PADMA TAN DON v. DISTRICT JUDGE, ALLAHABAD — 1992 DIGILAW 782 (ALL)

JUDGMENT S.C. Verma, J. - The petitioner claimed market value of the disputed premises at Rs. 26,63,474.00 paise and rent at the rate of Rs. 22,195.62 paise per month in a proceeding under Section 21 (8) of U.P. Act No. 13 of 1972. 2. The respondent no. 3, Head Mistress, Government Girls Normal School, Mission Road, Allahabad and the State of Uttar Pradesh contested the application on the ground that the building in dispute is not covered by the provisions of Section 21 (8) of the Act and the market value of the building is hardly Rs. 45,000/-. 3. The Rent Control and Eviction Officer by order dated 16.7.1980 rejected the application on the ground that the building in dispute being under the tenancy of the State Government was not covered by the provisions of the Act. 4. In appeal by an order dated 31.3.1981 it was finally held that the provisions of section 21 (8) of the Act are applicable to the building in dispute. The case was remanded to the Rent Control and Eviction Officer to pas appropriate orders for enhancement of rent of the building, on merits. 5. The Rent Control and Eviction Officer by an order dated 26.8.1981 assessed the market value of the building in dispute at twenty times of the annual rent at Rs. 1,12,760/- and enhanced the rent of the building by 10% of the above i.e. Rs. 11,276/- which comes to Rs. 939/- per month. 6. Aggrieved by the order dated 26.8.1981 an appeal was filed before the learned District Judge, Allahabad and the learned District Judge assessed the market value after taking into account the award of the Special Land acquisition Officer in proceedings under Land Acquisition Act under which price of the land at 18 Stanely Road, Allahabad, adjacent to the land in dispute was determined at Rs. 16.90 per Sq. yard in the year 1965. Assessing the market value on the basis of enhanced prices of land from the year 1965 to 1980 it was raised three times and the market value of the land was fixed at Rs. 50/- per Sq. meter. On the basis of the aforesaid rate the price of the land was calculated to Rs. 8,32,000/- and a sum of Rs. 18,000/- was added towards price of the building inclusive of the materials. The market value of property was fixed at Rs. 8,50,000/-, 7. 50/- per Sq. meter. On the basis of the aforesaid rate the price of the land was calculated to Rs. 8,32,000/- and a sum of Rs. 18,000/- was added towards price of the building inclusive of the materials. The market value of property was fixed at Rs. 8,50,000/-, 7. The rental value calculated on the basis of criterion laid down under Section 21 (8) of the Act the monthly rent was assessed at Rs. 7083.30. 8. The impugned order of the appellate authority dated 12.7.1982 has I been assailed both by the landlady and the tenant. In Writ petition no. 102661 of 1982 the landlady Smt. Padma Tandon challenged the order dated 12.7.1982 on the ground that the impugned order is illegal and suffers from manifest error of law and there is error apparent on the face of record. 9. The first submission of the learned counsel for the petitioner challenges the incorrect calculations made by the learned District Judge. The basis of calculation of the market value was the award of the Special Land Acquisition Officer in which the rate of land was assessed at Rs. 16.90 per Sq. yard. Even if three times multiple is taken as correct it would be Rs. 50.70 paise Sq. Yard i.e. Rs. 60.63 Sq. Meter and on this basis an area of land comprising, of 16,640 Sq. meter X Rs. 60, 63 per Sq. meter, the market value comes to Rs. 10,98,700/- instead of Rs. 8,32,000/-. In my opinion if the basis of calculation of multiple is accepted to be correct as also the rate of land fixed by the learned District Judge, there is an error apparent on the face of record in calculating the market value. 10. Learned counsel for the petitioner then submitted that the rate assessed at Rs. 50/- per Sq. meter is also not correct assessment. The market value of the land was assessed under Section 23 of the Land Acquisition Act as it prevailed on the date of notification under Section 4 of the Act in the year 1962 and thus the rate of Rs. 16.90 per Sq. yard was not in the year 1965 but in the year 1962. 11. The multiple of three times is also without any basis. 16.90 per Sq. yard was not in the year 1965 but in the year 1962. 11. The multiple of three times is also without any basis. The price hike of the land was maximum between the period 1970 to 1980 and during this period also the rise was abnormal between 1975 to 1980. Both the contentions appear to be correct. The multiple of three times has no basis and is vague calculation which is conjectural and is not borne out from any material on record. 12. I have also considered the entire material on record. In the presence of the report of Government approved valuer Sri Tara Chand, which has given a very detailed assessment of each item of the property, learned Judge was not correct in rejecting this report only on the ground that it was based on approximate assessment. The correctness or incorrectness of the approximate assessment has to be adjudged and compared on the basis of some other material on record. But the technical report of an expert can not be rejected merely on the ground that it was based on approximate basis. 13. The rate fixed by the District Finance Officer for the market value of the land at Rs. 100/- per Sq. meter as the minimum and Rs. 125/- per Sq. meter as the maximum also have been ignored in preference to the rate fixed in the award. According to the learned Judge the market price fixed by the District Finance Officer was for the purposes of stamp duty. But the same price would not be available where the building is under tenancy and in occupation of the State and possession of which would not be available within a reasonable time after the sale. Thus no willing purchaser would offer the aforesaid price fixed for the purposes of registration. In my opinion, the learned Judge was not correct in ignoring the value of the land as fixed for the purposes of stamp duty by the government itself. The aforesaid rates of the State Government have both outer limit and the inner limit to cover all such contingencies and there may be some further special reasons from deviating from the aforesaid valuation. The aforesaid rates of the State Government have both outer limit and the inner limit to cover all such contingencies and there may be some further special reasons from deviating from the aforesaid valuation. But there seems to be no justification for ignoring this assessment and just reducing the value to half of the value as fixed by the State Government which was the circle rate prevailing at the relevant time. The very purpose of the enactment for enhancement of rent of the building occupied by the government would frustrate for fixation of market value in case the consideration is that, as the possession of the building is not readily available, the willing purchaser would pay very low price. The provisions of Section 21 (1) (a) of the Act are not available to the landlord and, as such, he is adequately compensated by reasonable rent possessed on the basis of market value. In my opinion the market value for the purposes of Section 21 (8) of the Act has to be assessed irrespective of the consideration as to what value the willing purchaser would offer in case the possession of the building is not readily available. The concretion of timely possession would not be applicable in the present case for determination of market value. 14. The learned Judge erred in law in not considering the sale deed filed by the petitioner which related to piece of 200 Sq. yard of land pertaining to the property no. 15/17 Kasturba Gandhi Marg, adjoining on the back of the property in dispute which was sold at Rs. 197.37 Sq. meter on the ground that the Cooperative Society was able to give vacant possession to the purchaser and, as such, this can not be treated as an exemplar for determination of the market value. 15. The report of the Lekhpal submitted to the District Magistrate. It as also been rejected on the ground that in the exemplar sale deed of the neighbouring land the price has been shown to be much less and reliance was placed on the award of the Special Land Acquisition Officer. 16. The landlady has brought on record the report of the Tehsil authorities dated 18.12.1978 valuing the land, trees and well of the accommodation at Rs. 20,05,700/-. This value was got assessed for the Director of Education, Uttar Pradesh through the Tehsil authorities in respect of the disputed accommodation. 16. The landlady has brought on record the report of the Tehsil authorities dated 18.12.1978 valuing the land, trees and well of the accommodation at Rs. 20,05,700/-. This value was got assessed for the Director of Education, Uttar Pradesh through the Tehsil authorities in respect of the disputed accommodation. The report was filed alongwith the affidavit of the petitioner and was not controverted. This report of the department itself through the revenue authorities who are the government owned department for this purpose, has been ignored by the learned Judge on the same ground that the property being under tenancy no willing purchaser would pay the price as there is no hope of getting possession over the building and the prospective purchaser will not be willing to invest any sum for the building which is yielding rent of only Rs. 379/- per month. 17. In my opinion the interest of landlord of such buildings have been adequately taken care by making suitable provisions and providing for the assessment of rent on the basis of market value and not on the basis of letting value or annual rental value or on the basis of municipal assessment. The learned Judge grossly erred in taking into consideration the fact that the disputed building would remain under the tenancy and this aspect would completely diminish the value of the building and the prospective purchaser of the property would not invest any sum. 18. The valuation report submitted on the request of the State government by its own department should be treated as binding on the State government. In State of Uttar Pradesh v. Additional District Judge (Special Judge) Fatehpur 1986 (1) ARC page 143, this court in para 4' has held as under : "The second contention is that the report of the Executive Engineer of the Public Works Department regarding the market value of the building in dispute should be ignored on two grounds. First, the value as put is an exaggerated one. It does not lie in the mouth of the State to advance such a contention before this court. As already stated, a reference was made to the Executive Engineer at the instance of the State government itself. Secondly, the report was not admissible as the Executive Engineer had himself not entered the witness box. It does not lie in the mouth of the State to advance such a contention before this court. As already stated, a reference was made to the Executive Engineer at the instance of the State government itself. Secondly, the report was not admissible as the Executive Engineer had himself not entered the witness box. There is no averment in the petition that any such request whatsoever was made either before the subordinate officer or before the appellate court that the Executive Engineer should have been summoned for being cross-examined. The report, it appears was duly proved and, therefore the authorities below were justified in relying upon the same." In Sangat Singh v. Addl. District Judge 1989 (15) ALR 615 this court has held as under: "Having heard the learned counsel for the petitioner and looking into the impugned orders it is apparent that the lower appellate court has accepted the report of the petitioner's expert as regards the cost of land according to the circle rate provided by the petitioner before the Rent Control and Eviction Officer. There is not much controversy as regards the cost of construction and the built up area. Learned counsel for the petitioner, however, submitted that subsequently on 21.2.1989, the Additional District Magistrate (Finance) by his order dated 2.3.1988 has fixed the circle rate of the area in question at the rate of Rs. 1,135/- per Sq. mts. effective from 5.3.1988. The present application under Section 21 (8) of U.P. Act 13 of 1972 was made on 5.9.1985. Obviously, the enhanced rate which has now been fixed by the Additional District Magistrate (Finance) with effect from 5.3.1986 is subsequent to the said date. According to the proviso of Section 21 (8)the enhancement of rent has to be equivalent to one/twelfth of 10% of the market value of the building under tenancy. The enhanced rate is also payable from the commencement of the month of tenancy following the date of the application. In view of this, enhanced rate of rent will be payable by the respondents from October 1985." 19. The enhanced rate is also payable from the commencement of the month of tenancy following the date of the application. In view of this, enhanced rate of rent will be payable by the respondents from October 1985." 19. Thus the view taken by the learned Judge that as the provisions of Section 21 (1) (a) of the Act are not applicable on the disputed building and as there is likelihood of the building remaining under the tenancy, the prospective purchaser would pay a very low price, is not correct and on that basis the learned Judge committed manifest error of law in ignoring the valuation report of the revenue officials. It may be that the building in possession of the tenant and the building which are vacant may be assessed differently but this assessment would not take into consideration the fact that the building is occupied by the State Government and there is likelihood of its remaining under the tenancy for sufficiently a long time. 20. This factor should not further depreciate the value of the building. The learned Judge has not taken a pragmatic view in ignoring the report of the revenue officials which was at the instance of the education department as also the valuation fixed for the registration purposes by the District Finance Officer, which was prevailing on that date. 21. The learned Judge has also not given any reasons nor has pointed out any material on record on the basis of which he has assessed the price of the building inclusive of the material at Rs. 8,000/-. The learned Judge while considering the report of the approved valuer submitted by the petitioner, has mentioned that depreciation of 70% calculated on the market value is not correct. According to him the existing building are old kachcha building covered with Indian style bricks and have no market value except for the material which would compensate for the cost of removal of the material from the site, and thus the building have been held to have no market value as such. In spite of the aforesaid observations no reason has been given as to how the building has been assessed at Rs. 18,000/-. 22. In the report of registered valuer he has given details of the building and their value and has assessed the total valuation at Rs. 3,17,000/-. In spite of the aforesaid observations no reason has been given as to how the building has been assessed at Rs. 18,000/-. 22. In the report of registered valuer he has given details of the building and their value and has assessed the total valuation at Rs. 3,17,000/-. There was no material on record to controvert the aforesaid report with regard to the valuation of the existing building. There is only an affidavit on record of Smt. Malti Mishra, Head Mistress, Government Girls Normal School, Mission road, Allahabad, giving her own estimation of the value of the building at Rs. 64,000/-. The learned Judge has not considered this aspect of the matter in correct prospective and on the basis of material on record. 23. For the aforesaid reasons the impugned order of the learned District Judge is liable to be set aside and the petition is allowed. The case is remanded to the learned District Judge Allahabad for deciding the case afresh in accordance with the observations made above and on the basis of evidence on record. The respondent No. 3 shall in the meantime continue to pay the assessed rent.