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2010 DIGILAW 903 (CAL)

Sanjay Sree Corporation v. UNION OF INDIA

2010-07-30

DIPANKAR DATTA

body2010
JUDGMENT 1. SUBSTANTIAL portion of premises No. 11B, Kalakar Street, Kolkata 700007 (hereafter the said premises) is presently occupied by the Posts and Telegraph Department of the Government of India. Kalakar Street Post Office is being operated from the said premises. In this petition, the petitioners have challenged Memo dated 6.8.2008 issued by the Senior Superintendent of Post Offices, North Kolkata Division, whereby they have been informed that monthly rent for the occupied portion in the said premises has been revised and fixed at Rs. 10,800.00 per month inclusive of municipal taxes w.e.f. 21/3/2002 to 31/12/2006 and at Rs. 12,800/- plus occupier's share of municipal taxes w.e.f. 1/1/2007 to 31/12/2011, subject to conditions mentioned therein. 2. IT is undisputed that an area of 7936 sq.ft. (approx.) on the ground, mezzanine, first and second floors of the said premises was let out by the petitioner No.1 to the Posts and Telegraph Department at a monthly rent of Rs. 1 per sq. ft. for a period of 5 years un mutually agreed terms and conditions in September, 1963. I need not refer to the subsequent facts in great detail since the same are absolutely unnecessary for disposal of the present petition. Only the facts that are relevant may be noted. Since the department had not enhanced the rate of rent for quite sometime, a writ petition being W.P. No. 1800 of 2005 was filed before this Hon'ble Court claiming appropriate relief for proper fixation and/or enhancement of rent. 3. ON 16.11.2005, an order was passed by this Court disposing of the writ petition. By that order the concerned Hiring Committee was directed to take appropriate decision regarding enhancement of rent in respect of the portion of the said premises occupied by the department within four weeks . from date of receipt of relevant papers from the Senior Superintendent of Post Offices who, in terms of the said order, was under an obligation to forward the claim of the petitioners. It was further ordered that the Hiring Committee prior to deciding the claim of the petitioners would be under an obligation to grant opportunity of hearing. 4. THE Hiring Committee met on 7.12.2005 at the chamber of the Senior Superintendent of Post Offices, North Kolkata Division. It was further ordered that the Hiring Committee prior to deciding the claim of the petitioners would be under an obligation to grant opportunity of hearing. 4. THE Hiring Committee met on 7.12.2005 at the chamber of the Senior Superintendent of Post Offices, North Kolkata Division. THE minutes of the meeting so held is extracted below: "THE said Hiring Committee granted suitable opportunity of hearing to the authorised representatives of the petitioner before deciding the claim of the said petitioner regarding enhancement of the rent in respect of the premises in question. In course of discussion in presence of the authorized representatives of the petitioner, the Hiring Committee on going through the relevant papers felt that to assess the actual valuation of the premises in question the following documents are needed which are still to be received from the petitioner : 1) Sanctioned plan. 2) Year of construction. 3) Land Cost Certificate from Govt, registered office or Land Acquisition Office. 4) Proforma report in the prescribed form which was earlier sent to the petitioner on 25.1.05. THE Hiring Committee requested the petitioner to submit the above documents at earliest possible time not later than 10 days so that the Hiring Committee may come to a conclusive decision regarding proper valuation rent to the said premises, without any further delay. During discussion the authorized representatives of the petitioner expressed their inability to submit those documents. But the Hiring Committee again requested to the said authorized representatives of the petitioner to ensure submission of those documents within the stipulated time as because the Hiring Committee felt that those documents are very much relevant to make proper valuation of the rent of the post office premises in question." The petitioners upon receipt of the minutes of the meeting of the Hiring Committee replied through their learned Advocate. By letter dated 14.12.2005, it was communicated as follows: "As to the requirements made in the minutes of the meeting held on 7th instant, my client's contention is that since the Dept. of Post and Telegraphs are in occupation of portions of the building since construction of the building for over 40 years and in view of my client's furnishing site plan of the first floor there is no scope for furnishing the sanctioned plan and particulars of year of construction. of Post and Telegraphs are in occupation of portions of the building since construction of the building for over 40 years and in view of my client's furnishing site plan of the first floor there is no scope for furnishing the sanctioned plan and particulars of year of construction. As regards Land Cost Certificate, my client is not in a position to obtain and furnish the same, I understand you have addressed a letter to that effect to the concerned authority. My client is pursuing with such authority but is not very optimistic. As regards report in the prescribed form, my client is not in a position to fill up and send the same at present. However, please note that my client is expecting rent @ Rs.50/- per sq. ft. in respect of the first floor occupation as substantiated in the annexures to the writ petition filed by my client and copy whereof has been served on you. Further enquiries on behalf of my client made at the Registrar of Assurance, Kolkata reveals that in case of registration of conveyance the said office is valuing properties on Kalakar Street@ Rs.30 lakhs per katha of land and Rs. 5,000/- per sq.ft. in respect of building. It is significant to note that at the last assessment made by the Hiring Committee pursuant to which agreement dated 1st October, 1999 was entered into in respect of the same premises, assessment was made without the documents, now sought for." 5. BY a further letter dated 5.4.2007, the petitioners reiterated that sanctioned building plan was not traceable. It was also conveyed that at the time last revision of rent was effected in 1997, neither was any alleged prescribed form filed by them nor was it considered necessary to produce sanctioned building plan and Land Cost Certificate. 6. SINCE the Hiring Committee did not give its decision within the time specified by the Court in its order dated 16.11.2005, a contempt petition was moved. During pendency of such contempt petition, the Hiring Committee once again met on 5.8.2008 when the following resolution was adopted: 'The said Hiring Committee granted suitable opportunity of hiring to the authorized representatives of the landlord before deciding the claim of the said landlord regarding enhancement of rent in respect of premises in question. During pendency of such contempt petition, the Hiring Committee once again met on 5.8.2008 when the following resolution was adopted: 'The said Hiring Committee granted suitable opportunity of hiring to the authorized representatives of the landlord before deciding the claim of the said landlord regarding enhancement of rent in respect of premises in question. In course of discussion in presence of the authorized representatives of the landlord it is mutually agreed that revised rent to be assessed by the department on the basis of available documents submitted on behalf of the landlord. The Hiring Committee also admitted that the rent to be fixed immediately on the basis of available documents and as per existing norms of the department. The decision of the Hiring Committee will be the authorized representatives of the landlord very shortly." It is only thereafter that the impugned memo was issued and the decision contained therein conveyed to the petitioners. 7. NOTICING that, revised rent had been fixed, this Court disposed of the contempt petition on 8.8.2008 granting liberty to the petitioners to challenge the validity and/or correctness of the decision arrived at by the Hiring Committee regarding revision of rent. 8. MR. Mitra, learned Advocate representing the petitioners, contended that the official respondents did not disclose the basis for revision of rent. According to him, other portions of the premises have been let out to Reliance Webstores Ltd. It has been occupying an area of more or less 1700 sq. ft. on the ground floor and has been paying rent @ Rs.62.40 per sq. ft. Referring to the documents annexed to the petition in support of such assertion, he argued that the action of the official respondents without furnishing valid reasons is illegal and arbitrary and that while setting aside the memo the Court may direct the official respondents to forthwith enhance/revised rent in respect of the portion occupied by them according to the market rate on and from 21.3.2002. The writ petition has been resisted by the official respondents by filing a counter-affidavit. Certain circulars have been annexed thereto and it has been contended that the revised rent, as communicated by the impugned memo, was arrived at on the basis of such circulars. It would be convenient to reproduce here in below the contents of paragraph 15 of the said affidavit which read as follows: "15. Certain circulars have been annexed thereto and it has been contended that the revised rent, as communicated by the impugned memo, was arrived at on the basis of such circulars. It would be convenient to reproduce here in below the contents of paragraph 15 of the said affidavit which read as follows: "15. With reference to the statements made in paragraphs 35 and 26 of the said petition, save what are matters of record, all allegations contrary thereto are denied and disputed by me. It is stated that as per departmental circular dated 25.2.1992 the revision of rent of the buildings taken on lease by the department have to be assessed by the departmental Fair Rent Assessment Committee (FRAC). Here in the instant case as per departmental circular dated 29.05.1992, the 'Core' rent was calculated as well as market rate of current rent in the locality was obtained and those two documents were placed before FRAC. Thereafter, the FRAC after taking into account those two documents recommended the revised rent for the periods w.e.f. 21.03.2002 to 31,12.2006 and 01.01.2007 to . 31.12.2011. Any private company may pay much higher rent but that is irrelevant." 9. MR. Mondal, learned Advocate representing the official respondents, while referring to the aforesaid extract contended that no illegality was committed by the official respondents in arriving at the rate of revised rent payable to the petitioners and, therefore, the petitioners can have no cause for grievance. 10. I have heard learned Counsel for the parties and considered the materials on record. Even if one accepts the stand of the official respondents that they have been guided by the departmental circular dated 25.2.1992 read with subsequent circular dated 25.9.1992, the counter-affidavit is totally silent on the 'market rate of rent current in the locality' that was obtained. In the absence of particulars regarding current market rate of rent, whether or not the 'Core Rent' was appropriately calculated or not cannot be discerned. It is also not clear how the property was valued since it is one of the important factors in relation to revision of rent in terms of the circular dated 27.5.1992. In the absence of particulars regarding current market rate of rent, whether or not the 'Core Rent' was appropriately calculated or not cannot be discerned. It is also not clear how the property was valued since it is one of the important factors in relation to revision of rent in terms of the circular dated 27.5.1992. It appears to me that the official respondents by not indicating the valuation of the property and the current market rate of rent either in the impugned memo or in the counter-affidavit have precluded the Court to ascertain as to whether in the process of decision making the Hiring Committee had proceeded in the right direction or not. Strangely enough, the decision of the Hiring Committeee has also not been placed before the Court. The official respondents have displayed scant regard for the rule of law and by not giving complete particulars have made a conscious attempt to add to the woes of the petitioners who have been eagerly waiting for the last several years to have a proper revision of the rate of rent payable to them by the official respondents. It is clear from the materials on record that there has been no sincere attempt on the part of the official respondents to honour the orders passed by this Court in the earlier round of litigation. In exercise of my power of judicial review, I have no alternative but to hold that the process adopted by the official respondents for arriving at a just decision in respect of revision of rent has belied the trust reposed in them by the Court. Even after several adjournments granted in connection with the contempt petition, a hurriedly prepared decision not demonstrating any application of mind was placed before the Court on 8.8.2008 to avoid the rigours of contempt. That there has been gross miscarriage of justice is manifest, which requires to be remedied suitably. 11. IN the result, the impugned decision as communicated by letter dated 6/8/2008 (Annexure - P8) stands set aside. The official respondents are granted one further opportunity. The revised rent payable to the petitioners from 21/3/2002 shall be fixed by the Hiring Committee positively within twelve weeks from date of receipt of a copy of this order. 11. IN the result, the impugned decision as communicated by letter dated 6/8/2008 (Annexure - P8) stands set aside. The official respondents are granted one further opportunity. The revised rent payable to the petitioners from 21/3/2002 shall be fixed by the Hiring Committee positively within twelve weeks from date of receipt of a copy of this order. The petitioners shall not be advised to produce site plan or Land Cost Certificate or any other document except evidence relating to current market rate of rentable/Leasehold premises under occupation of commercial tenants/Lessees in the locale where the said premises is situate. If any valuation of the property is required to be obtained, the official respondents may appoint any surveyor or valuer from the panel maintained by this Court and none else. Copy of his report shall be made available to the petitioners. Evidence produced by the petitioners shall also be given due consideration. The current market rate as obtained by the official respondents and allegedly considered by the Hiring Committee earlier or if any new rate is ascertained shall be made available to the petitioners within three weeks from date of receipt of a copy of this order. The petitioners shall be heard before any final decision is taken. No document shall be looked into by the Hiring Committee unless the petitioners have been given a copy thereof or at least reasonable opportunity of taking notes therefrom. An appropriate reasoned decision shall be taken and conveyed to the petitioners within the time frame fixed above. 12. THE writ petition stands allowed with costs assessed at Rs. 5,100.00 to be payable to the petitioners by the official respondents within a month from date.