DEFINITIONS; 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. 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.
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.
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 8 of the Act, the rent so fixed if the applications were made under the 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
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.
Shop (section 2 sub clause 5)
Any building used or let out for the purpose of any trade or business 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.
Landlord section( 2 sub section 4)
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;
(i) 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.
Tenant section 2 clause 6
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.
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