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SMT. INDU SRIVASTAVA & OTHERS versus STATE OF U.P. & OTHERS

High Court of Judicature at Allahabad

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Smt. Indu Srivastava & Others v. State Of U.P. & Others - WRIT - A No. 24399 of 1998 [2006] RD-AH 725 (10 January 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

(Reserved)

Civil Misc. Writ Petition No. 24399 of 1998

Smt. Indu Srivastava and others Versus State of U.P and others.

Hon'ble S.U.Khan J

Building in dispute admeasuring about 2900 square yard and containing 32 rooms was in tenancy occupation of State of U.P respondent No.1 in which Government Training School Sheo Kuti, Allahabad respondent No.2 was established. Landlord petitioners filed an application before R.C & E.O Allahabad under section 21(8) of U.P Act No. 13 of 1972 for enhancement of rent from Rs. 285/- per month to Rs. 23453.40/- per month. Landlords filed Valuer's report giving the valuation of land and building as Rs. 2814409/- and prayed that 1/ 120   of the total valuation be fixed as monthly rent as per formula provided under section 21(8) of the Act. R.C & E.O accepted the case of the landlord in toto and by order dated 22.2.1993, enhanced the rent to Rs. 23453.40/- with effect from March 199 1. Against the said judgment and order respondent Nos. 1 and 2 filed appeal being Rent Control Appeal No. 97 of 1993. VII Additional District Judge, Allahabad through judgment and order dated 29.4.1998, allowed the appeal, set-aside the order of the R.C & E.O. completely and rejected the application under section 21 (8) of the Act, hence this writ petition by the landlords.

One of the points taken by the appellate court for allowing the appeal was that application for enhancement of rent was not maintainable as no notice under section 80 C.P.C had been given before filing the said application. This view is utterly erroneous in law. Prior notice of two months is necessary only before filing suit under section 80 C.P.C. No such notice is required before instituting any proceedings except suit. Before filing application for enhancement of rent under section 21(8) of the Act, notice under section 80 C.P.C is not at all required as the said application is not suit.

Lower appellate court also held that report of R.C Agarwal valuer filed on behalf of landlord was not admissible in evidence as in the report filed before R.C & E.O words ''true copy' were mentioned. This point is also not tenable, as the valuer Sri R.C Agarwal had also filed his affidavit reiterating the contents of the report. The second point for rejecting the report taken by the appellate court is that Sri R.C Agarwal was not a registered valuer. This point is also not tenable, as in the report as well as in Para 1 of the affidavit of R.C.Agarwal, it was stated that he had retired from the post of Deputy Superintending Engineer, U.P.S.E.B and he was also a registered valuer for Income Tax, Wealth Tax and Gift Tax. The third point taken by the appellate court for rejecting the report is that no basis for determining the valuation of land and building was given by the valuer.

The tenant respondents 1 and 2 had not filed any valuer's report. Extent of accommodation was shown in the report of Senior Rent Control Inspector also, copy of which is annexure 2 to the writ petition. Lower appellate court has also held that rate list circulated by Collector under Stamp Act/ Rules was also not filed.

In the valuer's report, the market value of the land has been determined to be Rs. 500/- per square yard however no basis for the same is given. No specific incidence of sale of any adjoining land has been mentioned in the report. Cost of reproduction at the time of inspection has been taken to be Rs. 200/- per square foot and Rs. 140 per square foot for different types of constructions in the building in dispute. Thereafter it appears that 1.25 percent per year has been deducted. No basis for determining the cost of construction to be Rs. 200/- per square foot and Rs. 140/- per square foot has been mentioned in the report. R.C & E.O simply took the valuer's report to be conclusive evidence of valuation without even mentioning the details thereof in its order.

Undisputedly the building in dispute has now been vacated by respondents 1 and 2, however there is some dispute regarding date of vacation. At one stage, during arguments it was stated by learned counsel for the landlord petitioners that building in dispute was vacated in or about October 1993. However on the next date a supplementary affidavit was filed stating therein that building was vacated on 27.12.1996 and copy of certificate issued by the Principal of Zila Shiksha aur Prashikshan Sansthan Manjhanpur, Allahabad (now Kaushambi) to that effect was also filed. However in Para 23 of the counter affidavit, it has been stated that building was vacated in the year 1993. In view of the fact that application for enhancement of rent was filed in the year 1991 (15 years before) and the fact that tenanted building has already been vacated by tenant respondent Nos. 1 and 2, it will not be appropriate to remand the matter to R.C & E.O for reconsideration of the market value of the property in dispute.

Accordingly in order to bring to an end the dispute in between the parties and in the interest of justice both the impugned orders are modified and it is directed that 50 percent of the rent fixed by the R.C & E.O (i.e. Rs. 12000/- per month in round figures) shall be payable by the respondents No. 1 and 2 to the landlord petitioners with effect from March 1991 till the date of actual vacation. The balance rent from 1.3.1991 till 30.6.1993 (after deducting the rent paid at the old rate) shall be paid by respondents 1 and 2 to the petitioners in two installments. First installment must be paid on or before 31.7.2006 and the other installment must be paid on or before 31.12.2006. If both the parties are able to determine the date of actual vacation amicably then arrears of rent till the said date shall be paid by respondents 1 ad 2 to the petitioners. However if there is any dispute then suit for recovery of rent at the aforesaid enhanced rate with effect from 1.7.1993 till actual date of vacation may be filed by landlord petitioners against tenant respondents 1 and 2. If such a suit is filed, the date of actual vacation shall be decided in the said suit.

The prayer of learned counsel for landlord petitioners for award of interest is rejected.

Accordingly writ petition is disposed of.

Dated: 10.1.2006

Waqar


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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