J.N. Bhat, J. - These two revision petitions are directed against the judgment of the learned District Judge, Jammu, dated 31st March 1970, whereby he has disposed of the two appeals against the order of the Rent Controller, Jammu, dated 30th April, 1969.

2. The brief facts are that the petitioner Sat Pall tenant took on rent a shop on Link Road. Jammu, from Mani Ram Landlord respondent from 5-12-1964 fixing Rs. 100/- as the rent of the shop per month On 17-5-1968 the tenant applied to the Rent Controller for fixation of the fair rent of the shop. Both the parties led evidence and ultimately the Rent Controller by his order dated 30th April, 1969 fixed the fair rent of the shop at Rs. 20/- per month instead of Rs. 100/- as contracted by the parties. Both sides preferred appeals against the order of the Rent Controller and the learned District Judge raised the amount of rent per month from Rs. 20/- fixed by the Rent Controller to Rs. 53/- The appeal of Sat Pall tenant was dismissed by the District Judge. Both the landlord and the tenant have come up in revision to this court against the order of the District Judge, Jammu dated 31-3-1970.

3. I have beard the learned counsel for the parties at length.

Mr. Sethi has argued that the application had to be dismissed because the Rent Controller had no jurisdiction to fix fair rent of the shop as the amendment in the Rent Control Act bringing the point of construction to the last day of the year 1965 was not at all in existence when the tenant took the shop in question on rent from the land-lord. The J. and K. Houses and Shops Rent Control Act, 1966 was amended in the year 1966 and the new Act, being Act No. XXXIV of 1966 came into force from 29th Oct: 1966 when it was published in the Government Gazette after obtaining the assent of the Governor on 28th October, 1966. In this Act in Section 1(2)(ii) for the words "1954" the words 1965 were inserted and the present sub-section now reads "any house or shop which has been constructed on or after last day of the year 1965" which means that this Act applies only to houses and shops which have been constructed before the end of 1965. According to this amendment the amended Act would apply to the facts of this case because the shop, has admittedly been constructed before 1965. Now section 10 of the Act referred to by Mr. Sethi reads as under :-

"Nothing in the provisions of this Act including Schedule A, shall entitle the landlord to claim rent from the tenant at a rate different from 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."

This section lays down that the land-lord cannot claim more rent than contracted except with the agreement of the parties; that agreement must be valid in law and valid even under the Houses and Shops Rent Control Act (hereinafter referred to as "the Act"; the proviso clearly lays down in the last words of the section "unless a different rate is fixed under section 8" Section 8 of the Act is the section which empowers the Rent Controller to fix fair rent and Section 8(f) clearly covers the facts of this case. This sub-section, i. e. 8(f) reads as under :

"(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 costs of 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."

Therefore the preliminary objection of Mr. Sethi has no force and is rejected.

4. This sub-section (f) of section 8 as quoted above covers the facts of this case. To determine the fair rent of such constructions the following factors have to be taken into consideration :-

(i) reasonable costs 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 accommodation;

5. 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 in view the prevailing rate of rent in the locality for similar accommodation

6. On this point the learned counsel for the tenant has argued that the cost of land is Rs. 1,000/- his witness Wazir Chand has fixed the cost of construction at Rs. 1621/-. There are some rent deeds which show the rate of rent from Rs. 20/- to Rs. 23/- per month of shops at Link Road. Therefore, according to the learned counsel for the tenant the fair rent should be even below Rs. 20/- per month. On the other band the learned counsel for the landlord has argued that the tenant has not proved the cost of land by any satisfactory evidence. It has been shown that the cost of the land at the Link-road for shop sites has been fixed at Rs. 8,000/- per Kanal in a previous case decided by Honble Justice Jaswant Singh Kasturi Lal v. Dwarka Dass, reported as 1970 R.C.J. 500. The cost of construction according to him should be Rs. 3.338/- stated by Wazir Chand witness for the tenant in cross-examination. Mr. Gupta, the learned counsel for the tenant has argued that assuming that Rs. 8,000/- is the price of the land in Kasturi Lals case the land under that shop was 200 sq. feet; where as the land under the shop in question is only 130 Sq-Feet the cost of the land therefore come to Rs. 5,200/- The fair rent therefore would be calculated thus Rs. 5,200/- plus Rs. 2764/- accepted by the District Judge as the, cost of construction of this shop, the total thus comes to Rs. 7,964/-. 6% interest on this amount comes to Rs. 477.84 per year and the monthly rent therefore would be Rs. 39.82 paise which is fixed as the fair rent of this shop from the date mentioned in the District Judges, order under appeal.

7. The revision of the tenant is accordingly accepted and that of the landlord is dismissed. The parties will bear their own costs.