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2004 DIGILAW 1011 (RAJ)

S. C. Malhotra v. Bilam Kanwar

2004-07-20

SUNIL KUMAR GARG

body2004
Honble GARG, J.–This civil misc. appeal under Section 22 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as the Act of 1950) has been filed by the defendant-tenant (appellant) against the order dtd. 5.4.2004 passed by the learned Additional District Judge No. 2, Jodhpur by which in a suit filed under Section 6 of the Act of 1950 for determination of standard rent, the learned Additional Dist. Judge determined the provisional rent of the suit premises @ Rs. 3,000/- per month in place of Rs. 200/- per month. (2). It arises in the following circumstances: i) That the respondent-plaintiff filed a suit under Section 6 of the Act of 1950 for determination of the standard rent of the house No. 786, situated at Chopasani Road, Jodhpur (hereinafter referred to as the house in question) alleging inter alia that in the lower storey of that house in question, the appellant-plaintiff for last more than 40 years. It was further stated that the rented premises were purchased by the husband of the respondent and prior to that the defendant-appellant was tenant in that premises and area of the disputed residential accommodation is near about 1000 sq. ft. It was further stated that initially the rented premises were taken on rent by the defendant-appellant in the year 1953 and monthly rent was Rs. 27/- and during the course of arguments, it has further been admitted by the learned counsel for the respondent-plaintiff that since 1960 the rent was being paid @ Rs. 200/- per month, but since now valuation of the property has increased substantially and as per the valuation report, the prevailing market value of the rented premises is near about Rs. 16,00,000/- and if the rent is assessed on the basis of prevailing rate, it would come near about Rs. 12735/- per month and therefore the standard rent of the rented premises be determined and in that suit, a prayer was also made that provisional rent under Section 7 of the Act of 1950 be also determined. ii) After hearing both the parties, the learned Additional Dist. Judge vide order dtd. 5.4.2004 determined the provisional rent as Rs. 3000/- per month in place of Rs. 200/- per month after taking into consideration the valuation report as well as other facts of the case. iv) Aggrieved from the order dtd. ii) After hearing both the parties, the learned Additional Dist. Judge vide order dtd. 5.4.2004 determined the provisional rent as Rs. 3000/- per month in place of Rs. 200/- per month after taking into consideration the valuation report as well as other facts of the case. iv) Aggrieved from the order dtd. 5.4.2004, this appeal has been preferred by the appellant. (3). In this appeal, the main case of the appellant-defendant is that the provisional rent has been determined arbitrarily by the learned Additional Dist. Judge as the same has been increased from Rs. 200/- to Rs. 3000/- per month and therefore, the impugned order dtd. 5.4.2004 requires modification and this appeal deserves to be allowed. (4). On the other hand, the learned counsel for the respondent has supported the impugned order and it has been further submitted by the learned counsel for the respondent that since it is a discretionary order and has been passed after giving cogent reasons, therefore, the same does not require any interference and hence the present appeal be dismissed. (5). I have heard the learned counsel for the parties and gone through the materials available on record. (6). Before proceeding further, the concepts of standard rent and provisional rent and the scope of Secs. 6, 7 & 13(3)(4)(5) of the Rent Control Act have to be kept in mind. (7). The term `standard rent has been defined in Sec. 3(vi) of the Rent Control Act, which is reproduced here for ready reference:- ``(vi) ``Standard rent used in relation to any premises, means the rent therefore determined in accordance with the provisions of this Act. (8). In the second proviso to sub-sec. (2) the term ``fair rent has been used along with standard rent in alternative. The standard rent is also called ``fair rent in other Acts. (9). Before proceeding further, it may be stated here that Sec. 6(2) of the Rent Control Act, which deals with determination of standard rent, has been declared unconstitutional by this Court in Sohan Lal vs. Badri Narain & Ors. (1), and this aspect was also kept in mind by both the Courts below while fixing the provisional rent u/s. 7(1) of the Rent Control Act, but the learned Addl. District Judge No. 2 while determining the provisional rent also kept in mind the provisions of Sec. 6(3) of the Rent Control Act. (10). (1), and this aspect was also kept in mind by both the Courts below while fixing the provisional rent u/s. 7(1) of the Rent Control Act, but the learned Addl. District Judge No. 2 while determining the provisional rent also kept in mind the provisions of Sec. 6(3) of the Rent Control Act. (10). The second mode of determining standard rent is found in Sec. 6(3) of the Rent Control Act and the following factors are to be considered by the Court:- ``(i) the prevailing rent or standard rent for similar premises in the same locality. (ii) the various amenities (such as electricity, water connection, sanitary fittings and like) attached to the premises. (iii) the cost of construction, maintenance and repair thereof, (iv) the special reasons, if any, proved by the plaintiff, and (v) other relevant considerations. (11). But, fixation of provisional rent has to be made as per Sec. 7(1) of the Rent Control Act. (12). Section 7 is supplementary to Sec. 6. The opening words of Sec. 7(1) are.- ``upon the institution of a suit u/s. 6, which mean that as soon as suit u/s. 6 is instituted in the Court, sub- sec. (1) of Sec. 7 comes into play and it is the duty of the Court to fix a provisional rent in a summary manner within reasonable time. (13). As there is no mention in Sec. 7 about an application to fix the provisional rent, no application is necessary, it is duty of the Court to do so before proceeding further to fix the standard rent. But when the Court does not take any action u/s. 7(1) in the proceedings of suit u/s. 6, the affected party- landlord or tenant, as the case may, may request the Court by an application to fix the provisional rent forthwith. (14). Thus, the provisions of Sec. 6 are the genius of which Sec. 7 is the specie. Section 7 is supplementary to Sec. 6 and is not an independent provision. When there is a suit u/s. 6 the provisions of Sec. 7 will then operate otherwise not. Thus, Sec. 7 operates only when Sec. 6 already in operation. The provisional rent fixed u/s. 7(1) is adjusted on the decree of fixation of standard rent and it merges into the final order or decree passed u/s. 6. (15). When there is a suit u/s. 6 the provisions of Sec. 7 will then operate otherwise not. Thus, Sec. 7 operates only when Sec. 6 already in operation. The provisional rent fixed u/s. 7(1) is adjusted on the decree of fixation of standard rent and it merges into the final order or decree passed u/s. 6. (15). Both u/s. 13(3) as well as u/s. 7, the provisional rent has to be fixed by the Court. Such determination of the rent which is provisional in nature does not finally determine the rights of the parties and such provisional rent will be ultimately subject to the final determination of standard rent to be fixed by the Court u/s. 6 of the Rent Control Act. (16). In such circumstances, the Court should apply its mind by taking into consideration cumulatively the provisions of Sec. 13(3) as well as Sec. 7 for fixing the provisional rent. In such kind of case, it is not incumbent upon the Court to fix the provisional rent on the basis of principle of agreed rent alone as contemplated u/s. 13(3) of the Rent Control Act. The Court in such kind of case should also take into consideration the provisions of Sec. 7 of the Rent Control Act before determining the provisional rent. After considering both the provisions, the Court should determine such provisional rent which may be fair and just in the facts and circumstances of that case. (17). Thus, it is held that provisional rent u/s. 7 of the Rent Control Act can be fixed at a scale different from the contractual rent. (18). Furthermore, since the provisional rent has to be ``reasonable, the Court has to apply its mind and be satisfied itself prima facie what provisional rent will be reasonable. The enquiry will be preliminary and summary in nature. The Court may fix the same even on the ground of documentary evidence on record or may require both the parties to furnish affidavits for the purpose. No hard and fast rule can be laid down. (19). Apart from this, this Court in the case of Lal Chand vs. Rameshwar Lal (2), has taken a view that fixation of standard rent under the repealed Act pending on the date of commencement of the Rajasthan Rent Control Act, 2001, is to be governed by the Act of 1950. (20). (19). Apart from this, this Court in the case of Lal Chand vs. Rameshwar Lal (2), has taken a view that fixation of standard rent under the repealed Act pending on the date of commencement of the Rajasthan Rent Control Act, 2001, is to be governed by the Act of 1950. (20). Keeping the above principles in mind, the legality and propriety of the impugned order of the learned Addl. District Judge has to be examined. (21). In the present case, there is no dispute on the point that the appellant-defendant is the tenant of the rented premises since 1953 and since 1960, he is paying the rent at the rate of Rs. 200/- per month. (22). There is also no dispute on the point that rented premises are situated at chopasani Road, Jodhpur which is a prominent area of Jodhpur city and the whole lower storey of the house in question is in the tenancy of the appellant-defendant. (23). There is also no dispute on the point that as per the valuation report, the prevailing market value of the house in question is near about Rs. 16,00,000/- and from that point of view, the rent of the rented premises comes to Rs. 12,735/-. (24). In my considered opinion, the learned Additional Dist. Judge has very rightly considered this aspect of the matter and has determined the provisional rent @ Rs. 3,000/- per month. Looking to the fact that the rented premises were taken on rent by the appellant since 1953 at a rent of Rs. 27/- per month and since 1960, the appellant is paying rent @ Rs. 200/- per month and since 1960, the value of the house in question has increased as lot and if all the grounds are taken into consideration, fixation of provisional rent @ Rs. 3000/- per month cannot be said to be unreasonable or excessive in the nature or arbitrary. Apart from this since this is the provisional rent under Section 7 of the Act of 1950 and it cannot be said to be final determination of rent under Section 6 of the Act of 1950, from this point of view also, it cannot be said that the provisional rent determined by the learned Additional Dist. Judge is perse wrong or illegal. (25). In the present case, since the discretion which has been exercised by the learned Additional Dist. Judge is perse wrong or illegal. (25). In the present case, since the discretion which has been exercised by the learned Additional Dist. Judge is judicious exercise and therefore, it should not be interfered unless some special and cogent reasons are assigned to support that the discretion has been exercised wrongly. In this case, the learned counsel for the appellant has not shown any cogent and special reasons so that this Court may interfere with the impugned order and hence, the impugned order does not require any interference. (26). For the reasons mentioned above, the impugned order dtd. 5.4.2004 passed by the learned Additional Dist. Judge cannot be said to have suffered from basic infirmity or illegality and same does not require any interference by this Court and hence the appeal filed by the appellant is liable to be dismissed. Accordingly, the appeal filed by the appellant is dismissed. Cost made easy.