KETHMUL Vs. HUSSAINI BEGUM

JUDGEMENT

(1.) THE Rent Control Appellate Authority held that a second application for fixing the fair rent is maintainable and therefore, this revision.

(2.) THE revision petitioner is the tenant. In 1983, the respondent/ the landlord filed H.R.C.O.P. No.1167 of 1982 under Sec.4 of the Act. Fair rent was fixed at Rs.221 per month. On appeal, it was quantified at Rs.211 per month. After the death of the petitioner's father, the petitioner and the respondent entered into a tenancy agreement. Notwithstanding the fact that the fair rent had been fixed in the above proceedings, a sum of Rs.500 per month was paid as rent and received by the respondent. In March, 1995, the respondent filed R.C.O.P. No.575 of 1995 for fixing the fair rent. THE learned Rent Controller while dismissing the petition on the ground that a second application for fixation of fair rent was not maintainable, proceeded to quantify the fair rent on the basis of the materials produced before him. THE fair rent thus fixed was Rs.1311 per month. THE respondent preferred an appeal. THE Appellate Authority relying on Malpe Vishwanath Acharya v. State of Maharashtra A.I.R. 1998 S.C. 602 came to the conclusion that a fresh petition for fixing the fair rent was maintainable, since both the parties had chosen to ignore the fair rent fixed in the earlier proceedings and since rent was paid at a rate fixed by consensus, allowed the appeal and confirmed the fair rent fixed by the Rent Controller.

(3.) RELIANCE was placed on the decision reported in Mohammed Anis v. Union of India J.T. (1993)2 S.C. 305 wherein the Supreme Court held that the Courts shall exercise their plenary and overriding power under Art.142 of the Constitution of India to do complete justice. According to the learned counsel, such powers should be exercised in this case where the petitioner is enjoying a property in a prime locality by paying a very meager rent. The decision in Khem Chand v. State of Rajasthan (1999)2 A.I.R.C.J. 438 was also relied on. In this case the Division Bench of the Rajasthan High Court held that Sec.6(2) of the Rajasthan premises (Control of rent and Eviction) Act, 1950, which "froze" the rent at the rate settled as on 1.1.1965 was ultra vires and unconstitutional. It was submitted that since Malpe Vishwanath's case,A.I.R. 1998 S.C. 602 clearly lays down that freezing of rents is unfair, this must be followed and the Appellate Authority had rightly done that. So there was no justification to interfere in revision.