Chander Bhan vs Nandlal And Anr.
1969 Latest Caselaw 66 Del

JUDGMENT

Deshpande, J.

(1) This is the landlord's second appeal against the concurrent findings of the Rent Controller and the Rent Control Tribunal fixing the standard rent of his premises occupied by the tenant-respondent

(2) The grounds pressed in arguments by the learned counsel for the appellant are discussed below. The learned counsel pressed for the relief of eviction, but this was rightly disallowed as the arrears of rent had been deposited by the tenant. It was argued that in fixing the standard rent the Rent Controller and the Rent Control Tribunal did nto take into account the market price of the land on which the premises were constructed though this was required to be done under Section 6(2) of the Act. I find, however, that the standard rent was fixed under Section 9(4) of the Act and nto under Section 6 at all. The Rent Controller had regard to the situation, locality and the condition of the premises,as required by Section 9(4) of the Act before arriving at the figure of the standard rent. The shop is a very small one of about 6'x 4'. The findings of the courts below are based on the criteria laid down by Section 9(4) as far as the evidence of such criteria was available. In the circumstances, they could nto be expected to take into consideration any factor other than those which were available to them. There is no reason to interfere with their concurrent findings offacts.

(3) The learned counsel also argued that the tenant did nto pay or deposit the rent for the month of December, 1966 after the order fixing the interim rent was passed by the Controller on 2-2-1965.

(4) He urged that the defense of the tenant was liable to be struck off for this reason. He has also made an application, CM109-J of 1969, for this relief. Firstly, this relief can be granted only by the Rent Controller as he is the proper authority empowered to do so under Section 15(7) of the Act. Secondly, the non-payment of rent for December, 1966 is neither admitted by the contesting respondent nor is it proved on the record. I cannot, therefore, enter into this question of fact at this stage. In fact, the order of the Rent Controller fixing the interim rent at Rs. 20.00 per month has been modified by the Rent Control Tribunal only in one respect, viz. by reducing the interim rent to Rs. 15.00 per month. It was open to the appellant to move either the Rent Controller or the Rent Control Tribunal to act under Section 15(7) to strike off the defense of the contesting respondent. If he did nto do so, those orders have become final as no appeal against those orders was filed in this Court. If there has been any failure on the part of the contesting respondents to pay rent for subsequent periods during the pendency of the appeal in this Court the appropriate remedies are open to the appellant before the Rent Controller. This disposes of all the grounds, which were urged before me in his argument by the learned counsel for the appellant.

(5) There is, however, one aspect of the case, which I felt bound to raise myself, though it has nto been raised by the appellant either before me or in the Courts below. It relates to the question whether the standard rent could be fixed by the Controller under Section 15(3) of the Act, even though an application for the fixation of the standard rent in the prescribed manner had nto been made under Section 9(1) of the Act and even though respondent No. 2 raised the dispute regarding the rate of the rent more than two years after the commencement of the tenancy, that is beyond the period of limitation fixed by Section 12 of the Act. In Man Mohan Chawla v. Jaswant Singh, Sao 203-D of 1966, decided by me on 24-1-1969, the agreed rate of rent was Rs. 160.00 per month and it was also the rate at which the rent was last paid by the tenant to the landlord within the meaning of Section 15(1) of the Act. The tenant's prayer for the fixation of standard rent was made after the expiry of two years from the commencement of the tenancy. The question for decision in that case was whether the period of limitation prescribed for an application for the fixation of standard rent under Section 12 could be circumvented merely by making the prayer for the fixation of standard rent in a written statement in reply to a petition for eviction. It was held that the period of limitation applied to the prayer made by the tenant even though this was done by way of a written statement instead of by way of an application. The tenant had also previously enjoyed the benefit of sub-section(2) of section 14 of the Act and therefore, the proviso thereto precluded him from trying to get that benefit again. No order could, therefore, be made by the Rent Controller either under Section 15(1) or Section 15(3) for the deposit of rent by the tenant for payment to the landlord, with the result that the question of fixation of standard rent under Section 15(3) did nto arise in that case at all.

(6) The facts in the present case are different. There is a dispute between the parties as to the rate of rent and, therefore, as to the amount of rent payable by the tenant to the landlord within the meaning of Sub-section(3) of section 15 of the Act. Subsection (1) of Section 15 does nto apply inasmuch as there is no evidence as to the rate of rent at which the rent was last paid by the tenant to the landlord within the meaning of sub-section (1), of section 15. An order for deposit of rent could not, therefore, be made by the Controller under Section 15(1). It could, however, rightly be made by him and he did so under Section 15(3) in view of the dispute between the parties regarding the rate of rent. The question is how the dispute regarding the rate of rent is to be decided by the Controller. The answer is provided by the latter portion of Section 15(3), which provides that the interim rent is payable "until the standard rent in relation thereto is fixed having regard to the provisions of this Act, and the amount of arrears, if any, calculated on the basis of the standard rent shall be paid or deposited by the tenant." In Man Mohan Chawla's case the words "having regard to the provisions of this Act" used in Section 15(3) seemed to me to refer inter alia to Section 9 and 12 of the Act. This observation was nto strictly necessary for the decision of that case in as much as there was no dispute as to the rate of rent in that case and hence section 15(3) was nto attracted at all.

(7) I am now inclined to agree with the learned counsel for the respondent that there are two distinct provisions in the Act for the fixation of the standard rent. The first provision is contained in Section 9 under which an application for the fixation of standard rent is made. For such an application the limitation is provided by Section 12 of the Act. In the majority of cases, an application for fixation of standard rent has to be made under Section 9 within the limitation prescribed by Section 12.

(8) The other provision is section 15(3) of the Act. This applies only when there is a genuine dispute between the parties regarding the rate and the amount of rent. It cannto be said that the existence of such a dispute depends on the sweet will of the parties. To circumvent the limitation prescribed by Section 12, the landlord or the tenant may be tempted to raise a dispute regarding the rate of rent and invite the Court to fix the standard rent under Section 15(3) even after the expiry of two years from the commencement of the tenancy. But, such circumvention is nto possible. For, if the Rent Controller can find out the rate at which the rent was last paid by the tenant to the landlord, then section 15(1) of the Act becomes applicable. In that event, it could nto be said that there is a dispute between the parties as to the rate at which rent is payable by the tenant to the landlord within the meaning of Section 15(3). It is only when there is no evidence at all as to the rate at which the rent was last paid by the tenant to the landlord and the tenant and the landlord are nto agreed as to the rate at which the rent is payable that a dispute under section 15(3) arises.

(9) The only way in which the Controller has to decide the dispute regarding the rate of rent is by determining the standard rent "having regard to the provisions of this Act" and by ordering the payment of the arrears of rent calculated on the basis of the standard rent within one month of the date on which the standard rent is fixed or such time as the Controller may allow in this behalf. The proper question to which the Controller is to address himself is nto what was the rate of rent agreed to between the parties. The enquiry as to what the contractual rent was would have been useful only if the Controller was bound to order payment of arrears of rent according to the contractual rent. But the latter half of section 15(3) makes it clear that the arrears of rent are payable on the basis of the standard rent and nto on the basis of the contract rent. This necessarily implies that the dispute as to the rate of rent between the parties is to be decided by the Controller nto by finding out the contract rent, but by the fixation of the standard rent.

(10) If the limitation of two years prescribed by Section 12 were to apply to the fixation of the standard rent under Section 15(3), the Controller would be unable to determine the standard rent whenever the dispute regarding the rate of rent has arisen after two years of the commencement of the tenancy. This would lead to the result that there would be no provision in the Act empowering the Controller to decide the dispute as to the rate of rent between the parties when the dispute arises more than two years after the commencement of the tenancy. Such result would be most unsatisfactory, in as much as it would he an admission of the helplessness of the Act to decide the dispute between the parties and to leave the dispute unresolved. The landlord would continue to demand the rent at the rate, which he alleges to be the contract rent, while the tenant would deny his liability on the ground that the contract rent is either different or that no rent was agreed between the parties at all. The only way to make sense of Section 15(3) is, therefore, to construe it as empowering the Controller to decide the dispute between the parties by the fixation of the standard rent. Since such determination of the standard rent is made by the Court in deciding the dispute between the parties, the question of limitation prescribed by section 12 does nto arise at all. The limitation governs only an application for the fixation of standard rent made by a party. It does nto apply to the determination of standard rent by the Controller under Section 15(3) in deciding a dispute between the parties as to the rate of rent. The words "having regard to the provisions of this Act" used in Section 15(3), therefore, mean that the Court must take into consideration the relevant provisions of the Act in fixing the standard rent under Section 15(3). Such relevant provisions would seem to include Sections 6, 7 and 9(4) which lay down various criteria for the fixation of standard rent. It would not, however, include section 12, inasmuch as the standard rent under Section 15(3) is determined by the Controller nto because any of the parties has made an application for its fixation, but only because the Controller has to decide the dispute between the parties regarding the rate of rent. The Rent Control- ler had, therefore, the necessary jurisdiction and power to determine the standard rent in this case under Section 15(3) and the exercise of this power was nto subject to the limitation prescribed by Section 12.

(11) For the above reasons, the appeal is dismissed with costs.