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2003 DIGILAW 910 (PNJ)

Malkiat Singh v. Khushi Ram

2003-07-09

S.S.SARON

body2003
Judgment S.S.Saron, J. 1. This revision petition under Section 15(6) of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (Act for short) has been filed against the order dated 4.12.l987 passed by the Appellate Authority under the Act at Ambala whereby the appeal preferred by the landlord- petitioner against the order dated 28.5.1987 passed by the Rent Controller, Ambala City has been dismissed: 2. Petitioner Malkiat Singh along with Swaran Singh (respondent No. 2) and Baldev Singh (respondent No. 3) are Owners of Shop bearing No. 6842/AMC, 562, Block V, Railway Road, Ambala City. Khushi Ram (since deceased) and now represented by his legal representatives Maya Devi and 6thers was tenant under them at a monthly rent of Rs. 37/-The petitioner filed an application under the Act before the Rent Controller, Ambala City fixation of fair rent. of the aforesaid demised shop it was alleged) that the demised prior was old construction and was constucted prior to.1939 No fair rent had been fixed by the Rent Cantroller whereas the rent rental value of the demised shop in the locality had increased besides amenitis like water electricity, sanitation etc: liable to be fixed at not less than Rs. less than that. 3. The appslication was contested by Khushi Ram (Since daceased).it was stated that the shop was constructed by Kewal Ram in the year 1954-55 and was let out to him in the year 1955-56. The rent of the shop was Rs. 25/p .per;month and later on the fair rent was fixed at Rs. 37/- per month on 12.1.1976, after the Act had come into force. Be-sides the shop is situated in a residential area (area and there were few customers. The local-ity,isalso not good trad and business purposes and there was no increase in the rental value in these circumstances it was it was stated that there was no question of enhanc-ing the rate of rent. Besides, the application was barred by the provisions of the Act; 4. The learned Rent Controller, Ambala on 18.10 1983 framed the following issues "1. What should be the fair rent of the disputed premises? OPA 2. Whether the application is not maintainable? OPR 3. Relief 5. The Rent Controller after considering the evidence and material on record ac-cepted the petition and fixed the fair rent of the demised shop at Rs. The learned Rent Controller, Ambala on 18.10 1983 framed the following issues "1. What should be the fair rent of the disputed premises? OPA 2. Whether the application is not maintainable? OPR 3. Relief 5. The Rent Controller after considering the evidence and material on record ac-cepted the petition and fixed the fair rent of the demised shop at Rs. 43/- per month from the date of the application The petitioner being dissatisfed with the order dated 28 5 1987 of the Rent Controller preferred an appeal before the Appellate Authority under the Act which was dismissed as not maintainable. it was observed that the Rent controller by an order dated 12.1.1976 had fixed the rent @ Rs. 37/- per month w.e.f. 1.8.1973.Thereafter in the year l983 after the lapse of five years thelandlord brought a fresh application for revision of fair rent iri view of the rise in price index and the fair rent was increased to Rs. 43/- per month from the date of application.Therefore, the fair rent had been fixed by the Rent Controller under Section 5 of the Act, it was held to be not an appealable order under Section 15(2) of the Act In support of this, the learned Appellate Authority relied upon a Full Bench |udgrnent of this Court in the case of M/ Daya Chand Hardayal v Bir Chand} (1983)J85.P.L.R. 775 (F. B ), wherein it was neld that any and every order of the Rent Controller appointed under the Act against which a party may claim to be aggrieved, has not become appealable under Section 15(2) of the Act by virtue of notification ,dated 8.5.1978, It was further held that the orders made by the Rent Controller under Sections 4, 10, 12 and 13 of the Act alone are appealable. T he petitioner has thus filed the present petition. 6. T he petitioner has thus filed the present petition. 6. The "learned Senior-Advocate appearing for the petitioner has not seriously dis puted the dismissal or the appeal vide order dated 4.12.1987 by the Appellate Authority under the Act However, he has assailed the order dated 28.5.1987 of the Rent Contiol-ler It is contended that the Rent Controller failed to apply the correct principle governing the fixation/revision of the fair rent, besides during the intervening period of about seven years between the earlier order dated 12.1.1976 and the petition in the present case filed in March, 1983, the price index had shown steep rise and the increase of Rs. 6/- only was allowed by the learned Rent Controller which was grossly inadequate.Be-siJes the price index had also been wrongly taken into account to be that of 284.9 in the year 1982 whereas it was much, more. The fair rent, it is contended, is liable to be fixed as mentioned in the application. 7. In response, the (earned counsel for the respondents contended that the orders passed by the authorities below under, the Act are correct and in accordance with the statutory provisions of the Act and there is no illegality or impropriety in the orders that have been passed, which would warrant interference by this Court. 8. 1 have considered the respective contentions of the learned counsel appearing for the parties. It is appropriate to note that the relationship of landlord and tenant between the petitioner and Khusi Ram (since deceased), now represented by his legal representatives, is admitted. The determination of fair rent is to be done in accordance with Section 4 of the Act which reads as under:- "4. Determination of fair 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 operative from the date of application. Determination of fair 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 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 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 31 st 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) 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 (average of All India wholesale Price Index Number as determined by the Government of India, for the calendar year immediately preceding the date of application). (4) Notwithstanding that the fair rent for building or rented land has been fixed under the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the 1949 Act), a landlord or tenant of such building or rented land shall be entitled to get its fair rent fixed under this Section. (5) Notwithstanding anything contained in this Act, the Controller may fix the fair rent on the basis of the compromise arrived at between the parties to the proceedings. Such rent shall be binding only between the parties and their heirs." 9. (5) Notwithstanding anything contained in this Act, the Controller may fix the fair rent on the basis of the compromise arrived at between the parties to the proceedings. Such rent shall be binding only between the parties and their heirs." 9. In the case in hand, it is not in dispute that earlier the basic rent of the demised premises was fixed at Rs. 37/- per month in the year 1976. The application under the Act was filed in the year 1983. The provisions of Sub-section (3) of Section 4 of the Act enjoins that in fixing the fair rent, the Controller may allow an increase or decrease on the basic rent determined under Sub-section (2) of Section 4 not exceeding by 25% of the rise or fall in 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 All India Wholesale Price Index Number as determined by the Government of India, for the calendar year immediately preceding the date of application. In the year 1982, that is, immediately preceding the year 1983 in which the application under the Act was filed, the price index was 284.9. It was found by the Rent Controller that the increase was 112.5/172.4 which comes to 66% and 25% of this comes to 16.6%. Accordingly, on the basic rent of Rs. 37/- increase of 16.6% was applied which came to Rs. 5.92 or say Rs. 6/-. Therefore, the fair rent was fixed at Rs. 37/- basic rent plus Rs. 6/- i.e. Rs. 43/- per month. This fixation is in accordance with the judgment of this Court in Vijay Kumar V/s. Ram Lal, 1987 Haryana Rent Reporter 349. The earlier judgment in the case of Bhim Sain V/s. Pushpa Devi} 1984 H.R.R. 418 was held to be inapplicable. 10. The learned senior counsel appearing for the petitioner, however, contended that Bhim Sains case (supra) was liable to be applied. The earlier judgment in the case of Bhim Sain V/s. Pushpa Devi} 1984 H.R.R. 418 was held to be inapplicable. 10. The learned senior counsel appearing for the petitioner, however, contended that Bhim Sains case (supra) was liable to be applied. After giving my thoughtful considera-tion to the entire matter, it is appropriate to note that a Division Bench of this Court in Yoginder Mohan V/s. Krishan Lal, (2000-1)124 P.L.R. 738 held that in order to fix fair rent, the Rent Controller would have to take the basic or agreed rent as the basis for determining the fair rent payable on an application under rise or fall in the general level of prices for the dates indicated in Section 4 of the Act. For determining the percentage of increase, the Controller would have to refer to All India Wholesale Price Index Number as determined by the Government of India for the calender year immediately preceding the date of application and thereupon would have to proceed to find out the percentage indicated by this rise or fall in relation to the basic or agreed rent payable by the tenant to the landlord. Thus, the Controller would increase the basic or agreed rent by relying on such portion of the Price Index in the above manner, to arrive at a final figure of the fair rent to be paid as rent. Therefore, it is evident that the fair rent as fixed by the learned Rent Controller in the case in hand is in accordance with the judgment in Yogin-der Mohans case (supra). It is not shown as to how and in what manner the fixation, as has been done, is in any manner improper. 11. It is also appropriate to note that the scope of revisional jurisdiction of this Court under the Act is quite limited. In a case relating to the provisions of the East Punjab Urban Rent Restriction Act, 1949 , the provisions of which are pari materia to the Act in the case in hand, the Hon ble Supreme Court in case of Atma S. Berar V/s. Mukhtiar Singh, , held that the scope of re-visional jurisdiction under Section 15(5) of the Punjab Act is limited and is confined to testing the legality or propriety of the order or proceedings of the Controller. Besides this Court in Brij Mohan V/s. Meera Devi, 1999 2 RLR 655, held in the context of revisional Jurisdiction under the Act that the High Court can only interfere in the order passed by the Rent Controller and the Appellate Authority, if the legality and propriety of the same is questionable and that ordinarily the findings of fact arrived at by the said authority will not be interfered with unless they are erroneous, absurd or there is misreading of the evidence. 12. Keeping in view the above observations and the fact that the conclusion reached at by the Rent Controller are not in any manner shown to be erroneous or absurd. Besides, there has been no illegality, impropriety or misreading of evidence which would warrant interference by this Court in the exercise of its revisional jurisdiction. For the foregoing reasons, the petition is dismissed.