Dhannajai Kumar @ Babu vs Smt.Usha Bhargawa And Ors.
2019 Latest Caselaw 5858 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 25
 
Case :- RENT CONTROL No. - 18635 of 2019
 
Petitioner :- Dhannajai Kumar @ Babu
 
Respondent :- Smt.Usha Bhargawa And Ors.
 
Counsel for Petitioner :- Yogesh Kesarwani,Dharmendra Kumar Bhatt
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

Oral

Heard the learned counsel for the petitioner, Sri Yogesh Kesarwani.

It has been submitted by the petitioner that he is a tenant of one shop on the ground-floor of the building whose current no. 92/83-A ad-measuring initially 17 x 34 i.e. 578 sq. ft. which area was later on reduced to 433 sq. ft.

The original landlord had filed a Suit for eviction of the tenant from the shop in question, namely Case No. 46 of 1968 (Dr. Ratan Lal Bhargawa Vs. Pratap Chand & others) which was rejected by the Deputy Collector, Nagar Khadhya Adhikari, Lucknow 12.5.1969.

After the death of the original landlord, his legal heirs and representatives i.e. his widow and sons had filed an SCC Suit for arrears of rent and ejectment, namely SCC Suit No. 827 of 1980. The said Suit was decreed by the learned Trial Court on 3.2.2018 i.e. after more than 38 years of its filing.

The petitioner filed a delayed Revision, namely Revision No. 59 of 2019 which has been admitted by the learned District Judge, Lucknow and has been fixed for hearing on 20.7.2019. The delay has been condoned and the condition attached to the admission of the Revision by the learned District Judge has been challenged before this Court saying that originally the shop in question had been rented out at Rs. 125/- per month, but now the District Judge has arbitrarily observed that the market value of the property had increased manifold and has fixed the rent of Rs. 7000/- per month as an interim measure till the decision of the Revision by him.

Learned counsel for the petitioner has placed reliance upon a judgment rendered by the Hon'ble Supreme Court in Niyaz Ahmad Khan Vs. Mahmood Rahmat Ullah Khan. 2008 (7) SCC 539 to say that where the Statutes specifically provides for fixation of rent and increase in rent by the Competent Officer i.e. Rent Control and Eviction Officer under the Act, the High Court under interim directions cannot impose oppressive and unreasonable conditions.

Learned counsel for the petitioner has placed reliance upon paragraph 7 of the said judgment which is being quoted herein below:-

"7. Even assuming that the High Court has power to increase the rent, we fail to understand how in the absence of any evidence -- either oral or documentary or by way of affidavit, the learned Single Judge could assess the rent as Rs.12,050 which is more than 48 times, the rent of Rs.250 earlier determined. The learned Single Judge did not consider any of the relevant circumstances like the market value of the building on the date of letting, prevailing rentals in the locality as on the date of letting, the size or situation or amenities, age of construction, latest assessment of the building or other circumstances. Further, when a premises consisting of several rooms, verandahs, kitchen, terrace, bathrooms, latrines, is let out as a single unit, the question of assessing the rent with reference to each room or portion of such premises separately does not arise. The learned Judge's observation that by taking a pragmatic approach he was assessing the rent at Rs.12,050, to say the least, is arbitrary and contrary to law."

It has been submitted that by way of interim orders, the District Judge, as a condition for admission of the Revision, has imposed the liability for paying rent which is more than 58 times, the original rent of the shop in question.

This Court finds from a perusal of the said judgment that in the case before the Supreme Court, the landlord had filed an eviction petition on the ground of bonafide requirement of the premises. The Prescribed Authority and the Appellate Authority had both rejected the application of the landlord. The landlord had thereafter approached the High Court challenging the said rejection by filing a writ petition.

In the writ petition, the High Court imposed the liability on the tenant of increased rent of Rs. 12,050/- per month which was more than 48 times of the original rent of Rs. 250/- earlier determined. The facts of the case as cited by the learned counsel for the petitioner do not match with this petition under Article 227 before this Court.

The appellant before the Supreme Court was a tenant of a residential house whose details have been given in the aforesaid paragraph 7 as quoted herein above. Moreover, the landlord had lost before the Prescribed Authority and the Appellate Authority, and had challenged the orders of the statutory authority before the High Court.

The petitioner is tenant of a commercial premises situated at Gautam Budh Marg commonly knows as Latouche Road which is a busy commercial area of the city of Lucknow. It is common knowledge that even a small stall to be taken on rent in the aforesaid area would require the tenant to dole out huge amount as premium and thereafter as rent.

Learned counsel for the petitioner has further placed reliance upon a judgment rendered in Sunil Kumar Vs. Surendra Kumar Agarwal & others 2008 (26) LCD 1741. The Supreme Court in the aforesaid Civil Appeal No. 5883 of 2008 had placed reliance upon judgment rendered by it in Niyaz Ahmad Khan (supra). The Supreme Court was considering the Appeal of the tenant with regard to a shop whose rent was initially Rs. 80/- per month. On eviction petition being filed by the landlord being rejected, a Revision was filed which was allowed and eviction granted thereafter.

The tenant came up in Appeal. The High Court while entertaining the writ petition made an interim order in 2006 directing the tenant to pay a rent of Rs. 4,900/- per month with effect from the date of admission of the writ petition with ten percent increased every five years until further orders deciding the case. The High Court had calculated the rent of the shop area as Rs. 10/- per sq. ft., and the verandah at Rs. 3/- per sq. ft. without any supporting material, and had increased the rent payable from Rs. 80/- to Rs. 4,900/- per month.

The Supreme Court observed that the parameters with regard to fixation of rent, even as an interim measure, had been laid down by it in the judgment rendered in Niyaz Ahmad Khan (supra).

This Court finds from a perusal of the judgment in the case of Sunil Kumar (supra) that it is not clear therefrom as to in which city the shop in question was situated and as to in which area the shop had been rented and in possession of the tenant.

It is also not clear from the orders passed in Sunil Kumar (supra) whether the Supreme Court had considered the area of the shop rented out to the tenant. In the case of the petitioner, it is admitted by him that he has a shop of 433 sq.ft. situated in a busy commercial area of the city of Lucknow.

This Court therefore does not find any good ground to show interference at this stage in the orders impugned before it. However, this writ petition is disposed of with a direction to the learned District Judge to send a commission and get a report of the market value of the premises in question taking into account the prevailing rentals in the locality, the size and situation of the amenities, the age of construction, the latest assessment of the building and other circumstances including the circle rate of the area in which the shop in question is situated.

The District Judge shall after the commission report is available, call for objections thereon by the revisionists, and by the landlord and thereafter fix rent to be given by the petitioner as an interim measure to the landlord during the pendency of the revision before him.

The current rent that has been fixed by the District Judge shall be paid by the petitioner till such time that fresh fixation is done by the District Judge taking into account the observations made by the Supreme Court and by this Court in this order, and shall be subject to adjustment on further orders being passed by the District Judge regarding fixation of rent as aforesaid.

The summoning of the commission report and the fixation of interim rent by the learned District Judge shall be done preferably within a period of four months from the date a certified copy of this order is produced before the Court concerned.

The writ petition stands disposed of.

Order Date :- 9.7.2019

Arif