P L D 1959 (W (PLP)

CONSTANTINE, J.‑The petitioners applied to the Rent Con troller to fix the fair rent of the premises let to them by the respondents ‑Nos. 2 and

3. The Rent Controller in his judgment recorded a description of the premises following his personal inspection. He then went on to say that the opponents had purchased the building for Rs. 41,000 and disallowing them further expenses on the ground that no proof had been pro duced by them said " Accordingly I, take the total value of the building for Rs. 41,000". He allowed the statutory percentage upon this amount and fixed the fair rent accordingly. It is common ground that the building was constructed after 15th August 1947 and that the provision of law which applied to the fixing of the fair rent is that contained in clause (c) of subsection 2 of section 2 of the Karachi Rent Restric tion Act VIII of 1953. An application was made to the Chief Judge, Small Causes Court (Respondent I) as the revising authority. The application was dismissed. Thereupon an application was made in review to the Chief Judge, and in that application it was stated in paragraph 2, " It is submitted that the said order in revision is based on mistake apparent on the face of record as the learned Rent Controller purports to have fixed the rental value of the property in question on the basis of the purchase value of the property in question ". The order passed in review stated " A perusal of the review appli cation shows that the applicant has summed up all the allegations which he did at the time of proceeding with the revision application ". The revision application itself is not on record and it would thus appear that the same point has been taken in the revision application, namely that by proceeding to base the fair rent upon the purchase value of the property the Rent Controller had misdirected himself as to the law contained in section 2 (2) (c). The point at issue is one of law and appears on the face of the record, namely that the Rent Controller has treated the total cost as the amount paid for the premises and not as the value of the land and the cost of the construction of the premises. The first point argued on behalf of the respondents was 'that the only evidence led in the case related to the purchase value and hence it should be held that the Rent Controller regarded the purchase value as being the equivalent of the value of the land and the cost of the construction of the premises in default of any other evidence. That is not, how ever, what we regard is the correct import of the Rent Controller's order. There is not a word suggesting that he regarded the amount paid by the purchaser as being the correct total of the value of the land plus the cost of the construction. It was next argued that the Rent Controller should be deemed to have acted under section 12 (a), which applies when for any other reason a difficulty arises in giving effect to the Act, and, therefore, be deemed to have fixed the fair rent at such amount as having regard to the provisions of this Act and the cir cumstances of the case he deemed just. The difficulty alleged was that no evidence as to cost of the construction was available. But the Rent Controller has not said a word regarding any such difficulty; nor do we think that it was impracticable to secure expert evidence as to the cost of the construction: any competent architect could have given expert evidence on this point. It was, however, strenuously contended that clause contemplates purchase value as the total cost. This clause reads as follows:- " in relation to all premises, residential or otherwise, con structed after the 15th day of August, 1947, such rent as shall secure to the landlord a net return of six per centum per annum on the total cost, after deducting the taxes, insurance premium for insurance against fire and earthquake but not otherwise and an amount equal to one and a half per centum per annum of the total cost by way of expenses for maintenance and repairs. The total cost shall include the value of the land and the cost of the construction of the premises ;" The argument, however, that the purchase amount may be taken as the total cost to a landlord presents serious difficulties. The argument leads to the conclusion that while the fair rent in the case of a landlord who constructs himself is to be gathered from the value of the land and the cost of the construction when once he sells it another fair rent can then come into operation dependant on the purchase amount. This, how ever, is a mischief which is prohibited in the case of premises constructed before the 15th day of August 1947 : in such cases the rent is to be determined as that obtaining on the 1st day of December 1941 or 1942, with of course permitted increases, and is fixed once for all : a purchasing landlord is not entitled to increase the fair rents of premises falling under clauses (a); and (b) merely because he has paid a large amount for the premises. The object of the Act, to control the rents charge able for accommodation, is given in the preamble. We think it most unlikely that the Act should prevent in clauses (a) and (b), but permit in clause (c), an increase in rent according to the amount paid by a purchasing landlord Further more the argument involves restricting the last sentence of clause (c) to one class of landlord, namely a constructing landlord, and reading into the sentence by implication words such as " in the case of constructing landlord ". We see no reason thus to restrict the generality of the sentence. It was argued that the word "include" does not mean " mean and include ". That may be so, but this argument merely involves the proposition that there may he other items of cost in addition to the value of the land and cost o!' construction : the argument does not support a proposition that total cost may be the amount paid by way of purchase ; for such an amount supersedes and does not supplement value of the land and cost of construction. The result therefore is that the learned Chief Judge com mitted an error of law patent on the face of his record that he failed in review to correct an error on the face of the record of the Rent Controller. His order is therefore quashed and he should now determine the matter according to law. The respondents 2 and 3 will pay the petitioners' costs of this petition in one set. K. B. A./A. H. Order quashed.