Som Nath Vaish Son of Late Shambhoo Nath Vaish and Ravindra Nath Vaish Son of Sri Som Nath Vaish Vs. the Rent Control and Eviction Officer and - Court Judgment

S.U. Khan, J.

1. Heard Shri M.K. Gupta and Sri A.K. Singh, learned Counsel for the petitioner and Sri Mukhtar Alam, learned Counsel appearing for respondent No. 2 viz. Indian Oil Corporation, Allahabad.

2. This is landlord writ petition arising out of vacancy declaration and allotment / release proceedings. Petitioner No. 1 and 2 the original landlords sold the property in dispute to M/s Madhu Colonizer on 4.12.1999 (during pendency of writ petition). M/s Madhu Colonizer has been impleaded as petitioner No. 3 by order dated 19.12.2005.

3. In this case on several dates the court persuaded the parties to enter into some sort of compromise. However today learned Counsel for respondent No. 2 Indian Oil Corporation, Allahabad categorically stated that the tenant was not ready to enhance the rent by any amount hence talks of compromise failed. Learned Counsel further requested for decision of the writ petition on merit. Thereafter both the parties were heard on merit of the writ petition.

4. Building in dispute is situate at 15-B, Amar Nath Jha Marg, George Town, Allahabad and is spread over an area of 1420 Sq.yards. The building in dispute is in tenancy occupation of Indian Oil Corporation for a long time. An allotment application was filed before R.C.&E.O.; under Section 16 of U.P. Act No. 13 of 1972 alleging therein that Indian Oil Corporation had acquired an entire floor in Indira Bhawan, Allahabad and had completely shifted its office from the accommodation in dispute to Indira Bhawan hence building in dispute was vacant.

5. The case was registered as case No. 87 of 1991 on the file of R.C.& E.O., Allahabad. R.C.& E.O. got the premises in dispute inspected by Rent Control Inspector (hereinafter referred to as R.C.I, in short). R.C.I, submitted the report on 28.9.1991, copy of which is Annexure-2 to the writ petition. According to the said report R.C.I found the accommodation locked, and he was told that just one day before (i.e. on 27.9.1991) the entire office of Marketing Division of the tenant had been shifted to Vth floor, Indira Bhawan constructed by Allahabad Development Authority. It was also stated in the said report [there were 16 rooms in the accommodation in dispute, 12 on the ground floor and 4 on the 1st floor and apart from that there was a veranda, lawn, two sheds, latrine, bathrooms and three stores. Unfortunately on the very next date namely 29.9.1991 R.C.& E.O. declared the vacancy merely on the basis of report of R.C.I. Thereafter Indian Oil Corporation, the tenant sent letter to R.C.& E.O. on 1.10.1991 stating therein that vacancy had wrongly been declared as it had not shifted its office from the accommodation in dispute. Just as vacancy had been declared without hearing the tenant, Similarly, merely on the letter of the tenant that order was recalled by R.C.&E.O.; On 17.2.1992 without hearing the landlord. Landlord meanwhile had filed release application on 3.10.1991.

In view of the aforesaid facts and circumstances of the case the only order which can be passed is that R.C.&E.O.; be directed to decide the question of vacancy after hearing both the parties.

6. Accordingly writ petition is allowed. Both the orders i.e. order dated 17.2.1992 recalling the vacancy declaration order as well as vacancy declaration order dated 28.9.1991 are set aside. Matter is remanded to R.C.& E.O., Allahabad to decide the case in accordance with law afresh. Both the parties are directed to appear before R.C.& E.O. alongwith certified copy of this judgment on 15.5.2006. R.C.& E.O. shall also issue notice to the person on whose application proceedings for vacancy declaration order were initiated. R.C.& E.O. shall provide opportunity to the parties to adduce evidence in respect of their cases and shall decide the question of vacancy thereafter. If R.C.& E.O. considers it necessary or if any of the parties makes an application to that effect then building in dispute may again be got inspected by R.C.I. However, it is clarified that if fresh inspection is to be made, at least three days advance notice/information of inspection must be given to all the parties concerned.

7. There is one more aspect of the matter which requires consideration. In the year 1997 original landlord filed an application for enhancement of rent under Section 21(8) of the Act. R.C.& E.O. enhanced the rent from Rs. 1175/- to Rs. 8,400/-per month. Against the said order appeals were filed. Appellate court/A.D.J. Allahabad enhanced the rent to Rs. 41,000/- and odd. Against the said judgments and orders a writ petition was file being writ petition No. 12430 of 2001. The said writ petition was allowed on 5.7.2001 only on the ground that the subsequent landlords had purchased the property in the year 1999 while application for enhancement of rent had been filed earlier i.e. in the year 1997 and subsequent purchaser could not take benefit of the pending proceedings merely by getting himself impleaded therein. It was categorically mentioned in the judgment of earlier writ petition dated 5.7.2001 that the court was not expressing any opinion on the merit of the case (i.e. market value of the building in dispute) and /subsequent purchasers were permitted to file fresh application for enhancement of rent under Section 21(8) of the Act. Against the said judgment and order Special Leave Petition No. (C) 14754 of 2001 was filed before Hon'ble Supreme Court which has been admitted and converted into Civil appeal.

8. Section 21(8) of the Act provides for enhancement of rent only against certain types of tenants i.e. State Government, Local authorities, Public Sector Corporations or recognized Educational Institutions. Under the said provision it is also provided that against the said tenants application for eviction on the ground of bonafide need cannot be filed under Section 21 of the Act.

9. However, in respect of other tenants there is no provision of enhancement of rent after September 1972. I have held in Khursheeda v. A.D.J. 2004 (2) A.R.C. 64, after placing reliance upon an authority of Supreme court reported in M.V. Acharya v. State of Maharashtra : AIR1998SC602 , that writ court while granting relief against eviction to the tenant is authorized to enhance the rent to a reasonable extent. In H.M. Kitchlu vs. A.D.J. 2004(2) A.R.C. 652 I further held that while dismissing the writ petition of the landlord also rent could be enhanced by writ court as by dismissing the writ petition of landlord writ court would be confirming relief granted against eviction to the tenant by the courts below. The direction of enhancement of rent may also be given by the writ court in respect of other litigation in between landlord and tenant in respect of a building which is covered by U.P. Act No. 13 of 1972. In the instant case also I am of the view that due to huge disparity in between existing rent and the current rent for which building in dispute may be let out, writ court is empowered to enhance the rent to a reasonable extent independently of provision of Section 21(8) of the Act. It has been stated that the circle rate under Stamp Rules of the area in question at present is Rs. 4,500/- per Sq. yard. At that rate the market value of the land on which building in dispute is constructed, alone will come to about Rs. 60 lacs. However, I am not holding that circle rate is decisive factor for determining market value. In certain cases it may be taken only to be a guiding principle. Taking in view all the circumstances I direct that with effect from May 2006 onward tenant shall pay rent to the landlord at the rate of Rs. 25,000/- per month inclusive of water tax etc. No further amount shall be payable by the tenant. However UP Act No, 13 of 1972 shall continue to apply to the building in dispute even though rent fixed by this judgment is more than Rs. 2000/- per month and by virtue of Section 2(i)(g) the said Act does not apply to the building whose monthly rent exceeds Rs. 2000/- Supreme Court in Lachchu Mal v. Radhey Shyam : [1971]3SCR693 while interpreting old Rent Control Act of U.P. (i.e. U.P. Act No. 3 of 1947) held that landlord could waive the benefit of exemption clause. If landlord can waive the applicability of exemption clause then court can also do the same thing while enhancing the rent for more than Rs. 20007- per month.

10. It is again reiterated that this order of enhancement of rent has been passed in view of the aforesaid judgment of Khursheeda v. A.D.J. (Supra) and it has got nothing to do with Section 21(8) of the Act. Even if the tenant had been a private person I would have passed similar order. As far as question of enhancement of rent under Section 21(8) is concerned the same is sub-judice before Hon'ble Supreme Court.