Allahabad High Court
Zila Basic Shiksha Adhikari And ... vs Ataullah Khan on 20 September, 2012
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. - 7
Case :- WRIT - A No. - 20541 of 2004
Petitioner :- Zila Basic Shiksha Adhikari And Another
Respondent :- Ataullah Khan
Petitioner Counsel :- Ravi Shankar Prasad
Respondent Counsel :- Iqbal Ahmed
And
Case :- WRIT - A No. - 20543 of 2004
Petitioner :- Zila Basic Shiksha Adhikari And Another
Respondent :- Ataullah Khan
Petitioner Counsel :- Ravi Shankar Prasad
Respondent Counsel :- Iqbal Ahmed
Hon'ble Sudhir Agarwal,J.
1. Both these writ petitions arise out of common proceedings as well as the judgment, therefore, as requested by learned counsel for the parties, both the writ petitions heard together, and are being decided by this common judgment
2. Writ petition is directed against the order dated 10.02.2004 passed by Additional District Judge, Court No.3, Moradabad determining rent of the building in question, in which petitioners are a running primary school; @ Rs.2346.40 per month w.e.f. 1.1.1998.
3. The landlord moved an application stating that valuation of house and land in question is Rs.3,47,401/- and therefore appropriate rent of building should be Rs.2,800/- per month. In support of claim, he filed a report of Junior Engineer/Valuer dated 13.5.1999 wherein he has valued the cost of the land at Rs.2,65,110/- and cost of construction at Rs.82,291/-, total Rs.3,47,401/-. The Rent Control and Eviction Officer (hereinafter referred to as "RCEO"), by order dated 25.10.2002 instead of relying on Valuer's report made his own assessment and valued the land @ Rs.800/- per sq. meter and the cost of construction at Rs.40,000/-. He determined the rent under Section 21(8) of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as "Act, 1972") at Rs.1244.91 per month.
4. The landlord and petitioner-tenant, both, filed appeal against the aforesaid order whereupon Appellate Court dismissed petitioner's appeal but allowed landlord's appeal to the extent that monthly rent of premises in question has been enhanced to Rs.2346.40. Learned Appellate Court found that for the purpose of cost of land, Valuer has relied on circle rate but the same could not have been ignored by RCEO unless there is a specific reason and ground to take into account a different value of the land. With respect to the cost of construction, however, he accepted the cost determined by Valuer but since he has not taken into consideration depreciation on the aforesaid cost of construction, the Appellate Court deducted depreciation from the cost of construction and thereafter calculated the cost of construction at Rs.16,458/- and that is how he comes to the conclusion that the total cost of building would be Rs.2,81,568.20.
5. Learned counsel for the petitioner submitted that the aforesaid cost is with respect to entire building though only 3 rooms are in his possession. However, no such issue has ever been raised before the Courts below. In para 6 of the writ petition, the petitioner has of filing copy of reply as Anenxure 5 but therein no such averment has been made that the entire building is not in possession of the petitioner. On the contrary in para 1 of the application, Annexure 3 to the writ petition, it has clearly been said that building in question has 7 rooms besides verandah and courtyard and total 200 sq.yard area but nothing has been placed on record to demonstrate that the said averment is not correct. No new issue, which was not raised before the Courts below can be allowed to be raised before this Court.
6. For determining rent under Section 21(8) of Act, 1972 there is no hard and fast rule laying down any particular procedure or method in which the rent can be determined. The proviso to Section 21 sub-section 8 only talks of market value of building under tenancy and a sum equivalent to 1/12 of 10% of market value shall constitute the appropriate rent payable by tenant under aforesaid provision. The term "market value" has not been defined in aforesaid Act nor any procedure for its determination has been prescribed under the Rules framed under Act, 1972.
7. In Mahabir Prasad Shantuka Vs. Collector, 1987 ALR 308 this Court has observed that the term "market value" means that the willing purchaser would pay to a willing seller for the property having regard to the advantages available to the land and the development activities which may be going on in the vicinity and the potentiality of the land and other relevant factors. Circle rate fixed by Collector under Rule 341 of U.P. Stamp Rules, 1942 are guidelines for the purpose of realisation of stamp duty in the event of sale of land of a particular area. It cannot determine the value of land conclusively.
8. In Kaka Singh Vs. Additional Collector, Bulandshahr, 1986 ALJ 49 a Division Bench of this Court said that Rule 341 is only for the limited purpose of providing guideline to determine the market value. It is not conclusive. The value of land has to be determined after taking into consideration various factors. No hard and fast rule can be laid down therefor but now some of the guidelines have been laid down U.P. Stamp (Valuation of Property) Rules, 1997 but this is also indicative, constitute relevant factors, but not conclusive. One of the relevant factor can be an exemplar of a similar property sold in that particular area on near relevant date when the matter came up for consideration before competent authority, i.e., the date of submission of application. It cannot be doubted that ascertainment of market value involves a little subjective satisfaction and a kind of guesswork. The authority concern, however, would have to take into consideration the locality where the property situate, its commercial value, potential value and other circumstances. In the present case, in absence of anything else, the Appellate Court has relied on the Circle rate and I find no patent error in such approach.
9. Having gone through the impugned order, as also the exposition of law as above, I find that Appellate Court has taken into consideration relevant material to determine cost of land.
10. In view of the aforesaid, the writ petition lacks merit.
11. Dismissed.
12. Interim order, if any, stands vacated.
Order Date :- 20.9.2012
KA
