1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5032 OF 2002 Vitthalal V.K.S. Seva Sanstha Ltd; Panore Petitioner versus Shri Krishna Sahakari Doodh Vyavasaik Sanstha Ltd; Panore Respondent Mr.P.D.Dalvi for petitioner. None for respondent. CORAM : A.S.OKA, J. DATE : 27th January 2010 JUDGEMENT :- 1. Heard submissions of the learned counsel for the petitioner. The challenge in this writ petition under Article 227 of the Constitution of India is to the judgement and order dated 30th October 2000 passed by the Trial Court on standard rent application filed by the respondent and the judgement and order dated 13th August 2001 passed by the District Court on a civil revision application filed by the petitioner and an appeal preferred by the respondent. 2. On 26th June 2000 the respondent made an application purporting to be an application for fixation of standard rent. In the 2 said application a reference was made to the order dated 4th May 1998 passed by the Co-operative Court by which the petitioner was directed to hand over possession of the suit premises to the respondent. Reliance is placed on the said order of the Co-operative Court which permits the respondent to apply for determination of rent to the competent authority. In the application it is stated that for executing the said order passed by the Co-operative Court, an execution application was filed. It is stated that the petitioner informed the respondent by letter dated 14th June 2000 that construction of the building has been completed. It was pointed out that the original premises was in possession of the respondent at monthly rent of Rs.30/-. It was alleged that the respondent handed over possession of the premises to the petitioner for demolishing the same and for reconstructing the same. In the application it was stated that as the newly constructed premises are ready for delivery of possession, the respondent was ready to offer rent at Rs.30/- per month. Therefore, prayer was made for fixing the standard rent of the newly constructed premises (suit premises) at Rs.30/- per month. 3. The said application was opposed by the petitioner by filing reply. The application was opposed on merits. Moreover, it was submitted that the provisions of Maharashtra Rent Control Act, 1999 (hereinafter referred to as "the said Act") were not applicable to the 3 newly constructed premises and, therefore, the Court had no jurisdiction to entertain and try the application. It was contended that the petitioner has invested a sum of rupees seventy to eighty thousand in construction of the suit premises. 4. The learned Trial Judge framed the issue of jurisdiction. The learned Trial Judge held that the respondent had applied for execution of the order passed by the Co-operative Court and in view of section 47 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the said Code"), all questions between the parties were required to be decided in execution. The learned Judge observed that fixation of the rent will have to be decided by the Executing Court. Thereafter the learned Judge proceeded to fix the standard rent of the suit premises at Rs.1,000/- per month. A revision application was preferred by the petitioner under sub-section 4 of section 34 of the said Act before the District Court. The respondent preferred an appeal before the District Court. The revision and the appeal were heard together and by the impugned judgement and order dated 13th August 2001 the revision application was dismissed and the appeal preferred by the respondent was allowed. The District Court directed that a reasonable rent in respect of the premises will be Rs.100/- per month inclusive of electricity bill, gram panchayat cess and water cess. 4 5. The learned counsel appearing for the petitioner submitted that the application filed by the respondent was for fixation of standard rent under the provisions of the said Act. He submitted that by no stretch of imagination the application could have been treated as one filed in execution. He submitted that under the orders of the Co- operative Court, a liberty was granted to approach the competent authority for fixation of standard rent. He submitted that the application was one under the provisions of the said Act. He submitted that a specific stand was taken before the Trial Court that the provisions of the said Act were not applicable to the village in which the suit premises are situated but the said contention has not been dealt with. He submitted that the appeal preferred by the respondent was not maintainable in law. He submitted that the respondent had adduced no evidence and therefore, there was no justification for the District Court to bring down the rent to Rs.100/- per month. He submitted that the issue of maintainability of the appeal has not been considered. None appears for the respondent. 6. I have carefully considered the submissions. The operative part of the order of the Co-operative Court reads thus :- "The disputant society is hereby directed to shift its office at any other place within a period of 8 days and 5 give the vacant possession of the said room to the Opponent Society. The opponent society is directed to complete the construction of its premises as early as possible and after completion of said premises hand over the possession of suit property to the disputant society on the basis of monthly rent which will be decided by Competent Authority in this behalf if the disputant applied for the same." If the application made by the respondent is perused, it was purported to be filed as an application for fixation of standard rent in accordance with section 8 of the said Act. The Trial Court was of the view that it was an application in execution. The order of the Co-operative Court provided that it will be open for the disputant before the Co-operative Court to apply to the competent authority for fixation of the rent. Obviously, the competent authority was not the Court which is going to execute the decree but was one which was empowered to determine the reasonable rent in respect of the premises. The Trial Court could have determined the reasonable rent, provided, the Trial Court had jurisdiction to do so under section 8 of the said Act. To decide the question whether the Trial Court had jurisdiction to determine the standard rent in accordance with section 8 of the said Act, it was necessary for the Trial Court to deal with the objection of the petitioner that the provisions of the said Act were not applicable to the village in which the suit premises is situated. Even assuming that the application could have been treated as a part of the execution, the 6 question was whether the Civil Court was competent to determine the reasonable rent. The Civil Court was competent to determine the reasonable rent, provided, the application was maintainable under section 8 of the said Act. 7. There was no appeal provided under any provisions of the said Code against the order passed by the Trial Court. The remedy of appeal is a creation of statute. Obviously, there was no provision either under the said Code or under the said Act under which the appeal could have been preferred. Therefore, the finding of the District Court on the issue of maintainability of the appeal is completely erroneous. 8. In view of the discussion made earlier, the Trial Court was required to decide an issue whether the provisions of the said Act were applicable to the suit premises. The Trial Court has not decided the said issue. Unless the said issue is answered in affirmative, the Trial Court could not have proceeded to fix the rent. In view of this position, it is not necessary to go into the aspect of quantum of the rent fixed. 9. Hence, I pass following order :- 7 (A) The impugned judgements and orders are quashed and set aside; (B) Miscellaneous Civil Application No.16 of 2000 is restored to the file of Trial Court; (C) The Trial Court will decide the issue regarding applicability of the provisions of the said Act to the suit premises. If the said issue is answered in favour of the respondent, the Trial Court will proceed to decide the application afresh in accordance with law. If the answer to the issue is negative, it is obvious that the application will have to be rejected or want of jurisdiction; (D) All contentions of the parties on merits are kept open; (E) Rule is made partly absolute in above terms with no order as to costs. (A.S.OKA, J.)