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2005 DIGILAW 981 (PAT)

Mewalal San v. Shayama Devi

2005-11-11

NARAYAN ROY

body2005
Judgment Narayan Roy, J. 1. Heard counsel for the parties. 2. This writ application is directed against the order, as contained in annexure 6 dated 8.2.1989, whereby and whereunder the revision filed by the petitioner against the order of the Rent Controller under the provisions of the Bihar Buildings (Lease, Rent & Eviction) Act, 1982 (hereinafter to be referred to as "Act") and the order passed by the appellate authority has been dismissed. 3. Short facts giving rise to this application are as follows: Respondent no. 1 (since deceased) filed House Control Case No. 92 of 1983 for fixation of rental to the premises let out to the petitioner under the provisions of the Act. Upon filing of an application by respondent no. 1 aforesaid under section 5 of the Act the Rent Controller got an inquiry done by an Executive Magistrate, who in its turn held on spot inquiry in presence of the parties and submitted a detailed report to the Rent Controller. The Rent Controller on the basis of the report and after hearing the parties fixed rental of the premises to the tune of Rs. 1000/- per month. The order passed by the Rent Controller was appealed against by the present petitioner. The appellate authority on hearing the parties modified the order passed by the Rent Controller and reduced the rental from Rs. 1000/- to 500/-. The petitioner having not been satisfied with the order of the appellate authority preferred the revision before the Divisional Commissioner, which was heard and dismissed. 4. Learned counsel for the petitioner submitted that the Rent Controller did not exercise his power in accordance with the Act and Rules framed thereunder and in a most arbitrary manner, he fixed the rental of the premises to Rs. 1000/-, though initially the petitioner was paying Rs. 105/- per month. Learned counsel tried to impress upon the Court that proper inquiry was not held, inasmuch as the matter was not enquired into by the Rent Controller himself and proper assessment of the rental payable by other than commercial establishments of the same vicinity was not properly made. Learned counsel also raised the question about the locus of respondent no. 1, as he did not file any revision against the appellate order and cross-objection filed by respondent no. 1 aforesaid was not maintainable under section 26 of the Act read with Rule 7 of the Rules. Learned counsel also raised the question about the locus of respondent no. 1, as he did not file any revision against the appellate order and cross-objection filed by respondent no. 1 aforesaid was not maintainable under section 26 of the Act read with Rule 7 of the Rules. 5. Mr. Bhupendra Narain Sinha, learned counsel for the respondents 1st party, on the contrary, submitted that the Rent Controller has properly exercised his power vested in him and the rental so fixed by him was well within his jurisdiction as it is in conformity with Section 8(1)(c) of the Act read with Rule 3 of the Rules and the revision application, thus, was rightly dismissed and the same does not warrant any interference. Mr. Sinha also contended that the orders passed by the Rent Controller, the appellate authority and the revisional authority under the Act are decrees in view of Section 23 of the Act executable by the competent civil court, and, therefore, the cross-objection filed by the respondents 1st party before the revisional authority was well maintainable, as the revision application was filed hardly within 15 days of the order, passed by the appellate authority and no sooner he came to know about filing of the revision he filed cross-objection instead of filing another revision to avoid, multiplicity of cases. 6. It appears from the order passed by the authorities under the Act that the petition filed by the respondents 1st party under section 5 of the Act was entertained and notices were issued to the tenant petitioner. Inquiry was entrusted to an Executive Magistrate and the Executive Magistrate held on spot inquiry in presence of the lawyers of the parties. On spot he inquired from other commercial establishments rented out in the vicinity and made assessments on the basis of the rental paid by them, detailing the commercial establishments of the vicinity. It further appears from the report of the Executive Magistrate that the rental was being paid by other establishments of the vicinity roughly about rupees five per sq. ft. and keeping the same as yardstick he came to the opinion that the fair rental would be rupees five per sq. ft., but on rough estimation he suggested for rental of Rs. 3007-per month for the premises in question. ft. and keeping the same as yardstick he came to the opinion that the fair rental would be rupees five per sq. ft., but on rough estimation he suggested for rental of Rs. 3007-per month for the premises in question. The Rent Controller regard being had to the facts and submissions made by the respective parties fixed the rental of the premises to Rs. 1000/- per month, as the area was assessed to be 200 sq. ft. The decision taken by the Rent Controller, thus, appears to be logical and legitimate and in accordance with the provisions of the Act and the Rules. 7. From the appellate order, it appears that the authority under the Act while hearing the appeal on his own assessment fixed the rental as Rs. 500/- per month and modified the order passed by the Rent Controller without any basis. The revisional court on the basis of the materials on record and on appreciation of the arguments of the parties upheld the order passed by the Rent Controller and dismissed the revision application and allowed the cross-objection filed by the respondents 1st party treating the order as decree under section 23 of the Act. The provisions of the Act intended to confer benefit for whom it is legislated and since the matter has been decided in conformity with section 8(1 )(c) of the Act read with Rule 3 of the Rules and in view of the decision of this Court in case of Saraswati Devi and Ors. V/s. Commissioner of Bhagalpur and Ors., [1996)(1) Patna Law Journal Reports 924], in my opinion, the order passed by the revisional court need not be interfered with. 8. Now the question is as to whether the cross-objection filed by the respondents 1st set was maintainable. 9. it appears that in view of the provisions of Section 23 of the Act any order passed by the authority would be treated to be a decree executable by competent civil court and in that view of the matter, the cross-objection filed by the respondents 1st party challenging the appellate order under the provisions of Order 41 Rule 22 of the Code of Civil Procedure was well maintainable. 10. It is admitted fact that the petitioner filed the revision application under section 26 of the Act well within the statutory period of limitation and no sooner, respondent no. 10. It is admitted fact that the petitioner filed the revision application under section 26 of the Act well within the statutory period of limitation and no sooner, respondent no. 1 (since deceased) came to know about the filing of the revision, he filed his cross-objection within 30 days from the date of service of notice. 11. The cross-objection filed by the petitioner, thus, was well maintainable and the revisional court correctly decided the same. 12. The moot question, which has arisen in this application, is as to whether the rental of the shop premises could have been fixed to Rs. 1000/- per month as against rental of Rs. 105/-. 13. The House Controller under the Act is the authority to fix rental under Section 5 of the Act in the manner prescribed under the Rules. 14. It is admitted fact that the Rent Controller exercised the power as vested in him under the Act and fixed the rental in accordance with Section 8(1 )(c) of the Act read with Rule 3 of the Rules. The order passed by the House Controller has been affirmed in revision. 15. There is nothing on record to show that on spot inquiry was held by the Executive Magistrate, rather it is admitted position that the inquiry was held by the Executive Magistrate in presence of the parties and there were supporting materials to enhance/fix the rental by the House Controller in exercise of his power. 16. Since the orders have been passed in conformity with the provisions in legislation, in my opinion, no further interference is required in the matter. 17. Having heard counsel for the parties and appreciating the facts and circumstances of the case, I do not find any merit in this application. 18. It is, accordingly, dismissed. No order as to costs.