Writ Petition No. 2331 of 1982

14th February, 1996

Petitioner Counsel: Mr. R.T.WALAVALKAR with Mr. N.V.WALAVALKAR
Respondent Counsel: Mr. C.J.SAWANT, Advocte General, with Mr. C.R.SONAVANEMr. MADHAV JAMDAR for Mr. M.A.RANE

JUDGMENT

A.P.SHAH, J.- Whether rule 9(2) of the Bombay Rents, Hotel and Lodging House Rates Control Rules. 1948, is in excess of rule making power of State Government? Whether the said rule can be branded as arbitrary and unreasonable and invalidated on that count? are the main issues involved in this writ petition.

2. The facts giving rise to this petition lie in a narrow compass.

The petitioner is the landlady of a chawl by name Shankar Patil Chawl at Andheri. A double room tenement, hereinafter referred to as "the suit premises", was let out to one Ramchandra Shirodkar at a monthly rent of Rs.32.25 ps. plus water charges of Rs.4/- per month. After the death of the said Ramchandra, the respondents were accepted as tenants of the petitioner in respect of the suit premises.

The petitioner filed R.A.E. Suit No,3391 of 1970 in the Bombay Small Causes Court on the ground of non-payment of arrears of rent of more than six months as well as the ground of waste of the suit premises allegedly caused by the respondents by reason of enclosing the front verandah of the premises. The learned Single Judge of Small Causes Court by his judgment and decree dated July 35, 1980 decreed the petitioner's suit and ordered the Respondents to vacate and hand over the vacant and peaceful possession of the suit premises to the petitioner by the end of December 1980. The learned single Judge, Inter alia, held that the ground of non-payment of rent is proved and both clauses (a) and (b) of sub-section (3) to section 12 of the Bombay Rent Act are attracted to the facts of the present case. The other ground of causing waste was however, negatived by the learned Single Judge.

Aggrieved by the judgment and order of learned Single Judge, the respondents filed appeal No.564 of 1980 before the appellate bench of the Small Causes Court. The learned Judges constituting the appellate bench differed in their conclusion and consequently gave differing judgments.

The Additional Chief Judge Mr. Pandit found that the respondents were ready and willing to pay standard rent and the permitted increases of the suit premises from April 1, 1968 and hence, provisions of section 12 (3) (a) of the Bombay Rent Act were not attracted to the facts of the case. Mr. Pandit was also pleased to hold that there is substantial compliance with section 12(3)(b) in as much as the tenants had deposited regularly the amount of monthly rent in the Court as per the Court's order during the pendency of the suit. Mr. Pandit, therefore, held that the appeal deserves to be allowed and ordered that the suit of the petitioner be dismissed with costs.

The Additional chief Judge Mr. Lonkar, who came to a different conclusion than Mr. Pandit, found that the tenants had committed default in payment of rent and they were not at all regular in making the payment in Court. Mr. Lonkar also held that in view of the admission of Mr. Hegde, Advocate for the respondents, that the respondents had not deposited the rent in Court regularly as per the Court's order, the respondents could not be given protection of the Act. Mr.Lonkar, therefore, held that the trial Court was perfectly justified in coming to the conclusion that the respondents were not entitled to protection under section 12(3) (b) of the Act. In short, Mr. Lonkar expressed the opinion that there was no ground to interfere with the judgment and order passed by the learned Single Judge.

As a result of difference of opinion between the two Judges of the appellate bench, the following order was passed by the appellate bench:

"In view of the procedure to be followed in appeal contemplated by rule 9 of the Bombay Rent Hotel and Lodging House Rent Control Rules, 1948, and in view of the Judges constituting the Bench differing the Judge first in rank and precedent having cast a voice, the following order is passed in the Appeal :

Order : Appeal allowed.

Decree of the trial Court

for possession of the suit premises is set aside and the suit stands dismissed with order as to costs of the suit and this appeal to be borne by the appellants/defendants throughout."

3. The petitioner has challenged the validity of rule 9(2) on the ground that it is unreasonable, arbitrary and against the principles of natural justice. The petitioner has also challenged the validity of the said rule on the ground that it is beyond the rule making power of the State Government. It is submitted that section 29 (1)(a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1948 ("Act", for short) provides an appeal to a division bench before two judges or the Small Causes Court, but rule 9(2), which provides that the judge, who is first in rank and precedence, will have a casting voice reduces the appeal virtually to an appeal before one judge, which is totally contrary to the provisions of section 29 (1) (a) of the Act. It is further submitted that rule, which gives precedence to the opinion of the senior judge is totally illogical and irrational, as the seniority of the judge cannot be regarded as the sole test for deciding the conflict between the learned judges. The petitioner has relied on provisions of section 11 of the Presidency Small Causes Court Act,1882, which lays down that in case of such division, a reference is to be made to a third judge and case is decided according to the opinion of majority of the judges hearing the case including those who first heard. It is submitted that by virtue of the said provision, in suits which are less important than those relating to the recovery of immovable property, the right of appeal is rendered effective and substantial, whereas, the right of appeal in important suits relating to immovable property under the Bombay Rent Act is rendered illusory by the said rule 9(2). In this context, the petitioner has also relied upon section 98 of code of civil procedure, which provides reference to a third judge in case of conflict on the question of law.

4. Before we advert to these submissions, it will be necessary to make a brief reference to the relevant provisions of the Act and the Rules. Section 29 of the Act provides for remedy of appeal and the relevant portion of the said section reads as under:

"S.29:

(1) notwithstanding anything contained in any law, an appeal shall lie.

(2) in Greater Bombay from a decree or order made by the Court of Small Causes, Bombay, exercising jurisdiction under section 28, to a bench of two judges of the said court which shall not include the judge who made such decree or order."

Thus in Greater Bombay, an appeal is provided to a bench of two judges of the Small Causes Court. We may mention that elsewhere the appeal lies to the District Court as provided in clause (b) of section 29.

5. Section 49 of the Act confers power upon the State Government to make rules for the purpose of giving effect to the provisions of the Act. In furtherance of the power conferred upon the State Government, the state Government has enacted the rules, which are called Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Rules, 1986 ("Rules", for short). We are mainly concerned with rule 9 and the said rule reads as follows :

"Procedure in appeals.-(1) In appeals under section 29 (1) of the Act the Court shall, as far as may be and with the necessary modifications, follow the practice and procedure prescribed for appeals from original decrees by the Code.

(2) If, in any such appeal, the judges constituting the bench differ, the Chief Judge, if he is one of the Judges, or, in his absence, the judge first in rank and precedence shall have the casting voice."

Rule 9(1) provides that in appeals under section 29 (1), the Court has, as far as possible, to follow the procedure prescribed for appeals from original decrees by the Code whereas sub-rule (2), which is impugned in this petition, provides that in case of difference of opinion, the Chief Judge, if he is one of the judges, or, in his absence, the judge first in rank and precedence shall have the casting voice. In short, the rule lays down that in the event of disagreement, the view of the chief judge or the senior judge, as the case may be shall prevail.

6. At this stage, we may make a reference to the provisions of section 98 of the C.P.C. dealing with similar contingency, The scheme of section 98 is that if there is a difference of opinion on the question of law, the judges on the bench shall formulate the point of law and it will be referred to a third judge and then the appeal shall be heard by one or more of the other judges and such point shall be decided according to the opinion of the majority, including the judges, who first heard it. However, if there is a difference on facts, the decree is liable to be confirmed. We may also make a reference to the amended provisions of section 11 of the Presidency Small Causes Courts Act, 1882 on which heavy reliance has been placed by the learned counsel for the petitioner. The amended section 11 lays down "and if the Court is equally divided, the Judges shall state the point upon which they differ, and the case shall then be heard upon that point by another Judge nominated by the Chief Judge and the point shall he decided, according to the opinion of the majority of the Judges, who have heard the case, including those who first heard it."

7. Rule 9(2), however, as already indicated, lays down that the judge, who is first in rank should have casting voice. Thus the opinion of the chief judge and if the chief judge is not a party to the bench, the opinion rendered by their senior judge is in effect given finality. It has been brought to our notice by the learned Advocate General, who appeared before us in pursuance of the notice, that at one stage the State Government contemplated substituting this rule by a rule, which is more or less on the lines of amended section 11 of the Presidency Small Cause Courts Act, 1982, but it appears that the bill lapsed.

8. We have already noted that section 29 (1) (a) provides for an appeal to a bench of two judges of the Small Causes Court in order to make the remedy of the appeal effective. The complaint of the petitioner is that by reason of rule 9(2), hearing of the appeal is virtually reduced into hearing by a single judge, instead of hearing by a bench consisting of two judges as contemplated by the said section. Section 29 makes no distinction between a senior judge and a junior judge, who may both constitute an appeal bench under the said Act and nor it makes distinction between the chief judge of the Small Causes Court and the other judges of that Court. Therefore, we do not see any logic in giving preference to the opinion rendered by the chief judge as a senior judge in deciding the appeal, which is provided by the Act as a matter of right. The effect of rule 9(2) is that though technically appeal will be heard by two judges, the opinion of the chief judge and if he is not a party to the bench, the opinion of the senior judge shall always prevail over the opinion given by the other judge. In other words, rule 9(2), in substance and effect, reduces the appeal under section 29(1)(a) to an appeal only to a single judge and in our view, this is clearly contrary to the provision of the act. We find considerable substance in the grievance of the petitioner that rule 9(2) has the effect of nullifying and rendering nugatory the provisions of section 29(1)(a) in as much as appeal would virtually amount to an appeal to a single judge and not to a bench of two judges. In fact, the learned Advocate General expressed his inability to support the validity of the said rule.

9. Even otherwise, we are of the view that the impugned rule is completely arbitrary and irrational. The rule postulates that the opinion rendered by the senior judge should prevail when there is conflict between two judges. We really fail to understand as to how the seniority of the judge can be said to be a relevant criterion for deciding an appeal under the Act. The rule appears to have been based on assumption that opinion given by the chief judge or a judge having precedence in rank or seniority, more experienced is always right and preferable to the opinion of a junior judge. In our view, this assumption is totally illogical and irrational. The seniority or a rank of a judge may be relevant consideration in the internal administration of the Court. It may also be relevant for further promotion to the higher Court, but merely because the judge happens to be the chief judge or he happens to be a senior judge cannot be a ground for accepting his decision as correct decision by completely disregarding the decision given by the junior judge. Needless to mention that the judges, who are equal in rank, enjoy equal powers and jurisdiction as far as judicial work is concerned. The irrationality of the rule can be further demonstrated by a simple illustration where both the judges are appointed on the same day and out of whom, one judge will be necessarily senior and simply because seniority has been given to him at the time of his appointment, his opinion will always supersede the opinion of the junior judge (who was also appointed on the same day). We do not see any rational or logic in giving a preference to the opinion rendered by the senior judge in this fashion. therefore, in our opinion, the impugned rule suffers from vice of arbitrariness and unreasonableness and on that count also, it is liable to be struck down.

10. In the result, the petition succeeds. Rule is made absolute in terms of prayer clause (b),(c) and (d). The opinions rendered by the two learned judges of the appeal bench are set aside and the matter is remitted to the appeal bench for deciding the appeal afresh in accordance with law. No order as to costs.

11. We wish to clarify that in case of difference of opinion amongst, the learned judges on the appeal bench, procedure prescribed by section 98 of the C.P.C. shall be followed till appropriate rule is framed by the Government.

12. The Small Causes Court is directed to decide the appeal expeditiously and in any event not later than four months from today.

13. Certified copy expedited.

Order accordingly.