Vitthal Ramkrishna Pendharkar v. District Land Development Bank, Jabalpur
1996-04-02
S.C.PANDEY
body1996
DigiLaw.ai
ORDER S.C. Pandey, J. 1. This is review petition filed by the respondent against the judgment dated 23.11.95, delivered by this Court in Miscellaneous Appeal No. 356/90 filed under Section 32 of M.P. Accommodation Control Act. 1961 (hereinafter referred to as the Act, for short). By the judgment sought to be reviewed, this Court has allowed the appeal filed by the tenant. This Court has set aside the orders of III Additional Judge to the court of District Judge, Jabalpur and that of the Rent Controlling Authority, Jabalpur; and remitted the case for determining standard rent afresh in accordance with the provisions of law, by the judgment, impugned. 2. Before this Court entrees into controversy, certain prefatory remarks are necessary. What is the task of reviewing Judges? In order to answer this question we must ask another question. What is the call of review petitioner ? The answer to this question can be best described in the words of Oliver Cromwell. "I beseech you, in the bowels of Christ, think if possible you may be mistaken" (Letter to the General Assembly of Kirk of Scotland, 3 August, 1950). This then is the call of the review petitioner and, therefore, Judge must bow humbly to the majesty of law which makes provision for review and accept his task without any rancor in his heart. It may be that after review petitions are made on trumpery grounds, it may be that in practice most of them are dismissed and a rare petition is allowed. This consideration should not baulk progress of this Court in examining the matter for review as honestly as possible for person who has already expressed his opinion on the the contrary. This Court feels that a little detachment, a modicum humility and chances of this Court going away must rule the heart of Judge whose task it is to review his own judgment. No Judge high or low has any right to offend the majesty of law. On the other hand, it is his business to protect and enhance the Magesty Law. For a Judge the law is the king and none other else. It is king of Kings. It is, therefore, duty of a Judge, who rules the lives of men by signing his judgments, to breed justice and rule their lives by his scribbled name only in name of justice.
For a Judge the law is the king and none other else. It is king of Kings. It is, therefore, duty of a Judge, who rules the lives of men by signing his judgments, to breed justice and rule their lives by his scribbled name only in name of justice. This appears to be the essence of the Constitutional Oath which a judge of High Court or Supreme Court takes when he assumes his office. In this spirit and this spirit alone this Court will approach the case of the review filed by review petitioner. 3. The contention of learned counsel for the petitioner is that section 10 of the Act applies to facts of the case and section 7 thereof has no application. He contends that since the house was let out in the year 1972, the principles laid down in Section 7 of the Act would not apply. The rent then has to be determined under section 10 of the Act. 4. Having heard the learned counsel for the review-petition, I find that there is no error in the order. The learned counsel is under misconception that under the scheme of the Act Section 10 (4) of the Act is automatically attracted, once it is not disputed that the suit house was let out in the year 1972. In order to meet the point raised by the learned counsel for the petitioner it is necessary to state the effect of section 7 of the Act read with section 10 (4) thereof. 5. It must be remembered that section 7 merely gives the principles on which a fair rent has to be determined by Rent Controlling Authority. In the case of Mukundilal Agarwal Vs. Shankerlal Agarwal, 1965 M.P.L.J. 211 which was approved by the Full Bench in the case of Jagrani Vs. Jorawal Deryso, 1967 M.P.L.J. 683 it was held that Section 7 only lays down principles for determination of standard rent. A fair reading of Section 10 (4) of the Act would show that it is a residuary clause. It would apply to those cases only "Where it is not possible to determine on principles set forth in Section 7". For this reason this Court held that for application of Section 10, (more specifically Section 10 (4), Section 7 of the Act had to be excluded. Now, Section 7 refers to accommodation.
It would apply to those cases only "Where it is not possible to determine on principles set forth in Section 7". For this reason this Court held that for application of Section 10, (more specifically Section 10 (4), Section 7 of the Act had to be excluded. Now, Section 7 refers to accommodation. It lays down principles for assessment of qua building and not with respect to date of contract. If there is an old building constructed prior to 1st January, 1948 then Section 7 will be definitely attracted. Section 7 of the Act may be analyzed for our purposes as follows:- Section 7 (i) Accommodation of which reasonable annual or fair rent has been fixed under the repealed Act or prior enactment. 7 (2) (i) Accommodation (not failing in in category 1) which was let out on or before 1948. (ii) Accommodation (not falling in category 1) which was not let out on or before 1st January, 1948. 7 (3) Accommodation not falling in above categories, then the principles of assessment would apply as given u/s. 7 (3). 6. We are not concerned with Section 7(1) because it is nobody's case that previous rent was fixed as per section 7 (1) of the Act. The case of the tenant was fought on the basis that house in question though constructed prior to 1948, was not let out prior to 1948. Therefore, section 7 (2) (ii) of the Act was clearly attracted. The landlord's case was that it was constructed after 1948 and was not assessed in Municipal register. In that case, Section 7 (3) of the Act would be attracted. In order to rule out application of Section 7 (2) of the Act date of construction of the house is crucial. Even for application of Section 7 (3) (c) (i) and (c) (ii) of the Act, the date of completion or the commencement of construction are relevant dates. Therefore, this court has directed the Court below to record a finding regarding the date of construction of the house. It would only then be determined by which clause of Section 7 of the Act applied. When all these elements of Section 7 are ruled out then the question of application of Section 10 (4) of the Act would arise.
Therefore, this court has directed the Court below to record a finding regarding the date of construction of the house. It would only then be determined by which clause of Section 7 of the Act applied. When all these elements of Section 7 are ruled out then the question of application of Section 10 (4) of the Act would arise. An analysis of Section 7 (2) of the Act has not been given by Shri Harihar Niwas Dwivedi in his accommodation Control Act, 1961 (First Edition) as follows :- Clause (2) A. Accommodation covered by clause (2). Clause (2) of section 7 deals with accommodations constructed before the 1st day of January 1948. Such accommodation are divided in two categories, (i) which were let out on or before the 1st January 1948 and (ii) which were not so let out. This clause expressly excludes from its operation the accommodation coming with in the scope of clause (1). It is clear that the accommodation not constructed on or before the 1st January 1948 are not covered by this clause. (page 157). This court agrees with that comment of the learned author. For this reason this Court finds there is no error apparent on the record because only after determination of date of construction question of application of section 7 (2) or 7(3) of the Act would arise. It is, therefore, inaccurate to suggest merely because the house was let out in the year 1972. Section 7 of the Act has no application. It is also pointed out that since the house was an old house, the landlord can claim increase in the rent only on the basis he kept the house in tenantable repairs. The entire section 7 relates to such the buildings. It has nothing to do with date of contract. The criterion is that a suit house already constructed before 1st January, 1948, if not covered by section 7(1), would be covered by section 7 (2) of the Act These houses may be left out prior to or on 1st January 1948. Those covered by this contingency will be governed under section 7 (2) (i) of the Act. Those not covered by section 7 (2) (i) will be the houses though already constructed prior to 1st January 1948, but not let out before or on that date.
Those covered by this contingency will be governed under section 7 (2) (i) of the Act. Those not covered by section 7 (2) (i) will be the houses though already constructed prior to 1st January 1948, but not let out before or on that date. Those houses will be covered by section 7 (2) (ii) of the Act. Those constructed after 1948 shall be governed by section 7 (3) of the Act. If the categories given in section 7 are totally exhausted then question of application of section 10 (4) of the Act would arise. We cannot take a quantum jump to reach section 10 (4) straightway. 7. It is true that Section 7 of the Act is inaptly worded. In the preface of the first edition of M.P. Accommodation Control Act, 1961 (supra) late Shri R.S. Dabir the senior counsel and the doyen of the Bar has observed that:- The author has pointed out, as in some judgment that the language of the Act is in some places confusing and add to the rise of controversies. Such, for instances, is the language of Section 7 and section 10 of the Act. After the decision of the High Court in Mukundilal Agarwal Vs. Shankerlal Agarwal (supra) clarification could easily have been made by the Legislature when amendment was made in certain portions by the M P. Accommodation Control (Amendment) Act, 1965, in respect of the permissible increase on account of tax in Section 7 (2) (c). There is actually decision of another Division Bench taking a different view of Section 7 which has left the controversy open and in a rather unsatisfactory state. The subordinate judiciary must necessarily be in difficulty by having before it two irreconcilable views both of Division Banches. May be that language of sections 7 and 10 may have impelled the review petitioner to file the application. However, there is no substance in this petition, therefore, it is dismissed in Limine.