of the said building comprising of three rooms and a kitchen etc. was given in tenancy to respondent no. 5 on a monthly rent of Rs. 100/- in January, 1974. 3. An application for fixation of fair rent of the premises in his occupation was filed by him sometime in the year 1979, before the House Controller, Bhagalpur, under section 5 of the Bihar Buildings (Lease, Rent and Eviction Control Act, 1977 (for short ‘the 1977 Act'). According to the provisions for determining the fair rent of building as contained in section 8 of the 1977 Act, the fair rent was to be determined on the basis of the municipal assessment with respect to the buildings regarding which the municipal assessment was made and that was to be 1/10th of the amount of such assessment each month. The assessment of the building in question at the relevant time was Rs. 450/- and the Controller by his ORDER :dated 22.7.1980 (Annexure 2) fixed the fair rent of the premises in occupation of the tenant Rs. 840/- per month. 4. The petitioner filed an appeal before the Collector, Bhagalpur, who dismissed the same. Before the Collector the petitioner had taken two points, namely- (i) The 1977 Act having expired on the 31st of March, 1981 and the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (for short 'the 1982 Act') having come into force laying down a different standard for fixation of fair rent, the fair rent should be decided under the provisions of the new Act: and (ii) the ORDER :(Annexure 2) having been passed by the Collector acting himself as the House Controller, he could not hear the appeal. Both the objections were overruled while dismissing the appeal. The petitioner also failed in a revision before the Commissioner of Bhagalpur,-vide his ORDER :contained in Annexure 4. Thereafter the petitioner has filed this writ application and the main argument advanced on her behalf is that the fair rent should be determined according to the 1982 Act. 5. In the counter-affidavit, besides controverting the various allegations made by the petitioner which are not relevant for the short question falling for our decision, it has been submitted that notwithstanding the expiration of the 1977 Act the proceeding in question must be disposed of under that Act. 6. Before coming to the legal question, I may very briefly indicate the legislative history of the Building Control laws in this State. For the first time an ORDER :, Bihar House & Business premises Rent Control ORDER :was issued in the year 1942 and for fixing the fair rent of a house the prevailing rates of rent for the same or similar accommodation in the area, was the main criterion. This ORDER :was followed by a regular Act, namely, the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1947, which contained similar provisions and principles for fixation of fair rent of buildings until it was extensively amended by Bihar Act 16 of 1955, by which, the basis for fixing fair rent was entirety changed and municipal assessment of the buildings in respect of which it was made the basis, And practically the fixation of fair rent by the Controller became a mechanical act. When the 1977 Act came into force after the expiration of the 1947 Act, the same provisions continued, but on the expiration of the 1977 Act when the present Act, i.e. the 1982 Act, came into force, the legislature made a significant departure and removed the link between fair rent and the municipal valuation, and reverted back to the old principles, and the criteria prior to the coming into force of the Bihar Act 16 of 1955 were restored. 7. In ORDER :to appreciate the contention some of the relevant provisions of the 1977 Act and the 1982 Act have to be referred to. 7. In ORDER :to appreciate the contention some of the relevant provisions of the 1977 Act and the 1982 Act have to be referred to. Sub-section (3) of section 1 of the 1977 Act provided that the said, Act shall remain in force only upto 31st March, 1981, but it further provided that the expiration of that Act shall not "(a) xx xx xx xx (b) affect any liability incurred under this Act or any punishment incurred in Respect of any contravention of this Act or any ORDER :made thereunder; or (c) affect any investigation or legal proceeding in respect of any such liability or punishment as aforesaid; and any such investigation or legal proceeding may be instituted, continued or enforced and any such punishment may be imposed, as if this Act had not expired;" Somewhat analogous provision has also been incorporated in the 1982 Act and subsection (3) of section 1 thereof while providing the application of this Act right from 1st April, 1981, lays down that the period between expiration of the 1977 Act and the "commencement of this Act shall not- "(a) xx xx xx xx (b) affect any liability Incurred under that Act or any punishment incurred in respect of any contravention of that Act or any ORDER :made there under, or (c) affect any investigation or legal proceeding in respect of any such liability or punishment as aforesaid; and any such investigation or legal proceeding may be-instituted, continued or enforced, and any such punishment may be imposed, as if that Act has not expired." It may further be mentioned that the 1982 Act was preceded by Bihar Ordinance No. 63 of 1982. The effect of these provisions is to take the matter out of section 6 of the General Clauses Act and to provide for special savings. 8. There are a series of decisions of this Court laying down the effect of the expiration of the different Building Control laws from time to time on the pending actions with reference to the subsequent enactments. 8. There are a series of decisions of this Court laying down the effect of the expiration of the different Building Control laws from time to time on the pending actions with reference to the subsequent enactments. Most of those cases deal with the eviction suits, and the argument advanced on behalf of the tenants that on account of the expiration of the Act the pending proceedings could not be continued, was repelled by this Court on the ground that there was no hiatus between the expiration of the old Act and the coming into force of the new Act as the saving provisions made the new Act enforceable immediately after the expiration of the old Act. Some of those cases are (I) Sagarmal Agarwalla v. Smt. Annapurna Neogi, A. I. R. 1964 Patna 298, (2) Srichand Sao v. Indradeo Prasad and others : 1979 B. B. C. J. 202, (3) Ahmad Raza Khan v. Bhola Prasad: 1979 B. B. C. J. 235: 1979 PLJR 362 (4) Hari Nandan Singh v. Ranjit Kumar Samanta: A. I. R. 1981 Patna 183, and (5) Shivsager Singh v. Shiv Kumari Devi and anothers : 1983 P. L. J. R, 708. There is no dispute regarding the principle laid down in the above cases and I need not detain myself to discuss any of them at this stage. The cases which, however, require consideration in some detail are (i) Chagan Lal v. Aditya Prasad & anr : 1984 P. L. J. R. 121, and (ii) Sheo Shankar Prasad v. Tara Prasanna Gupta: 1983 P. L. J. R.368. The first case, i.e. of Chagan Lal (1984 P. L. J. R. 121) can be summarily disposed of. Although in that case exactly a similar question as to whether an application for fixation of fair rent having been filed earlier to the coming into force of the 1982 Act, Was to be disposed of in accordance with the old law or the new law arose: the Court did not decide the same and left it open to press the same before the House Controller where the matter was remanded. Strong reliance was placed on behalf of the tenant on Taneja's case, (Subhash Chandra Taneja v. Commissioner.) (1984 B. B. C. J. 125 : 1984 PLJR 26 ). Strong reliance was placed on behalf of the tenant on Taneja's case, (Subhash Chandra Taneja v. Commissioner.) (1984 B. B. C. J. 125 : 1984 PLJR 26 ). That was a case under section 16 of the new Act which for the first time provides that the tenant has to deposit the rent determined by the Controller during the pendency of the appeal or revision. In that case the fair rent had been determined by the Controller by his ORDER :dated 28.11.80, i.e., before the 1982 Act had come in to force and a question arose as to whether. the fair rent determined by the Controller before the enforcement of the 1982 Act would also be covered under the new scheme regarding the payment of the fair rent by the tenant during the pendency of the appeal or revision when the new Act had come into force. On reference to the specific provision in this regard in sub-section (1) of section 16 of the 1982 Act to the effect that "where the fair rent of any building has been determined by the Controller under provisions of this Act". it was held that the authorities intended that it was not applicable to the ORDER :passed before the coming into force of the 1982 Act. This case therefore, cannot be of any guide or help to the point in question. The-case of S. P. Karamsheel (1964 B.L.J.R. 729) was a case for fixation of fait rent, which was initiated when the 1947 Act was in force and during its pendency the Act was amended by Bihar Act 16 of 1955, as already referred to earlier. This case therefore, cannot be of any guide or help to the point in question. The-case of S. P. Karamsheel (1964 B.L.J.R. 729) was a case for fixation of fait rent, which was initiated when the 1947 Act was in force and during its pendency the Act was amended by Bihar Act 16 of 1955, as already referred to earlier. The argument that the fair rent proceeding be decided according to the provisions as amended by the 1955 Act was rejected by this Court in view of the special provision contained in section 23 of the said Amending Act, namely, the Bihar Act 16 of 1955, which reads as follows : "Any application, appeal or proceedings under the said Act pending before the Controller or any appellate authority or Commissioner on the date of the commencement of this Act and all proceedings arising therefrom shall be disposed of as if this Act had not been passed: Provided that any application under the said Act, other than application for the eviction of a tenant pending before the Controller on the date of the commencement of this Act, and all appeals and proceedings arising therefrom shall be disposed of under the said Act as amended by this Act." On the basis of this provision and on reference to an earlier decision in Lady Dorothy Lort Williame v. Oditandu Prakash Mulick and others (A.I.R. 1958 Patna 240), it was held that "..except an application for the eviction of a tenant, all other applications made under the Act of 1947, pending before the Controller on the date of the commencement of the Act of 1955 for the determination of fair rent, although filed by the tenant prior to the coming into force of the 1955 Act have got to be disposed of in accordance with the terms of the amended provision." This decision is based upon the case of Kailash Prasad Jhunjhunwala and another v. Commissioner of Patna Division and others (1960 P.L.R.147) and was again referred to with approval in the case of Surendra Prasad Sah v. Kirti Bhusan Das and others (1977 B. B. C. J. 51), to which also I happened to be a party. 9. 9. Although the cases referred to just above are not exactly on the point, I have referred to them to notice only one thing that two rates of rent can be fixed in a fair rent proceeding from different dates. Srichand’s case (1979 B.B.C.J. 202) was a case where an application for fixation of fair rent was filed under the 1947 Act and during the revisional stage of the proceeding before the Commissioner, the 1947 Act had expired and it was contended that the Commissioner was no longer empowered to dispose of the revision as the proceeding was not saved under section 1 (3) of the 1947 Act. This contention was overruled on, the ground that although the provisions of the 1947 Act were not actually in existence when the Act was passed" they should be presumed to be there during the entire period". 10. Now remains for consideration the case of Sbeo Shankar Prasad (1983 P. L. J. R. 368), There the question was as to whether an application filed under section 11A of the 1947 Act corresponding to section 13 of the 1977 Act. which was filed but not disposed of before the expiry of the 1947 Act, could be disposed of under the 1977 Act. It was held that the proviso to section 1 (3) (b) of the 1977 Act clearly indicated the intention of the legislature that the said proceeding was to continue and enforced notwithstanding the expiry of the 1947 Act. 11. The conclusion that follows from the discussions of the above cases, is that the expiration of one Building Control Act does not render a proceeding invalid and the proceeding continues even after the expiry of that Act in view of the provisions contained in the succeeding Act. The proceeding for fixation of fair rent initiated by the tenant while the 1947 Act was in force, therefore, must continue arid the expiration of the said Act will not affect its continuance. The matter to be considered in determining fair rent of building in respect of which a municipal assessment had been made was to be 1/10th of the amount of assessment for the purpose of that Act", namely, the 1977 Act That 'matter' could not be considered for fixing a fair rent under the 1982 Act. The matter to be considered in determining fair rent of building in respect of which a municipal assessment had been made was to be 1/10th of the amount of assessment for the purpose of that Act", namely, the 1977 Act That 'matter' could not be considered for fixing a fair rent under the 1982 Act. According to section 8 of the 1982 Act, the matter to be considered for determining the fair rent of a building is” the prevailing rates of rent in the locality for the same or similar accommodation .." significant departure from the previous law. According to my considered view, therefore, what is saved under the scheme of the saving provisions contained in section 1(3) of the 1977 Act as well as the 1982 Act, is the life of the investigations and legal proceedings in respect of the liability incurred under the previous Act or any punishment incurred in respect of any contravention of that Act as well as any ORDER :made there under. The ORDER :of the Controller fixing fair rent could not be said to be final as an appeal and then a revision are provided against the same and on the date when the ORDER :of the Controller (Annexure 2) fell for consideration before the appellate authority and then before the revisional authority, the 1977 Act had expired and the 1982 Act had come into force when the matters to be considered for determination of fair rent of a building had undergone a radical change. Therefore, from the date when the 1982 Act came into force, the fair rent must be determined in accordance with the scheme of section 8 of the new Act. The fair rent proceeding in question thus having faced two successive Acts, it must be decided in accordance with the relevant provisions operating for different periods of its life; in other words. till the 31st March, 1977 (SIC) the fair rent must be determined according to the 1977 Act, i.e., 1/10th of the municipal assessment, and that has already been done by the authorities under the Act. That rate will, therefore, be operative only till the life time of the 1977 Act. till the 31st March, 1977 (SIC) the fair rent must be determined according to the 1977 Act, i.e., 1/10th of the municipal assessment, and that has already been done by the authorities under the Act. That rate will, therefore, be operative only till the life time of the 1977 Act. For the subsequent period the rate of fair rent has to be determined according to the provisions of the 1982 Act and for doing that a fresh inquiry has to be made with reference to the prevailing rate of rents of similarly situated building in the locality with reference to a particular period mentioned in section 8(1)(c). The matter has thus got to be sent back to the Controller for this purpose. 12. I would accordingly allow this application in part to the extent indicated above and remand the matter back to the House Controller, Bhagalpur, for fixing a fair rent of the premises in occupation of respondent no. 5, which will be operative from 1st April, 1981 in accordance with the provisions contained in section 8 of the 1982 Act. On the facts and in the circumstances of the case; I shall leave the parties to bear their own costs. Yadunath Sharan Singh, J. - I agree.