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2007 DIGILAW 1269 (ALL)

STATE OF U. P. v. JUGAL KISHORE

2007-04-27

ANJANI KUMAR

body2007
JUDGMENT Hon’ble Anjani Kumar, J.—By means of present writ petition under Article 226 of the Constitution of India, the State of Uttar Pradesh, tenant-petitioners challenge the order dated 23rd October, 2003, passed by the appellate authority under the provisions of the U.P. Act No. XIII of 1972 (In short ‘the Act’), whereby the appellate authority allowed the appeal filed by the contesting respondent-landlord and set aside the order passed by the Rent Control and Eviction Officer dated 21st March, 2003 and the application filed by the respondent-landlord under Section 21 (8) of ‘the Act’ has been allowed fixing the rent of the premises in question at the rate of Rs. 11,758/- per month in place of Rs. 609.60 per month with effect from October, 1997. 2. In short, the brief facts of the present case are that the State of Uttar Pradesh, the petitioners in this petition is the tenant of the premises in question to which the respondent Jugal Kishore is the landlord. The landlord filed an application dated 13th October, 1997 under Section 21 (8) of ‘the Act before the Rent Control and Eviction Officer stating therein that Jugal Kishore is the owner and landlord of the premises in question and that the petitioners is the tenant on a monthly rent of Rs. 609.60 Despite request being made by the landlord, since tenant has not increased the rate of rent, the present application is filed for enhancement of the rent. The tenant contested the aforesaid application filed by the landlord inter alia on the ground that there has been an agreed rate of rent between the landlord and the tenant of Rs. 609.60 per month, which is being regularly paid by the tenant to the landlord, therefore the application under Section 21 (8) of ‘the Act’ is not maintainable. It is also stated by the tenant that no notice for enhancement was given to the tenant prior to the filing of application under Section 21(8) of ‘the Act’. The further stand by the tenant is that the rent is being paid of the landlord as per Government Order issued by the State Government, it was therefore prayed by the tenant that the application filed by the landlord under Section 21 (8) of ‘the Act’ is liable to be rejected. 3. The further stand by the tenant is that the rent is being paid of the landlord as per Government Order issued by the State Government, it was therefore prayed by the tenant that the application filed by the landlord under Section 21 (8) of ‘the Act’ is liable to be rejected. 3. After the exchange of the pleadings and the evidence of the parties, the Rent Control and Eviction Officer vide its order dated 31st May, 1999 rejected the aforesaid application filed by the landlord. The landlord therefore preferred an appeal against the order rejecting the application under Section 21 (8) of ‘the Act’ by the Rent Control and Eviction Officer before the appellate authority-District Judge concern. The appellate authority vide its order dated 18th February, 2000 set aside the order passed by the Rent Control and Eviction Officer dated 31st May, 1999 and remanded the matter back for decision after giving opportunity to the parties. After remand, the Rent Control and Eviction Officer vide order dated 21st November, 2001 rejected the application filed by the landlord. The landlord preferred and appeal before the appellate authority against the order dated 21st November, 2001 passed by Rent Control and Eviction Officer. The appellate authority vide order dated 13th December, 2002 remanded back the matter to the Rent Control and Eviction Officer with the positive direction to decide the case after considering the evidence already adduced by the parties and in the light of the observation made in the body of the judgment of the appellate authority. The Rent Control and Eviction Officer pursuant to the aforesaid remand after considering the evidence and hearing the parties passed an order rejecting the landlord’s application under Section 21 (8) of ‘the Act’ vide order dated 21st March, 2003. Aggrieved by the order passed by the Rent Control and Eviction Officer dated 21st March, 2003, the landlord preferred an appeal before the appellate authority. Before the appellate authority learned Counsel for the tenant pressed the point that the agreement executed between the parties for the rent at the rate of Rs. Aggrieved by the order passed by the Rent Control and Eviction Officer dated 21st March, 2003, the landlord preferred an appeal before the appellate authority. Before the appellate authority learned Counsel for the tenant pressed the point that the agreement executed between the parties for the rent at the rate of Rs. 609.60 per month in the year 1997 is binding and no application for enhancement of the rent can be made under Section 21 (8) ‘the Act’ within a period of five years, whereas the present application has been filed by the landlord on 13th October, 1997 within five years rather the very next month of the contract of the rent and lease. It is further argued that the report of the valuer does not mention about any depreciation in the value of the premises in question and further the value is not a registered valuer, therefore the report submitted by the landlord of its valuer cannot be accepted. The petitioners-tenant relied upon a decision of this Court reported in 2003 (1) A.R.C., 553, Gurmeet Kaur (Smt.) v. 3rd Additional District Judge, Saharanpur and others, wherein this Court on the facts of the case has held “the market value of the premises in question is Rs. 600/- per sq.ft, which is too high for a town like Saharanpur cannot form the basis of arriving the rate of rent under Section 21 (8) of ‘the Act’ which is much more than the circle rate fixed by the District Judge for the area." 4. In the present case the appellate authority has set aside the order passed by the Rent Control and Eviction Officer and fixed the rate of rent at the rate of Rs. 11,758/- per month with effect from October, 1997 i.e. date of filing of the application under Section 21(8) of ‘the Act’ by the landlord and relying upon the judgment of Division Bench of this Court reported in 1983 A.R.C. 422, Zarif Ahmad and another v. Satish Kumar and another, wherein this Court has held that since the agreement relied upon by the parties in the said case is not a registered agreement and is contrary to the provision of Section 49 of the Registration Act, the same cannot be read in evidence, therefore the argument advanced on behalf of petitioners-tenant that there is an agreed rate of rent of Rs. 609.60 per month between the parties cannot be relied upon. The appellate authority further recorded a finding that the lease in question since for a period exceeding one year, it requires to be registered under law, but the lease deed in question is not a registered document, thus the appellate authority has arrived at the conclusion that the agreed rent cannot be accepted and thus application under Section 21 (8) of ‘the Act’ is maintainable. The further argument by Counsel for the tenant that the rate of rent is fixed in terms of the Government Order, paper No. 120, therefore the demand of the enhancement of the rent by the landlord under Section 21(8) of ‘the Act’ cannot be accepted and the same has rightly been rejected by the Rent Control and Eviction Officer. The appellate authority further found that the rent fixed as per the Government Order is only the unilateral act and not a bilateral and the same is not binding on landlord. Learned Counsel for the landlord argued before this Court that the Government Order cannot supersede the provision of Section 21 (8) of ‘the Act’, which is statutory provision confers the right of the landlord for filing application for enhancement of the rent. It is further contended that since the application for enhancement under Section 21 (8) of ‘the Act’ has been filed within fiver years of the coming into the tenancy between the tenant and the landlord, therefore the same is liable to be rejected. This argument of tenant has rightly been rejected by the appellate authority because the Statute, namely Section 21 (8) of ‘the Act’ prescribed the limitation of five years for further enhancement of the rent once the rent has already enhanced under Section 21 (8) of ‘the Act’. The appellate authority has relied upon the decision reported in 2003 (1) A.R.C. 392, Satyawati Devi v. IIIrd Additional District Judge, Muzaffarnagar and others, wherein this Court relying upon its earlier decision reported in 1996 (2) A.R.C. 674, New India Assurance Co. Ltd. v. Additional District Judge, Gorakhpur and others, has arrived at the conclusion that there is no limitation for filing application under Section 21 (8) of ‘the Act’ as contended by tenant. 5. Thus, this argument of the petitioners-tenant has rightly been rejected by the appellate authority. Ltd. v. Additional District Judge, Gorakhpur and others, has arrived at the conclusion that there is no limitation for filing application under Section 21 (8) of ‘the Act’ as contended by tenant. 5. Thus, this argument of the petitioners-tenant has rightly been rejected by the appellate authority. Coming to the argument advanced with regard to the report of the valuer, the appellate authority has held that the report of the valuer filed on behalf of the landlord has been rejected only on the ground that there was no registration number of the valuer in the report submitted by the landlord and further that the valuer of the landlord has not shown the depreciated value of the premises in question. The appellate authority has held that Hari Mohan Sahu is a Civil Engineer and his registration number is 5/97-98, whose report has been relied upon by the landlord. Thus, the view taken by the Rent Control and Eviction Officer in rejecting the report of the valuer cannot be accepted. So far as the depreciated value of the premises in question is concerned, valuer Hari Mohan Sahai in his report has categorically submitted that in the total value of the premises in question Rs. One lac has been deducted on account of depreciation, therefore, this argument has also rightly been rejected by the appellate authority. After considering the report submitted by the landlord, the appellate authority has arrived at the conclusion that market value of the building is Rs. 14.11 lacs, which is based on material on record and cannot be said to be either perverse or otherwise suffers from any error, much less manifest error of law. Thus, in view of what has been stated above, the order passed by the appellate authority enhancing the rent from Rs. 609.60 to Rs. 11,758/- per month with effect from October, 1997 cannot be said to be in any way either arbitrary or suffers from any error, much less error apparent on the face of record which may warrant any interference by this Court in exercise of jurisdiction under Article 226 of the Constitution of India. 6. In view of what has been stated above, this writ petition has no force and is accordingly dismissed. The interim order, if any, stands vacated. However, there shall be no order as to costs. ————