N.K.VAKIL - (1.) The petitioner in Civil Revision Application No. 13 of 1962 and Civil Revision Application No. 26 of 1962 was the original plaintiff in Regular Civil Suit No. 16 of 1959. He had filed a suit against the present opponent in both these revision applications for possession on the ground that it was required bona fide for the personal use of starting a booksellers business in the suit premises. The suit premises were a part of a whole building which the petitioner had purchased sometime before he started the proceedings. After the suit was filed the respondent had also filed a miscellaneous application to determine the standard rent. In the suit also the defendant-respondent had raised the contention that the agreed rent which was Rs. 22/was not the standard rent. In the suit on merits the trial Court decided in favour of the plaintiff. As regards the standard rent the trial Court held that the standard rent was Rs. 8/inclusive of all taxes. As regards the standard rent the same was the finding in the miscellaneous application No. 74 of 1959. The defendant being aggrieved by the finding on merits filed an appeal No. 2 of 1961 and the present petitioner the plaintiff being aggrieved by the order as regards the standard rent filed two proceedings one being appeal No. 13 of 1961 against the order passed as regards the standard rent in the suit and the other was Revision Application No. 9 of 1961 against the order passed in the Miscellaneous Application No. 74 of 1959. The learned Assistant Judge allowed appeal No. 2 of 1961 and reversed the trial Courts decree and dismissed the suit. As regards the standard rent in both the proceedings the learned Assistant Judge confirmed the order of the trial Court. Being aggrieved the plaintiff approached this Court and filed three separate proceedings. Civil Revision Application No. 25 of 1962 was filed against the dismissal of his suit by the Assistant Judge reversing the decree of the trial Court. Civil Revision Application No. 26 of 1962 was filed by him against the order of the learned Assistant Judge in the appeal No. 13 of 1961 and Civil Revision Application No. 13 of 1962 against the order as regards the standard rent in Revision Application No. 9 of 1961. I have disposed of the Civil Revision Application No. 25 of 1962 by a separate Judgment. In the two Civil Revision Applications now under consideration the petitioner wants to rely on sub-sec. (2) of sec. 29 of the Bombay Rent Control Act and urges that the Court should enter into evidence to see whether the orders passed by the Assistant Judge under sec. 29(1)(b) were according to law or not. It is contended however on behalf of the respondent that this Court has no jurisdiction to revise the orders passed by the Assistant Judge under the amended sub-sec. (2) of sec. 29 as these orders had been passed before this amendment came into force in 1965. In Civil Revision Application No. 26 of 1962 also the question was agitated but it could be disposed of even on an assumption that this Court had such jurisdiction to decide under the amended sub-sec. (2) of sec. 29. There fore the important question that arises for consideration in these two revision Application is whether the amended sub-sec. (2) of sec. 29 can be held to have retrospective effect so that this Court could assume powers given under the amendment and revise the orders passed by the learned Assistant Judge before the amendment came into effect in respect of the fixation of the standard rent.
(2.) The question arises for consideration under the following facts :- Mr. Karlekar the learned advocate for the petitioner submitted that the standard rent was not fixed in accordance with the provisions of law and therefore the findings both in the suit as well as the miscellaneous application No 74 of 1959 ought to have been set aside by the appellate Court. But the appellate Court also did not approach the question on any legal basis. Therefore this Court under its power of revision should set aside that order. To support the submission it was pointed out that by virtue of sec. 3 of the Bombay Merged States (Laws) Ordinance VI of 1949 which came into force on 1-1-1960 and the Bombay Act IV of 1950 called the Bombay Merged States (Laws) Act. 1950 which came into force on the 20th March 1950 the Bombay Rents Hotel and Lodging House Rates Control Act 57 of 1957 had been extended to and enforced in the merged states including the erstwhile state of Baroda but it had been amended in its application to the State of Baroda in the following manner:-_ Amendment of sec. 5. For clause (10) of sec. 5 the following shall be substituted:- (10) Specified date means (a) In case of any premises let for the purpose of residence the first day of January 1943 and (b) In case of any premises let for non-residential purpose the first day of January 1944. (10A) standard rent in relation to any premises let for the purpose of residence or for non-residential purpose means:- (a) where the standard rent is fixed by the Controller under the House Rent Control Order 1947 made by the Baroda Government such standard rent or (b) where the standard rent is not so fixed subject to the provisions of sec. 11 (i) the rent at which the premises were let on the specified date or (ii) where they were not let on the specified date the rent at which they were last let before that date or (iii) where they were first let after the specified date the rent at which they were first let or (iv) in any of these cases Specified in sec. 11 the rent fixed by the Court; In the instant case it is not in dispute that the suit premises are situated within the territory which formerly belonged to the State of Baroda and also that clause (10) of sec. (5) amended as aforesaid and the added clause (10A) are applicable to the present case. It is also an undisputed fact that the suit premises were let out for the first time for a non-residential purpose after the 1st of January 1944. The other facts which have been established and which cannot be challenged are that excluding the suit premises which only consists of one room about 11-6 x 4-10 in area on the ground floor the rest of the building which consists of two other rooms a kitchen and a bath-room on the ground floor the whole of the first floor and the second floor is in possession of the plaintiff landlord. The further fact is that before the suit portion was given for the first time for non-residential purpose to the present respondent the whole house including the suit portion was rented out for Rs. 11/per month for residential purpose. Mr. Karlekar urged that having regard to the undisputed facts on the proper construction of the provisions of law aforesaid the Courts below ought to have held that Rs. 22/i. e. the agreed rent was the standard rent. In my view this submission requires careful consideration. Clause 10(b) of sec. 5 provides that in case of premises let for non-residential purpose the specified date will be 1-1-1944. Clause (10A) provides that standard rent in relation to premises let for non-residential purpose where the standard rent is not fixed by the Controller under the House Rent Control Order 1947 made by the then Baroda Government subject to the provisions of sec. 11 shall be the rent at which the premises is let on the specified date. But if such premises were not let on the specified date then the standard rent shall be the rent at which they were last let before the specified date. If however they were not so let before the specified date for non-residential purpose then the standard rent will be the rent at which premises are first let for nonresidential purpose after the specified date. In the present case the suit premises undisputedly were let out for the first time after the specified date for a nonresidential purpose at the rent of Rs. 22/p.m. Therefore subject to the power of the Court under sec. 11 to finally decide the question prima facie Rs. 22/p.m. would be the standard rent. This in my judgment is the correct interpretation of sec. 5 as amended and applicable to the suit premises. When we go to the judgments of both the Courts I find that proper construction has not been placed on the aforesaid provision by the learned Judges. The trial Court has observed as follows:- It is clear from the evidence of witness Shantilal that Darji Jethalal was occupying entire house on 1-1-1944. The result then is that the suit premises were not let out on 1-1-44. That being so the rent at which they were last let out before 1 will be the standard rent of the suit premises as defined in sec. 5 sub-sec. 10 clause (b) sub-clause (2) of the Rent Act. With due respect I find that the reasoning is not cogent and is fallacious. All the sub-clauses of added clause (10A) of sec. 5 have not been taken into consideration. The crucial fact that the rent of the suit premises was to be fixed in relation to it being rented out for non-residential purpose and the fact that it was not rented at any time before the specified date for non-residential purpose but was for the first time rented after the specified date for non-residential purpose have not been taken into consideration at all. When we turn to the judgment of the learned Assistant District Judge the question has been dealt with by him as follows :- Under sec. 5(10)(b)(i) as applicable in the erstwhile state of Baroda the rent at which the premises let for any non:-residential purpose were let on 1-1-44 and the rent at which premises let for residential were let on 1-1-43 should be considered the standard rent. But it is not necessary that the said Premises should have been first let as business premises or residential premises respectively. Therefore the rent at which the suit premises were first let on 1-1-44 and failing that on 1-1-43 should be the standard rent. Apart from this as the suit premises were not let to any one on 144 under sec. 5(10)(b)(ii) the rent at which they were last let before that date will be the standard rent.
(3.) Here again there is no discussion as to why sub-clause (iii) of clause (10A)(b) would not be applicable in the present case. With due deference in my view the reasoning is faulty and the conclusion reached was not correct. The correct construction of the amended clauses (10) and the added clause (10A) is as pointed out hereinabove.;