Whether application for standard rent is to be dismissed if age of construction of suit building is not given?

 Although several grounds have been urged in support of the petition, Mr. Jaiswal, learned counsel for the petitioners, at the out set submitted that the application filed by respondents 1 to 4 for fixation of the fair rent was liable to be dismissed on the ground that in the application filed for fixation of fair rent the respondents 1 to 4 had not mentioned the age of construction of the suit premises which was of utmost importance. He further submitted that in the absence of such basic pleadings, the application for fixation of fair rent was liable to be dismissed. In support of this submission, Mr. Jaiswal placed reliance upon the judgment delivered by learned Single Judge of this Court in Shantilal Sohanlal Shah vs. Secretary, Krishi Utpanna Bazar Samit, Balapur : (1995(2) Mh. L. J. 12. Mr. Jaiswal submitted that since the ground goes to the root of the matter, the petitioners are entitled to raise this ground for the first time in the writ petition. He invited my attention to the ground (F) taken in this regard in the petition.

5] As stated above, no effective appearance has been put up on behalf of respondents 1 to 4.

6] I have considered the submissions advanced by learned counsel for the petitioners and perused the record and the judgment relied upon. In Shantilal Shah's case (supra) learned Single Judge of this Court dismissed the petition filed by the petitioner/landlord challenging the order passed by the authorities under Rent Control Order dismissing the application. Learned Single Judge has held that in an application for fixation of fair rent filed by the landlord he is bound to plead the age of construction of the house since in terms of Clauses 4, 5, 6 and 7 of the Rent Control Order the determination of fair rent depends upon the age of construction of the house. After considering the effect of Clauses 4, 5, 6 and 7 of the Rent Control Order, the learned Single Judge has held that in the absence of pleadings with regard to the age of construction of the house, the application for fixation of fair rent was liable to be dismissed. Perusal of the application filed by respondents 1 to 4 discloses that the age of construction of the suit house has not been mentioned.

Therefore, the ratio in Shantilal Shah's case(supra) is squarely applicable in the present case.

Bombay High Court

Shri Nandkumar Son Of B.H. Naidu vs Shri Thanwardas Son Of Hasanand ... on 8 September, 2008

Bench: A. P. Lavande

Citation: 2009(1) ALLMR 59

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Whether application for fair rent can be rejected if age of construction of building is not mentioned?

 I have considered the submissions advanced by learned Counsel for the petitioners and perused the record and the judgment relied upon. In Shantilal Shah's case (supra) learned Single Judge of this Court dismissed the petition filed by the petitioner/landlord challenging the order passed by the authorities under Rent Control Order dismissing the application. Learned Single Judge has held that in an application for fixation of fair rent filed by the landlord he is bound to plead the age of construction of the house since in terms of Clauses 4, 5, 6 and 7 of the Rent Control Order the determination of fair rent depends upon the age of construction of the house. After considering the effect of Clauses 4, 5, 6 and 7 of the Rent Control Order, the learned Single Judge has held that in the absence of pleadings with regard to the age of construction of the house, the application for fixation of fair rent was liable to be dismissed. Perusal of the application filed by respondents 1 to 4 discloses that the age of construction of the suit house has not been mentioned. Therefore, the ratio in Shantilal Shah's case (supra) is squarely applicable in the present case. No doubt, since the matter proceeded ex parte, the petitioners have neither taken this point before the Rent Controller nor before the Appellate Authority. However, since the point goes to the root of the matter that is, to the maintainability of the application for fixation of the fair rent, in my considered opinion, the petitioners are entitled to urge this ground for the first time in the writ petition. Since respondents 1 and 4 have not pleaded regarding the age of the construction of the suit house, the application filed by respondents 1 to 4 was not maintainable. Consequently, the impugned orders passed by the Rent Controller as well as Additional Collector, Nagpur are liable to be quashed and set aside.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

W.P. No. 287 of 2001

Decided On: 08.09.2008

Nandkumar S/o B.H. Naidu and Ors. Vs. Thanwardas S/o Hasanand Janyani and Ors.

Hon'ble Judges/Coram:

A.P. Lavande, J.

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