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2005 DIGILAW 614 (JHR)

Amal Kumar Ghosh v. Ramdas And Sons

2005-08-10

ALTAMAS KABIR, R.K.MERATHIA

body2005
JUDGMENT Altamas Kabir, C.J. 1. This matter has been referred to the Division Bench by the learned Single Judge by an order dated 16th December, 2004 in view of the conflicting judgments in the case of Md. Khaliquz Zaman v. Shri H.C. Joshi, reported in 1999 (1) PLJR 362 and in the case of Hardeo Prasad v. Depot Manager, Biscomaun, Hilsa and Ors., reported in 1997 (2) BLJR 1400 . 2. The instant application raises a short, but interesting point of law as to whether an order passed by the Rent Controller under Sections 5 and 6 of the Bihar (Buildings, Lease, Rent and Eviction) Control Act, 1982 determining the fair rent of a premises can be executed as a decree without taking recourse to a money suit? The other question which also arises as a consequence is whether the order passed by the Rent Controller can be treated to be a decree so as to be capable of execution by a Civil Court under Section 23 of the aforesaid Act. 3. The petitioners case is that the respondents herein filed HRC Case No. 52 of 1993 under Section 5 of the aforesaid Act for determination of fair rent of the premises in question and by order dated 14th July, 1997, the Rent Controller fixed Rs. 3100/- (Rupees three thousand and one hundred) per month to be the fair rent for the said premises. 4. The petitioner filed an appeal before the Deputy Commissioner under Section 24 of the aforesaid Act, and the order of the Rent Controller was confirmed in appeal. The revision filed by the petitioner under Section 26 of the Act was dismissed by the Commissioner. A comprehensive writ petition, being WP (C) No. 1278 of 2003, is said to be pending for disposal against the said order. In the meantime, the respondents have commenced execution proceedings and have filed an application for execution of the decree in the Court of the Subordinate Judge-1 at Jamshedpur by way of Execution Case No. 7 of 2003. By order dated 3rd December, 2003, the learned Court below admitted the execution case and issued notice to the judgment debtor/the petitioner through the process of the Court. By order dated 3rd December, 2003, the learned Court below admitted the execution case and issued notice to the judgment debtor/the petitioner through the process of the Court. The Admission of the execution case by the learned Court below has been challenged in the instant proceedings as being without jurisdiction on the ground that the order passed by the Rent Controller cannot be treated to be a decree capable of being executed without filing of a separate money suit. 5. Appearing in support of the writ petition, Mr. S.L. Agarwal, learned counsel, submitted that although Section 23 makes it clear that orders passed by the Rent Controller or the appellate authority or the Commissioner, in respect of matters involving fixation of rent are to be executed by the Court as if such orders were decrees passed by such Courts, in the absence of quantification of any amount, it would not be possible to execute a decree when merely a finding had been arrived at regarding the fair rent payable for the premises. Mr. Agarwal submitted that while the decision of the Rent Controller assessing fair rent may be said to be a decree, it was not capable of execution for which a separate suit would be necessary for the purpose of quantification of the amount payable on account of the assessment of fair rent by the Rent Controller. 6. Mr. Agarwal then submitted that the Rent Controller could not, by any stretch of imagination, be called "Court" for the purpose of determining fair rent. Mr. Agarwal submitted that the expression "Court" has been defined under Section 2(d) of the 1982 Act. As such, Tribunals which are entrusted with the work of judicial, quasi-judicial or administrative character, are not Courts in the accepted sense of the term, though they may possess some of the trappings of the Court. The least that is required of a Court is the capacity to deliver a definitive judgment, and merely because the procedure adopted by it is of a legal character and it has power to administer an oath will not impart to it the status of a Court. 7. In support of his submissions, Mr. Agarwal referred to the decision of the Supreme Court in the case of Baliram Waman Hiray v. Justice B. Lentin and Ors., . 8. Mr. 7. In support of his submissions, Mr. Agarwal referred to the decision of the Supreme Court in the case of Baliram Waman Hiray v. Justice B. Lentin and Ors., . 8. Mr. Agarwal submitted that in keeping with the provisions of Section 39 of the Code of Civil Procedure, the Rent Controller could, on an application of the decree-holder, send a decree passed by it for execution to another Court of competent jurisdiction. 9. Mr. Agarwal then referred to a Single Bench decision of the Andhra Pradesh High Court in the case of G. Bulliswamy v. C. Annapurnamma, wherein it had been held that a Rent Controller under the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, who is authorized to record evidences of the parties before him is a Court within the meaning of Section 3. Mr. Agarwal submitted that in the said case, it had been held that the Rent Controller under the Andhra Pradesh Act, had all the powers of a Civil Court to admit evidence as Court, so as to bring it within the meaning of a Court, which was not so in the instant case. Mr. Agarwal reiterated his initial stand that in the absence of complete determination of the dues payable by the tenant, an order merely declaring the fair rent would not be capable of execution except by way of a separate suit for quantification of such amount. 10. The last decision cited by Mr. Agarwal is a single Bench decision of the Patna High Court in the case of Hardeo Prasad v. Depot Manager, Biscomaun, Hilsa and Ors., 1997 (2) BLJR 1400 , wherein on construction of a Sections 5, 6 and 23 of 1982 Act, the learned Single Judge came to a definite finding that the Rent Controller had limited powers only to determine fair rent, but not to pass an order for payment of the same and that his orders determining the rent not being decree was not capable of execution even under Section 23. 11. Appearing for the opposite parties, Mr. 11. Appearing for the opposite parties, Mr. P.K. Sinha, learned Senior Advocate, on the other hand, contended that the provisions of Section 23 were clear and unambiguous and there was no scope for misunderstanding the intent of the legislature that all orders of the Rent Controller and the appellate/revisional authorities were capable of being executed by the Court as if such orders were decrees passed by such Courts. 12. Referring to Sections 5 to 8 of the 1982 Act, Mr. Sinha contended that the same deal with the determination of fair rent and matters to be considered in determining the same. Mr. Sinha urged that the Rent Controller was required to undertake a regular exercise to determine what would be the fair rent of premises upon considering the matters referred to in Section 8 of the aforesaid Act. 13. Reference was than made to Section 11 of the 1982 Act, which provides for eviction of tenants by Courts. Mr. Sinha submitted that a clear distinction had been made between the Rent Controller and the Courts for discharging different functions under the Act, but in matters of determination of fair rent, the Rent Controller is empowered to decide such question and his findings and orders are capable of being executed by Courts, as if the same were decrees passed by the Courts. Mr. Sinha, referred to Section 24(3) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 to demonstrate that an order passed in such a proceeding is final and is not liable to be questioned in any Court of law, whether in a suit or in other proceedings. Mr. Sinha relied on the decision of this Court in the case of Md. Khaliquz Zaman v. H.C. Joshi, reported in 1999 (1) PLJR 362. 14. In support of his submissions, Mr. Sinha also referred to a Singh Bench decision of the Patna High Court in the case of S.C. Taneja v. House Controller- cum-Sub-Divisional Magistrate, Patna, wherein distinction between orders passed for fixing fair rent and nonpayment of that rent by the tenants has been highlighted and it was observed that for non-payment of the fair rent assessed, a tenant becomes liable for eviction. It was further observed that in view of the provisions of Sections 5, 6, and 7 of the Act, date fixed by the House Controller for the fair rent to be effective is simply a decoration which appears to be necessary as part and parcel of the main order determining the fair rent or declaring the fair rent. Reference was also made to a. bench decision of the Patna High Court in the case of Brindaban Bihari Lal v. Badri Prasad Mahaseth, AIR (36) 1949 Pat 335 wherein a similar view had earlier been expressed. Certain other decisions were also referred to by Mr. Sinha on the same line which are not relevant for determining the issues involved in this case. 15. What emerges from the submissions made on behalf of the respective parties is that according to the writ petitioner, the Rent Controller is not a Court and is merely entitled to determine the fair rent of a premises. Consequently, in the absence of quantification of the amount payable by the tenant, the order passed by the Rent Controller is not capable of being executed by a Court. The contention of the opposite parties on the other hand is that once a declaration of fair rent has been made by the Rent Controller it is merely a matter of calculation as to the amount payable and having regard to the specific provision that all orders of the Rent Controller were capable of being executed as a decree of a Court, there was no ambiguity whatsoever that the order of the Rent Controller could be executed as a decree by Court. In order to appreciate the submissions made on behalf of the respective parties, the provisions of Section 23 of the aforesaid Act are set out herein below : "Section 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." 16. From a plain reading of the aforesaid section, it would be quite evident that it was the intention of the Legislature that orders passed by a Rent Controller, whether he is held to be a Court or not, were capable of being executed as decree of a Civil Court. In view of the plain language of the section, there can be no difficulty in holding that an order passed by the Rent Controller fixing fair rent would also be capable of being executed by the Court as if it was a decree passed by the Court in our view, no separate suit is required to be filed for realizing the amount as determined by the Rent Controller by virtue of the provisions of the 1982 Act. Had the Legislature intended otherwise, it would have introduced a specific provision in the Statute in that regard instead of providing that the order passed by the Rent Controller could be executed as if it were a decree. 17. In the context of what has been stated above, we are inclined to agree with the submissions made by Mr. Sinha that no separate suit is required to be instituted after determination has been made by the Rent Controller fixing fair rent which can be quantified mathematically quite easily. We consequently agree with the view taken in the case of Md. Khaliquz Zaman v. H.C. Joshi, (supra) and overrule the view expressed in the case of Hardeo Prasad, reported in 1997 (2) BLJR 1400 . 18. The writ petition filed by the tenant, therefore, fails and is dismissed with the observation that the opposite parties will be entitled to execute the order passed by the Rent Controller assessing the fair rent for the premises in question. There will, however, be no order as to costs. R.K. Merathia, J. 19. I agree.