SHOBHANA SHANKAR PATIL Vs. RAMCHANDRA SHIRODKAR

JUDGEMENT

(1.) WHETHER Rule 9 (2) of the Bombay Rents, Hotel and Lodging House Rates Control Rules, 1948, is in excess of rule making power of State Government? Whether the said rule can be branded as arbitrary and unreasonable and invalidated on that count? Are the main issues involved in this writ petition.

(2.) THE facts giving rise to this petition lie in a narrow compass. The petitioner is the landlady of a chawl by name Shankar Patil Chawl at Andheri. A double room tenement, hereinafter referred to as "the suit premises", was let out to one Ramchandra Shirodkar at a monthly rent of Rs. 32. 25 Ps. plus water charges of Rs. 4/- per month. After the death of the said Ramchandra, the respondents were accepted as tenants of the petitioner in respect of the suit premises. The petitioner filed R. A. E. Suit No. 3391 of 1970 in the Bombay Small Causes Court on the ground of non-payment of arrears of rent of more than six months as well as the ground of waste of the suit premises allegedly caused by the respondents by reason of enclosing the front verandah of the premises. The learned Single Judge of the Small Causes Court by his judgment and decree dated July 25, 1980 decreed the petitioners suit and ordered the respondents to vacate and hand over the vacant and peaceful possession of the suit premises to the petitioner by the end of December, 1980. The learned Single Judge, inter alia, held that the ground of non-payment of rent is proved and both Clauses (a) and (b) of sub-section (3) to section 12 of the Bombay Rent Act are attracted to the facts of the present case. The other ground of causing waste was, however, negatived by the learned Single Judge. Aggrieved by the judgment and order of the learned Single Judge, the respondents filed Appeal No. 566 of 1980 before the Appellate Bench of the Small Causes Court. The learned Judges constituting the appellate bench differed in their conclusion and consequently gave differing judgments. The Additional Chief Judge Mr. Pandit found that the respondents were ready and willing to pay standard rent an the permitted increases of the suit premises from April 1, 1968 and hence, provisions of section 12 (3) (a) of the Bombay Rent Act were not attracted to the facts of the case. Mr. Pandit also pleased to hold that there is substantial compliance with section 12 (3) (b) inasmuch as the tenants had deposited regularly the amount of monthly rent in the Court as per the Courts order during the pendency of the suit. Mr. Pandit, therefore, held that the appeal deserves to be allowed and ordered that the suit of the petitioner be dismissed with costs. The Additional Chief Judge Mr. Lonkar, who came to a different conclusion than Mr. Pandit, found that the tenants had committed default in payment of rent and they were not at all regular in making the payment in Court. Mr. Lonkar also held that in view of the admission of Mr. Hegde, Advocate for the respondents, that the respondents has not deposited the rent in Court regularly as per the Courts order, the respondents could not be given protection of the Act. Mr. Lonkar, therefore, held that the trial Court was perfectly justified in coming to the conclusion that the respondents were not entitled to protection under section 12 (3) (b) of the Act. In short, Mr. Lonkar expressed the opinion that there was no ground to interfere with the judgment and order passed by the learned Single Judge. As a result of difference of opinion between the two Judges of the Appellate Bench, the following order was passed by the Appellate Bench:

(3.) THE petitioner has challenged the validity of Rule 9 (2) on the ground that it is unreasonable, arbitrary and against the principles of natural justice. The petitioner has also challenged the validity of the said rule on the ground that it is beyond the rule making power of the State Government. It is submitted that section 29 (1) (a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1948 ("act", for short) provides an appeal to a Division Bench before two Judges of the Small Causes Court, but Rule 9 (2), which provides that the Judge, who is first in rank and precedent will have a casting voice reduces the appeal virtually to an appeal before one Judge, which is totally contrary to the provisions of section 29 (1) (a) of the Act. It is further submitted that the rule, which gives precedence to the opinion of the Senior Judge is totally illogical and irrational, as the seniority of the Judge cannot be regarded as the sole test for deciding the conflict between the learned Judges. The petitioner has relied on the provisions of section 11 of the Presidency Small Causes Court Act, 1882, which lays down that in case of such division, a reference is to be made to a third Judge and case is decided according to the opinion of majority of the Judges hearing the case including those who first heard. It is submitted that by virtue of the said provision, in suits which are less important than those relating to the recovery of immovable property, the right of appeal is rendered effective and substantial, whereas, the right of appeal in important suits relating to immovable property under the Bombay Rent Act is rendered illusory by the said Rule 9 (2 ). In this context, the petitioner has also relied upon section 98 of Code of Civil Procedure, which provides reference to a third Judge in case of conflict on the question of law.