ORDER
B.S. Verma, J.
1. Since the dispute involved in both the writ petitions relates to the order of enhancement of rent and its recovery from the petitioners, therefore, for the sake of convenience, both the writ petitions are being decided by this common order.
2. Writ Petition No. 2823 of 2001 (M/S) has been filed by the petitioners for quashing the impugned orders dated 23-2-2000 passed by the Additional District Judge Udham Singh Nagar in Rent Control Appeal No. 9 of 1999 and order dated 13-10-1999 passed by the Prescribed Authority/Sub-Divisional Officer, Rudrapur, Udham Singh Nagar in Case No. 51/4 of 1990-91. By the order dated 13-10-1999, the Prescribed Authority has allowed the application moved by the landlord under Section 21(8) of the U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972 (for short the Act) and fixed the rent of the disputed building @ Rs. 7,000/- per month. The tenant-opposite party was directed to pay the rent at the said rate to the applicant from the date of application. By the judgment and order dated 23-2-2000, the appeal of the petitioners was dismissed by the Additional District Judge.
3. Writ Petition No. 113 of 2003 (M/B) has been preferred by the petitioner State Bank of India against the order dated 23-11-2002 whereby the Prescribed Authority has certified that a sum of Rs. 6,62,000/- is due against the petitioner-Bank towards the rent enhanced under Section 21(8) of the Act, on which the Collector Udham Singh Nagar has passed order dated 2-12-2002 to recover the said amount as arrears of land revenue. Relevant facts of the case shall be narrated at appropriate place in this judgment after dealing with the matter of main writ petition.
4. Relevant facts, giving rise to the present writ petition (WPMS No. 2823 of 2001) in brief are that the State Bank of India Kichha was tenant of a portion of the building belonging to the respondent No. 1 Kundan Singh on the basis of agreement and the rent was agreed at Rs. 1200/- per month from 28-11-1975. The carpet area of the building was enhanced to 5000 sq. ft. at the request of the petitioner-Bank. Subsequently, the rent was enhanced to Rs. 2000/- per month w.e.f. 23-4-1982 though the same should have been enhanced from 29-12-1980. The landlord-respondent moved an application before the Prescribed Authority under Section 21(8) of the Act alleging therein that the valuation of the disputed building has been determined by an authorized Architect to be Rs. 11.58 lacs and as per provisions of the Act, the monthly rent of the building may be fixed at Rs. 9,650/- to which the landlord-respondent is entitled to get from the tenant-Bank.
5. The application was contested by the petitioner-Bank and they admitted the respondent No. 1 to be landlord and owner of the, building and also admitted the tenancy at the rate of Rs. 1200/- per month from 28-11-1975. They have denied rest of the pleas. It has been alleged that the rent was enhanced @ Rs. 2000/- per month w.e.f. 23-4-1982 because the landlord has assured that he would increase the area of the building and would carry out the requisite repairs in the buildings, but even after assurance nothing was done by the landlord and the petitioners are paying the rent at the enhanced rate. It was also alleged that the landlord is not entitled to get enhancement rent from 29-12-1980. The application of the landlord on the basis of valuation of the building on the market rate is wrong and not tenable.
6. In support of the application, the landlord has filed valuation report of the architect dated 16-8-1980 along with the affidavit duly sworn in by Sri. Y. M. Saxena and copy of the sale dated 30-3-1991 executed by Sudesh Kumar in favour of Radha Devi, while the opposite party-petitioner filed valuation report of the building prepared by O.K. Hureti as well as some other documents and affidavits.
7. The record shows that earlier the Additional District Magistrate, Nainital by his order dated 26-6-1993 rejected the application under Section 21(8) of the Act. The landlord preferred an appeal before the Special Judge/Additional District Judge, Nainital, which was allowed, the impugned order dated 26-6-1993 was set aside and the matter was remanded to the Prescribed Authority for deciding the application afresh.
8. The learned Prescribed Authority after hearing learned Counsel for the parties after considering the provisions of Section 21(8) of the Act came to the conclusion that the landlord Kundan Singh is entitled to enhance rate of rent as envisaged by the said Section after every five years.
9. The valuer of the landlord after making spot inspection has assessed the market value of the building at Rs. 11.58 lacs, while the valuer of the petitioners has assessed the market value of the building after inspection of premises on 8-5-1991 at Rs. 5.28 lacs. The learned Prescribed Authority after dealing with the entire evidence has held that the estimated cost of the building in the year 1990 comes to Rs. 8.43 lacs and on the basis thereof, the rent was fixed at Rs. 7,000/- per month as per provision of the Sub-section (8) of Section 21 of the Act. Accordingly, the application under Section 21 (8) of the Act was allowed vide order dated 13-10-1999.
10. Aggrieved by the said order, the petitioners-Bank filed appeal before the Additional District Judge, Udham Singh Nagar, which was registered as Rent Control Appeal No. 9 of 1999.
11. Before the appellate Court, contention was raised that the Prescribed Authority has not acted in accordance with the observations recorded by the appellate authority in its order dated 8-5-1995 and the evidence led by the petitioners was not appreciated properly. It was also contended that the landlord has not carried out proper repairs in the building since 1982 and that the rent has not been fixed on the basis of cogent evidence.
12. The appellate Court against thrashed out the evidence led by the parties in order to see whether the finding of the Prescribed Authority is just and proper or not. The learned appellate Court found that the Prescribed Authority on the basis of average of the two conflicting valuation reports of the premises fixed the rent of the disputed premises at Rs. 7,000/- per month. Ultimately, the appellate Court did not find favour with the petitioners and dismissed the appeal vide order dated 23-2-2000, which have rise to the Civil Misc. Writ Petition No. 43304 of 2000 before the Allahabad High Court, which was received by transfer in this Court and has been renumbered as Writ Petition (M/S) No. 2823 of 2001.
13. I have heard learned Counsel for the parties and perused the material on record including the averments made in the writ petition, the counter-affidavit and the rejoinder affidavit as well as the Supplementary Affidavit filed by the petitioners including the Annexures accompanying the same.
14. I have perused the supplementary affidavit filed by the petitioners (No. 6620 of 2002) which was taken on record vide order dated 23-10-2002. In this affidavit, the petitioners have taken entirely a different case. To my mind, the supplementary affidavit cannot be a substitute to the memo of writ petition, unless prayer for necessary amendments in the memo of writ petition is sought for and granted by the Court.
15. It has been contended by the learned Counsel for the petitioners that there is no independent evidence regarding the valuation of the disputed premises and both the parties filed evidence of private valuers which is not reliable and cannot be admitted in evidence.
16. It has to be examined whether the Courts below have committed any manifest error of law or is there perversity in the impugned orders. It may be mentioned that in the case at hand, there is concurrent and independent finding of fact recorded by the two Courts below.
17. The learned Prescribed Authority has observed that the valuer of the landlord has assessed the market value of the building at Rs. 11.58 lacs while the valuer of the petitioners-Bank has assessed the market value of the premises to be 5.28 lacs. Both the reports prepared by the two architects were supported by affidavit. The learned Prescribed Authority did not accept the market value as determined by the two valuers, but has taken the average of the two reports, thereby the average comes to Rs. 8,43,000/- and on the basis of average market value of the building (Rs. 11.58 lacs + Rs. 5.28 lacs x 1/2) the monthly rent was fixed at Rs. 7,000/-. The finding recorded by the Prescribed Authority is fully based on appraisal of evidence on record.
18. The next contention of the learned Counsel for the petitioners-Bank is that the Prescribed Authority/S.D.M. Rudrapur had no jurisdiction to hear the application under Section 21(8) of the Act because the power is vested with the District Magistrate only. The learned Counsel for the petitioners failed to place on record and such material, which could indicate that the Prescribed Authority had acted without any authority or jurisdiction. On the other hand, learned Counsel for the respondent No. 1 Kundan Singh has submitted that all the Sub-Divisional Magistrates of the district were duly authorized to try the cases under the Act by the District Magistrate Udham Singh Nagar. The argument of the learned Counsel is not tenable.
19. The learned Counsel for the petitioners has also submitted that the reports regarding valuation of the building by the private valuers are not admissible in evidence. This argument is not tenable for the simple reason that the trial Court in its earlier judgment has observed that registered valuers are competent to value the buildings. Even otherwise, it is obvious that the valuers have also filed affidavit in support of the reports prepared by them. Moreover, no such plea was taken before the appellate Court that the reports of the valuers filed on record are not admissible in evidence.
20. The learned Counsel for the petitioners-Bank has further contended that after the remand of the case by the appellate Court vide order dated 8-9-1995, no opportunity of leading evidence was afforded to the petitioners by the trial Court, hence the order passed by the trial Court is perverse. 1 am not inclined to accept this contention for the simple reason because the learned Appellate Court in its judgment and order has observed that both the parties were given full opportunity to lead evidence by the Prescribed Authority. The appellate Court has rejected this contention of the petitioner-appellants.
21. The learned Counsel for the petitioners/Bank has lastly contended that the application under Section 21(8) of the Act moved by the landlord is not maintainable independently unless an application for release under Section 21(1)(a) and (b) of the Act is moved. I am not inclined to accept the argument of the learned Counsel for the simple reason that there is no such condition under Sub-section (8) of Section 21 of the Act. The provision of Section 21 (8) of the Act is reproduced as under:
(8) Nothing in Clause (a) of Sub-section (1) shall apply to a building let-out to the State Government or to a local authority or to a public sector corporation or to a recognised educational institution unless the Prescribed Authority is satisfied that the landlord is a person to whom Clause (ii) or Clause (iv) of the Explanation to Sub-section (1) is applicable:
Provided that in the case of such a building the District Magistrate may, on the application of the landlord, enhance the monthly rent payable therefor to a sum equivalent to one-twelfth of ten per cent of the market value of the building under tenancy, and the rent so enhanced shall be payable from the commencement of the month of tenancy following the date of the application:Provided further that a similar application for further enhancement may be made after the expiration of a period of five years from the date of the last order of enhancement.
22. Thus, under the Act, to my mind, no application under Section 21(1)(a) of the Act on the ground of bona fide need shall lie in respect of a building let out to the State Government or to a local authority or to a public sector corporation or to a recognised educational institution and there is no bar to move application under Section 21(1)(b) on the ground of dilapidated condition of the building and for demolition and for purposes of new construction thereof. Be that as it may, I am not inclined to accept the argument of the learned Counsel for the petitioners that unless an application for release is made, the landlord is not entitled to move application for enhancement of rent under Sub-section (8) of Section 21 of the Act. Moreover, under Sub-section (8) of Section 21 of the Act, it is provided that the District Magistrate may on the application of the landlord, enhance the monthly rent payable therefor to a sum equivalent to one-twelfth of ten percent of the market value of the building under tenancy, and the rent so enhanced be payable from the commencement of the month of tenancy following the date of the application.
23. It may be mentioned that the scope of writ jurisdiction under Articles 226 and 227 is limited. This Court in exercise of writ jurisdiction cannot sit like a Court of appeal and cannot re-appreciate or reevaluate the evidence so as to arrive at a different conclusion. Only perversity in the impugned order can be seen to find out whether there is a case of mis-reading of evidence by the Court concerned. It has been observed by the Apex Court in the case of Surya Dev Rai v. Ram Chander Rai MANU/SC/0559/2003 : AIR2003SC3044 that 'On the other hand, supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. When a subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does not have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.' In the case 'Ranjeet Singh v. Ravi Prakash' MANU/SC/0243/2004 : AIR2004SC3892 , the Apex Court has observed inter alia in paragraph 4 of the judgment that 'An error which needs to be established by lengthy and complicated arguments or by indulging in a long-drawn process of reasoning, cannot possibly be an error available for correction by writ of certiorari. If it is reasonably possible to form two opinions on the same material, the finding arrived at one way or the other, cannot be called a patent error. As to the exercise of supervisory jurisdiction of the High Court under Article 227 of the Constitution also, it has been held in Suiya Dev Rai that the jurisdiction was not available to be exercised for indulging in reappreciation or evaluation of evidence or correcting the errors in drawing inferences like a Court of appeal.'
24. For the reasons and discussion aforesaid, the impugned orders do not suffer from any manifest error of law or any perversity. What is the valuation of the tenament in question is a finding of fact, based on evidence adduced by the parties, which cannot be re-evaluated by the writ Court in view of the law laid down in Surya Dev Rai AIR 2003 SC 3044 (supra). The writ petition No. 2823 of 2001 is devoid of merit and must fail.
25. Now coming to the Writ Petition No. 113 (M/B) of 2003, from a perusal of record, it comes out that the Prescribed Authority has certified that amounts of Rs. 6,62,000/- are due under Section 21(8) of the Act against the petitioner-Bank by Annexure No. 1. On this certificate, there is endorsement of the Collector directing the Tahsildar Kichha to recover the said amount as arrears of land revenue.
26. It is pertinent to mention that the Prescribed Authority has observed in its judgment dated 13-10-1999 that the opposite-party-petitioner (Bank) has admitted that the petitioners have shifted the Bank to new building in the year 1996. The appellate Court has also observed in the judgment that admittedly the appellant (Bank) has vacated the premises in dispute in the year 1996 and the rent of new bank premises was fixed at Rs. 15,000/- per month.
27. It has been contended by the learned Counsel for the petitioner-Bank that the Apex Court while dismissing Special Leave Petition (Civil) No. 13984/1999 State Bank of India v. Raj Kumar Jain by order dated 29-9-1999 has directed that the rent under Section 21(8) of the Act is payable from 1-1-1999 and not from any back date. Therefore, the respondent Kundan Singh is not entitled to enhanced rent from the petitioner Bank.
28. Learned Counsel for the respondent Kundan Singh, in reply, has submitted that the observation made by the Hon'ble Apex Court while dismissing the Special Leave Petition in a particular case does not disentitle the landlord to enhanced rate of rent in the case at hand. The argument of the learned Counsel has some force.
29. Relevant extract of the order dated 29-9-1999 passed by the Apex Court reads as under:
Having heard learned senior counsel for the petitioner and learned senior counsel for the respondents on caveat, we deem it fit, while dismissing this Special Leave Petition, to direct that the impugned order enhancing the rent under Section 21(8) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, would operate only from 1-1-1999 and not from any back date.
30. The aforesaid order passed by the Apex Court is self-speaking that the order under Section 21 (8) of the Act has been made operative from 1-1-1999 in that particular case and particular circumstances and the same does not help the petitioner in the present case.
31. The only point for determination in this writ petition is whether the enhanced rent under Section 21(8) of the Act is recoverable as arrears of land revenue or not. My answer to this question is not for the following reason.
32. Section 34 of the Act provides for powers of various authorities and procedure to be followed by them. Sub-section (3) of Section 34 reads as under:
(3) Where any costs or other sum of money awarded under this Act by the District Magistrate or the prescribed authority or the appellate or revisional authority remains unpaid, he or it may issue a certificate of recovery in respect thereof in the prescribed form, and any person in whose favour such certificate is issued may apply to the Court by Small Causes having jurisdiction under the Provincial Small Cause Courts Act, 1887 (Act No. IX of 1887) for recovery of the amount specified in the certificate. Such Court shall thereupon execute the certificate or cause the same to be executed in the same manner and by the same procedure as if it were a decree for payment of money made by itself in a suit.
33. I have perused the certificate of recovery issued by the Prescribed Authority on the format as prescribed by Rule 24 of the Rules framed under the Act. From a bare perusal of this certificate it is obvious that enhanced rent @ Rs. 7000/- per month has been shown against the petitioner-Bank even after 1-1-1997 till August, 2002. The endorsement of the Collector Udham Singh Nagar on the certificate of recovery directing the Tahsildar Kichha to recover the amounts as arrears of land revenue is against the provision of law and the same is not sustainable.
34. Whether any amount of rent is due against the petitioner or not cannot be determined in exercise of writ jurisdiction. The petitioner may raise objection before the executing Court in case no amount is due against the petitioner and the building of Kundan Singh had been vacated in June, 1996 as has been contended in paragraph 9 of the writ petition, while in paragraph of Writ Petition No. 2883 of 2001, it has been mentioned that the petitioner bank has vacated the premises and the vacant possession thereof has been handed over to the landlord respondent on 27th May, 2000.
35. In view of the discussion made above, I find that the amounts under the certificate or recovery is not recoverable as arrears of land revenue. The endorsement of the Collector made on the certificate of recovery is quashed. The respondent-landlord may obtain a certificate of recovery afresh from the Prescribed Authority and the respondent Kundan Singh may apply to the Judge, Small Cause Court concerned as has been provided under Sub-section (3) of Section 34 of the Act for execution thereof. In the result, the Writ Petition No. 113 of 2003 (M/B) deserves to be partly allowed.
36. Accordingly, the Writ Petition No. 2823 of 2001 is dismissed. Costs easy.
37. The Writ Petition No. 113 of 2003 (M/B) is partly allowed. The endorsement of the Collector on the certificate of recovery (Annexure No. 1) directing the amounts to be recovered as arrears of land revenue is quashed. The landlord-respondent may apply for issue of fresh certificate of recovery and may proceed further in accordance with law under Section 34(3) of the Act. No order as to costs. Interim order dated 25-2-2003 stands vacated.
38. All pending applications stand disposed of.