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2001 DIGILAW 1432 (PNJ)

Neki Ram v. Balwant Singh

2001-12-21

J.S.NARANG

body2001
Judgment J.S.Narang, J. 1. This judgment would dispose of two revision petitions No. 30 and 308 of 1981, as the common questions of law and facts are involved in both the cases. It may be noted that the Appellate Authority disposed of the two appeals arising against two different orders passed by the Rent Controller by a common judgment dated October 15, 1980, which has been made subject of challenge in both the aforesaid revisions. 2. The facts which need to be noticed are that the landlord late Shri Hari Krishan filed an application before the Rent Controller for fixation of fair rent in respect of the premises defined and prescribed in the application and is being stated as demised premises. Shri Neki Ram is admittedly the tenant in the demised premises. It is vide rent note dated November 1, 1962, the tenant had taken the demised premises on rent for a period of six months at the rate of Rs. 70/- per month plus house tax. After the expiry of the period of tenancy, the tenant continued to be in use and occupation of the demised premises and resultantly claimed himself to be the statutory tenant. It is alleged that the shop of similar nature in the same locality fetches rent of Rs. 300/- per month and that the tenant is paying only Rs. 70/- plus house tax to the landlord. The stand of the landlord is that a shop in front of the demised premises owned by one Rajinder Parshad was given on rent on April 1, 1970 at a monthly tenancy of Rs. 175/- plus house tax. Similarly another shop in the locality belonging to the same person had been rented out at Rs. 175/- plus house tax per month on March 1, 1970. The description of both the aforesaid shops is that they are comprise of one Khan each, perhaps it means that it comprised of one room only whereas the demised premises comprised of two Khans. Resultantly, the landlord has claimed fair rent to be fixed at Rs. 300/- per month plus house tax in respect of the demised premises. 3. The claim of landlord has been contested by the tenant. It is alleged that after the expiry of the period of lease deed, he has become statutory tenant, as such, is protected under all the constraints and restrains provided in the statute. 300/- per month plus house tax in respect of the demised premises. 3. The claim of landlord has been contested by the tenant. It is alleged that after the expiry of the period of lease deed, he has become statutory tenant, as such, is protected under all the constraints and restrains provided in the statute. He has also taken the plea that Chabutra and Chappar have since been demolished, as a result of which, the benefit relating to the demised premises has ceased to exist and that the accommodation has been effected accordingly, 4. The pleas of the tenant have been controverted by the landlord and the stand taken in the application has been reiterated. Upon the pleadings of the parties, the issues were struck. The application has been accepted by the Rent Controller and that the fair rent has been fixed at the rate of Rs. 124/- per month plus house tax in respect of the demised premises. Aggrieved of the judgment dated September 15, 1979 passed by the Rent Controller, the landlord and the tenant both filed respective appeals before the Appellate Authority. Both the appeals have been dismissed by the Appellate Authority vide judgment dated October 15, 1980. C.R. No. 30 of 1981 has been filed by the tenant and C.R. No. 308 of 1981 hits been filed by the landlord. 5. The landlord is aggrieved of the finding in respect of the fair rent, the claim is that the fair rent should have been fixed at the rate of Rs. 300/- per month plus house tax. In this regard, reference has been made to the documentary evidence brought on record i.e. rent note dated November 1, 1962 executed between the parties for a period of six months, which has been exhibited as Ex. P6, and the rent notes executed in March 1970 and April 1970 by the other owners of the shops situated in the same locality in respect of which the rate of rent has been given as Rs. 175/- per month and that the said shops are comprised of one Khan (one room). Since the demised shop comprised of two rooms, therefore, the fair rent needed to be fixed at Rs. 300/- per month besides the house tax. 6. It is further argued that the case of the landlord is covered under the unamended provisions of the Act. 175/- per month and that the said shops are comprised of one Khan (one room). Since the demised shop comprised of two rooms, therefore, the fair rent needed to be fixed at Rs. 300/- per month besides the house tax. 6. It is further argued that the case of the landlord is covered under the unamended provisions of the Act. In this regard, my attention has been drawn to section 4 of the unamended Act which reads as under : 4. (1) The Controller shall, on 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 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. 3. In fixing the fair rent, the Controller may allow an increase 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 Wholesale Price Index, as determined by the Government of India, relating to 31st December next preceding the date of application. (4) xxx xxx xxx xx (5) xxx xxx xxx xx." 4. The aforesaid provision was amended in the year 1976, which reads as under :- (new) 4. Determination of fair rent :- (1) The Controller shall, on 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 inquiry as the Controller thinks fit. Such fair rent shall be operative from the date of application. Determination of fair rent :- (1) The Controller shall, on 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 inquiry as the Controller thinks 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 whereof was completed on or before the 31st day of the 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 the application. 3. In fixing the fair rent, the Controller may allow an increase or decrease on the basic rent determined under sub-section 2, not exceeding twenty-five per cent 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 average of All India Wholesale Price Index Numbers, as determined by the Govt. of India, for the calendar year immediately preceding the date of application. (4) xxx xxx xxx (5) xxx xxx xxx 7. The application for fixation of fair rent had been filed on February 27, 1975. The contention is that the case of the landlord is covered by old provision, and that was required to be decided in pursuant thereto. It is further contended that the amendment is applicable prospectively and not retrospectively being substantive in character and not procedural in nature. The application for fixation of fair rent had been filed on February 27, 1975. The contention is that the case of the landlord is covered by old provision, and that was required to be decided in pursuant thereto. It is further contended that the amendment is applicable prospectively and not retrospectively being substantive in character and not procedural in nature. The distinction drawn is that prior to the amendment, a building constructed at any stage, could come within the mischief of the provision and that for determining the agreed rate of rent, the basis of rent prevailing in the locality for similar building at any given point of time could be taken into consideration. Whereas in the amended provision, it has been specifically provided that the building such as in question would come within the mischief of the proviso only if the construction whereof was completed on or before 31.12.1961 and that the rent prevailing in the locality for similar building shall be the measuring feature only if it is let out in the year 1962. If the construction of the building has been completed after the aforesaid date, the agreed rate of rent shall be determined on the basis of the rent prevailing in the locality for similar building at the date of application. 8. The argument is, that no such stipulation and limitation has been provided in the old provision, as such, the new provision cannot be said to be procedural in nature and character, but substantively has taken away certain rights which were enforceable by and available to the person in question. The tailor made amendment has been provided while amending the section. Thus, anything which does not fit into the measurement would not fall within the periphery of the amended provisions. In support of this argument, Shri Balwant Singh Gupta, Learned Senior Advocate, appearing on behalf of the landlord has placed reliance upon the dicta enunciated by the Apex Court in re: Mahadeolal Kanodia v. The Administrator General of West Bengal, AIR 1960 Supreme Court 936. The relevant paragraph 8 of the said judgment reads as under : xxx xxxx xxx xxx xx 8. The principles that have to be applied for interpretation of statutory provisions of the nature are well established. The relevant paragraph 8 of the said judgment reads as under : xxx xxxx xxx xxx xx 8. The principles that have to be applied for interpretation of statutory provisions of the nature are well established. The first of these is that statutory provisions creating substantive rights or taking away substantive rights are ordinarily prospective: they are retrospective only if by express words or by necessary implication the Legislature has made them retrospective; and the retrospective operation will be limited only to the extent to which it has been so made by express words, or necessary implication. The second rule is that the intention of the Legislature has always to be gathered from the words used by it, giving to the words their plain, normal, grammatical meaning. The third rule is that if in any legislation, the general object of which is to benefit a particular class of persons, any provision is ambiguous so that it is capable of two meanings, one which would preserve the benefit and another which would take it away, the meaning which preserves it should be adopted. The fourth rule is that if the strict grammatical interpretation gives rise to an absurdity or inconsistency such interpretation should be discarded and an interpretation which will give effect to the purpose the Legislature may reasonably be considered to have had will be put on the words, if necessary even by modification of the language used." 9. Similar view has been expressed by the Apex Court in re: Moti Ram v. Suraj Bhan and others, AIR 1960 Supreme Court 655. The relevant paragraphs 8 and 9 of the said judgment read as under :- xxx xxx xxx xxx xx (8) That takes us to the other contention that the amended provision of S. 13(3)(a)(iii) applies. There is no doubt that if this amended provision applied to the present cases respondent I would not be entitled to obtain an order of ejectment. It is plain that by the amendment Legislature has imposed rigorous limitations on the landlords right to recover possession in the case of any building or rented land. The question is whether this amendment can be said to be retrospective in operation. It is clear that the amendment made is not in relation to any procedure and cannot be characterised as procedural. The question is whether this amendment can be said to be retrospective in operation. It is clear that the amendment made is not in relation to any procedure and cannot be characterised as procedural. It is in regard to a matter of substantive law since it affects the substantive rights of the landlord. It may be conceded that the Act is intended to provide relief to the tenants and in that sense is a beneficial measure and as such its provision should be liberally construed; but this principle would not be material or even relevant in deciding the question as to whether the new provision is retrospective or not. It is well settled that where an amendment affects vested rights the amendment would operate prospectively unless it is expressly made retrospective or its retrospective operation follows as a matter of necessary implication, The amending Act obviously does not make the relevant provision retrospective in terms and we see no reason to accept the suggestion that the retrospective operation of the relevant provision can be spelt out as a matter of necessary implication. We ought to add that Mr. Bindra has not argued that the initial provision in S. 13(1) which is retrospective is attracted in interpreting the amended provision in S. 13(3)(a)(ii). Such a contention would of course be wholly untenable. (9) There is another consideration to which reference may be made. If the new provision is held to be retrospective in its operation what would be the consequence ? Inevitably all pending actions in which landlords may have applied for possession of their buildings let out to the tenants under the provisions of S. 13(3)(a)(iii) as it stood before the amendment would automatically fail because they would not satisfy the tests imposed by the amended provision. If such a drastic consequence was really intended by the Legislature it would certainly have made appropriate provisions in express terms in that behalf. Where the Legislature intends to make substantive provisions of law retrospective in operation it generally makes its intention clear by express provisions in that behalf. We are, therefore, satisfied that S. 13(3)(a)(iii) as amended cannot apply to proceedings which were pending either before the Controller or before the appellate authority at the time when the amendment was made. Where the Legislature intends to make substantive provisions of law retrospective in operation it generally makes its intention clear by express provisions in that behalf. We are, therefore, satisfied that S. 13(3)(a)(iii) as amended cannot apply to proceedings which were pending either before the Controller or before the appellate authority at the time when the amendment was made. In this connection we ought to add that when the revisional application was argued before the High Court it was admitted by the appellant that it was the old law which was in force before the date of the amendment that applied to the case. Even so we have allowed Mr. Bindra to raise the point before us but we see no substance in it. This point has been considered by the Punjab High Court in Ram Parshad v. Mukhtiar Chand, (1958)60 P.L.R. 332, and it appears that the Punjab High Court has taken the same view about the effect of the amendment made in S. 13 (3)(a)(iii)." 10. Again similar view has been expressed by the Apex Court and additionally, it has been observed that while interpreting the provision, it should be construed as a whole and given harmonious construction. The referable paragraphs are contained in the judgment rendered in re : Arjan Singh and another v. The State of Punjab and others, AIR 1970 Supreme Court 703. The relevant paragraphs 4 and 6 of the said judgment read as under :- "xxx xxx xxx XXX 4. It is well settled rule of construction that no provision in a statute should be given retrospective effect unless the legislature by express terms or by necessary implication has made it retrospective and that where a provision is made retrospective, care should be taken not to extend its retrospective effect beyond what was intended." 6. On reading of the various provisions of the Pepsu Tenancy and Agricultural Lands (Amendment and Validation) Act, 1962, it appears to us that the legislature intended that Section 7 of that Act which introduced into the principle Act Section 32-KK should be deemed to have come into force on the 30th October 1956. Evidently the draftsman when he drafted Section 7 of that Act had in his mind the Amendment Act and not the principal Act. Evidently the draftsman when he drafted Section 7 of that Act had in his mind the Amendment Act and not the principal Act. The words "this Act" in Section 7 of the Amendment Act (Section 32-KK of the principal Act) in our opinion were intended to refer to the Amendment Act and not to the principal Act. It is true that ordinarily when a Section is incorporated into the principal Act by means of an amendment, reference in that Section to "this Act" means the Principal Act. But in view of sub-section (2) of Section 1 of the Amendment Act of 1962 that construction has become impermissible. Every statute has to be construed as a whole and the construction given should be a harmonious one. It may be that the legislature intended that Section 32-KK should be deemed to have come into force on the 30th day of October, 1956, on which day Section 32-FF became a part of the principal Act. It is possible that the legislature did not intend to give to that Section the same retrospective effect as it had given to Section 32-FF. It is not permissible for us to proceed on the basis that the legislature had enacted sub-section (2) of Section 1 of the Amendment Act 1962 by oversight. If any mistake had crept into that section it is for the legislature to correct the same and if is not for this Court to proceed on the supposition that the same was enacted by oversight." 11. On the other hand, Sh. R.S. Mittal, learned Senior Advocate, appearing on behalf of the tenant, has argued that the amended provision cannot be accepted as substantive in nature. The basic provision is for determination of fair rent. Thus reliance upon procedure which had been provided earlier has undergone change with the changed circumstances and that the amendment has been promulgated in the year 1976 keeping in mind and taking note of the rents which have been agreed to by the parties in the locality prior to a particular year, shall be nothing else but an exercise in futility. The Legislature has consciously and with an objective segregated the provision into two paras, one where the buildings which were constructed prior to December 1961 have been dealt with and the order para where the buildings constructed thereafter have been dealt with. The Legislature has consciously and with an objective segregated the provision into two paras, one where the buildings which were constructed prior to December 1961 have been dealt with and the order para where the buildings constructed thereafter have been dealt with. The buildings which were constructed prior to the aforesaid date, the rent prevailing in the locality in the year 1962 have to be examined and considered for determining the agreed rate of rent or the basic rent for the purpose of determining the fair rent. It is argued that the basic provision has not been changed. Thus, the substantive character of the provision continues to be reflected in the same manner in the amended provision as was provided in the old provision. Since the amendment has been promulgated which has been redescribed and which has re-prescribed the procedure, thus the amendment cannot be labelled as substantive in nature and character. It is only the procedure which has been changed for the benefit of the society at large. It is the settled law that where a provision undergoes procedural change only the retrospectivity is accepted and that the applications/petitions pending in respect thereof need to be decided as per the procedure prescribed by virtue of the amended provision. The old procedure becomes obsolete. In this regard, reliance has been placed upon he dicta of the apex court enunciated in re: V. Karnal Durai v. District Collector, Tuticorn and another, (1999) 1 Supreme Court Cases 475. Reference his been made to paragraphs 14, 20 and 21, which read as under : "14. The Ld. Single Judge and the Division Bench, in our view, erred in not applying the judgment of this Court in Hindi Stone to the appeal that was pending before the appellate authority. We are of the view that the amended Rule 8(8)(a) which came into force on 19.12.1996 applied to the appeal which came to be disposed of on 1.4.1997. If that be so, the period of 3 years for a sand quarry lease must necessarily run from the date of execution of the lease deed." 20. In this context, we may point out that Rule 8(8)(a)(i) as it stood before the amendment had a proviso that the lease amounts for the second and subsequent financial years shall be fixed by way of an annual increase of 20%. In this context, we may point out that Rule 8(8)(a)(i) as it stood before the amendment had a proviso that the lease amounts for the second and subsequent financial years shall be fixed by way of an annual increase of 20%. We find, however, that the said proviso was dropped w.e.f. 19.12.1996. This is clear from the fact that the amendment states : "for sub-clause (i) including the provisos, the new amendment is substituted." "21. In the present case, the appellants tender was rejected on 22.3.1995 and the provision for periodic increase was there till 19.12.1986 only. In the circumstances of the case, we have put it to the appellants Senior Counsel that in the event the appeal is to be allowed, we will apply to old rule up to at least 19.12.1996 so far as the rate is concerned. Learned Senior Counsel agreed for such enhancement. The enhancement would be roughly for 2 years. In the peculiar circumstances of the case, we direct that the lease amount will stand increased, to start, by 40% of the offer, i.e. instead of Rs. 1.60 lakhs, it will be Rs. 2.24 lakhs per annum. The period of lease will run for a period of 3 years from the date of execution of the lease as stated in the amended Rule, at the rate Rs. 2.24 lakhs per annum. The appellant shall have to pay the seigniorage also as per the amended rules in addition to the lease amount. Time for payment of the enhancement in the lease amount or any balance of the lease amount or seigniorage will be one month from today." 12. I have considered the rival contentions of the learned counsel for the parties. I have also perused the dictas of the apex Court and I am of the opinion that the old provision provided much wider scope for determining the agreed rate of rent/basic rent when it came to be determined by taking into consideration the rent prevailing in the locality for similar building. It is not every day that the premises are vacated and are rented out so swiftly that the basic rent would become easily determinable by limiting the rights of the parties. It is not every day that the premises are vacated and are rented out so swiftly that the basic rent would become easily determinable by limiting the rights of the parties. In any case, the amended provision is not under challenge before me under the present defined jurisdiction, the Legislature out of its own wisdom has limited the rights of the parties to rely upon the persons renting out similar buildings only in the year 1962 in respect of those buildings which were constructed prior to December 31, 1961 and so far as the buildings, which were constructed after the aforesaid date, the rentals executed upto the date of filing of the application have been made applicable. It is not understandable what shall be the fate of an application where the basic rent has to be determined by relying upon the prevailing rent in the locality and no rentals have been executed in the year 1962 but admittedly the building is constructed prior to December 1961. Thus, any transaction for renting out a building which may have been executed in 1959, 1960, 1961, would not be available for measuring the basic rent. In such a situation, the rights of the parties, where the building has been constructed prior to December 1961, would be taken away and nothing will be available before the Tribunal to determine the basic rent. It can be thus safely inferred that the rights of the parties in such a situation would be said to have been affected substantively as the procedure applicable would not become handy in such a situation for determining the basic rent. Thus, relying upon the interpretation of the Apex Court given in Mahadeolal Kanodias case (supra), I hold that the amendment carried out in the aforesaid provision is not procedural but substantive in character and nature. Resultantly, the case of the petitioner has to be decided in pursuant to and in accordance with the old provision. 13. The other contention of the learned counsel for the landlord is that an application had been filed on 27.2.1975 for determination of fair rent. It deserves to be noticed that earlier rent note was executed between the parties on November 1, 1962 for a period of six months and the rate of rent agreed at was Rs. 70/- plus house tax. It deserves to be noticed that earlier rent note was executed between the parties on November 1, 1962 for a period of six months and the rate of rent agreed at was Rs. 70/- plus house tax. It is argued that after the expiry of the aforesaid period of six months, the status of the tenant became that of a statutory tenant and that the rent described and prescribed in the rent note did not remain agreed rent or basic rent payable in respect of the demised premises. Thus, upon the filing of the application for determination of fair rent, the Rent Controller was duty bound to determine the basic rent first and then apply the principle for determining the fair rent accordingly. 14. It is further argued that basic rent could be determined under two heads : (i) the rent agreed upon between the landlord and the tenant preceding the date of the application in respect of the demised premises; (ii) if no such agreed rent is in existence, the same has to be described and prescribed as per the procedure provided in the provision. The second situation is required to be dealt with by the Rent Controller by taking into consideration the rent prevailing in the locality for similar building and that the same shall have to be taken as the basic rent. In the case at hand, the tenant having become statutory tenant, as such, no agreed rent could be deciphered from any quarters. In this situation, the Rent Controller was required to determine the basic rent by taking into consideration the rent prevailing in the locality. In this regard, the rent notes executed prior to the date of the applications, which have been exhibited as Ex. P3 and P4 and having been executed on 1st of March, 1970 and 1st of April 1970, relating to the similar premises located in the same locality and that the rate of rent defined as per the said rent note is Rs. 175/- per month plus house tax were required to be kept into consideration. It may be recalled that said premises are defined as single Khan (single small room). The demised premises are comprised of two khans. Thus, the basic rent has to be determined accordingly. The claim of the landlord is that basic rent should be taken as Rs. 175/- per month plus house tax were required to be kept into consideration. It may be recalled that said premises are defined as single Khan (single small room). The demised premises are comprised of two khans. Thus, the basic rent has to be determined accordingly. The claim of the landlord is that basic rent should be taken as Rs. 300/- which is fully justifiable unless it is demolished by any contrary evidence which may have been produced by the tenant. The fact is that no such evidence has been brought on record by the tenant and that reliance has been placed only upon the rent note dated 1.11.1962 Ex.P6 executed between the parties, whereby the rate of rent has been defined as Rs. 70/- per month plus house tax. The argument is that the forums below have fallen into error in the first instance relying upon the amended provision and secondly taking the basic rent as Rs. 70/- plus house tax. On both the counts the forums below have erred and thus have come to incorrect decision in this regard. It is further argued that if the case of the petitioner-landlord is to be dealt with in accordance with any amended provision, the rent notes relating to the year 1970 can be safely relied upon as they pertain to the period prior to the filing of the application for determination of fair rent. 15. On the other hand, Shri R.S. Mittal, Learned Senior Advocate, appearing on behalf of the tenant has argued that the rent note having been executed between the parties on 1st of November 1062, determined the agreed rate of rent as Rs. 70/- p.m. plus house tax. The rent was being paid at that rate even after the expiry of period of six months. It is not at all correct that no agreed rate of rent existed between the parties. The conduct of the parties is self explanatory as the rent had been paid @ Rs. 70/- per month plus house tax. 70/- p.m. plus house tax. The rent was being paid at that rate even after the expiry of period of six months. It is not at all correct that no agreed rate of rent existed between the parties. The conduct of the parties is self explanatory as the rent had been paid @ Rs. 70/- per month plus house tax. This fact stands corroborated from the fact that an application had been filed for seeking eviction of the tenant on the ground of non-payment of rent after it has been determined by the Rent Controller while deciding the application filed by the landlord and at the time of filing the said application, no right has been reserved by the landlord for claiming any enhancement which may be suffered upon the decision of the present petition. Thus, the conduct of the petitioner belies the stand which has been taken now (since the three petitions have been taken up together and that the C.R. No. 404 of 1982, has been filed by the landlord seeking eviction of the tenant on the ground of short tender of the rent has been referred to larger Bench vide order dated October 30, 2001, passed by this Court, however, reference has been made to the application filed by the landlord in this regard). Learned Counsel has drawn my attention to the application filed by the landlord for claiming eviction of the tenant on the ground of non-payment of arrears of rent in respect of which C.R. No. 404 of 1982, has been filed in this Court. It shall be apposite to notice the pleadings contained in the application of the tenant which read as under : 3. That this shop was given to the respondent on rent by Shri Hari Krishana Dutta Advocate (father of petitioners No. 1 to 3 and husband of petitioner No. 4) vide rent note dated 1. 11.62 Rs. 70/- per month plus house tax. 4. That the Rent Controller Hissar has fixed fair rent of the above shop at Rs. 124/- per month plus house tax i.e. Rs. 136/40 per month vide order dated 15.9.1979 w.e.f. the date of application i.e. 27.2.75. 5. That the Municipal Committee Hissar has increased the rate of house tax from 10% to 12 and half per cent from April 1980. 6. 124/- per month plus house tax i.e. Rs. 136/40 per month vide order dated 15.9.1979 w.e.f. the date of application i.e. 27.2.75. 5. That the Municipal Committee Hissar has increased the rate of house tax from 10% to 12 and half per cent from April 1980. 6. That according to law the respondent is bound to pay to the petitioners the increased house tax i.e. rent Rs. 124/- plus Rs. 15/50 as house tax, totalling Rs. 139/50. The respondent was also served registered A.D. notice through Advocate. The copy of the notice, the postal receipts are attached herewith. 16. That the respondent is liable to be evicted on the following grounds :- A- That the respondent has not paid the arrears of rent, House Tax and the interest mentioned below inspite of repeated demands and notices : 1845-64 The difference of original rent and the fair rent (fixed by the Controller) for the period of 27.2.75 to 30.9.77 @ Rs. 59.40 P.M. 4092-00 Rent i.e. fair rent from 1.10.77 to 31.3.80 at the rate of Rs. 136.40 per month. 837-00 Rent from 1.4.80 to 30.9.80 @ Rs. 139/50 per month after increase of House tax. Rs. 6774-64 Total : 17. It is argued that the claim has been made by the landlord by accepting the basic rent of Rs. 70/- per month plus house tax. 18. It shall also be apposite to notice the plea taken by the tenant in para 8 of the application which reads as under : 8) That the petitioners have filed appeal against the order of fair rent for further increase. This application is filed without prejudice to their rights in the pending fair rent appeal fixed in the Court of Appellate Authority for 8.10.80. 19. It is further argued by the learned counsel for the tenant that though the rent note executed for the period Ist of November 1962 had run out the period prescribed therein but the agreed rate of rent is mentioned in the said rent note and relying thereupon the rent has been received at the rate of Rs. 70/- per month without any protest, as such, the agreed rate of rent has been correctly taken as Rs. 70/- per month plus house tax by the forums below. As such, the Rent Controller was not required to adopt the second mode for determination of basic rent. 70/- per month without any protest, as such, the agreed rate of rent has been correctly taken as Rs. 70/- per month plus house tax by the forums below. As such, the Rent Controller was not required to adopt the second mode for determination of basic rent. Resultantly, the fair rent has been determined which is again not admitted by the tenant and according to the calculation of the tenant, the increase could be granted only upto the extent of Rs. 97/- per month plus house tax. Thus, the rent has been incorrectly determined to this extent by the Rent Controller. It has been further argued that after the contractual tenancy has come to an end but the tenant continues to pay the rent at the said rate, the same shall be taken as agreed rate between the parties. In this regard reliance has been placed upon the judgment of the apex Court in re: Ishwar Swaroop Sharma v. Jagmohan Lal, 2000(2) RCR(Rent) 649 (SC) : (2001-2)128 P.L.R. 158 (S.C.), and the pointed reference has been made to para 13 of the judgment which reads as under : "13. For fixing the basic rent under Section 4 of the only question would be was there a subsisting agreement of tenancy under which rent was payable when the application for fixation of fair rent was filed ? If the answer is in the affirmative the agreed rent must be taken as the basic rent. If not, then the basic rent is the prevailing market rate. Therefore, even though the agreement may have been entered into in 1976 as is admittedly true in this case, but the tenancy was continuing until the date of the application, the Rent Controller was obliged to take the rate agreed to in 1976 as the basic rent under the first limb of Section 4(2)(b). It is only after the fair rent is fixed that the landlord could seek refixation under the second limb subject to the limitations provided in the Act, as the rent would then cease to be the agreed rent." 20. It is only after the fair rent is fixed that the landlord could seek refixation under the second limb subject to the limitations provided in the Act, as the rent would then cease to be the agreed rent." 20. It is argued that the Rent Controller has thus correctly taken the rate as agreed to in 1962, as the basic rent for the determination of fair rent and has also correctly declined to rely upon the rent notes in the year 1970 as he was not required to determine the basic rent as per the second limb of the unamended provision. 21. However, learned counsel for both the parties have placed reliance upon the judgment rendered by this Court in Yoginder Mohan v. Krishan Lal, 1999(2) RCR(Rent) 466 (P&H)(DB) : (2000-3)126 P.L.R. 221, for the purpose of calculation involved for determination of fair rent. 22. I have considered the rival contentions of the learned counsel for the parties and I have also perused the record accordingly. I am of the opinion that there is a considerable force in the argument of Mr. R.S. Mittal, learned Senior Counsel for the tenant that despite the contractual tenancy having come to an end the tenant continued to pay rent at the agreed rate defined in the rent note which was accepted accordingly by the landlord without any protest. Thus, the Rent Controller correctly arrived at a conclusion by taking Rs. 70/- as the agreed rate of rent for the purpose of determining the fair rent. 23. The other question as to whether the fair rent has been correctly determined by applying formula as enunciated under the statute and as interpreted by this Court from time to time. However, this Court has noticed divergent views expressed by different Benches of this Court and resultantly the question stood referred to larger Bench. A Division Bench of this Court has enunciated the formula for the purpose of determination of fair rent. 24. However, this Court has noticed divergent views expressed by different Benches of this Court and resultantly the question stood referred to larger Bench. A Division Bench of this Court has enunciated the formula for the purpose of determination of fair rent. 24. Accordingly in pursuant thereto the fair rent shall be determinable as under :- Price Index of 1962 104.1 (Base 1960-61=100) Price Index of 1974=303.9 (Base 1960-61=100) Increase in Price Index : 199.8 (303.9-104.1=199.8) Percentage of increase 199.8x100 = 191.93 in price Index---------- 104.1 Say: 192% 25% increase in price Index: $E192 X 25 over 100 > = 48% 100 Now increase in basic rent: $E48 X 70 over 100 > = 33.60 Amount of fair rent to be fixed : = 70+33.60 = 103.60 25. In view of the above, the petitions are disposed of accordingly and that the fair rent applicable shall be as above. The claim shall be made by the concerned party in accordance with law.