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Dullab and anr. Vs. Vallab Ganpat - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. Nos. 952 and 953 of 1952
Judge
Reported inAIR1954Bom322; (1954)56BOMLR219
ActsTenancy Law; Bombay Tenancy Act, 1939 - Sections 1, 5, 11(2), 12, 14A, 14A(2) and 26
AppellantDullab and anr.
RespondentVallab Ganpat
Appellant AdvocateR.V. Patwardhan, Adv.
Respondent AdvocateG.R. Madbhavi, Adv.
Excerpt:
.....12, 14a, 14a (2) and 26 of bombay tenancy act, 1939 - whether landlord entitled to have reasonable rent fixed to increase rent which tenant was liable to pay under lease - section 26 of tenancy act prevents any provision to be construed to abridge right of tenants - reasonable rent can be fixed so as not to increase rent payable by tenant under agreement - held, landlord not entitled to increased rent. - - madbhavi emphasises sub-section (2) of section 14a and contends that it is not only a tenant but also a landlord who can apply for determination of a reasonable rent, and therefore the legislature clearly contemplated that if the landlord applies for determination of a reasonable rent, the rent fixed under the agreement may be increased, and therefore the contention is put forward..........applications is whether under the tenancy act it is open to a landlord to have a reasonable rent fixed so as to increase the rent which the tenant is liable to pay under a lease. in revision application no. 952 the lease is for 10 years and the rent reserved is rs. 175/-, and in revision application no. 953 the lease is also or 10 years and the rent reserved is rs. 125. the civil judge, senior 'division, dhulia, has fixed the reasonable rent in revision application no. 952 at rs. 340 and in revision application no. 953 at rs. 245, and it is against these, orders that these two revision applications are preferred.2. turning to the old act of 1939 which applies, section 14a provides:'(1) the rent payable by a tenant other than a protected tenant shall be the rent agreed upon between.....
Judgment:
ORDER

1. The question that arises in these two revision applications is whether under the Tenancy Act it is open to a landlord to have a reasonable rent fixed so as to increase the rent which the tenant is liable to pay under a lease. In revision application No. 952 the lease is for 10 years and the rent reserved is Rs. 175/-, and in revision application No. 953 the lease is also or 10 years and the rent reserved is Rs. 125. The Civil Judge, Senior 'Division, Dhulia, has fixed the reasonable rent in revision application No. 952 at Rs. 340 and in revision application No. 953 at Rs. 245, and it is against these, orders that these two revision applications are preferred.

2. Turning to the old Act of 1939 which applies, Section 14A provides:

'(1) The rent payable by a tenant other than a protected tenant shall be the rent agreed upon between such tenant and his landlord. Where there is a dispute as regards the reasonableness of the rent payable according to such agreement the rent payable shall be the reasonable rent determined under sub-section (2).'

The contention of Mr. Madbhavi for the landlord is that the landlord has disputed the reasonableness of the rent, and even though an agreement may provide for the rent, it is open to the landlord to have the reasonable rent determined under Sub-section (2) of Section 14A. Sub-section (2) provides: '(2) For the determination of reasonable rent under Sub-section (1) either the tenant or the landlord may apply in writing to the Mamlatdar within whose jurisdiction the land is situated. Such application shall be in such form as may be prescribed. Thereupon the provisions contained in Sub-sections (2) to (11) of s. 12 shall, so far as may be, apply.'

3. There is a similar provision with regard to a protected tenant under Section 5, and Section 12 lays down the mode of determining the reasonable rent. Mr. Madbhavi emphasises Sub-section (2) of Section 14A and contends that it is not only a tenant but also a landlord who can apply for determination of a reasonable rent, and therefore the Legislature clearly contemplated that if the landlord applies for determination of a reasonable rent, the rent fixed under the agreement may be increased, and therefore the contention is put forward that the Civil Judge was right in increasing the rent fixed under the lease, as he took the view that the rent fixed was not a reasonable rent. Now, Section 25 provides:

'No provision contained in this Act shall be construed to limit or abridge the rights or privileges of any tenant under any usage or law for the time being in force or arising out of any contract, grant, decree or order of a Court or otherwise howsoever.'

4. Section 26 is clearly an overriding provision of the law. It overrides every provision of the Act and lays down that no right or privilege of a tenant can be limited or abridged if such right or privilege arises under any usage or law for the time being in force or arises out of a contract grant, decree or order of the Court. It is clear that the right of the tenant not to pay more than a particular rent arises out of a contract between him and the landlord, and S. 26 precludes any provision of the Act being so construed as to limit or abridge the right of the tenant, and therefore I do not see how it is open to the Court to increase the rent fixed under the agreement on the ground that the rent is not reasonable. Once the rent is increased the right of the tenant under the agreement is abridged or limited, and that Section 26 does not permit. I see there are difficulties in the way of accepting this construction. of Section 26.

In the first place it may be said that it brings about a rather anomalous situation. It gives a right to the tenant to reduce the rent and it does not give a corresponding right to the landlord to increase the rent. It must be borne in mind that the Tenancy Act was put on the statute book for the purpose of the protection of tenants in the State of Bombay and every provision in the Act has to be looked at from the point of view of the object that the Legislature had. I also see the difficulty of explaining why the Legislature provided under Section 14A (2) for a landlord to make an application for the fixing of a reasonable rent. If a landlord is permitted to make such an application, clearly the intention was that the rent fixed under an agreement may be increased. As has often been pointed out, the Tenancy Act is not very happily drafted and we come across many inconsistencies and anomalies. But one thing is clear that Section 26 in emphatic terms prevents any provision of the Act being construed so as to limit or abridge the right of the tenants, and therefore I must come to the conclusion that reasonable rent under the Act can only be fixed so as not to increase the rent payable by a tenant under an agreement. The rent may be decreased, but it cannot be increased. In my opinion, therefore, the learned Judge was wrong in increasing the rent.

5. Both the orders of the learned Judge below will therefore be set aside and the orders of the Mamlatdar restored with costs throughout.

6. Applications allowed.


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