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SMT. SUDHA MAHESHWARI AND OTHERS versus SUBHASH CHANDRA AND OTHERS

High Court of Judicature at Allahabad

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Smt. Sudha Maheshwari And Others v. Subhash Chandra And Others - WRIT - A No. 58178 of 2005 [2007] RD-AH 1558 (31 January 2007)

 

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

Hon'ble Rakesh Tiwari, J.

Heard learned counsel for the parties and perused the record.

Admittedly the petitioners are the tenants of house no. 132/72 situated in Gali Rawalia, Kachchi Sarak, Mathura.  Respondents are the landlords.

The respondent nos. 1 and 2 -landlords filed an application dated 14.6.1994 stating therein that Sri Madan Gopal Maheshwari, the original tenant was not residing in the house in dispute and that he was residing with his sons in ''Maheshwari House'.  On that application, Rent Control Inspector was directed to inspect the spot and submit report.  He submitted report on 11.4.1995 and on the basis of that report, order dated 12.4.1995 was passed declaring vacancy.

Against order of vacancy dated 11.4.1995, objections and rejoinders were filed.  Ultimately vide order dated 24.3.2005, vacancy has been declared which is subject matter of challenge in the instant writ petition.

Since the only prayer of counsel for the respondent-landlords is to enhance rent, without going into the merits of the case, counsels for the parties have been heard on the question of enhancement of rent.

From perusal of record, it appears that the petitioner-tenants were paying Rs. 85/- per month as rent of the aforesaid house which has been enhanced to Rs.1000/- per month by this Court vide order dated 5.9.2005. The house in dispute comprises nine rooms in the ground floor, two latrine/bathrooms, open gallary and six rooms in the first floor, court yard and two kitchens.  The house is over 170 sqare metres of land which is equivalent to 1862 square feets.

The learned counsel for the respondent-landlord submits that the tenants have not paid any rent since 1993  even after the High Court by its order dated 5.9.2005 directed to pay the enhanced rent.  The order is as under :-

"Hon. S.U. Khan, J

             Unless ordered otherwise for a period of six months further proceedings in pursuance of vacancy declaration order dated 24.3.2005 passed by R.C.& E.O./City Magistrate, Mathura in case no. 15/03/10/04- Subhash Chandra V. Madan Gopal Maheshwari as confirmed by order dated 18.8.2005 shall remain stayed subject to the condition that with effect from September, 2005 onwards petitioners pay rent to the landlord-respondents at the rate of Rs.1000/- per month through money order by 7th of each succeeding month after duducting money order charges.  However, if rent is being deposited under Section 30 then it may be continued to be deposited in the said case at the rate of Rs.1000/- per month with effect from September, 2005 onwards. In case of defaults stay order shall stand automatically vacated.  Non payment of this amount may also be a ground for dismissal of the writ petition.

Dated. 5.9.2005                                              Sd/- Illegible"

The counsel for the respondents submits that looking to the present rates of market rent of houses the rent being paid to him is too meager for the aforesaid big accommodation in a city like Mathura under the tenancy of the petitioners even for payments of taxes and maintenance of the building, as such the rent has to be proportionately increased during the pendency of the writ petition in order to balance equity. He also states that the petitioners have not complied with the order of this Court dated 5.9.2005; they deserve no sympathy and the writ petition is liable to be dismissed on this ground alone.

Rebutting the assertions of counsel for the respondents, counsel for the petitioners submits that the petitioners have been paying rent in Court under Section 30 of U.P.Act No. XIII of 1972 which may be withdrawn by the landlords.  It is urged by Sri B.D. Madhyan, learned Senior counsel for the petitioners that there is no default in payment of rent to the landlords but further states that since the mother of the petitioner-tenants is hospitalized hence it is possible that rent might not have been paid.  No details of payment of arrears of rent in Court and before which Court have been given anywhere in the writ petition.  

In these circumstances, without going into the merit of the case at this stage in view of  Rajeshwari  (Smt.) Vs. Smt. Prema Agarwal and others- 2005 (1) ARC-526, Khurshida Vs. A.D. J Muzaffarnagar- 2004(2) ARC-64, where the rent was increased to about fifty times, High Court held that it can enhance the rent to a reasonable extent as has also been held by this Court in paragraph 7 of the decision rendered in Smt. Zohra V. IVth Additional District Judge Jhansi - 2006(63) A.L.R.-643 and Hari Mohan Kichlu V. VIIIth A.D.J. Muzaffarnagar and others-2004 (2) ARC-652 wherein the rent was increased to more than 28 times the High Court held that while granting relief to a tenant against eviction, the writ court is empowered to enhance the rent to a reasonable extent.

The Court is considering enhancement of rent reasonably as per market rate on the basis of which rent was enhanced in  of Civil Misc. Writ No. 8972 of 2002- Hari Shankar Bhardwaj V. Dharamendra Kumar Gupta, the Hon'ble Supreme Court has affirmed in S.L.P. No. 19685 of 2006 the view of this Court that the rent of the houses/buildings/shops may be fixed under Article 226 of the Constitution having a pragmatic approach and taking into consideration the area, location, nature of construction, current market rate of rent, locality etc. In the aforesaid case, rent had been fixed by the Court under Article 226 to Rs. 6500/- per month in the same manner as it is being fixed in the instant case.  The order of the Hon'ble Supreme Court dated 9.12.2006 passed in the aforesaid S.L.P No. 19685 of 2006 runs as under :-

" Heard learned counsel for the parties.

We do not find any ground to interfere with the impugned  

         order.

The Special Leave Petition is accordingly dismissed. However, time granted by the impugned order making the deposit is extended to 7th January, 2007."

The counsel for the petitioner submits that in view of the law laid down, the Court may pass any appropriate order.

Having a pragmatic approach and taking into consideration the area, location, nature of construction, current market rate of rent, locality etc. it would be appropriate that the rent of the disputed accommodation be enhanced

as under: -

Since area of each room is not apparent from the

                    map produced on behalf of the landlords, average

                    rent of Rs.900/- per room is assessed :-

                    15 rooms @ Rs. 900/- per room = Rs. 13,500/-

2 kitchens @ Rs. 250/- per kitchen      = Rs.     500/-

2 latrine/bathrooms @ Rs/250/-           = Rs.     500/-

Gallary/open space/court yard = Rs.      500/-

                                                                Total = Rs. 15,000/-

Apart from the rent the tenants shall pay the water tax, house tax, electricity bills and all other legal dues/taxes payable by them.

Considering the facts and circumstances of the case it is directed that the petitioner-tenants shall pay Rs. 15,000/-, per month as the rent of the house in dispute w.e.f. January, 2007 payable to the respondent-landlord by 7th February 2007 and thereafter by 7th day of each succeeding month till further orders with 10% notional increase after every 5 years in accordance with the provisions of Act No. XIII of 1972. The petitioners are also directed to pay the entire amount of arrears of rent from 1993 till date to the respondents within a period of one month from today.  If any amount has been deposited in Court under Section 30 of U.P.Act No. XIII of 1972, the same may be withdrawn by the tenants and handed over to the landlords within the aforesaid period.

         In default of payment of the enhanced rent as well as arrears of rent as directed above by this Court, the respondent-landlords can get the house in dispute vacated with the help of police, if necessary, within a period of one month by giving notice in writing to vacate the house in dispute.

        List this case in August, 2007 to inform the Court about compliance of this order by the learned counsel for the parties.

Dated 31.1.2007

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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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