Judgment:
S.S. Saron, J.
1. The petitioner, Smt. Kastoori, is the landladyand owner of the premises let out to the respondent who is a tenant. The demised premises was constructed in 1969 and were let out to respondent in terms of rent note dated5.9.1969 executed by the respondent for a period of 11 months. However, the respondent continued as a statutory tenant after the expiry of 11 months. The rent in respect ofthe demised premises was Rs. 105/- per month excluding all other taxes for the fixed period of 11 months.
2. The petitioner filed an application under Section 4 of the Haryana Urban (Control of Rent & Eviction) Act, 1973 (hereinafter referred to as the 'Rent Act')- It was stated that similar shops with similar facility in the vicinity of the demised premises were fetching a rent of atleast Rs. 400/- per month excluding all other charges. Accordingly, it was prayed that the fair rent of the premises be fixed after fixing the basic rent prevailing in the locality.
3. The petition was contested by the respondent. It was primarily contended that the petitioner is not the landlady and that in fact there was relationship of landlord and tenant between Mool Chand (husband of the petitioner) and the respondent. It is stated that rent was also paid to Mool Chand. The tenancy remained contractual throughout for which the agreed rate was Rs. 105/- per month which was agreed between Mool Chand and the respondent to be raised to Rs. 131/- per month. The learned Rent Controller framed the following issues:-
1. What is the basic rent of the demised shop? OPA
2. What should be the fair rent of the demised shop? OPA
3. Whether there is relationship of the landlord and tenant between the parties? OPA
4. Whether this Court has no jurisdiction to try the present application? OPR
5. Whether the applicant is estopped from bringing the present application as alleged? OPR
6. Relief,
4. Issue No. 3 was decided in favour of the petitioner and it was held that there is a relationship of landlord and tenant between the parties. In respect of issue No. 1 regarding basic rent of the demised shop it was found that the prevalent rate of rent in the locality can be fixed at Rs. 400/-per month. Accordingly, basic rent of Rs. 400/- per month was fixed. Since the basic rent had been taken at Rs. 400/- issue No. 2 regarding what should be the fair rent of the demised premises was also decided accordingly. Issue No. 4 was decided against the respondent and it was held that the Rent Controller had the jurisdiction to try the application. Issue No. 5 was also decided against the respondent. Accordingly the fair rent of the disputed premises was fixed at Rs. 400/- per month inclusive of house tax etc from the dale of application i.e. 19.5.1980.
5. The respondent filed an appeal against the order dated 8.5.1984 passed by the Rent Controller. The primary dispute before the appellate authority was regarding the fixation of fair rent. The learned appellate authority fixed the fair rent at Rs. 159/- per month in respect of the demised premises from 19.5.1980.
6. The petitioner has by way of the present petition assailed the order dated 16.5.1989 of the appellate authority.
7. Shri Munishwar Puri learned counsel for the petitioner has contended that the appellate authority erred in reducing the rate of rent from Rs. 400/- per month fixed by the Rent Controller to Rs. 159/- per month. This, it is contended runs counter to the statutory provisions of Section 4 of the Rent Act. It is also contended that for similar shops situated in the vicinity of the disputed premises, the monthly rent was Rs. 400/- per month. Therefore this should be the basic rent.
8. Shri H.S.Giani the learned counsel for the respondent however contends that the revision-petition merits dismissal as the appellate authority has rightly fixed the fair rent in respect of the demised premises. Besides, it is contended that in view of the Division Bench Judgment of this Court in Yoginder Mohan v. Krishan Lal, (2000-1)124 Punjab Law Reporter 738, the fair rent is to be fixed in accordance with the formula indicated therein.
9. In order to appreciate the respective contentions of the parties. Section 4 and 5 of the Rent Act may be noticed which read as under:-
'4. Determination affair 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 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 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 application.
(3) In fixing the fair rent, the Controller may allow an increase or decrease on the basis 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.
5. Revision in fair rent in certain cases. When the fair rent of a building or rented land has been fixed under Section 41 no further increase or decrease in such fair rent shall be permissible for a period of five years.
Provided that an Increase may be allowed in cases where any addition, improvement or alteration has been carried out at the expense of the landlord, and in the building or rented land which is in occupation of the tenant then at the request of the tenant.
Provided further that the decrease may be allowed in case where there is a decrease of diminution in the accommodation or amenities provided.
(2) Any dispute between the landlord and the tenant in regard to any increase or decrease under this Section shall be decided by the Controller.
10. The above provisions show that the Rent Controller on an application by the landlord or tenant 4s to fix the fair rent for the building rented out after holding an inquiry, The fair rent is to be fixed under Sub-section (3) of Section 4 of the Rent Act keeping in view the principles provided for in Sub-section (2) of Section 4. Section 4(2) provides the mode for fixing the fair rent. Section 4(2)(a) relates to building constructed before 31.12.1961 which is not applicable in the present case. Section 4(2)(b) of Rent Act provides for the determination of the basic rent in respect of buildings completed after 31.12,1961 or land let out after the said date, the rent agreed upon between the landlord and tenant preceding the date of application, or where no rent has been agreed upon, the basic rent is to be determined on the basis of rent prevailing in the locality for similar building or rented land on the date of application.
11. In Yoginder Mohan case (supra) the landlord had approached the Rent Controller for fixing of fair rent in respect of the premises let out to the tenant on a rent of Rs. 425/- besides house tax. An application under Section 4 of the Act was filed and fair rent of the tenanted premises was fixed at Rs. 439.11 by the Rent Controller with effect from 3.11.1978. This fair rent was raised to Rs. 533.40 vide order passed by the appellate authority in appeal, This fair rent fixed by the appellate authority in the, first proceedings was revised to Rs. 621,40 per annum operative from 24.3.1984, A petition in Yoginder Mohan's case (supra), was filed for revision of fair rent which was contested by the tenants. A Division Bench of this Court reiterated the principles for calculation of fair rent and considering earlier law on the point it was held as follows:-
'In our view the Controller would have to take the basic or agreed rent as thebasis for determining the fair rent payable on an application under rise or fall in thegeneral level of the prices for the dates indicated in Section. For determining thepercentage of increase he would have to refer to All India Whole Sale Price IndexNumbers as determined by the Government of India for the calendar year Immediatelypreceding the date of application. Thereupon, the Controller would have to proceed tofind out the percentage Indicated by the rise or fall in relation to the basic or agreedrent payable by the tenant to the landlord thus he would increase the basic or agreedrent by relying on such portion of the Price Index in the above manner to arrive at afinal figure of fair rent to be paid as rent. In order to obstracise the possibility of anyconfusion persisting any further we would demonstrate the application of the aboveprinciple in terms of the figures applicable to the present case.
Fair rent fixed by the Court vide dated 31.11.1985 Rs. 621.40dated 30.11.1985.Date on which the present application was filed forincrease in fair rent Rs. 13.1.1995Agreed or basic rent for the purpose of present petition Rs. 621.40Figure of whole sale price (index for the year 1984,as reflected in the Price Index determined by theGovt. of India, Rs. 604.50Figure or Price Index as indicated for the year 1994 Rs, 1409.59(immediately preceding the year of presentation ofpetition/application i.e., 1995Increase in Price Index (1409,50 - 604,5) Rs. 805.09percentage of difference between two figures of Price.Index Numbers, The Court can grant increase or decrease Rs. 133.18%to the maximum 25% under Section 4(3) i.e. 25% thepercentage of difference between two figures of PriceIndex Numbers which comes to 33.29%On this basis the increase in fair rent comes to Rs. 206.86(621.40 x 33.29)100 Therefore, the basic rent would be liable to be increased by ft sum of Rs. 206.86. Thus, the Court ought to have fixed the fair rent at Rs. 828.26 (Rs. 621.40 + 206.86)'
12. It was farther held that the Courts are required to follow the principle enunciated by a Division Bench of this Court in the case of Gela Ram v. Satpal Sharma, (1988-2)94 P.L.R. 35. It was also held that to comply with the requirement of fixation of fair rent under the provisions of Sub-section (3) of Section 4 the Court would adopt the method of calculation as indicated by their Lordships to arrive at an amount which ought to be fixed as fair rent.
13. Keeping in view the above principles the calculation as per formula laid down in Voginder Mohan's case (supra) would be as follow:-
'Basic Rent (as agreed in the rent note dated 5.9.1969 Rs. 105Date on which the present application for fixation of 19.5.1980fair rent was filed.Figure of WP1 for the year 1968 (year immediately 165.3 preceding year in which basic rent was fixed)Figure of WPI for the year 1979 (Year immediately 374.0preceding the years in which the present application was filed)Increase in Price Index (WPI) 208.7Percent of difference between the two figures of WPI 126.26%Maximum allowable increase 31.56%or decrease (25% of the percentage of difference)increase in Rent (31.56%) Rs. 33.14Increased Rent Rs.138.14
14. In the light of the above, the fair rent works out to be Rs. 138.14. The learned appellate authority has fixed the fair rent at the rate of Rs. 159/- per month. However, the respondent has not assailed the order of the appellate authority. Therefore, he cannot claim for fixation of the fair rent at Rs. 138.14 and the order of the appellate authority is liable to be affirmed.
15. Consequently, the revision-petition is without any merit and the same is accordingly dismissed.