IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. O R D E R (1) DALJEET SINGH V. APPELLATE RENT TRIBUNAL SRI GANGANAGAR & ORS. S. B. CIVIL WRIT PETITION NO. 5487/2007 (2) ISHWAR CHAND JAIN V. APPELLATE RENT TRIBUNAL SRI GANGANGAR & ORS. S. B. CIVIL WRIT PETITION NO. 5490/2007 (3) LRs. OF DIWAN CHAND V. APPELLATE RENT TRIBUNAL, SRI GANGANGAGAR & ORS. S. B. CIVIL WRIT PETITION NO. 5489/2007 (4) RAJENDRA KUMAR V. APPELLATE RENT TRIBUNAL, SRI GANGANGAGAR & ORS. S. B. CIVIL WRIT PETITION NO. 5488/2007 (5) PRAVEEN KUMAR V. APPELLATE RENT TRIBUNAL, SRI GANGANGAGAR & ORS. S. B. CIVIL WRIT PETITION NO. 6878/2006 (6) RAJENDRA KUMAR V. APPELLATE RENT TRIBUNAL, SRI GANGANGAGAR & ORS. S. B. CIVIL WRIT PETITION NO. 5513/2007 (7) VINOD KUMAR V. APPELLATE RENT TRIBUNAL, SRI GANGANGAGAR & ORS. S. B. CIVIL WRIT PETITION NO. 4647/2007 DATE OF ORDER ::: 11-04-2008 PRESENT HON'BLE MR. JUSTICE MUNISHWAR NATH BHANDARI Mr. R. K.Singhal ) for Petitioners. Mr. G.R.Goyal ) Mr. R. K. Thanvi, for Respondents. REPORTABLE. BY THE COURT: This bunch of writ petitions involves common question of law, therefore, they are heard and decided by this common judgment. For taking into consideration the facts of the case, the facts of Writ Petition No.5487/2007 are being taken into consideration for convenience. Learned counsel for the petitioner, appearing for the petitioners, raised following legal issues for consideration of the Court :- “(i) Whether in view of the amendment in Section 6 of the Rajasthan Rent Control Act of 2001 (hereinafter referred to as 'the Act of 2001') pertain to revision of rent, the amendment would apply prospectively or retrospectively, as by virtue of amendment vide the Notification dated 22.02.2006, the expression 7.5% whenever occurring is substituted by 5%.” For the aforesaid question, learned counsel for the petitioners submits that at the time when the Rajasthan Rent Control Act of 2001 was brought into effect, the revision of rent was to be made with increase @ 7.5% per annum. However, vide the Notification dated 22nd February, 2006, 7.5% is substituted by 5% and, thereby, now yearly increase of rent would be determined by the Rent Tribunal, at the rate of 5% per annum, but in the present matter, the Tribunal had revised the rent taking into consideration 7.5% increase on yearly basis. After passing of the order by the Rent Tribunal, even in appeal, the Rent Appellate Tribunal maintained the order and the same position remains even after filing of the review petition before the Appellate Tribunal, bringing the fact in their knowledge that by virtue of the amendment in Section 6, vide the Notification dated 22nd February, 2006, increase of rent can be made only on 5% yearly basis though orders of Tribunal were prior to the amendment. However, the review petition filed in that regard was also dismissed. According to the learned counsel for the petitioners, the amendment vide the Notification dated 22.02.2006 is having intention to apply retrospectively, thus, the Tribunals below were uner obligation to revise the order for determination of rent and determination should have been made afresh, taking into consideration that the rent has to be increased only on 5% yearly basis in view of the amendment pursuant to the Notification dated 22.02.2006. It is urged that it being a case of substitution of the provision, thus, the amendment shoauld be treated to have been given effect from the date when the original enactment was made effective and, in that case, the determination of rent against the petitioner, based on 7.5% increase on yearly basis becomes illegal. The payer of the learned counsel for the petitioners is, thus, that the order of the Rent Tribunal, as well as Appellate Rent Tribunal should be quashed and the rent be determined after taking increase at the rate of 5% per annum. Learned counsel for the respondents submits that the amendment vide the Notification dated 22.02.2006 is prospective in application, because perusal of the amendment does not show that either expressly or impliedly, the Legislature is intent to give its effect retrospectively. In sequence of the arguments made by the learned counsel for the respondents, it was further urged that the Rent Tribunal, as well as the Rent Appellate Tribunal have already decided many of he matters prior to amendment, pertaining to determination of rent based on the law existing prior to amendment and, thereby, revision of rent in thousands of cases is based on 7.5% increase per annum. If the amended provision is given effect retrospectively, it may give rise to re-opening of all the cases already decided and settled, more so by virtue of such order, right already vesting in favour of those persons, including the non-petitioner. The last submission of the learned counsel for the respondents is that the benefit of increase at the rate of 5% per annum can be permitted from the date of amendment, hence increase of rent, at the rate of 5% per annum may be permitted from the date of amendment and not from the prior date. Both the learned counsel for the parties cited judgments in their support which would then be considered while considering their submissions. I have considered the rival submissions of the learned counsel for the parties and gone through the provisions so amended as well as originally existed. The provision of Section 6 is reproduced as under :- “6. Revision of rent in respect of existing tenancies . - (1) Notwithstanding anything contained in any agreement, where the premises have been let out before the commencement of this Act, the rent thereof shall be liable to be revised according to the formula indicated below : (a) where the premises have been let out prior to 1st January, 1950, it shall be deemed to have been let out on 1st January, 1950 and the rent payable at that time shall be liable to be increased at the rate of 7.5% per annum and the amount of increase of rent shall be merged in such rent after ten years. The amount of rent so arrived at shall again be liable to be increased at the rate of 7.5% per annum in similar manner upto the year of commencement of this Act; (b) where the premises have been let out on or after 1st January, 1950, the rent payable at the time of commencement of the tenancy shall be liable to be increased at the rate of 7.5% per annum and the amount of increase of rent shall be merged in such rent after ten years. The amount of rent so arrived at shall again be liable to be increased at the rate of 7.5% per annum in similar manner upto the year of commencement of this Act. Illustration – If the rent was Rs.100/- per month on 1st January, 1950, it shall become Rs.175/- per month on 1st January, 1960. It shall become Rs.306.30 pr month on 1st January, 1970 and Rs.536.30 per month on 1st January, 1980. (2) Notwithstanding anything contained in sub-section (1), where the period of ten years for merger of increase of rent under sub-section (1), is not completed upto the year of the commencement of this Act, the rent at the rate of 7.5% per annum shall be increased upto the year of the commencement of this Act and amount of increase of rent shall be merged in rent.” The amendment in Section 6 pursuant to the Notification dated 22.02.2006 is also reproduced as under :- “3.Amendment of Sec.6, Rajasthan Act No.1 of 2003. - In Sec.6 of the principal Act, - (i) in clause (a) of sub-sec.(1), for the existing expression “7.5%”, wherever occurring, the expression “5 %” shall be substituted; (ii) in clause (b) of sub-sec. (1), for the existing expression “7.5%”, wherever occurring, the expression “5%” shall be substituted; (iii) the existing Illustration appearing after clause (b) of sub-sec. (1) shall be deleted; (iv) in sub-sec. (2), for the existing expression “7.5%”, the expression “5%” shall be substituted.” Perusal of the original provision shows that for the purpose of revision of rent, Legislature permitted increase at the rate of 7.5% per annum, however, in view of the amendment vide the Notification dated 26th February, 2006, 7.5% is substituted by 5%. The issue, thus, comes for consideration is as to whether the amendment aforesaid is to be applied retrospectively or only prospectively. First considering the cardinal principle in regard to the interpretation of statute, it comes out that an amendment is applied prospectively, unless it is expressly or by necessary implication made to have retrospective operation unless the word in the statute should sufficiently shows the intention of the legislature to affect existing rights, amendment deemed to be prospectively only. “Nova- Constitutio Futuris Formam Imponere Devet non-praeteritis” In the words of Lord Blanesburg, “provision which touch a right in existence at the time of passing of the statute are not to be applied retrospectively in absence of express enactment or necessary intendment.” According to Lopes L.J., every statute which takes away or impairs vested rights acquired under the existing laws, or creates a new obligation or imposes a new duty or attaches new disability in respect of transactions already past, must be presumed to be intended not to have a retrospective effect. The Hon'ble Apex Court has considered the aforesaid aspect in many of the leading judgments wherein it has been held that so far as the procedural law is concerned, it can be made retrospective, but if it is substantial law, then, unless intended impliedly or expressly, the amendment is given prospective effect only. In the present matter, the substitution of rate for revision of the rent by virtue of the amendment, is made at the rate of 5% per annum instead of 7.5% kper annum. According to the petitioners, since the word “substitution” is being used in the amendment, it should necessarily mean that revision of rent at the rate of 5% per annum exist since inception of the Act and, in that case, the calculation of rent with revision at the rate of 7.5% perl annum becomes illegal. In view of the above, the word “substitution” gains some importance as being urged by the learned counsel for the petitioners and, for that purposes, they have relied on two judgments reported in (2006) 6 SCC 289, Vijay v. State of Maharashtra and 2008 (1) WLC 387, State of Rajasthan & Another v. Shri Subhash Chand Sharma & Others. In the cases, decided above, it was held that substitution of the existing proviso is having retrospective effect, inasmuch as, by amendment, what was substituted shows that there was a clear intention to effect amendment retrospectively as ain the case of Vijay (Supra) the amended provision reads as aunder :- “14. Disqualification :- No person shall be a member of Panchayat or continue as such, who - “ Perusal of the amended provision reveals that no person can be elected as a member of Panchayat or even continue as such if he attains one of the disqualifications as brought in by way of amendment. Therefore, even continuance of a member of Panchayat, the amendment was made operative and thereby it was treated to be retrospective amendment. So far as the present case is concerned, though there is substitution in the provisions of Section 6, but there exists no intention to treat it retrospective. The relevant consideration, for this purposes, is even the language of the amended provision so as to find out as to whether the legislature intended to give amendment retrospective effect or not, because there is no express provision for effecting amendment retrospectively. Thus issue now remains as to whether there exists any intention to apply amended provision retrospectively. The perusal of the amended provision does not show that it is intended to be applied retrospectively, because with the substitution of the provision, old provisions cease to exist and from the date of amendment, new provision becomes operative. The aforesaid issue was considered by Hon'ble Apex Court in the case of K.V.Kamath v. K.R.Baliga, 1969 (1) SCC 255. Therein, referring to the another judgment of the Apex Court in the case of Firm A.T.B. Mehtab Majid & Co. v. State of Madras & Another, (1963) Supp. 2 SCR 435, it was held in para 8 and relevant portion is quoted hereunder :- “The process of substitution consists two steps. First, the old rule cease to exist and next the new rule is brought into existence in its place.” In reference to the aforesaid finding, it can be visualized that in view of the substitution, the old provisions cease to exist and the new provision is brought in existence in its place thus for applying amended provision, the crucial date remains the date of amendment only. It is apart from the fact that if Notification dated 22.02.2006 is given retrospective effect, then, it will unsettle many settled matters effecting vested rights also. The learned counsel for the respondents has rightly stated that thousands of cases have already attained finality under Section 6 then existing and there, the revision of rent is at the rate of 7.5% per annum and if the amendment is applied retrospectively, then, all those cases either would also be unsettled or if not unsettled, then, by implication of those matters already decided and attained finality, will have revision of rent at the rate of 7.5% per annum, whereas pending and new cases, determination of rent would at the rate of 5%, even for the period when rate of 7.5% was in existence and, in that eventuality, even one and the same provisions of law would create two categories one getting the revision of the rent at the rate of 7.5% and, in other set, landlord getting revision at the rate of 5% for one and same period. This position cannot be accepted as interpretation of law cannot create discrimination. Recently, the Hon'ble Apex Court in the case reported in (2007) 9 SCC 650, Madishetti Bala Ramul (Dead) by LRS. v. Land Acquisition Officer, held that substantive provisions cannot have retrospective operation. The same view was earlier taken by the Hon'ble Apex Court even in the case reported in (1990) 1 SCC 411 P.Mahendran v. State of Karnataka, relevant portion of paras 4 and 5 is quoted hereunder :- “Every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the Rules showing the intention to affect existing rights the rule must be held to be prospective. If a rule is expressed in a language which is fairly capable of either interpretation it ought to be construed as prospective only. In the absence of any express provision or necessary intendment the rule cannot be given retrospective effect except in matter of procedure.” In the present matter, the substitution of 7.5% by 5% is made as the expression of 7.5% exists at many places. Thus, the use of word “substitution” is for convenience and to make the amendment clear, thus expression 7.5% is to be read as 5% w.e.f. the amendment and, in that case, the substitution of the provision, i.e., amendment is to be treated as prospective in nature. It otherwise will not take away the vested right, because by virtue of the enactment of Rajasthan Rent Control Act, 2001 the revision of rent was determined at the rate of 7.5% per annum and many of the cases have already attained the finality and, thereby, a right vests in favour of those persons and if the amended provision is given retrospective effect, then, it will affect even the vested right which otherwise is not permissible while making interpretation of statute, unless it is expressly provided. Thus, taking an overall view of the matter, the amendment in Section 6 by virtue of Notification dated 22.02.2006 is declared to be prospective in nature. It is held that the determination of rent for the period subsequent to the amendment would be at the rate of 5%. However, for the past period revision of the rent would be at the rate so existing prior to the amendment, i.e., 7.5%. The directions aforesaid would apply to the present cases also and, thereby, increase of rent at the rate of 7.5% would be till 22.02.2006 and subsequent to the aforesaid date it would be at the rate of 5%. If the impugned orders challenged in these writ petitions have any expression contrary to the what has been held above, then, they stand modified. All the writ petitions are disposed accordingly with no order as to costs. (M. N. BHANDARI), J. scd