- (1.) The instant matter has been listed before us to examine the legal questions which have been referred by the ld.Single Judge vide order dt.19.02.2014 on two conflicting views which have been expressed by two coordinate Single Benches of this court in reference to interpretation of Sec.19(10) and Sec.20(3) of the Rajasthan Rent Control Act, 2001. Primarily, the question which arise for our consideration, is as to whether the Appellate Rent Tribunal, in a pending appeal, against order of the Rent Tribunal, has a discretion vested to pass interlocutory order u/Sec.19(10) of the Act, 2001 or it is dependent and has to be in consonance/conformity with sub-sec.(3) of Sec.20 of the Act, 2001.
(2.) The ld.Single Judge of this court in Naveen Sharma Vs. Ram Dayal & Others, 2011 3 RajLW 2060 decided on 10.02.2011, after examining the scope of Secs.19(10) & 20(3) of the Act, 2001 has observed that the discretion vested with the Appellate Rent Tribunal of passing interlocutory orders, pending appeal, u/Sec.19(10) has to be restricted for grant of mesne profit, which cannot be at a rate more than provided/contemplated u/sub-sec.(3) of Sec.20 of the Act, 2001. The relevant extract of the judgment passed by the ld.Single Judge in Naveen Sharma's case is reproduced ad infra:- "7. A perusal of Sub-section (3) of Section 20 shows that if a tenant does not vacate the premises within three months from the date of issuance of certificate of recovery, he shall be liable for payment of mesne profit at the rate of two times if the premises is residential and three times if the premises is commercial. Such mesne profits becomes payable from the date of issuance of recovery certificate. Explanation to Sub-section (4) of Section 20 provides about powers of Appellate Rent Tribunal. By virtue of explanation, it comes out that Appellate Rent Tribunal is having authority to pass order otherwise, in any case, it should not pass an order to pay mesne profit over and above mentioned under Sub-section (3) of Section 20 of the Act, 2001 because, at last, if, certificate of recovery issued by the Rent Tribunal is maintained by the Appellate Rent Tribunal, mesne profit remains at the rate provided under Sub-section (3) of Section 20 of the Act. The explanation clarifies the above. 8. 10. XX XX XX XX 11. Perusal of paras show that Section 38 of Delhi Rent Control Act of 1958 confers the Tribunal, with all the powers vested in a Court under the Code of Civil Procedure, that, Order 41 Rule 5 Code of Civil Procedure becomes applicable. It is in reference to the aforesaid statutory provisions that judgment has been given. Since Act of 2001 does not provide application of the provisions of Order 41 Rule 5 of Code of Civil Procedure, the Appellate Rent Tribunal can provide rate of mesne profit as given under Section 20(3) of the Act or les then it but not above, because if the order of Rent Tribunal is maintained finally, mesne profit remains payable at the rate provided under Section 20(3) of the Act. At times the market value is taken into consideration by the Appellate Rent Tribunal for grant of mesne profit. In my opinion, such liberty does not exist with Appellate Rent Tribunal for grant of mesne profit. It cannot be at a rate more than provided under Sub-section (3) of Section 20 of the Act of 2001. It is well settled law that No. judgment can nullify statutory provisions unless struck down. Thus Atma Ram's judgment , cannot be applied in rime of the provision of Act of 2001."
(3.) It appears that prior thereto this very question arose for consideration before the ld.Single Judge of this court at the Main Seat, Jodhpur in the case of Paras Mal Dhariwal Vs. LRs of Amardatt Vyas & Ors. (S.B.Civil Writ Petition No.6548/2008) decided on 14.09.2009 regarding the discretion vested with the Appellate Rent Tribunal for passing interlocutory order as contemplated u/sub-sec.(10) of Sec.19 of the Act and taking note of the wholesome view of the matter and so also Sec.19(10) & Sec.20(3) along with Explanation appended thereto of the Act, 2001, the ld.Single Judge was of the view that the discretion vested with the Appellate Rent Tribunal for grant of interlocutory order cannot be circumscribed by any conditions and cannot be precluded from staying the payment of mesne profit at the enhanced rate of rent as provided u/sub-sec.(3) of Sec.20 of the Act, 2001 during pendency of appeal and as regards grant of interlocutory order, pending appeal, is concerned, the ld.Single Judge was of the view that it has to be considered and decided by the Appellate Rent Tribunal exercising its discretion reasonably, judicially and on the basis of settled principles governing the grant of interim relief. The relevant extract of the judgment dt.14.09.2009 is reproduced ad infra:- "9. As notices above, Sub-section (10) of Section 19 of the Act empowers the Appellate Rent Tribunal in its discretion to pass such interlocutory order, during the pendency of the appeal which the facts and circumstances of the case require. Indisputably, the power conferred on the Appellate Rent Tribunal as aforesaid to grant the interim relief is not circumscribed by any conditions therefore, it is not precluded from staying the payment of mesne profit at the enhanced rate of rent in terms of Sub-section (3) of Section 20 during the penency of appeal. But then, the matter with regard to grant of stay pending appeal has to be decided by the Appellate Rent Tribunal exercising its discretion reasonably, judicially and on the basis of settled principles governing the grant of interim relief.";