GOYAL, J. - (1.) FOLLOWING common question of law arises in these four appeals:- " Whether the proceedings for fixation of standard rent under the repealed Act pending on the date of commencement of the Rajasthan Rent control Act, 2001, would be governed by the Rajasthan Premises (Control of Rent & Eviction) Act 1950 (for short the old Act) or by the provisions of Rajasthan Rent Control Act 2001 (New Act) which came into force w. e. f. 1. 4. 03. ?"
(2.) CIVIL First Appeal Nos. 294/03, and 373/2003, respectively filed by tenants and landlord are preferred against the judgment and decree dated 29. 5. 2003, passed in CIVIL Suit No. 28/2000, whereby learned Additional District Judge No. 7, Jaipur City, Jaipur, while dismissing the suit for eviction fixed Rs. 2500/- per month as standard rent under Section 6 of the Old Act. The tenants have come against the order of fixation of standard rent while the landlord has filed the appeal challenging the judgment and decree dismissing the suit for eviction as well as fixation of standard rent at lower side. Civil Misc. Appeal No. 1227/2003, is preferred by tenant Prahlad Narain against the impugned order dated 10. 4. 2003, by which learned Additional District Judge No. 6, Jaipur City. Jaipur, provisionally fixed the rent under Section 7 of the Old Act at the rate of 8,000/-, in Civil Suit No. 195/2001, filed for eviction and for fixation of standard rent as provided under Section 6 of the Old Act. Civil Misc. Appeal No. 1617/2003, is preferred against the order dated 4. 7. 2003, by which learned Additional District Judge No. 6, Jaipur City, Jaipur, provisionally fixed standard rent at the rate of Rs. 2,000/- under Section 7 of the Old Act, in Civil Suit No. 41/2002, filed for fixation of standard rent under Section 6 of the Old Act. Before adverting to the rival submissions, the relevant provisions of the Old & New Act are reproduced as under:- Old Act Section 6. Fixation of Standard rent:- (1) Where no rent has been agreed upon or where for any reason the rent agreed upon is claimed to be low or excessive, the landlord or the tenant may institute a suit in the lowest court of competent jurisdiction for fixation of standard rent for any premises. (2) the court shall, after holding such summary inquiry as it may consider just and necessary determine the standard rent for such premises and shall, in doing so, act according to the following principles, namely:- (a) Where the premises are let for residential purposes or for any of the purposes of the public hospital aushadhalaya or dawakhana, a recognised educational institution, a public library or reading room or any orphange the standard rent shall not exceed the basic rent increased by fifty percent thereof; and (b) Where the premises are let for any other purposes, the standard rent shall not exceed two and half times the basic rent thereof; Provided that where the premises have been First let after the first day of January, 1965, the standard rent shall not exceed the basic rent thereof:- Provided further that where the fair rent or standard rent for any premises has been determined or redetermined by any court under this Act or by any authority under any law or order repealed by section 30 before the commencement of the Rajasthan Premises (Control of Rent and Eviction) (Amendment) Ordinance, 1975 and the amount of such fair rent or standard rent is the same as would be determinable as standard rent by the Court under this section the fair rent or standard rent previously determined or redetermined shall not be disturbed. Explanation:- For the purposes of this sub-section, the basic rent of any premises shall mean the rent at which the premises were let on the first day of January, 1962 and, if not let on that day, the rent at which they were first let after that day. (3) Where for any reason it is not possible to determine the standard rent of any premises on the principles set out in sub-section (2); the court shall determine such rent having due regard to the prevailing rent or standard rent, for similar premises in the same locality, the various amenities such as electricity, water connection, sanitory fittings and the like, attached to the premises, the cost of construction, maintenance and repairs thereof, the special reason, if any; proved by the plaintiff and other relevant considerations. (4) In fixing the standard rent for any premises under this section, the court shall determine such rent in respect of the premises in an unfurnished state but may also determine additional charge to be payable on account of fittings or furnishing and it shall be lawful for the landlord to recover such additional charge from the tenant. (5) In every case in which the court determines the standard rent for any premises under this section it shall appoint a date from which the standard rent so determined shall be deemed to have effect; Provided that such date shall, in the case of a tenant who institutes a suit under this section after the expiration of six months from the commencement of his tenancy on the ground of the rent agreed upon being excessive, be the date of the institution of such suit or such later date as the court in the circumstances of the case deem reasonable. Section 7. Fixation of Provisional rent:- (1) Upon the institution of a suit under section 6, the court shall forthwith make an order fixing in a summary manner a provisional rent for the premises in question, which shall be binding on all parties concerned and shall remain in force till a decree fixing the standard rent therefore is finally made in such suits. (2) The provisional rent fixed under this section shall also apply to such arrears of rent as in the case of a tenant who has instituted within six months from the commencement of the tenancy a suit under section 6 on the ground of the rent agreed upon being excessive relate to the period intervening between such commencement and institution. (3) A suit for the recover of arrears of rent to which the provisional rent fixed under this section is applicable shall be stayed by the court upon the payment by the tenant in court of the total amount due to the landlord on the basis of such provisional rent. (4) Any failure to pay the provisional rent for any month by fifteenth day of the next following month shall render the tenant liable to eviction under clause (a) of sub-section (1) of section 13, and all sums due from the tenant as such rent shall be recoverable from him as if the order under sub-section (1) were a decree of the court in a suit for periodical payments. (5) All amounts paid as provisional rent shall be adjusted towards payment of the standard rent finally decreed. New Act Section 6. Revision of rent in respect of existing tenancies- (1) Notwithstanding anything contained in any agreement, where the premises have been let out before the commencement of this Act, the rent thereof shall be liable to be revised according to the formula indicated below:- (a) where the premises have been let out prior to 1. 01. 1950, it shall be deemed to have been let out on 1. 01. 1950, and the rent payable at that time shall be liable to be increased at the rate of 7. 5% per annum and the amount of increase of rent shall be merged in such rent after ten years. The amount of rent so arrived at shall again be liable to be increased at the rate of 7. 5% per annum in similar manner upto the year of commencement of this Act; (b) Where the premises have been let out on or after 1. 01. 1950, the rent payable at the time of commencement of the tenancy shall be liable to be increased at the rate of 7. 5% per annum and the amount of increase of rent shall be merged in such rent after ten years. The amount of rent so arrived at shall again be liable to be increased at the rate of 7. 5% per annum in similar manner upto the year of commencement of this Act. Illustration:-If the rent was Rs. 100/- per month on 1. 01. 1950, it shall become Rs. 175/- per month on 1. 01. 1960. It shall become Rs. 306. 30 per month on 1. 01. 1970 and Rs. 536. 30 per month on 1. 01. 1980. (2) Notwithstanding anything contained in sub-section (1), where the period of ten years for merger of increase of rent under sub-section (1), is not completed upto the year of commencement of this Act, the rent at the rate of 7. 5% per annum shall be increased upto the year of the commencement of this Act and the amount of increase of rent shall be merged in rent. (3) The rent arrived at according to the formula given in sub-sections (1) and (2) shall, after completion of each year from the year of commencement of this Act, again be liable to be increased and paid at the rate of 5% per annum and the amount of increase of rent shall be merged in such rent after ten years. Such rent shall further be liable to be increased at similar rate and merged in similar manner till the tenancy subsists. (4) The rent revised as per formula given under sub-section (1) or sub-section (2) shall be payable, after the commencement of this Act, from the date agreed upon between the landlord and the tenant or where any petition is filed in a Rent Tribunal from the date of filing of such petition. Section 7. Revision of rent in respect of new tenancies.- (1) In the absence of any agreement to the contrary, the rent of the premises let out after the commencement of this Act shall be liable to be increased at the rate of 5% per annum and the amount of increase of rent shall be merged in such rent after ten years. Such rent shall further be liable to be increased at the similar rate and merged in similar manner till the tenancy subsists. (2) Any agreement for increase of rent in excess of 5% per annum shall be void to that extent. Section 14. Procedure for revision of rent.- (1) The landlord may seek revision of rent under section 6 or section 7 by submitting a petition before the Rent Tribunal accompanied by affidavits and documents, if any. (2) On filing of such petition the Rent Tribunal shall issue notice accompanied by copies of petition, affidavits and documents to the opposite party fixing a date not later than thirty day from the date of issue of notice. The opposite party may file reply, affidavits and documents after serving the copies of the same on the petitioner, within a period not exceeding thirty days from the date of service of notice. The service of notice shall be effected through process server of the Tribunal or Civil Court as well as by registered post, acknowledgment due. Notice duly served by any of these methods shall be treated as sufficient service. (3) The petitioner may thereafter file rejoinder, if any, after serving the copy to the opposite party, within a period not exceeding fifteen days from the date of service of the reply. (4) Rent Tribunal shall thereafter fix a date of hearing, which shall not be later than ninety days from the date of service of notice on the tenant. Section 29. Act to have overriding effect.- The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other Law for the time being in force or in any instrument having effect by virtue of any Law other than this Act. Section 32. Repeal and savings.- (1) The Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (Act No. 17 of 1950) shall stand repealed with effect from the date notified under sub-section (3) of section 1 of this Act. (2) The repeal under sub-section (1) shall not affect,- (a) anything duly done or suffered under the enactment so repealed; or (b) any right, title, privilege, obligation or liability acquired or incurred under the enactment so repealed; or (c) any fine, penalty or punishment incurred or suffered under the provisions of the enactment so repealed. (3) Notwithstanding the repeal under sub-section (1),- (a) all applications, suits or other proceedings under the repealed Act, pending on the date of commencement of this Act before any court shall be continued and disposed of, in accordance with the provisions of the repealed Act, as if the repealed Act had continued in force and this Act had not been enacted. However, the plaintiff within a period of one hundred and eighty days of coming into force of this Act shall be entitled to withdraw any suit or appeal or any other proceeding pending under the repealed Act with liberty to file fresh petition in respect of the subject matter of such suit or appeal or any other proceeding under and in accordance with the provisions of this Act and for the purpose of limitation such petition shall, if it is filed within a period of two hundred and seventy days from the commencement of this Act, be deemed to have been filed on the date of filing of the suit which was so withdrawn and in case of withdrawal of appeal or other proceeding, on the date on which the suit, out of which such appeal or proceeding originated, was filed; (b) the provision for appeal under the repealed Act shall continue in force in respect of applications, suits and proceedings disposed of thereunder; (c) all prosecutions instituted under the provisions of the repealed Act shall be effective and disposed of in accordance with such repealed law; (d) any rule or notification made or issued under the repealed Act and in force on the date of commencement of this Act shall continue to govern the pending cases. Section 6 of the Rajasthan General Clauses Act, 1955 reads as under:- 6. Effect of Repeal (1) Where any Rajasthan law repeals any enactment hitherto made or hereafter to be made then unless a different intention appears the repeal shall not- (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d) affect any fine, penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, fine, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such fine, penalty, forfeiture or punishment, may be imposed, as if the repealing law had not been passed. (2) The provisions of this section shall also apply upon the expiry or withdrawal of any Rajasthan law [as if such law had not expired or, as the case may be, had not been withdrawn]. Provided that the provision contained in clause (a) of sub- section (1) shall not so apply. All the three Civil Suits for eviction and fixation of standard rent were instituted prior to the New Act came into force, while the impugned judgment/orders were passed subsequent to that.
(3.) LEARNED counsel Mr. R. K. Agarwal appearing for the tenants contended that the repeal of the Old Act is accompanied by the New Act on the same subject and as such the provisions of the New Act will apply as the New Act indicates different intentions with regard to the right of the landlord for increase in rent; that the provisions of the New Act will have to be looked into for the purposes of determining the standard rent; that a bare reading of Section 6 of the New Act reveals that the Legislature intended to give retrospective effect to the revision of rent; that the impugned order was passed after the New Act came into force and no decree/order inconsistent with the provisions of the New Act could be passed after it came into force; that a bare perusal of the Section 32 of the New Act reveals that only the forum and procedure with regard to the pending cases have been saved and the quantum or the rate of increase in the rent has not been saved; that the trial court committed manifest error of law in not adverting to the non-obstante clause as contained in Section 6 of the New Act as the intention of the Legislature is manifest from the aforesaid non-obstante clause; that the rent after commencement of the New Act can be revised only in accordance with the formula indicated in Section 6 of the New Act and not otherwise; that Section 29 of the New Rent Control Act relating to the overriding effect was not taken into consideration by the trial court as the said Section stipulates in unambiguous terms that the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act and it leaves no room for any doubt that though the pending cases were to be decided by courts in which they were pending but no decree inconsistent with the provisions of the New Act could be passed and the impugned decree/orders being inconsistent with the provisions of Section 6 of the New Act are bad in law; that it could not be the legislative intent that for a suit/proceeding filed immediately before the commencement of the New Act for fixation of standard rent and another filed immediately after the commencement of the New Act but both decided after the commencement of the New Act for the same premises, would have determination of different quantum of rent and to remove such incompatibility, Section 29 was inserted in the New Act and thus Section 6 of the New Act would be applicable to all pending cases for determination of standard rent. He placed reliance upon following judgments:- (1) Manphul Singh Sharma vs. Ahmedi Begum (1), (2) Gajraj Singh and Others vs. State Transport Appellate Tribunal and Others (2), (3) Hungerfort Investment Trust Limited (in Voluntary Liquidation) vs. Haridas Mundhra and Others (3), (4) Thyseen Stahlunion Gmbh vs. Steel Authority of India Ltd. (4), (5) State of Punjab vs. Mohar Singh Pratap Singh (5), (6) Panna Lal Bansilal Pitti and Others vs. State of A. P. & Anr. (6), (7) Rameshwar Prasad and Others vs. State of Uttar Pradesh and Others (7), and (8) Bhatia International vs. Bulk Trading S. A. and Another Learned Counsel Mr. Rastogi adopted the submissions made by learned counsel Mr. Agarwal. Per contra, learned counsel Mr. Kasliwal argued that sub- section 3 (a) of Section 32 of the New Act clearly provides that all applications, suits or other proceedings under the repealed Act pending on the date of commencement of the New Act shall be continued and disposed of, in accordance with the provisions of the repealed Act, as if the repealed Act had continued in force and this Act had not been enacted. According to Mr. Kasliwal, thus there being no ambiguity in application of provisions of the Old Act in cases of fixation of standard rent pending before the New Act came into force are to be governed by the provision of the Old Act and question of interpretation w. e. f. the date of applicability of the old Act or New Act does not even arise; that what would be the effect of repeal of the Old Act as provided under Section 6 of the Rajasthan General Clauses Act would be taken into consideration only when a different intention appears while no different intention appears in view of sub-section (3) (a) of Section 32 of the Act; that Section 29 of the New Act would have no effect on pending cases in view of specific provisions contained in Sec. 32 (3) a) of the New Act and further the provisions of the Old Act providing for fixation of standard rent are in no way inconsistent with the provisions of the New Act providing for revision of the rent; that a particular date has to be provided for every new legislation to come into force and it is a reasonable classification and thus no such conclusion can be drawn that the New Act would be applicable only on the count that the rent would be more when determined under the Old Act and it would be at lower side when revised under the New Act; that the landlord or the tenant as the case may be had a legal right to get standard rent determined by the Court as provided under Section 6 of the Old Act and provisional standard rent as provided under Section 7 of the Old Act. He placed reliance upon following judgments:- (1) Jindal Oil Mills & Others, Somalal Nathji and Others vs. Godhra Electricity Co. Ltd. (9), (2) Bansidhar and Others vs. State of Rajasthan and Others (10), (3) Krishi Utpadan Mandi Samiti vs. Kanhaiyalal and Others (11), and (4) Land Acquisition Officer - cum - DSWO, A. P. vs. B. V. Reddy & Sons ;