IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9619 of 2003 Pran Nath Sanan @ Pran Nath Manan, son of late Rola Ram, Resident of Mundi Chak, Police Station Kotwali, District- Bhagalpur Versus 1. The State of Bihar 2. The Commissioner, Bhagalpur Division, Bhagalpur 3. The Collector, Bhagalpur 4. The House Controller, Sadar, Bhagalpur 5. Brahm Kumar Gupta, son of Late Baburam Gupta, Sarswati Churi Bhandar, Station Chowk, Lower Nath Nagar Road, Police Station Kotwali, District- Bhagalpur ----------- 5. 10.5.2010 Heard learned counsel for the petitioner and learned counsel for the State. No one appears for the Respondent no. 5-tenant despite issue of notice and valid service. The petitioner has come to this Court being aggrieved by the order dated 11.6.2003 passed by the Commissioner, Bhagalpur Division, Bhagalpur in Bhagalpur House Control Revision Case No. 12/2002-03 heard analogously with Bhagalpur House Control Revision Case No. 10/2002-03 by which the Commissioner has set aside the orders dated 20.9.2002 passed in House Control Appeal No. 11/1991-92 by the Collector, Bhagalpur who had affirmed the order dated 17.7.1991 passed in House Control Case No. 1/90 by the 2 House Controller, Sadar, Bhagalpur and the rate of rent fixed by the House Controller at Rs. 1200/- per month has been reduced to Rs. 850/-. The petitioner-landlord is the owner of a building situated at Station Chowk at Nath Nagar Road, P.S. Tatarpur (Kotwali) in the town and district of Bhagalpur bearing Holding No. 22, Ward No. 19 under the Municipal Corporation, Bhagalpur. The respondent no.5, Brahm Kumar Gupta, was the tenant in the said shop for a long period since the time of his father. The area under the tenancy is claimed to be more than 800 sq. ft. and the tenant was paying Rs. 60/- per month although the premises was located in the main market of Bhagalpur town. The petitioner filed an application under Section 5 of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 on 7.1.1990 before the House Controller, Bhagalpur (Sadar) for fixation of fair rent at the rate of 5 per sq. ft. which was registered as House Control Case No. 1/1990. An enquiry was directed by the Executive Magistrate who gave his report on 16.7.1990 stating that the area in dispute is about 800 sq. ft and recommending the fair rent to be fixed at the 3 rate of Rs. 3/- per sq. ft. considering the location and valuation of the site. The House Controller by his order dated 17.7.1991 however, fixed the fair rent at Rs. 1.50 per sq. ft., i.e., Rs. 1200/- per month for the entire premises. Both the landlord and the tenant aggrieved by the said order filed appeals before the Collector, Bhagalpur being H.C. Appeal Nos. 13/1991-92 and 11/1991-92 respectively. By his common order dated 20.9.2002, the Collector upheld the order passed by the House Controller. Thereafter both the parties preferred revision before the Commissioner, Bhagalpur being House Control Revision Case Nos. 12/2002-03 and 10/2002-03 respectively. The Commissioner, however, held that the area in dispute is 680/- sq. ft. and has fixed the fair rent of Rs. 800/- per month. Aggrieved by the said order the petitioner has filed the writ petition. Learned counsel for the petitioner submits that the impugned order passed by the Commissioner suffers from complete non-application of mind. It is submitted that without any justification and on a dispute regarding the area being raised by the tenant for the first time and without any measurement being taken, the 4 Commissioner has come to the conclusion that the area is 680/- sq. ft. as against the report of the enquiring Magistrate who had held that the area was 800 sq. ft. approximately. It is further submitted that the Commissioner was not justified in fixing the rent at Rs. 1/- per sq. ft. from 1980 and thereafter ordering 25% enhancement and determining the same for the lower area claimed by the tenant, at the rate of Rs. 850/- per month. It is further submitted by learned counsel that for another shop in the same area fair rent has been fixed at Rs. 1862/- per month for premises having 1000 sq. ft. area by the House Controller in the said matter which was upheld right up to the High Court by a Division Bench of this Court in the case of Saraswati Devi & ors. Vs. Commissioner of Bhagalpur Division: 1996 (1) PLJR 924, in paras 15,16 and 17 of which it has been held as follows:- “15. In the present case even though section 8(1)(c) provides as to how the application for fair rent or its enhancement has to be decided. Broadly speaking it has to be decided, keeping in view the prevailing rate of rent in the locality for similar accommodation in similar 5 circumstances. But primarily it has to be decided keeping in view the prevailing rate of rent of similar accommodation within 12 months preceding 1st day of December, 1980, which was cut-off date for the purpose of enhancement of rent. For every cut-off-date there remains legislative intendment behind it. Why 1st. December, 1980 was fixed the cut-off-date, the reason is that the Ordinance no. 63 of 1982 was promulgated with retrospective effect. Thereafter, the Act was passed which received the assent of President on 31st January, 1983 and was published in Bihar Extra Ordinary Gazette and it was deemed to have come in force from 1st April, 1981. It repealed the Ordinance of 1982 which was retrospective. With a view to cover the date before the Ordinance 1st December, 1980 was fixed cut-off- date. This is how it has been provided under section 8(1)(c) that the prevailing rate of rent in the locality during 12 months preceding the 1st day of December, 1980 shall be the guiding factor. But what the Proviso emphasizes is that fair rate of rent shall be at a figure which shall not be less than the average monthly rent paid by a tenant for similar accommodation over 12 month period prior to 1st December, 1980. On this minimum fair rent the Proviso adds increase of twenty five per cent of the average monthly rent, on account of cost of repairs or the general increase in the cost of site etc. In this way the proviso has broadened the contours of the main provision of Section 8(1)(c). The provisions in the Proviso have to be treated as an integral part of the 6 main provision. The provisions of Rule 3(ii)(a) to (g) also takes into account the provisions of the Proviso to Section 8. In our opinion the enhancement of rent under the impugned order cannot be said to be contrary to the provisions of Section 8(1)(c), including its proviso. 16. Coming to the cases relied upon by learned counsel for the petitioners, Ram Adhin Singh V. The State of Bihar & ors. 1993(1) PLJR 637 (supra) was the case decided in respect of application filed under sections 5,6 & 8 for the fair rent and much emphasis was laid on Hindi version of Section 8 and its English version and distinction between the two, as to whether Hindi version must prevail or English version must prevail. It was held that Hindi version must prevail in case of conflict. But in brief the object of the Proviso was also indicated under para 16. The next case in Secretary, Balika Shiksha Bhawan V. State of Bihar and others, 1990(1) PLJR 61 (supra) was decided by Brother B.P.Singh, J. (for whom we have profound regards) and the decision was held per incuriam by Hon’ble Brother G.C. Bharuka, J., in Ram Adhin Singh V. State of Bihar & ors. (supra). It was however, observed that it was open to the Collector to fix higher amount of rent by way of fair rent having regard to the provisions of Section 8 of the Act and Rule 3. The object of legislature, however, in enacting Section 8(1)(c) and its Proviso has not been considered in that case. Section 8 (1) (c) and its Proviso & Rule 3 in our opinion is couched in language having very 7 wide sweep. It is a piece of beneficient piece of legislation enacted keeping in view the welfare of the landlord. It has to be interpreted keeping in view the dominant purpose. Section 8 and its Proviso and Rule 3, need not be interpreted in a restrictive manner. 17. As regards the second question, we have perused the impugned orders. In our opinion the application for enhancement of rent has been correctly decided. We do not find any merit in the submission of the learned counsel for the petitioner.” On the basis of the aforesaid case which pertains to the same area, learned counsel submits that if this Court found the rate of fair rent at Rs. 1.86 per sq. ft. as just, then there was no reason for the Commissioner to have reduced the same. It is further submitted that the decision to reduce both the area and the rate of rent is completely arbitrary and whimsical. Learned counsel for the State on the other hand supports the order passed by the Commissioner. However, learned counsel was unable to show that the said order was in accordance with law and the law laid down by this Court in the case of Saraswati Devi (supra). On a consideration of the materials on the 8 record and submissions of learned counsel for the petitioner, this Court is of the view that the order dated 11.6.2003 passed by the Commissioner cannot be permitted to stand. The House Controller had determined the fair rent @ Rs. 1.50 per sq. ft. although recommendation was made by the Enquiring Executive Magistrate for fixing the same at Rs. 3.00 per sq. ft. keeping in view the enhancement in the municipal taxes in the area, the said order was upheld by the Collector also. From the order of the Commissioner there does not appear to be any reason stated as to how the fair rent could be reduced further. No basis or material are to be found in the order of the Commissioner except the bald statement that the determination of rent if taken from 1980 would at least be Rs. 1/- per sq. ft. but that is not the requirement of either Section 8 of the Act or Rule 3 of the Bihar Buildings (Lease, Rent and Eviction) Control Rules, 1983 which lays down the various factors which have to be considered for fixing the fair rent. In Saraswati Devi’s case (supra) this Court had clearly held that these provisions are a piece of legislation enacted keeping in view the welfare of the landlord and it has to 9 be interpreted keeping in view the dominant purpose and neither Section 8 or its proviso nor Rule 3 should be interpreted in a restrictive manner. The manner in which the Commissioner has re-determined the rent at a lower rate, appears to have not taken into consideration the aforesaid view expressed by the Division Bench of this Court. This Court also finds that the issue regarding the area was at all not under consideration and has not been considered either in the order of the House Controller or the appellate authority. It appears to have been argued for the first time before the Commissioner and it being a pure question of fact, ought not to have been permitted to be raised at such a belated stage. In any view of the matter, the Commissioner could not have straightaway concluded that the area in question is 680 sq. ft without the matter being determined on proper enquiry. Thus, the reduction of the area of the premises in the order of the Commissioner is based upon no material and is fit to be set aside. For the aforesaid reasons, the order of the Commissioner cannot stand and it is accordingly set 10 aside both with regard to fixation of rate of fair rent and the area of the premises in question. The orders passed by the House Controller and the Collector shall accordingly revive. The writ application is thus allowed. S. Pandey ( Ramesh Kumar Datta, J.)