JUDGMENT
N.K. Agrawal, J.
1.This revision petition filed by the tenant is directed agninst the order dated January 24, 1997 passed by the Appellate Authority, Hisar, whereby the appeal filed by the tenant against the order of eviction was held to be not maintainable.
2. An application seeking fixation of rent in respect of a shop with its basement on the ground floor was filed by the respondent-landlord under Section 5 of the Haryana Urban (Control of Rent & Eviction) Act, 1973 (for short, the Act). The Rent Controller framed the following three issues :-
1) What is the fair rent of the shop in dispute? OPP
2) Whether the petition is not maintainable ? OPD
3) Relief.
3. The respondent-landlord filed copies of the earlier orders regarding fixation of fair rent. The tenant, however, did not lead any evidence. The only dispute between the parties before the learned Rent Controller was regarding the formula to be applied for determining the fair rent. The learned Rent Controller noted that there was an increase of 219 points in the Price Index in the year 1991 after 1986 and 25% thereof worked out to 55%. The learned Rent Controller, therefore, increased the rent by a sum of Rs. 412.50 and fixed the fair rent at Rs. 1163/- w.e.f. January 21, 1992, the date of filing of the application.
4. The Appellate Authority, in the appeal filed by the petitioner-tenant, took the view that the appeal was not maintainable as the order had been passed by the Rent Controller under Section 5 of the Act. The Appellate Authority took the view that orders passed by a Rent Controller under Section 4, 10, 12 and 13 have been made appealable and since the order under appeal before him had been passed under Section 5 of the Act, it. was not an appealable order.
5. Learned counsel for the petitioner-tenant has argued that the application tiled by the landlord before the Rent Controller was virtually an application under Section 4 of the Act. It was a case of fixation of fair rent after the expiry of five years from the date of fixation of rent on an earlier application filed by the landlord. An application seeking fixation of fair rent had earlier been filed by the landlord on January 12, 1987, and that application was decided by Rent Controller on April 29, 1989 and fair rent was fixed at Rs. 750/- p.m. from January 12, 1987, the date of application. The landlord wanted the Rent Controller to again fix the fair rent on the ground that more than five years had elapsed after the last fixation of fair rent and that there was increase in the rent in that area.
6. It is contended by the learned counsel for the petitioner-tenant that since the application for fixation of fair rent was filed by the landlord after the expiry of five years from the date of earlier fixation of fair rent, it was not an application under Section 5 of the Act. No application was maintainable under Section 5 if it was filed before the expiry of five years from the date of earlier fixation of fair rent under Section 4 of the Act.
Section 5 of the Act reads as under :
” 5. Revision of fair rent in certain cases. —
When the fair rent of a building or rented land has been fixed under Section 4, no further increase or decrease in such fair rent shall be permissible for a period of five years:
Provided that an increase may be allowed in cases where any addition, improvement or alteration has been carried out at the expense of the landlord, and in the building or rented land which is in occupation of the tenant then at the request of the tenant:
Provided further that the decrease may be allowed in cases where there is a decrease or diminution in the accommodation or amenities provided.
(2) Any dispute between the landlord and the tenant in regard to any increase under this section shall be decided by the Controller.”
7. A bare perusal of the above provisions would show that a revision of the fair rent already fixed under Section 4 of the Act was not permissible for a period of five years. However, an exception has been created in the first proviso to sub-section (1). If revision of the fair rent already fixed under Section 4 is sought on the basis of any addition, improvement or alteration made at the expenses of the landlord, then such a revision in fair rent could be permitted even before the expiry of five years. It is, thus, clear that what Section 5 provides is a barring provision against a revision of fair rent under Section 4 of the Act before the expiry of five years. Thus, Section 5 is in the nature of a prohibition creating an exception or a proviso to the enabling provisions contained in Section 4 of the Act. Determination of fair rent has been permitted by Section 4 of the Act. Rent Controller may, on an application either by the landlord or a tenant, fix the fair rent for a rented building or land after holding an enquiry. Such fair rent shall be operative from the date of application. The manner and the formulae for determination of the fair rent have been provided in subsections (2) and (3) of Section 4. Thus, fair rent could be determined by the Rent Controller in no manner other than that laid down in sub-sections (2) and (3) of Section 4. In Section 5, neither any manner nor any formulae has been provided for the revision of fair rent. Section 5 relates to “Revision in fair rent in certain cases” as would be apparent from the marginal head note of the section. Sub-section (1) specifically prohibits the revision of fair rent for five years if fair rent had already been fixed under Section 4 of the Act. However, an exception has been created in the first proviso to sub-section (1) of Section 5, whereby revision of the fair rent already fixed under Section 4 has been allowed if such a revision is sought Before the expiry of five years on the ground of any addition, improvement or alteration carried out at the expenses of the landlord. There appears to be a logic behind such a concession inasmuch as a landlord incurring expenditure on any addition, improvement or alteration in the building or rented land, which is in occupation of the tenant, may claim revision of rent if the said addition, improvement or alteration was carried out at the request of the tenant.
8. Shri Jaswant Jain, learned counsel for the respondent-landlord, has argued that the landlord had sought the revision in fair rent only after the expiry of five years from the last fixation of fair rent. His argument is that Section 5 of the Act does not prohibit revision of fair rent after the expiry of five yeas from the earlier fixation, but it simply prohibits such a revision before five years. The first proviso to sub-section (1) of Section 5 permits revision of fair rent before the expiry of five years if the landlord had carried out certain addition, improvement or alteration at his own expenses, but at the request of the tenant. Thus, the landlord was entitled to a revision of fair rent under Section 5 of the Act. Since no appeal was maintainable against an order passed under Section 5 of the Act, the impugned order dated September 5, 1994 passed by the Appellate Authority is said to be proper. Orders passed under Section 4, 10, 12 and 13 of the Act only have been made appealable by the notification issued under sub-section (1) of Section 15 of the Act.
9. Sh. Arun Jain, learned counsel for the petitioner tenant has, on the other hand, contended that the application filed by the landlord before the Rent Controller on January 15, 1992 was undisputedly filed after the expiry of five years from the date of the first application seeking fixation of fair rent. The learned Rent Controller resorted to the provisions contained in sub-sections (2) and (3) of Section 4 of the Act for determining the fair rent inasmuch as Section 5 does not lay down any method or manner in which any revision of the fair rent could be made. Therefore, as per the learned counsel for the petitioner-tenant, the order of the Rent Controller was, in fact, an order under Section 4 of the Act. Since there was no addition, improvement or alteration in the building in question, it was not a case under the first proviso to Section 5(1) of the Act.
10. The respondent-landlord in his application seeking fixation of fair rent made a mention of Section 5 of the Act, but he did not seek any revision of the fair rent already fixed. The heading of his application reads as.under:-
“Application for fixation of fair rent in respect of a shop with its basement on the ground floor of SCF No. 110, shown with red colour in the attached site plan situated at Automobile Market, Hisar Under Section 5 of the Haryana Urban (Control of Rent and Eviction) Act, 1973, on the basis of evidence of every kind.
11. It would, thus, be apparent that it was an application by the landlord for fixation of fair rent. Though this application was shown to have been filed under Section 5 of the Act, it was in effect an application seeking determination of the fair rent on certain grounds. The landlord had explained in this application that he had earlier filed an application for fixation of fair rent on January 12, 1987, which had been decided by the Rent Controller, Hisar on April 29, 1989, whereby fair rent of the premises was fixed at Rs. 750/- p.m. with effect from January 12, 1987. The landlord demanded that the fair rent of the shop in question should be fixed at Rs. 5,000/- p.m., because the said shop was situated in the heart of the Automobile Market, Hisar and all modern amenities Were available in the locality. The prevailing rent in the locality for a similar shop was not less than Rs. 5,000/- p.m. It would, thus, be apparent that the landlord did not seek the revision in fair rent on the basis of any addition, improvement or alteration made in the premises in question, but on the ground of increase in the rent in the locality. It was also not a case where fixation of fair rent was sought within five years from the date of previous fixation of fair rent.
12. A question about the increase in the general level of prices was examined by a Division Bench of this Court in Gela Ram v. Sat Pal Sharma, (1988-2)94 P.L.R. 35, by which an earlier decision of a learned single Judge in Bhim Sain and Anr. v. Smt. Pushpa Devi of Charkhi Dadri, 1984 H.R.R. 418, was overruled.
13. Learned counsel for the respondent-landlord has argued that, in view of the aforementioned Division Bench decision of this Court, a landlord is entitled to seek increase in the fair rent by way of revision.
14. The controversy in the present revision petition centres round the applicability of Section 5 to the fixation of fair rent sought by the landlord. As seen earlier, the landlord did not seek any revision of the fair rent in his application though he did mention therein that it was an application under Section 5 of the Act. The mere mention of Section 5 would not be material inasmuch as it was an application for the fixation of fair rent on the grounds mentioned in the said application. It is also obvious that the landlord had sought fixation of fair rent over and above the fair rent fixed earlier by the Rent Controller. The application filed by the landlord seeking fixation of fair rent had been filed after the expiry of five years form the date from which the fair rent had been earlier fixed. Section 5 of the Act is unambiguous in laying down a ban on the revision of fair rent already fixed under Section 4 of the Act. Thus, Section 5 does not permit any revision in fair rent unless a period of five years had expired from the previous fixation of fair rent under Section 4 of the Act. The first proviso to sub-section (1) of Section 5 created an exception to the general rule whereby revision of the fair rent was allowed in a case where any addition, improvement or alteration in the building had been carried out by the landlord at the request of the tenant. It was neither a case of an application prior to the expiry of five years nor a case of any addition, improvement or alteration in the premises carried out by the landlord. Thus, Section 5 of the Act is found to be not applicable to the case of the respondent-landlord. The decision of this Court in Gela Ram v. Sat Pal Sharma (supra) is of no help to the landlord inasmuch as the controversy there related to the methodology adopted for the fixation of fair rent.
15. In the result, the revision petition is allowed and the order dated January 24, 1997 passed by the Appellate Authority, Hisar is set aside. The appeal is found to be maintainable and it is restored back to the file of the Appellate Authority for deciding it on merits. Parties are left to bear to their own costs.