Decided on April 10,1946


Referred Judgements :-



Chagla, J. - (1.)THIS is an appeal from the judgment of Mr. Justice Kania. The appellant is the landlady of premises situated at Nepean Sea Road. Respondent No.2 is her tenant and respondent No.1 is the Rent Controller of Bombay. It seems that the premises with which we are concerned were let out to respondent No.2 by the appellant on May 1, 1943, and on July 8, 1943, the appellant gave to respondent No.2 a notice to quit. That notice to quit was waived and on July 16, 1943, a fresh tenancy agreement was arrived at under which respondent No.2 agreed to pay rent at the rate of Rs. 400 a month. THIS agreement was carried out up to March, 1945, and respondent No.2 went on paying rent to his landlady at that rate. On March 8,. 1945, respondent No, 2 applied to the Rent Controller to fix the standard rent of the premises which he was occupying, and the Rent Controller on July 9, 1945, fixed the standard rent of the premises at Rs. 270 per month. The appellant then filed this petition both against the Rent Controller and her tenant for a writ of certiorari alleging that the order of the Rent Controller in fixing the standard rent was without jurisdiction. The petition was heard by Mr. Justice Kania and he took the view that as under the Rent Act an appeal was provided to the Collector, this was not a case for the issue of the writ of certiorari. It seems from the judgment of the learned Judge that he did not decide the petition on merits but contented himself with dismissing the petition on this short point.
(2.)NOW the position with regard to the Rent Act (Bom. Act VII of 1944) is this. Section 4, which is the definition section, defines the "standard rent" to mean (a) the rent at which the premises were let on September 1, 1940, or (6) where they were not let on September 1, 1940, the rent at which they were last let before that date, or (c) where they are first let after September 1, 1940, the rent at which they are first let, or (d) in any of the cases specified in Section. 1. 3 the rent fixed by the Controller. When we turn to Section 13, it provides three cases where the Rent Controller may fix the standard rent: one is where any premises are first let after September 1, 1940, and the rent at which they are first let is in the opinion of the Controller excessive; second where, by reason of any premises having been let at one time as a whole and at another time in parts, or by reason of a tenant having sub-let a part of any premises let to him, or for any other reason, any difficulty arises in giving effect to this Part; or third where, in the case of any premises let furnished, it is necessary to distinguish, for the purpose of giving effect to this Part, the amount payable as rent from the amount payable as hire of furniture. NOW it is clear that Section 1h sets up a tribunal of limited jurisdiction and the ambit of jurisdiction of that tribunal is circumscribed and must be circumscribed by the provisions of that section. It is only in the cases mentioned in Section 13 that the Controller can exercise his jurisdiction and fix the standard rent. Section 14 is the appeal section which provides an appeal from a decision of the Controller by a person aggrieved by an order passed by the Controller under the provisions of that part of the statute.
Now it is true that the learned Judge below has not decided the petition on merits. But both Mr. Taraporewalla and Mr. Maneksha have invited us to give our decision on the merits of the petition. This is not a case where the learned Judge below has decided a preliminary point, an issue having been raised only on that point and the merits not having been gone into. In this case the petition was heard on merits, and after the petition had been heard on merits the learned Judge thought that it was sufficient to dispose of the petition on a short point. Therefore all the materials are before us which were placed by the parties before the trial Judge and it is open to us to decide the petition on merits.

The view we take on the facts as appearing from the record is that the Controller had jurisdiction to fix the standard rent in this case. The petitioner in para. 8 of her petition says that the Rent Controller determined the standard rent on the basis of the rent of the property last let before September 1, 1940. She goes on to say that he determined that rent at Rs. 250 per month" and to that he added Rs. 7 for hire of Gas Cooker and two Electric Geysers and Rs. 13 for certain work done by the petitioner. Now it appears from the affidavit in reply of the tenant to which there is no answer in rejoinder that the contention of the tenant who really made the application to the Controller for fixing the standard rent was that the tenement let out to him was much smaller than the tenement which was let out to other tenants prior to September, 1940, and, therefore, his case was that the standard rent was really less or should be freed at a less amount than that which the tenant was paying to whom the premises were let prior to September 1, 1940. On the other hand the contention of the landlady seems to have been that the whole of the tenement was let out and improvements were effected in the tenement. These rival contentions were before the Controller, and on those rival contentions the Controller came to the conclusion that the proper standard rent was Rs. 270 per month.

(3.)IT is contended by Mr. Setalvad that inasmuch as the basis of the standard rent as alleged by him was the letting out of the premises prior to September, 1940, the Controller had no jurisdiction to do so. In our opinion that contention is untenable because looking at the scheme of the Act Section 4 which defines "standard rent" fixes the standard rent in certain cases, one of the cases being where the premises were not let on September 1, 1940, but they were let before September 1,1940, in which case the rent at -which they were last let before that date. But you might have a case where, after they were last let, improvements might be effected by the landlord; or you might have a case where the tenement let out is not identical with the tenement let out prior to September 1, 1940. Therefore the standard rent would not be what is provided for in Section 4 but something more or something less. If these difficulties occur, then. Section 13, Sub-clause (says that those difficulties are to be resolved by the Controller; and taking those difficulties into consideration, he has to fix the standard rent because the language of Section 13, Sub-clause ("or for any other reason, any difficulty arises in giving effect to this Part" is clear, and I might point out that the Controller in his order specifically states that he has fixed the standard rent of these premises under Section 13 (b) of the Act. In view of this state of the record, we feel that it is not possible to contend that the Controller had no jurisdiction to make the order.
In view of our decision on this point, it is really unnecessary to consider the other points urged at the bar. But as the points are of some importance and as they were argued at some length and as they formed the basis of the learned Judge's judgment, we will deal with those points also.


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