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PATNA HIGH COURT
V.Ramaswami and Raj Kishore Prasad JJ.
Lady Dorothy Lort Williams
Versus
Uditandu Prakash Mullick
Miscellaneous Judicial Case No. 926 of 1956 ;
Decided On : NOVEMBER 06, 1957
BIHAR BUILDINGS (LEASE, RENT AND EVICTION) CONTROL (AMENDMENT) ACT, 1955 - SEC. 23 - INTERPRETATION - APPLICATION FOR DETERMINATION OF FAIR RENT PENDING BEFORE CONTROLLER ON COMMENCEMENT OF AMENDING ACT - DISPOSAL UNDER AMENDED ACT - SAVING CLAUSE - CONSTRUCTION.
Fact of the Case:
The petitioner, the owner of a building, challenged the orders of the Controller, Deputy Commissioner, and Commissioner upholding the determination of fair rent for the building occupied by the tenant under the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (Bihar Act III of 1947) (the Act). The petitioner contended that the application for determination of fair rent, made by the tenant in November 1953, should be decided under the unamended Act of 1947 and not under the amended Act of 1955.
Finding of the Court:
The court held that the application for determination of fair rent, which was pending before the Controller after remand, should be disposed of under the amended Act of 1955, and not under the unamended Act of 1947. The court interpreted Section 23 of the Amendment Act of 1955, which provided for the disposal of pending applications, appeals, and proceedings under the old Act. The court held that the proviso to Section 23, which provided for the disposal of applications other than eviction applications under the amended Act, should be construed harmoniously with the first part of Section 23, which provided for the disposal of eviction applications under the old Act. The court found that the true meaning and proper construction of the proviso was that except for an application for the eviction of a tenant, all other applications made under the old Act of 1947, if pending before the Controller on the date of the commencement of the new Act of 1955, as also all appeals and proceedings arising therefrom, shall be disposed of under the new Act of 1955, and not under the old Act of 1947.
Issues: 1. Whether the application for determination of fair rent, made by the tenant in November 1953, should be decided under the unamended Act of 1947 or under the amended Act of 1955? 2. Whether the proviso to Section 23 of the Amendment Act of 1955 should be construed harmoniously with the first part of Section 23?
Ratio Decidendi: 1. The court held that the application for determination of fair rent should be disposed of under the amended Act of 1955, and not under the unamended Act of 1947, based on the following reasoning: a) Section 23 of the Amendment Act of 1955 provided for the disposal of pending applications, appeals, and proceedings under the old Act. b) The proviso to Section 23 provided for the disposal of applications other than eviction applications under the amended Act. c) The proviso should be construed harmoniously with the first part of Section 23, which provided for the disposal of eviction applications under the old Act. d) The true meaning and proper construction of the proviso was that except for an application for the eviction of a tenant, all other applications made under the old Act of 1947, if pending before the Controller on the date of the commencement of the new Act of 1955, as also all appeals and proceedings arising therefrom, shall be disposed of under the new Act of 1955, and not under the old Act of 1947. 2. The court held that the proviso to Section 23 of the Amendment Act of 1955 should be construed harmoniously with the first part of Section 23, based on the following reasoning: a) It is a fundamental rule of construction that a proviso must be considered with relation to the principal matter to which it stands as a proviso. b) The proviso to Section 23 provided an exception to the general rule laid down in the first part of Section 23, which provided for the disposal of all pending applications, appeals, and proceedings under the old Act. c) The proviso should be construed in a manner that gives effect to both the general rule and the exception.
Final Decision: The court dismissed the petitioner's application and upheld the orders of the Controller, Deputy Commissioner, and Commissioner.
Raj Kishore Prasad, J.
1. The petitioner has moved this Court, under Articles 226 and 227 of the Constitution, for an appropriate writ to quash the order, passed under Sec. 5 of the Bihar Buildings (Lease, Bent and Eviction) Control Act, 1947 (Bihar Act III of 3947), hereafter referred to as "the Act", of the Controller dated 22-9-1955 (Annexure D to the application), and, the subsequent orders passed on appeal by the Deputy Commissioner, Ranchi, on 3-5-1956 (Annexure E), and, on revision by the Commissioner of Chotanagpur Division on 12-11-1956 (Annexure F) upholding the order of the Controller dated 22-9-1956 (Annexure D).
2. On the above application of the petitioner, a rule was issued by this Court against the opposite party to show cause why the aforesaid orders should not be quashed.
3. Cause has been shown by Mr. Bay Paras-nath, Government Pleader, on behalf of the opposite party. The petitioner is the owner of a holding which she has let out to opposite party 1, oa a monthly rental of Rs. 700/-. The opposite party 1 is running a hotel called "Grand Hotel" in this holding. The tenant, opposite party 1., made an application under Sec. 5 of the Act for determination of a fair rent for the building in his occupation.
4. On this application, the Controller on 5-7-1951 determined the fair rent and fixed it at Rs. 450.00 as against Rs. 700/-, the existing monthly rental of the building. On appeal by the petitioner, the Deputy Commissioner, Ranchi, set aside the order of the Controller and remanded the case for further hearing according to law, by his order dated 6-1-1955 (Annexure B). A revision was carried against the above order to the Commissioner of Chotanagpur Division, who, however, dismissed it on 27-7-1955, on the ground that it was barred by time.
5. After remand, the Controller, on 22-9-1955, heard the parties and passed the following order, the validity of which is now challenged by the petitioner:
"This case has been remanded for rehearing according to the law. The B.B.C. Act of 1947 stands amended by the Act XVI of 1955 since 16-8-1953. In view of the amendment, any fair rent application pending before this Court has got to be disposed of in terms of the amended Act. According to the Amendment Act, the Municipal Assessment is the main criterion for fixation of the fair rent. In my previous fair rent order, I had held the Municipal assessment to be low. But as the law stands now, the fair rent of the building cannot but be on the basis of the Municipal assessment of the building in question is on the record. But the building has got many furniture, and refrigerator as well. I understand the Municipal assessment does not cover the furniture etc. So evidence on the valuation of the furniture etc., is necessary. The parties are therefore directed to adduce evidence on this point on 6-10-1955. The O.P. has filed a petition for disposal of the case according to the old Act. This petition is rejected.
6. An appeal against the above order was taken by the petitioner to the Deputy Commissioner of Ranchi, who, however, dismissed it on 3-5-1956 (Annexure E). A revision against this order was also dismissed by the Commissioner of Chotanagpur Division (Annexure P) on 12-11-1956.
7. Mr. L.K. Choudhary, in support of the rule, contended that the Controller has obviously committed an error of law in thinking that the application, for determination of fair rent, made by the tenant-opposite party, in November, 1953, should be decided not in accordance with the un-amended Act of 1947, but by the new amended Act of 1955, especially when the Controller himself found that the Municipal assessment was low. Mr. Choudhary, therefore, contended that the Act of 1947 should apply to the present case, and the amended Act had no application to it. In support of his contention, he relied on Sec.23 of the Bihar Buildings (Lease, Rent and Eviction) Control (Amendment) Act, 1955 (Bihar Act XVI of 1955).
8. Sec.23 of the Amendment Act of 1
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