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2023 DIGILAW 2166 (RAJ)

Mohammed Farook v. State of Rajasthan

2023-12-01

REKHA BORANA, VIJAY BISHNOI

body2023
JUDGMENT : Vijay Bishnoi, J. 1. This writ petition is filed on behalf of the petitioner seeking following reliefs: “(i) That the provision of Section 14 (1) of The Rajasthan Rent Control Act, 2001 read with Section 6 and 7 of The Rajasthan Rent Control Act, 2001 curtailing the right of filing the petition under Section 6 of The Rajasthan Rent Control Act, 2001 may kindly be declared ultra virus to the constitution. (ii) That the petitioner may be granted a right to file petition under Section 6 of The Rajasthan Rent Control Act, 2001 before the Rent Tribunal and the rent may be revised as per the provisions and formula given under this section for petitioner for disputed shop. (iii) That the cost of writ petition may kindly be awarded to the petitioner. (iv) That any other appropriate writ, order or direction which this Hon'ble Court deems just and proper may kindly be passed in favour of the petitioner.” 2. The brief facts of the case are that the petitioner is a tenant in the property situated near Railway Station, Jodhpur and running a shop in it in the name of 'Hind Silk Store'. It is averred by the petitioner that initially the said shop was rented out to his father in the year 1967 for a monthly rent of Rs. 50/- per month however, the same was enhanced to Rs. 120/- per month w.e.f. March 1982. 3. The landlord filed a suit under Section 6 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred as 'the Act of 1950') which was ultimately decreed by the Court of learned Additional District Judge No. 2, Jodhpur vide judgment dated 02.11.2006, whereby it fixed standard rent @ Rs. 6,000/- per month for the shop in question. 4. The father of the petitioner filed first appeal before this Court against the judgment and decree dated 02.11.2006 and the landlord also filed a cross appeal against the same. The learned Single Judge of this Court, vide Judgment dated 23.04.2015, disposed of both the appeals and fixed the standard rent for the shop in question @ Rs. 10,000/- per month w.e.f. 01.07.2002. It was also ordered that arrears of rent are to be paid by the defendant within a period of six months to the plaintiff landlord, else the same shall bear interest at the rate of 9% per annum. 10,000/- per month w.e.f. 01.07.2002. It was also ordered that arrears of rent are to be paid by the defendant within a period of six months to the plaintiff landlord, else the same shall bear interest at the rate of 9% per annum. 5. The father of the petitioner challenged the Judgment dated 23.04.2015 by way of an S.L.P. before the Hon'ble Supreme Court, however, the Hon'bl'e Supreme Court did not interfere with the finding of the learned Single Judge qua fixation of standard rent, but ordered for payment of arrears in 12 equal monthly installments commencing from 01.10.2015. 6. After coming of the New Rent Control Act into force, the landlord again preferred an application for revision of rent under Section 6 of the Rajasthan Rent Control Act, 2001 (hereinafter referred as 'the Act of 2001') before the Additional Chief Judicial Magistrate (Rent Tribunal), Jodhpur Metropolitan. However, the said application was dismissed vide judgment dated 11.10.2017. 7. As informed, against the judgment dated 11.10.2017, the landlord preferred an appeal before the Rent Appellate Tribunal and the same is pending consideration. 8. Now, the petitioner-tenant has filed this writ petition challenging the validity of Section 14 (1) of the Act of 2001 contending that the right to seek revision of rent is available only to the landlord and not to the tenant and therefore, Section 14 (1) of the Act of 2001 being discriminatory, be declared ultra vires to the Constitution. It is contended on behalf of the petitioner that Section 6 (1) of the Act of 1950 provided an equal right to the landlord and the tenant to institute a suit for fixation of the standard rent however, under the Act of 2001, only the landlord has a right to seek revision of rent and the tenant has been provided no such right. It is contended that Section 14 (1) of the Act of 2001 curtails the right of the tenant to seek revision of rent and the same being discriminatory, is liable to be declared unconstitutional. It is contended that Section 14 (1) of the Act of 2001 curtails the right of the tenant to seek revision of rent and the same being discriminatory, is liable to be declared unconstitutional. It is further contended that the procedure prescribed under Section 14 (1) of the Act of 2001 neither gives the tenant any right to raise counter-claim under Section 6 of the Act of 2001 nor to file separate petition seeking revision of rent which is in derogation of the fundamental right to equality and therefore, the said provision is liable to be struck down. 9. Learned counsel for the respondent opposed the writ petition and argued that the same being bereft of any merit is liable to be dismissed. He submitted that the validity of Chapter 5 of the Act of 2001 has already been upheld by the Division Bench of this Court in Kamal Kishore v. State of Rajasthan reported in 2007 SCC Online Raj 624 and therefore, the challenge of the petitioner to Section 14 (1) of the Act of 2001 is not maintainable and is liable to be rejected. 10. In counter, learned counsel for the petitioner urged that the judgment passed by the Division Bench of this Court in Kamal Kishore's case (supra) has already been reversed by the Full Bench of this Court in Bhagchand v. Additional District Judge No. 5, Kota reported in 2009 SCC Online Raj 2274. 11. Heard learned counsel for the parties and perused the material available on record. 12. The Division Bench of this Court in Kamal Kishore's case (supra) examined the validity of the Act of 2001. Dealing with Chapter 5 of the Act of 2001, particularly, the provision regarding the revision of rent, the Division Bench observed as under: 16. 11. Heard learned counsel for the parties and perused the material available on record. 12. The Division Bench of this Court in Kamal Kishore's case (supra) examined the validity of the Act of 2001. Dealing with Chapter 5 of the Act of 2001, particularly, the provision regarding the revision of rent, the Division Bench observed as under: 16. Fixing the criterion of applicability under the New Act for a specified rent rate and classifying tenants for residential & commercial purposes on time demand, cannot be termed as violative of fundamental right, as the right conferred on the tenant under the rent law is a protective or legal right under a statute which can be termed as a mere civil right and not a fundamental right and it is within the domain of the legislature to make such a classification of tenant and periodical revision of rent, economic criterion for applicability of the Act, constitution of the Tribunals to achieve the object for which enactment is made, etc. Thus, in no way, the provisions of the New Act can be termed as beyond the legislative competence and in violation of Article 14 of the Constitution. It is the wisdom of the legislature to make policy based on the consideration of protecting the vested rights of the landlords on their lands and ensuring safeguards to the tenants against exorbitant rent rate. 13. It is to be noticed that while upholding the validity of the Act of 2001, the Division bench observed that all the pending proceedings for fixation of standard rent or provisional rent under Sections 6 and 7 of the Act of 1950 shall be governed by the provisions of the Act of 2001. The relevant part of the judgment, in this regard, is reproduced herein-under: “47. Consequently, we hold that the New Act is not violative of Article 14 of the Constitution and is a valid social legislation. The relevant part of the judgment, in this regard, is reproduced herein-under: “47. Consequently, we hold that the New Act is not violative of Article 14 of the Constitution and is a valid social legislation. However, we also hold that the non obstante clause contained in Section 32(3) (a) of the New Act, saving pending proceedings, shall not be applicable in case of fixation of standard rent or provisional rent under Sections 6 and 7 of the Old Act as having been impliedly repealed and shall be governed by the provisions of the New Act without declaring Section 6 of the Old Act and Section 32(3)(a) of the New Act to be ultravires to the Constitution of India or referring the decision of Khem Chand's case (supra) to a larger Bench. Accordingly, we dispose-of these writ petitions and direct the concerned Courts to dispose of the matters in the light of the above directions by reviewing their impugned orders, if they are inconsistent with the decision on the subject with no order as to costs.” Concurring with the view expressed by the author Judge in Kamal Kishore's case (supra), Hon'ble Justice P.B. Majmudar observed as under: “Therefore, in my view, none of the provisions of the New Act can be said to be unconstitutional or ultra vires in any manner and the enactment of the New Act is accordingly required to be upheld. I, accordingly, concur with the ultimate view expressed by my learned brother Thanvi, J.” 14. The Full Bench of this Court while answering the reference did not reverse the finding of Kamal Kishore's case (supra) qua validity of the Act, but only modified the directions regarding the disposal of the pending proceedings for fixation of standard rent/provisional rent and held that the suit proceedings and other proceedings relating to fixation of standard or provisional rent under Section 6 and 7 of the Act of 1950 would be governed by the Act of 1950 only and not by the provisions of the Act of 2001. 15. At the same time, the Full Bench of this Court in Bhag Chand's case (supra) has specifically taken into consideration the provisions of the new Act seeking revision of rent and fixation of standard rent and observed as under: 29. 15. At the same time, the Full Bench of this Court in Bhag Chand's case (supra) has specifically taken into consideration the provisions of the new Act seeking revision of rent and fixation of standard rent and observed as under: 29. The Legislature took into consideration the fact that the Old Act of 1950 had remained in force for 50 years and in the prevailing situation with regard to the availability of the premises, the State has undergone a considerable change. Taking note of the changed circumstances and the fact that the operation of the Old Act of 1950 had resulted in hardship to the landlords both so far as the vacation of the premises was concerned as also taking note of the fact of the hardship caused for determination of the fair rent it was necessary to replace the Old provisions under the Act of 1950 with new provisions for the control of rent and eviction. The Legislature, therefore, considered it appropriate not to keep a provision such as Section 6 of the Old Act which enable the tenants to seek revision of rent in the cases where it was suggested to be excessive by doing away with the aforesaid provisions and only making provision in revision of the rent upward for its increase under the New Act of 2001 and for that purpose provided a structured formula whereas in a given case filed under the Old Act a tenant may have claimed the revision of rent contending the same to be excessive was to be decided depending upon the facts and circumstances of each case on the basis of the material and evidence placed before the court to determine the prevailing rate of rent. But the Legislature has while enacting the New Act of 2001, taken into account the fact of the increasing costs and only provided for the increase of rent under Sections 6 and 7, in contrast to the provisions of Section 6 of the Old Act of 1950. Looking to the availability of the premises to a tenant in the present times in case the tenant finds the rent to be excessive, he may choose to vacate and take another premises after weighing the pros and cons. 16. Looking to the availability of the premises to a tenant in the present times in case the tenant finds the rent to be excessive, he may choose to vacate and take another premises after weighing the pros and cons. 16. In view of the above authoritative pronouncements wherein, non providing of a remedy by the legislature to a tenant for revision of rent, has been held to be a valid social legislation, we do not find any merit in the challenge of the petitioner to the validity of Section 14 (1) of the Act of 2001. 17. Apart from that, Section 14 of the Act of 2001 provides for a mechanism for revision of rent on an application been filed by the landlord and in the said mechanism, notice is necessarily to be served upon the tenant and the rent tribunal, after holding summary enquiry, while providing opportunity to the tenant, is required to fix the rent as per the formula laid down in Section 6 or Section 7 of the Act of 2001. 18. Meaning thereby, before deciding the application preferred by the landlord, the Court is under an obligation to afford opportunity of hearing to the tenant and to revise the rent only after hearing him. Therefore, it can be safely concluded that although the tenant has not been provided a right to file an application for revision of rent, his rights have been duly safeguarded and the mere filing of the application by the landlord, cannot in any manner, prejudice any of the right of the tenant. 19. In view of the above discussion and analysis, this writ petition being devoid of merit is hereby dismissed. 20. No order as to costs. 21. Stay petition also stands dismissed.