Bharat Lal vs Raj Kumar and Another

Ajay Kumar Mittal, J.—This revision petition filed by the tenant arises out of the judgment dated 12.5.2004 passed by the appellate

authority whereby the judgment dated 21.1.2003 passed by the Rent Controller allowing the petition filed by the landlord u/s 4 of the Haryana

Urban (Control of Rent & Eviction) Act, 1973 (in short ""the Act"") was modified by reducing the fair rent fixed by the Rent Controller from Rs.

1802/- to Rs. 1560/- per month. Put shortly, the facts necessary for disposal of the present revision petition as mentioned therein are that the shop

in question situated in the urban area of Safidon at Railway Road was rented out to petitioner-Bharat Lal at a monthly rent of Rs. 1200/-vide

agreement dated 5.1.1989, In the said locality, the rate of rent of the shops was about Rs. 3500/- per month. Accordingly, the landlords filed a

petition u/s 4 of the Act on 6.10.2001 for fixation of fair rent of the shop in question. Upon notice, the tenant filed a written statement raising

various preliminary objections. The averments made in the petition were controverted by the tenant and a prayer for dismissal of the petition was

made. Rejoinder to the written statement was also filed. From the pleadings of the parties, the Rent Controller framed the following issues:--

What is the basic rent? OPA

What should be the fair rent? OPA

Whether the petition is not maintainable in the present form? OPR

Relief.

On appreciation of the evidence led by the parties, the Rent Controller under issue No. 1 held the basic rent to be Rs. 1200/- per month. Issue

No. 2 was decided in favour of the landlords fixing the fair rent to be Rs. 1802/- per month. Issue No. 3 was decided against the tenant. The Rent

Controller vide judgment dated 21.1.2003 allowed the petition filed u/s 4 of the Act by fixing the fair rent of the shop in dispute at Rs. 1802/- per

month. Feeling aggrieved, the tenant took the matter in appeal and the appellate authority vide judgment dated 12.5.2004 modified the judgment of

the Rent Controller and fixed the fair rent of the demised premises at Rs. 1560/- per month instead of Rs. 1802/- per month fixed by the Rent

Controller. Hence, the present revision petition by the tenant.

Learned counsel for the petitioner-tenant submitted that u/s 4(2)(b) of the Act, a duty was cast upon the landlord respondent to have shown that

the demised building was constructed after 1961. According to the learned counsel, it was thereafter that the fair rent could have been assessed u/s

4(2)(b) of the Act. It was urged that the authorities below have erred in assessing rent u/s 4(2) by resorting to Clause (b) whereas the same was

required to be done under Clause (a) of Section 4(2) of the Act as the petitioner had not specifically averred and proved that the building was

constructed after 31.12.1961. Learned counsel for the petitioner relied upon the judgments of this Court in Smt. Rama Wati alias Ramo Devi v.

Sat Parkash of Thanesar, 1989 H.R.R. 71 and Malik Chand Vs. Ram Sarup Gupta,

On the other hand, the landlord-respondent submitted that the fair rent assessed by the appellate authority was correct. He referred to the

statement of the tenant Bharat Lal, who appeared as RW4 and stated that the rent of similar shop was Rs. 1000-1200 and there was no other

shop in the market on the railway road which was more than 15 to 20 years old and rate of rent was Rs. 2500-3000. It was urged by the learned

counsel for the respondents that in the light of this statement, it has rightly been held that the building in question was constructed only 15 to 20

years back i.e. much after 31.12.1961.

After hearing learned counsel for the parties, I do not find any merit in the revision petition. It would be expedient to refer to Section 4 of the

Act which specifies the method of determination of fair rent, the relevant portion of which reads thus:--

Determination affair rent--(1) The Controller shall, on an application by the tenant or the landlord of a building or rented land, fix the fair rent for

such building or rented land after holding such enquiry as he may think fit. Such fair rent shall be operative from the date of application.

(2) In fixing the fair rent under this section, the Controller shall first determine the basic rent which shall be-

(a) in respect of the building the construction where of was completed on or before the 31st day of December, 1961, or land let out before the

said date, the rent prevailing in the locality for similar building or rented land let out to a new tenant during the year 1962; and

(b) in respect of the building the construction whereof is completed after the 31st day of December, 1961 or land let out after the said date, the

rent agreed upon between the landlord and the tenant preceding the date of the application, or where no rent has been agreed upon, the basic rent

shall be determined on the basis of the rent prevailing in the locality for similar building or rented land at the date of application.

(3) to (5) xxxx

A plain reading of Section 4(2)(a) of the Act shows that the Controller is required to first determine the basic rent which shall be the rent

prevailing in the locality for similar building or rented land let out to a new tenant during the year 1962, where the construction of the building was

completed on or before 31.12.1961 or the land was let out before the said date. Under sub clause (b) of Section 4(2) of the Act, where the

building is constructed after 31.12.1961 or land let out after the said date, the basic rent shall be the rent agreed between the landlord and the

tenant preceding the date of the application, or where no rent has been agreed upon, it shall be ascertained on the basis of rent prevailing in the

locality for similar building or rented land at the date of application.

In the present case, in the statement of the tenant, it has been recorded that there is no such shop like the demised shop situated at Railway

Road which was constructed 15-20 years ago and the rate of rent whereof was Rs. 2500/- to Rs. 3000/-. This disposition of the tenant goes to

suggest that the building in question was constructed only 15-20 years ago i.e. much after the year 1961. A perusal of the written statement filed by

the tenant no where alleges that the shop in dispute was constructed prior to the year 1961. In the absence of any specific plea or any other

evidence, the recourse to Section 4(2)(b) of the Act is correct. In view of the above, the appellate authority had rightly determined the basic rent of

the demised premises at Rs. 1200/- per month being the agreed rent as per rent note, Ex.P2. The fair rent determined by the appellate authority at

Rs. 1560/-, thus, could not be faulted.

Further, no such point was raised before the Rent Controller. However, the appellate authority while repelling the aforesaid contention had

recorded as under:--

It has been disclosed by learned counsel for the petitioners (respondents in the appeal) that previously a petition for ejectment of the tenant

(respondent Bharat Lal) had been brought by petitioners Raj Kumar and Subhash Chander on the grounds of non payment of arrears of rent and

impairment of the value and utility of the demised shop claiming that the rate of rent was Rs. 1,200/- per month by the stand of Bharat Lal in those

proceedings was that the rate of rent was Rs. 400/- per month and that he had tendered arrears of rent as per the case of the petitioners but

claimed refund by way of counter claim and ultimately the ejectment petition as well as the counter claim were dismissed and tenant Bharat Lal

preferred an appeal which was dismissed by Shri P.L. Goyal, the then Appellant Authority, Jind, on 13.9.2000. A copy of that judgment (mark

P/1) has been placed on file (Rent Appeal No. 1 of 1999). Moreover, rate of rent has not been disputed in the present proceedings. In para No.

2(i) of the petition for fair rent, it was asserted that the rate of rent was fixed at Rs. 1,200/- per month vide an agreement dated 5.1.1989. In para

No. 2 (i) of written statement, it was pleaded that the corresponding para of the petition was correct regarding rate of rent. This shows that agreed

rent between the parties is Rs. 1,200/- per month. Learned counsel for the petitioners referred the statement of respondent-tenant Bharat Lal

(RW-4) who testified in his examination-in-chief that there is no such shop (like the demised shop) situated at Railway Road which was

constructed 15-20 years ago and the rate of rent whereof was Rs. 2,500/- to Rs. 3,000/-. According to learned counsel, this disposition of the

tenant himself goes to suggest that the building in question was constructed only 15-20 years ago i.e. much after the year 1962. In view of the

material on record, I am inclined to agree with the contention of learned counsel for the petitioners that learned Rent Controller rightly determined

the basic rent of the demised premises at Rs. 1,200/- per month being the agreed rent (as per rent note copy of which is Ex.P2).

Adverting to the judgment relied upon by the learned counsel for the petitioner in Smt. Ram Wati @ Ramo Devi and Malik Chand''s cases

(supra), it came as a finding of fact that the building therein was constructed prior to 1961. In both the pronouncements, the cases were governed

by Section 4(2)(a) of the Act. In view of the above, I do not find any error committed by the appellate authority which may warrant interference by

this Court. The revision petition being devoid of any merit is hereby dismissed.