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MAHMOOD RAHMAT ULLAH KHAN & ANOTHER versus NIYAZ AHMED KHAN

High Court of Judicature at Allahabad

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Mahmood Rahmat Ullah Khan & Another v. Niyaz Ahmed Khan - WRIT - A No. 46934 of 2002 [2006] RD-AH 17839 (17 October 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

Hon'ble Rakesh Tiwari, J

Heard Sri A.K.Singh, counsel for the petitioners, Sri L.C. Srivastava counsel for the respondent and perused the record.

  Release application was filed by the landlords under Section 21(1)(a) of the U.P. Urban Buildings ( Regulation of Rent, Letting and Eviction) Act, 1972 (hereinafter referred to as ''the Act') for release of accommodation, in dispute under the tenancy of the respondent-tenant. The accommodation under the tenancy of the respondent consists of six rooms, varandah, store room and common amenitees in house no. 7/712 (old no. 7/591/333 Aziza Manzil, Rasalganj, Danpur compound, Rasalganj, Aligarh.

  Respondent-tenant filed written statement denying the need of the petitioner-landlords on the ground that enough accommodation is available to the landlords.

Civil Judge (Senior Division), Alighar/Prescribed Authority vide order dated 15.1.2001 dismissed the release application holding that the landlords have 24 rooms apart from the accommodation, in dispute, which was neither pleaded nor argued by the parties.  

Aggrieved by the order dated 15.1.2001, the petitioners filed R.C. C. Appeal No. 9 of 2001 under Section 22 of the Act. They also filed report of the Rent Control Inspector dated 18.1.1982, which had been filed in another case no. 162 of 1981 Abdul Khair V. M.S.K. Sherwani to bring correct facts regarding accommodation and number of rooms under the tenancy of the respondent.

The appeal of the petitioners has been dismissed vide order dated 26.8.2002 holding that the need of the landlords was not real and bona fide.

One of the contentions of the tenant was that the landlords have two flats in which they can shift.  However, before the Courts below, the landlords stated that the aforesaid flats are neither vacant and available nor convenient for them and they offered the tenant to shift to the aforesaid flats.  The Courts below observed that the aforesaid flats are not good for tenant but the landlord may use them.

The counsel for the petitioner states that the sister of the landlords is runnig a School having abut 350-400 students in fhe said24 rooms which are not available to them for living. He further submits that if the two flats alleged to be available to the petitioner are not fit for use of tenants, how could the authority find it fit for use of the landlords.  He further submits that the remark of the Court below that the petitioner may live in the School/accommodation after partition is also not in good taste as the earlier remark about flats.

The respondent-tenant is paying monthly rent of Rs.150/-. Paper no. 34-C is report of the Rent Control Inspector. It appears from the report  that the respondent has six rooms, three verandahs and common aminitees are under his tenancy.  Apart from it, the respondent-tenant is in possession of three verandahs, two latrine/bathrooms, a kitchen in the ground floor and one latrine/bathroom and a terrace in the first floor. Rent of Rs.150/- per month is no rent in the present scenario and not even sufficient for payment of taxes.

Counsel for the respondent-tenant urged that writ Court cannot reappriciate or re-evaluate the evidence while exercising supervisory jurisdiction.  In support of this contention, he placed reliance on decisions of Hon'ble Supreme court in Phiroze Bamanji Desai V. Chandrakant M. Patel and others-AIR. 1974 SC-1059; Bishan Chand V. V. A.D.J. Bulandshahr and another-1982 ARC-440 and Ranjeet Singh Vs.Ravi Prakash-(2004)3 SCC-682 wherein it has been held that High Court cannot act like an appellate Court and reappreciate or re-evaluate the evidence while exercising certiorari or supervisory jurisdiction.

There is no conflict on the law laid down by Hon'ble the Apex Court in the aforesaid decisions.  However, they are not applicable to the facts and circumstances of the instant case as the case is not being decided finally, on merits and this Court is neither reappreciating nor re-evaluating the evidence in its supervisory jurisdiction. On the other hand, Hon'ble the Apex Court in Rajeshwari (Smt.) Vs. Smt. Prema Agarwal - 2005(1) ARC-526 followed by this Court in Khursida Vs. ADJ -2004 (2) ARC-64 has held that writ Court can reasonably enhance the rent in exercise of powers under Article 226 of the Constitution for bringing the rent at par with the market rate where the rent is too low.

Taking a pragmatic approach of the matter, following assessment of rent is made :-

6 rooms @ Rs.1500/- per room                                 .... Rs. 9,000/-

Kitchen                                                                      ...  Rs.     500/-

3 Varandahs @ Rs.500/- each                                    ...  Rs.  1500/-

open terrace                                                                 ..    Rs.    300/-

3 latrine/bath rooms @ Rs.250/- each                         ...  Rs.    750/-

Thus, from the above assessment, total rent comes out to be Rs.12,050/- per month.

It is accordingly directed that the respondent-tenant will pay enhanced rent of Rs.12,050/- (Rupees Twelve Thousand and Fifty) w.e.f. October, 2006 payable on or before 7th November, 2006.  The enhanced rent shall be payable on or before 7th day of every succeeding month.  In case of default in payment of rent for two consecutive months, the petitioner-landlords will be at liberty to evict the tenant-respondent by coercive process with the aid of local Police.

Admitted.

List this case in ordinary course for hearing.

Dated 17.10.2006

kkb


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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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