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2021 DIGILAW 675 (JK)

Shamsher Singh v. Union of India

2021-12-24

SANJAY DHAR

body2021
JUDGMENT : SANJAY DHAR, J. 1. According to the petitioner a building known as “Sukh Niwas” situated at Rajbagh, Srinagar, along with land measuring 04 kanals underneath and appurtenant thereto belonging to one late Col. Sukhdev Singh Samyal, was taken on rent by the respondents way back in the year 1968 on monthly rent of Rs. 900/- which was later on enhanced to Rs. 1500/- per month. Upon death of Col. Sukhdev Singh, his widow Smt. Chain Devi was declared legal heir of the deceased with respect to the aforesaid property and was she appointed her two sons, namely, Randeep Singh Samyal and Jagdeep Singh Samyal as her attorneys to look after the property and to receive rent on her behalf in equal proportions. The above named two persons received the rent of the building up to November 1989/March, 1991 @ Rs. 1500/- which was divided amongst the aforesaid persons in equal proportion. After the death of above named two persons, the rent was withheld by the respondents. 2. It is further averred that upon death of Randeep Singh and Jagdeep Singh, Smt. Sita Devi daughter-in-law of late Col. Sukhdev Singh Samyal was given the right to hold the property in question in terms of Government Order No. Rev (NDK) 111 of 2004 dated 10.06.2004. She appointed petitioner as her attorney and authorised him to look after the property and to deal with it. 3. It is further averred that on 30.06.2004, petitioner served a notice through his Advocate upon respondent No. 6 asking him to pay the arrears of rent @ Rs. 50,000/- from the date the same has remained unpaid and also to vacate the premises and to hand over its possession to the petitioner within a period of one month from the date of receipt of the notice. It is averred that respondent No. 6, in terms of order No. GWSP/A-1/2004-05 dated 06.09.2004, appointed a Board of Officers of Gulmarg Winter Project and authorized the said Board to conduct negotiations with regard to the settlement of rent. It is submitted that the Committee members held negotiations with petitioner and came to the conclusion that an amount of Rs. 40,000/- per month should be paid to him as rent. It is submitted that the Committee members held negotiations with petitioner and came to the conclusion that an amount of Rs. 40,000/- per month should be paid to him as rent. It is also submitted that the respondent No. 6, upon receipt of report dated 14.09.2004 from the Board of Officers, addressed a communication dated 20.09.2004 to respondent No. 5 whereby he sought necessary instructions in the matter. In the meanwhile, respondents without paying rent @ Rs. 40,000/- per month as was recommended by the Board of Officers of Gulmarg Winter Project, vacated the said building in the month of December, 2004. Thereafter petitioner again served a notice through his counsel upon respondent No. 3 bringing to his notice all the facts and a request was made to get the loss caused to the building assessed and to pay arrears of rent w.e.f. 1989/1991 to December, 2004 along with interest @ 18% within a period of one month from the date of receipt of the notice. 4. It is further case of the petitioner that despite receipt of notice dated 30.03.2005, no steps were taken by the respondents to pay the arrears of rent. In the meanwhile, in the year 2008, petitioner became owner of the property in question in his own right. After becoming owner of the property in question, petitioner again approached the respondents requesting them to pay damages on account of loss caused to the building as well as arrears of rent. Due to the persistent requests of the petitioner, a Committee was constituted by the respondents in the year 2011 to discuss the issue. However, the Committee did not meet and no action in the matter was taken. Ultimately petitioner served a notice dated 12.02.2014 through his counsel upon the respondents asking them to settle his claim pertaining to loss caused to the building and payment of arrears of rent of the building at enhanced rate of Rs. 50,000/- and 40,000/- per month. 5. With the aforesaid averments, petitioner has sought a direction upon respondents to pay the compensation on account of loss caused to the building in question by their overt and covert acts of omission and commission to be assessed by a team of experts. 50,000/- and 40,000/- per month. 5. With the aforesaid averments, petitioner has sought a direction upon respondents to pay the compensation on account of loss caused to the building in question by their overt and covert acts of omission and commission to be assessed by a team of experts. A further direction has been sought upon the respondents to pay arrears of rent of the building for the period commencing from 12/1989 and 04/1991 to December, 2004, to the petitioner @ Rs. 50,000/- and Rs. 40,000/- per month along with interest @ 18% per annum. 6. The petition has been contested by the respondents by filing a reply thereto. In their reply respondents have raised preliminary objection that the petitioner has raised disputed questions of fact which cannot be determined in these proceedings. It has been further contended that the petition is barred by delay and laches. Respondents have also contended that question of enhancement of rent and other ancillary subject matters are governed by the provisions of the Jammu and Kashmir Houses and Shops Rent Control Act, 1966, as such, the instant petition is not maintainable. 7. On merits, respondents have, while admitting that the building in question was taken on rent by them from the predecessor-in-interest of the petitioner in the year 1968, claimed that the rent at the agreed rates i.e. initially at Rs. 900/- and subsequently at Rs. 1500/- per month stands paid to the owners of the building. It has been claimed by respondents that rent was never enhanced beyond Rs. 1500/- per month but only the demand of enhancement of rent was made by the petitioner which was forwarded to the concerned competent authorities for approval but the same was not approved. It has been contended that rate of rent cannot be enhanced on the whims of the owner of a property. It is claimed that the report of the Board of Officers recommending enhanced rate of Rs. 40,000/- was only a recommendation which was never approved by the competent authority. It is further averred that when the competent authority did not give final assent to the report regarding enhancement of rent, the respondents decided to vacate the premises and, accordingly, the building in question was vacated. 8. 40,000/- was only a recommendation which was never approved by the competent authority. It is further averred that when the competent authority did not give final assent to the report regarding enhancement of rent, the respondents decided to vacate the premises and, accordingly, the building in question was vacated. 8. Regarding loss alleged to have been caused to the building due to its use by the respondents, it has been claimed by the respondents that the same involves complicated questions of fact and can be proved only by leading oral evidence and determination thereof cannot be undertaken in these proceedings. 9. I have heard learned counsel for the parties and perused the record of the case. 10. The preliminary objection raised by the respondents about the maintainability of the writ petition on the ground that subject matter of the same can be agitated by petitioner before the forum provided under the Jammu and Kashmir Houses and Shops Rent Control Act, 1966, is without any substance. The aforesaid legislation does not apply to the premises taken on rent by Government. A Full Bench of this Court in the case of Assistant Director Central Intelligence vs. Harnam Chand and Others, AIR 1979 J&K 33 , has, while interpreting the expression “Government” appearing in Section 1(3)(i) of the said Act, held that the said expression includes the Union Government as well. Thus, in view of Section 34 of the aforesaid Act, the said Legislation does not apply to the premises taken on rent by Government of India. The objections raised by the respondents is, therefore, without any merit. 11. Certain admitted facts which emerge from the pleadings of the parties and the documents placed on record are that the building in question was leased out by predecessor-in-interest of the petitioner to the respondents in the year 1968. It also emerges that initially rate of rent was fixed at Rs. 900/- per month which was subsequently enhanced to Rs. 1500/- per month. Although respondents in their reply have claimed that the rate of rent was enhanced with effect from 23.07.1997 yet undisputed documents on record, particularly letter dated 20.09.2004 of respondent No. 6, clearly indicates that initially rent was fixed at Rs. 900/- per month and thereafter it was enhanced to Rs. 1500/- per month. Although respondents in their reply have claimed that the rate of rent was enhanced with effect from 23.07.1997 yet undisputed documents on record, particularly letter dated 20.09.2004 of respondent No. 6, clearly indicates that initially rent was fixed at Rs. 900/- per month and thereafter it was enhanced to Rs. 1500/- in terms of Order No. 5-TMP(15)77/Tourism dated 23.07.1977, meaning thereby the enhanced rate of rent was made applicable from the date of aforesaid order and not from 23.07.1997, as has been claimed by the respondents. 12. Petitioner claims that rent was not paid to his predecessor-in-interest from December 1989 and April, 1991 whereas respondents have claimed that entire rent whatever was due to the predecessor-in-interest of the petitioner stands paid. In this regard it is to be noted that in the same letter of respondent No. 6, it is clearly recorded that the rent was paid to Randeep Singh Samyal up to November, 1989 @ Rs. 750/- per month and to Shri Jagdeep Singh Samyal up to March, 1991 @ Rs. 750/- per month and when both of them died, rent of the building remained withheld till the date of issuance of said letter. 13. Petitioner has also placed on record an inter-departmental letter addressed to respondent No. 6 asking him to convene a meeting on 26.12.2011 to discuss the rental issue (1991-2004) of the premises in question which by that time had already been vacated by the respondents. This means that even on 26.12.2011, arrears of rent had not been paid to the petitioner. Authenticity of these communications have not been disputed by the respondents in their reply. That being the case, the contention of respondents that they had paid the rent whatever was due to Sita Devi appears to be without any basis, particularly when in the year 2008 itself, petitioner had become the owner of the property in question. The inter-departmental communications, which are not in dispute, show that even in December, 2011, the arrears of rent had not been settled by the respondents. So, there was no question of respondents paying the same to Sita Devi thereafter as she had ceased to be the owner of the property way back in the year 2008 itself. The inter-departmental communications, which are not in dispute, show that even in December, 2011, the arrears of rent had not been settled by the respondents. So, there was no question of respondents paying the same to Sita Devi thereafter as she had ceased to be the owner of the property way back in the year 2008 itself. Even otherwise, respondents have not placed on record any receipt or document to show that the arrears of rent have been paid by them to the petitioner or his predecessor-in-interest. 14. It has been contended by the respondents that there has been delay and laches on the part of petitioner in pursing his remedy. It is contended that petitioner cannot lay a claim relating to arrears of rent for the period pertaining to the years 1989/1991 to 2004 and file a writ petition in the year 2014. 15. In the above context, it is to be noted that after the death of Randeep Singh Samyal and Jagdeep Singh Samyal, respondents withheld the payment of rent to the owners of property. Obviously, without stepping into the shoes of previous owners, nobody could claim the arrears of rent from the respondents. When Sita Devi daughter-in-law of late Col. Sukhdev Samyal became owner of the property in terms of Government Order dated 10.06.2004, she immediately raised her claim with regard to payment of rent with the respondents by serving legal notices upon them. Prior to stepping into shoes of previous owner, Sita Devi had no cause of action to demand arrears of rent from the respondents. Right from 2004 till the filing of the petition. The petitioner and his predecessor-in-interest have been pursuing the matter with regard to payment of arrears of rent from respondents regularly and even Board of Officers and Committees have been constituted by the respondents from time to time for looking into the matter relating to payment of arrears of rent and enhancement of rate of rent. The issue with regard to payment of arrears of rent to petitioner was alive even in the year 2012 when respondent No. 6 addressed a communication to Director, Tourism, Kashmir, and Executive Engineer, CPWD, Srinagar, requesting them to make their representatives available for the Board constituted for resolving the issue of payment of arrears of rent. The issue with regard to payment of arrears of rent to petitioner was alive even in the year 2012 when respondent No. 6 addressed a communication to Director, Tourism, Kashmir, and Executive Engineer, CPWD, Srinagar, requesting them to make their representatives available for the Board constituted for resolving the issue of payment of arrears of rent. So, it is not a case where petitioner has allowed his claim regarding payment of arrears of rent to become stale but it is a case where the issue regarding payment of arrears of rent has been vigorously pursued by the petitioner and his predecessor-in-interest. Therefore, it cannot be stated that there is any delay or laches on the part of petitioner in pursuing his remedy. Thus, the contention of the respondents in this regard is found to be without any merit. 16. That takes us to the question as to whether petitioner is entitled to recovery of arrears of rent from the respondents and if so, at what rate and for which period. According to the petitioner, respondents are obliged to pay arrears of rent at the enhanced rate of Rs. 40,000/- per month. In this regard petitioner has placed heavy reliance upon the recommendation of Board of Officers dated 14.09.2004, whereby the Board has recommended that rate of rent in respect of the property in question should be Rs. 40,000/- per month. Respondents have taken a specific stand that this recommendation was never approved by the competent authority, meaning thereby that the rate of rent recommended by the Board has not been accepted by the respondents. It is further claimed by respondents that because the enhanced rate of rent was not acceptable to them, they decided to vacate the premises. 17. So far as the fixation of rent of a demised premises is concerned, the same is a contractual matter between landlord and the tenant. Unless there is some legally enforceable contract with regard to rate of rent agreed between landlord and the tenant, it would not be open to a Court to issue a direction to the tenant to pay rent at the rate claimed by the landlord. Mere recommendation of the Board of Officers, which has not been agreed to by the tenant in this case, does not form a binding contract between landlord and the tenant. Mere recommendation of the Board of Officers, which has not been agreed to by the tenant in this case, does not form a binding contract between landlord and the tenant. That being the case, respondents cannot be asked to pay rent at the enhanced rate. The only option available in these circumstances for a land lord is to ask the tenant to vacate the premises, which in the instant case respondents have done on their own. Therefore, contention of the petitioner that he is entitled to arrears of rent at Rs. 40,000/- or Rs. 50,000/- per month is not tenable. 18. As already noted, as per the material on record petitioner or his predecessor-in-interest have not been paid arrears of rent @ Rs. 1500/ per month from April, 1991 to December, 2004 i.e. up to the date of vacation of the demised premises. Besides this, one half share of rent i.e. Rs. 750/- has not been paid to the owner of the property from December, 1989 to March, 1991. This amount is also outstanding against the respondents making it total of Rs. 2,59,500/- which is due to the petitioner from the respondents. This amount is legally payable by the respondents to the petitioner being the undisputed arrears of rent calculated at agreed rate of rent. 19. That takes us to the claim of petitioner as regards damages that have been allegedly caused to demised premises by use and occupation of the same by respondents. In this regard petitioner has not placed on record any document or material to show that the building in question suffered any damage due to use and occupation of the respondents. Petitioner has not even quantified the loss alleged to have been caused to his building. The respondents have specifically denied this assertion in their reply. So, the question whether any damage has been caused to the demised premises by use and occupation of respondents and if so, what is the quantum of damage caused to the building, are the issues which cannot be decided without leading oral evidence and without subjecting the witnesses to cross-examination. Thus, so far as this part of claim of the petitioner is concerned, the same involves determination of intricate and complicated questions of fact which cannot be done in these proceedings. 20. Thus, so far as this part of claim of the petitioner is concerned, the same involves determination of intricate and complicated questions of fact which cannot be done in these proceedings. 20. For the foregoing reasons, the writ petition is partly allowed and the respondents are directed to pay an amount of Rs. 2,59,500/- (rupees two lakh fifty-nine thousand and five hundred only) as arrears of rent to the petitioner along with interest @ 6% per annum from the date rent had become due till the date of its actual payment. So far as the claim of the petitioner regarding compensation for alleged damage caused to the demises premises is concerned, it is provided that the petitioner shall be at liberty to avail the appropriate remedy available to him under law.