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2013 DIGILAW 1378 (RAJ)

Radhey Shyam Sharma v. State of Rajasthan

2013-07-30

AMITAVA ROY, VEERENDR SINGH SIRADHANA

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JUDGMENT 1. - In the instant writ application, the petitioners are seeking a declaration of Rule 164(3), (5) of the Rajasthan Panchayati Raj Rules, 1996 (hereinafter referred to a 'the Rules of 1996', for short) as ultra-vires of Article 14 of the Constitution of India with a further prayer to quash and set aside the impugned order dated 15th of May, 2000 whereby the Gram Panchayat, Shahpura, Panchayat Samiti, Dhodh, District Sikar, approved the proposal No. 24 resolving to increase the rent of the shops by 10% every year. 2. The facts necessary for adjudication of the controversy are that the Gram Panchayat, Shahpura, Panchayat Samiti, Dhodh, District Sikar, let out different shops on rent to the petitioners as per procedure envisaged under the Rajasthan Panchayati Raj Act, 1994 (hereinafter referred to as 'Act of 1994', for short) and under the Rajasthan Panchayati Raj Rules, 1996. Rent notes were executed between the petitioners and the Gram Panchayat and, the petitioners are tenants since 1991/1992 onwards. It is further submitted that the shops are very small in size and the rent is varying from Rs. 80 to Rs. 100/- per month. 3. The Gram Sabha in its meeting convened on 15th of May, 2000 proposed to increase the rent by 10% every year and the Gram Panchayat, Shahpura, Panchayati Samiti, Dhodh, District Sikar, has approved the said proposal. 4. It is surprising that the petitioners have approached this Court challenging the increase by 10% in the rent of the shops after a decade. The ground of the challenge to the legality, validity and correctness of the action of the respondents to increase the rent by 10% per annum as per the provisions of the Act of 1994 and the Rules of 1996, is by referring to the provisions of Section 6 of the Rent Control Act, 2005 (hereinafter referred to as 'the Act of 2005', for short). At this juncture, it would be relevant to consider the mandate of Rule 164 of the Rules of 1996, which reads thus:- "164. Letting out of Panchayati Raj Buildings and Shops : (1) Any Panchayati Raj Institution may let out their buildings to Government offices, bank, post office etc., on rent not less than the rates assessed by the competent officer of Public Works Department. Letting out of Panchayati Raj Buildings and Shops : (1) Any Panchayati Raj Institution may let out their buildings to Government offices, bank, post office etc., on rent not less than the rates assessed by the competent officer of Public Works Department. (2) Shops and other commercial sites shall be leased out for not more than three years and only through open auction by Committee consisting of 3 members as under:- (a) Chief Executive Officer, Accounts Officer and one Member of Zila Parishad nominated by Pramukh for buildings of Zila Parishad. (b) Vikas Adhikari, Accountant and one Member of Panchayat Samiti nominated by Pradhan for immovable properties of Panchayat Samiti. (c) Committee as per Rule 151 at the Panchayat level. (3) The agreements for leasing out such premises on rent shall include the condition of 10% increase of rental amount every year. (4) In case the premises are not vacated after three time limit, or it is sub-let to some other person in violation of terms of agreement or rent is not deposited regularly, Chief Executive Officer shall get the premises vacated after giving show cause notice for eviction of premises, if requested by concerned Panchayat or Panchayat Samiti. (5) Panchayat or Panchayat Samiti may also negotiate the matter for extending the term of three years, but in such case yearly increase in rent shall be 20% amount every year by mutual agreement." 5. Section 6 of the Rent Control Act, 2005, which has been pleaded as the basis for the attack on the legality of Rule 164 of the Rules of 1996, reads thus "Section 6. Revision of rent in respect of existing tenancies (1) Notwithstanding anything contained in any agreement, where the premises have been let out before the commencement of this Act, the rent thereof shall be liable to be revised according to the formula indicated below:- (a) where the premises have been let out prior to 1st January, 1950, it shall be deemed to have been let out on 1st January, 1950 and the rent payable at that time shall be liable to be increased at the rate of (5)% per annum and the amount of increase of rent shall be merged in such rent after ten years. The amount of rent so arrived at shall again be liable to be increased at the rate of (5)% per annum in similar manner upto the year of commencement of this Act. (b) where the premises have been let out on or after 1st January, 1950 the rent payable at the time of commencement of the tenancy shall be liable to be increased at the rate of (5)% per annum and the amount of increase of rent shall be merged in such rent after ten years. The amount of rent so arrived at shall again be liable to be increased at the rate of (5)% per annum in similar manner upto the year of commencement of this Act. (2) Notwithstanding anything contained in sub-section (1), where the period of ten years for merger or increase of rent under sub-section (1) is not completed upto the year of commencement of this Act, the rent at the rate of (5)% per annum shall be increased upto the year of the commencement of this Act and the amount of increase of rent shall be merged in rent. (3) The rent arrived at according to the formula given in sub-section (1) and (2) shall, after completion of each year from the year of commencement of this Act, again be liable to be increased and paid at the rate of 5% per annum and the amount of increase of rent shall be merged in such rent after ten years. Such rent shall further be liable to be increased at similar rate and merged in similar manner till the tenancy subsists. (4) The rent revised as per formula given under sub-section (1) or sub-section (2) shall be payable, after the commencement of this Act, from the date agreed upon between the landlord and the tenant or where any petition is filed in a Rent Tribunal from the date of filing of such petition." 6. (4) The rent revised as per formula given under sub-section (1) or sub-section (2) shall be payable, after the commencement of this Act, from the date agreed upon between the landlord and the tenant or where any petition is filed in a Rent Tribunal from the date of filing of such petition." 6. According to the learned counsel for the petitioners, since both the Acts i.e. Rent Control Act, 2005 and Panchayati Raj Act, 1994 as well as the Rules, 1996, have been enacted by the Rajasthan State Legislature, but there is an inherent difference in the provisions with reference to increase in the rent i.e. under Section 6 of the Act of 2005, rent can be increased by 5% per year whereas under Section 164(3) of the Rules of 1996, the rent is liable to be increased by 10% every year. Therefore, the learned counsel for the petitioners urged that the provisions of Rule 164(3) of the Rules of 1996, are discriminatory and violative of fundamental rights of the villagers residing in the Villages and Panchayats, who carry on small business in order to earn their livelihood whereas the persons who are residing in municipal areas or district headquarters, are enjoying the benefit of different legislation i.e. Act of 2005, which makes a provision for increase of rent to the extent of 5% per year i.e. just half of what the petitioners are required to pay by way of 10% increase per year. 7. The learned counsel for the petitioners referring to the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, which made no provision for increase of rent every year and after repeal by the Rajasthan Rent Control Act, 2001, which provided a provision for increase of rent by 7.5% per year, urged that even the increase of 7.5% per year was not accepted by the public at large and led to an agitation and as a consequence the increase of rent by 7.5% was reduced to 5%, by necessary amendment under the provisions of Section 6 of the Rajasthan Rent Control Act, 2001. 8. 8. The learned counsel has also assailed the provisions of Rule 164(5) of the Rules of 1996, which makes a provision for increase of 20% rent every year by mutual agreement, by placing on record a copy of the order dated 16th of October, 2003, wherein this Court while deciding cluster writ applications, quashed and set aside the order dated 23rd of December, 2000, by which eviction from the shops was ordered by the Block Development Officer and the Gram Panchayat, without affording any opportunity of hearing inspite of the fact that the petitioners in those cases paid the monthly rent regularly. 9. We have heard the learned counsel for the petitioners and also perused the material available on record. 10. The controversy raised by the petitioners questioning the legality, validity and correctness of the provisions of Rule 164 of the Rules of 1996 by putting the provisions of Section 6 of the Rent Control Act, 2005 in juxtaposition, has no factual foundation for the simple reason that the two Acts and the Rules operate entirely in two different areas. 11. After promulgation of the Rajasthan Rent Control Act, 2001, certain problems were brought to the notice of the State Government by the citizens as a consequence a Cabinet Committee was constituted to review the provisions of the aforesaid Act and to suggest suitable amendments. The Committee considering the recommendations approved amongst others, one relating to the rate of increase in rent from 7.5% per annum reducing it to 5% per annum. Thus, with certain amendments, the Rent Control Act, 2005 was brought into force by notification in the Official Gazette w.e.f. 22nd of February, 2006. It is relevant to mention that the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, has been in force nearly for five decades and during those years, the situation prevailing with respect to the premises in the State of Rajasthan had undergone considerable change and in the changed scenario, the law relating to the premises with reference to rent and eviction also necessitated change. In the then existing law, there was a feeling of insecurity among the landlord(s) in regaining the vacant possession of the premises, which impeded the growth of retable premises. In the then existing law, there was a feeling of insecurity among the landlord(s) in regaining the vacant possession of the premises, which impeded the growth of retable premises. Therefore, while enacting the Rajasthan Rent Control Act, 2001 adequate provision for timely vacation of the premises as also for determination of fair rent was felt the need of the hour. The Act of 2001 as amended vide Act of 2005 provided certain inbuilt safeguards for tenant and certain premises were required to be kept out of the scope of new law. The new Act of 2005 deals with the situation relating to the landlord-tenant relationship and disputes. The preamble of the Act of 2005 details out the object of the Act sought to be achieved including applicability of the Act. Section 2 of the Act of 2001 as amended in 2005 defines 'landlord', 'tenant', 'lease' and 'municipal area'. Section 3 makes a provision for exclusion of application of Chapter II and III of the Act to certain premises and tenancies. Section 4 makes a provision for rent to be agreed and payment of rent has been provided under Section 5. Section 6 makes a stipulation for revision of the rent in respect of existing tenancies whereas Section 7 provides for rent in respect of new tenancies. Section 8 makes a provision for limited period tenancies and Section 9 of the Act stipulates a condition for eviction of tenant. Right of the landlord to recover immediate possession in certain cases has been detailed out under Section 10 whereas Section 11 provides for restoration of possession of illegally dispossessed tenant. Section 12 prescribes the procedure for recovery of possession and Chapter V of the Act details out the Constitution of Tribunals, procedure for Revision of rent, Eviction, Appeal and Execution of the Orders. Thus, a bare perusal of the Act of 2005 would reveal that it deals with the private rights of the landlord and tenant.The Rules of 1996 framed in exercise of the powers conferred by Section 102 read with Sections 3, 7, 8, 25, 31, 33(c) etc., and all other powers enabling in this behalf by the Government of Rajasthan are supplementary to the provisions of the Act of 1994. There are 16 Chapters containing about 374 Rules and 42 Forms, which are equally applicable to all the Panchayati Raj Institutions, except the special provision which is made for a particular Institution. The Rules are to be read with the relevant provisions of the Act of 1994. Chapter IX of the Rules of 1996 deals with the provisions of Section 63 of the Act of 1994 relating to immovable properties, which have been further divided in two different heads including letting out of buildings and shops of Panchayati Raj Institution under Rule 164, which is the subject matter of the present writ application. Rule 2 of the Rules of 1996 defines the meaning of various terms qualified by the phrase "unless the subject or the context otherwise requires", to have the meaning as detailed out in the interpretation under Rule 2. The legislative competence to frame the rules has not been questioned by the petitioners. 12. It is a well settled principle that when a word or phrase has been defined in the interpretation clause, prima facie that definition governs whenever that word or phrase is used in the body of the statute. The meaning of word or impression defined may have to be departed from on account of subject matter or context in which the word had been used and that will be giving effect to the opening sentence in definition section. In view of this clarification, the Court has not only to look at the word but also to look at the context, therefore, having regard to the different context of the two different Acts, which operate entirely in different areas, the term 'rent' with reference to a shop, which is commercial in nature under the Act of 1994 and the Rules of 1996, cannot have a same meaning and impart as defined under the Act of 2005 dealing with the relationship of landlord and tenant. Moreover, even under the Rent Control Act, the premises of commercial nature cannot be compared so far the rate of 'rent' is concerned qua the premises which are residential in nature. Moreover, even under the Rent Control Act, the premises of commercial nature cannot be compared so far the rate of 'rent' is concerned qua the premises which are residential in nature. Therefore, the very argument and reasoning while assailing the percentage of 'rent' to be increased per annum under the two different Acts, is thoroughly misconceived.The doctrine of classification under Article 14 has multiple facets, and from the facts disclosed and material available on record we find that none of those facets have been abrogated by the provisions of two different Acts and/or Rules of 1996 made thereunder. Further, it is well-settled principle of law that Equality is a comparative concept. A person is treated unequally only if that person is placed in a disadvantageous position than others, and those others (with whom he compares himself/themselves), must be those who are 'similarly situated' to be aggrieved. The 'similarly situated' test is not attracted in this case for the simple reason that the two Acts, namely, the Act of 1994 and Rules of 1996, which prescribed 10% increase in the rent per annum, is quite distinct and separate from the provisions relating to 5% increase in the rent agreed upon between the landlord and tenant under the Act of 2005. Therefore, in our view, the scope and ambit of the two Acts and the relevant rules, are completely different and they operate in different spheres. 13. Having considered the fact that the two different provisions of the two different Acts operate in two different areas, which have no relevance in context with each other, cannot be pleaded as a ground to assail the legality, validity and correctness of Rule 164 of the Rules of 1996. 14. Further, we are afraid that the subject matter would at all be in the domain of judicial review under Article 226 of the Constitution of India to go into the reasonableness of the percentage of rent increased as per Rules of 1996 framed by the Legislature as compared to the percentage of increase in rent per annum on the basis of rent agreed upon between the landlord and the tenant under the Act of 2005. 15. 15. We fail to understand as to how the petitioners' right to rent a shop from a Panchayati Raj Institution, as per the mandate of statutory Rules of 1996, could at all be a fundamental right and the percentage of increase of rent as stipulated under Rule 164 of the Rules of 1996 would attract the equality clause of Article 14 of the Constitution. 16. Rule 164(5) stipulates an increase of 20% of rent per annum by mutual agreement. Therefore, by no stretch of imagination such a provision can be construed to furnish a cause of action to assail the action of the respondents on the ground of violation of any of the provisions of fundamental rights of the petitioners. In our considered opinion, in the face of legislative prescription of percentage of increase of rent under Rule 164 of the so Rules of 1996, is not a subject matter, which may fall for judicial scrutiny under Article 226 of the Constitution of India so as to go into reasonableness of the percentage of increase in the rent. The matters are for legislative judgment and not for judicial determination. 17. We are, therefore, clearly of the view that the controversy projected by the petitioners with reference to the increase of rent by 10% with regard to their shops, rented out to them under the Rules of 1996 cannot have any semblance with the rate of increase by 5% per annum with reference to premises under the Act of 2005. There is a fallacy in the reasoning of the learned counsel for the petitioners keeping in view the very nature and the context of the subject matter, which are shops of the petitioners on rent from the Panchayati Raj Institution, where the increase of rent has been fixed as per the statutory Rules of 1996 whereas the rent agreed to between the landlord and tenant under the Act of 2005, is by their mutual consent and further, the two Acts operate entirely in different areas without having any similarity with the object underlining both the legislation in the light of the preamble with altogether different legislative intent in view of the context of the subject matter. 18. 18. It is trite law that the correctness of the reasons which prompted the Government in decision-making taking one course of action instead of another is not a matter of concern in judicial review and the Court is not the appropriate forum for such investigation. The policy decision must be left to the Government as it alone can adopt which policy should be adopted after considering all the points from different angles keeping in view the object sought to be achieved by the concerned legislation. In the matter of policy decisions or exercise of discretion by the Government, so long as the infringement of fundamental right is not shown the courts will have no occasion to interfere and the Court will not substitute its own judgment for that of the executive in such matters. In assessing the legality and propriety of a decision of the Government the Court cannot interfere even if a second view is possible. 19. In view of the peculiar facts and circumstances of the case, we are not convinced to hold that the action of the respondent State in fixing 10% of increase of rent per annum in the matter of shops rented out to the petitioners was unreasonable, illegal, arbitrary or violative of any of the fundamental rights of the petitioners. 20. It is also relevant to mention here about the inaction of the petitioners in approaching this court after a decade has its own tale to tell. The courts have scrupulously refrained from entering into the domain of policy decision, determination or policy evaluation, while exercising the power of judicial review. The honourable Supreme Court has emphasised time and again that courts neither sit in appeal over the policy decisions and do not substitute nor examine the wisdom of the policy choice adopted. Judicial intervention with policy decision is only when the court finds the policy to be palpably arbitrary, malafide or discriminatory. Therefore, the concept of narrow tailoring cannot be injected into the judicial review under the Constitution of India. However, the nature of controversy and subject matter brought on record calls for no interference in exercise of powers of judicial review. 21. Therefore, the concept of narrow tailoring cannot be injected into the judicial review under the Constitution of India. However, the nature of controversy and subject matter brought on record calls for no interference in exercise of powers of judicial review. 21. For the reasons detailed out hereinabove and keeping in view the material available on record as well as having regard to the nature of the controversy raised, the writ application is bereft of any merit and, therefore, deserves to be dismissed at the motion stage. 22. in the result, the writ application preferred by the petitioners is dismissed. Stay application stands closed. No order as to costs.Writ Petition Dismissed. *******