CHAUHAN, J. - (1.) THE dispute over the determination of the provisional rent and its payment by the tenant to the landlord has raised an interesting legal issue: whether while determining the provisional rent under Section 7 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (henceforth to be referred to as `the Act', for short), the court has the power to direct the payment of the said rent from the date of filing of the application under Section 6 of the Act or not?
(2.) THE appellant is challenging the Order dated 9. 12. 2003, passed by the Additional District Judge, No. 8, Jaipur, whereby the learned Judge has fixed the provisional rent of the showroom at Rs. 57,500/- per month and has directed the appellant to pay the said amount to the respondent from 16. 4. 2001, the date of the filing of the suit under Section 6 of the Act. The brief facts of the case are that the landlord, the respondent before this Court, had filed a suit under Section 6 for fixation of standard rent for the showroom rented by the appellant. According to the plaint, the Saraogi Mansion is a commercial building situated on M. I. Road of Jaipur the main artery of Jaipur. The appellant wanted to open up an air- conditioned showroom for saris and textile. Therefore, he rented out shop Nos. 1 to 7 on the ground floor, a space measuring 1434 sq. feet. And he further took shop Nos. 6 and 7 in the basement, measuring 320 sq. feet for rent. The two portions were included in the tenancy agreement dated 26. 6. 90. According to the agreement, the appellant was required to pay Rs. 6570/- per month and to further pay an interest of 601/4% for the payment of House Tax. The appellant further rented out a space of 90 sq. feet, behind Shop No. 1, for a rent of Rs. 625/- per month. The said space was rented out orally. Hence, the appellant rented out a space of 1844 sq. feet for Rs. 7195/- per month from the respondent. However, after 1995 the rent was not increased. But during the period of 1995-2001, with the growth of commercial activity in the area, the rental value of the shops both in and around Saraogi Mansion increased by leaps and bounds. For other premises in the locality, the rental value had increased to Rs. 80/- to Rs. 100/- per sq. feet. Therefore, the respondent felt that the rent received by them is too low. According to the respondent, even if the rental value were to be taken to be Rs. 60/- per foot, the rental value of the premises in dispute should be fixed at Rs. 1,10,640/- per month. Hence, the respondent filed the suit under Section 6 of the Act for fixation of the standard rent. The appellant denied the claims of the respondent, and pleaded that the respondent is already receiving more rent than is being paid by others in the area. He further denied any increase in the rental value in Jaipur. According to him, the rental value of Rs. 60/- per foot is unreasonable. After hearing both the parties, vide Order dated 9. 12. 2003, the learned Judge fixed the provisional rent under Section 7 of the Act as aforementioned. Hence, this appeal before this Court. The respondent has also filed the cross-objection against the said Order. Hence, this common judgment. Mr. Ashok Sharma, the learned counsel for the appellant, has argued that the court has not been granted unfettered power for determining the provisional rent. The power is guided by Section 6 (3) of the Act. Thus, the learned Judge should have determined the said rent on the basis of the criteria fixed under Section 6 (3) of the Act. One of the factors, and according to the learned counsel, the most important factor is the date of the construction. In order to buttress his contention, the learned counsel has relied upon the case of Dr. Balbir Singh and Others vs. M/s. M. C. D. and Others (AIR 1985 SC 339 ). Moreover, according to him, Saraogi Mansion is adjacent to Bapu Bazar, a commercial area constructed in the 1940's. Hence, the rental value of Saraogi Mansion shops should be at per with the shops in Bapu Bazar. Secondly, although the application was filed under the Act, but meanwhile the Rajasthan Rent Control Act, 2001 (henceforth, to be referred to as `the Act of 2001', for short) has come into force. Therefore, the court should have proceeded under the provisions of the Act of 2001. Thirdly, the learned Judge has based his decision on the Valuer's Report submitted by the respondent. The learned Judge has ignored the affidavits filed by the appellant. Lastly, the Judge has erroneously directed the provisional rent to be paid from the date of institution of the application under Section 6 of the Act. The power to direct the payment of provisional rent from the date of filing of the suit does not exist under Section 7 of the Act. Hence, the learned Judge has exercised a power which the statute does not grant him. Thus, this part of the Order is ultra-vires his jurisdiction.
(3.) ON the other hand, Mr. Sudhanshu Kasliwal, the learned counsel for the respondent, has argued that the criteria laid down in Section 6 of the Act for fixation of standard rent has been followed by the learned Judge, while determining the provisional rent. Secondly, the provisions of Act of 2001 are inapplicable as the application was filed under the Act of 1950 and not under the Act of 2001. Moreover, there is nothing in the Act of 2001 to indicate that the said Act would have retrospective effect. In the absence of any indication about the retrospective effect to be given to the Act of 2001, the same cannot be applied retrospectively by the court. Thirdly, the appellant had filed only affidavits and did not file any Valueris Report. ON the other hand, the respondent had not only filed his affidavit, but had also filed a Valuer's Report prepared by Mr. Vinay Kumar Soni, an approved valuer with the Finance Department of the Government of India. As it was a case of one affidavit versus the other affidavit, the court was justified in considering the Valuer's Report filed by the respondent. Hence, the Order is legally based on the said Report. Lastly, he has argued that the use of the word "forthwith" in Section 7 of the Act clearly shows that the court is empowered to direct the payment of the provisional rent from the date of filing of the suit under Section 6 of the Act. In order to support his contention, he has relied on the case of Raymond Synthetics Ltd. vs. Union of India (AIR 1992 SC 847 ). He has further argued that in catena of cases, different High Courts have held that the standard rent can be granted from a retrospective date. He has relied on the case of Union of India & Anr. vs. Parvati Devi (RLW 2004 (3) Raj. 1828), Dharamveer Kaliya vs. Kham Singh & Ors. (1982 (1) RCJ 599) and Hari Rawji Gore Sastri vs. The Malabar District Board (AIR 1951 Mad. 493 ). Hence, according to him, the provisional rent too can be paid from a retrospective date. For this contention he has relied upon Sohan Lal vs. Badri Narain & Ors. (S. B. Civil Misc. Appeal No. 642/1999, decided on 6. 8. 99 by this Court ). We have heard the learned counsels and have perused the impugned Order. This case requires a critical analysis of Sections 6 and 7 of the Act. However, before the said provisions can be examined, regard must be had to the object and aim of the Act. ;