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2012 DIGILAW 134 (PAT)

Yadubanshi Rajesh v. State of Bihar

2012-01-23

RAVI RANJAN

body2012
ORDER Heard learned counsel for the petitioner, State and respondent nos. 3 and 4. Petitioner seeks direction to the respondents for execution of lease deed for the shop constructed from the money of the petitioner, as claimed by him, and further for fixing appropriate, proper and reasonable rent of the said shop in conformity with the rent of such shops of the Zila Parishad of other districts. 2. Short fact of the case, according to the petitioner is, that in the year 1994-95, the Zila Parishad Madhpura came out with a scheme offering to construct shops on its land with the money provided by the persons ready to take the shops as a lease hold on the rent fixed. However, it has been urged on behalf of the petitioner that rent of Rs.3/- per square feet has been fixed which is excessive and in above view of the matter, petitioner has filed the representation before the Chairman, District Board, Madhepura with a request to fix it at the rate of Rs.1.50/- per square feet. It has also been stated by the petitioner in the writ application that in the adjacent Zila Parishad of Saharsa district the rent has been fixed at Rs.1.80/- per square feet for the first five years with Clause for its enhancement by 10% after five years. Learned counsel for the petitioner has also placed reliance upon a decision of this Court dated 20.07.2005 passed in C.W.J.C. No.14532 of 2003 whereby, the court has taken a view that lease provides that for the first five years the rent should be Rs.1.80/- per square feet and that could be increased by 10% after expiry of the first five years. In such view of the matter, for the first five years the respondents could charge only Rs.1.80/- per square feet from the petitioner and thereafter they can enhance 10 % that would be at the rate of Rs.1.98/- per square feet as per the lease. However, it appears that the rent was claimed at the rate of Rs.4/- from Ist April, 2001 and the same was struck down holding that it was contrary to the terms as contained in the concerned deed of lease. It has been submitted on behalf of the petitioner that neither any agreement has been executed till date nor any decision has been taken for reducing the rent to Rs.150/- per square feet. 3. It has been submitted on behalf of the petitioner that neither any agreement has been executed till date nor any decision has been taken for reducing the rent to Rs.150/- per square feet. 3. A counter affidavit has been filed on behalf of respondent nos. 2 and 3 whereunder, a stand has been taken that the Zila Parishad, Madhepura had come up with a scheme for construction of shops on the Dak Bunglow Road, Madhepura from the money of the persons who would opt for the shops with the provisions that 50% of the rent fixed per month shall be adjusted from the money deposited for construction and the rest 50% to be paid as rent till the entire money is adjusted. Thereafter, 100% amount would be payable as rent. A stand has been taken that the petitioner has deposited Rs.1,41,532/- and after construction of the shop he came in possession of the same and is running his business of hotel since 1996. A letter dated 29.05.2000 had been written by respondent no.2 to the petitioner and five others informing them that the rent of the shop had been fixed at the rate of Rs.3/- per square feet and they were required to come for agreement to be executed. However, the petitioner did not turn out for same and had made a written request for reducing the rent, however, the same was turned down vide letter dated 12.10.2006, a copy of which stands appended as Annexure- C to the counter affidavit. That letter appears to have been received by the petitioner on 16.10.2006 (Annexure- C/1). Thereafter, he has filed this writ application. It has been further submitted that a stand has been taken in the aforesaid letter that all the other similarly situated persons are paying rent at the rate of Rs.3/- per square feet and in that view thereof, it would not be possible to re-fix the rent only for the petitioner and, thus, his request was turned down. The petitioner has not challenged the letter, however, he seeks direction for re-fixing appropriate, proper and reasonable rent. No rejoinder to the counter affidavit has been filed on behalf of the petitioner. It is very unfortunate that for some reason or other the agreement which was required to be executed in the year 2000 itself could not be executed till date. No rejoinder to the counter affidavit has been filed on behalf of the petitioner. It is very unfortunate that for some reason or other the agreement which was required to be executed in the year 2000 itself could not be executed till date. Thus, the petitioner is also to be blamed as he has not deposited the required rent and on the pretext that the same was excessive whereas other persons were depositing rent at such rate. However, fixing the rent is within the scope of the concerned Zila Parishad itself who has to look into the various aspects of the matter and this Court would refrain from intervening in such exercise by directing the authorities to fix the rent at a particular rate unless the same is excessively high and shocking to the judicial conscience. So far the decision of this Court, as contained in Annexure-4, is concerned that is clear distinguishable on the fact inasmuch as in that case it appears that the deed of lease was already executed and one of the condition was that the Zila Parishad would charge rent at the rate of Rs.1.80/- per square feet which could be revised after first five years by enhancing the same by 10%. However, it appears that the rent was fixed to be Rs.4/- from Ist April, 2001. That was struck down in view of the fact that same was against the agreement between the parties. In the present case, admittedly, no agreement has been executed till date and a stand has been taken by Zila Parishad that all the similarly situated persons are paying rent at the rate of Rs.3/- per square feet per month. This averment has not been denied and questioned by the petitioner by filing any rejoinder thereof. So far rent fixed by other Zila Parishads is concerned, it would not be proper for this Court to hold that every Zila Parishad should charge similar rent in the entire State of Bihar as the rent of the shop would depend upon its location, cost of plot/property and many other relevant factors. 4. In above view of the matter, the rent fixed to be Rs.3/- per square feet cannot be held to be excessive one so that the same requires interference of this Court under Article 226 of the Constitution of India. 4. In above view of the matter, the rent fixed to be Rs.3/- per square feet cannot be held to be excessive one so that the same requires interference of this Court under Article 226 of the Constitution of India. However, the parties are required to execute the agreement for the said purpose. Since the order is passed in the presence of learned counsel for the petitioner, let the petitioner appear before the concerned authority, if he desires to execute the agreement, within three months. In that case, the respondents would be obliged to execute the same as admittedly they have allotted the shop to the petitioner. Petitioner would pay the dues before the execution of the agreement. However, if the petitioner does not turn out for execution for the agreement within the stipulated time, then the authorities will be at liberty to take action in accordance with law. It is made clear that the petitioner has not raised any other ground at the time of hearing of this application except those which stand considered as above. Accordingly, this writ application stands disposed of.