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2008 DIGILAW 366 (JK)

Faiz Afzal Khan v. State Of J. &K.

2008-09-30

J.P.SINGH

body2008
1. Petitioner has approached this Court seeking a command to Director Estates, Jammu and Kashmir Government, respondent no.3, to enhance the rent of petitioners building comprising of 30 rooms situated at Wazir Bagh, Srinagar, from 2% to 6=% of the market value of the land underneath and appurtenant to the building with effect from 27.10.2001 when it was occupied by the respondents. 2. Petitioners building was occupied by R&B Construction Division-II, Srinagar on 27.10.2001 for housing its Sub Divisional Offices. The monthly rent of the building is stated to have been fixed at Rs. 25,000/- with effect from 27.10.2001 to 31.1.2003 and Rs. 30,000/- with effect from 1.2.2003 onwards. 3. The rent is stated to have been fixed after taking into consideration the cost of the land underneath and appurtenant to the building on the statement of Settlement Tehsildar Srinagar that the market value of land per kanal in Wazir Bagh area was Rs. 25-30 lacs. The market value of the land at the time of filing of the writ petition i.e. in 2007 is stated to be in the neighbourhood of rupees one crore per kanal. 4. Petitioners property was initially occupied by Executive Engineer R&B Wazir Bagh Srinagar, respondent no.5, up to ending April, 2006 whereafter it was occupied by the Commissioner Commercial Taxes, Jammu and Kashmir Government, respondent no.6 for housing the office of Deputy Commissioner Commercial Taxes Srinagar. 5. The case set up by the petitioner to seek payment of enhanced rent is that the initial rate of rent was not acceptable to him and he had protested about it at the very out set. Referring to Deputy Commissioner Srinagars decision conveyed vide his no.838-50/SM/AC/Rent dated 27.11.2006 and order dated 27.7.2006 passed by this Court in OWP no. 605/2005 of 27 July, 2006 in Shama Banoos case, petitioner seeks issuance of directions to the respondents to provide him similar treatment for assessing the rent of his building at the rate of 6=% of the market value of the land underneath and appurtenant to the building. 6. Respondent nos. 605/2005 of 27 July, 2006 in Shama Banoos case, petitioner seeks issuance of directions to the respondents to provide him similar treatment for assessing the rent of his building at the rate of 6=% of the market value of the land underneath and appurtenant to the building. 6. Respondent nos. 4 and 5 and 6 and 7, in their separate reply to the writ petition have disputed petitioners entitlement to treatment similar to that of Shama Banoos case on the ground that the decision of the District Rent Assessment Committee which pertained to lands and buildings occupied by different agencies of the Security Forces and civil departments, could not be applied to petitioners case, who had all along accepted the rent which the respondents had fixed for his building in his presence and with his consent. 7. Mr. Farhat Zia appearing for the petitioner submits that the petitioner cannot be treated differently and the respondents were under an obligation to fix the rent of petitioners building at the rate of 6=% of the market value of the land, as had been done in other cases of similar nature. 8. M/S Magray and B.A. Dar, learned counsel appearing for the respondents, submit that the respondents had taken the petitioners building at the rates of rent which had been mutually agreed to by the parties and, in that view of the matter, the petitioner was not entitled to invoke extra ordinary writ jurisdiction of the Court to seek adjudication of a dispute which, besides being purely civil in nature, was even otherwise belated and untenable. Learned counsel submit that petitioner cannot derive any benefit from Shama Banoos case which had no application to the facts of petitioners case. 9. During the pendency of the writ petition, this Court had, vide its interim order of September 10, 2007, required the respondents to consider petitioners case in terms of the rules occupying the field and the judgment passed by the Court in Shama Banoos case. 10. Complying with the interim directions, the respondents have rejected petitioners request for enhancement of rent vide Order no. 315-DE of 2008 dated 12th September, 2008. 11. I have considered the submissions of learned counsel for the parties and gone through the minutes of District Rent Assessment Committee Meeting held under the chairmanship of Deputy Commissioner Srinagar and order passed by this Court in Shama Banoos case. 12. 315-DE of 2008 dated 12th September, 2008. 11. I have considered the submissions of learned counsel for the parties and gone through the minutes of District Rent Assessment Committee Meeting held under the chairmanship of Deputy Commissioner Srinagar and order passed by this Court in Shama Banoos case. 12. Petitioner, as his pleadings indicates, had agreed to let out his premises to the respondents, rent wherefor had been fixed at Rs. 25,000/- per month from 27.10.2001 to 31.1.2003 and Rs. 30,000/- per month onwards. The decision of fixation of rent of petitioners building, according to the records had been taken in presence of the petitioner and the respondents representative. 13. Petitioners plea that he had resented at the very outset to the fixation of the rent by the respondents, is too vague, ambiguous and balled, to be accepted. Barring placing a copy of application seeking enhancement of rent, stated to have been moved somewhere in June, 2006, forming annexure C to the writ petition, the petitioner has not placed anything on records on the basis whereof his plea that he had resented the decision of the respondents to fix rates of rent for his building may be accepted. The significant silence of the petitioner in omitting to mention as to when had he, in fact, resented fixation of rent by the respondents and seeking its enhancement, is a sufficient indicator of his having consented to let out his building at the rates of rent fixed by the State Level Rent Assessment Committee. 14. Petitioners applying for enhancement of rent in June 2006, eloquently speaks of his acquiescence in accepting rent at the rate of 2% of the market value for the period the premises had remained under the occupation of respondent nos. 4 and 5. 15. Claim of the petitioner seeking enhancement of rent for the building leased out to the respondents, is essentially, a plea, proof and determination whereof may depend on host of factors including location of the building, the condition of structure and the nature and quality of the facilities provided therein, which may, inter alia require leading of evidence by the parties as well. It is only a civil court of original jurisdiction which may be competent to adjudicate upon such a plea. Extra ordinary writ jurisdiction of this Court cannot, in my opinion, be invoked for such adjudication. 16. It is only a civil court of original jurisdiction which may be competent to adjudicate upon such a plea. Extra ordinary writ jurisdiction of this Court cannot, in my opinion, be invoked for such adjudication. 16. Petitioners reliance on order passed by this Court in Shama Banoos case to seek enhancement of rent for his building, too appears to be misconceived, in that, the interim order in Shama Banoos case had been passed on concession of the State Counsel, who had offered State Governments no objection in paying rent to Shama Banoo at the rate of 6=% per annum of the market value of the land. This order cannot thus act as a precedent to the followed by the State in other cases. Only such judgments and orders of the Court which lay down some principle of law and have attained finality may be pressed into service to seek parity and similar treatment on the basis of such judgments and orders. 17. Petitioners plea seeking parity in fixation of rent of buildings under the occupation of the State government may not, even otherwise, be applicable to his case because he had let out his premises on his own volition to the respondents and had been accepting rent therefor as assessed by the respondents State Level Rent Assessment Committee without any reservation, whereas the decision of the District Level Rent Assessment Committee, on the basis whereof he claims parity, pertained to those buildings only which had been occupied by different agencies of the Security Forces and the Civil Departments, without the consent and approval of the owners thereof. 18. Petitioners writ petition seeking adjudication of a purely civil dispute regarding enhancement of rent of his building, which stood vacated when he had come to this Court, may not thus warrant its admission to hearing because it does not raise the infraction of any fundamental, legal, statutory or other enforceable right. For all what has been said above there is no merit in this petition, which is, accordingly dismissed.