JUDGMENT
S.S. Sodhi, J.
1. The controversy between the landlord and the tenant here is with regard to the fixation of fair rent of the shop let out to the tenant.
2. It was on November, 1960 that the shop, which is located in Sirsa, was let out to the tenant on a rent of Rs. 900/- per annum. It October 1980, the landlord filed an application seeking fixation of fair rent under Section 4 of the Haryana Urban (Control of Rent & Eviction Act, 1973(hereinafter referred to as the Act). This provision of law reads as under:-
“4. Determination of fair rent.-(1) The Controller shall, on application by the tenant or the landlord of a building or rented land, fix the fair rent for. such building or rented land after holding such enquiry as he may think fit. Such fair rent shall be operative from the date of application. (2) In fixing the fair rent under this section, the Controller shall first determine the basic rent which shall be,
(a) in respect of the building the construction whereof was completed on or before the 31st day of December, 1961, or land let out before the said date, the rent prevailing in the locality for similar building or rented land let out to a new tenant during the year 1962; and
(b) in respect of the building the construction whereof was completed after 31st day of December, 1961 or land let out after the said date, the rent agreed upon between the landlord and the tenant preceding the date of application, or where no rent has been agreed upon the basic rent shall be determined on the basis of the rent prevailing in the locality for similar building or rented land at the date of application.
3. In fixing the fair rent, the Controller may allow an increase or decrease on the basic rent determined under Sub-section (2) not exceeding twenty-five per centum of the rise or fall in the general level of prices since the date of agreed rent of the date of application, as the case may be, in accordance with the average All India Wholesale Price Index Numbers, as determined by the Government of India, for the calendar year immediately preceding the date of application).
4. Notwithstanding that the fair rent for building or rented land has been fixed under the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the 1949 Act) a landlord or tenant of such building or rented fixed under this section.
5. Notwithstanding anything contained in this Act, the Controller may fix the fair rent on the basis of the compromise arrived at between the parties to the proceedings. Such rent shall be binding only between the parties and their heirs.”
3. It will be seen that for the purpose of fixing fair rent, the Rent Controller had first to determine basic rent in terms of sub- Section 2(a) of Section 4 of the Act, as admittedly the shop had been constructed before December 1961.
4. A reference to the record shows that the only evidence led by the landlord with regard to rent prevailing in the locality before 1962 consisted of the letting out of the western portion of the shop to one Om Parkash for an annual rent of Rs. 1400/-. Admittedly, these premises are larger than the shop in question in as much as this portion also includes a godown at the back of a chobara on the first floor. It cannot, therefore, be said that the rent of this portion constitutes evidence of prevailing rent for similar buildings in the locality. The appellate authority, thus, rightly treated this as a case of no evidence having been led to establish the prevailing rent for similar building in the locality during the year 1962.
5. The question, thus arises as to what should be taken to be the fair rent of the building for the premises, in the absence of any material on record to establish the basic rent thereof. Mr. C.B. Goel, counsel for the landlord sought to contend that in such a situation the agreed rent must be taken to be the basic rent of the premises. This is indeed, an untenable contention, as it will be seen that the Legislature had specifically provided in sub-section 2(b) of Section 4 of the Act that in respect of the building constructed after December 1961, the agreed rent shall be taken to be the basic rent. If such was also the intention of the Legislature with regard to the buildings constructed before December 1961, a similar provision would have been made in that case too but the absence of such a provision in sub-section 2(a) of Section 4, is, indeed, conspicuous. On a plain reading of provisions of the act, there can be no escape form the conclusion that in respect of buildings constructed before December, 1961, there is no warrant for holding that in the absence of any evidence of prevailing rent in the locality for the similar building, the agreed rent would be the basic rent. judicial precedent is rather to the contrary, namely, that in the absence of evidence to establish basic rent, the agreed rent be taken to be the fair rent. This was so hold, in sham lal v. jeevan mal, 1984 HRR 281.
6. Such thus being the settle position in law, no exception can be taken to the impgned order of the Appellate authority holding the fair rent of premises to be Rs. 900/- per annum.
7. This revision, petition is, accordingly, hereby dismissed. In the circumstances however there will be will be so order as to costs.