JAIN, J. - (1.) HEARD learned counsel for the petitioner.
(2.) DEFENDANT-petitioner, in this writ petition, has challenged the order dated 29th January, 2004 (Annexure-1), passed by the Civil Judge (Junior Division), Kota, whereby the application filed by the plaintiff-respondents under Section 7 of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (hereinafter shall be referred to as `the Old Act') was allowed and the provisional rent of the rented premises at the rate of Rs. 1600/- per month was determined with effect from 1st May, 2002 and the appellate court's order dated 9th September, 2004 dismissing the appeal of the tenant-defendant. The plaintiff filed a suit under Section 6 of the Old Act in the trial Court against the defendants for determination of rent of the rented premise wherein it was pleaded that the disputed shop measuring 20' x 12' was let out to the defendant No. 1 at the monthly rent of Rs. 300/- about 35 years ago and at present the monthly rent of the said shop, as per prevalent market rate of the area, is not less than Rs. 2500/-, therefore, the monthly rent at the rate of Rs. 2500/- per month be fixed. An application under Section 7 of the Old Act was also filed for determination of provisional rent at the rate of Rs. 2500/- per month. The application was contested by the defendants on various grounds including that the monthly rent of the disputed shop is in between Rs. 500/- to Rs. 700/- per month. The trial Court, vide its order dated 29th January, 2004, provisionally determined the monthly rent of the disputed shop at the rate of Rs. 1600/- per month with effect from 1st May, 2002, i. e. the date of filing of the application. The defendants challenged the said order by way of appeal, which was dismissed by the appellate Court vide order dated 9th September, 2004. The learned counsel for the petitioner contended that both the Court below have committed an illegality in determining the provisional rent as per prevalent market rate of monthly rent of the disputed shop whereas the Division Bench of this Court recently in Kamal Kishore & 16 Others vs. State of Rajasthan, 2008 (1) WLC (Raj.) 29 = (2008 (2) RLW 1810) has held that non-obstante clause contained in Section 32 (3) (a) of the Rajasthan Rent Control Act, 2001 (hereinafter shall be referred to as `the New Act'), saving pending proceedings, shall not be applicable in case of fixation of standard rent or provisional rent under Sections 6 and 7 of the Old Act as having been impliedly repealed and shall be governed by the provisions of the New Act. He, therefore, contended that the present case is fully covered by the above referred decision of the Division Bench and the writ petition is liable to be allowed by setting-aside both the impugned orders passed by both the courts below. In Kamal Kishore's case (supra), the Division Bench considered number of writ petitions wherein challenge was made to constitutional validity of - (1) Rajasthan Rent Control Act, 2001; (2) Section 32 (3) (a) of the Act of 2001; and (3) Section 6 of Rajasthan Premises (Control of Rent & Eviction) Act, 1950. The Division Bench in Para No. 43 of the judgment held that ". . . We, therefore, without striking down any of the provisions of the Old Act and the New Act, deem it proper that non-obstante clause contained in Section 32 (3) (a), which saves the pending proceedings, should be read with Section 29 of the New Act, which gives effect to the provisions of the New Act, notwithstanding anything inconsistent in any other law. The relevant and concluding Para of Kamal Kishore's case (Supra) are reproduced as under:-      " 40. Under the non obstante clause provided for in Section 32 (3) (a) of the New Act, pending suits for fixation of rent either standard or provisional, shall be governed by the repealed Act, whereas under Section 29 of the New Act, the provisions of the New Act shall have effect notwithstanding anything inconsistent therewith contained in any other law. If these two provisions are read together and the situation arises where the suit of same premises is pending for fixation of standard rent filed by the tenant prior to coming into force of the New Act which is for reducing the rent as agreed upon, that suit will have to be decided by the Court under the Old Act but after coming into force of the New Act, if the landlord files a suit or application for revision of rent under Section 6 of the New Act in accordance with the formula of 5% per annum increase of the agreed rent then what will be the fate of the suit filed by the tenant, has not been answered in the saving clause. This apparent anomaly whereby course of justice is diluted in disposal of both the petitions; one filed under the Old Act by the tenant and another under the New Act by the landlord, will lead to a direct conflict between the two suits arising out of the saving clause under the New Act. 41. . . . 42. . . . 43. Though, we are not questioning the policy of the legislature in enacting the New law which is social legislation, being enacted from time to time keeping in view the paucity of accommodation and market value of the rupee but as discussed above, when incompatibility or irreconcilable inconsistency emerges in interpreting the new law, the Court has to harmonize provisions of both the Old & the New Acts. We, therefore, without striking down any of the provisions of the Old Act and the New Act, deem it proper that non-obstante clause contained in Section 32 (3) (a) which saves the pending proceedings should be read with Section 29 of the New Act, which gives effect to the provisions of the New Act, notwithstanding anything inconsistent in any other law. 44. The fixation of standard rent is a substantive right and the saving clause cannot restrict a substantive right. It merely affect the procedure as held by the Hon'ble Supreme Court in Northern India Caterers Ltd's case (supra) in which it has been held that if by repeal, two rights co-exist together and produce inconvenience then the Court should legitimately infer that the legislature did not intend such a consequences in such a case, the Court should give effect to the New provisions by harmonizing both the Statutes. This is the only and sound rule of construction to avoid anomaly & irreconcilable inconsistency. That is why, it is said that judges declare the law by ascertaining legislative intent and are not to make it. 45. . . . . 46. Therefore, while drawing the above conclusions on the true intent of Section 29, which is an internal aid for construction & Section 32 (3) (a) of the New Act vis-a-vis Section 6 of the Old Act, we are left with no other alternative except to cure the anomaly, absurdity, inconsistency and incompatibility by giving true effect to the provisions of the New Act in the light of the observations made above. 47. Consequently, we hold that the New Act is not violative of Article 14 of the Constitution and is a valid social legislation. However, we also hold that the non obstante clause contained in Section 32 (3) (a) of the New Act saving pending proceedings, shall not be applicable in case of fixation of standard rent or provisional rent under Section 6 and 7 of the Act as having been impliedly repealed and shall be governed by the provisions of the New Act without declaring Section 6 of the Old Act and Section 32 (3) (a) of the New Act to be ultravires to the Constitution of India or referring the decision of Khem Chand's case (supra) to a larger Bench. Accordingly, we dispose- of these writ petitions and direct the concerned Courts to dispose of the matters in the light of the above directions by reviewing their impugned orders, if they are inconsistent with the decision on the subject with no order as to costs. " The Division Bench in Kamal Kishore's case (supra) has not declared any provisions of the Old Act or New Act as ultra-vires to the Constitution of India but, in Para 44, by relying upon the judgment of the Hon'ble Supreme Court in Northern India Caterers (Pvt.) Ltd. vs. State of Punjab, reported in AIR 1967 SC 1581 has held that in such a case, the court should give effect to the new provisions by harmonizing both the Statutes and consequently held in Para 47 that non-obstante clause contained in Section 32 (3) (a) of the New Act, saving pending proceedings, shall not be applicable in case of fixation of standard rent or provisional rent under Sections 6 and 7 of the Act as having been impliedly repealed and shall be governed by the provisions of the New Act without declaring Section 6 of the Old Act and Section 32 (3) (a) of the New Act to be ultra-vires to the Constitution of India.
(3.) THE judgment of the Division Bench is mainly based on the judgment of the Hon'ble Supreme Court in Northern India Caterers' case (supra), whereas the said judgment had already been overruled by the larger Bench i. e. 7 Judges Constitutional Bench of the Hon'ble Supreme Court in the case of Maganlal Chhagganlal (P) Ltd. vs. Municipal Corporation of Greater Bombay and Others - AIR 1974 SC 2099, (Para 16 and 25 ). It appears that the aforesaid judgment of the Hon'ble Supreme Court in M. Chhagganlal's case (supra) was not brought to the notice of the Division Bench and the same was not considered while deciding Kamal Kishore's case. It also appears that three judgments of three separate single benches of this Court, wherein it was held that all the applications and suits etc. filed under the Old Act pending on the date the New Act came into force, will be governed by the provisions of the Old Act, were also not brought to the notice of the Division Bench and, therefore, the same could not be considered while deciding Kamal Kishore's case (supra), which are as under:- (1) Balbeer Kumar Jain and Another vs. Tripti Kumar Kothari- 2003 (4) WLC (Raj.) 790 = 2004 (1) RCR 621 = (RLW 2004 (2) Raj. 819) (by Hon'ble Mr. Justice A. C. Goyal); (2) Ugam Raj vs. Civil Judge (SD), Sojat City & Others - 2005 (2) DNJ (Raj.) 1136 = (2006 (1) RLW 517) (by Hon'ble Mr. Justice Govind Mathur); (3) Heera Lal vs. M/s. Uttam Chand Deshraj - 2005 WLC (Raj.) UC 759 (by Hon'ble Mr. Justice J. R. Goyal ). The learned Division Bench in Kamal Kishore's case (supra) without declaring Sections 6 and 7 of the Old Act and Section 32 (3) (a) of the New Act to be ultra-vires to the Constitution of India or referring the decision in Khem Chand vs. State of Rajasthan and Another - 1999 (2) WLC (Raj.) 228 = (1999 (2) RLW Raj. 908), to the Section 32 (3) (a) of the New Act, saving pending proceedings, shall not be applicable in case of fixation of standard rent. . " It is further held in Para 43 and 47 of the judgment "that non-obstante clause contained in Section 32 (3) (a), which saves the pending proceedings, should be read with Section 29 of the New Act," and further". . . that the non-obstante clause contained in Section 32 (3) (a) of the New Act, saving pending proceedings, shall not be applicable in case of fixation of standard rent or provisional rent under Sections 6 and 7 of the Old Act as having been impliedly repealed and shall be governed by the provisions of the New Act. . " For ready reference, Sections 29 and 32 (3) (a) of the New Act are reproduced as under:-      " 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. "      " 32. Repeal and savings. (1 ). . . . 2 . . . (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 purposes 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;" ;