Case Note & Summary
The case involves two writ petitions under Article 227 of the Constitution challenging an order dated 7th October 2004 passed by the competent authority under the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947. The competent authority had declined to frame a preliminary issue regarding the maintainability of proceedings under Section 13A(2) of the Act. The background facts are that the respondent (M/s. Nanji Khimji & Co.) had filed a suit (Special Civil Suit 767 of 1995) against the predecessor-in-interest of the petitioners, N.P. Karandikar, alleging an oral agreement for purchase of property and that the defendant was a licensee in respect of two flats. The respondent sought possession after termination of licence. The petitioners contended that the proceedings under Section 13A(2) were not maintainable and sought a preliminary issue. The competent authority refused, holding that the issue involved mixed questions of law and fact. The High Court, after hearing counsel for both sides, upheld the order, noting that the question of maintainability could not be decided without trial as it required factual determination. The petitions were dismissed, and rule was discharged with no order as to costs.
Headnote
A) Rent Control - Preliminary Issue - Maintainability - Section 13A(2) Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 - The competent authority refused to frame a preliminary issue on maintainability of proceedings under Section 13A(2) - The High Court held that the question of maintainability involved mixed questions of law and fact and could not be decided as a preliminary issue without trial - The petition under Article 227 was dismissed (Paras 1-5).
Issue of Consideration
Whether the competent authority was justified in refusing to frame a preliminary issue regarding the maintainability of proceedings under Section 13A(2) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947.
Final Decision
The High Court dismissed the writ petitions, upholding the order of the competent authority. Rule was discharged with no order as to costs.
Law Points
- Preliminary issue
- maintainability
- Section 13A(2) Bombay Rents Act
- 1947
- Article 227 Constitution
- mixed question of law and fact
Case Details
2006 LawText (BOM) (06) 18
Writ Petition No.8952 of 2004 with Writ Petition No.8953 of 2004
Mr. A.K. Abhyankar with Mr. A.R. Patil for the Petitioners, Mr. A.G. Joshi for the Respondent
N. P. Karandikar (since deceased) through Legal Representatives Mrs. Mandakini Narayanan Karandikar & Ors.
M/s. Nanji Khimji & Co. a Proprietary concern through its proprietor Maganlal Khimji Thakkar
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Nature of Litigation
Writ petition under Article 227 of the Constitution challenging an order of the competent authority refusing to frame a preliminary issue on maintainability of proceedings under Section 13A(2) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947.
Remedy Sought
The petitioners sought to quash the order dated 7th October 2004 and to direct the competent authority to frame a preliminary issue on maintainability.
Filing Reason
The competent authority declined to frame a preliminary issue on the ground that the question of maintainability involved mixed questions of law and fact.
Previous Decisions
The competent authority passed an order on 7th October 2004 refusing to frame a preliminary issue.
Issues
Whether the competent authority was justified in refusing to frame a preliminary issue regarding the maintainability of proceedings under Section 13A(2) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947.
Submissions/Arguments
The petitioners argued that the proceedings under Section 13A(2) were not maintainable and that a preliminary issue should have been framed.
The respondent contended that the issue involved mixed questions of law and fact and could not be decided as a preliminary issue.
Ratio Decidendi
The question of maintainability of proceedings under Section 13A(2) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 involves mixed questions of law and fact and cannot be decided as a preliminary issue without trial.
Judgment Excerpts
The facts in these two petitions lie in a narrow compass and are as under :
The competent authority was of the view that the question of maintainability involved mixed questions of law and fact and could not be decided as a preliminary issue.
Procedural History
The respondent filed Special Civil Suit 767 of 1995 in 1995. The petitioners filed an application under Section 13A(2) of the Bombay Rents Act. The competent authority passed an order on 7th October 2004 refusing to frame a preliminary issue. The petitioners challenged this order by filing Writ Petition No.8952 of 2004 and Writ Petition No.8953 of 2004 under Article 227 of the Constitution.
Acts & Sections
- Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947: 13A(2)
- Constitution of India: 227
