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Anand Kumar Vs. Fateh Singh - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Revn. No. 34 of 1951
Judge
Reported inAIR1952HP18
ActsEast Punjab Urban Rent Restriction Act, 1949 - Section 4(2); ;Constitution of India - Article 227
AppellantAnand Kumar
RespondentFateh Singh
Appellant Advocate Amar Chand Hoshiarpuri, Adv.
Respondent Advocate Puran Chand Sud, Adv.
DispositionRevision allowed
Cases ReferredAbdul Majid v. Daleep Singh
Excerpt:
- .....of certain buildings in solan in the year 1938, particularly the rent of a building known as the kapoor lodge, and he came to the conclusion that rs. 1,200/- per annum should be the basic rent of the building in question. he also allowed an increase at 25 per cent. on that basic rent under section 4 (3) (i) (c), and thus he fixed rs. 1,500/- per annum, or rs. 125/- per mensem, as the fair rent of the building. on the landlord going up in appeal to the district judge, the latter enhanced the fair rent to rs. 1,750/- per annum. the reasoning adopted by him in doing so is contained in the following sentences:'it was urged that the rent of badru khan house ought to be more than the rent of kapoor lodge as it is more central and is nearer the main road and the bazaar, whereas kapoor lodge.....
Judgment:

Chowdhry, J.C.

1. This is tenant's application in revision under Article 227 of the Constitution of India against the decision of the appellate authority, the District Judge of Mahasu, under Section 15 of the East Punjab Urban Rent Restriction Act (III of 1949).

2. The petitioner occupies a building in Solan known as Badru Khan House, and he applied to the Rent Controller under Section 4 of the Act for determination of its fair rent. Under Sub-section (2) of that section fair rent is determined on the rental value of the building entered in property tax assessment register and prevailing rates of rent in the locality during 1938. Property tax having never been assessed in Solan, the Controller acted only on the other datum. He took into consideration the rent of certain buildings in Solan in the year 1938, particularly the rent of a building known as the Kapoor Lodge, and he came to the conclusion that Rs. 1,200/- per annum should be the basic rent of the building in question. He also allowed an increase at 25 per cent. on that basic rent under Section 4 (3) (i) (c), and thus he fixed Rs. 1,500/- per annum, or Rs. 125/- per mensem, as the fair rent of the building. On the landlord going up in appeal to the District Judge, the latter enhanced the fair rent to Rs. 1,750/- per annum. The reasoning adopted by him in doing so is contained in the following sentences:

'It was urged that the rent of Badru Khan House ought to be more than the rent of Kapoor Lodge as it is more central and is nearer the main road and the bazaar, whereas Kapoor Lodge is at some distance from the bazaar. There is some force in the contention and I would therefore fix the basic rent of Badru Khan House at Rs. 1,400/- per year. Under Section 4 (3) (c) the landlord is allowed 25 per cent. on the basic rent and the fair rent of the house in dispute is fixed at Rs. 1,750/- per annum.'

3. The learned counsel for the respondent referred against to the evidence produced in this case and discussed at length by the Rent Controller. It is however noteworthy that the appellate authority also did not question the interpretation put on that evidence by the Rent Controller. He endorsed the view of the trial Court that a letter dated 30-3-1938 relied upon by the landlord had been rightly rejected by the trial Court, and he also did not question the evidence of the tenant's witness Pandit Karta Kishan, retired Deputy Commissioner Mahasu district, to the effect that the house in question and the Kapoor Lodge were equally well situated, that the living accommodation in both was almost equal, and that the Kapoor Lodge was superior to the house in question at least in one respect, namely, that it had a much larger compound. The respondent is in the circumstance not entitled to seek a different interpretation being put on the said evidence by this Court in revision. Certain new points raised in this connection on his behalf may however be considered.

4. He criticised the testimony of the said witness for the tenant, Pandit Karta Kishan, on the ground that in a letter dated 6-3-1948 he had himself offered Rs. 3,000/- per annum as rent for the house in question on behalf of the present petitioner. It was therefore argued by the learned counsel for the respondent that it is strange that a witness like him, who knew the rental value of the house, should have compared it with Kapoor Lodge in the terms in which he did so. This argument has no force in that his assessment of the comparative amenities of the two houses has got nothing to do with the offer of rent that may have been made in the aforesaid letter. In fact, this witness was not cross-examined with regard to the aforesaid statement of his, and no rebutting evidence on that point was produced by the landlord. Manifestly, therefore, it cannot be said that the trial Court was wrong in accepting the statement of Pandit Karta Kishan and in fixing the basic rent of the Badru Khan House on the basis of the rent of the Kapoor Lodge in the year 1938.

5. Reference was also made to the fact that in the year 1938 Rs. 1,700/- was recorded as the annual rent of the house in suit in the water tax register of the Development Board Solan. But the water tax in that year was assessed on the rental value of Rs. 850/- only. In the absence of evidence that Rs. 1,700/- was actually the rent in that year, the entry in question has therefore no value.

6. Another argument put forward by the learned counsel for the respondent was that whereas the Badru Khan House is situated on the Mall road and in the cantonment area, the Kapoor Lodge is situated away from the Mall road and outside the cantonment area. It was also contended that houses within the cantonment area are prized more than those outside that area in view of their immunity from visitors suffering from tuberculosis. Now, there is no evidence on the record in support of either of these contentions, namely, that the Kapoor Lodge is far removed from the Mall road, or that it is situated in a locality resorted to by persons suffering from tuberculosis. I cannot therefore take this argument into consideration.

7. Next it was argued by him in determining the fair rent of the house in suit under Section 4(2) (a) of the Act it is the prevailing rates of rent in the locality that have to be taken into consideration, but the Kapoor Lodge cannot be said to be accommodation in the same locality in which the Badru Khan House is situated. And in this connection he referred to an admission contained in one of the grounds of the petitioner's revision in this Court, namely, that the Kapoor Lodge is at a distance of three furlongs and the Badru Khan House at a distance of five furlongs from the centre of Solan. The learned counsel therefore contended that admittedly the distance between the house, Kapoor Lodge, taken as an exemplar, and the house in suit is eight furlongs, and that therefore the rent of the former could not validly be taken into consideration in fixing the fair rent of the latter. Under the provision just cited, there is no doubt that the qualifications which an accommodation selected as an exemplar has to satisfy are that it is situated in the locality, that this accommodation is the same or similar and that circumstances of the two houses are similar. Obviously, the main purpose of this provision is to assure a proper fixation of fair rent of the house in question on the basis of accommodation as similar to it as it may be. In a hill station, like Solan, a strict adherence to the provision is not possible, for it may be that there are no other houses in the locality. Indeed, it was not pointed to me by the learned counsel for the respondent that there was evidence of other houses in the locality which had not been taken into consideration. That being so, if the said provision is complied with as far as it is possible to do so, it cannot be said that it has been disregarded simply because the accommodations taken as exemplars were not situated in the very locality in which the house in suit is situated. Where there is evidence of no other house in the locality, it is sufficient compliance with the said provision if the situation of the house taken as an exemplar is as good as, and its accommodation equal to, that of the house whose fair rent is sought to be determined. In the present case it has been unrebuttedly proved by the said witness for the petitioner, Pandit Karta Kishan, that both the houses are equally well situated, and that the accommodation in both the houses is almost equal. This, in my opinion, was the only way in which compliance with the said provision of the Act could have been made in the present case. I therefore hold that the contention of the learned counsel for the respondent that the provisions of Section 4 (2) (a) had not been strictly complied with has no force.

8. Next it was contended by the learned counsel for the respondent that although there is no doubt that this Court has jurisdiction under Article 227 of the Constitution to entertain the present revision, as held in 'Nathu Ram v. Ram Partap', 53 Pun L R 90, that power should be exercised very sparingly, and that this is not a fit case in which it should be so exercised. He referred to the fact that in that case the power under the said. Article was exercised by the High Court only because the appellate authority was found to have acted without jurisdiction, According to him that could not be said of the District Judge of Mahasu who decided the appeal. He also cited 'Majaharali v. Mafijaddi Sardar', AIR (23) 1936 Cal 706, 'Ram Lakhan v. Kishore Lal,' AIR (20) 1933 Oudh 534 and 'Mahabir Lal v. Rajan Kuer,' AIR (22) 1934 Patna 191 in support of the proposition that the mere arriving at a wrong conclusion by misapplication of law would not justify interference by this Court. He further cited 'Ko Maung v. Maung Lu Doke,' AIR (24) 1937 Rang 61 in support of the view that the appellate authority had the jurisdiction to decide both rightly or wrongly. Now, none of these rulings has any application to the present case inasmuch as it is not merely a case of arriving at a wrong conclusion by misapplication of law. It was urged before the learned District Judge on behalf of the landlord that the house in suit was more centrally situated, being nearer to the main road and the bazaar, than the Kapoor Lodge, and he accepted this contention. The learned counsel for the respondent was however unable to point out to me any evidence on the record on foot of which the said contention put forward before the District Judge could have been accepted. The District Judge did not even make a local inspection, and that despite an application made in that behalf by the tenant. It is clear therefore that the said finding with regard to the house in suit being more central than the Kapoor Lodge was arrived at by the appellate authority quite arbitrarily and in the teeth of the unrebutted evidence to the contrary produced by the tenant and referred to above. That being so, this is a case where the appellate authority acted irregularly in the exercise of its jurisdiction, as held by me in 'Beg Ram v. Charan Das', AIR (38) 1951 Him P 16, following the Privy Council ruling 'Rajah Amir Hassan Khan v. Sheo Baksh Singh', 11 Ind App 237 (P C) as interpreted in 'Abdul Majid v. Daleep Singh', AIR (36) 1949 All 744, at pages 745 and 746 in the following terms:

'It seems to us, therefore, that the material word in Section 115, Sub-section (c) is 'acted'. This clause will apply when the Court 'acts' illegally or with material irregularity in the exercise of its jurisdiction. It cannot apply to cases where the Court merely comes to a wrong decision on a question of fact or law. The use of the word 'acted' indicates the true position and limits this clause to that class of cases where the Court having jurisdiction violates any rule of law or of procedure prescribing the mode in which such jurisdiction is to be exercised. The arriving at a conclusion or decision is only a mental operation and the Court cannot be said to be 'acting' in so coming to a conclusion or decision on a question of law or of fact.'

In the present case the arriving at the said conclusion by the learned District Judge cannot be attributed to a mental operation for the simple reason that there were no data for his mind to operate upon. On the contrary, he violated all the rules of law and procedure by arriving at the said conclusion without there being an iota of evidence on the record to justify that conclusion. It is clear therefore that he acted with material irregularity in the exer-cise of his jurisdiction, and that this is for that reason a fit case for interference by this. Court in exercise of its powers of superintendence under Article 227 of the Constitution.

9. The result is that this application in revision is allowed, the judgment and decree ofthe lower appellate Court are set aside and thejudgment and decree of the trial Court, theRent Controller, are restored. The petitioner isawarded Rs. 25/- as costs.


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