Raj Kumar vs Hari Chand

M.M. Punchhi, J.—This revision petition, at the Instance of the landlord, poses an interesting question, inv-olv ng(sic) the procedure to be adopted in fixation of fair rent under the provisions of the Haryana Urban (Control of Rent & Evicton) Act, 1973 (for short, referred to as the Act).

Brief facts of the case are that, on Decembar 31, 1973, the landlord filed an application, u/s 4 of the Act, before the Controller, asking him to fix fair rent, for the demised premises, which happens to be a shop in Moti Bazar, Hissar and rented out to the Respondent, at an agreed rent of Rs. 60/ per mensem Such fair rent, on fixation, is required to be operative from the date of the application under Sub-section (1) of Section 4 of the Act. In fixation of such fair rent, the Sub-sections of Section 4 of the Act, as it then stood on the date of the application, came into play, which are reproduced as usder:-

(2) In fixing the fair rent under this section, the Controller shall first determine the basic rent which shall be the rent agreed upon between the landlord and the tenant preceding the date of the application in respect of the building or rented land, 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.

(2) In fixing the fair rent, the Controller may allow an incre-ase or decrease on the basic rent determined under Sub-section (2) not exceeding twenty five per centum of the rise or fall in the general level of prices since the date of agreed rent or the date of application, as the case may be, in accordance with the All India whole-sale Price Index, as determined by the Government of India, relating to 31st December next preceding the date of application.

During the pendency of the application, on February 13, 1976, Sub-section (2), afore quoted, was substituted by Haryana Act No. 14 of 1976, and since then in(sic) stands thus:-

21 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 whereof 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 com-pleted 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.

During the trial of the application, attention of the Controller was invited to the amendment at a time when he had recorded sufficient evidence of the parties. Thereafter, vide a detailed order, he considered it fit to divert his enquiry towards and in terms of the language of the substituted Sub-section (2) of Section 4, and thus perimitted the parties to lead more evidence. The Rent Controller found the basic rent to be Rs 60/- per mensem, by employing the provisions of the amended Act and adding to it the All India Whole-sale Price Index, determined by the Government of India, relating to 31st December next, preced ng the date of the application, determined the fair rent to be Rs 74.49 paise. The Controller based his order, amongst others, on the statements of the tenant''s witnesses, Hari Chand, R W, 4 (tenant himself) and Bishan Dass, R W. 6, to come to the conclusion that the rent in the locality, in the year 1962, for similar shops, was not less than Rs. 6 /- per mensem and this rent he held to be the basic reut. Incidentially, the said rent coincided figuratively ith(sic) the agreed rent. Both the parties were dissatistied with the order of the Controller and two appeals were tiled before the Appellate Authority. They were disposed by a single judgment. The appeal of the tenant was allowed and the landlord was completely non-suited. As a necessary consequence, the appeal of the landlord was dismissed and his effort to seek further enhancement in the basic rent also proved abortive. This is how the matter has been brought to this Court in revision, by the landlord.

The learned Counsel for the Petitioner, primarily contended that the procedure adopted by the Courts below, was illegal inasmuch as they should have assessed the fair rent on the basis of the unamended law. and and not the amended law. It was highlighted that the agreed rent was Rs. 60/- per mensem, and that had to be treated as basic rent, whereto, a sum determinable under the whole sale Price Index, had to be added, in order to arrive at the cor rect figure of the fair rent. The parties do not dispute that the price index figure of Rs 14.49 paise has conectly been arrived at. This contention of the learned Counsel for the Petitioner cannot prevail for two reasons. Firstly, this ground was impjitoly(sic) given up before the Rent Controller and the parties started(sic) agitating under the amended law, when specific attention to that effec.(sic) stood invited to all concerned Secondly, neither this matter was taken up before the Appellate Authority in the grounds of appeal, nor was there any point taken at the time of the arguments. It is contended that the point goes to the root of jurisdiction and can be allowed to be taken up at this stage. But in the view, which is about to be taken, it would not be unecessary to dwell further on this matter.

6, The Controller assessed the evidence thread bare, and so did the Appellate Authority. The Controller took the basic rent to be Rs 6 / per mensem, on the basis of the evidence led by the tenant, but could not pin-pont that figure to have been available from a tenancy created in 1962(sic). The one allegedly created in 1962, came out in evi-dence of R.W 6 Bishan Dass, who said that since 1962, he had been paying Rs 55/-per mensem, for a shop somewhat similarly situated opposite the shop in question. It came out that the said rent was the fair rent, determined by the concerned aut oritiep(sic), prior to 1962. this instance faltere before the Appellate Authority. Another instance, which was pressed into service before the Courts below, unsuccessfully, was tenancy created by Balraj (P W. 9), of a shop is the same bazar, double the size of the shop in question, at the rate of Rs. 135/-pet mensem. This instance too faltered, because there was no documentary evidence to support the assertion of Balraj (P W. 9), who was the landlord of that shop as he could not produce operative account books. The learned Appellate Authority nonsuited the Petitioner on the sole ground that no instance had come to light of the creation of new tenancy in 1962, in order that the strict language of Sub-section (2) as has been substituted, could come to be applicable. That was a baffling result, which led to the dismissal of the petition.

It requires to be determined, as to whether the legislature in its wisdom had not foreseen an eventuality, in which fair rent would re main underteminable, in the event of no instance of a new tenancy created in 1962, becoming available. If it was considered that the instance of 1962 way so sacrosanct, that no other instance was aidedly possible, then it appears that the very purpose of Section a would be frustrated. The intention of the legislature cannot be spelled to leave the landlord, applying for fixation of fair rent, to be remediless. The only way to harmoniously construe the substituted Sub-section (2) of Section 4 of the Act is to treat instances of tenancy created In 1962, to be operative in the field, as an outer limit, and in the absence thereof tenancies-created prior the said year, to be taken into account in the fixation of rent, an indicative of the expected tenancies, fictionally to come into being in the year 1962. he domain of the Controller with in Sub-section (1) of Section 4, was to hold such enquiry, as he thought fit in order to determine the fair rent. The scope of that enquiry has a determined goal. If instances of 1962 are not strictly available, then the rent as prevalent in the year 1962 or even of yester years, can be taken into consideration, to grant relief to the landlord.

"One cannot lose sight of the fact that fair rent is expected to be operative subject to certain conditi ns, for a period of five years, u/s 5 of the Act. It is reviewable under certain circunstan-ces within that period, and th reafter as well, if the situation so warrants. The fixation of fair(sic) rent, in the nature of things, does Involve some enquiry at the instance o the Controller, for the purpose of arriving at a just and proper figure towards fixation of fair rent. The figure of Rs 60/(sic) arrived at by the Center Her,(sic) in a way was not altogether, a figure which could not be determined under the substituted Sub-section (2) of Section 4 of the Act, in the absence of specific instances of creation of tenancy in 1962.

Before parting with the judgment, it deserves mention that the landlord has not assailed this revision petition, the order of the Rent Controller, so as to claim a figure higher than that was granted to him, by that Court Equitably, as well, this figure of Rs. 60/- , as the basic rent, is just. Not only does it coincide with the agreed rent, but is practically of the same figure, even if the Courts below had chosen to rely upon the statement of Balraj (P. W. 9), who allegedly created a tenancy of double the shop with Rs 135/- per mensem in the year 1962. Half of it would fetch Rs. 67/1/2. Figuratively there is no error in arriving at the figure of Rs. 60/- , whether the case is approached under the amended or the unamended law. The discussion for planting o e me hod and uprooting the other would be purely acadmic and has to be left at this juncture.

In the result, the petition succeeds and the basic rent of the property in dispute, is re fixed at Rs 60/ per mensem Added to it the price index of Rs 14.49 paise, the fair rent would be Rs. 74 49 paise. As the ambit of the law requires, it has got to be paid from the date of the application.

Thus this petition succeeds but without any order as to costs. The order of the Appellate Authority is set aside.

R. M. S. Petition allowed.