Letting of Houses and Rent Control Order, 1949, clauses 4 and 5 - Order fixing fair rent--Date of operation.
On an application for fixation of fair rent, the Rent Controller cannot fix fair rent retrospectively from the date of the commencement of the tenancy but can only do it prospectively from the date on which he is moved.
IN THE HIGH COURT OF NAGPUR
Misc. Petn. No. 85 of 1952
Decided On: 29.08.1952
Kewalchand Kastoorchand Vs. Samirmal Jaini and Anr.
Hon'ble Judges/Coram:
Hidayatullah and Sen, JJ.
Citation: AIR 1953 Nag 146,1953 NLJ 233
1. The Petitioner Kewalchand is a tenant and has filed this petition praying that-
the order of the Rent Control Authorities be set aside and suitable direction be given to them to act in accordance with law, by a writ of certiorari or any other suitable writ, order or direction.
The petition is directed against, the Additional Deputy Commissioner, Nagpur, though in correct practice it was necessary also to bring up the order of the Rent Controller before us. The landlord of the premises against whom this petition is also directed is one Samirmal Jaini. At the hearing, Jaini was represented by a Counsel, but not the Additional Deputy Commissioner, Nagpur.
2. The Petitioner's case is as follows. Jaini has a house which is divided into various blocks, one such block being in the occupation of the Petitioner Kewalchand. Prior to Kewalchand, the block was occupied by one Kanhaiya Lal who vacated it sometime before 20th December 1948. The block was, however, allotted by the Additional Deputy Commissioner, Nagpur, to Kewalchand on the 20th December 1943. It is probable that he was a sub-tenant let into occupation of that block by Kanhaiyalal; but that is not a matter which affects the merits of the present petition.
3. The order of the Additional Deputy Commissioner allotting the block to Kewalchand is not before us; but' it is common ground that it does not name the rent to be paid by Kewalchand to Jaini. It is proved in the case by the deposition of Kanhaiyalal that he was paying at first Rs. 18-0-0 per month as rent for this block but about 1948 his rent was increased to Rs. 21-4-0 because of a 12 1/2 per cent increase which the landlord made and additional sums of 0-8-0 each as enhanced nazul rent and municipal taxes.
4. When Kewalchand came into occupation as a tenant, he sent Rs. 18-0-0 per month to his landlord by money orders, but those money orders were all refused. The landlord Jaini thereafter made an application to the Rent Controller, Nagpur, on 29-9-1951 asking for the fixation of a fair rent. This application was decided in his favour by the Rent Controller on 30-11-1951. By this order, the Rent Controller fixed the fair rent "at Rs. 23-3-0 or in round figures Rs. 24-0-0 per month with effect from 20th December 1948."
5. Against this order, an appeal was taken under the provisions of the Letting of Houses and Rent Control Order, 1949, to the Additional Deputy Commissioner. Nagpur, who 'inter alia' held that the fixation of the fair rent of the premises at Rs. 24-0-0 per month was correct and that the appeal had no substance. The present petition has, therefore, been filed by Kewalchand asking for the aforesaid writs and directions to the Additional Deputy Commissioner, Nagpur.
6. The Petition was argued on four points. The first contention of the tenant is that he is in occupation of block No. 148/2 and not, 148/3 as decided by the Rent Controller. It may be pointed out that the tenant led no evidence on this part of his case before the Rent Controller. He only filed an affidavit in this Court. Since the jurisdiction of the Rent Controller to fix a fair rent was in respect of the premises occupied by the tenant, we went into this matter and satisfied ourselves that no wrong assumption of jurisdiction was indicated, inasmuch as the Rent Controller has, in effect, fixed the fair rent of the premises held by Kewalchand. The jamabandis of the Municipality which have been produced by the landlord right from 1938 to 1952 show that the premises in occupation of Kanhaiyalal were bearing No. 159/A up to the year 1946-47 and the self-same premises now bear the number 148/3. This position is further fortified by the evidence of Kanhaiyalal recorded by the Rent Controller and this is not displaced by the production of the Voters' List which shows the premises as No. 148/2, because the Voters' List has practically no evidentiary value. We have not in this case decided whether additional evidence of this character can be accepted in proceedings before us in a matter arising under Article 226 of the Constitution. Since no error of jurisdiction has been demonstrated to us even on the documents now produced, we need not consider the legal aspect of the question in detail. We are satisfied that the Rent Controller has fixed the fair rent of the premises in occupation of Kewalchand.
7. The next point gives no trouble. The Rent Controller, on the basis of the data before him, found as a fact that the fair rent should be Rs. 23-3-0 per month. He then proceeded to round the figure to Rs. 24/-. It was conceded before us that this the Rent Controller could not do; and indeed, this power to go beyond the fair rent of the premises has not been shown to us from the Act or the Order framed under it. This portion of the order is, therefore, unsustainable.
8. The third point is that the tenancy of Kewalchand commences from 20-12-1948 and the application was made to the Rent Controller on '29-9-1951. The Rent Controller, in fixing the fair rent, has given a direction that the fair rent shall be Rs. 24-0-0 from the date of the commencement of the tenancy. This, it is contended, under the law the Rent Controller had no jurisdiction to order, it being conceded by the tenant that his order will relate back to the date of the petition before him and would be prospective thereafter. The short point in the case, therefore, is whether in fixing fair rent on an application by the landlord the Rent Controller can fix a fair rent retrospectively from the date of the commencement of the tenancy or only prospectively from the date on which he is moved. Here, we think, the answer is afforded by Clause 4 and 5 of the Order itself. They read as follows:
4. When on a written application by the landlord or tenant, the Controller has reason to believe that the rent of any house within his jurisdiction is insufficient or excessive, as the case may be, he shall hold such enquiry as may be necessary and record a finding.
5. If, on a consideration of all the circumstances of the case, including any amount paid or to be paid by the tenant by way of premium or any other like sum in addition to rent, the Controller finds that the rent of the house is insufficient or excessive, as the case may be, he shall determine the fair rent to be charged for the house.
9. The utilization of the words "the rent of any House is insufficient or excessive" in both the Clauses postulates that the Rent Controller has to consider the existing rent and its insufficiency or excessiveness. He cannot assume jurisdiction to fix a fair rent where the parties have not come before him with a clear-cut case of a fixed rent between them. In the present case, the tenancy commenced on 20-12-1943 and up to the time the landlord moved the Rent Controller, the question, what was the rent fixed between the parties, is a matter to be decided by the ordinary Courts of law. On the assumption that the rent was Rs. 21-4-0, the Rent Controller went into the question whether the rent fixed was insufficient or not. His finding is that the rent is insufficient and he has enhanced it to Rs. 23-3-0. In our opinion, the words of the clause, particularly the words "to be" in Clause 5, which are words of futurity, indicate that the Rent Controller':; jurisdiction arises in cases where the existing rent is found either insufficient or excessive and consequently his I order must be taken to operate prospectively from the date on which he is moved. The Rent Controller having acted beyond his jurisdiction by fixing the rent for a prior period also at that figure, that portion of the order is unsustainable.
10. the last point is that the taxes which have been taken into account by the Rent Controller are enhanced from the date of the commencement of the tenancy, whereas the taxes were enhanced by Re. 1/15/- from 1-10-1949. Since we are holding that the jurisdiction of the Rent Controller to fix a fair rent commences only from the date of the petition, it is obvious that the Rent Controller could take into account the enhanced rent (tax?) only from that date, and his order relating to any period prior to the commencement of the dispute before him is obviously enough unsustainable.
11. The Additional Deputy Commissioner in his appellate order has not given any consideration to this matter and his order is, therefore, defective for the same reasons. The orders of the Additional Deputy Commissioner and of the Rent Controller are quashed. The matter will now go back for a fresh decision according to law.
12. The petition is allowed with costs. Hearing fee Rs. 50-0-0 subject to certificate.
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