CIVIL REVISION No.1500 OF 2002 ----- Against the order dated 16.8.2002 passed by the Subordinate Judge, Darbhanga in Title Execution Case No.3 of 2001. ------ SUNIL KUMAR GAMI---------------------------- (Petitioner) Versus JOGENDRA MAHTO----------------------------- (Opp.Party) For the petitioner : Mr. Shrinandan Prasad Singh Senior Advocate with Mr. Neeraj Kumar Mr. Ashok Kumasr No.1 For the Opp.Party : Mr. Vishwanath Prasad Sinha, Senior advocate, with Mr. Durgesh Kumar Singhy Mr. Sanjay lKumar Singh Mr. Yugal Kishore P R E S E N T THE HON'BLE MR. JUSTICE CHANDRAMAULI KUMAR PRASAD THE HON'BLE DR. JUSTICE RAVI RANJAN ----- Prasad & Ranjan,JJ. This Civil Revision application is directed against the order dated 16.8.20202 passed by the Subordinate Judge, I, Darbhanga in Title Execution Case No.3 of 2001, whereby it held that the execution case is not maintainable. Short facts giving rise to the present application are that the landlord-petitioner had let out a shop at Hospital Road, Laheria Sarai, Darbhanga to the tenant opposite party on monthly rental of Rs.150/. In the said shop, the tenant was running a medicine shop. The landlord filed application under Section 5 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 for determination of fair rent. 2 The House Controller under provisions of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982, hereinafter referred to as ’the Act’, determined the fair rent at the rate of Rs.2.15 per square feet. The tenant made unsuccessful attempt to get the said order of the House Controller set aside in appeal, writ petition and the letters patent appeal. The landlord filed Execution Case No.3 of 2001 for recovery of the rent as determined by the House Controller, which has been dismissed by the impugned order on the ground that the execution case is not maintainable. The matter came up for consideration before a learned Single Judge, who finding conflict of opinion between the judgments of the learned Single Judge in the case of Md. Khaliquz Zaman Vs. Shri H.C.Joshi 1999 (1) PLJR 362 and in the case of Hardeo Prasad Vs. Depot Manager, Biscomaun Hilsa and others AIR 1997 Patna 137, directed the matter to be heard by a Division Bench. Accordingly, the application has come up for consideration before us. It is relevant here to state that the learned Single Judge, in the case of Hardeo Prasad (supra), has held that the House Controller has only power to determine fair rent but it has no power to give direction for payment of such rent or arrears of rent. Relevant portion of the judgment of the learned Single Judge reads as follows: “7.- On consideration of the relevant provisions of the Act, quoted hereinabove, and on examination of Section 5 and 6, I am of the view that the power and jurisdiction of the Controller is restricted to the extent that he can 3 only determine as to what should be the fair rent of a building premises, either in occupation of the tenant or in occupation of the person other than the tenant. The Controller has not been empowered under the aforesaid provisions for the Act to make an order or direction for payment of fair rent or arrears of rent lying due against the tenant. The Controller exceeds in his jurisdiction if he after determining the fair rent make any further order or direction for payment of arrears of rent, so determined by him and such order would be wholly without jurisdiction.” However, the learned Single Judge, in the case of Md. Khaliquz Zaman (supra), has held that the order passed by the House Controller fixing fair rent, is to be treated as decree and can be executed as decree of the court. Relevant portion of the judgment reads as follows: “9.- From the aforesaid facts, it is manifest and clear that the order passed by the Controller under Section 5 of the B.B.C. Act having become final, the execution court is to execute the same by taking action so that such rent including the arrears, at least till the date of filing of the execution case, is paid by the tenant in favour of the landlord. I thereby hold that the order passed under Section 5 of the B.B.C. Act by Controller is liable for execution in terms of Section 23 of the B.B.C. Act.” Mr. Shrinandan Prasad Singh, Senior Advocate, appearing on behalf of the petitioner, contends that Section 5 of the Act provides for determination of the fair rent by the Controller and once the Controller has been conferred with the power to determine fair rent, the rent so determined, is to be executed as decree in terms of Section 23 of the Act. Mr. Vishwanath Prasad Sinha, Senior Advocate, appearing on behalf of the opposite party, however, contends that the power conferred on the Controller for determination of fair rent, ip so facto, does not confer on him the power to 4 determine the rent due and consequential direction to the tenant to make payment thereof. He submits that in the absence thereof, no order for payment of rent can be passed and hence, order fixing fair rent, is not executable under Section 23 of the Act. Rival submission necessitates examination of the scheme of the Act. Section 5 of the Act provides for determination of fair rent in occupation of tenant. Same reads as follows: “5.- Determination of fair rent of buildings in occupation of tenants.- (1) When, on application by the landlord or by the tenant in possession of a building or otherwise, the Controller has reason to believe that the rent of that building is low or excessive, he shall hold a summary inquiry and record a finding. (2) if, on a consideration of all the circumstances of the case, including any amount paid by the tenant by way of premium or any other like sum in addition to the rent, the Controller is satisfied that the rent of the building is low or excessive he shall determine the fair rent for such building.” From a plain reading of the aforesaid provision, it is evident that the Controller, after holding a summary inquiry, is required to record finding in regard to fair rent of building in occupation of tenant. While conferring this power under Section 5 of the Act to determine fair rent, the House Controller has not given the power to determine arrears of rent due to be paid by the tenant or direction for making such payment. Section 5 of the Act provides for determination of fair rent of the building in occupation of the tenant and not the liability of the landlord in this regard. 5 Section 23 of the Act, provides for execution of the orders of the Controller by the Court as decree passed by such Court. Mere fixation of rent, in the absence of adjudication of arrears or the liability of the tenant to pay that rent, cannot be construed to be an order fit for execution under Section 23 of the Act. In our opinion, determination of fair rent is one thing than the determination of liability on the basis of fair rent. There does not seem to be any power to the House Controller to determine the liability and after such determination to direct the tenant to make payment of the rent calculated on that basis. In our opinion, an order of the Controller shall be executable under Section 23 of the Act, only when it is found that the Controller has power to determine arrears of rent and then to give direction for payment. We have held that the Controller has no such power and as such, order, so passed, is not fit to be executed as a decree. Now, reverting to the decision of this Court in the case of Md. Khaliquz Zaman (supra), the learned Single Judge without taking into consideration this aspect of the matter at all came to an erroneous conclusion that an order passed by the Controller can be executed by the Court under Section 23 of the Act. As observed earlier, the Controller does not possess power either to determine the arrears of rent or to give direction for its payment. With deepest respect, the enunciation of law by the learned Single Judge, in the case 6 of Md. Khaliquz Zaman (supra), is erroneous and we are constrained to over rule the same. We are in agreement with the view propounded by this Court in the case of Hardeo Prasad (supra). Accordingly, we are of the opinion that the order of the House Controller determining fair rent is not executable under Section 23 of the Act. In the result, we do not find any merit in the application and it is dismissed accordingly, but without any order as to cost. (C.K.Prasad) (Dr.Ravi Ranjan) Patna High High Court Dated,18th Sept.2008. NAFRf/ ahk.