JUDGMENT Desai, J.
1. A complaint was lodged by the District Magistrate of Agra in the Court of the City Magistrate charging the applicant Under Section 8, Temporary Control of Rent and Eviction Act, III [3] of 1947. It was mentioned in the complaint that the applicant let out his house to Tara Chand tenant, that the rent was Rs. 4/- per month up to 31st July 1946, that the applicant enhanced it to Rs. 6/- with effect from 1st August 1946 and that he further enhanced it to Rs. 12/-with effect from 1st April 1947. It was contended that this enhancement to Rs. 12/- per mouth was in contravention of the provisions of the Act and, consequently, punishable Under Section 8.
2. The trial took place before Shri R. T. I. Mohan, City Magistrate. He tried the applicant summarily. Some witnesses were examined in. eluding Tara Chand who also filed receipts. The City Magistrate found that the enhancement of rent from Rs. 6/- to RS. 12/- was prohibited Under Section 5(2) of the Act.
3. The applicant pleaded before the Magistrate that he had improved the house at a considerable expense. He conceded that the rent of the house was Rs. 12/- and pleaded justification on the ground of the improvement. Under Section 5, if the rent was fixed between the applicant and Tara Chand, it could not be enhanced beyond the amount of the reasonable annual rent and beyond 50 per cent. on the rent prevailing on 1st October 1946. There were thus two limits to the amount to which the rent could be enhanced; the rent after enhancement could not exceed the reasonable annual rent and could not exceed the rent payable on 1st October 1946 plus 50 per cent. thereon.
4. In the present case, the rent payable on 1st October 1946 was Rs. 72/- per annum; so the applicant could not enhance the rent of the accommodation to more than Rs. 108/- per annum even if the reasonable annual rent was Rs. 192/- or Rs. 240/-.
5. Section 5 of the Act does not deal with improvement in the accommodation and does permit a landlord to exceed the limits mentioned in Sub-section (2) on any ground such as that of improvement. When a landlord claims a right to enhance the rent of accommodation on the ground of improvement the real question for decision is whether the accommodation remains the same or not when the house is improved. I use the term "accommodation" in the same sense in which it is used in the Act; I mean the subject-matter of the tenancy and not the number of rooms or the size of the rooms or the floor area. If the accommodation remains the same, fixing at amount of rent which is higher than that payable previously would amount to enhancement and would be governed by Section 5 (2). If it does not remain the same, fixing rent for the improved or reconstructed house is a matter of fresh settlement of rent. If the parties come to an agreement about the rent to be paid, the agreed rent would be payable by the tenant without any regard to the amount of the rent previously payable and to the provisions of Section 5 (2), The accommodation being different, it would not be a case of enhancement at all. If the parties cannot agree about the rent, the landlord can fix rent by a written notice provided it does not exceed the reasonable annual rent; if he wants to fix the rent at a higher amount, he must go to a Court forgetting the rent fixed.
6. I derive considerable support for the above view from the recent case, Mitchell v. Barnes, 1949-2 ALL E. R. 719, decided by the Court of Appeal. There a house was let out as a whole as a dwelling house at an annual rent of £30 from 1923 to 1935. For the next 11 years it was let for business purposes. The landlord gob possession over it in 1946 and converted it into two residential flats by putting in some wooden partitions and installing new baths and sinks. In 1947, he let the two flats, one at a rent of £156 per annum. and the other at £130 per annum. The tenants contended that Under Section 12 (l) (a), Increase of Rent and Mortgage Interest (Restrictions) Act, 1920, the standard rent of the whole house was £30 a year and that the rents of two flats should be determined by apportioning the sum of £80 between them. The Court accepted their contention and fixed the rents of the flats at £44 and £36 per annum. It held that the structural alteration in the old dwelling house did not change its identity and did not create two dwelling houses. Had the old dwelling-house ceased to exist, its standard rent would have fallen with it. Denning L. J., observed at p. 722 :
"It would be clearly unjust it a landlord, by making one or two comparatively small alterations putting in a window, or a door, or a sink could thereby get rid of the standard rent altogether. On the other hand, if he does a great deal of structural work ha ought to be able to charge a new rent. It is a question of degree, and one primarily for the county court judge."
7. In the present case it has been definitely found by the learned Magistrate that the so-called improvement was nothing but ordinary repairs which a landlord is expected to make in order to keep the house in a habitable condition and that the accommodation remains the same. Consequently fixing a higher amount of rent is enhancement and if it is not justified Under Section 5 (2), it is in contravention of the Act. Even if the improvement or reconstruction of the house has made the present accommodation different from the previous accommodation, there is no evidence of any agreement by Tara Chand to pay Rs. 12/- per month and the rent has not been fixed by any notice in writing. Even if the rent at the rate of Rs. 12/- per month does not exceed the reasonable annual rent the applicant had no right to charge Rs. 12/- per month without a notice in writing, Since he is admittedly charging Rs. 12/- per month, he is guilty of contravening the provisions of Section 5.
8. The applicant was rightly convicted Under Section 8 of the Act. There is nothing wrong with the sentence.
9. I wish the learned City Magistrate had written a proper judgment. This was a case in which no appeal lay and he was required only to give a brief statement of the reasons for the judgment, but I do not know how he could give even a brief statement of the reasons without referring to the evidence. The reasons must be based on the evidence. The learned Magistrate has made absolutely no reference to any evidence.
10. The application is dismissed.