S.P.SINGH, J. - (1.) THE petitioner herein has Impugned the order passed by the Commissioner, Bhagalpur Division exercising revisions jurisdiction under the Bihar Buildings (Lease, Rent and Eviction) Control Act. By the impugned order the revisional authority had set aside the order passed by the Controller fixing lair rent at the rate of 1.15 per sft. and modified the same to 62.5 paise per soft, in view of the judgment of this Court reported in AIR 1994 Patna 28. He has taken the view consistent with the aforesaid judgment that in fair rent fixation proceeding enhancement of rent cannot he permitted in excess of 25 per cent of the rent earlier payable by the tenant to the landlord. The said order of the Commissioner is contained in Annexure -I to the writ petition.
(2.) IT appears that one of us sitting singly (B.P. Singh, J.) decided in the Secretary, Balika Shiksha Bhawan V/s. State of Bihar 1990 (1) PLJR 61 that the proviso to Sec. 8(1)(c) cannot be so read as to mean that enhancement of rent cannot be allowed beyond 25 per cent of the rent earlier paid in a fair rent fixation proceeding. The view taken in the aforesaid case was dissented from in a judgment of another learned single Judge of this Court, in Ram Adhin Singh V/s. Stare of Bihar 1993 (1) PLJR 637 : 1993(1) BLJ 673, who held that the judgment rendered by the single Judge earlier was per incursions. Ultimately, the matter came up for consideration before a Division Bench of this Court, and the Division Bench by its judgment in Saraswati Devi and Ors. V/s. Commissioner of Bhagalpur 1996 (1) PLJR 924 has taken view somewhat consistent with the view taken in Secretary, Balika Shiksha Bhawan (supra) and has held that the enhancement of rent may be permitted even beyond 25 per cent over and above the rent last payable.
(3.) COUNSEL for the respondents has brought to our notice a judgment of a learned Single Judge of this Court, in Jainarayan Prasad Choudhary V/s. The State of Bihar and Ors. 1996 (2) PLJR 896 : 1997 (1) BLJ 101. The learned Judge proceeded to dispose of the writ petition before him under the impression that the writ petition had been referred to him by a Division Bench in view of divergence of views between two Judges on the construction of Sec. 8(1)(c) of the Bihar Buildings (Lease, Rent and Eviction) Control Act. After considering the two judgments the learned Judge has approved the view taken in Ram Adhin Singh (supra). It appears from a perusal of the judgment that the judgment of the Division Bench of this Court in Saraswati Devi (supra) was not brought to the notice of the learned single Judge, as it appears from the reasoned judgment that there is no reference to the aforesaid judgment of the Division Bench of this Court. It also does not appear to be correct that the matter had been referred to the learned single Judge by a Division Bench in view of divergence views between two learned Judges constituting the Bench. Be that as it may, the judgment reported in 1996 (2) PLJR 896 : 1997 (1) BLJ 101 must be held to be per incuram having been rendered in ignorance of the Division Bench judgment of this Court taking a contrary view. In these circumstances, we allow this writ petition to the extent that we set aside the impugned order passed by the Commissioner, and remit the matter back to him to consider the revision in the light of the law declared by the Division Bench of this Court in Saraswati Devi is case (supra). It will be open to the parties to urge all contentions before him apart from the question as to the extent to which the enhancement in rent can be allowed. We also direct respondent No. 2 to deposit the rent upto date at the rate determined by the Rent Controller under the Act within a period of two months from today. If any amount has been deposited by respondent No. 2 by way of rent pending the revision before the Commissioner, the petitioner will be entitled to withdraw the same.;