Vasant Narayan Pihulkar vs Sumanbai Laxman Mairal & others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1985 Supreme(Bom) 266

IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
Dhabe H.W., J.
Vasant Narayan Pihulkar....Appellant.
Versus
Sumanbai Laxman Mairal others....Respondents.
Second Appeal No. 363 of 1972, decided on 9-10-1985.
Advocates appeared :
R.N. Deshpande P.Y. Deshpande, for appellant.
S.C. Jog, for respondents Nos. 1 to 4.
S.Z Patil, for respondents Nos. 5 to 11.

Headnote:Article 14 C. P. and Berar Letting of House and Rent Control order governing only the house accommodation while the Bombay Rent Act applicable to open land as well as houses -Classification can not be challenged on the ground that Rent Control Order 18 violative of Article 14 as it does not apply to lands.
       As regards the Bombay Act, it was enacted in the year 1948 in the State of Bombay The preamble of the Act shows that it is intended to be a comprehensive legislation to amend and consolidate the law relating to the control of rents and repairs of certain premises, of rates of hotels and lodging houses and of eviction and also to control the charges for licence of premises. etc. The scheme of the Act shows that it is made applicable to the open lands as well as to the house accommodation as is clear from the definition of the word premises given in Section 5 (8) of the Act.
       The schemes of the Bombay Act and the Rent Control Order are entirely different and that they were enacted to remedy different mischiefs which were necessary to be remedied looking to the problems and the needs of the people in those parts to which they were made applicable. Since these enactments thus belong to different classes being independent self contained statutes prevailing in different parts of the State the Rent Control Order cannot he cha1l~nged on the ground that the Bombay Act is applicable to the open lands. It IS we1l-settled that when the schemes of the competing statutes are entirely different the validity of one statute cannot be tested under Article 14 of the Constitution with reference to another statute. Moreover, even otherwise, no data is placed on record to show that the magnitude of the problem of regulating or controlling the rents and accommodation is at present such in the Vidarbha region of the State that it is necessary for the State to control also the leases in relation to the open lands.
       The Rent Control Order was enacted and made applicable to the house accommodation because it appears that the Legislature at the time of its enactment thought that the mischief or evil was most acute in relation to the house accommodation, the subject in relation to which protection is granted by it. It would not therefore mean that the Rent Control Order is discriminatory because it does not apply in respect of the open lands.
       It is primarily for the State to consider whether the Bombay Act or the Rent Control Order should be applicable in the whole State of Maharashtra or to bring uniform legislation for the whole of the State which question depends upon the consideration of the extent of the problem of the accommodation in various regions of the State, prevalent rates of rent in various regions and what the effect of the existing rent control legislation in each region is. It is possible that after considering all the pros and cons of the problems the State may enforce the Rent Control Older itself in the whole of the State of Maharashtra or may not think it advisable to legislate in respect of the open lands. The Rent Control Order, therefore, cannot be struck down only because the Bombay Act is applicable to the open lands.

JUDGMENT - DHABE H.W., J.:-This is a second appeal preferred by the defendant-tenant against the concurrent judgment of the courts below.

The only point raised in this case before the courts below was whether the defendant-tenant proved that at the time when the lease was created, Laxmanrao Mairal had orally assured not to demand the vacant possession of the demised property by terminating the tenancy for a period of 10 years therefrom, as alleged. Both the courts have answered the aforesaid point against the defendant-tenant. The finding rendered by the courts below in this regard is a finding of fact based upon the evidence on regard. It is not, therefore, open to me to disturb the same in the limited scope of the second appeal as it does not involve any question of law.

2. The other question raised on behalf of the defendant, that all the legal representatives of the deceased landlord Laxmanrao did not join to file the instant suit, also involves determination of the questions of fact, and the finding of the courts below on that question therefore is final. The same cannot be interfered with in this second appeal. The question as regards, the legality or validity of the notice is also a question of fact upon which the finding of the courts below is final and cannot be interfered with in this appeal.

3. The learned Counsel for the defendant has for the first time, during the hearing of this appeal, raised new ground in this case. He contends that the provisions of the C.P. and Berar Letting of Houses and Rent Control Order, 1949 (for short the Rent Control Order) are violative of Article 14 of the Constitution of India, because they are not applicable in the case of the vacant lands but are applicable to the “houses” only, whereas the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short the Bombay Act), is applicable to the open lands as well as the houses. The submission is that in applying the Rent Control Legislation to the open lands in a part of the State only there is discrimination practised as the tenants of the open lands in the Vidarbha region of the State of Maharashtra are deprived of the benefit of the protection of the Rent Control legislation since the

Rent Control Order is not applicable to the open lands. Normally I would not have been inclined to allow the appellant to raise this ground during the hearing of this appeal for the first time after about 13 years in this Court but since the said question relates to the validity of the Rent Control Order and is sought to be raised as a pure question of law and jurisdiction. I have allowed the appellant to raise this question for the first time during the hearing of this appeal.

4. It may be stated that if the Rent Control Order is applicable, then the previous permission of the Rent Controller is necessary before giving quit notice to the tenant under section 106 of the Transfer of Property Act. Further the tenancy can be permitted to be terminated only upon the grounds enumerated in Clause 13(3) of the Rent Control Order. The submission, therefore, is that the tenants in respect of the open lands are deprived of the aforesaid protection under the Rent Control Order in respect of termination of their tenancies which is granted only to the tenants of the “houses” covered by the said Rent Control Order.

5. The learned Counsel for the appellant has relied upon two decisions of Supreme Court in support of his contention that the State should have enforced uniform Rent Control Legislation throughout the State in respect of the open lands and not to the part of the State alone where the Bombay Act is applicable. The submission therefore is that the Rent control Order which is applicable in the Vidarbha region of the State of Maharashtra and which is not applicable to the open lands is arbitrary, discriminatory and is liable to be struck down under Article 14 of the Constitution of India. The decisions of the Supreme Court relied upon are: (Motor Gen

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