Bombay High Court
Dr. Sudhir Shankarrao Babhulkar ... vs The State Of Maha. Through The ... on 24 February, 2016
Bench: B.P. Dharmadhikari
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Writ Petition No. 4709 of 2015
Petitioners : 1) Dr Sudhir Shankarrao Babhulkar, aged about
73 years, Occ: Medical Practitioner
2) Smt Aruna Sudhir Babhulkar, aged about 70
years, Occupation : Housewife
Both residents of 30-B, Central Bazar Road,
Ramdaspeth, Nagpur-10
versus
Respondents : 1) The State of Maharashtra, through the
Department of Urban Development, Mantralaya,
Mumbai-400032
2) The Nagpur Improvement Trust, having its office
at Station Road, Sadar, Nagpur, through its
Chairman
3) The Executive Officer, Nagpur Improvement
Trust, Nagpur
4) The Recovery Officer, Nagpur Improvement
Trust, Station Road, Sadar, Nagpur
Mr Sunil V. Manohar, Senior Advocate and Mr Akshay Naik, Advocate
with him for petitioners
Mr S. B. Ahirkar, Assistant Government Pleader for respondent no.1
Mr R. O. Chhabra, Advocate for respondents no. 2 to 4
Coram : B. P. Dharmadhikari & V. M. Deshpande, JJ
Dated : 24th February 2016
Oral Judgment (Per B. P. Dharmadhikari, J)
1. Considering the nature of controversy, the matter is heard finally
with consent of parties by issuing rule and making it returnable forthwith.
2. The petitioners have assailed Resolution No. 21/1069 dated
4.10.2008 which prescribes three times hike in existing ground rent at the time
of renewal of leases. The demand made of Rs. 33,210/- as ground rent on that
count for a period from 1.4.2014 to 31.3.2044 is also assailed.
3. Mr Sunil V. Manohar, learned Senior Advocate with Mr Akshay A.
Naik, learned counsel with him has submitted that petitioner has purchased
Plot No. 74-A formed by sub-dividing earlier Plot No. 74 on 26 th September
1986 and
it has been assigned in their favour. Amount of Rs. 1,79,685/- then demanded
as unearned income has also been deposited. Petitioners thereafter sought
renewal of lease for a period of thirty years from 1.4.2014 to 31.3.2044 and at
that juncture, this demand has come. He points out that in the communication
dated 23.2.2015 in clause 2, the total amount of ground rent has been
mentioned at Rs. 866/- with effect from 1st April 2015.
4. He states that there is some calculation error in this notice as also
in communication dated 2.7.2015 sent to the petitioners. He has invited our
attention to initial lease executed in favour of petitioners' vendor Sheshrao
Kalbande on 29th April 1986 wherein the yearly enhanced rent payable from
1.4.1984 has been stated to be Rs. 144/-. Clause 3 therein has been
reproduced in Ground (B) of the memo of petition. Placing reliance upon this
agreed stipulation, learned Senior Advocate submits that further renewals are
assured thereby with ground rent which at the most can be hiked by 50% of
the existing ground rent. He points out that the hike can be maximum upto
50% and discretion in this respect is given to lessor and that decision has been
made final. According to him, the demand of rs. 866/- made vide
communication dated 23.2.2015 violates this provision and in any case, the
later demand dated 2.7.2015 wherein the ground rent has been co-related with
the lease amount and has been calculated at 18% is unsustainable.
5. Mr R. O. Chhabra, learned counsel for respondents no. 2 to 4 is
relying upon reply affidavit. He submits that the exercise has been undertaken
in accordance with law. However, insofar as calculations are concerned, he is
seeking time to obtain instructions.
6. Learned Assistant Government Pleader has appeared for
respondent no. 1.
7. Perusal of demand or communication having No. 3384 dated
2.7.2015 served upon the petitioners shows that initially for a period from
30.7.1953 to 31.3.1984, lease amount was of Rs. 4813/- and ground rent
calculated upon it at 2% was Rs. 96/-. For a period from 1.4.1984 to
31.3.2014, it was hiked by 50% and it was being charged at Rs. 144/-.
Thereafter in furtherence of the Trust resolution dated 4.10.2008 the amount
has been hiked further three times of original ground rent i.e. Rs. 288/-.
The petitioners have received assignment on 26.9.1986 and have sought
renewal of lease for a period from 1.4.2014 to 31.3.2044. As such, the
petitioners were already subjected to ground rent of Rs. 144/- and there was
no occasion to revive it before 1.4.2014. However, as Advocate Chhabra has
expressed some difficulty for want of definite instructions even on this aspect,
we leave the issue open.
8.
In terms of Resolution dated 4.10.2008, the amount could have
been hiked three times and, therefore, thrice the amount of Rs. 144/- i.e. Rs.
432/- could have been demanded as ground rent. Here, the unearned income
assessed is Rs. 1,79,685/- to which original premium of Rs. 4,813/- is added
and on the total amount of Rs. 1,84,498/-, ground rent of Rs. 32,210/- is
calculated at 18% for the second renewal period from 1.4.2014 to 31.3.2044.
9. While sanctioning sub-division in February 1982, respondent no. 2
has issued an order and in it vide clause no. 9, it has pointed out how after
such sub-division and sale, unearned income is to be worked out. From said
clause, it appears that the ground rent may also be increased in proportion in
which the lease premium has been enhanced. However, again in the light of
Resolution dated 4.10.2008, material on record is insufficient to conclude this
issue definitely.
10. Taking over all view of the matter, we find that interest of justice
can be met with by directing respondent no. 2 to hear the petitioners in this
respect and to pass fresh orders on the quantum of ground rent.
11. We accordingly direct petitioners or their representatives to appear
before respondent no. 2 or its competent officer on 14 th March 2016. Said
officer shall after considering entire material which is relevant in this respect
and after hearing the representative of petitioners, take fresh decision within
next six weeks.
12. Only to facilitate this consideration, we quash and set aside
communication dated 2.7.2015 sent by Recovery Officer of respondent no. 2.
As the petitioners require renewal of lease urgently, without prejudice to their
contention and rights in the matter, we direct the petitioners to deposit amount
of Rs. 5000/- with respondent no. 2 before 14.3.2016. Respondent no. 2 shall
receive the amount without prejudice to its rights and contentions in the
matter. If such amount is received, the same shall thereafter be appropriated
as per outcome of hearing mentioned supra. However, in the meanwhile,
respondent no.2 can process further the proposal of petitioners for renewal of
lease.
13. In view of the observations made supra, all contentions raised by
petitioners in the matter are kept open for its evaluation as and when occasion
therefor arises.
14. Accordingly, we dispose of writ petition. No costs.
V. M. DESHPANDE, J B. P. DHARMADHIKARI, J
joshi
