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1998 Supreme(All) 40
IN THE HIGH COURT OF ALLAHABAD
S. P. SRIVASTAVA
STATE OF UTTAR PRADESH - Appellant
Versus
I ADDITIONAL DISTRICT JUDGE, GORAKHPUR - Respondents
C. M. W. P. 44439 Of 1993
Decided On : 01/16/1998
R.P.DUBEY
The definition of 'building' in the Rent Control Act includes the appurtenant land, and a valuer's report without an affidavit in support cannot be accepted.
Headnote:
RENT CONTROL ACT - S. 21 (8) - S. 2-H - ENHANCEMENT OF RENT - APPLICABILITY OF ACT - EXEMPTION - BUILDING INCLUDES APPURTENANT LAND - VALUER'S REPORT - AFFIDAVIT IN SUPPORT - NECESSITY.
Fact of the Case:
The petitioner, State of U.P., challenged the orders of the Rent Control and Eviction Officer (R.C.E.O.) and the appellate court, which enhanced the rent of the accommodation occupied by the petitioner. The landlord had filed an application under S. 21 (8) of the Rent Control Act, 1972, seeking enhancement of rent, claiming that the annual value of the building, including the appurtenant land, was Rs. 4,76,600, resulting in an enhanced rent of Rs. 3972 per month. The petitioner objected, arguing that the rent was initially Rs. 250 per month for 956 sq. feet and had been increased to Rs. 1126 per month in 1983. The petitioner also contended that only 25% of the monthly rent could be enhanced as the landlord had constructed an additional room and tin shed in 1983.
Finding of the Court:
The court found that the market value of the construction, as assessed by both valuers, was the same, but the landlord's valuer had also valued the land. The court held that the building includes the appurtenant land, as defined in S. 2-H of the Act, and that the R.C.E.O. was correct in accepting the market value given by the landlord. However, considering the condition of the house and the long tenancy of the petitioner, the R.C.E.O. reduced the monthly rent to Rs. 3000.
Issues: 1. Whether the provisions of the Rent Control Act were applicable to the accommodation in question, given that the rent was more than Rs. 2000 per month? 2. Whether the R.C.E.O. and the appellate court had jurisdiction to determine the application under S. 21 (8) of the Act? 3. Whether the land valued by the landlord's valuer was included in the tenancy of the petitioner? 4. Whether the appurtenant land could be included within the definition of building? 5. Whether the valuer's report without an affidavit in support could be accepted?
Ratio Decidendi: 1. The court held that the exemption from the provisions of the Rent Control Act applied to buildings with a monthly rent above Rs. 2000 on the date of filing the application for enhancement. Since the rent was less than Rs. 2000 when the application was filed, the provisions of the Act remained applicable, even though the R.C.E.O. enhanced the rent to Rs. 3000 per month. 2. The court held that the R.C.E.O. and the appellate court had jurisdiction to determine the application under S. 21 (8) of the Act, as the definition of 'building' in the Act included the appurtenant land. 3. The court found that the map annexed to the landlord's valuer's report showed that the land valued by the valuer was included in the tenancy of the petitioner. 4. The court held that the appurtenant land could be included within the definition of building, as per the definition given in S. 2-H of the Act. 5. The court held that a valuer's report without an affidavit in support could not be accepted, as per the decision in (1983) 1 All Rent Cas 752.
Final Decision: The court dismissed the petition, holding that the findings of the R.C.E.O. and the appellate court on the question of market value were findings of fact that did not warrant interference under Art. 226 of the Constitution of India.
( 1 ) THIS petition under Art. 226 of the Constitution of India has been filed by the State of U. P. through member Sales Tax Tribunal, Gorakhpur against the landlord and others for quashing the order dated 12/03/1992 filed as Annexure-1 and order dated 17/08/1993, filed as Annexure-2 to the writ petition.
( 2 ) THE facts giving rise to the present petition in brief are that the landlord filed an application under S. 21 (8) of Act No. 13 of 1972 for enhancement of rent against the petitioner. The basis of enhancement of rent was that the annual value of the building in question was Rs. 4,76,600. 00 as such the enhanced rent would be Rs. 3972. 00 per month. It was specifically stated that the annual value of the building included the constructed portion of the land appurtenant to the building.
( 3 ) AN objection was filed by the petitioner to the aforesaid application to the effect that in 1969 for the first time when the accommodation in question was given on rent its rent was Rs. 250. 00 per month and the total area in tenancy was 956 sq. feet but from 1/06/1983 the department was paying rent amounting to Rs. 1126. 00 per month at the rate of one rupee per sq. feet. It was further stated that in 1983 the landlord contructed one additional room and tin shed, therefore, only 25% of the monthly rent can be enhanced.
( 4 ) BOTH the sides submitted valuers report. The valuer on behalf of the Sales Tax Department assessed Rs. 1,28000-00 as value of the disputed accommodation and filed alongwith the affidavit of the departmental Lekhpal. The valuer of the landlord Sri Hari Gopal Verma submitted his affidavit along with his report. There appears to be no dispute for market value of the house in question as Rs. 4,76,600. 00. The Rent Control and Eviction Officer (A. D. N. City, Supply, Gorkhpur) observed that "the market value of the construction as given by both the valuers appears to be the same but the landlords valuer has valued the land also. It was held placing reliance on 1989 All LJ 389 that the building includes the appurtenant land also and as the valuer of the department has not given his affidavit in support of his report, therefore, the value given by the landlord is correct. The R. C. and E. O. accordingly accepted the market value as given by the landlord to be Rs. 4,76,600. 00 and fixed Rs. 3972. 00 as monthly rent, but keeping in view the condition of the house and tenancy in favour of the department he reduced the amount to Rs. 3000. 00 per month. Aggrieved by this order the petitioner filed an appeal and it was urged before the appellate Court that the Rent Control and Eviction Officer, hereinafter referred to as R. C. and E. O. has no jurisdiction to determine the application under S. 21 (8) of the Act. His contention was that the District Magistrate has the jurisdiction only. The appellate Court also placed reliance on 1989 All LJ 389, Central Bank of India v. IInd ADJ and dismissed the appeal. The petitioner has challenged this order in this writ petition.
( 5 ) THE parties have exchanged counter and rejoinder affidavit. Though the case was listed for admission but on the agreement of learned counsel for the parties the matter was heard finally even at the admission stage.
( 6 ) THE learned standing counsel has urged that the provisions of the Rent Control Act was not applicable as the rent of the accommodation in question was more than Rs. 2000. 00 per month, therefore, the application under S. 20 (8) of the Act was not maintainable. Therefore, the finding of the R. C. and E. O. and the appellate authority are vitiated in law. In the same continuation he urged that though on the date of application the rent of the building was less than Rs. 2000. 00 but when R. C. and E. O. fixed it at the rate of Rs. 3000. 00 per month, then the provisions of Rent Control Act were not applicable and neither the appellate Court has jurisdiction, nor the R. C. and E. O. , had the jurisdiction to dispose of and
