JUPUDI PARTHASARATHY Vs. KONDAPALLI RAJESHWARI

JUDGEMENT

(1.) THIS revision is filed by landlord questioning the order dated 8. 8. 2002 passed by the learned Appellate Authority (Principal Senior Civil Judge), Rajahmundry in R. C. A No. 26 of 1999.

(2.) THE facts, in brief, are as follows, the petitioner-landlord filed an application for fixation of fair rent vide r. C. C. No. 68 of 1992 before the Rent Controller (Principal Junior Civil Judge,)Rajahmundry. On trial, the learned Rent Controller enhanced the rent from existing Rs. 50/- to Rs. 300/- per month with effect from the date of application under Section 4 of the A. P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short "the Act") i. e. , 13. 5. 1992. The learned Rent Controller also ordered that the landlord shall be entitled for enhancement of rent at the rate of 30% over the existing rent once in three years. The tenant questioned the said order before the Appellate Authority (Principal Senior Civil Judge), Rajahmundry vide r. C. A. Nos. 26 of 1999 which has been partly allowed under the impugned order. The Appellate Authority has confirmed the Rent Controller's order fixing the rent at Rs. 300/- per month, but has interfered with it in respect of periodical increase of rent by 30% for every three years on the ground that under Section 4 of the Act the Rent Controller has no such jurisdiction to order periodical increase while fixing the rent. It is this part of the Appellate Authority's order which is questioned by the landlord in this revision. I have heard both the learned counsel for the parties. The learned counsel for the petitioner-landlord contends that the power to fix the rent under Section 4 of the Act also includes the power to direct the periodical increase over the rent fixed. The learned counsel would also contend that the power exercised by the learned Rent Controller found in conformity with the law laid down by this court in Suresh Gir Vs. K. Sahadev, 1997 (6) ALT 436 (DB ).

(3.) PER contra, the learned counsel for the respondents-tenants contends that in view of the fact that sub-sections (2) to (4) of Section 4 of the Act have been held unconstitutional in the above referred decision of Suresh Gir, the learned rent Controller has no power to direct periodical increase of rent by 30% over the existing rent fixed. The learned counsel would also contend that the appellate Authority has not gone into the aspect as to whether the periodical increase of rent is justified or not in view of its answer to the first question on the jurisdiction of the learned Rent Controller to order periodical increase. In the light of the above, I have considered this matter earnestly. Sections 4 to 6 of the Act provided for entire mechanism relating to fixation of fair rent. It is, no doubt, true that the criteria fixed under sub-sections (2) to (4) of section 4 of the Act was held to have become illusory and accordingly struck down in the above referred decision of Suresh Gir. The striking down of sub-sections (2) to (4) of Section 4 of the Act was primarily on the ground that the criteria provided for working of sub-sections has been rendered illusory on account of passage of time. It is unfortunate that the legislature has not amended the Section 4 of the Act thereafter to provide realistic criteria in place of sub-sections (2) to (4) of Section 4 of the Act which existed earlier. In any event, since sub-section (1) of Section 4 of the Act is valid and upheld, the Rent Controller would be fully justified in fixing the rent on the criteria of "just and reasonable" as laid down in the aforesaid decision of Suresh Gir. Thus the power of the Rent Controller to fix the fair rent cannot be disputed. Similarly once the power to fix the rent is considered, the periodical increase of rent is also part of that power. It has to be remembered that the Rent controller was fixing the rent as on the date of application by the landlord which preceded couple of years before the actual fixation of fair rent. The Rent controller, therefore, would certainly take into consideration the fact that the passage of time taken by the court in adjudicating the fair rent would not prejudice the party approaching the court and would enable the Rent Controller to provide for periodical increase to offset the delay and to take into consideration the normal increase in rental values during the period for which the adjudicatory process was pending. I do not, therefore, think that there is any error committed by the Rent Controller in ordering for periodical increase over the rent freshly fixed by it. In the case on hand itself it is apparent that the application for fixation of fair rent was made on 13. 5. 1992, but the order of the Rent Controller fixing the rent was passed only in 1999 i. e. , more than seven years have passed and the said period of seven years had to be taken into account by the Rent Controller while fixing the periodical increase over the fair rent fixed as on the date of the application. Moreover, the fixation has not attained finality, as yet. The Appellate Authority failed to appreciate that if such periodical increase is not allowed, the landlord would be compelled to approach the court for fixation of rent repeatedly as the rent sought to be fixed as on the date of the application has to be finally adjudicated after lapse of couple of years and by the time final adjudication is made, fixation of rent which was sought for would become unrealistic on account of passage of time and escalation in rental values of the buildings. The legislative intention should not have been such that to make the party repeatedly approach the court for fixation of rent. Further under the scheme of Sections 4 to 6 of the Act, as referred to above, the criteria under sub-sections (2) to (4) of Section 4 of the Act is not workable, as those provisions do not exist after the judgment in suresh Gir. Similarly sub-section (5) of Section 4 of the Act could not be applicable as fair rent was not fixed in this case prior to commencement of the act. In addition to the above provisions, Section 5 of the Act imposes a prohibition on further increase of rent when the fair rent is fixed under this act and any increase or decrease in the fair rent fixed is allowable only if additions, improvements or alterations are made or there is a decrease or diminution in the accommodations or amenities respectively, as the case may be. On the analysis of these provisions, it would be noticed that once a fair rent is fixed, it cannot be revised except if the case falls under Section 5 of the act where additions, improvements or alterations are carried by the landlord as mentioned above. If an application for fixation of rent is made, (in this case it was made in 1992), the landlord puts only his estimation of fair rent on the date of application. It is impossible to visualize or claim or fix the fair rent which will be realistic and appropriate at the actual time of adjudication reaching its finality. Further Section 6 of the Act provides the landlord a right to claim increase in the fair rent only if taxes and cesses payable by the landlord is enhanced after fixation of the rent. If such contingency does not arise, in no case the landlord would be entitled for enhancement of rent from what was fixed from the date of application. In this view of the mater, therefore I am of the opinion that to offset the time gap between the date of application and the date of adjudication, the Rent Controller would certainly have jurisdiction to order the periodical increase in the fair rent as has been done in this case. What the quantum of such periodical increase as to whether it should be 5% or 10% or more would have to be taken by the facts of each case. Even in Suresh Gir's case the Division Bench of this Court in para-41 has interpreted the concept of fair rent to mean that it should be synonymous with 'reasonable rent' - reasonable from the point of view of both tenant and landlord. It undoubtedly excludes from its fold exorbitant rent and the abnormal or extraordinary circumstances. In view of the above, therefore, the rent Controller would certainly be justified in allowing the marginal increase over the rent fixed under Section 4 of the Act. Viewed from any angle, therefore, I am of the view that the Rent Controller had jurisdiction to provide for periodical increase over the rent fixed and the interference into the said order by the appellate Authority in the present case is wholly unjustified. As mentioned above, the learned counsel for the respondents also contends that the 30% increase ordered by the Rent Controller over the existing rent is not justified. However, the Appellate Authority has not gone into the said aspect as to how much increase is justified and it has merely set aside the aforesaid part of the Rent Controller's order on the ground that it had no such jurisdiction. Since the said view of the Appellate Authority is reversed, it is, but appropriate that the Appellate Authority shall now consider as to whether the periodical increase as ordered by the learned Rent Controller is justified on facts and pass a fresh order in the appeal to that extent.