The appellate authority is required to conform to the provisions of Clause 4 of the C.P. and Berar Letting of Houses and Rent Control Order, 1949, when fixing fair rent.

Sen, J—This is a petition by Sitaram Rambakas Karwa, proprietor of the shop Shrikisan Hanumantrao, under Article 226 of the Constitution for issue of a writ of 'certiorari' or any other writ or direction for quashing the order, dated 17-11-1951, passed by the Additional Deputy Commissioner, Amravati (non-applicant 2).

2. The Petitioner (hereinafter called the landlord is the owner of a house in Ward No. 1, Jawahar Gate Road, Amravati. It is a 3-storeyed building and is situated in a prominent business locality. It is on the main road and was constructed before 1-4-1940. The ground floor consists of 30 tasmas'. Maniklal, non-applicant 1 (hereinafter called the tenant) took on rent 8 tasmas' on a monthly rent of Rs. 50/- in 1945. The rent was later enhanced to Rs. 75/- in 1948 by mutual agreement. The tenant paid rent at the rate of Rs. 75/- per month.

3. The landlord made an application on 15-6-1949 before the Rent Controller, Amravati (Revenue Case No. 79/86 of 1949-50) for permission to evict the tenant on the ground that he required the premises for his 'bona fide' business. The application was dismissed on 28-7-1951. The Additional Deputy Commissioner by his order, dated 20-10-1951 in Revenue Appeal No. 2/58 of 1951-52 set aside the order of the Rent Controller and directed him to issue a certificate under Clause 13(3)(vi)(c), C.P. and Berar Letting of Houses and Rent Control Order, 1949 (hereafter called the Order).

4. During the pendency of this application, the tenant made an application (Revenue Case No. 198/86 of 1949-50) under Sections 4, 5 and 7(1) of the Order on 24-9-1949. His case was that the rent of Rs. 75/- was excessive. The premises occupied by him were given on rent in 1939-40 at a monthly rent of Rs. 15/- which was raised to Rs. 20/- in 1942. According to him, the rental valuation in the municipal record was Rs. 550/-. He asked for fixation of fair rent and for refund of the excess rent recovered from him during the previous 12 months. The landlord opposed the application and asserted that the rent was neither excessive nor unfair. Only two 'tasmas' were let out on rent in 1939-40 on Rs. 20/- per month. Later in 1943, eight 'tasmas' were given on a rent of Rs. 50/- per month. Both the tenant and the landlord were examined by the Rent Controller, who dismissed the application. The tenant appealed to the Additional Deputy Commissioner who fixed the rent at Rs. 30/- per month.

5. Learned Counsel for the landlord contends that the reduction of the rent was unwarranted. The Additional Deputy Commissioner did not comply with the provisions regarding the fixation of fair rent. There is no reliable evidence or material on the record to support his finding. In the absence of data regarding the rent of the 'tasmas' in 1939-40, it was not open to him to reduce the rent.

6. The argument of Shri Mudholkar, Counsel for the tenants, is that the order is not open to challenge on the ground that it is erroneous. The Additional Deputy Commissioner had complete jurisdiction in the matter. He relies on - Ebrahim Aboobakar v. Custodian General of Evacuee Property, New Delhi, 1952 AIR(SC) 319 and - Brij Raj Krishna v. S.K. Shaw and Brothers, 1951 AIR(SC) 115.

7. Clauses 4 and 5 of the Order are as follows:

4. When on a written application by the landlord or tenant, the Controller has reason to believe that the rent of any house within his jurisdiction is insufficient or excessive, as the case may be, he shall hold such enquiry as may be necessary and record a finding.

5. If, on a consideration of all the circumstances of the case, including any amount paid or to be paid by the tenant by way of premium or any other like sum in addition to rent, the Controller finds that the rent of the house is insufficient or excessive, as the case may be, he shall determine the fair rent to be charged for the house.

There is no express finding by the Additional Deputy Commissioner that the rent was excessive. I do not accept the argument of Shri