UNIT - I

The Jammu and Kashmir Houses and Shops Rent Control Act, 1966

1.1. Historical Background

After the outbreak of First World War complaints piled up before the authorities in England that
arbitrary increase of rent of small houses was enforced by the Land lords. British Parliament was
therefore, obliged to intervene and an Act called "Increase of Rent and Mortgage interest(War-
Restriction) Act of 1915 was passed By this enactment a landlord was forbidden to increase the

rentsof cerain classes of houses above the Standard Rent and was also deprived of his power to

evict the tenants so long as they remained good tenant except on conditions mentioned especially in the
enactment. In the following years a few enactments of similar nature were enacted.

Ultimately in 1920 all the previous enactments in this behalf were repealed and a consolidating Act
called the Increase of Rent and Mortgage interest restriction Act, 1920 was passed. This Act

was subjected to a number of amendments till the out break of the Second World War and in the year
1939 amendments of a far reachingnature were introduced in this Act. Ultimately this Act was followed
by the "Land lord and Tenant Act, 1949" which was latter on replaced by the

"Land lord and Tenant Act, 1954".

The conditions which prevailed after the First World War necessitated the introduction of such
legislations which would have the effect to control the contract of letting in India as well.

Normally speaking the contractual obligations between the two parties can hardly be wiped off or
interfered with except in cases based on fraud, undue influence, coercion and misrepresentation. Under
the Transfer of Property Act relating to contractual obligations of landlords and tenants, the parties
were given full liberty to settle their own terms. The provisions relating to free contract in the Transfer
of Property Act and other enactments could only achieve fair results in normal socio-economic
conditions. When greed and profiteering motives dominated the views of landlords in settling the terms
and conditions of lease, the provisions of Law in force giving parties a free and unfettered right to settle
their own terms become a social evil.

The difficulties arising out of the scarcity of accommodation gave rise to a demand of higher rent by the
landlord. In India and abroad the scarcity of accommodation arose primarily due to the un-expected
growth of commerce and business in cities and other urban areas of the Country. Huge population from
villages migrated to the cities causing big concentration of population in various commerce and business
centers.

To cop up these problems on the pattern of England in India Provincial Legislatures also enacted
legislation controlling rent and eviction. These legislations were initially confined to the big cities of
Bombay, Calcutta and Rangoon. The first Act was passed in Bombay which was called the Bombay Rent
(war Restriction) Act, 1918. In the presidency town of Calcutta, the Calcutta Rent Control Act of 1920
was also passed and likewise the Rangoon Rent Control Act 1920 was also enacted. All these legislations
were however, only of a temporary nature and were considered insufficient to meet the conditions
arising out of the Second World War which had greatly affected the plight of poor tenants living in the
big cities. The Governments were obliged to provide immediate and controlling enactments to prevent
the villagers who had migrated to the cities to work in factories and business establishments to return to
their villages so that war effort was not impeded by their return.

The Bombay Rent (Restriction) Act, 1939 (Act No. 16 of 1939) was therefore, passed in order to restrict
the increase of rent of the premises. In 1942 the Bombay Rent Restriction Order 1942 was promulgated
under the Defence of India Rules which later on underwent several amendments till it was followed by
Bombay Rents, Hotel and Lodging House Rate Control Act, 1947.

History of Legislation in Jammu and Kashmir:

In Jammu and Kashmir the relationship between the land lord and tenant was governed

by a Circular, Circular No. 136 sanctioned under State Council Resolution No. 25 Dated 27 of
January,1894. By virtue of this Circular the Judicial Court in Jammu and Kashmir were empowered to
give the possession of house to the owner when a tenant after locking the house had gone away without
any notice to the owner and the latter applied for the house being unlocked or for its possession. The
scope for the application of Circular was more for the benefits of landlords than to protect any way the
rights of the absentee tenants. The Resolution gave the unfettered powers the Judicial Courts to make
orders for unlocking the house on a simple application after holding a preliminary enquiry for their
satisfaction that the house had been locked. These orders were often based on the statements of the
applicants supported by an affidavit.

In Jammu and Kashmir there was an unprecedented influx of rural population to the urban areas
especially in Srinagar and Jammu districts due to infiltration from the side of Pakistan in 1947 and
conflict with them in 1965. Under such circumstances the law relating the tenancy like Circular No 136
was more helpful for landlord to exploit the poor tenants. However, by Act No IV of 1959 called the
Circular No. 136 dated 27h of January, 1894 (Repeal Act), 1959, this Circular No.136 dated 27th of
January 1894 sanctioned under State Council Resolution No 25 was repealed. The Act No IV of 1959
received the assent of Sadar-a- Riyasat on 19th March, 1959 and was published in the Jammu and
Kashmir Government Gazette dated 2gh March, 1959.

Prior to this in 1942 the Government in exercise of the powers conferred by Clause (bb) of Sub-Rule (2)
of Rule 65 of the Jammu and Kashmir Defence Rules promulgated an Order called the House Rent
Control Order, 2000. This Order was published in the Jammu and Kashmir Government Gazette dated
21st of Assuj2000 and was to extend to certain urban areas in the State excepting Government building
in any such areas. The scope and ambit of this order mainly related to give powers to the Controller
appointed by the Government to determine fair rent of any house as defined in the Order where the
rent charged of the house was in excessive in accordance with the provision of the Order. Later on
Shops Rent Control Order was also promulgated in the Samvat year 2002. The applications of both the
House Rent Control Order, 2000 and the Shops Rent Control Order,2002 were extended from time to
time. Both these Orders were ultimately repealed by the Jammu and Kashmir Houses and Shops Rent
Control Act,2009 Samvat (1952 A.D). This Act was to remain in force up to the last date of March 1956.

By Ordinance II of 1957 the words "the last date of March, 1956" were replaced by the "Last date of
March, 1958". Several amendments were subsequently made in the provision of the Act and so far its
applications was concerned, the Act was to remain in force up to the last date of March, 1965.

On 16 of May 1966 the Jammu and Kashmir Houses and Shops Rent Control Ordinance, 1966 (Ordinance
No. VI of 1966) was promulgated by the Governor of the State. Section 1(ii) of this Ordinance provided
that the Ordinance would come into force on the l of April, 1966 i.e., the date on which the Houses and
Shops Rent Control Act, 2009 had ceased to be operative. This Ordinance did not contain any saving
clause despite the expiry of the Jammu and Kashmir Houses and Shops Rent Control Act, 2009, and
therefore, it was thought advisable to amend the Ordinance. This was done by virtue of another
Ordinance No. XI of 1966 dated 16h of July 1966.

Immediately thereafter, Act No. XXXIV of 1966 replaced the Ordinance VI and XI of 1966.

This Act No. XXXIV of 1966 is the present Jammu and Kashmir Houses and Shops Rent Control Act, 1966.

Objects of the Enactment:

As the preamble of an Act generally ascertain the general object and intention of the legislature in
passing the enactment. The preamble of the Jammu and Kashmir Houses and Shops Rent Control Act,
1966 also suggests that it has been enacted to "make better provisions for the control of rent of houses
and shops in the urban areas in the State". The words used in the preamble in the other words mean the
object of the Act is to provide relief to the tenants against the arbitrary increase in rents. So the basic
purpose of introducing such legislations was primarily to check the demand of higher rent. In P.J. Irani
versesState of Madras (A.I.R. 1961, SC,1731)

Supreme Court of India observed that the basic object of the introduction of the legislation was of two
folds, namely, to prevent the unreasonable eviction and also to control rent. An eviction becomes
unreasonable where the object is to exploit the situation arising out of the dearth of accommodation by
letting out the premises at an unreasonably high rent. The Jammu and Kashmir Houses and Shops Rent
Control Act, 1966 is not only intended to afford relief to the tenants against higher rents but also
contains provisions protecting indiscriminate evictions of the tenants as well. Section 11 of the Act
specifically lay down that notwithstandinganything to the contrary in any other Act or Law, no Order or
Decree for the recovery of possession of any house or shop shall be made by the Court in favour of the
landlord against a tenant including a tenant whose tenancy has expired unless it is covered by any
exception incorporated in the proviso to the section under which a decree for eviction can be made by
the Court. In Raghbir Singh Verses Girdhari Lal Manhas (A.I.R., 1967 JKHC;20) Bhat J., while concluding
the object of the Act observed that the object of the Houses and Shops Rent Control Legislation is to
give protection and some sort of stability of tenure to tenants, to prevent them from the capricious
attempts to ejectment by landlords, to prevent the landlords from increasing the rents at their will, and
otherwise taking recourse to illegal practices such as taking of Pagri etc.

1.2. DEFINITIONS; SECTION 2

1.2.1 CONTROLLER (Section:2 clause 1)

Controller means an officer appointed by the Government(substituted in place of Revenue Minister by

Act XVI of 1978. Section 2) as such for the performance of the duties assigned by this Act to the
Controller in any Particular area. Section 17 of the Act empowers the Government to appoint by a
notification a person to be the Controller for any area or part of the area to which the Act extends to
exercise and discharge the duties conferred and imposed upon the Controller by or under the Act. For
example, by a notification dated 13th of December, 1968 the Revenue Minister, under the powers
conferred upon him under Section 17 appointed Chief Judicial Magistrates Srinagar and Jammu to be the
Controller with in the Municipal limits of Srinagar and Jammu respectively to exercise the powers and
discharge the duties conferred and imposed upon the Controller by or under the Jammu and Kashmir
Houses and Shops Rent Control Act of 1966.

Rent Controller whether Court or persona designate

A distinction exists between a Court performing judicial functions and a persona designate entrusted
with specific duties of a judicial or quasi judicial nature. Sometimes such duties are entrusted to an
official performing executive or administrative functions. At the other times they are entrusted to a
judicial officer who is experienced in assessing evidence, in analyzing the essential of a dispute and
adjudicating upon rights. The Legislatures may take the view that the nature of the business is so
complicated or of such importance that it should be entrusted to a person who has had experience of
dealing with complicated civil disputes. But from that alone it cannot be always inferred that by
assigning such duties to judicial officer the Legislature creates a Civil Court or extends jurisdiction of a
judicial officer.

The word 'persona designata' have been judicially defined by Hidayatullah J., in Central Talkies Ltd.
Versus Dwarka Prasad (A.I.R. 1961, SC, 606;F.B.). in enunciating his definition that a persona designata is
a person selected in his private capacity and not in his capacity as a judge, the learned judge observed;

"The argument that the District Magistrate was a person designata cannot be accepted. Under the
definition of District Magistrate, the special authorization by District Magistrate had the effect of
creating Officers exercising the powers of a District Magistrate under the Eviction Act. To that extent,
those Officers would, on authorization, be equated to the District Magistrate. A persona designata is a
person who is appointed out or described as an individual, as opposed to a person ascertained as a
member of a class or as filling a particular character. Thus the persona designata are persons selected to
act in their private capacity and not in their capacity as judge."
In Surrinder Mohan Versus Dharam Chand Abrol (J &K Law Reporter, 1971 (II) P.157) a full bench of J & K
High Court Consisting of Ali C.J., Jaswant Singh and Anant Singh JJ., considered in detail the true import
of the words 'persona designata' in judicial parlance and laid down certain tests to determine whether
an appointment is made as a person designata or a Court. The learned Judges while deciding this case
held that persona designata in ordinary parlance indicated the appointment or selection of a person in
his individual capacity rather as being a member of a particular class, post, job or profession and the
main test to determine whether an appointment had been made as person designata or as a member of
a class was to find out whether the person appointed had been appointed by his name alone, the
description being given only to identify him. Where only the profession or the occupation of the person
or the post held by him was mentioned, the appointment was not as persona designata. To pronounce
the main tests in order to determine whether an appointment has been made as persona designata or a
Court, Ali C.J., speaking for the Court summed up his discussion as follows;

(i) The question whether an authority has been appointed as a persona designata or as a Court depends
upon the nature of the duties which the authority performs and the matter in which its appointment is
made.

ii. Where the appointment of an authority is made only by name in its individual capacity, the
appointment is persona designata and not in the capacity of the post held by such authority.

(іїї) Where a presiding officer of a Civil Court is selected as an authority, the selection is not as person
designata but as a member of the Court, because the authority is appointed to fill a particular character,
e.g., a Chief Judicial Magistrate, District Judge Civil Judge, so on and so forth.

(iv) Where the authority has been empowered to act judicially and possesses all the trappings of a Court
and has to abide by the rules of evidence then its selection by designation must be presumed to be as a
Court and not as a persona designata.

Objections were often raised in the State Courts that orders of the Controller appointed under Section
17 of J & K Rent Control Act in proceedings under the Act are as person designata and not as a Civil
Court subject to the supervisory and revisional jurisdiction of the High Court. But after the decision of
the J & K High Court in Surrinder Mohan's case the controversy was set on rest. In considering whether
the C.J.M. Jammu and C.J.M. Srinagar were appointed as persona designata or not, the learned Judges
deciding the case in Full Bench held that they were not appointed as persona designata but as a Court to
exercise their powers and functions under the J & K Houses and Shops Rent Control Act as "Controller"
appointed by a notification issued by the Revenue Minister by his enabling Powers under the Act.
1.2.2 FAIR RENT (Section 2; clause 2)

The word "rent" has not been separately defined in the Act. In ordinary parlance the word "rent"
connotes consideration for a lease agreed between the parties. Section 2(2) of the Jammu and Kashmir
Houses and Shops Rent Control Act, 1966 defines "fair rent" the rent in respect of any house or shop
which has been determined in accordance with the provision of schedule A of the Act and where the
rent has been fixed under section & of the Act, the rent so fixed if the applications were made under t
he Act. The word "fair" pre-fixed to the word "rent" denotes that it is something distinct from the
contractual rent. Fair rent means the ideal rent recognized and approved by the J&K Houses and Shops
Rent Control Act as legitimate and lawful consideration to be paid by a tenant for the use and
occupation of the leased property. It means the rent which is fair and proper in the eyes of law between
the parties. Therefore, fair rent is neither a reduction of agreed rent nor enhancement of agreed rent. It
is rent which is determined as lawful rent under the provisions of the J&K Rent Control Act. It may raise
or reduce the contractual rent, if a tenant files a suit for fixation of fair rent alleging that the rent agreed
between the parties is excessive, and the landlord in his reply may claim that the rent agreed is low and
may be enhanced. The rent payable under the Act is fair rent as determined on the basis of "basic rent"
under schedule A or under section 8 of the Act.

The provisions of Schedule - A regarding the basic and fair rent of any premises are as under;-

(1). In this Schedule "Basic Rent" in relation to any house or shop means-

(a). Where the rent of any house or shop has been fixed by the Controller under the House Rent Control
Order, 2000 or Shop Rent Control Order, 2002, the rent so fixed;

(b). Where the rent of the house or shop has not been so fixed, the rent which was payable for the
house or shop during the twelve months prior to 31s December, 1964 (substituted for first Baisakh, 1998
in Act No.XX of 1972) or if any increase rent was paid for the house or shop between that date and
coming into the operation of this Act, the increase rent, which was last paid but so as not to exceed the
rent payable during the twelve months prior to 3M December, 1964 by more than ten per centum.

(2). In case of a house the fair rent shall be:-(according to Schedule - A)

(a). the basic rent, if a period of three years has not elapsed after the time when the rent was fixed as
mentioned in paragrapg (1)(a) or the increase rent as mentioned in paragraph (1)(b) was first paid;

(b). When the said period of three years relevant to the case has elapsed or elapses, the basic rent
increased to five per centum, if the basic rent per mensem is not more than Rs. 100/- and the basic rent
increased by ten per centum, if the basic rent is more than Rs. 100/-

Provided that where the basic rent is the rent payable during the twelve months prior to

31s December, 1964, the fair rent shall be the basic rent increased by ten per centum.
(3). In case of a shop the fair rent shall be:-(according to Schedule - A)

(a). the basic rent, if a period of three years has not elapsed after the time when rent was fixed as as
mentioned in paragrapg (1)(a) or the increase rent as mentioned in paragraph (1)(b) was first paid;

(b). When the said period of three years relevant to the case has elapsed or elapses, or where such
period is not relevant, the basic rent increased by ten per centum, if the basic rent per mensem is not
more than Rs. 100/- and the basic rent increased by fifteen per centum, if the basic rent is more than Rs.
100/-

Thus, the ideal rent which is made basis for fixation of fair rent and which under the provision of the
Jammu and Kashmir Houses and Shops Rent Control Act has been called "basic rent" is that rent which
was payable for a house or shop during the 12 months prior to 31st December, 1964 (substituted for
first Baisakh, 1998, in Act No.XXI of 1972) subject to an increase upto a limit of 10 percent as provided in
the Act. The Jammu and Kashmir Houses and Shops Rent Control Act prescribes the manner, mode and
basis for determination of fair rent with respect to the house or shop to which the Act applies. The
following mode have been provided in the Act to determine the fair rent.

(1). Rent prevalent during the twelve months prior to 31st December, 1964 (substituted for first Baisakh,
1998,in Act No.XXI of 1972), subject to an increase up to certain percentage limit as prescribed under
Schedule A.

(2). Rent assessed under the repealed Jammu and Kashmir House Rent Control Order of 2000, Shops
Rent Control Order,2002 or under the repeal Rent Control Act of 2009.

(3). Reasonable cost of construction of the house or shop and reasonable price of the land included in
the house or shop on the date of its construction taking into account prevailing rate of rent in the
locality for similar accommodation.

(4). Assessment of Municipal taxes, rates or cesses in respect of the house or shop.

1.2.3 HOUSE (Section 2; clause 3)

According to clause (3) of Section 2 of the Jammu and Kashmir Houses and Shops Rent Control Act, the
word 'House' means;

"A building or part of building suitable for occupation as residence and includes:-

(a) Garden, ground and out-houses (if any) appurtenant to such building or part of building.

(b) Any furniture supplied by the landlord of use in such building or part of building."

The definition of 'House' as given in the Act evidently emphasis two essential factors which constitutes a
House as defined under the Act. Firstly, there must be a building or a part of building and secondly such
building or part of building must be suitable of occupation as residence. The Act has not defined the
word 'building'. The word 'building' connotes permanent fixed structure with walls and roof. Thus,
building means edifice. It does not connote the structure without site. But every such building will not
be construed as 'house' within the meaning of Section 2(3) of the Act unless that building is not suitable
for occupation as residence. Thus, the building which is ruined or in dilapidated condition, and as such
not fit for occupation cannot be considered as house within the meaning of the Act. Sub clauses (a) and
(b) of clause (3) further elaborate the definition of house by including garden, ground and outhouses (if
any) appurtenant to such building and furniture supplied by the landlord for use in such building.

1.2.4 SHOP (Section 2: clause 5)

"Shop" means a building or a part of a building suitable for occupation as such and includes piece of
land, principally for business or trade.

The shop in a common sense means a place where things are sold. By virtue of Government Notification
No. 193 of 1961 any building used or let out for the purpose of any trade or business orused for any
commercial or industrial purposes in any area in which the Act is applicable, such building are deemed
as shop within the purpose of the Act. The word 'trade' is commonly used for buying and selling
merchandises. The word 'business' is general and includes every trade, occupation and profession. The
'business' is larger word than 'trade'. So if a building or a place is used principally for the purpose of
business or trade it is 'shop' within the meaning of Act. A piece of land letout for the purpose of trade or
business shall also fall within the definition of Shop. In Shiva Jee Maharaj Vs. Vijay Kumar (1971 J&K L.R.
692), the land was exclusively given to the respondent to excavate earth for the purpose of
manufacturing bricks for a period of one year and he has been carrying on the sale of the bricks in a
portion of the demised property. The High Court held that "the land was let out for the purpose of being
used principally for business or trade. The suit land being thus a 'shop' is clearly governed by the
provisions of the Act." The Court held that the business of bricks manufacturing starts with the
acquisition of earth and it is part and ingredient of business of bricks making and bricks selling. The
excavation of earth is a part of business. A hotel may also come within the meaning of shop as it is a
building where the owner makes his business to furnish food or lodging to other persons.

1.2.5 LANDLORD (Section 2; clause 4)

Section 2(4) of the Jammu and Kashmir Houses and Shops Rent Control Act defines the word "landlord"
as;

"Landlord" means any person for the time being is receiving the rent of any house or shop from the
tenant thereof and includes any person who is entitled to bring suit for such rent.

The definition of the word "landlord" as given in the section is evidently wider than its ordinary
meaning. The plain reading of the definition of landlord' shows that it means;

1) Any person who is receiving rent from the tenant for the time being in respect of any house or
shop;
ii) Any person who is entitled to receive the rent from the tenant for the time being in respect of any
house or shop;

iii) Any person who is entitled to file a suit for recovery of the rent against the tenant in respect of any
house or shop.

A person receiving the rent on behalf of any person is a landlord. Thus, any person who is receiving the
rent from the tenant is a 'landlord'. The definition only requires that a landlord must be a person to
whom the rent is payable. The meaning given to the term 'landlord' also embraces any person who is
entitled to file a suit for the recovery of the rent against the tenant under the Act. The expression 'Any
person who is entitled to bring suit for such rent' includes the owner of the property, because being the
owner of the property he is entitled to receive rent from the tenant. Thus, the person who may lay no
claim of title to the property would nevertheless come within the wide amplitude of the definition of
landlord if he is entitled to file suit for recovery of the rent. It wasobserved by the Supreme Court M.M
Qasim V/S Manohar Lal ( 1982(1) R.C.J. 212

S.C.) that a mere rent - collector though may be included in the expression 'landlord' in its wide
amplitude, cannot be treated as a landlord for the purpose of claiming possession on the ground of his
reasonable requirement of the demised premises. Such a person must show that he is land lord in the
sense that he is owner of the building and has a right to occupy the same in his own right as required by
the provision under the consideration of the Court. A rent- collector or an agent is not entitled to occupy
the house in his own right. He cannot claim such a right against the real owner and as a necessary
corollary he cannot seek to evict the tenant on the ground that he wants possession of the premises for
his own occupation. The expression " landlord' could, therefore, mean a person who is the owner of the
building and who has a right to remain in occupation and actual possession of the building to the
exclusion of every one else. It is such a person who can seek to evict the tenant on the ground that he
requires possession in good faith for his own occupation. The other part of the definition of 'landlord'
namely, the person who is entitled to bring suit for such rent, envisage any rent-collector such as agent,
executor, administrator or a receiver of the property, who is entitled to bring a suit for such rent.

Mortgagee of premises as a "landlord': A mortgagee in possession (usufructuary mortgage) of the

mortgaged property can induct a person as a tenant during the subsistence of the mortgage of
immovable property under the provisions of Transfer of Property Act. Such a mortgagee become
landlord of the tenant so inducted by him. But the tenant is not the tenant of the mortgagor owner of
the property and does not continue as tenant after the redemption of mortgaged premises. Such a
tenant cannot claim any protection under Rent Control Act. Section 60 of the Transfer of Property Act
confers on mortgagor the right of redemption. This is statutory right. He has a right to get back the
subject of the mortgage and to hold and enjoy as he was entitled to hold and enjoy it before the
mortgage. If he is prevented from doing so, such prevention is bad in law.InSaichalmal V/S Rathnabai
(A.I.R. 1972 SC 637) the Supreme Court held that a tenancy created by a mortgagee in possession does
not survive the termination of the mortgagee's interest. After the termination of the mortgagee's
interest the relationship of the landlord and tenant does not survive andobserved by the Supreme Court
M.M Qasim V/S Manohar Lal 1982(1) R.C.J. 212
S.C.) that a mere rent - collector though may be included in the expression 'landlord' in its wide
amplitude, cannot be treated as a landlord for the purpose of claiming possession on the ground of his
reasonable requirement of the demised premises. Such a person must show that he is land lord in the
sense that he is owner of the building and has a right to occupy the same in his own right as required by
the provision under the consideration of the Court. A rent- collector or an agent is not entitled to occupy
the house in his own right. He cannot claim such a right against the real owner and as a necessary
corollary he cannot seek to evict the tenant on the ground that he wants possession of the premises for
his own occupation. The expression ' landlord' could, therefore, mean a person who is the owner of the
building and who has a right to remain in occupation and actual possession of the building to the
exclusion of every one else. It is such a person who can seek to evict the tenant on the ground that he
requires possession in good faith for his own occupation. The other part of the definition of 'landlord'
namely, the person who is entitled to bring suit for such rent, envisage any rent-collector such as agent,
executor, administrator or a receiver of the property, who is entitled to bring a suit for such rent.

Mortgagee of premises as a "landlord': A mortgagee in possession (usufructuary mortgage) of the

mortgaged property can induct a person as a tenant during the subsistence of the mortgage of
immovable property under the provisions of Transfer of Property Act. Such a mortgagee become
landlord of the tenant so inducted by him. But the tenant is not the tenant of the mortgagor owner of
the property and does not continue as tenant after the redemption of mortgaged premises. Such a
tenant cannot claim any protection under Rent Control Act. Section 60 of the Transfer of Property Act
confers on mortgagor the right of redemption. This is statutory right. He has a right to get back the
subject of the mortgage and to hold and enjoy as he was entitled to hold and enjoy it before the
mortgage. If he is prevented from doing so, such prevention is bad in law.InSaichalmal V/S Rathnabai
(A.I.R. 1972 SC 637) the Supreme Court held that a tenancy created by a mortgagee in possession does
not survive the termination of the mortgagee's interest. After the termination of the mortgagee's
interest the relationship of the landlord and tenant does not survive and the tenant cannot claim the
protection of Rent Control Legislation. In Jadaji V/S Navnitbai(1987(II) Supreme Views &Law Reporter
462 the apex Court further clarify that the tenant inducted by mortgagee landlord can claim tenancy
rights only against the mortgagee and not against the mortgager. As soon as the mortgagee's right
became extinguished by the redemption of the mortgage, neither he nor any one inducted by him has
right to be in possession of the mortgage property.

1.2.6 TENANT (Section 2; clause 6)

Section 2(6) of the Act defines "tenant" which reads as;-

"Tenant" means any person by whom or on whose account rent or any money liable to be paid for use
of house or shop is or but for a special contract, would be payable for any such premises and includes
legal representative of such person; and person continuing in possession after termination of tenancy in
his favour, but does not include any person placed in occupation of the house or shop by its tenant
without the consent of the landlord.
The meaning of word 'tenant' has been expressed in widest language in Section 2(6) of the Act which
shows that any person is a tenant by whom the rent is payable or on whose account rent or money is
payable for use of the demised house or shop. A tenant in essence means any person by whom the rent
is payable for the use of demised house or shop; or but for a special contractor implied he is under
liability to pay rent. The very definition of the Tenant mentions of a special contract express or implied
as an exception to be liability for payment of rent. Hence, the definition of tenant is based on the
doctrine of privity of contract. That is indicative of the fact that the payment of rent arises out of a
contract. The term 'tenant' as defined by clause (6) of section 2 of the Act includes;-

(a) A person who is residing in the accommodation

(b) A person who is liable for the act of a person who has been put in the accommodation

(c) Legal representative of a deceased contractual tenant

(d) A person whose tenancy has been terminated by a valid notice A person whose tenancy is
terminated by a valid notice for eviction but continues in possession of the demised house or shop is
also considered as tenant under the definition provided under the clause (6) of section 2 of the Act. Such
a tenant in legal parlance is called as "Statutory Tenant'.

Therefore, the Act makes no difference in between a contractual tenant and a statutory tenant, as both
are entitled to the protection of the Act till final decree for eviction is passed by the Court.

A tenant occupying premises for a fixed term remains a tenant even after the expiry of his tenancy.
Therefore, the word 'tenant' is used in the Act in a wider sense.

A sub-tenant is also included in the definition of the tenant provided he is inducted by the tenant with
the written consent of the landlord. Implicitly, it means that a person or sub-tenant who has been
placed in possession of the house or shop by the tenant without the consent of the landlord is not a
tenant under the Act. Such a tenant is not even a necessary party to the suit for eviction and he is bound
by the decree that may be passed against the contractual tenant.

Difference between Contractual Tenant and Statutory Tenant

A tenant who has been put in possession of the demisedhouse or shop by the landlord in terms of the
contract of tenancy in consideration of rent for a definite period is recognized as contractual tenant who
is entitled to claim every protection granted to him by the Act. However, because of the extended
meaning given to the tenant under the Act, the protection given to the Contractual tenant has also been
extended to a tenant, called the statutory tenant, who continuous to be in possession of the tenanted
premises even after his contractual tenancy has been terminated by the landlord. A statutory tenant is
thus a person who, after his contractual tenancy has been expired or whose tenancy has been
terminated by the landlord, continued to be in possession of demised house or shop by virtue of section
2(6) of the Rent Control Act. The expression 'person continuing in possession after termination of
tenancy in his favour' has been incorporated in the definition of 'tenant' with the object to extent the
protection of the Act to those tenants whose tenancy agreements have come to an end. Under the
provisions of Transfer of Property Act, after termination of tenancy, tenant becomes a trespasser if he
continues in possession of the demised premises. But the definition of tenant gives him the status of a
tenant and as such he is entitled to the same protection which a contractual tenant is entitled under the
Act.

In short, it can be said that a statutory tenancy begins after the termination of the contractual tenancy.
A statutory tenant continuous in possession of the house or shop not because of any consent of the
landlord but upon his right to retain his possession given to him by the Act. The Act merely protects the
possession of the tenant after the termination of the tenancy. It is only after the passing of the eviction
decree that the relationship of landlord and tenant comes to an end under this Act. In Biswanai Pvt. Ltd
V/s Santosh Kumar 1980(1) SCC 185) the tenant was in possession of the demised premises even after
the expiry of the contractual tenancy. So he assumed the status of a Statutory tenant. There after a
fresh lease deed was executed which was not registered the Court held that the status of such a tenant
did not undergo any change and he continuous a statutory tenant. The concept of 'Statutory tenancy'
has been borrowed from the English Rent Control Acts. In Smt. Gian Devi Anand V/S Jeevan Kumar (1985
R.C.J. 640; AIR 1985, SC796) the Supreme Court of India observed that the concept of "Statutory
Tenancy' is not found in the Rent Control Acts inforce in the various States but is indeed a creature of
the English Rent Control Acts. Though the term is not found in the Indian Acts, the term has often been
used in the judgments of Supreme Court and high Courts to denote a tenant whose contractual tenancy
has been terminated but who has become entitle to continue to remain in possession by virtue of the
protection afforded to him by the various Rent Control Acts prevailing in different States of India.

Urban Area:

According toSection 2 Sub-section 7 of the Jammu and Kashmir Houses and Shops Rent Control Act
"Urban Area" means any area administered by a Municipal Committee, a Town area Committee or a
Notified area Committee and includes any area declared as cantonment under Section 3 of the
Cantonment Act, 1924.

Municipal Committee:

Area administered by the Municipal Committee is called a Municipality. Section 4 of the Municipal Act,
1951 lays down that the Government may by notification express its intention to declare any local area a
Municipality under the Act and the local area so declared under this section is called a Municipality.
Before declaring any such area as Municipality the Government has to observe the formalities as
specified in the Section 4 of the Municipal Act.

Town Area: Section 3 of the Town Area Act, Samvat 2011 (1954 A.D.) relates to the constitution of
Town Areas. It provides that;

Government may by notification in the official gazette (a) declare any town, village, suburb, bazaar or
inhabited place to be a Town Area for the purpose of this Act and may unite, for the purpose of
declaring the area constituted by such union to be a town area, the whole or any portion of any town,
village, suburb, bazaar or inhabited place; (b). Defines the limit of any town area for the like purposes;
(e) Include or exclude any area in or from any town area so declared or defined and (d). at any time,
cancel or modify any notification issued under this section".

Notified Area: The State Government may by Notification declare any area as Notified Area to which all
or some of the provisions of the Municipal Act are applied.

Cantonment: According to Section 3(1) of the Cantonment Act, 1924 the Central Government may by a
Notification in the official Gazette, declare any place or places in which any part of the Indian Army or
Indian Air force is quartered or which being in the vicinity of any such place or places, is or are required
for the services of such forces to be a cantonment for the purpose of this Act and of all other
enactments for the time being in force, and may by a like notification, declare that any cantonment shall
cease to be a cantonment. Clause (2) of Section 3 of the Cantonment Act, 1924 also empowers the
Government which may by a like notification define the limits of any cantonment for the aforesaid
purposes. Such areas declared as Cantonment by the Government are administered either by the Board
constituted by the Central Government known as Cantonment Board or in absence of any such Board by
the Government itself. Under the Provisions of the Constitution of India, no State Legislature of the
Country is competent to enact any law to regulate the housing accommodation within any cantonment
area situated in any State because such law falls within the ambit of Union List of the Constitution and
Parliament has exclusive powers to make laws with respect to all subjects mentioned therein. However,
the Constitutional position in State of Jammu and Kashmir is quite different. Due to its unique position
the Cantonment Areas in the State have been included within the meaning of "Urban Area" by virtue of
Notification SRO-606 of 1971 issued by the State Government and the provisions of the Jammu and
Kashmir Rent Control Act were extended to all these areas. This Notification was Challenged in the High
Court in Janak Kumar V/S Lt. Col. Charanjit Singh (1985 K.L.J. 296; S.L.J.292) on the ground that the J & K
State had no jurisdiction to extend the provisions of the Jammu and Kashmir Rent Control Act to the
Cantonments Areas in the State. It was argued that only the Parliament of India is competent to legislate
regarding the enforcement of the Rent Control Legislation for the premises located in the Cantonment
areas. The question was considered by the High Court and it was held that Entry 3 of the Union List of
the Constitution "administration of Cantonment" has not been extended to the J&K State entirely and as
such the Government of Jammu and Kashmir was legally competent under the provisions of the J & K
Houses and Shops Rent Control Act to extend its provisions to the Cantonment areas in the State. Under
the Entry 3 the Powers to make laws regarding house accommodation and control of rents vests in the
Parliament except for Jammu and Kashmir. As the Parliament has no power to make any law relating to
house accommodation under Entry 3 of the Constitution, the Central Government has no authority to
extend such laws to the Cantonment areas of Jammu and Kashmir State. The High Court observed that it
is only the State Government which has such power and it has exercised such power rightly by extending
the provisions ofthe J & K Houses and Shops Rent Control Act to the Cantonment Areas of the State by
issuance of SRO 606 of 1971.
Cases in which fair rent shall be fixed by the Controller (Section: 8)

Section 8 of the Jammu and Kashmir Houses and Shops Rent Control Act, prescribes a detailed method
according to which the Controller can determine and fix the fair rent of a house or shop.

According to this section:

1. In any of the following cases, the Controller shall, on application by any landlord or tenant, fix the fair
rent as set forth there under which shall be revised after every 3 years if and when request is made.

a. Where the provision of schedule A apply and there is no cause for the alteration of the rate of fair
rent as determined according to the Schedule for any of the reason mentioned in the following clauses
in accordance with the provision of Schedule A.

b. Where during the currency of a fair rent payable for any house or shop there has been an increase in
the municipal taxes, rates or cesses in respect of the house or shop by adding to it the amount of such
increase as is payable by the landlord by agreement with the tenant over and above what is payable by
the landlord himself under the local municipal law.

c. Where during the currency of the fair rent payable for any house or shop the landlord has made some
addition, alteration or improvement in the house or shop, not being tenantable repairs, necessary or
useful for such house or shop, by adding to such fair rent payable in one year ten per centum of the
amount reasonably spent by the landlord in making the said addition, alteration or improvement, the
added amount being divided amongst installments for payment of rent of the year as would be just and
convenient:

Provided that when the house or shop is in the occupation of a tenant at the time of the said addition,
alteration or improvement the additional rent shall not be recoverable from such tenant unless such
addition, alteration or improvement has been made at the written request of the tenant.

d. Where during the currency of fair rent the landlord has supplied any furniture for use of the tenant in
the house or shop by adding to such fair rent payable in one year ten per centum of the price of the said
furniture as on the day they are supplied, the added amount being divided amongst installments for
payment of rent of the year as would be just and convenient.

e. Excepting the case covered by clause (f) following, where the provision of Schedule A for determining
the fair rent do not apply, either because the house or shop or the whole of the house or shop was not
let during the twelve months prior to (IsBaisakh,

1998 SMV) 31st December, 1964, or for some other reason or where any house or shop was let rent free
or at a normal rent, or for some consideration other than money rent or in addition to money rent, by
fixing the fair rent at a rate in accordance with Schedule A taking the rent which would have been
reasonably payable for the house or shop if let as "basic rent" under the said Schedule.
f. Where any house or shop has been wholly or substantially constructed after the last day of chet,2005,
by fixing the fair rent payable for one year at a rate not less than four per centum and not more than six
per centum of the reasonable cost of the construction added to the reasonable price of the land
included in the house or shop as on the date of the commencement of such construction taking into
account the prevailing rate of rent in the locality for similar accommodation with similar advantages and
amenities and the comparative advantages or disadvantages of accommodation in the house or shop:

Provided that where the house or shop in respect of which fair rent is to be fixed from a part of the
construction, the fair rent shall be fixed at a rate which is fairly proportionate to the total fair rent of the
entire construction.

g. When no provisions of this Act for fair rent apply to any premises, by determining the fair rent at a
rate which is fair and reasonable.

h. Where there is any dispute between the landlord and the tenant regarding the amount of the rent.

2. If, in fixing the fair rent, the Controller is required by this Act to determine the rent at which the
premises were let during the twelve months prior to (IBaisakh, 1998 SMV)

31st December, 1964, but it is not reasonably practicable to obtain sufficient evidence for determining
the said rent, he shall determine approximately the rent, at which in reasonable probability the house or
shop was let on the date and the rent so determined shall be deemed to be the rent at which the
premises were let during twelve months prior to (15Baisakh, 1998 SMV) 31st December, 1964, and for
the said purpose he may have regard to the fair rents of similar houses or shops in the neighbourhood,
and may make presumptions either against the landlord or the tenant who, in his opinion is in a position
to produce evidence but is refraining from doing it.

Section 2, Sub-section 2 gives an exhaustive definition of the words 'fair-rent'. According to this
definition fair rent in respect of any house or shop means (a) fair rent determined in accordance with
the provisions of Schedule 'A'; (b) where rent has been fixed under section 8, when an application is
made for such purpose.

Schedule A provide the basic rent which is taken into account while determining the fair rent under the
said Schedule. Section 8 prescribes a detailed method according to which the Controller can determine
and fix the fair rent of a house or shop. He can do so only on an application of the landlord or a tenant
and cannot move in the matter suo moto. It is a fundamental requirement of the Section that there
should be relationship of landlord and tenant between the parties and this relationship is a basic
condition for the exercise of the jurisdiction by the Rent Controller. If no relationship of landlord and
tenant is made out, the authority would not be competent to determine the fair rent.

Procedure for fixation of the rent: Section 8 does not lay down any specific procedure which the
Controller should adopt to fix "fair rent" under the Act. All that the Section lays down is that the
Controller shall on application by land lord or tenant "fix the fair rent". But the controller cannot "fix the
fair rent" on mere presentation of the application by the landlord or the tenant. If he does so, he acts
arbitrarily. Section 19 of the Act, however, enacts that subject to other provisions of the Act, before
exercising any of the powers conferred on the Controller by the Act, he shall give notice by registered
post of his intention to exercise powers under the Act to the landlord and to the tenant, if any, and shall
cause a copy of such notice to be affixed in a conspicuous place at his office and shall dully considered
any application received by him within the period specified in the notice. Thus while exercising the
powers under Section 8 the Controller shall have to adopt the procedure as laid down in Section 19.

Again Section 20 Sub-Section (2) provides that the Controller shall subject to any rules made under the
Act, and in so far as such powers are necessary for carrying out the provisions of the Act, have powers to
summon and enforce the attendance of witnesses, and to compel the production of documents by the
same means, and, and so far as may be in the same manner as is provided in the case of a Court by the
Code of Civil Procedure, Samvat, 1977. Thus in exercising powers under Section 8 of the Act, the
Controller has the same powers o summoning of witnesses and production of documents as are vested
in a Court under the Code of Civil Procedure, 1977.

Clause wise interpretation of Section 8

Sub-section (1) Clause (a):-"Fair rent" according to Schedule 'A'

Under this clause the fair rent is to be where the provision of Schedule (A) is applicable and there is no
reason for making any alteration of rent so determined according to the Schedule or as warranted in
clauses b, c, or d of section 8(1). In other words, if there is no cause for alteration in the rate of rent as
determined under the Schedule for any of the reasons mentioned in the subsequent clauses, the
Controller has to apply the provisions of the Schedule A to fix the fair rent. In Surrinder Mohan w/s
Dharm Chand (1980 K.L.J 291) the High Court observed that the expression in accordance with the
Schedule subject to the conditions that if any increase in

"cause for alteration in the rate of fair rent' occurring in clause (a) appears to be a wider import so as to
include not only an increase in the fair rent already fixed, but also fixation of fair rent afresh or for the
first time. In this case the tenant had acquired a shop from the respondent on a monthly rent of Rs.30 by
virtue of a rent deed executed on 10-1-1961. The rent was enhanced to Rs50 per month vides another
rent deed dated 13-1-1964 and finally to Rs.80 vide rent deed dated 1-9-1966. The tenant made an
application for the fixation of fair rent before the rent Controller on the ground that the rent was highly
exorbitant. The Shop was found to have been construed after Chet 2005 Samvat and the Controller fixed
the rent of the Shop under clause (f) of Section 8. The High Court up held the decision of the first
appellate Court fixing the fair rent at Rs. 80 per month as the shop in question was build after the last
day of Chet, 2005 Samvat

Sub-section (1) Clause (b):-Fixation of fair rent due to increase in Municipal taxes.

One of the objects of Rent Control Legislation is to ensure that the Act does not operate so as to
penalize the landlord by disregarding altogether certain important factors that would entitle him to
receive a higher rent. Generally, under sub-section 1 of Section 8 allowed the revision of rent after three
years of the fixation of it if and parties so desired, but this clause is applicable when during the currency
of fixed fair rent any Municipal taxes, rates or cesses to that house or shop has been increased and there
is no automatic increase in the fair rent, on account of such increase in the payment of taxes, etc. in
such a case tenant can not escape from the liability to pay such additional amount of rent. But this
increase in taxes must be over and above what is payable by the landlord himself under the Municipal
Law. The Court in M.M. Maqbool vs. State (1971 J&K. L.R 375) rejected the contention that clause (b) is
unconstitutional as it provides that an increase in Municipal taxes etc. is to be added to the fair rent 'by
agreement with the tenant' though such an increase should have been automatically and without the
consent of the tenant. The Court held that the expression 'as is payable by the landlord by agreement
with the tenant' creates some ambiguity but the word 'agreement' has reference to a prior agreement
between the land lard and the tenant for payment of Municipal taxes by the landlord before fixing the
fair rent. The clause is obviously intended to add to the fair rent any increase in the Municipal taxes etc.
which has payable by the landlord during the currency of a fair rent. This is obviously for the benefit of
the landlord.

Sub-section (1) Clause (C):-Fixation of fair rent due to addition, improvement or alteration.

Another ground entitling a landlord to higher rent during the currency of the fair rent is incorporated in
this Sub clause. The clause enacts that if during the currency of the fair rent, payable in respect of any
house or shop, the landlord has made any alteration, addition or improvement in the house or shop the
fair rent can be increased up to certain limits. This increase would be subject to certain conditions. They
are:-

i. It should not be a tenantable repairs.

ii. Such alteration, addition or improvement must be made on the written request of the tenant when
the house or shop is in the occupation of the tenant.

When such alteration, addition or improvements fulfill the above mentioned requirements then the fair
rent is to be increased by adding ten per centum of the cost of such alteration, addition or improvement
for the whole tenancy year.

Sub-section (1) Clause (d):- fixation of fair rent due to supply of furniture for use of tenant:

Another ground which entitles a landlord to claim the increase in the rent during the currency of fair
rent has been provided in this clause. According to this clause in case a landlord had supplied any
furniture for use of tenant in the demised house or shop, it is permissible for the landlord to claim
increase in the rate of existing fair rent under the Act. The additional amount added to fair rent payable
by the tenant in one year is subject to 10 percent of the price of the said furniture from the date the
furniture was supplied to the tenant. This addition amount to the fair rent would be payable by the
tenant in equal installments.

It may be recalled that under Section 5 of the Act landlord cannot make, the purchase of

any furniture a condition for grant, continuance or renewal of tenancy. Under Section 7 the tenant is
entitled to apply to the Controller for the re-assessment of rent in case the landlord had let out a
furnished house or shop to a tenant which include the rent for the use of furniture. The Controller is
empowered, if satisfied that the rent so added by the landlord for the use of furniture was unduly high,
to reduce the portion of the rent added for the use of the furniture to arent which he considers is fair
and reasonable. The resultant rent so fixed by the Controller for the furnished house or shop shall be
deemed fair rent under Section 8 of the Act.

Sub-section (1) Clause (e):- Fixation of fair rent when Schedule-A is not applicable:

Schedule A of the Act lays down the mode of determination of basic rent of a house or shop to which
the Act applies. Under the Schedule the basic rent has reference to the rent which was payable for the
house or shop during the twelve months prior to 31" December, 1964 (substituted for first Baisakh,
1998, in Act No.XXI of 1972), or the rent fixed under House Rent Control Order, 2000 Samvat or Shops
Rent Control Order, 2002 Samvat. Clause (e) to Section 8(1) covers the cases in which the house or
shops was not let during twelve months prior to 31st December, 1964 (substituted for first Baisakh,
1998, in Act No.XXI of 1972), or for some other reasons, or where the house or shop was let rent free or
at a nominal rent or for some consideration other than rent. In such cases the Controller has to first
determined the basic rent as the rent which would have been reasonably payable by the tenant twelve
months prior to 3 1st December, 1964 (substituted for first Baisakh, 1998, in Act No.XXI of 1972), and
then to fix the fair rent on that basic rent. Thus the Controller's scope of inquiry to determine the basic
rent under this clause is very wide and he is empowered to decide as to what would have been the rent
reasonably payable for the house or shop under Schedule A.

Sub-section (1) Clause (f):- Fixation of fair rent when the house or shop was constructed after the last
day of Chet, 2005 Samvat:

This clause of Section 8(1) is applicable to such houses or shops which have been wholly or substantially
constructed after the last day of Chet, 2005 Samvat. In such cases Controller has to fix the fair rent not in
accordance with the Schedule A but he has to fix the rent on the basis of the cost of construction of the
premises. While determining the fair rent of the premises which have been wholly or substantially
constructed after the last day of Chet,2005 Samvat the following factors have to be taken into
consideration by the Controller;

I. Reasonable cost of construction of the house or shop.

II. Reasonable price of the land included in the house or shop on the date of its construction.

III. Prevailing rate of rent in the locality for similar accommodations.

The rent has to be determined by adding the first two items and fixing the fair rent as four to six per
centum of interest thereon, keeping the prevailing rate of rent in the locality for similar
accommodations.

The fair rent of a house or shop which had been constructed after Chet 2005 Samvat will be fixed by the
Controller on the basis of the above said three aggregates as was elucidated by the High Court in Sat Pall
Kapoor vs. Mani Ram (1971 J&K. L. J 276). In the instant case the tenant had taken a shop on rent at Rs.
100/- the tenant thereafter applied to the Controller for fixation of the fair rent and the same was fixed
by him at Rs.20/-. On appeal the fair rent was fixed by the District Judge as Rs.53/-. The High Court, on
revision petition filed by both the tenant and the landlord fixed the fair rent of the shop as Rs.39.82/- on
the basis that the cost of the land at the Link Road Jammu reported as Rs. 8000/-per marlawhere as the
land under the Shop is only 130 Sq.ft. for which the cost come to Rs.5200. the cost of construction was
Rs.2764/-. The total cost comes to Rs. 7964 (5200+2764). On this amount the interest comes to
Rs.477.84 at the rate of 6% per year. Accordingly, the fair rent of the shop comes to Rs.39.82 per month.

Sub-section (1) Clause (g):- Residuary powers of the Controller to fix fair rent;

The Controller is required to determine the fair rent of any house or shop primarily under one or other
clauses (a) to (f) of Section 8(1). In case none of these clauses are applicable to a house or shop for fixing
the fair rent, then clause (g) of Section 8(1) of the Act empowers the Controller to determine the fair
rent of a house or shop at a rate which he consider to be fair and reasonable rent. This clause in essence
confers on the Controller residuary power to fix the fair rent when rest of the clauses of Section 8(1) is
not applicable to the facts of the case present before him.

What would be the "fair and reasonable" rent in a particular case will depend upon the sound exercise
of the discretion of the Controller on the facts of each case. As clause (g) does not reveal any criteria on
the basis of which the Controller may fix the fair rent of the premises, so the whole question has been
left to the wide discretion of the Controller to decide that what will be fair and reasonable rent. But this
discretion should not be used arbitrarily. It should be reasonable and just. Therefore, the Controller
while fixing the fair rent under this clause will be controlled by certain principles and conditions
mentioned in the various clauses of the Section.

Beside this the Controller will take into consideration the prevailing rate of rent in the locality and
condition of the premises.

In addition to this, the discretion of the Controller will be guided by Rule 3(3) (c) of Rent Control Rules,
1981 which provides certain guidelines to the Controller where no provision of the Act for fixing fair rent
applies to any house or shop. The Rule says that the Controller shall determine the fair rent after taking
into account the following factors;-

1. Reasonable cost of construction of the house or shop on the date of its construction;
2. Reasonable price of the land included in the house or shop as on the date of the
commencement of the construction; and
3. Prevailing rate of rent in the locality for similar accommodation with similar advantages and
amenities and the comparative advantages or disadvantages of the accommodation in the
house or shop.

In cases where the fair rent is increased by the Controller under clauses (f) or (g) of Section 8(1), then
the tenant has to pay the increased rent from the month next after the date of the application; unless
the Controller decides that such rate of rent should operate from any earlier or later date for the
reasons to be mentioned by the Controller in his Order.
Sub-section (1) Clause (h); Fixation of fair rent where amount of rent is in dispute:

Lastly, whenever there is a dispute between the landlord and the tenant regarding the amount of the
rent payable, the Controller assumes the jurisdiction to settle the fair rent of the house or shop.

Sub-section (2) of Section 8 further prescribes the method for fixing the fair rent of a house or shop
during twelve months prior to 31st December, 1964 (substituted for first Baisakh, 1998, in Act No.XXI of
1972). The clause is applicable when the rent Controller is required to determine the rent of a house or
shop which was let out during twelve months prior to 31st December, 1964 (substituted for first
Baisakh, 1998,in Act No.XXI of 1972), but it is not reasonably practicable to obtain sufficient evidence to
determine the said rent, in such an eventuality the sub-section (2) of Section & empowers the Controller
to determine approximately the rent of the premises, at which in reasonable probability, the premises
was let on the date and the rent so determined by the Controller will be deemed to be rent at which the
premises were let during twelve months prior to 31st December, 1964 (substituted for first Baisakh,
1998, in Act No.XXI of 1972).

Section 9 of the Act provides the date on which fair rent fixed by the Controller takes effect.

According to this Section the rent fixed by the Controller generally takes effect from the next months
from the date of application. If in the opinion of Controller it has to take effect from any earlier or later
date then the Controller has to record in writing. However, the rent fixed on the ground of increase of
Municipal taxes, rates or cesses, or on the ground of alteration, improvement or rebuilding or supply of
furniture to the use of tenant in the hose or shop, then it shall take effect from the next month of such
increase of Municipal taxes, rates or cesses, or alteration, improvement or rebuilding or supply of
furniture or from the date which the Controller otherwise specify in his order. It is to be noted that the
Controller in every case of fixation of fair rent has to specify the date from which the fixed rent shall take
effect.

Generally the fixation of rent of any rented house or shop is a matter of contract between the landlord
and the tenant at the time of letting out the premises. Consequently, the tenant is legally liable to pay
contractual rent to the landlord in terms of contract of letting. It was held by the Supreme Court in M.M.
Chawla vs. J.S. Salthi (1968 R.C.R.861) that the tenant is liable to pay the rent at the contractual rate
unless and until the standard rent or fair rent is in fact determined by the Controller. So long as the
standard rent is not determined by the Controller, the tenant must pay the contractual rent; after the
standard rent is determined the landlord becomes disentitled to recover the amount in excess of the
standard rent from the date on which the determination operates. Similar provisions have been
incorporated under Section 10 of the Jammu and Kashmir Houses and Shops Rent Control Act, 1966.
Section 10 reads as under;

Landlord not to claim rent at a rate different from that at which it is being paid except in certain case:
Nothing in the provisions of this Act, including Schedule -A, shall entitle the landlord to claim the rent
from the tenant at a rate different form that at which it is being paid at the time, except by agreement
with the tenant, valid in law including this Act, or unless a different rate is fixed under Section 8.
Section 10 of the Act prohibits the landlord to claim rent from the tenant at a rate different from the
agreed rate of rent at the time of the execution of contract. So the section does not bar any mutual
agreement between the landlord and tenant from increasing the contractual rent, provided no fair rent
had been fixed by the Controller under the Act. Once the fair rent has been fixed by the Controller in
accordance with the provision of the Act, both the landlord and the tenant arebound to accept the rent
so fixed, at least for three years when it will be revised by the Controller. The Scope of Section 10 was
analysedby the High Court in Sat Pall vs. Mani Ram

(1971 L.R.276) and it was held " this section lays down that the landlord cannot claim more rent than
contracted except with the agreement of the parties. Such agreement must be valid in law and valid
even under the Houses and shops Rent Control Act." The last words of the section

'unless a different rate is fixed under Section 8' makes it clear that any agreement entered by the tenant
and landlord with respect to payment of rent is subject to the fixation of fair rent by the Controller
under Section 8 of the Act, which means that the rent fixed by the Controller under Section 8 of the Act
would supersede the contractual rent of the parties.

1.3. SUITS AND PROCEEDINGS FOR EVICTION

Section 11: Protection of tenant against eviction- (1).Notwithstanding anything to the contrary in any
other Act or Law, no order or decree for the recovery of possession of any house or shop shall be made
by any Court in favour of the landlord against the tenant, including a tenant whose lease has expired:

Provided that nothing in this sub-section shall apply to any suit for decree for such recovery of
possession-

a. Against a tenant who has transferred his tenancy rights in whole or in part with possession otherwise
than by sub-lease;

b. Against such transferee;

c. Against a tenant who has sub-let the whole or a major portion of the house or shop for more than
seven consecutive months:

Provided that if a tenant, who has sub-let major portion of the house or shop, agrees to possess as a
tenant the portion of the house or shop not sub-let on payment of rent fixed by the Court, the Court
shall pass a decree for ejectment from only portion of the house or shop sub-let and fix proportionately
fair rent for the portion kept in possession of such tenant, which portion shall constitute house or shop
under clause (3) or clause (5) of Section 2 and the rent so fixed shall be deemed fair rent fixed under
section 8:
Provided further that no order or decree for the recovery of possession shall be made in favour of the
landlord if the tenant has sub-let the house or shop or portion thereof with the written consent of the
owner;

d. Where the tenant has done any act contrary to the provisions of clause (m), clause (o) or clause (p) of
Section 108 of the Transfer of Property Act, 1977;

e. Where the tenant has been using the house or shop or any part, or allowing the house or shop or any
part to be used for immoral or illegal purposes;

(ee). Where the tenant fails to use or occupy the house or shop for a period of not less than seven
consecutive months;

f. Where the condition of the house or shop has materially deteriorated owing to the act of waste by, or
negligence or default of the tenant, or any person residing with the tenant or for whose behavior the
tenant is responsible;

g. Where the tenant is guilty of conduct which is nuisance or annoyance to occupiers of adjoining or
neighbouring houses or shops including the landlord.

h. Where the house or shop is reasonably required by the landlord either for the purpose of building or
re-building, or for his own occupation or for the occupation of any person for whose benefit the house
or shop is held;

Provided that all sub-tenant in the house or shop are made parties to the suit and allowed opportunity
of contesting claim to decree for ejectment.

Explanation: - the Court in determining the reasonableness of requirement for purpose of building or re-
building shall have regard to the comparative public benefit or disadvantages by extending or
diminishing accommodation, and in determining reasonableness of requirement of occupation shall
have regard to the comparative advantages and disadvantages of the landlord or the person for whose
benefit the house or shop is held and that of the tenant:

Provided that where the Court thinks that the reasonable requirement of such occupation may be
substantially satisfied by evicting the tenant from a part only of the house or shop and allowing the
tenant to continue occupation of the rest, and the tenant agrees to such occupation, the Court shall pass
a decree accordingly and fix a proportionately fair rent for the portion in occupation of the tenant,
which portion shall henceforth constitute the house or shop within clause (3) or clause (5) of Section 2
and the rent fixed shall deemed to be the fair rent fixed under Section 8;

i. Subject to the provision of Section 12 where the amount of two months rent legally payable by the
tenant and due from him is in arrears by not having been paid within the time fixed by the contract or in
absence of such contract by the fifteenth day of the month next following that for which the rent is
payable or by not having been validly deposited in accordance with Section 14; Provided that no such
amount shall be deemed to be in arrears unless the landlord on the rent becoming due serves a notice
in writing through Post Office under a registered cover on the tenant to pay or deposit the arrear within
a period of thirty days from the date of the receipt of such notice and the tenant fails to pay or deposit
the said arrears within the specified period.

j. Where the house was let to the tenant for use as a residence by reason of his being in service or
employment the landlord, and the tenant has ceased to be in such service or employment:

Provided that where the tenant is a workmen who

has been discharged or dismissed by the landlord from his service or employment in contravention of
the provisions of the Industrial Disputes Act, 1947, he shall not be liable to be evict until the competent
authority under the Act confirms the order of discharge or dismissal made against him by the landlord;

k. Where the house or shop is required for the immediate purpose of demolition ordered by any local
authority or other competent authority

(2). Nothing in the Section or in this Act shall be deemed to entitle the landlord to get a decree for the
recovery of possession of any house or shop against the tenant where any contract or law debars such
relief, or except in accordance with the provision of law for getting such relief; and such contract shall
not be deemed to be inoperative by reason of interference by this Act with other terms of the lease.

Rent Control Restrictions primarily aim at regulating rent and put restrictions on the right to evict under
the general law. This section is in fact the most important section in the Act. It lays down that the decree
for the recovery of possession of any house or shop to which the Act applies infavour of the landlord
against the tenant shall not be passed unless the case is covered by any of the clauses in the proviso to
this section. The scheme of the section is to prevent in the first instance all ejectments and then in the
proviso to set out the circumstances in which the general protection is taken away.

Scope of the Section:

Sub-section (1) of Section 11 has two parts. The first part opens with the words "Notwithstanding
anything to the contrary in any other Act or Law". These words are known as non-obstante clause. A
non-obstante clause is used in a provision to indicate that, that provision should prevail despite anything
to contrary inany other provision. The non-obstante clause of the section hence means any law in force
or any contract between the parties which is contrary to the provisions of Section 11(1) is not
enforceable. The Second part of the Section is Proviso attached to the Section which provides certain
grounds on which a decree or order for eviction can be passed by the Courts.

The first part of Section 11(1) prohibits the Courts the courts from passing an order or decree for the
recovery of possession of the demised house or shop in favour of the landlord against a tenant,
including a tenant whose lease has expired. Such type of clauses which protect the tenant from arbitrary
eviction or prohibits the Courts from passing any Order or Decree against a tenant including a tenant
whose tenancy has expired, but he is a good tenant prevail in every Rent Control Legislation. For
example, Section 111 of the Transfer of Property Act provides that when the tenancy of a tenant
expires, it is his duty to surrender the possession to the landlord. At this juncture, Section 11 Sub-
section(1) of J&K Houses and Shops Rent Control Act comes into operation and restrict the operation of
Section 111 of Transfer of Property Act. It provides an opportunity to the tenant to possess the house or
shop till he require. Merelyon the ground of expiry of tenancy he cannot be evicted and also Courts
cannot pass any Order or Decree for his eviction.As prior to Rent Control Act, in Jammu and Kashmir the
relationship between the landlord and the tenant was governed by the Circular No.136 of 1894. By
virtue of this Circular the Judicial Courts were empowered to issue the Order for the eviction on a simple
application made by landlord in that behalf. But the Section 11 Sub-section (1) clearly overrule such
Orders or Circular as it contain non-obstante clause. In Jalla Begum V/S Ghulam ZoharaA.I.R. 1957 J&K, it
was held that "there is no doubt that the Circular No 136 is in consistent with the provisions of Section
1lof the Jammu and Kashmir Houses and Shops Rent Control Act, 1966. The words,
notwithstandinganything to the contrary in any other Act or Law' which occur in Section 11 of the said
Act repeal impliedly the provision of Circular No.

136 being inconsistent with the Section".

The first part of the Section 11(1) prohibiting that "no order or decree for the recovery of

possession" clearly shows that the intention of the legislature that the section is not intended to be
waived by the parties by a Contract to the Contrary. Where a tenant executes a contract to vacate the
premises whenever the landlord asked him to do so and agreed not to rely on the provisions of section
11 of the Act, the tenant is still entitled to claim the benefits of the Section in a suit for eviction by the
landlord, because the contract so executed by the tenant is contrary to the provisions of Section 11 and
as such is not enforceable under the Contract Act being against the statute.So the parties cannot
contract out of the Section. In Bahadur Singh V/S Muni Singh, an eviction dispute was referred to the
arbitrators by the tenant and the landlord’s son. The court passed the eviction decree on the basis of
award filed by Arbitrators. The SC held that the act prohibits the court from passing a decree for
recovery of possession of any premises in favour of a landlord against a tenant except in such a suit and
unless the court has satisfied that a ground of eviction exist. The Court passed the decree according to
award of which the landlord was not party without satisfying itself that ground of eviction existed. The
decree so passed is nullity and cannot be passed in execution. It was observed by the Supreme Court
that a reference by a landlord and tenant to Arbitration is not legal as only a Court can pass a decree for
ejectment on any of the ground specified in the proviso to Sub-section (1) of Section 11. A Court cannot
pass a decree of eviction in favour of a landlord and against a tenant who is covered under the provision
of Act on the basis of any award.

Thus, the landlord cannot enforce a contract of tenancy executed by the tenant that he

will vacate the House or shop after the expiry of the lease period, because the provision of law contain
in Section 11(1) also include a tenant whose tenancy has expired. The Jammu and Kashmir High Court in
Parsho Devi V/S Sardari Lal (1973) J&K L.R. 550 observed that the Section renders inoperative a Contract
only to the extent that even when the landlord was entitled to recover thepossession on the basis of a
Contract on expiry of the period of lease he would not be entitled to do so until and unless his case fall
under one or more of the grounds mentioned in the proviso of Section 11(1) of the Act.
Despite this fact that Section 11 Sub-section (1) provide protection to the tenant against

the eviction, it does not curtail the powers of the landlord or restrict the landlord in any case to get the
eviction when the tenant is not agood tenant or where the premises is personally required to him.
Proviso attached to this Sub-section provides certain grounds upon which the landlord can seek eviction
and the Courts can entertain his suit for recovery of possession. However, these grounds of eviction
cannot be enlarged or curtailed by the terms of the contract between the parties or by any other Law
for the time being in force as these are attached to a "non-obstante clause." The grounds available to
the landlord for the eviction of tenants are as under:-

a. Transfer of tenancy rights in whole or in part with possession otherwise than sub- lease by
tenant:-
This clause furnishes a ground to a landlord to evict a tenant when the tenant transferred his
tenancy right in whole or on part otherwise than by sub-lease. The clause expressly provides
that the lessee by transferring the whole or part of the interest in his tenancy rights with
possession otherwise than by sub-lease renders himself liable for being ejected of the tenanted
premises.

Notice to the lessor of the transfer does not affect the liability.
Illustration:- 'A' leases out a house to 'B' for a term of nine years commencing on the 1st
January, 1990. 'B' on the 1s of January, 1991 transferr his tenancy rights in half of the house
with possession thereof in favour of 'C' retaining the other half to himself as a tenant of 'A.' He is
liable to be ejected from the house under this clause.
A transfer of a right under the lease, or an assignment of a lease-hold is a transaction, whereby
lessee transfers his entire interest in the demised premises, or a part thereof, from an unexpired
term of original lease, thus parting with all the reversionary interest in the property. This is
distinguish from a sub-lease which contemplates the retention of a reversion by the lessee. A
reversion is an interest, which arises by operation of law, where ever the holder of a large estate
carves a smaller estate in favour of a tenant retaining the residue of the estate for himself. The
distinction between the assignment or transfer of a lease and sub-letting of the premises is that
in the former case the lessee conveys his entire term and in the latter case he retains for himself
a reversionary interest, however small.

b. Against such transferee:- the landlord's right to evict a tenant who has transferred his
tenancy rights in whole or in part with possession thereof is not confined only to the tenant who
has transferred the tenancy rights, but even against the transferee of such tenant. In the
illustration cited in clause (a) the transferee of 'B' i.e., "C' is also liable to be ejected on an action
of 'A' the landlord, in addition to 'B' in whose favour the tenancy was originally created.
c. Sub-let of the whole or a major portion of the house or shop for more than seven
consecutive months:-
This clause afford a ground to a landlord to evict a tenant who has sub-let the whole or amajor
portion of the house or shop for more than seven consecutive months. The proviso to the
clause, however, provides that if only a major portion of the house or shop has been sub-let by
the tenant and the tenant agrees to possess the portion of the house or shop not sub-let on
payment of rent fixed by the Court, the Court shall in such a case pass a decree for ejectment for
only such portion of the house or shop, which has been sub-let and fix proportionately fair rent
for the portion kept in possession of such tenant.
d. Tenant done any act contrary to the provisions of clause (m), clause (o) and clause (p) of
Section 108 of the T.P.A.. 1977;=
Section 108 of the Transfer of Property Act deals with the rights and liabilities of lesser and
lessee. Part 'B' of this Section specifically enumerates the rights and liabilities of the lesser and
lessee. The provision of this Section, as laid down in the Section itself, is subject to the contract
to the contrary between the parties. Under clause "d' of sub-section (1) of Section 11 a landlord
acquire a right to evict his tenant where the tenant has done any act contrary to the provisions
of law laid down in clause (m), clause (0) and clause (p) of Section 108 of the J and K Transfer of
Property Act, 1977 Samvat.
Clause (m) of Section 108 of the Transfer of the Property Act reads as under;
"The lessee is bound to keep, and on the termination of the lease to restore, the property in as
good condition as it was at the time when he was put in possession, subject only to the changes
caused by reasonable wear and tear or irresistible force, and to allow lesser and his agents, at all
reasonable time during the term, to enter upon the property and inspect the condition thereof
and give or leave notice of any defect in such condition; and, when such defect has been caused
by any act or default on the part of the lessee, the servants or agents, he is bound to make it
good within three months after such notice has been given or left."
This clause refers to the liability of the lessee for what is known as permissible waste in English
Law. A waste which consists in permitting the demised property to become ruinous is called
permissible waste and a waste which consists in doing unauthorized acts which alter the
character of the demised property is under English law called voluntary waste.So the tenant is
bound under clause (m) of Section 108 to restore the property to the lesser in as good
conditions as it was when he received it. He is bound to preserve the boundaries of the land he
hold as tenant and not to permit them to be destroyed. If he does not do so he is liable for
eviction under clause (d) of Sub-section (1) of Section 11.

"Irresistible force": Fire is irresistible force within the meaning of clause (m) of Section 108 of
the Transfer of Property Act. But the lessee will be free from any liability only if it was not
caused by his negligence. If he is responsible for the fire he will be liable to the lesser.

Clause (o) of Section 108 of the Transfer of Property Act, a contravention of which also renders
a tenant liable for an action for eviction is reproduced as under ;
"The lessee may use the property and its products (if any) as a person of ordinary prudence
would use them if they were his own; but he must not use, or permit another to use, the
property for a purpose other than that for which it was leased or fell or sell timber, pull down or
damage buildings, belonging to the lesser, or work mines or quarries not open when the lease
was granted or commit any other act which is destructive or permanently injurious thereto."
According to this clause a tenant cannot commit what is known as voluntary waste i.e., an
unauthorized act which alters the character of the demised premises or destroy the land such as
cutting down timber, pulling down buildings, or any act which does a lasting damage to the
demised property. Clause (0) of Section 108 of TPA further provides that lessee may use the
property as a person of ordinary prudence would use it if it were his own and that he should not
use or permit another to use it for a purpose other than that for which it was leased.
An act done contrary to the provisions of clause (p) of Section 108 of TPA also renders a
tenant liable to be evicted from the demised property. It provides as;
"he must not, without the lesser'sconsent, erect on the property any permanent structure,
except for agricultural purposes."
Under clause (P) of Section 108 of Transfer of Property Act a tenant cannot erect any permanent
structure on the land appurtenant to a house or shop. The lessee of the building cannot even
add a structure to do it for it might have wholly different effects from what was contemplated
when the lease was given. The words "without the lesser's consent" in clause (P) of Section 108
of TPA simply speak about the requirement of the lessor's consent for the errection of a
permanent structure. But it does not lay down any procedure in which such consent can be
given.
However, the pertinent clauses of section 108 of the Transfer of Property Act referred to in
clause (d) of the proviso to Sub-section (1) of Section 11 of the Jammu and Kashmir Houses and
Shops Rent Control Act are subject to a contract to contrary. Therefore, if any agreement
subsists between the parties which are opposed to what is laid down in clauses (m), (0) and (p)
of Section 108 of the TPA, the landlord cannot possess a right to evict his tenant under clause (d)
of the proviso to Sub-section (1) of Section 11 of the Jammu and Kashmir Houses and Shops
Rent Control Act
e. Where the tenant has been using the house or shop or any part, or allowing the house or
shop or any part to be used for immoral or illegal purposes:-
This isanotherclause incorporating a ground to evict the tenant if the tenant has been using the
house or shop or any part thereof, or allowing the house or shop or any part thereof to be used
of immoral or illegal purposes. If the immoral or illegal purpose or object of the tenant is proved
before the Court the land lord can get the tenant evicted from the House or shop. The words
"has been using" occurring in the clause indicate that the act of immoral or illegal use must
continue at the date of presentation of the suit. The using of the premises for illegal or immoral
purpose is a condition precedent for the application of this ground. Therefore, from the analysis
of this clause it is obvious that the following ingredients are necessary to be proved by a
landlord to evict his tenant on this ground;-
(i). There must be a tenancy subsisting between the landlord and the tenant in terms of the Act.
(ii). The tenancy must be relating to the house or shop.
(iii). The use of house or shop or any part of the house or shop for illegal or immoral purpose
may be by the tenant or any person residing with him or even by a stranger as the words used
are "using or allowing the use".
(ee). Eviction of tenant for his failure to use or occupy the demised house or shop:where the
tenant fails to use or occupy the house or shop for a period of not less than seven consecutive
months;
Clause (ee) of the proviso to section 11(1)of the Act provides another ground to the landlord to
evict the tenant from the demised house or shop on the ground that the tenant has failed to
occupy the house or shop for a period of not less than seven consecutive months. The clause
has specifically used both the words "use or occupy" which means that mere possession is not
sufficient. So mere presence of furniture belonging to the tenant in the premises and his
willingness to pay the rent by him is not sufficient to constitute occupation of a house or shop
within the meaning of this clause. Thus, if during the period of seven consecutive months the
tenants fail to occupy or use the house or shop, he is liable to be evicted from the demised
premises, irrespective of any cause or reason for not occupying the premises. It is for the tenant
that he had not ceased to occupy the premises for the requisite period. However, the tenant
cannot plead in the defencethat he had sufficient or reasonable cause for not occupying the
premises, because that is not the requirement under the clause.

f. Where the condition of the house or shop has materially deteriorated owing to the act of
waste by, or negligence or default of the tenant, or any person residing with the tenant or for
whose behavior the tenant is responsible:-

This clause provides that a landlord can also evict a tenant from the demised premises where
the condition of the house or shop has materially deteriorated owing to the act of waste by, or
negligence or default of the tenant, or any person residing with the tenant or for whose
behavior the tenant is responsible. The term 'waste' has not been defined in the Act. The word is
not capable of any precise or comprehensive definition. The acts of human being, which amount
to waste, are so varying, uncertain and unknown that no comprehensive definition of the word
can cover the entire significance of what the word connotes. he act of waste by with regard to
building may be a voluntary waste by destruction of the building or premises, where the
destruction must be the willful or negligent. It is not waste if the premises are destroyed in the
course of reasonable user by wear and tear and any user is not responsible if it is for a purpose
for which the property was intended to be used and if the mode and the extent of the user is
apparently proper, having regard to the nature of the property and what the tenant knows of it
and in the case of business premises to what as an ordinary businessman be ought to know for
it.
In the clause the word 'negligence' has also been used. It is also not easy to give a definition of
'negligence' which may be regarded a perfect definition of the word. However, it is the absence
of such care, skill and diligence, as it was the duty of the person to bring to the performance of
the work which he is said not to have performed. It is omitting to do something that a
reasonable man would do, or the doing something which a reasonable man would not do.
In order to show that the condition of the house or shop had materially deteriorated owing to
the acts of negligence of the tenant the landlord must establish that:-(a). the damage was
caused by some act or omission of the tenant;
(b). that the act or omission was one of which a reasonable man behaving with ordinary
prudence would not have been guilty;
O. In the circumstances of the case, the tenant owed the landlord a duty to take the care, of
which that act or omission was a breach for where there is no such duty there can be no action
for negligence;
(d). that the damaged had caused material deterioration to the house or shop.
It must be noted that an act of waste, negligence or default on part of the tenant must
materially result in the deterioration of the demised premises. Unless a material deterioration
results, the ground cannot be availed. What is 'material deterioration' depends on the merits of
each cause and has to be established by evidence, the onus being on the landlord who depends
on the ground to cause eviction of the tenant.

g. Where the tenant is guilty of conduct which is nuisance or annoyance to occupiers of

adjoining or neighbouring houses or shops including the landlord:

Conduct of the tenant which is a nuisance or annoyance to the occupiers of adjoining or

neighbouring houses or shops including the landlord is a statutory ground available to the
landlord to evict his tenant. In order to attract the operation of this clause it has to be proved
that the tenant's conduct was guilty and that conduct amounted to nuisance and annoyance to
occupiers of adjoining neighbouring houses or shops including the landlord.
The word 'nuisance' has not been defined in any of the rent Control Acts in India. However, it is
an act or omission which causes or likely to cause injury, danger or annoyance or offence to
sense of sight, smell, hearing or which is or may be dangerous to the life or injurious to the
health of a neighbor or to some property. Nuisance may be public or private. If the right
belonging to a person as a member of the public, is interfered with, or disturbed it is a public
nuisance. If the right of a person to the ownership or occupation of land or of some easement,
quasi easement or other right used or enjoyed in connection with the land is interfered with or
disturbed, it is called a private nuisance.
Nuisance varies in case to case and what is nuisance in one case may not be so in another case.
Each case has to be judged on the facts of that particular case and the surrounding
circumstances.
For example, for an ailing landlord, even the noise or disturbance caused by the normal use of
the premises may amount to annoyance or nuisance, which may not be so in case of a premises
belonging to a hale and hearty landlord.
The word 'annoyance' also has not been defined under any of the Rent Control Acts. Normally
speaking every nuisance is necessarily an annoyance but every annoyance is not necessarily a
nuisance. In this respect, annoyance has wider meaning than nuisance and for annoyance it is
sufficient to prove that sensible people feel a reasonable apprehension of risk or interference
with the pleasurable enjoyment of the building for ordinary purposes. Therefore, a thing which
reasonably disturbs the mind and pleasure amounts to annoyance although it is not an
ostensible discomfort to the landlord or occupier.
The right of eviction on the ground of nuisance under the Jammu and Kashmir Rent Control Act
once accrued is not lost by the fact ofsubsequent removal of nuisance or improvement of
conduct. A tenant cannot enjoy rights given under a statute without complying with the
obligations prescribed by it. There is a condition of the tenant's good behaviour and if he
commits nuisance the protection of the Rent Control Act is lost. Therefore, the ground of the
nuisance or annoyance once availed by the landlord is not lost by subsequent removal of
nuisance by the tenant.

h. Where the house or shop is reasonably required by the landlord either for the purpose of
building or re-building or for his own occupation or for the occupation of any person for
whose benefit the house or shop is held:

Provided that all sub-tenant in the house or shop are made parties to
the suit and allowed opportunity of contesting claim to decree for ejectment.
Explanation: - the Court in determining the reasonableness of requirement for purpose of
building or re-building shall have regard to the comparative public benefit or disadvantages by
extending or diminishing accommodation, and in determining reasonableness of requirement of
occupation shall have regard to the comparative advantages and disadvantages of the landlord
or the person for whose benefit the house or shop is held and that of the tenant:
Provided that where the Court thinks that the reasonable
requirement of such occupation may be substantially satisfied by evicting the tenant from a part
only of the house or shop and allowing the tenant to continue occupation of the rest, and the
tenant agrees to such occupation, the Court shall pass a decree accordingly and fix a
proportionately fair rent for the portion in occupation of the tenant, which portion shall
henceforth constitute the house or shop within clause (3) or clause (5) of Section 2 and the rent
fixed shall deemed
to be the fair rent fixed under Section 8.
Clause (h) of the proviso to Sub-section (1) of Section 11 provides that where the house or shop
is reasonably required by the landlord (i). either for purpose of building or rebuilding; or (ii) for
his own occupation; or (iii) for the occupation of any person for whose benefit the house or
shop is held, the landlord subject to the conditions engrafted in the proviso and explanation
attached to the clause can evict the tenant on any of these grounds. The explanation provides
that for the purpose of determining whether the house or shop is reasonably required by the
landlord for the purpose of building or rebuilding is to be based on the public advantage or
disadvantage by extending or diminishing accommodation. Where the ground for eviction be
the reasonable requirement of the landlord for his own occupation or for the occupation of any
person for whose benefit the house or shop is held the explanation provides that the
comparative advantage or disadvantage of the landlord or the person or persons for whose
benefit the house or shop is held and the tenant shall be duly weighed by the Court at the time
of making a decree for eviction. In Hira Lal Versus Bodh Raj (1963 K.L.J. 38) decided by a Division
Bench of the Jammu and Kashmir High Court, the scope for the application of Clause (h) on the
ground of the reasonable requirement of landlord for ejectment of his tenant was analysed in
the following words:-
"in order to secure ejectmentof the tenant it was necessary for the landlord to prove the
ingredients of Section 11(1)(h) of the Jammu and Kashmir House and Shops Rent Control Act
read with the explanation thereto, that is, he should have shown that he reasonably required
the shop for his own use and in determining reasonableness of the requirement for occupation
the Courts have to go into the comparative advantage or disadvantage of landlord and that of
the tenant."
In the instant case (Hira Lal Versus Bodh Raj) landlord's claim for ejectment was not allowed on
the ground that in the opinion of the learned judges by ejectment of the tenant he would have
to face hardship not for himself but for his whole familywho wasentirely depending upon the
business run in that shop.
As held by the Jammu and Kashmir High Court in R. S. Madan Versus G. M. Sadiq (1971 J&K L.R.
page 26) the reasonable requirement is a question of law but whether in a particular case it has
been proved or not is essentially a question of fact.However, the Division Bench of High Court in
Munshi Ram Versus SainDass (1959 JK at page 89) clarifies that where a suit for ejectment is
founded entirely on proviso to Sec.11(1)(h) of the Rent Control Act, the onus of establishing his
reasonable requirement of the suit house lies on the plaintiff.
While deciding the reasonable requirement of the landlord or any person or persons for whose
benefits the house or shop is held, the Jammu and Kashmir Houses and Shops Rent Control Act
lays down in explanation to clause (h) that the Court shall before passing such an order for
eviction have regard to the comparative advantage or disadvantage of the landlord or person or
persons for whose benefit the house or shop is held and the tenant. The explanation to clause
(h) contains specific provisions regarding the weighing and measuring the relative hardship
which may be caused to the tenant or landlord in case of granting or refusing a decree for
eviction. The principle of law enacted in the explanation is to the effect that the law will lean in
favour of the person to whom the greater hardship or inconvenience would be caused and
would grant the relief to the landlord only when his hardships are likely to exceed the hardships
which may be caused to the tenant.
Further, more the question of balance of convenience or the principle of comparative advantage
or disadvantage would come into play only when the court is satisfied that the premises are
reasonably required by the landlord or person or persons for whose benefit the house or shop is
held. It is a further protection given to the tenant. Thus the Court has to find and determined
two things:-
(i). reasonable requirement of the landlord or the person for whose benefit the house or shop is
held.
(ii). Comparative advantage and disadvantage of the landlord or the person for whose benefit
the house or shop is held and the tenant.
These two ingredients must co-exist. This view has also been expressed by the Division Bench of
J&K High Court in Hira Lal Versus Bodh Raj while considering the ground of reasonable
requirement oflandlord for ejectment of his tenant. It was observed that a landlord claiming
benefit of Section 11(1)(h) should show that he reasonably required the shop for his own use
and in determining reasonableness of the requirement for occupation the Courts have to go into
the comparative advantage or disadvantage of landlord and that of the tenant.

Partial Eviction: The clause (h) of proviso to Section 11(1) has a second proviso also which
empowers the Courts to order a partial eviction where it thinks that the requirement of such
occupation of a house or shop may be substantially satisfied by evicting a tenant from a part
only of the house or shop and allowing the tenant to continue occupation of the rest. In such a
case the tenant's agreement to such occupation is necessary and the Court is empowered
under the proviso to fix proportionately fair rent for the portion allowed to remain in occupation
of the
tenant.
In R. S. Madan Versus G. M. Sadiq (1971 J&K L.R. page 26) it was observed that the analysis of
the proviso shows that it is not incumbent on the Court to consider the question of the partial
eviction and that a finding on this point has to be given only if the Court is satisfied on the
evidence before it that a partial eviction would serve the ends of justice. Before the Court can
record a finding on this point, the point must be specifically pleaded and evidence adduced
before the Court. However, it is the defendant who has to plead in his written statement and
also to prove before the Court that the personal necessity of plaintiff (landlord) would be
satisfied by the partial eviction. The question of partial eviction or splitting up tenancy mostly
arises with reference to two cases. (i). where the premises are let for multipurpose say
residential and non-residential purposes and the landlord requires it for one purpose. In that
case, the question arises for consideration whether the building used and let for two purposes
can be got evicted for one purpose; ii). Where the lease comprises not for the building properly
so called but also machinery and other moveables, in such case, the question arises whether the
Court can apply the Rent Control Act by dividing the lease into (a) building, (b) other movables
and grant or refusal the eviction from the building, properly so called by splitting up the contact
for tenancy, which relates to building as well as other things.
Building or rebuilding: the first part of the clause (h) enacts that where a house or shop is
reasonably required by the landlord for the purpose of building or rebuilding it affords a ground
to him to eject the tenant from the premises. There are, however, two conditions which must be
satisfied before a landlord can be entitled to a decree for ejectment on the ground these
conditions are specified in the proviso and the first part of the explanation appended to this
clause. The conditions are as under;-
1. All sub tenant in the house or shop are made parties to the suit and allowed opportunity of
contesting claim to decree for ejectment.
2. In determining the reasonableness of requirement for purpose of building or rebuilding, the
Court shall have regard to the comparative public benefit or disadvantage by extending or
diminishing accommodation.
The imperative provisions enacted in this regard clearly show that unless both the conditions as
furnished in the proviso to the clause and the first part of the explanation are satisfied, a decree
for ejectment on this ground cannot ensue.
When the tenant is entitled for restoration of possession (section 13)
Section 13 of the Act engrafts the remedy available to the tenant ejected on any one of the
following grounds to re-occupy the demised premises on the basis of which he had succeeded to
obtain a decree for possession in his favour.

(1). Where the landlord recover the possession of any house or shop from the tenant by virtue
of a decree passed on the basis of clause 'h' of the proviso of section 11 (1) and the building or
rebuilding of the house or shop is not commenced within the six months.
(2). Where the house or shop is not occupied by the landlord or the person for whosebenefit the
house or shop is held within two months of the date of vacation of the house or shop by such
tenant made in pursuance of a decree under clause 'h' of the proviso to sub-section (1) of
Section
(3). Where the house or shop has been occupied in pursuance of a decree on the ground of
personal requirement, or requirement of a person for whose benefit the property is held is
again letout within six months from the date of such vacation to any person other than such
tenant without the permission of the Controller obtained in the prescribed manner.
If in any of the foregoing cases an application is made by the tenant within nine months of his
vacating the house or shop the Controller is empowered under Section 13 to direct the landlord
to put such tenant in possession of such house or shop or to pay him such compensation as is
fixed by him or both. But before making any such order the Controller is enjoined to give an
opportunity to the landlord of being heard.
Beside this the ex-tenant has first right of tenancy after the rebuilding of the premises. Under
Section 13(3) the landlord is under legal obligation to give first priority of tenancy of house or
shop to his previous tenant, when he completes the reconstruction and proposes to let-out his
newly constructed house or shop. However, the tenant cannot claim such accommodation on
the grounds of the rent fixed between the parties during previous tenancy, but he has to pay the
rent according to the market value.
Recovery of Possession of a residential building by defence personal (11-A)
Section 11-A prescribes a special procedure for the restoration of possession of a demised
residential house to the landlord who was a member of Defence Forces. In this regard in order
to protect the landlord from technicalities of the litigations Rent Controller is entrusted with
jurisdiction to restore possession with in a period of one month of the application.
But the provisionsare applicable only to the residential houses and not to the commercial
buildings belonging even to the defence personal.
The landlord under Section 11-A of the Act can seek the restoration of residential buildings on
three grounds:-
1. That he requires the house for bonafide occupation of family.
2. That he requires the house for his own occupation on his retirement, release or discharge
from the service, and
3. The wife of the deceased landlord who had died while serving under special condition
requires the house for his own occupation.
The condition precedent for the exercise of the jurisdiction under the Section 11-A by the
controller is that the landlord soldier must show that he is or was a member of the
DefenceForceswhoserved under special conditions within the meaning of Section 3 of the Indian
Soldiers (Litigation) Act, 1925 and in this regard he has to produce a certificate of his
commanding officer. The certificate issued by the Commanding Officer envisages two essential
requirements.
a. It is the evidence to the fact that the landlord is or was a member of the defence forces.
b. It must show that he is or was serving under the special condition within the meaning of
Section 3 of the Indian Soldiers(Litigation) Act, 1925. This section provides special protection to
the Soldiers in respect of civil and Revenue litigations who are or were serving under special
conditions.
Therefore, where a landlord who is a defencepersonal serving under special conditions makes
an application to the Controller for restoration of the demised residential building for his
bonafide occupation, Controller assumes the jurisdiction to hear the application and decide it on
merit.
However, merely on the application of the landlord Controller cannot presume that he requires
the house of the bonafide occupation of his family, but he has to provide an opportunity to the
tenant to controvert the assertion of the landlord. The tenant can prove that the landlord
soldier was not serving under the special condition within the meaning of Section 3 of the Indian
Soldiers(Litigation) Act, 1925 and hence cannot avail the benefit of Section 11-A. Under the
second condition mentioned in Section 11-A the landlord can claim restoration of the residential
house from his tenant where it is required by him for his own occupation on his retirement,
release or discharge from the Defence Forces. In this situation he has to produce a certificate
duly issued by his Commanding Officer evidencing his retirement, discharge or release from the
service. Here he has only to prove that he requires the house for his personal occupation.
Lastly, under the Section the restoration application before the Controller is maintainable if the
landlord is the wife of a deceased member of the Defence Forces and she requires the premises
for his own occupation.
Recovery of Possession of Residential Building by Railway persons (11-B)
Besides the defence personal serving under Special conditions within the meaning of Section 3
of the Indian Soldiers (Litigation) Act, 1925, the employees of the Railways Department also
enjoy the special benefit under Section 11-B of the Act with respect to recovering of their
residential building leted out to the tenants. According to the provisions of this Section where
the landlord serving in the Railways Department of the Government of India within one year
prior to or within one year after the date of his retirement applies to the Controller along with a
certificate from the authority competent to remove him from the services indicating the date of
his retirement, accrues a right to recover immediately the possession of such residential building
or any part or parts of such building if let-out in part or parts. Under this section the landlord has
simply to move an application for the recovery of his demised house before the Rent Controller
on the ground that he is or was serving in the Railways Department of the Govt. of India. Every
employee of the Railways Department has been treated as an elite class of landlords for purpose
of the Section and he has been given a right to recover immediate possession of his residential
building which he had let-out to a tenant. The right to recover the possession of the premises
accrues to such landlord soon after he makes an application to the Controller and this Right is
not subject to ;-
a. Any provisions of the Rent Control Act,
b. Any other law for the time being in force,
c. Any contract between the parties which may be express or implied, and
d. Any custom or usage prevalent in that locality.
However section does not provide any special procedure to be followed by the Rent Controller
while discharging his duties with respect to application made to him under this section.
Restoration of possession to the tenant in the event of fire:Section 12-A :-Sub-section (1) of
Section 12-A gives the ex-tenant of a house or shop a prior right of re-entry to the newly
constructed building which had been destroyed in fire. After the completion of the building
which has gutted in fire the landlord under Sub-section (2) of Section 12-A is obliged to give a
one month prior notice to the ex- tenant to re-enter the building. However the tenant now has
to pay the rent according to the market value and convey his consent to the landlord with in a
period of 15 days from the date of the receipt of the notice. Failing to reply within the
prescribed period would forfeit his right of re-entry.
In case the tenant is willing to pay the rent at market rate, but the landlord decline to give him
possession, under sub-section (4) of Section 12-A the tenant has to make an application to Rent
Controller for redress with in a period of one month from the date of conveying his consent to
the landlord that he is willing to pay the rent at market rate. Thereafter the Controller is
competent to hear and decide the matter in accordance with the provisions of Section 13.
i. Where two months' Rent is in arrear: Subject to the provision of Section 12 where the amount
of two months rent legally payable by the tenant and due from him is in arrears by not having
been paid within the time fixed by the contract or in absence of such contract by the fifteenth
day of the month next following that for which the rent is payable or by not having been validly
deposited in accordance with Section 14;
Provided that no such amount
shall be deemed to be in arrears unless the landlord on the rent becoming due serves a notice in
writing through Post Office under a registered cover on the tenant to pay or deposit the arrear
within a period of thirty days from the date of the receipt of such notice and the tenant fails to
pay or deposit the said arrears within the specified period.
For the application of clause (i) as a ground for eviction the following ingredients must be
established.
(i). Amount of two months rent must be in arrears
(ii). The rent was legally payable by the tenant and was due from him.
(iii). The rent was not paid within the time fixed by the contract or in absence of any such
contract by the fifteenth day of the month next following that for which the rent is payable or by
having not been validly deposited in accordance with section 14.
(iv). A notice in writing through post office under a Registered Cover has been sent by the
landlord to the tenant to pay or deposit the arrear with in a period of one month from the date
of the receipt of such notice.
(v). the tenant fails to pay or deposit the arrears with in a period of 30 days from the date of
receipt of such notice.
(vi). There is no contract or law which debars the landlords from getting a relief for ejectment.
When a tenant can get the benefit of protection against eviction (Section 12)

However, if a suit for ejection is instituted against the tenant under this clause, he is still
protected under section 12 of the Act. Under Sub-Section (1) of Section 12 in such cases the
Court must determine the amount of rent legally payable by the tenant which is in arrear as also
the amount of interest on such arrears calculated at the rate of nine and three eighth per
centum per annum from the day when the rent become arrears up to such date together with
the amount of the cost of the suit as are fairly allowable to the plaintiff landlord. The Court shall
then under such sub section, make an order on the tenant for payment of aggregate of the
amount on or before the date fixed in the order. Sub-Section (2) of Section 12 provides that an
order under Section 12(1) to fix the date for payment shall be the fifteen days of the order
excluding the day of the order. In this way the tenant is first protected by Section 12(1) and
again afforded an opportunity to him to make the payment of the arrear of the rent. If within
the time fixed in the order the tenant deposit in the Court the specified sum the landlord suit in
so far it relates to the recovery of the possession of the house or shop is to be dismissed under
Section 12(3). However the liability of tenant to pay the contractual rent to the landlord
continues during the eviction proceedings even if he opts to contest the claim for ejectment.
Under Sub-Section (4) of Section 12 the landlord can file an application in any stage of the suit
praying to the Court hearing the eviction suit to order the tenant to deposit the month by
month rent as a rate at which it was last paid and also the arrears of the rent if any. Section 12
(4) comprises of two limbs; first that the tenant must deposit the rent within 15 days the
amount of arrears of rent, if any and second he is required to continue to deposit month by
month at a rate at which rent was last paid. The tenant must comply with both these
requirements, failing which the tenant may lose the legal protection against his eviction. It is,
therefore, essential for the tenant to comply with both the limbs of Subsection 12 (4) of Section
12 of the Act in order to avoid the striking of the defence.
j. Where the tenant is in service of the landlord: Where the house was let to the tenant for use
as a residence by reason of his being in service or employment the landlord, and the tenant has
ceased to be in such service or employment:
Provided that where the tenant is a workmen who has
been discharged or dismissed by the landlord from his service or employment in contravention
of the provisions of the Industrial Disputes Act,1947, he shall not be liable to be evict until the
competent authority under the Act confirms the order of discharge or dismissal made against
him by the landlord;
k. Where the house or shop is required for the immediate purpose of demolition ordered by any
local authority or other competent authority
(2). Nothing in the Section or in this Act shall be deemed to entitle the landlord to get a decree
for the recovery of possession of any house or shop against the tenant where any contract or
law debars such relief, or except in accordance with the provision of law for getting such relief;
and such contract shall not be deemed to be inoperative by reason of interference by this Act
with other terms of the lease.