Khursheeda and Ors. vs XVIIIth Additional District Judge,Allahabad & Ors.

S.U. Khan, J.—This is tenant''s writ petition arising out of SCC Suit No. 531 of 1984 instituted by landlord respondent against tenant petitioner. The plaintiff in the suit is described as Mumtazul Haq through Waqf Mutawalli. When the suit was filed U.P. Act No. 13 of 1972 was squarely applicable to the building in dispute. In the plaint of the suit several grounds mentioned under Section 20 (2) of the Act for seeking relief of ejectment were taken. Additional JSCC, Allahabad dismissed the suit through judgment and decree dated 22112000 by holding that plaintiff failed to prove existence of any ground for ejectment mentioned in the plaint. Against the aforesaid judgment and decree landlord respondent filed revision under Section 25 of PSCC Act being SCC Revision No. 1233 of 2000. The Revisional Court by order dated 9 52001 allowed the revision and decreed the suit of the landlord respondent by holding that by virtue of amendment through which Section 2 (1) (bbb) was added in the Act the building in dispute was exempted from operation of the Act.

According to the said Clause of Section 2 (1) of the Act nothing in the Act shall apply to any building belonging to or vested in Waqf including WaqfAlulAulad. The said Clause was inserted by U.P. Act No. 5 of 1995 with effect from 2691994. Before the Revisional Court no argument was raised by landlord respondent who was revisionist before Revisional Court, regarding findings of the Trial Court on the issues of default in payment of rent and material alteration etc. The only point argued before the Revisional Court was that Rent Control Act was not applicable by virtue of the aforesaid Clause (bbb). Revisional Court also allowed the revision only on that ground by holding that the Act was not applicable and the notice of termination of tenancy was valid and the same was served upon the tenant.

A Division Bench of this Court reported in 2002 (1) ALJ 121 has held that the said amendment in the Act is not retrospective and it will not apply to the suits which were instituted prior to the insertion of the said clause i.e. 2691994. In view of this, the judgment of the Revisional Court is liable to be set aside. There is no need to remand the matter to the Revisional Court for deciding questions regarding default and material alteration etc. as these points were not pressed before Revisional Court.

Accordingly writ petition is allowed. Judgment and order passed by the Revisional Court is set aside and judgment and decree of the Trial Court is restored.

Learned Counsel for the landlord respondent has very vehemently argued that in the release application which he had filed against the tenant petitioner under Section 21 of the Act, tenantpetitioner successfully asserted that Rent Contract Act was not applicable. On this assertion and plea the tenant won from the Trial Court as well as Appellate Court and the matter is pending in this Court in the form of Writ Petition No. 41362 of 2002. In this regard the legal position is quite settled, jurisdiction cannot be conferred by consent. The doctrine of approbate and reprobate cannot therefore be applied to the question of jurisdiction particularly when it is based upon pure question of law.

However, regarding rent which is only Rs. 27.50, this Court is of the opinion that the said rent is highly inadequate, looking to the extent of accommodation and the area where it is situate. The tenanted accommodation consists of six kotharies, three rooms, two kitchens, one Courtyard and other amenities. The building in dispute is situate in a dense locality of Allahabad city. In exercise of writ jurisdiction while granting relief to the petitioner the Court is fully authorized to pass such subsequent order which is essential in order to do complete justice between the parties and adjust the equities.

It is a great lacuna in U.P. Act No. 13 of 1972 that there is no provision for enhancement of rent to the reasonable extent after September, 1972. The Supreme Court in M.V. Acharya v. State of Maharashtra, AIR 1998 SC 602, issued an earnest appeal to the legislature for insertion of such provision. In one of my judgments, 2003 (2) ARC 545. I also suggested to the legislature to consider whether it was desirable to incorporate such provision.

The Supreme Court in the aforesaid authority reported in AIR 1998 SC 602, took into consideration report of Economic Administrative Reforms Commission on Rent Control presented to the Government of India in September, 1982 particularly para51 of the said report which was quoted in the judgment in para16 thereof which is reproduced below :

�We now turn to the problem of existing tenancies. Many of these are very old and the rents were fixed a few decades ago. These old and frozen rents bear little relation to the present day maintenance costs or to the current returns from alternative investments, or to the prevailing market rents in respect of new accommodation. In the case of new construction, we have suggested that the periodical revision of rents should be based on a partial neutralization of the effects of inflation. Applying the same principle to existing tenancies where rents have remained frozen for at least 5 years, what needs to be done is to update those rents by neutralizing 50 percent of the inflation which has taken place from the time of initial determination of those rents up to the present time.�

Paragraphs 26 to 29 and part of para 30 of the aforesaid Supreme Court authority are quoted below :

�(26) It is true whenever a special provision, like the Rent Control Act, is made for a Section of the society it may be at the cost of another section, but the making of such a provision or enactment may be necessary in the larger interest of the society as a whole but the benefit which is given initially if continued results in increasing injustice to one section of the society and an unwarranted largess or windfall to another, without appropriate corresponding relief, then the continuation of such a law which necessarily or most likely, leads to increase in lawlessness and undermines the authority of the law can no longer be regarded as being reasonable. Its continuance becomes arbitrary.

(27) The Legislature itself, as already noticed hereinabove has taken notice of the fact that puggrie system has become prevalent in Mumbai because of the Rent Restriction Act. This Court was also asked to take judicial notice of the fact that in view of the unreasonably low rents which are being received by the landlords, recourse is being taken to other methods to seek redress. These methods which are adopted are outside the four corners of the law and are slowly giving rise to a state of lawlessness where, it is feared, the Courts may become irrelevant in deciding disputes between the landlord and tenants. This should be a cause of serious concern because if this extra judicial backlash others momentum the main sufferers will be the tenants for whose benefit the Rent Control Acts are framed.

(28) In so far as social legislation like the Rent Control Act is concerned, the law must strike a balance between rival interests and it should try to be just to all. The law ought not to be unjust to one and give to disproportionate benefit or protection to another section of the society. When there is shortage of accommodation it is desirable may necessary that some protection should be given to the tenants in order to ensure that they are not exploited. At the same time such a law has to be revised periodically so as to ensure that a disproportionately larger benefit than the one which was intended is not given to the tenants. It is not as if the Government does not take remedial measures to try and off set the effects of inflation. In order to provide fair wage to the salaried employees the Government provides for payment of dearness and other allowances from time to time. Surprisingly this principle is lost sight of while providing for increase in the standard rent the increase made even in 1987 are not adequate, fair or just and the provisions continue to be arbitrary in today''s context.

(29) When enacting socially progressive legislation the need is greater to approach the problem from a holistic perspective and not to have a narrow or short sighted parochial approach. Giving a greater than due emphasis to a vocal section of society results not merely in the miscarriage of justice but in the abdication of responsibility of the legislature authority. Social Legislation is treated with deference by the Courts not merely because the Legislature represents the people but also because in representing them the entire spectrum of views is expected to be taken into account. The Legislature is not shackled by the same constraints as the Courts of law. But its power is coupled with a responsibility. It is also the responsibility of the Courts to look at legislation from the alter of Article 14 of the Constitution. This article is intended, as is obvious from its words, so check this tendency giving undue preference to some over others.

(30). Taking all the facts and circumstances into consideration, we have no doubt that the existing provisions of the Bombay Rent Act relating to the determination and fixation of the standard rent can no longer be considered to be reasonable. The said provisions would have been struck down as having now become unreasonable and arbitrary but we think it is not necessary to strike down the same in view of the fact that the present extended period of the Bombay Rent Act comes to an end on 31st March, 1998. The Government''s thinking reflected in various documents itself shows that the existing provisions have now become unreasonable and therefore, require reconsideration. The new bill is under consideration and we leave it to the Legislature to frame a just and fair law keeping in view the interest of all concerned and in particular the resolution of the State Ministers for Housing of 1992 and the National Model Law which has been circulated by the Central Government in 1992.�

On the failure of the legislature to address itself on this question the Court particularly a writ Court cannot sit with folded hands. The Supreme Court in AIR 1996 SC 2410, has held in para 11 as under:

�It is wellsettled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution, can take cognizance of the entire facts and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fairplay. If there be any unfair advantage gained by a party priorly before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.�

Rent Control Act confers a reasonable advantage upon the tenant of protection against arbitrary eviction. Tenant under the Rent Control Act cannot be evicted except on specific grounds like bona fide need of the landlord, arrears of rent, sub letting and material alteration etc. This advantage is also coupled with the advantage of immunity from enhancement of rent. The latter advantage cannot be said to be either reasonable or equitable. The Supreme Court in the aforesaid authority of S.I.P. v. L.I.C., AIR 1996 SC 2410, has laid down that while granting relief to a party the writ Court can very well ask the said party to shed the unfair advantage which it gained under the impugned order. By slightly extending the said doctrine it may safely be held that while granting the reasonable advantage to the tenant conferred upon him by the Rent Control Act the tenant may be asked to shed the unreasonable arbitrary advantage conferred upon him by the said Rent Control Act. The writ Court therefore while granting of maintaining the relief against arbitrary ejectment to the tenant can very well ask the tenant to shed the unreasonable benefit of the Rent Control Act granted to him in the form of immunity against enhancement of rent, however, inadequate the rent might be. Tenant will have to shed the undue advantage of immunity from enhancement of rent under the Rent Control Act to barter his protection from arbitrary eviction provided for by the said Act.

Accordingly, I am of the opinion that while granting relief to the tenantpetitioner against ejectment writ Court is fully empowered to enhance the rent to some reasonable rent. On the suggestion of the Court, learned Counsel for the tenant petitioner agreed to reasonable enhancement of rent. The Court is of the opinion that in view of extent of accommodation and the locality where accommodation in dispute is situate, Rs. 1,000 per month rent would be reasonable rent in the facts and circumstances of the case. Learned Counsel for tenantpetitioner argued that enhancement of rent form Rs. 27.50 to Rs. 1,000/per month would be quite unreasonable. In my opinion looking to the prevalent of rent Rs. 1,000/ per month is not an unreasonable enhancement. In fact current rate of rent, of the property in dispute will be several times more than Rs. 1,000 per month.

Accordingly, while allowing the writ petition and setting aside judgment of the Revisional Court, it is directed that w.e.f. May, 2004 onwards tenantpetitioner shall pay rent to the landlordrespondent at the rate of Rs. 1,000/per month.