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Madho Lal Vs. Roop Chand and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal Nos. 89D and 91D of 1964
Judge
Reported inILR1970Delhi230
ActsDelhi Rent Control Act, 1958 - Sections 9
AppellantMadho Lal
RespondentRoop Chand and ors.
Advocates: S.N. Marwah,; A.K. Marwaha and; G.S. Vohra, Advs
Cases ReferredIn Jamuna Devi v. Hukam Singh
Excerpt:
delhi rent control act (1958), section 9 - words 'may fix' in sub-section (4) -- application for fixation of standard rent -- burden of proof -- diary of rent controller.; the words 'may fix' used in section 9(4) should be given their normal meaning, and there is no reason why the provisions in sub-section(4) be nto held to be only directory and nto mandatory.; that in an application for fixation of standard rent the party on whom the burden of proof lies has to adduce the necessary evidence to discharge the said burden, and if the party chooses to adduce no evidence or insufficient evidence, there is no i duty cast by the provisions in sections 9(4) and 38 of the delhi act upon the controller or the appellate authority to conduct an inquiry on his own or to call upon.....tatachari, j.(1) these three second appeals arise out of three applications filed for the fixation of standard rent by the respective respondents in the second appeals who are tenants of the common appellant, madho lal, in all the three second appeals in respect of certain shops belonging to the appellant and situated in ward no. xv west patel nagar, new delhi. as similar questions arise for determination in the three second appeals, they were heard together, and they can be disposed of by a common judgment. (2) the three tenants, roop chand, ram dass and rawel singh, filed three petitions on november 23, 1960, in the court of shri b. k. agnihotri, additional rent controller, delhi, under section 9 of the delhi rent control act no. 59 of 1958. the said applications were numbered as suits.....
Judgment:

Tatachari, J.

(1) These three second appeals arise out of three applications filed for the fixation of standard rent by the respective respondents in the second appeals who are tenants of the common appellant, Madho Lal, in all the three second appeals in respect of certain shops belonging to the appellant and situated in Ward No. Xv West Patel Nagar, New Delhi. As similar questions arise for determination in the three second appeals, they were heard together, and they can be disposed of by a common judgment.

(2) The three tenants, Roop Chand, Ram Dass and Rawel Singh, filed three petitions on November 23, 1960, in the Court of Shri B. K. Agnihotri, Additional Rent Controller, Delhi, under Section 9 of the Delhi Rent Control Act No. 59 of 1958. The said applications were numbered as Suits Nos. 492, 489 and 491 of 1960, respectively. At the time of the filing of the said applications, the tenants were paying rents at the rates of Rs.40.00 Rs. 50.00 and Rs. 55.00 respectively, per month. The tenants stated in their applications that the construction of the shops was completed in the month of July, 1951, and calculating the rent on the basis given in Section 6 of the Delhi Rent Control Act, they prayed that the standard rents for the shops should be fixed at rates much lower than the agreed rates of rent. The applications were consolidated and heard together by the Additional Rent Controller. It was nto disputed before the Additional Rent Controller that the standard rent for each of the shops was to be fixed under Section 6(B)(2)(b) of the Act, as the shops were constructed and let out after 1951. According to the appellant-landlord, the possession of the premises in question was handed over to him by the Housing and Rent Officer, Delhi. on June 20, 1951, on lease for 99 years, and he commenced the construction of the shops in question in November, 1952. The standard rent had, thereforee, to be fixed according to the provision in Section 6(B)(2)(b). Under the said provision, the standard rent is 'the rent calculated on the basis of seven and a half per cent per annum of the 'aggregate of the reasonable cost of construction and the market price of the land comprised in the premises on the date of the commencement of the construction.' There is a proviso to the aforesaid provision, but, we are nto concerned with the same in the present case.

(3) The appellant, Madho Lal, stated as R.W. I that the construction of the shops was commenced in November, 1952 and was completed in1953. The Additional Rent Controller, thereforee. took November, 1952 as the point of time at which the reasonable cost of construction and the market price of the land comprised in the premises was to be determined. The tenants examined one Kasturi Lal as A.W. 1/A, who deposed that he had purchased land in the area of the property in question at Rs. 21.00 per Sq. yard. They also examined one Channan Singh, Architect, as A.W. 1/B, who proved his report Exhibit A.W. 1/1, his plan, Exhibit A.W. 1/2 and a detailed estimate, Exhibit A.W. 1/3. He estimated the value of the land at Rs. 15.00 per Sq. yard. The landlord, Madho Lal, examined himself only, and he merely stated that he purchased the premises in question with the land at Rs. 5,542.00. As already stated, the land was nto purchased by him, but was obtained by him on 99 years' lease. The Additional Rent Controller, thereforee, on a consideration of the evidence mentioned above, accepted the value of the land in question in 1952 as Rs. 21.00 per Sq. yard as deposed to by Kasturi Lal, A.W. 1/A, and taking the value of the land as Rs. 21.00 per Sq. yard, fixed the value of the land underneath the shops of Roop Chand, Ram Dass and Rawal Singh, as Rs. 210.00, Rs. 265.00 and Rs. 260.00, respectively.

(4) As regards the cost of construction of the shops, Channan Singh, the architect, valued the three shops of Roop Chand, Ram Dass and Rawal Singh at Rs. 1,179.00, Rs. 1,489.00 and Rs. 1,373.00 respectively. The landlord, Madho Lal, did nto adduce any evidence regarding the cost of construction. The Additional Rent Controller, thereforee, accepted the cost of construction of the three shops as estimated by the 'architect, Channan Singh. Totalling the cost of construction and the value of the land underneath each shop, the aggregate value of the shops in the occupation of the three aforesaid tenants came to Rs. 1,389.00, Rs. 1,754.00 and Rs. 1,633.00, respectively, and seven and a half per cent of the same came to Rs. 104/50, Rs. 132.00 and Rs. 122/50 respectively per annum, or Rs. 8/62, Rs. 11.00 and Rs. 10/50 respectively per month. The Additional Rent Controller accordingly fixed the standard rent for the three shops as Rs. 8.62, Rs. 11.00 and Rs. 10.50, respectively per month, with effect from the date of the filing of the applications i.e. November 23,1960.

(5) Aggrieved by the said fixation of standard rent by the Additional Rent Controller, the landlord, Madho Lal, filed three appeals, R.C.A. Nos. 741, 743 and 742 of 1963, in the Court of Shri Pritam Singh Pattar, Rent Control Tribunal, Delhi. One of his grounds in the appeals was that the Additional Rent Controller unjustly closed the evidence of the landlord and did nto give him proper opportunity to produce his evidence.

(6) By his judgment, dated January 29, 1964, the Rent Control Tribunal allowed the appeals and remanded the cases to the Additional Rent Controller for fresh disposal. In its judgment, the Rent Control Tribunal observed firstly that the standard rent for the three shops was to be fixed under Section 6(B)(2)(b), that the landlord. Madho Lal, did nto lead any evidence to prove the cost of the construction of the shops and the value of the land, that he did nto produce any accounts relating to the cost incurred by him for constructing the shops, and that in his statement as R.W. 1 he did nto say a word on those facts. The Rent Control Tribunal then observed that, on the other hand, the tenants examined one Kasturi Lal A.W. 1, who deposed that he purchased land in 1952 in West Patel Nagar at the rate of Rs. 21/per Sq. yard at a distance of about 1' furlongs from the premises in question, that he did nto produce any sale deed or any other document to prove the price of the land said to have been purchased by him, that he was the father-in-law of the younger brother of Ram Dass (tenant) and was thus an interested witness, that the said witness could nto state whether the price of the land was Rs. 150.00 per Sq. yard, that he (the witness) stated that he purchased a quarter in West Patel Nagar but could nto state whether the price of the land underneath that quarter was separately assessed or not, and that his evidence was vague and indefinite. The Tribunal, thereforee, rejected the evidence of Kasturi Lal. The Tribunal then referred to the evidence of Channan Singh, the architect, who was examined by the tenants as A.W. 3, and commented that he assessed the value of the land comprised in the shops in question at the rate of Rs. 15.00 per Sq. yard, that he is alleged to have seen the sale-deeds of some contiguous plots, but there was no mention of the same in his report nor any evidence was led about those sale-deeds, and that the estimate made by the witness regarding the value of the land was based on conjectures and could not, thereforee, be accepted. The Tribunal then observed that the statements of the tenants were absolutely silent regarding the price of the land and the cost of construction of the shops. As regards the cost of construction of the shops, the Tribunal pointed out that the architect, Channan Singh, assessed the cost of construction of the shops in the possession of Roop Chand, Ram Dass and Rawal Singh at Rs. 1,179.00, Rs. 1,489.00 and Rs. 1,373.00 respectively, according to C.P.W.D. rates prevailing in the year 1950, and observed that he would nto comment on the said estimate of Channan Singh as he was remanding the cases to the Additional Rent Controller.

(7) The Tribunal then dealt with the contention of the landlord, Madho Lal, that he was nto given an opportunity to adduce his evidence. The Tribunal pointed out that the evidence of the tenants was closed on April 25, 1963, that it appeared from the record that the landlord had summoned three witnesses, but they could nto be served, that the Additional Rent Controller ordered the landlord to produce his witnesses at his own responsibility but he failed to do so, and that there was force in the argument of the learned counsel for the tenants that the landlord was intentionally delaying the decision.

(8) After thus commencing on the evidence, the Tribunal observed as follows :

'ANYhow, there is no proper evidence on the file and the Additional Controller should have issued a commission to assess the price of the land and the cost of construction. The Additional Controller was nto expected to be a mute spectator of the events which took place before him and to make an order solely on the basis of the evidence which the parties have chosen to lead. The law requires him to make an inquiry and it is his duty to make one by calling additional evidence if he finds that the evidence led by the parties is inherently defective or is insufficient to assess the standard rent. If he fails to perform his duty then the case must go back to him vide . These observations apply to this case. For all these reasons, I hold that the decision of the Additional Controller cannto be sustained.'

(9) In the result, the Rent Control Tribunal allowed the appeals of the landlord, set aside the orders of the Additional Rent Controller and sent back the cases to the Additional Rent Controller for fresh decision after recording additional evidence of the parties. The Tribunal further ordered that the Additional Rent Controller may appoint a Local Commissioner to investigate the cost of construction and the price of the land at the commencement of the construction of the shops in question, and that if it is nto possible to fix standard rent under Section 6, then the parties may be directed to lead evidence to enable the Controller to fix the standard rent under Section 9(4) of the Act. It is against the said orders of remand in the three cases that the present second appeals have been filed by the landlord, Madho Lal

(10) Shri S. N. Marwah, the learned counsel for the appellant, contended (i) that the Rent Control Tribunal, having given a finding that there was no evidence on the basis on which standard rent could be fixed, should have accepted the appeals and dismissed the applications of the tenants, and that the Tribunal had no jurisdiction to remand the cases for fresh disposal after allowing the parties to adduce further evidence, (ii) that in any event, i.e., if standard rent was to be fixed, the Tribunal should have fixed the standard rent at the agreed rate of rent when there was no evidence that the agreed rate of rent was excessive, (iii) that the decision in Dharam Pal v. Yog Raj, which was given under the provisions of the East Punjab Urban Rent Restriction Act (3 of 1949) relied upon and followed by the Tribunal has no application to the applications by the tenants in the present case for fixation of standard rent under the Delhi Rent Control Act No. 59 of 1958. and (iv) that in any case the decision in Dharam Pol v. Yog Raj did nto lay down the correct legal position.

(11) The said contentions may be taken and considered together. It is nto disputed that the standard rent for the three shops was to be fixed under Section 6(B)(2)(b) under which the standard rent is 'the rent calculated on the basis of seven and a half per cent per annum of the aggregate of the reasonable cost of construction and the market price of the land comprised in the premises on the date of the commencement of the construction.' The Additional Rent Controller on the basis of the evidence of Kasturi Lal as A.W. 1/A, fixed the value of the land underneath the three shops in the occupation of Roop Chand, Ram Dass and Rawal Singh as Rs. 210.00, Rs. 265.00 and Rs. 260.00, respectively. As regards the cost of construction of the said shops, he accepted the cost of construction as estimated by the architect, Channan Singh, A.W. 1/B, and fixed the said cost at Rs. 1,179.00, Rs. 1,489.00 and Rs. 1,373.00, respectively. Then, taking the aggregate of the cost of construction and the price of the land in the case of each shop and calculating seven and a half per cent of the same. he fixed the standard rent for the three shops at Rs. 8/62, Rs. 11.00 and Rs. 10/50, respectively. On the other hand, as regards the value of the land the Tribunal observed that the appellant-landlord did nto adduce any evidence, and that the evidence of Kasturi Lal examined on behalf of the tenants could nto be accepted and the statement of the tenants were absolutely silent regarding the price of the land. In other words, the Tribunal was of the view that there was no reliable evidence either on behalf of tenants or on behalf of the landlord relating to the value of the land underneath the shops in question. As regards the cost of construction of the shops, the Tribunal pointed out firstly that the statements of the landlord and the tenants were completely silent regarding the same, and then observed that the architect, Channan Singh, examined on behalf of the tenants, assessed the cost of construction of the three shops in the possession of Roop Chand, Ram Dass and Rawa Singh at Rs. 1,179.00. Rs. 1,489.00 and Rs. 1,373.00, respectively, according to C.P.W.D. rates prevailing in the year 1950, but that he would nto comment on the said estimate of Channan Singh as he was remanding the cases to the Additional Rent Controller. The Tribunal then observed that there was no proper evidence on the file, that the Additional Rent Controller was nto expected to be a mute spectator and make an order solely on the basis of the evidence which the parties had chosen to lead, that the law required the Additional Rent Controller to make an enquiry and it was his duty to make such an enquiry by calling additional evidence if he finds that the evidence led by the parties is inherently defective or is insufficient to assess the standard rent, that the Additional Rent Controller should have issued a commission to assess the price of the land and the cost of construction, and that since the Additional Rent Controller had failed to perform his duty the cases must be remanded. The Tribunal purported to follow the observations in the decision in Dharam Pal Vs, Yog Raj, Shri Marwah contended that the said decision is nto applicable to the applications for fixation of standard rent under the provisions of the Delhi Rent Control Act. and in any case did nto lay down the correct principle of law, that under the provisions of the Delhi Rent Control Act, when tenants question the agreed rent as excessive and file applications for fixation of standard rent, the burden of proving that the agreed rent is excessive and of placing the necessary evidence for fixation of the standard rent lies heavily and solely upon the tenants, and if they do nto adduce such evidence, they should be held to have failed to discharge the burden that lies upon them, and their applications should be dismissed. Shri Marwah submitted that the provisions in the Delhi Rent Control Act do nto cast any duty on the Rent Controller either to make an enquiry of his own or to compel the tenants to adduce evidence, when the tenants do nto choose to place the necessary evidence before the Court themselves. He, thereforee, contended that when the Tribunal found the evidence adduced by the tenants insufficient for fixation of standard rent he should have allowed the appeals and dismissed the applications filed by the tenants, or fixed the standard rent at the agreed rate of rent in the absence of any evidence to show that the agreed rate of rent was excessive.

(12) The decision in Dharam Pal's case (supra) which was relied upon by the Tribunal dealt with the provisions in sub-sections (1) and (2) of Section 4 and Section 15 of the East Punjab Urban Rent Restriction Act (3 of 1949). The said sections are in the following terms :-

'4(1)The Controller shall on application by the tenant or landlord of a building or rented land fix the fair rent for such building or rented land after holding such inquiry as the Controller thinks fit. (2) In determining the fair rent under this section, the Controller shall first fix a basic rent taking into consideration- (a) the prevailing rates of rent in the locality for the same or similar accommodation in similar circumstances during the 12 months prior to 1-1-1939, and (b) the rental value of such building or rented land if entered in property tax assessment register of the Municipal, Town or Notified Area Committee, Cantonment Board, as the case may be, relating to the period mentioned in clause (a) x x x.'

'15.The appellate authority shall decide the appeal after sending for the record of the case from the Controller and after giving the parties an opportunity of being heard and, if necessary, after making such further inquiry as he thinks fit. either personally or through the Controller.'

(13) Bhandari C.J. on a consideration of the above provisions, observed as follows :-

'THE legislature imposes a statutory obligation on the Controller to fix the fair rent of the premises after holding such inquiry as 'the Controller' may think fit. The emphasis is on the words 'Controller' and it is for him to decide upon the nature of the enquiry to be held, the nature of the witnesses to be examined and documentary evidence to be produced. In most cases the evidence produced by the parties is sufficient to enable him to determine the rent without calling for further evidence or embarking upon an inquiry of his own. In such cases all that is necessary to be done is to pronounce orders in the case. But there can be cases like the present in which the parties omit to produce the necessary evidence. In such cases the Controller is nto expected to be a mute spectator of the events which take place before him and to make his order solely on the basis of the evidence which the parties have chosen to lead. The law requires 'him' to make an inquiry and it is 'his' duty to make one by calling additional evidence if he finds that the evidence produced by the parties is inherently defective or is insufficient to enable him to assess the fair rent or to pronounce judgment in the case. If he fails to perform the duty which devolves upon him, it is open to the District Judge in appeal either to remand the case to the Controller for further inquiry or to hold a further inquiry himself. The legislature requires the Controller, and failing him the District Judge, to determine the fair rent and neither of them can be allowed to defeat the intention of the legislature by simply declaring that there is no evidence on the basis of which such rent can be determined.'

(14) The above observations were thus based on the language in the two aforesaid sections of the East Punjab Rent Restriction Act (3 of 1949). As pointed out by Shri Marwah, the language in the corresponding provisions in Sections 9 and 38 of the Delhi Rent Control Act No. 59 of 1958 is different from the language in the aforesaid provisions of the East Punjab Act. Sections 9 and 38 of the Delhi Rent Control Act run as under:-

'9.Controller to fix standard rent, etc.- (1) The Controller shall, on an application made to him in this behalf, either by the landlord or by the tenant, in the prescribed manner, fix in respect of any premises,- (i) the standard rent referred to in section 6; or (ii) the increase, if any, referred to in section 7(2) In fixing the standard rent of any premises or the lawful increase thereof the Controller shall fix an amount which appears to him to be reasonable having regard to the provisions of section 6 or section 7 and the circumstances of the case. (3) In fixing the standard rent of any premises part of which has been lawfully sub-let, the Controller may also fix the standard rent of the part sub-let. (4) Where for any reason it is nto possible to determine the standard rent of any premises on the principles set forth under section 6, the Controller may fix such rent as would be reasonable having regard to the situation, locality and condition of the premises and the amenities provided therein and where there are similar or nearly similar premises in the locality, having regard to the standard rent payable in respect of such premises. (5) The standard rent shall in all cases be fixed for a tenancy of twelve months : Provided that where any premises are let or re-let for a period of less than twelve months, the standard rent for such tenancy shall bear the same proportion to the annual standard rent as the period of tenancy bears to twelve months. (6) In fixing the standard rent of any premises under this section, the Controller shall fix the standard rent hereof in unfurnished state and may also determine an additional charge to be payable on account of any fittings or furniture supplied by the landlord and it shall be lawful for the landlord to recover such additional charge from the tenant. (7) In fixing the standard rent of any premises under this section, the Controller shall specify a date from which the standard rent so fixed shall be deemed to have effect : Provided that in no case the date so specified shall be earlier than one year prior to the date of the application for the fixation of the standard rent, 38. Appeal to the Tribunal.--(1) An appeal shall lie from every order of Controller made under this Act to the Rent Control Tribunal (hereinafter referred to as the Tribunal) consisting of one person only to be appointed by the Central Government by notification in the Official Gazette. (2) An appeal under sub-section (1) shall be preferred within thirty days from the date of the order made by the Controller : Provided that the Tribunal may entertain the appeal after the expiry of the said period of thirty days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. (3) The Tribunal shall have all the powers vested in a court under the Code of Civil Procedure, 1908 (5 of 1908), when hearing an appeal. (4) Without prejudice to the provisions of subsection (3), the Tribunal may, on an application made to it or otherwise, by order transfer any proceeding before any Controller or Additional Controller to another Controller or Additional Controller and the Controller or the Additional Controller to whom the proceeding is so transferred may, subject to any special directions in the order of transfer, dispose of the proceeding. (5) A person shall nto be qualified for appointment to the Tribunal, unless he is, or has been, a district judge or has for at least ten years held a judicial office in India.'

(15) A comparison of the previsions in the two Acts shows that while in both the sub-sections (1) and (2) of Section 4 of the East Punjab Act, the word 'shall' was used, and the Controller was, thereforee, bound to fix the fair rent and the basic rent taking into consideration the factors mentioned in sub-sections 2(a) and (b), the words 'may fix' are used in Section 9(4) of the Delhi Act, and if for any reason it is nto possible to determine the standard rent on the principles set forth in Section 6 of the Act, the Controller ' may fix' such rent having regard to the factors mentioned in the said sub-section (4) of section 9. It may be pointed out that in Chander Wati v. Delhi Cloth and General Mills Ltd, the word 'may' in sub-section (3) of Section 9 was construed as discretionary and nto mandaory, and here is no reason why the words 'may fix' used in Section 9(4) should nto be given their normal meaning and the provision in Secion 9(4) be nor held as only directory and nto mandatory. Again, while Section 4(1) and Section 15 of the East Punjab Act contain the words 'after holding such inquiry as the Controller thinks fit' and the words 'after making such further inquiry as he thinks fit either personally or through the Controller' respectively, no such inquiry as he thinks fit either by the Controller or by the appellate authority is provided for in Sections 9(4) and 38 of the Delhi Act. Thus, there is a considerable difference between the language used in the aforesaid provisions of the East Punjab Act and the language used in the corresponding provisions of the Delhi Act. In view of the language in the provisions of the East Punjab Act, Bhandari C.J. held that under the said Act, the Controller, and failing him. the District Judge, were under a duty to make an inquiry by calling additional evidence if they found that the evidence produced by the parties was defective or insufficient to enable them to assess the fair rent. In the absence of similar language in the provisions in the Delhi Rent Control Act, it cannto be said that there is such a duty as was mentioned by Bhandari C.J. cast upon the Controller or the appellate authority under the provisions in Sections 9(4) and 38 of the Delhi Rent Control Act. Section 6 of the Delhi Act merely lays down the principles on which the standard rent is to be determined. Section 7 of the Act provides for a lawful increase of standard rent in certain cases and recovery of other charges. Section 9(1) provides that on an application made to him in that behalf either by the landlord or by the tenant, the Controller shall fix the standard rent referred to in Section 6 or the increase referred to in Section 7. Where it is nto possible for any reason to determine the standard rent on the principles set forth under Section 6, the Controller may fix such rent taking into consideration the factors mentioned in Section 9(4). The burden of proving the factors or circumstances mentioned in Section 6 of Section 9(4) lies upon the party who files the application for the fixation of the standard rent. The party on whom the burden of proof lies has to adduce the necessary evidence to discharge the said burden, and if the party chooses to adduce no evidence or insufficient evidence, there is no duty cast by the provisions in Sections 9(4) and 38 of the Delhi Act upon the Controller or the appellate authority to conduct an inquiry on his own or to call upon the parties to produce additional or further evidence. It is always open to the parties to move the concerned authority under the Act for permission to adduce additional or further evidence, and it is open to the authority to permit such additional or further evidence when proper grounds thereforee exist. But, it cannto be said that when the party on whom the burden of proof lies chooses to adduce no evidence or insufficient evidence and does nto move the concerned authority for permission to adduce additional or further evidence, the authority is bound to call upon the party to adduce additional or further evidence or to secure evidence on its own and fix the standard rent. I am unable to find such provision in the aforesaid sections of the Delhi Rent Control Act. The Tribunal had, thereforee, as contended by Shri Marwah, considered the appeals on an incorrect view of the legal position under the provisions of the Delhi Rent Control Act, when he relied upon and applied the observations of Bhandari C.J. in Dharam Pal's case which was governed by the provisions in the East Punjab Act to the facts of the present cases which are governed by the Delhi Act.

(16) As regards the onus of proof in the present cases, it is clear that it lay on the tenants, as it was they who moved the Tribunal for the fixation of standard lent on the ground that the agreed rents were excessive. In Kamala Bala Avdhra v. Amulya Kumar Sen, K. C. Chandar J., in dealing with an application by a tenant for standardisation of rent under Section 9 of the West Bengal Premises Rent Control (Temporary Provisions) Act (17 of 1950), observed as follows :-

'THE tenant asked for standardisation of rent. thereforee, the onus of establishing standard rent and thereby evading payment of the contractual rent was clearly on the tenant.'

(17) Similarly, in Gouri Sankar Show v. Anil Chandra Majumdar, Chakravarti C.J. and Sinha J., in dealing with a similar application for fixation of standard rent under Section 9 of the aforesaid West Bengal Act, observed as follows :-

'IT is now well settled that if a tenant wants the rent to be standardised and the contractual rent to be reduced, it is for him to place the Rent Controller in possession of materials which would justify a reduction.'

(18) Again, in Vurjee Vandass v. R. H. Singha & Co., Harries C.J. and Bannerjee J., in dealing with an application by a tenant for fixation of standard rent under the Calcutta Rent Ordinance No. 5 of 1946 observed as follows :-

'MR.Chandra Shekhar seems to suggest that in these proceedings some different rule should be applied than is applied in ordinary litigation, namely, that the person who asks for relief must prove his case. In the present case the tenant must establish what the standard rent is and if he does nto produce the material upon which the Court can ascertain what the standard rent is then this application must fail. The court is nto entitled to arrive at some fair estimate of what the rent should have been on 1-12-1941 when on that date the premises were admittedly let at a rent which could be ascertained.'

(19) In Jamuna Devi v. Hukam Singh, S. K. Kapur J., in dealing with the provision under section 9(2) of the Delhi Rent Control Act No. 59 of 1958, observed as follows :-

'THE reasonable figure under section 9(2) has to be arrived at in a judicial manner and has nto to be merely a subject matter of guess work. No doubt various other surrounding circumstances of the case have to be taken notice of by the Court but that is as I have already indicated for the purpose of making the necessary adjustment in the standard rent arrived at in accordance with the provisions of section 6. If a tenant applies for fixation of standard rent he is required to lay the foundation for the Court to act under Section 9(2) and is thereforee obliged to bring on record sufficient material to entitle the court to first determine the standard rent under the provisions of Section 6. In this case it was for the tenant who had moved the court for determination of standard rent to supply the necessary material and evidence for the purpose. Nto having done so the Controller should have either considered whether it was a fit case for giving of any further opportunity to the parties to adduce evidence regarding cost of construction or in the absence of evidence the Court should have held that it was nto possible to fix the standard rent in the absence of evidence required under Section 6.

(20) It is thus clear that in the present cases, the onus of placing the necessary materials before the Additional Rent Controller lay upon the three tenants who filed the application for the fixation of standard rent. As already pointed out, as regards the value of the land underneath each of the three shops, the Tribunal held that the evidence adduced by the tenants was nto reliable, and that the landlord did nto adduce any evidence. As regards the cost of construction, the Tribunal mentioned that the evidence adduced by the tenants relating to the same consisted of the estimate by the architect, Channan Singh (A.W.1/B), and stated that he would nto comment on the said estimate as he was remanding the cases. Then, in the view that a duty was cast upon the Additional Rent Controller to inquire into the matter on his own, the Tribunal remanded the cases. Thus, the Tribunal did nto come to a conclusion regarding the cost of construction and decide whether the standard rent fixed by the Additional Rent Controller was correct or not, but remanded the cases to the Additional Rent Controller in the view that there was a duty cast upon the Additional Rent Controller to inquire on his own and fix the standard rent. As already pointed out above, the said view of the Tribunal was erroneous, and the Tribunal will. thereforee, have to dispose of the appeals on the merits. It is of course open to the parties to move the Tribunal, if they so choose, for permission to adduce any further or additional evidence, and it is equally open to tile Tribunal to grant or refuse the said permission in accordance with law.

(21) The second appeals are accordingly allowed, the orders of the Rent Control Tribunal. dated January 29, 1964, are set aside. and the case are remanded to the Rent Control Tribunal. Delhi. The Tribunal shall restore R.C.A. Nos. 741,743 and 742 of 1963 to its file and dispose them of in the light of the observations in this judgment and in accordance with Jaw. In the circumstances, the parties shall bear their own costs in these second appeals. The parties are directed to appear before the Rent Control Tribunal on 3rd November, 1969.


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