PRAVINCHANDRA SHAMALDAS PATEL Vs. SARASWATIBEN RANCHHODBHAI

JUDGEMENT

(1.) In these Civil Revision Applications the learned Single Judge has formulated the following eight questions in his order which according to him arise for consideration and which being of general importance the same have been referred to us. The said order mentions the following eight questions which according to the learned Single Judges are questions which are likely to arise for consideration :

(2.) Before we propose to answer these questions it will be proper to consider the scope of this reference because the learned Single Judge has not referred these four matters as such but under Rule 5 of the appellate side Rules Chapter I he has referred only the questions arising in these four matters; and in fact while setting out the eight questions the learned Single Judge has described those questions as only questions which are likely to arise for consideration. The relevant Rule 5 (1) in Chapter I of the Appellate Side Rules runs as under: Reference to a larger Bench a Single Judge may refer any matter before him or any question arising in such matter to a Division Bench of two Judges. Therefore we would have jurisdiction to go into these questions only in so far as these questions would be arising in the four matters in question; and if those questions had not been raised for disposal of these matters we would have to decline to answer these questions. In an identical context in Income-tax Commissioner of West Bengal Anusuya Devi A. I. R. 1968 S. C. 779 at page 783 where a reference could be of questions of law which arise out of the order of the Tribunal their Lordships in terms held that merely because a question was referred the High Court was not bound to answer such a question. The High Court may decline to answer the question which was purely academic or which had no bearing on the matter in dispute even though it may have been referred. Similarly the High Court may decline to answer a question if it was unncessary or irrelevant or was not calculated to dispose of the real issue between the parties. Their Lordships in terms emphasised that in such references while exercising advisory jurisdiction the High Court could not proceed to answer the question without consi- dering whether it arose out of the order of the Tribunal and whether it was question of law or whether it was academic or unnecessary or irrelevant. It is true that the power to reframe a question may always be exercised to clarify some obscurity in the question or to pinpoint the real question. In the present case a reference could arise only in respect of questions which would arise for disposal of these four revision petitions. If in that context they were merely academic or unnecessary or would not necessarily arise for disposal of these petitions such hypothetical academic questions could not be answered by this Court which exercising this jurisdiction under the relevant Rule 5. Even the very questions which have been framed by the learned Single Judge have been labelled by him as questions which are likely to arise for consideration and they have been referred on hypothetical basis without actual context of the facts of these four petitions. We would have ordinarily sent back the matter to the learned Judge for reframing the questions which actually arise for dispos- ing of these revision petitions after recording necessary findings of fact. But as a large number of matters have remained pending by reason of this reference and as question No. 1 without its sub-clauses (a) to (d) and question No. 6 are questions which really arise for disposing of these petitions we propose to answer these questions and we decline to answer other questions which are purely academic and on which nothing is shown by the parties as to how the would arise in the context of the facts of the present cases. As our discussion will show these other questions are proceeding on the assumption as to a particular interpretation of the term regularly in the Full Bench decisions and on the assumption that the Full Bench decision has not even conclude I the first question and therefore also we are confining our decision only to the first and the sixth questions referred to us in this reference.

(3.) Sec. 12 of the Bombay Rents Hotel & Lodging House Rates Control Act 1947 hereinafter referred to as the Act runs as under :