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Allahabad High Court · body

2010 DIGILAW 1459 (ALL)

MADHYAMIK SHIKSHA PARISHAD v. IInd A. D. J.

2010-05-04

DEVENDRA PRATAP SINGH

body2010
JUDGMENT Hon’ble Devendra Pratap Singh, J.—Heard Sri Jafar Nayyar, learned Addl. Advocate General for the petitioners and Sri S.N.Singh, learned counsel for the respondent landlord. 2. This petition by the State is directed against concurrent orders dated 30th of May 1996 and 24.2.1999 enhancing the rent of the disputed building under Section 21 (8) of the U.P. Act No. 13 of 1972 (herein after referred to as the ‘Act’). 3. The respondent landlord filed an application under Section 21 (8) of the Act inter alia with the allegation that he was the owner in possession of a two storeyed building No. 16C, Chintamani Road at Allahabad wherein the petitioner was a tenant at Rs.1250/- per month since very long and though the rent at the market value of the building was more than Rs.50,000/-, the rent has not been enhanced and therefore claimed enhancement of rent. 4. The petitioner contested the application with the allegation that the accommodation was in a dilapidated condition and reasonable agreed rent was being paid by them and the municipal assessment of the accommodation was quite low and since it was standing on lease land, no enhancement could be made. It was further stated that even proceedings under Section 133 Cr.P.C. have been registered on the ground that the accommodation was very old and likely to fall down at any time. 5. The landlord filed his evidence including a registered valuer’s report which was duly proved in the Court while the petitioner tenant did not lead any evidence except for filing of the application under Section 133 Cr.P.C. and the report of the Executive Engineer filed in those proceedings. 6. The Rent Controller vide his order dated 30th of May 1996 partly allowed the application for enhancement and fixed the rent at Rs.14,583/- per month. Aggrieved, both the parties filed their respective appeals. Both the appeals were heard and by a common order dated 27th of September 1997, the State appeal was allowed while the appeal of the landlord was dismissed. Aggrieved, both the parties filed their respective appeals. Both the appeals were heard and by a common order dated 27th of September 1997, the State appeal was allowed while the appeal of the landlord was dismissed. The landlord challenged the said decision through Writ Petition No. 39191 of 1997 and a learned Single Judge of this Court, after hearing the parties, allowed the writ petition vide order dated 14th of October 1998 and remanded the matter to the appellate Court to decide it afresh in accordance to law in the light of the observations made in the body of the judgment. 7. The appellate Court after reconsideration of the evidence on record, dismissed the State appeal and partly allowed the appeal of the landlord by the order dated 24.2.1999 fixing rent at Rs.51,000/-. 8. Learned counsel for the petitioner has firstly urged that since it was a case under Section 21 (8) of the Act and not under section 9 of the Act, the value of the land could not be added to ascertain the market value of the building since the word “site” as used in Section 9 is missing in Section 21 (8) of the Act. 9. Before the Court deals with this argument, it would be appropriate to quote Section 9 which reads as under : “9. Determination of standard rent.—(1) In the case of a building to which the old Act was applicable and which is let out at the time of commencement of this Act in respect of which there is neither any reasonable annual rent nor any agreed rent or in any other case where there is neither any agreed rent nor any assessment in force, the District Magistrate shall, on an application being made in that behalf, determine the standard rent. (2) In determining the standard rent the District Magistrate may consider— (a) the respective market-value of the building and of its site immediately before the date of commencement of this Act or the date of letting, whichever is later (hereinafter in this section referred to as the said date); (b) the cost of construction, maintenance and repairs of the building; (c) the prevailing rents of similar buildings in the locality immediately before the said date; (d) the amenities provided in the building; (e) the latest assessment, if any, of the building; (f) any other relevant fact which appears in the circumstances of the case to be material.” Section 21 (8) reads as under : “21.Proceedings for release of building under occupation of tenant : (1) ........................................... (2) ........................................... (3) ........................................... (4) ........................................... (5) ........................................... (6) ........................................... (7) ........................................... (8) Nothing in clause (a) and sub-section (1) shall apply to a building let out to the State Government or to a Local Authority or to a public sector Corporation or to a recognised educational institution unless the Prescribed Authority is satisfied that the landlord is a person to whom clause (ii) or clause (iv) of the Explanation to sub-section (1) is applicable : Provided that in the case of such a building, the District Magistrate may, on the application of the landlord, enhance the monthly rent payable therefore to a sum equivalent to one-twelfth of ten per cent of the market value of the building under tenancy and the rent so enhanced shall be payable from the commencement of the month of tenancy following the date of the application : Provided further that a similar application for further enhancement may be made after the expiration of a period of five years from the date of the last order of enhancement.” 10. A perusal of Section 9 shows that the District Magistrate may determine the standard rent of any building to which the old Act was applicable and was let out at the time of commencement of the Act where, neither any reasonable annual rent nor any agreed rent is fixed, nor any assessment is in force. While determining the standard rent, the District Magistrate is required to consider, apart from the market value of the building, the market value of the site immediately before the date of commencement of the Act or the date of letting, apart from the other factors. While determining the standard rent, the District Magistrate is required to consider, apart from the market value of the building, the market value of the site immediately before the date of commencement of the Act or the date of letting, apart from the other factors. However, the proviso to Section 21 (8) empowers the District Magistrate to enhance the monthly rent payable in respect to any building taken on rent by the State Government or Local Authority or by a public sector corporation etc. Thus, it is apparent that both sections deal with fixation of rent but Section 9 uses the word ‘site’ apart from using the world ‘building’. In the proviso to Section 21 (8), the enhancement has to be done on the market value of the building under tenancy. The term “building” has been defined in Section 3(i) to the following effect : “Building”, means a residential or non-residential roofed structure and includes— (i) any land (including any garden), garages and out-houses, appurtenant to such building; (ii) ........................................... (iii) ..........................................” 11. Thus, when ‘building’ includes land, there has to be some reason for the legislature to have used the world ‘site’ in Section 9 because normally it does not use surplus words. The reason becomes apparent when the further qualifying words “immediately before the date of commencement of this Act or the date of letting, whichever is later” are read together. 12. A bare perusal of the definition shows that building includes, apart from other fittings etc., even land appurtenant to such building including any garden, garages and out houses etc.. Therefore, it is clear that while determining the market value of the building under Section 21 (8) the current value of the land, including appurtenant land has also to be considered. However, while determining the standard rent under Section 9, the market value of the building together with its site has to be determined at the point immediately before the commencement of the Act or the date of letting. Thus, by the usage of the term “site” in Section 9, the District Magistrate has to ascertain the value of the construction and land as existing immediately before the date of the commencement of the Act or the date of letting. Thus, by the usage of the term “site” in Section 9, the District Magistrate has to ascertain the value of the construction and land as existing immediately before the date of the commencement of the Act or the date of letting. The difference is obvious because the landlord of a building covered by 21 (8) is at a disadvantage because he is not entitled to release under Section 21 (1)(a). Thus, it is apparent, that the value of the land has also to be taken into consideration while fixing the market value of the building. In fact the Apex Court had an occasion to consider how the valuation has to be assessed for the purposes of Section 21 (8) of the Act in the case of State of U.P. U.P. and others v. VII Additional District Judge and others [ AIR 1993 SC 1232 ]. After noticing the definition of the word ‘building’ and the proviso to Section 21 (8), it went on to hold that ‘there is no express exclusion of the value of the land on which the building stands. In the absence of such express exclusion, the land being intrinsically inseparable from the building standing thereon, the value of the land and the value of the structure or building should be taken into consideration and in our view the land on which the building stands together with the building or structure constitute one composite unit.” It went on to hold that “In any case, the definition of the “building” under the Act clearly shows that the building thereon means roof structure including the land underneath the said structure. Inclusive part of the definition only relates to the land appurtenant to such building and not to the land underneath the roof structure.” 13. Accordingly, the argument of the learned counsel for the petitioner cannot be accepted. 14. It is then urged that since it was a lease land, its market value would have to be less than that of free hold land. 15. Apart from this bald assertion before the Courts below and before this Court, the petitioner has not brought any evidence on record to show what was the market value of lease land at the time when the application for enhancement was made. Admittedly at the time when the application was made, the lease of the premises had not yet expired. Apart from this bald assertion before the Courts below and before this Court, the petitioner has not brought any evidence on record to show what was the market value of lease land at the time when the application for enhancement was made. Admittedly at the time when the application was made, the lease of the premises had not yet expired. The Courts below have considered the circle rate fixed by the District Magistrate under Rule 341 of the U.P. Stamp Rules, 1942 and which is the minimum market value fixed for the purposes of payment of stamp duty. Even this circle rate does not differentiate between the market rate of lease land and free hold land. The petitioner did not file the lease deed to show on what terms the land was held nor have disclosed even before this Court. It could have been a perpetual lease which more or less is akin to free hold land. 16. No doubt, as held by this Court in the case of Deepak Kumar Tyagi and others v. Vth Addl. District Judge, Saharanpur and others [1994 (24) ALR 31] that circle rate cannot finally determine the land conclusively but in Smt. Padma Tandon v. District Judge, Allahabad and others [1992 (2) ARC 180], after considering various decisions it went on to hold that circle rate fixed by the Government for the purposes of stamp duty is a good guideline unless there is other material to ascertain the market value of the land. However, as mentioned above, there was no other evidence before the Courts below to determine the valuation of the land except the circle rate which was not denied by the petitioner tenant. On these facts, both the Courts below were justified in relying upon the circle rate fixed by the Government itself. 17. Thus, even this argument is not worth acceptance and therefore is rejected. 18. No other point has been urged. 19. However, it is stated at the bar that the petitioners have vacated the disputed premises and thus accordingly the landlord would be entitled to the enhanced rent uptil the date of vacation of the said premises and which should be paid within two months from today. 20. Subject to the aforesaid observations, this is not a fit case for interference under Article 226 of the Constitution of India. Rejected. ————