RAM PARSHAD Vs. RAGHBIR SINGH

JUDGEMENT

(1.) THE demised shop is situated at a crossing on the railway road in Hoshiarpur town. It was let by Ram Parshad, the landlord, to Raghbir Singh, the tenant, on August 18, 1961; at a rental of Rs. 100 per mensem. The tenant made an application under Section 4(2) of the East Punjab Urban Rent Restriction Act, 1949 (East Punjab Act 3 of 1949), for fixation of fair rent of this shop. He said that its fair vent was no more than Rs. 10 per mensem, the rent which the landlord himself was paying to the Custodian before he purchased this shop from him.

(2.) IT is accepted on both sides that in the year 1938 -39 on the railway road in Hoshiarpur town there were only four or five shops, that the demised shop was constructed in 1943, that the demised shop was burnt during the riots in the year 1947 and was let by the Custodian to the landlord in that condition at a rental of Rs. 10 per mensem, and that since 1947 this railway road has come to be a busy shopping centre, the whole of the road having been occupied with shops. On the side of the tenant was examined A.W. 4, whose shop is said to be about ten or eleven shops away from the demised shop and is a single -storeyed shop. He pays Rs. 20 per mensem as rent. A.W. 5 : said that his shop is about eight or nine shops away from the demised shop, is also a single -storeyed building, and he pays Rs. 7 per mensem as rent. A.W. 6 said that his shop is thirteen or fourteen shops away from the demised shop, is a single -storeyed building and he pays Rs. 10 per mensem as rent. The shops with A.W. 4 and A.W. 6 are not shown to have been in existence in the year 1938 -39 for these tenants said that they had been in their shops respectively from the years 1943 and 1942. They did not say that the shops existed in the year 1938 -39. A.W. 9 said that his shop existed some thirty years earlier to the year in which he was making statement in 1964, which means that it existed ever since 1934. The evidence of none of these three witnesses has been accepted by the authorities below because in the case of none it was shown that the shop with him compared in any respect with the demised shop, apart from this that in the cases of A.W. 4 and A.W. 6 the shops have not been shown to exist in the year 1938 -39. So the evidence of these witnesses was not found helpful. A.W. 9 has his shop eight or ten shops away from the demised shop. Its measurements are 13 1/2 Ã - 17 1/2. He took it on rent at Rs. 55 per mensem and says that its fair rent was fixed at Rs. 9 by the Rent Controller on July 18, 1964. Copy of the order of the Rent Controller is Exhibit A/X. His is a single -storeyed shop. There is then A.W. 10 whose shop is seventeen or eighteen shops away from the demised shop, consisting of two rooms and a platform, on an area of two marlas, and the witness says that the fair rent fixed has been Rs. 6.75 Paise per mensem. Copy of the order of the Rent Controller with regard to his shop is Exhibit A.W. 8/3, the date of the order being November 5, 1960. The order of the Rent Controller shows that it was claimed that the shop with A.W. 10 had been constructed in 1930 and as the tenant said that he had taken the shop at a rental of Rs. 4/8 per mensem from the very beginning, so the Rent Controller accepted that statement and after allowing the statutory increase he fixed the fair rent at Rs. 6.75 Paise per mensem. The authorities below have not accepted v these two instances as helpful in this case either, obviously on the view that those two shops are not same or similar accommodation in similar circumstances as in the twelve months preceding January 1, 1939, as compared to the demised shop. So both the authorities have discarded the whole of the evidence of the tenant. The landlord examined three witnesses. R.W. 1 said that his shop adjoins the demised shop and its rent is Rs. 60 per mensem, it being a double -storeyed building. R.W. 2's shop is opposite to the demised shop, is a single -storeyed building, and is about 6'Ã -4' in area with a rental of Rs. 20 per mensem. It is a pan -wala's shop. There is one shop that intervenes between R.W. 3's shop and the demised shop and the rent of this witness's shop is Rs. 80 per mensem. It is a single -storeyed shop. This witness was not able to say how his shop compared with the demised shop. R.W. 2's shop obviously, being a panwala shop, is small in size and would not compare with the demised shop at all. There is no manner of finding out how R.W. 1's shop compared with the demised shop. Not one of these shops was in existence in the year 1938 -39. The demised shop is admittedly a four -storeyed building. Neither the witnesses of the tenant nor of the landlord brought evidence of a building of same or similar type as the demised shop. They could not possibly bring evidence of same or similar shop existing in 1938 -39 because no such binding of that size and dimensions existed on the railway road in Hoshiarpur town in that year. The question of assessment of property tax by the municipality as regards any building on railway road Hoshiarpur has not arisen and no evidence in this respect has been produced.

(3.) REFERENCE has been made on both sides to a Full Bench decision of this Court reported as Chanan Singh v. Sewa Ram , I.L.R. (1966) 2 P&H 113 :, 1966 P.L.R. 335 in which the learned Judges held that the import of the words 'similar circumstances' used in Section 4(2)(a) of the Act is that when the area, in which the building is situate, has since 1938 been developed, the building could not be said to be in 'similar circumstances', and that these words govern the word 'same' as well as the word 'similar' given in the clause and a change in the character of a locality from undeveloped to developed locality would constitute a change of circumstances. On the evidence, therefore, there has been change in the character of the railway road in Hoshiarpur from a road with only four or five shops to a now fully developed shopping centre with the whole of the road covered with shops. On the side of the landlord reference is made to my judgment in Hira Lal v. Ganga Ram, C.R. 151 of 1966 decided on 20th October, 1967 in which, after I had found that there was no evidence under Clauses (a) and (b) of Sub -section (2) of Section 4 of the Act, I said that the order of the Appellate Authority was just and proper in saying that the contractual rent was the fair rent in that case. The learned Counsel for the landlord says that that case should be followed here. On the side of the tenant it is said that the evidence led by the tenant and particularly the order, copy Exhibit A/X, fixing fair rent of a neighbouring shop should go in favour of the tenant so as to reduce the amount of the fair rent to Rs. 10 per mensem, the rent which the landlord was paying to the Custodian. In addition, reliance is also placed on two other decisions of the Rent Controller, copies Exhibits AW 8/3 and AW 8/4. The shops are situate on the same road. In order, copy Exhibit A.W. 8/3, the fair rent fixed was Rs. 6.75 Paise; and in the case of order, copy Exhibit A.W. 8/4, it was fixed at Rs. 9 per mensem. In the case of the second order rather the contractual rent of Rs. 9 per mensem was maintained. So, that case is not helpful, nor is the first case, because it has not been shown that the shop in that case has been situate in same or similar circumstances as the demised shop. A question has been raised on the side of the landlord that on the findings of the authorities below and in the state of the evidence in this case as there is no evidence for consideration either under Clause (a) or under Clause (b), or under both clauses, of Sub -section (2) of Section 4 of the Act, no fair rent can be fixed under Section 4 and there being no other section in the Act under which fair rent can be fixed, the Rent Controller had no jurisdiction in this case to fix fair rent. So it is said, on the side of the landlord, that the orders of the authorities below are without jurisdiction being outside the scope of the Act. In Chanan Singh's case , I.L.R. (1966) 2 P&h 113 :, 1966 P.L.R. 335 the Full Bench reviewed practically the whole of the case law under sub -section C.R. 151 of 1966 decided on 20th October, 1967 of Section 4 of the Act and while the learned Judges considered the meaning and scope of the language used in Clause (a) of Sub -section (2) of Section 4, an argument of this type was never raised before them, and obviously thus not considered. It appears that in none of the earlier cases to which reference has been made in the judgment of the learned Judges in Chanan Singh's case, I.L.R. (1966) 2 P&H 113 :, 1966 P.L.R. 335 has this question been raised either. In Hira Lal's case' C.R. 151 of 1966 decided on 20th October, 1967 which I decided, although the finding was that there was no evidence under Clauses (a) and (b) of Sub -section (2) of Section 4 of the Act, an argument of this type was never raised and the decision proceeded on a conclusion that the Appellate Authority was right in saying that the contractual rent was proper and fair rent between the parties. It is one thing to say that contractual rent is fair and proper rent between the parties and then to dismiss an application for fixation of fair rent on merits, but it is quite another thing to come to a finding that there is no evidence which can be considered under any of the two clauses of Sub -section (2) of Section 4 of the Act and then to make an order for fixation of fair rent. It is the last proposition which is questioned on the side of the landlord on the ground that the authorities under the Act, in such circumstances, have no jurisdiction to make an order fixing the fair rent. My immediate reaction to this argument has been that while where no evidence is available under Sub -section (2) of Section 4 of the Act for fixation of fair rent, an application to that effect may fail, but it will not be possible to say that initially the Rent Controller had no jurisdiction in such an application. The reason is that not until such an application is tried by the Rent Controller and evidence taken and considered that a conclusion can be reached whether evidence under the two clauses of Sub -section (2) of Section 4 is or is not there. Until the stage of reaching of that conclusion the proceedings before the Rent Controller cannot be said to be without jurisdiction. The question then is do those proceedings become without jurisdiction on a finding that there is no evidence which attracts the provisions of Sub -section (2) of Section 4? I should say apparently no, but, as the question is being raised for the first time, I would refer it to a Bench of two Judges for an answer. On the merits of the case I agree with the appraisal of the evidence of the parties by the authorities below and have already summed up the evidence above. I agree with them that there is no evidence in this case which can be considered as evidence either under Clause (a) or under Clause (b), or under both the clauses, of Sub -section (2) of Section 4 of the Act. So, the only question before the Bench will be; whether in this case, on the conclusion as above, there is want of jurisdiction in the Rent Controller, and obviously that will also apply to the Appellate authority, or there is jurisdiction in those authorities and the decision of these applications proceeds on a finding on merits that the tenant has failed to prove in his application that it is a case of fixation of fair rent? So these two revision applications are referred to a larger Bench and will be set for hearing at a very early date.