Lalit Mohan Sharma, J.
1. This writ application arises out of a proceeding for fixing fair rent of a shop in possession of respondent No. 1 as a tenant under the provisions of the Bihar Buildings (Lease, Rent and Eviction) Control Act. The petitioner landlord has challenged the order passed by the Commissioner, respondent No. 2, dated 16.9.1980. The petitioner is the owner of a building in Gaya town standing on 716 square feet of land and the respondent No. 1 is occupying a shop with an area of 170 square feet, He made an application in 1957 before the House Controller under Section 5 of the B.B.C. Act, 1947 and fair rent was fixed at Rs. 15.50 per month This order was passed on the basis of municipal valuation of Rs. 780/- of the building. The petitioner filed an application in 1974 for revising the fair rent on the ground that the rent fixed earlier was too low. In the meantime, municipal valuation was also raised to Rs 1100/-. The respondent No 1 admitted the liability to pay Rs. 21/- per month on the basis of the municipal valuation. The House Controller however got an inquiry made about the rate of rent for similar area in the locality and on that basis fixed the rent at Rs. 100/- per month. The respondent No. 1 filed an appeal before the Collector which was dismissed. He thereafter moved the Commissioner who has passed the impugned order setting aside the orders of the House Controller and the Collector.
2. In the meantime, the petitioner filed a suit for eviction of the respondent No. 1 and obtained a decree. He took a plea that in the circumstances the respondent No. 1 cannot be treated to be a tenant and must be held to be a trespasser. The learned Commissioner held that in view of this plea, he would not remand the case to the House Controller for a fresh decision. He also observed that if the eviction decree which was under challenge in appeal is set aside, it would be open to the petitioner to file a fresh application for enhancement before the House Controller.
3. The decision of the Commissioner to terminate the proceeding without determining the fair rent on the ground that relationship of landlord and tenant came to an end on the passing of the eviction decree is clearly illegal in view of the definition of the term ‘tenant’ in Section 2(f) of the aforesaid Act. The expression means any person by whom “rent is payable for a building and includes a person continuing in possession after termination of the tenancy in his favour.” The respondent No. 1, therefore, continues to be a tenant even after the passing of the eviction decree. The learned Counsel for the respondent fairly conceded this position and stated that fair rent should be fixed at Rs. 21/- per month in accordance with the municipal valuation.
4. The case was first argued by the petitioner in person and after adjournment Mr. R.S Chatterjee, Senior Advocate, pressed the writ application. It has strenuously been contended that fair rent should be determined on the basis of the prevailing rate of rent in the locality for similar accommodation. The petitioner while arguing in person placed reliance on Clause (c) of Section 8(1) of the Act, 1947. There is no merit in this argument at all. The case was governed by Section 8(1)(b) which stated that fair rent of a building in respect of which a municipal assessment had been made shall be for each month 1/10th of the amount of such assessment. Clause (c) applies only to other buildings in respect of which municipal assessments have not been made. Further, Section 8 is applicable only in cases of determination of fair reply for the first time under Section 5 and not to cases of re-determination of fair rent under Section 7. Admittedly, the municipal assessment has been made in regard to the present buildings and has later been revised.
5. Mr. R.S. Chatterjee, appearing in support of the writ application, contended that since no order fixing fair rent is in existence after the Commissioner’s order, it has to be fixed according to the present Act. When the petitioner’s application for revising the fair rent fixed earlier was filed in 1974 and order thereon was passed by the House Controller on 24.11.1975, the Building Control Act, 1974 was in force. The said Act expired on 31st March, 1976. In 1977 Act XVI of 1977 was passed and the provisions (except Section 25 which is not relevant in the present case) were given retrospective operation with effect from 1.4.1976. On appeal, the Collector confirmed the House Controller’s order on 17.4.1978 when the 1977 Act was inoperative This Act also expired on 31.3.1981 and the present Act being the Bihar Buildings (Lease, Rent and Eviction Control) Act, 1982 (Bihar Act IV of 1983) was passed in 1983 and its provisions excepting Section 28 (which is not relevant) were given retrospective operation with effect from 1.4.1981. The relevant provisions with respect to the fixation of fair rent or re-determination of fair rent of the 1977 Act were similar to those of the 1947 Act. But under the present Act, there is a significant departure inasmuch as the fair rent is not now linked with the municipal valuation. It has been urged on behalf of the petitioner that since the lair rent is now going to be determined, the new provisions of the present Act have to be followed. Mr. Chatterjee suggested that the matter should be remanded to the House Controller with a direction to consider the petitioner’s application in accordance with the new Act, Mr. Maitin appearing for the respondent No. 1 argued that the application having been filed earlier has to be disposed of in accordance with the old law.
6. In the facts and circumstances of the case the matter has to be remitted to the House Controller for fixing fair rent. The earlier order passed by him, by the Collector and the Commissioner have to be set aside. In that view, it does not appear essential to decide the controversy raised by the parties before us and mentioned above. It will be open to them to press their respective points of view before the House Controller who will fix the fair rent in accordance with law, and while so doing he will indicate the date with effect from which the order will be operative.
7. Accordingly, the impugned order passed by the Commissioner is set aside and the matter is remitted to the House Controller for disposal of the proceeding in accordance with the observations made above. While so doing he will ignore his earlier order and the order of the Controller. There will be no order as to costs.