JUDGMENT D.S. Mathur, J. - This is a petition under Article 226 of the constitution of India by K. B. Agarwal for the issue of a writ, order or direction in the nature of certiorari to quash the order dated 26-5-1955 of Sri Kripa Narain, Executive Officer, Municipal Board, Allahabad, respondent No. 1, and order dated 21-5-56 of the Additional Commissioner who dismissed the appeal against the assessment made by respondent No. I. An appeal against the assessment lay before the Commissioner and for that reason, the Commissioner was arrayed in the proceedings as respondent No. 2. A prayer was also made for the issue of a writ of mandamus for the refund of the increased amount of house and water tax already chagred and recovered from the petitioner. 2. The facts of the case are simply and are not in dispute. The petitioner is owner of Bangalow No. 21 situate at Muir Road, Allahabad, within the Municipal area of Allahabad and it is in the occupation of Sri Sheo Charan Lal, Advocate, as tenant on payment of a monthly rent of Rs. 106|4|-. The tenant has sub-let a few quarters for a monthly rent of Rs. 50|4|- It is also the admitted case of the parties that the rent recovered from the sub-tenant is realised by the tenant and not by the petitioner. The respondent No. 1 assessed the bungalow on a monthly rent of Rs. 146|4|- and the appeal preferred by the petitioner under Sec. 160 of the U. P. Municipalities Act was dismissed by the Additional Commissioner, Allahabad. 3. The petitioner's case is that as no part of the rent realised from sub-tenants is taken by him, the annual valuation of the bungalow should be the annual rent at which it is leased to the tenant, namely, Sri Sheo Charan Lal. 4. A tax on the annual value of buildings or lands or both can be imposed under Sec. 128 of the U. P. Municipalities Act, 1916 and the annual value has to be calculated in accordance with the provisions of Sec. 140 (I) of the Act. Clause (a) governs railway stations, hospitals, colleges, schools, hotels, factories and other such buildings; while clause (b) governs other buildings or lands not falling within the provision of clause (a). Clause (a) governs railway stations, hospitals, colleges, schools, hotels, factories and other such buildings; while clause (b) governs other buildings or lands not falling within the provision of clause (a). For the purposes of clause (b) , the annual value is gross annual rent for which the building, exclusive of furniture of machinery therein, or land is actually let; and where, in the opinion of the Board, the building or land is let for a sum less than its fair letting value, the gross annual rent which such building or land can reasonably be expected to let from year to year; The powers of owners to let accommodation have been curtailed by the U.P. (Temporary) Control of Rent and Eviction Act and an owner can no longer enhance the rent beyond the limits laid down in the Act. The owner can sue for ejectment of the tenant on the ground that he has sub-let a part of the building; but after the ejectment of the tenant, the building has to be let by the District Magistrate and unless there is a contract to the contrary, the rent thereafter fetched shall be the statutory rent. Tenants are very often not willing to pay rent in excess of what can be -recovered under the Act. It is for this reason that many owners do not file a suit for ejectment of tenants on the ground that the building had been sub-let to others. When the owners are not to gain by the institution of a suit for ejectment it will be wrong to compel them to institute such suits and if they fail to take such legal action to assess them to taxes at a higher value. 5. The correct interpretation of the provisions of Sec. 140 (1) (b) of the U.P. Municipalities Act read with the provision of U.P. (Temporary) Rent Control and Eviction Act would be to lay down that annual value for the purposes of Sec. 140 (1) (b) shall be the annual rent at which the building could be let under the provisions of the U.P. (Temporary) Control of Rent and Eviction Act. 6. 6. In case the owner was deriving some benefit out of the sub-letting of the building, the Board would have been justified to enhance the assessment as thereby the amount actually recovered towards rent by the owner is much more than what it appears under an oral or written agreement. For example, if as a result of sub-letting by the tenant the owner comes to terms with the tenant and there is a mutual agreement that the annual repairs of the building shall henceforth be done by the tenant and not by the owner,the gain would gain by sub-letting of the building by not having to spend money on annual repair. In such circumstances, it can be inferred that the annual rent recovered was indirectly enhanced to the extent of the average amount spent on the on the annual repairs of the building. This amount could easily extend to one or two months rent dependent upon the nature of the accommodation and the general condition of the building. In the present case, the owner has not gained by a part of the building being sub-let by the tenant and as far as he is concerned, the annual rent which he could recover under the provisions of the U.P. (Temporary) Control of Rent and Eviction Act. 7. The provision of the U.P. (Temporary) Control of Rent and Eviction Act are clear. The present building was subject to Municipal assessment on April 1, 1942, and consequently the rent which the owner can recover from the tenant would be the Municipal assessment on 1-4-1942 plus 25% plus one third of the additional taxes which could be recovered from the tenant under section 5-A of the U.P. (Temporary) Control of Rent and Eviction Act. 8. While deciding the appeal the Additional Commissioner acted arbitrarily. He did not at all take into consideration the provisions of sec. 140 (1) (b) of the U.P. Municipalities Act. Nor did he bear in mind the fact that the rent of the building could not be enhanced beyond certain limits. 9. There is not enough material on the record to indicate what additional rent could have been charged from the tenant under Sec. 5-A of the U.P. (Temporary) Control of Rent and Eviction Act. It is, therefore necessary that the appeal should be remained for a fresh hearing in accordance with the law. 10. 9. There is not enough material on the record to indicate what additional rent could have been charged from the tenant under Sec. 5-A of the U.P. (Temporary) Control of Rent and Eviction Act. It is, therefore necessary that the appeal should be remained for a fresh hearing in accordance with the law. 10. The petition is hereby allowed and it is ordered that a writ of certiorari be issued to quash the order dated 21-5-56 of the Additional Commissioner. The appeal preferred by the petitioner shall be deemed to be still pending and it should now be deposed of in accordance with the law. 11. Costs on parties.