ORDER: The Rent Control Appellate Authority held that a second application for fixing the fair rent is maintainable and therefore, this revision.

2. The revision petitioner is the tenant. In 1983, the respondent/ the landlord filed H.R.C.O.P. No.1167 of 1982 under Sec.4 of the Act. Fair rent was fixed at Rs.221 per month. On appeal, it was quantified at Rs.211 per month. After the death of the petitioner’s father, the petitioner and the respondent entered into a tenancy agreement. Notwithstanding the fact that the fair rent had been fixed in the above proceedings, a sum of Rs.500 per month was paid as rent and received by the respondent. In March, 1995, the respondent filed R.C.O.P. No.575 of 1995 for fixing the fair rent. The learned Rent Controller while dismissing the petition on the ground that a second application for fixation of fair rent was not maintainable, proceeded to quantify the fair rent on the basis of the materials produced before him. The fair rent thus fixed was Rs.1311 per month. The respondent preferred an appeal. The Appellate Authority relying on Malpe Vishwanath Acharya v. State of Maharashtra, A.I.R. 1998 S.C. 602 came to the conclusion that a fresh petition for fixing the fair rent was maintainable, since both the parties had chosen to ignore the fair rent fixed in the earlier proceedings and since rent was paid at a rate fixed by consensus, allowed the appeal and confirmed the fair rent fixed by the Rent Controller.

3. Mr.K.Chandramouli, learned senior counsel appearing for the petitioner submitted that a second petition for fixing the fair rent was not maintainable in law. He further submitted that the tenant cannot waive the benefit given to him under the Act. he would also submit that Courts cannot legislative even if there is a lacuna in the Act and it is for the legislature to amend the provisions of an Act, if necessary and the law should be interpreted as it is and not be substituted by judicial opinion. It was further submitted that in proceedings under the Rent Control Act the legality of the Act cannot be questioned. He would further submit that even assuming without admitting the petition was maintainable, the Tribunals erred in including the entire 100 sq.ft., which was the vacant site for the purpose of calculating the land value while only 50% of the vacant site can be included. The following three decisions were relied on to show the extent of Court’s power while interpreting a statute. In all the three cases the question was how to harmonise the time limit prescribed for filing an application under O.21, Rule 89 of C.P.C., with Art.127, Limitation Act.

(a) Thangaammal v. K.Dhanalakshmi, A.I.R. 1981 Mad. 254; (b) P.K.Unni v. Nirmala Industries, A.I.R. 1990 S.C. 933; (c) Dadi Jagannadham v. Jammulu Ramulu, A.I.R. 2001 S.C. 2000.

Certain passages in the above decision were referred to show that Courts cannot assume that the Legislature had made a mistake in this respect or that it made an omission and that even if there were some omission they are matters exclusively within the domain of legislation by Parliament and the Court cannot presume deficiency and supply the omission and that the learned senior counsel would submit that even if the Rent Control Law is harsh on the landlords by barring a second application for fixation of fair rent the Courts cannot presume to set it right. Courts must proceed on the basis that legislature did not make a mistake, and must adopt as far as possible a construction which will carry out the obvious intention of the Legislature.

4. He would also submit that, Malpe Vishwanath Acharya’s case, A.I.R. 1998 S.C. 602 arose out of proceedings under the Bombay Rents, Hotel and Lodging House Rates Control Act (57 of 1947) which pegged down the rent to the rates prevailing on 1st September, 1940 and therefore, it can have no application to the Tamil Nadu Act. Further, the learned senior counsel pointed out that even in that case the Supreme Court did not strike down t

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