JUDGMENT-The applicant is a tenant of house No. 26/271 and No. 26/272 situated in Ambapeth, Amravati, owned by opponent No. 1 Manohar and his mother. The opponent No. 1 addressed a letter to the applicant on 23-3-1970 requesting him "to increase the rent by at least Rs. 50/- only p.m. from 1-4-70 over and above the present rent.". The present rent admittedly is Rs. 155/. for both the blocks. In the letter the house was referred to as being used for commercial purposes. The applicant, however, disputes that the entire house was used for commercial purposes, and according to him, one block was used for residential and the other one for non-residential purposes the rent for the residential block being Rs. 65/- and the rent for the non-residential block being Rs. 90/- per month. In the same letter, the opponent No. 1 wrote: "In case you find it difficult to pay the increased rent as above, with effect from 1-4-70. I would request you to kindly arrange to vacate the house and oblige us." According to the applicant-tenant, the demand for increased rent and possession made by the landlord amounted to violation of the provisions of clauses 8 and 13 of the C. P. and Berar Letting of Houses and Rent Control Order, 1949. He, therefore, filed a complaint under section 3 of the C. P. and Berar Regulation of Letting of Accommodation Act, 1946, (hereinafter referred to as the Act). After the complaint was filed on 20-12-71 the trying Magistrate recorded the statement of the complainant and decided to issue a notice to the accused to above cause why process should not be issued and he also issued a notice to the complainant to show as to how the complaint was tenable. The trying Magistrate heard arguments of counsel for both the parties and held that since no fair rent was determined for the house, there was no breach of clause 8 of the Rent Control Order. He also held that as the letter in question cannot be treated as a valid notice terminating the lease as contemplated by section 106 of the Transfer of Property Act, no breach of clause 13 of the Rent Control Order was also committed. Consequently, he found that the complainant had failed to establish a prima facie case and dismissed the complaint under section 203 of the Code of Criminal Procedure. Consequently, he found that the complainant had failed to establish a prima facie case and dismissed the complaint under section 203 of the Code of Criminal Procedure. A revision application filed by the complainant-tenant against this order having been dismissed by the learned Sessions Judge, Amravati, the complainant has filed this revision application. 2. In this Court also the learned counsel appearing on behalf of the complainant-applicant argued that by making a demand for the additional rent of Rs. 50/- the landlord had violated the provisions of clause 8 of the Rent Control Order and he was, therefore, liable to be punished under section 8 of the Act. Section 8 of the Act provides that "if any person contravenes any order made under this Act, he shall be punishable with imprisonment for a term which may extend to three years, or with fine or with both." The order referred to in section 8 of the Act is the C. P. and Berar Letting of Houses and Rent Control Order, 1949. Before a person is convicted under section 8 of the Act, the complainant must show that the accused has contravened some provision of the Rent Control Order. It is difficult to see how the complainant can invoke the aid of clause 8 of the Rent Control Order. Before a person is convicted under section 8 of the Act, the complainant must show that the accused has contravened some provision of the Rent Control Order. It is difficult to see how the complainant can invoke the aid of clause 8 of the Rent Control Order. Clause 8 is as follows:- "Subject to the provisions of clauses 9, 10 and 11, when the Controller has determined the fair rent of a house- (a) the landlord shall not claim or receive any premium or other like sl1m in addition to rent or any rent in excess of such fair rent; but the landlord may stipulate for the payment of such rent in advance each month; (b) any agreement for the payment of any sum in addition to rent or of rent in excess of such fair rent shall be null and void in respect of such addition or excess and shall be construed as if it were an agreement for the payment of fair rent; (c) any sum, paid in excess of or short of fair rent from the date of the filing of application before the Controller to the date on which the fair rent is determined, shall be refunded by the landlord or paid by the tenant, as the case may be, or may otherwise be adjusted by mutual agreement." The learned counsel is relying sub·c1ause (a) of clause 8. Now, there is no doubt that sub-clause (a) of clause 8 prohibits the landlord from claiming or receiving any premium or other like sum in addition to rent, or even rent in excess of the fair rent. But the opening words of clause 8 will clearly show that the fair rent which is contemplated is the fair rent which is determined by the Rent Controller. The provisions of clause 8 (a) will come into play only in a case where the Rent Controller has already determined the fair rent of the house. What is prohibited is a claim or receipt of an amount or rent in excess of the fair rent fixed by the Rent Controller. The fair rent is to be fixed under clauses 6 and 7 of the Rent Control Order. Admittedly in this case the fair rent had not been fixed at any time and the demand of Rs. What is prohibited is a claim or receipt of an amount or rent in excess of the fair rent fixed by the Rent Controller. The fair rent is to be fixed under clauses 6 and 7 of the Rent Control Order. Admittedly in this case the fair rent had not been fixed at any time and the demand of Rs. 50/- as additional rent cannot, therefore, be said to have been made in violation of clause 8 of the Rent Control Order. 3. It is necessary to refer to clause 7· A of the Rent Control Order on which reliance has been placed by the Courts below. This clause provides as follows: "In the case of a house constructed before the 1st April 1940 of which the fair rent has not been determined, the landlord may with the consent of the tenant increase the refit within the limits of the increase allowed under sub clause (1) of clause 6 of clause 7, as the case may be and the rent so agreed shall, subject to any order that may be made by the Controller ill pursuance of clauses 4, 5, 6, 7 and 8 be deemed to be fair rent for the purposes of this order,. The provisions of this clause clearly point out that it is open to the landlord or the tenant to agree between themselves to a figure of enhanced rent subject of course to the maximum upper limit fixed under clauses 6 and 7. Both clauses 6 and 7 deal with houses constructed before the 1st April 1940. The maximum increase in rent permissible under clause 6 in the case or II house occupied wholly or mainly for purposes of residence is 12½ per cent of the original rent, and in the case of premises occupied wholly or mainly for non-residential purposes, the permissible increase is up to 50 per cent of the original rent. It does not appear to be the policy of the rent control legislation that in a case where the tenant is willing to pay the permissible increased rent to the landlord, the landlord must necessarily approach the Rent Controller for fixation of fair rent. It does not appear to be the policy of the rent control legislation that in a case where the tenant is willing to pay the permissible increased rent to the landlord, the landlord must necessarily approach the Rent Controller for fixation of fair rent. The agreement between the landlord and the tenant to pay enhanced rent is expressly made permissible by the provisions of clause 7-A and such agreed rent is fictionally made fair rent for the purposes of the Rent Oontro1 Order, subject to any order that may be made by the Rent Controller in pursuance of clause 4,5,6,7 and 8. It is open to the landlord, therefore, to make a request to the tenant to pay enhanced rent. Such a demand does not result in violation of the provisions of clause 7-A or 8 of the Rent Control Order. In the instant case, it is obvious that the increased demand does not go beyond the maximum prescribed under clauses 6 and 7 even assuming that the premises are used both for residential and nonresidential purposes. 4. It is also difficult to appreciate the contention that calling upon the tenant to vacate the premises has resulted in a breach of clause 13 (1) of the Rent Control Order. Clause 13 (1) (a) which is relevant for the present purposes is as follows: "13. (1) No landlord shall except with the previous written permission of the Controller,- (a) give notice to a tenant determining the lease or determining the lease if the lease is expressed to be determinable at his option; or When clause 13 (1) (a) refers to determination of the lease, the determination contemplated is one according to law. Section 106 of the Transfer of Property Act contemplates a notice of 15 days expiring with the end of a month of tenancy for determination of a lease and any notice which does not comply with the provisions of section 106 cannot be said to have validly determined the lease. In the instant case, the letter of the landlord is dated 20-3-1970 and the tenant has been called upon to vacate on the 1st of April 1970. On the face of it, it is a void and inoperative notice as not being in compliance with the provisions of section 106 of the Transfer of Property Act. In the instant case, the letter of the landlord is dated 20-3-1970 and the tenant has been called upon to vacate on the 1st of April 1970. On the face of it, it is a void and inoperative notice as not being in compliance with the provisions of section 106 of the Transfer of Property Act. The service of an invalid notice which does not bring about determination of the lease cannot be said to violate the provisions of clause 13 (1) (a) of the Rent Control Order. 5. I may refer to a decision of the Nagpur High Court reported in Crown v. Eknath1. The tenancy in that case was from month to month; but the landlord, without permission from the Rent Controller, sent to the tenant a letter requesting him to vacate the block within 24 hours and occupy another block lying vacant stating that he required the block to celebrate his daughter's marriage and for making urgent repairs. The landlord was prosecuted for having given a notice without the permission of the Rent Controller. It was held in that case that clause 13 (1) (a) of the C. P. and Berar House Rent Control Order, 1947, prohibited the giving of a notice without the permission of the Rent Controller determining the lease; but where the lease cannot in law be regarded as having been determined by, reason of the notice, the clause could not be said to be infringed. It was pointed out that the tenancy could be determined only under section 106 of the Transfer of Property Act by 15 days notice expiring with the end of the month of the tenancy and that as the notice could not in law be regarded as having determined the tenancy, clause 13 (1) (a) of the C. P. and Berar House Rent Control Order could not be said to have been infringed. It was patent on the face of the complaint and the notice of the landlord relied upon by the complainant that not even a prima facie violation of any of the provisions of the Rent Control Order bad been made out and the complaint deserved to be dismissed. 6. It was patent on the face of the complaint and the notice of the landlord relied upon by the complainant that not even a prima facie violation of any of the provisions of the Rent Control Order bad been made out and the complaint deserved to be dismissed. 6. It was, however, argued that while deciding the case, the learned Magistrate has gone into the merits of the contentions of the parties and the Magistrate had acted illegally in hearing the counsel for the -accused even before process was issued to him. Reliance was placed on the decision of the Supreme Court in Chandra Deo v. Prakash Chandra2. The Supreme Court in that, case while dealing with the scope of a preliminary inquiry into a complaint Contemplated by section 202 of the Code of Criminal Procedure, has pointed out that, permitting an accused person to intervene during the inquiry would frustrate its very object and that is why the legislature has made no specific provision permitting an accused person to take part in an inquiry. One of the objects of section 202 of the Code, as was pointed out by the Supreme Court in that case, was to find out what material there was to support the allegations made in the complaint and it was observed that it was the bounden duty of the Magistrate while making an inquiry to elicit all facts not merely with a view to protect the interests of an absent accused person but also with a view to bring to book a person or persons against whom grave allegations are made. Even in that case the Supreme Court had pointed out that an accused may remain present either in person or through a counselor agent with a view to be informed of what was going on, but since the very question for consideration being whether he should be called upon to face an accusation, he bas no right to take part in the proceedings nor has the Magistrate any jurisdiction to permit him to do so. On these observations it does appear that it was necessary for the Magistrate to have heard the counsel for the accused, though the accused could have remained present in the course of the inquiry. On these observations it does appear that it was necessary for the Magistrate to have heard the counsel for the accused, though the accused could have remained present in the course of the inquiry. But, as I have already pointed out, on the face of it the complaint does not make out even a prima facie case and the irregularity which the Magistrate has committed ' by hearing the accused at that stage cannot vitiate the order of dismissal of the complaint which could be the only order possible in this case. 7. In the result, the revision application fails and is rejected. Revision application rejected.