Pushpadant vs Shakharam

Shinde, C.J.—This is a petition under Article 227 of the Constitution. The non-applicant applied for the determination of the fair rent u/s 7, Sthan Niyantran Vidhan Samvat 2006. The Controller fixed the rent at Rs. 13-8-0 per month. Against that decision an appeal was filed before the District Judge, Mandleshwar. The District Judge allowed the appeal and fixed the fair rent at Rs. 7-8-0 per month. Against this order this petition has been filed.

The learned Counsel for the Petitioner has raised two contentions. His first contention is that u/s 9(2)(a) of the Sthan Niyantran Vidhan after the institution of the suit it was incumbent on the Controller to pass an order that the tenant should deposit rent at the rate agreed upon between, the parties until the decision of the suit. As such an order was not agreed upon between the parties until the decision of the suit. As such an order was not passed, the decision of the Controller is ''ultra vires''. The second contention is that u/s 9(3) of the Sthan Niyantran Vidhan the appeal should have been filed within 30 days of the decision.

As the appeal has not been filed within the prescribed period, the appeal was time barred. It is now well settled that powers under Article 227 of the Constitution are to be exercised most sparingly and only in appropriate cases in order to keep the subordinate Courts within the bounds of their authority and not for correcting mere errors (vide - Waryam Singh and Another Vs. Amarnath and Another, . We have, therefore, to see whether the Courts below have transgressed the bounds of their Jurisdiction in this case. The first contention relates to the non-compliance of an order contemplated by Sub-section (2)(a) of Section 9, Sthan Niyantran Vidhan. This Sub-section reads as follows:

,slk ckn izLrqr gksus ij HkkM+k fu;U=.k vf/kdkjh HkkM+k ifgys ls Bgjk gqvk gksus dh n''kk esa ;g vkKk nsxk fd ckn dk fu.kZ; gksus rd HkkMsnkj ckn izLrqr djus ds fnukad ls ns; HkkM+k fdjk, ukes ds fuoZU/kksa ds vuqlkj mlds dk;kZy; esa tek djrk jgs A

Clause (c) of Sub-Section 2(a) reads as follows:

HkkM+snkj dh vksj ls HkkM+k tek djus esa =qVh gksus dh n''kk esa ;fn og oknh gS rks mldk okn fujLr dj fn;k tkosxk vkSj ;fn og izfroknh gS rks mlds izfrokn dk LoRo fujLr dj fn;k tkosxk A

Sub-Section 2(a) enjoins that after the institution of the suit the Controller shall give an order to the tenant to deposit rent in his office for the period dating from the institution of the suit till the decision of the suit. This provision, no doubt, appears to be mandatory. But it does not affect the jurisdiction of the Controller to try a suit. It is merely an error of law. Consequently even if the Controller fails to pass an order it does not affect his jurisdiction to try the suit.

The jurisdiction of the Controller does not depend upon passing of such an order. Sub-Section 2(c) also imposes a penalty upon the tenant in case of failure. This Sub-section also does not impose any restrictions on the jurisdiction of the Court. In these circumstances there is no occasion to invoke powers under Article 227 of the Constitution.

The second contention relates to the period of limitation. The argument of the learned Consel briefly is that the period of limitation for filing an appeal having been categorically fixed as 30 days, the period required for obtaining the copies of the order cannot be excluded in computing the period of limitation. This argument loses sight of the provisions of Section 29, Limitation Act, Section 29(2), Limitation Act, runs as follows:

Where any special or local law prescribes for any suit, appeal or application a period of limitation diffrent from the period prescribed therefore by the first schedule, the provisions of Section 3 shall apply, as if such period were prescribed therefore in that schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law.

(a) the provisions contained in Section 4, Sections 9 to 18 and Section 22 shall apply only in so far as and to the extent to which, they are not expressly excluded by such special or local law; and

(b) the remaining provisions of this act shall not apply.

That the Sthan Niyantran Vidhan is a special law cannot be disputed. The preamble of the Act itself makes this quite clear. The Sthan Niyantran Vidhan does not expressly exclude the provisions contained in Section 4, Sections 9 to 18 and Section 22. Consequently these sections are applicable to Sthan Niyantran Vidhan. Section 12(2), Limitation Act, clearly enjoins that in computing the period of limitation prescribed for an appeal the time requisite for obtaining the copy of the decree, sentence or order appealed from shall be excluded.

In the grounds of appeal that was filed before the District Judge it is clearly mentioned that if the period requisite for obtaining copies is excluded, the appeal is within time. It appears that 4 days were required to obtain the certified copy of the Controller''s order. In computing the period of limitation if this period is excluded, the appeal filed before the District Judge is within time. Consequently this contention has no force.

Accordingly the petition is dismissed with costs.

Dixit, J.

I agree that this petition should be dismissed with costs because in this case neither the Rent Fixation Authority nor District Judge acted without jurisdiction, or committed such a grave irregularity as to prejudicially affect the applicant. The contention that the Rent Fixation Authority had no jurisdiction to determine fair rent without making an order u/s 9(2)(a), Madhya Bharat Sthan Niyantran Vidhan, fails to take into account the distinction between jurisdiction and the- exercise of jurisdiction.

The essential conditions for giving jurisdiction to the Rent Fixation Authority are (1) the existence of a tenancy, (2) and an application in accordance with Sections 7 and 9 of the Act. The making of an order u/s 9(2)(a) is the exercise of a power by the Rent Fixation Authority after he has acquired jurisdiction. It is not a condition precedent to jurisdiction. This is plain from the language itself of Section 9(2)(a).

The jurisdiction of the Rent Fixation Authority does not also depend on the tenant''s compliance with an order passed u/s 9(2)(a). The non-compliance only results in the tenant not being heard so that if he is the applicant his claim for determination of fair rent is dismissed for default and if the landlord is the applicant then the tenant''s reply is struck off and the fair rent determined after hearing the landlord alone.

It is no doubt incumbent on the Rent Fixation Authority to make an order u/s 9(2)(a) but the order when made is entirely for the benefit of the landlord. The landlord can waive benefit of the provision u/s 9(2)(a). When, therefore, in a case the Rent Fixation Authority omits to make an order u/s 9(2)(a) and the landlord allows the proceedings to be concluded without any objection, then he must be taken to have waived the benefit of the provision. The landlord cannot subsequently object to the omission and claim to have the case sent back to the Rent Fixation Authority for determination of fair rent after making an order u/s 9(2)(a).

On the question of the computation of the period of limitation in an appeal u/s 9(3), I agree with my Lord the Chief Justice that Section 29(2)(a), Limitation Act would be attracted to an appeal preferred u/s 9(3) and as such u/s 12, Limitation Act the time taken for obtaining a certified copy of the order of the Rent Fixation Authority would be excluded. A similar view has been taken in- Imperial Bucket Co., a firm Vs. Sm. Bhagwati Basak, with regard to appeals under 32(1), West Bengal Premises Rent Control Act, 1948.