IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11961 of 2001 SURESH KUMAR GUPTA Versus THE STATE OF BIHAR & ORS ----------- 3. 27.3.2009 Heard counsel for the petitioner and the counsel for the official respondents. Despite service of notice on private respondent no. 5, no one has appeared to oppose the prayer made by the petitioner in this writ application. From the materials on record it would appear that a proceeding under section 5 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 was initiated on an application of respondent no.5 and the same was summarily allowed by the House Controller without hearing the petitioner, landlord. The said order passed by the House Controller fixing Rs. 150/- per month thereafter both in appeal and revision has been affirmed by the Collector, Vaishali and the Commissioner, Muzaffarpur. Mr. Tiwary, learned counsel for the petitioner, would submit that even if the petitioner could not appear before the House Controller, the requirement of law could not 2 have been waived because fixation of fair rent is based on certain principles as laid down in sections 5 and 6 of the Act read with Rule 3 of the Rules. Mr. Tiwary in fact further assails the impugned order dated 20.9.1992 passed by the House Controller to contend that as a matter of fact none of the requirement of Rule 3 was fulfilled by respondent no.5 and yet his application came to be allowed merely on a report of the Anchal Adhikari suggesting the rent of Rs. 150/- per month. Mr. Tiwary has further taken a plea that such proceeding at the instance of respondent no.5 was not maintainable because he was not either the landlord or the tenant of the premises in question. There being no counter affidavit on behalf of respondent no.5 or the official respondents, this Court has to proceed on the basis of the facts mentioned in the writ application. A bare perusal of the facts would go to show that none of the three authorities have actually examined the ingredients fixed for determination of fair 3 rent. In this context Section 6 of the Act reads as follows: “6. Determination of fair rent of buildings not in occupation of tenants.- The Controller may, on his own motion, and shall on the application of the landlord or a prospective tenant and after making such inquiry, as he may think fit, determine the fair rent for any building not in the occupation of a tenant.” The legislature in fact in order to make the thing more specific for working out the aforementioned provision of section 6 had also specifically laid down the requirement in Rule 3 of the Bihar Buildings (Lease, Rent and Eviction) Control Rules, 1983 which for the sake of convenience is quoted below: “3.(i) The Controller may determine the fair rent of a building either on the application by the landlord or by the tenant in possession of the building or on his own motion as also on the application of the landlord or prospective tenant. (ii) In determining the fair rent the Controller shall take into account the following factors:- 4 (a) The prevailing rates of rent in the locality for the same or similar accommodation in similar circumstances at any time during the twelve months preceding the date of his order. (b) The increased cost of repairs required to be made in the building; (c) The amenities, general or special provided in the building; (d) The compound or the open land attached to the building; (e) The type of construction and the location of the building and the nature of tenancy, i.e., whether it is for residential purpose, business purpose, etc.; (f) The municipal tax or corporation tax of the building; (g) Any lawful agreement entered into by the landlord and the tenant. (iii) The Collector in determining the fair rent shall follow the provisions of the Act and apply the rules in accordance with them and in case of any doubt or conflict the provisions of the Act shall 5 invariably prevail in determining the fair rent. (iv) The Controller shall fix fair rent after due inquiry and after duly giving notice to the parties concerned and after providing them opportunity of being heard. (v) If at any time after the first fixation of standard rent the market price of the land and the cost of construction increases by more than twenty five percent on the basis of the value of the land and the cost of construction estimated at the subsequent prevailing market rates, then the landlord shall be entitled to have the monthly rent increased by an amount not exceeding one twelth or the seven half percent of the additional increase in the original market price or the land and the cost of construction from the date as may be determined in the manner prescribed subject to a maximum of fifty percent of the original standard rent. (vi) If at any time after the standard rent is fixed under the provisions of the Act any addition, improvement or alteration (not being repairs) is effected at the landlord’s expense which was not taken into consideration in fixing the standard rent, then the 6 landlord shall be entitled to have the monthly rent increased by an amount not exceeding one twelfth or seven half percent per annum of the cost of such addition, improvement or alteration with effect from the date on which the addition, improvement or alteration was completed.” If the finding recorded by the House Controller in his order is now examined in the background of the aforementioned requirement of law under the Act and the Rules, it would be found that it was a mere executive fiat by which the House Controller had proceeded to fix the rent of Rs. 150/- per month. There is no discussion at all of any of the factors which is to be taken into consideration for fixation of fair rent in terms of the aforementioned Rule 3. Such order of the House Controller thus cannot be sustained. Infact such crucial issues were also altogether ignored by the appellate authority as also the revisional authority while affirming the said order of House Controller and therefore all the three impugned orders as contained 7 in Annexure-1, 2 and 3 to this writ application must be and are hereby quashed. As the matter has been decided only on a technical point, normally and usually the issue has to be once again examined by the House Controller, the original authority. Here, however, the petitioner has a strong reservation, inasmuch as according to him neither respondent no.5 is a landlord nor a tenant and therefore in his submissions the application of Respondent no. 5 for fixation of fair rent was itself not maintainable. This Court from the material on records would find that as a matter of fact the respondent no.5 had claimed himself to be landlord and had projected the petitioner to be his tenant. That is how a direction was also given by the House Controller in the impugned order directing the petitioner to pay the amount of fair rent fixed under the impugned order. The case of the petitioner now before this Court on the basis of documents including records of a consolidation proceedings is that he, petitioner, himself 8 is a landlord. If that be so, the proceeding under section 5 of the Act would not maintainable at the instance of respondent no.5 because there cannot be an application by a person for fixation of fair rent who is neither a landlord nor a tenant. Admittedly respondent no.5 has never claimed to be the tenant and if he is not the landlord, the proceeding at his instance for fixation of fair rent cannot be maintained. In that view of the matter, the House Controller would first look into this aspect as to whether the application filed by respondent no.5 is maintainable and in case he comes to a finding that respondent no.5 is the landlord of the premises in question, he would decide the question of fixation of fair rent afresh in accordance with law. The application stands allowed with the aforementioned observations and directions. (Mihir Kumar Jha,J.) Surendra/