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2008 DIGILAW 1593 (PNJ)

Chet Ram v. Amar Nath

2008-09-17

VINOD K.SHARMA

body2008
Judgment Vinod K.Sharma, J. 1. This revision petition is directed against the order passed by the learned Rent Controller as affirmed by the learned Appellate Authority, on an application under Section 4 of the Haryana Urban Control of Rent & Eviction Act, 1973. 2. It was claimed by the petitioner that the premises in dispute were taken on rent @ 500/- per month for a period of one year beginning from 4.9.1981 to 3.9.1982 vide rent deed duly executed between the parties. It was claimed that the building was constructed much after the year 1962. It was also the case of the petitioner that expiry of the lease period the petitioner is holding the shop in question as statutory tenant. The rent @ Rs. 300/- per month was claimed besides house tax. The petition was contested. 3. The learned Rent Controller recorded a finding that the shop in dispute was completed much after the year 1962. The learned Rent Controller held the basic rent to be Rs. 200/- per month on the basis of evidence led with regard to the rent in the locality. The said finding has been affirmed by the learned Appellate Authority. 4. The learned Counsel for the petitioner vehemently contends that the formula adopted by the learned Court below is not in consonance with the settled law. 5. The contention of the learned counsel for the petitioner is that for the purpose of determining the fair rent under Section 4(2)(b) of the Act, the agreed rent is to be taken as basic rent and the increase is to be according to the formula under Section 4(3) of the Act. It is only in the case where there is no agreed rent, that the market rent can be looked into. In support of this contention the learned counsel for the petitioner has placed reliance on the judgment in the case of Ishwar Swaroop Sharma v. Jagmohan Lal, (sic) 2001 Vol. 19 page 1, wherein the Honble Supreme Court has been pleased to lay down as under :- "The key to the resolution of the dispute raised in the words "rent agreed" used in Section 4(2)(b). In a narrow sense rent is understood as the payment agreed to be made to the landlord by the tenant in consideration for the right to use the rented premise. In a narrow sense rent is understood as the payment agreed to be made to the landlord by the tenant in consideration for the right to use the rented premise. The landlord and the tenant agree that the tenant will be entitled to occupy and use the demised premises at an agreed rent. Without an agreement as to the rent payable there no tenancy is created. This is also how rent is defined in Section 105 of the Transfer of Property Act, 1882. The ejectment of assent is an integral to the concept of rent. If the word `rent is given this narrow meaning then, as urged by the appellant the latter half of Section 4(2)(b) would indeed be rendered redundant. But the Legislature has used the word `agreed in juxtaposition to `rent. If the word `rent is used in the narrow sense the word `agreed would be tautologous. We cannot assume that the Legislature has used any word without purpose. In our view, by using the word `agreed rent the Legislature intended to indicate that the word `rent must be construed in a wider sense to include, apart from the narrow connotation, any payment made for use of land where the quantum may have been fixed otherwise than by agreement. The land where the quantum may have been fixed otherwise than by agreement. The definition of the word `tenant in Section 2(h) of the Act also makes this clear : " "tenant" mans any person by whom or on whose account rent is payable for a building or rented land and includes a tenant continuing in possession after the termination of his tenancy..... 10. The tenancy being terminated the agreement ceases to operate as a voluntary bilateral transaction. With the cesser of the agreed tenancy, the agreement as to rent would also cease. Nevertheless, under Section 2(h) of the Act the tenant would be liable statutorily to make payment of `rent. Similarly after fair rent is fixed under Section 4 of the Act, the rent payable is not the agreed rent. 11. Therefore for the purpose of determining fair rent Section 4(2)(b) draws a distinction between cases where the parties have agreed to the rent and cases where the parties have agreed to the rent and cases where rent is payable otherwise than by agreement. 11. Therefore for the purpose of determining fair rent Section 4(2)(b) draws a distinction between cases where the parties have agreed to the rent and cases where the parties have agreed to the rent and cases where rent is payable otherwise than by agreement. In the first case, the agreed rent is to be taken as the base and the increase determined according to the formula provided in Section 4(3). In the second case, the base is the market rate." 6. The order passed by the Appellate Authority is not in consonance with the law laid down by the Honble Supreme Court. The revision is accordingly accepted. The impugned order is set aside. This case is remanded back to the learned Rent Controller to fix the fair rent in view of the law laid down by the Honble Supreme Court in the case of Ishwar Swaroop Sharma v. Jagmohan Lal (Supra). 7. The parties through their counsel are directed to appear before the learned Rent Controller on 17.10.2008.