Research › Search › Judgment

Jharkhand High Court · body

2019 DIGILAW 1228 (JHR)

Satya Pal Chawla v. Parmanand Singh

2019-07-02

SUJIT NARAYAN PRASAD

body2019
JUDGMENT : The instant writ petition is under Article 226 of the Constitution of India whereby and whereunder the following reliefs have been sought for: (i). For quashing order dated 21.05.2019 passed by the Commissioner, Singhbhum (Kolhan) Division, Chaibasa in H.R.C. Revision No. 09 of 2018, whereby and whereunder, the Revision preferred by the petitioners has been dismissed and; (ii). For quashing order dated 13.04.2018 passed by the Deputy Commissioner, East Singhbhum in H.R.C. Appeal No. 12 of 2015-16, arising out of H.R.C. Case No. 19 of 2014 filed before the Sub Divisional Officer-cum-Rent Controller under the Jharkhand Buildings (Lease, Rent & Eviction) Control Act 2011 (herein after referred to as “Act, 2011”). 2. Brief facts of the case, as per the pleadings made by petitioners in the instant writ petition, is that they have been inducted as monthly tenants of the building known as “Bari Mansion” since 1952-53, situated at Juncture of Sakchi Boulevard, N. Road, Bistupur and from the date of inception of the tenancy, the petitioners have been paying monthly rent to the respondent, which is being duly acknowledged by the respondent. The sole respondent has made an application under Sections 9, 11 and 12 of the Act, 2011 against 11 tenants including the petitioners, praying therein for enhancement of prevailing current commercial rent at the rate of Rs. 200/-per sq. ft., which was registered as H.R.C. Case No. 19 of 2014. Pursuant thereto, the petitioners appeared and filed their written statement raising several objections regarding maintainability of the aforesaid H.R.C. Case stating that the condition of the building is not good and respondent is not taking appropriate steps for maintenance of the building. Upon such objections, the Rent Controller directed for conducting an enquiry, which was conducted by Assistant Director, Panchayat, Dhalbhum, Jamshedpur, who submitted his report vide letter no. 22 dated 05.08.2014 stating therein that the allegation of the petitioner regarding condition of the building is found to be true and, therefore, opinion has been expressed by him for maintenance/renovation of the building. However, the aforesaid H.R.C. Case No. 19 of 2014 was disposed of vide order dated 06.06.2015, whereby the Sub Divisional Officer-cum-Rent Controller enhanced the rent at the rate of Rs. 25/- per sq. ft. 3. However, the aforesaid H.R.C. Case No. 19 of 2014 was disposed of vide order dated 06.06.2015, whereby the Sub Divisional Officer-cum-Rent Controller enhanced the rent at the rate of Rs. 25/- per sq. ft. 3. The petitioners being dissatisfied with the said order preferred appeal being H.R.C. Appeal No. 12 of 2015-16 under Section 36 of the Act, 2011, which was dismissed vide order dated 13.04.2018 without any reasonable ground and in a very mechanical and arbitrary manner, therefore, the petitioner filed revision petition being H.R.C. Revision No. 9 of 2018 under Section 26 of the Act, 2011 before the Commissioner, Singhbhum (Kolhan) Division, Chaibasa, which was disposed of vide order dated 21.05.2019 affirming the order passed by Deputy Commissioner, East Singhbhum, Jamshedpur. Against the orders aforesaid, the present writ petition has been filed by the petitioners. 4. The grounds for assailing the impugned order, as has been taken by the petitioners, is that there is no compliance of provisions of Section 12 (3) of the Act, 2011, which stipulates that before exercising the power, as conferred under Section 12 of the Act, 2011, upon the Rent Controller regarding fixation of standard rent, the condition as stipulated under Sub-section 3 of Section 12 is liable to be fulfilled that the rent should be reasonable having regard to the location and condition of the building and the amenities provided therein. According to the petitioners, since the aforesaid building is not in good condition, therefore, that aspect ought to have been considered considering the report furnished by the concerned authority in this regard, having not done so, the Rent Controller has acted contrary to the provisions as contained in 12 (3) of the Act, 2011. 5. Mr. Manish Kumar Mishra, learned counsel has put his appearance for the sole respondent-Parmanand Singh. 6. He has submitted that there is consideration of all the conditions as stipulated in Section 12 (3) of the Act, 2011 by the Rent Controller and the authority also considered the enquiry report and only thereafter, the Rent Controller has declined the prayer to enhance the rent to the extent of Rs. 200 per sq. ft. rather it has been fixed at the rate of Rs. 25 per sq. ft. only on the basis of condition of building. 200 per sq. ft. rather it has been fixed at the rate of Rs. 25 per sq. ft. only on the basis of condition of building. He has further submitted that petitioners have preferred a proceeding under Section 16 of the Act, 2011, in which appearance of parties is complete and now the matter is proceeding for hearing, therefore, there cannot be any interference so far as order passed in terms of Section 12 of Act, 2011 is concerned. 7. His further submission is that in Chapter II of the Act, 2011 deals with “Regulation of Rent” whereas Chapter III of the Act, 2011 in particular in Section 16 of the Act, 2011 speaks about “Landlord's responsibility” therefore, both the proceeding, initiated under Section 12 and Section 16 cannot be mixed together. The petitioner has already initiated a proceeding under Section 16 of the Act, 2011 but instead of pursing the said proceeding, the petitioner is raising the issue in an order passed under Section 12 of the Act, which is not permissible. 8. Having heard learned counsel for the parties and after appreciating the rival submissions of the parties, this Court deems it fit and proper, for proper adjudication of the case, to discuss the provisions of Section 12 and Section 16 of the Act, 2011. 9. Chapter II speaks about “Regulation of Rent”, wherein provision has been indicated for the Controller to fix the standard rent, on an application made to him in this behalf in respect of the building in question, for ready reference and for proper adjudication of the matter, Section 12 of the Act, 2011 is reproduced herein below: “12.Controller to fix standard rent. - (1) The Controller shall, on an application made to him in this behalf, in the prescribed manner, fix in respect of any building: (i) the standard rent as per the provisions of Section 9, (ii)the other charges payable as per the provisions of Section 10, and (iii)the enhancement in rent as per provisions of Section 11. (2) In fixing the standard rent of any building or determining the other charges payable or enhancement of the rent, the Controller shall fix or determine or enhance the amount which appears to him to be reasonable having regard to the provisions of Section 9 or Section 10 or Section 11, as the case may be, and the other circumstances of the case. (3) Where for any reason if it is not possible to fix the standard rent of any building on the principles set forth in Section 9, the Controller may fix such rent as would be reasonable having regard to the location and condition of the building and the amenities provided therein, and where there are similar or nearly similar buildings in the locality, having regard also to the rent payable in respect of such buildings. The controller would obtain consent of both the parties before final fixation of the standard rent and the date of its applicability. (4) The standard rent shall in all cases be fixed for a tenancy of twelve months. After every twelve months, it shall be fixed again on the principles set forth in Section 11. (5) In fixing the standard rent of any building under this section, the Controller shall fix the standard rent thereof in an unfurnished state of the building and may also determine any additional charge to be payable on account of any fittings or furniture supplied by the landlord and it shall be lawful for the landlord to recover such additional charge from the tenant. (6) In fixing the standard rent or determining the other charges payable or enhancing rent in respect of any building under this Section, the Controller shall specify the date from which the amount, so fixed or determined or enhanced shall be deemed to have effect. Provided that, in no case the date so specified shall be earlier than the date of filing of the application for the enhancement of the standard rent: Provided further that if the increase is because of improvement, addition or structural alteration, it shall come into effect from the date of completion of such improvement, addition or alteration. (7) The Controller may, while fixing standard rent or determining other charges payable or enhancing the rent, order for payment of the arrears of amount due by the tenant to the landlord in such number of instalments as he deems proper. 10. It is evident from the aforesaid provisions that standard rent can be fixed as per the condition stipulated in Section 9. Section 9 (1) of the Act, 2011 stipulates: “9. Standard Rent. 10. It is evident from the aforesaid provisions that standard rent can be fixed as per the condition stipulated in Section 9. Section 9 (1) of the Act, 2011 stipulates: “9. Standard Rent. - (1) Standard Rent, in relation to any building, means the rent calculated on the basis of five per cent per annum of the aggregate amount of the cost of construction and the market price of the land comprised in the building in the year of construction.” 11. Section 10 of the Act, 2011 provides the other charges payable, besides the rent. Section 10 (1) of the Act, 2011 reads as under: “10. Other charges payable. - (1) A tenant shall be liable to pay to the landlord, besides the rent, the following charges, namely: - (a) charges, not exceeding fifteen per cent of the rent for the amenities; or as agreed to by the landlord and the tenant; (b) maintenance charges not exceeding ten percent of the rent: or as agreed to by the landlord and the tenant; and (c) without prejudice to the liability of landlord, one-twelfth of yearly property tax in relation to the building payable to the municipality or the municipal corporation.” 12. Section 11 of the Act, 2011 provides the enhancement of rent of residential and non-residential buildings, which reads as under: “11.Enhancement of rent. - The standard rent fixed for any building shall be enhanced every year at seventy-five per cent of annual inflation rate based on wholesale price index in the case of residential buildings and one hundred per cent of such rate in the case of non-residential buildings.” 13. It is further evident that for fixing the standard rent of any building, residential or non-residential, the other charges payable or enhancing of the rent, the Controller shall fix it determining or enhancing the amount which appears to him to be reasonable having regard to the provisions of Section 9 or Section 10 or section 11, as the case may be, and the other circumstances of the case. 14. 14. It is further evident that where for any reason if it is not possible to fix the standard rent of any building on the principles set forth in Section 9, the Controller may fix such rent as would be reasonable having regard to the location and condition of the building and the amenities provided therein, and where there are similar or nearly similar buildings in the locality, having regard also to the rent payable in respect of such buildings. 15. Therefore, the aforesaid provisions are in two parts; paying arrears for the rent so fixed and for fixation of the standard rent. 16. The standard rent would be fixed keeping in view the principles set forth in Section 9 or 10 or 11 of Act, 2011; or if it is not possible to fix the standard rent the Controller may fix the rent as would be reasonable having regard to the location and condition of the building and the amenities provided therein. 17. This Court on the basis of aforesaid legal position has examined the order passed by Rent Controller wherefrom, it is evident that the Revision Application (H.R.C Revision No. 09 of 2018) has been considered keeping in view the provisions of Section 9 and 11 of the Act, 2011 in exercise of power conferred under the Act. 18. In the backdrop of the aforesaid provisions it is to be seen whether the argument as has been advanced by learned counsel for the petitioner having regard to applicability of provisions of Act, 2011 is sustainable. 19. It is evident from the order passed by the Rent Controller that the consideration has been made with respect to provisions of Section 9 and 11. Section 9 stipulates for fixation of standard rent while Section 11 stipulates for enhancement of standard rent of a building every year at seventy-five per cent of the annual inflation rate based on wholesale price index in the case of residential buildings and one hundred per cent of such rate in the case of nonresidential buildings. 20. In the impugned order, the Rent Controller has considered the conditions, as stipulated under Section 11 of Act, 2011 by considering the annual inflation rate based in wholesale price index since it is admitted case of the petitioners that the rent was being paid at the rate of 5 per sq. 20. In the impugned order, the Rent Controller has considered the conditions, as stipulated under Section 11 of Act, 2011 by considering the annual inflation rate based in wholesale price index since it is admitted case of the petitioners that the rent was being paid at the rate of 5 per sq. feet and, therefore, if the wholesale price index would be taken into consideration the enhancement from 5 to 25 per sq. ft. cannot be said to be 'not fair'. 21. It further appears from the order passed by the Rent Controller that all the contentions, as has been raised by the petitioner, regarding the condition of building in question, the answer has been given that since the building is old and its condition is not good, therefore, the request, as has been made for fixing the rent of the tune of Rs. 200 per sq. ft. by the respondent, it has been fixed at the rate of Rs. 25/-per sq. ft. Therefore, it cannot be said that there is no consideration about the report appertaining to condition of the building but the rent controller has considered the applicability of Section 9 read with Section 11 of the Act, 2011. 22. So far as the contention reiterated by the petitioner that the building condition is bad it needs repair, herein that under Chapter III of the Act, 2011 in Section 16 landlord's responsibility has been dealt with. For ready reference, Section 16 of the Act, 2011 is reproduced herein below: “16. Landlord's responsibility. - (1)Every landlord shall carry out the repairs which he is bound, under any law, contract or custom, to make to a building in possession of a tenant. Explanation. - In this sub-section, “repairs” include annual white-washing, re-colouring and periodical repairs. (2)If the landlord fails to carry out white-washing once in every year, re-colouring once in three years and periodical repairs, which he is bound to make, the tenant may by notice, require him to carry out the same within one month from that date of service of the notice, and, on the landlord's failure to do so within the said period, the tenant may himself carry out the same at a cost not exceeding one month's rent for the building and deduct such cost from the rent. (3)If the landlord neglects to carry out repairs, other than those referred in sub-section (1), which he is bound to make, the Controller shall, on an application by the tenant, which shall specify the approximate cost of such repairs, cause a notice to be served on the landlord to appear and show cause, within such time as may be fixed in the notice. (4)If the landlord does not appear in obedience to the notice of if he appears but fails to satisfy the Controller as to why he should not be directed to carry out the repairs or such of them as he finds the landlord is bound to make, the Controller shall after making such further inquiry as may be necessary, direct him to carry out the same within a time to be fixed, and on the landlord's failure to comply with such direction, the Controller may permit the tenant to carry out such repairs at a cost not exceeding such amount as may be specified in the order and to recover such cost from the land. It shall, thereafter, be lawful for the tenant to carry out such repairs and to deduct the cost thereof from the rent or recover it otherwise from the landlord as if it were a debt due to him by the landlord. Provided that if, the Controller is satisfied that the repairs involved were due to the negligence of the tenant, he will order the tenant to make such repairs and the cost of repair shall be borne by the tenant and the same shall not be recoverable from the landlord by deduction from the rent.” 23. It is evident from the aforesaid provisions that it is the responsibility of the landlord to carry out repairs and if he neglects to carry out repairs, the Controller shall on application by the tenant would specify the appropriate cost of such repairs, cause a notice to be served on the landlord to appear and show cause, within such time as may be fixed in the notice. 24. Therefore, Section 12 and Section 16 of the Act, 2011 lies in two different fields. S 25. Section 12 provides to fix the standard rent by the Controller whereas Section 16 speaks for landlord's responsibility, so far it relates to repair of the building is concerned. 26. 24. Therefore, Section 12 and Section 16 of the Act, 2011 lies in two different fields. S 25. Section 12 provides to fix the standard rent by the Controller whereas Section 16 speaks for landlord's responsibility, so far it relates to repair of the building is concerned. 26. It is the admitted case of the petitioner that petition under Section 16 (3) of the Act, 2011 has been filed by him being H.R.C. Case No. 50 of 2016, in which, the parties have entered their appearance, therefore, the issue which has been raised by petitioner for fixing the standard rent fixed on the ground of condition of the building shall have no bearing in the proceeding initiated under Section 12 (3) of the Act, 2011 keeping the law and fact into consideration that a proceeding under Section 16 (3) is already going on before the competent Rent Controller and therefore the arguments advanced on behalf of the petitioner have got no force. Here, the order passed by the rent controller is affirmed by the appellate as well as by the revisional authority. 27. Since there is concurrent finding of the three consecutive authorities therefore, as per the discussions made herein above, this Court is of the view that impugned orders do not deserve to be interfered with. 28. In view of the discussions, made herein above, this writ petition stands dismissed. 29. However, it is made clear that since H.R.C. Case No. 50 of 2016 is going on and parties have entered their appearance, therefore, the Rent Controller is directed to dispose of the same without any further delay preferably within a period of six months from the date of receipt of copy of this order. 30. Needless to say that the petitioner shall have to pay the rent at the enhanced rate, so fixed by the Rent Controller along with arrears and if the arrears is not paid within a period of one month, the Rent Controller shall have liberty to proceed in accordance with law.