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Allahabad High Court · body

2009 DIGILAW 2601 (ALL)

STATE OF U. P. v. CHINTA MANI GHOSH TRUST

2009-07-20

POONAM SRIVASTAVA

body2009
JUDGMENT Hon’ble Mrs. Poonam Srivastava, J.—Heard learned Standing Counsel for the petitioner, Sri Bhagwati Prasad, Senior Advocate, assisted by Sri Krishna Mohan Advocate for the respondent No. 1 and Ms. Tulika Prakash Advocate on behalf of newly impleaded respondent M/s Madhu Colonizers Private Limited through its Managing Director. 2. Counter and rejoinder affidavits have been exchanged which are on record. 3. An impleadment application dated 22.11.2006 was filed in the instant pending writ petition on the ground that on the basis of a nomination deed executed in favour of M/s Madhu Colonizers Private Limited, respondent No. 2 for getting the property free hold, the rent is being transferred to the newly respondent. The property in dispute originally belonged to Chinta Mani Ghosh Trust. The application for impleadment of respondent No. 2 was allowed vide order dated 18.1.2007. The necessary corrections have already been carried out in the array of parties. 4. The erstwhile landlord/respondent No. 1 filed an application under Section 21(8) of the U.P. Act No. 13 of 1972 (hereinafter referred the Act) for enhancement of rent of the premises in question before the R.C. & E.O., Allahabad. The case was numbered as case No. 139 of 1993. The application for enhancement of rent was allowed on 9.3.1998 and the rent was enhanced from Rs. 400 to Rs. 30,000 per month. This order was challenged before the Additional District Judge, Court No. 12, Allahabad. The order of the R.C. & E.O. was set aside vide order dated 18.10.2002 and the matter was remanded for afresh consideration. Once again the rent was enhanced from Rs. 400/- to Rs. 1740/- per month vide order dated 22.11.2003 which was challenged in Rent Appeal No. 84 of 2003. The appeal was decided vide judgment and order dated 28.5.2005 fixing rent at the rate of Rs. 32,900/- per month with the direction that the said rent is payable w.e.f. 1st September, 1993. Aggrieved by the aforesaid judgment and order, the instant writ petition has been preferred. 5. I have heard the learned counsels for the patties at length. The only contention raised by the learned Standing Counsel is that it was an ex parte order without giving an opportunity of hearing to the petitioner. The order sheet of the Additional District Judge, Court No. 12, Allahabad in Rent Appeal No. 84 of 2003 has been annexed as Annexure-7 to the writ petition. The only contention raised by the learned Standing Counsel is that it was an ex parte order without giving an opportunity of hearing to the petitioner. The order sheet of the Additional District Judge, Court No. 12, Allahabad in Rent Appeal No. 84 of 2003 has been annexed as Annexure-7 to the writ petition. I have gone through the judgment of the learned Additional District Judge. While enhancing the rent, the District Judge has taken into consideration the fact that the construction of the premises is in area of 1271.98 square yards as well as appurtenant land is 3733.64 square yards, total area is 5005.62 square yards. The accommodation in question is situated at Mahatma Gandhi Marg, Civil Lines, Allahabad and is in the most posh area of the city. The valuation of the entire building has been made at Rs. 52,68,294.80. The lower appellate Court was satisfied that the property was appropriate for commercial establishment. According to market rate, monthly rent should have been Rs. 43,775/-. It is apparent from the judgment that the counsels for both the parties were heard and after perusal of the record, order was passed. In fact the contention of the learned counsel that the market rate of the open land has also been taken into consideration which should not have been done while calculating enhanced rent. Since it is settled law that the open land is part and parcel of the building let out on rent, therefore, while fixing the enhanced rate, entire area should have been considered. I do not agree with the submission of the learned Standing Counsel that area of appurtenant land should not be taken into consideration while making calculation of enhanced rate of rent under Section 21(8) of the U.P. Act No. XIII of 1972. The Additional District Judge has placed reliance on a decision; State of U.P. and others v. VIlth Additional District Judge, Saharanpur, 1992 (2) ARC 571. While making the assessment of rent and market rate, the prevalent rate fixed by the District Magistrate on 1.1.1993 was Rs. 850/- per square meter minimum and Rs. 1000/- per square meter maximum. The minimum rate has been made the basis for calculating and making enhancement of rent. These findings on the face of it do not call for any interference. 850/- per square meter minimum and Rs. 1000/- per square meter maximum. The minimum rate has been made the basis for calculating and making enhancement of rent. These findings on the face of it do not call for any interference. Besides, no legal infirmity has been raised for interference in extraordinary jurisdiction under Article 226 of the Constitution of India. No good ground for interference is made out. The writ petition lacks merit and is accordingly dismissed. 6. The petitioners are directed to pay the entire rent within a period of two months from today along with interest at the rate of 9%. In the event of failure, the legal consequences shall be faced by them which the respondents are liberty to initiate against the petitioners. The arrears of rent shall be paid from the date of judgment. ————