Bombay High Court
The Nagpur Popular Book Shop Thr. ... vs Late Manohar Ramdas Buradkar ... on 10 November, 2023
Bench: Avinash G. Gharote
2023:BHC-NAG:16463
WP-3221.23+1-Judgment 1/16
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.3221/2023
PETITIONERS 1. Smt. Shanta wd/o Manohar Buradkar
aged about 67 years, Occ. Household
r/o c/o Hill Top Lodge, opposite
Patwardhan High School, Pandit Nehru
Marg, Sitabuldi, Nagpur - 440 012.
2. Sau. Suchitra w/o Prafulla Dakhole
aged about 45 yrs., Occ. Household
r/o c/o Hill Top Lodge, Opposite
Patwardhan High School, Pandit Nehru
Marg, Sitabuldi, Nagpur - 440 012.
3. Pravin s/o Manohar Buradkar
aged about 43 yrs., Occ. Business
r/o c/o Hill Top Lodge, Opposite
Patwardhan High School, Pandit Nehru
Marg, Sitabuldi, Nagpur - 440 012.
4. Sau. Priti w/o Shekhar Lande
aged about 37 yrs., Occ. Household
r/o c/o Hill Top Lodge, Opposite
Patwardhan High School, Pandit Nehru
Marg, Sitabuldi, Nagpur - 440 012.
5. Nishant s/o Manohar Buradkar
aged about 33 yrs., Occ. Nil,
r/o c/o Hill Top Lodge, Opposite
Patwardhan High School, Pandit Nehru
Marg, Sitabuldi, Nagpur - 440 012.
(All above are the legal representatives of
deceased Manohar s/o Ramdas Buradkar,
the original applicant in M.J.C. No.28/2005)
...VERSUS...
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RESPONDENT The Nagpur Popular Book Shop
through its Manager
Vilas s/o Wamanrao Todkar,
aged about - 70 yrs., Occ. Business
c/o Hill Top Lodge, opposite Patwardhan
High School, Pandit Nehru Margk, Sitabuldi,
Nagpur - 440 012.
Mr. V.G.Bhamburkar, Advocate for petitioners
Mr. T.D.Mandlekar, Advocate for respondent
WITH
WRIT PETITION NO.1952/2021
PETITIONER The Nagpur Popular Book Shop
through its Manager
Vilas s/o Wamanrao Todkar,
aged about - 70 yrs., Occ. Business
c/o Hill Top Lodge, opposite Patwardhan
High School, Sitabuldi, Nagpur, District-
Nagpur.
...VERSUS...
RESPONDENTS Late Manohar Ramdas Buradkar (dead)
Through legal heirs :-
1. Smt. Shanta wd/o Manohar Buradkar
aged about 66 years, Occ. Household
2. Sau. Suchitra w/o Prafulla Dakhole
aged about 43 yrs., Occ. Household
3. Pravin s/o Manohar Buradkar
aged about 42 yrs., Occ. Business
4. Sau. Priti w/o Shekhar Lande
aged about 37 yrs., Occ. Household
5. Nishant s/o Manohar Buradkar
aged about 32 yrs., Occ. Business.
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All R/o Hill Top Lodge, Opp.
Patwardhan High School, Sitabuldi, Nagpur
District - Nagpur.
Mr. T.D.Mandlekar, counsel for the petitioner.
Mr. V.G.Bhamburkar, counsel for the respondents.
CORAM : AVINASH G. GHAROTE, J.
Date of reserving the judgment : 03/11/2023
Date of pronouncing the judgment : 10/11/2023
JUDGMENT
1. Heard. Rule. Rule made returnable forthwith. Heard
finally with the consent of the learned counsel for the rival parties.
2. Both these petitions question the judgment passed by
the Additional Judge Small causes court in M.J.C. No.28/2005
dated 9/2/2021 under Section 8 of the Maharashtra Rent Control
Act fixing the fair rent of the premises in question at Rs.12,000/-
per month [@ Rs.20/- per sq. ft. for the area of 645 sq. ft.]
payable from the date of filing of the MJC and the judgment of the
learned District Judge- 3 in revision No.17/2014 dismissing the
revision (pg.197).
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3. Writ Petition No.1952/2021 is by the tenant
challenging both the judgments fixing the fair rent at Rs.12,000/-,
being aggrieved by the fixation as well as quantum. Writ Petition
NO.3221/2023 is by the landlord seeking enhancement of the rate
at which the fair rent has been fixed.
4. It is not in dispute that the suit premises is a shop
No.2-Southern side shop, on the ground floor of the building
situated on Nehru Marg opposite Patwardhan High School at
Sitabuldi Nagpur bearing house no.291 [old] 386 [new] within
the limits of the Nagpur Municipal Corporation, Nagpur. The
ownership of the shop premises by the landlord is not disputed,
nor is it disputed that the tenant is running his business therein
under the name and style of "Nagpur Popular Book Shop". It is
also not disputed that the tenancy is since 15/9/1986.
5. There appears to be a dispute regarding the area of
the shop. The landlord in his application under section 8 claims
that it is admeasuring 645 sq. ft., (i.e. 33 x 15 ft. = 495 sq. ft. on
the ground floor and 15 x 10 ft. = 150 sq. ft on the mezzanine
floor), as against which the tenant claims the area in his
possession to be 450 sq. ft. The monthly rent of the shop no.2 is
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Rs.900/- per month inclusive of corporation taxes and exclusive of
electricity consumption charges. The tenancy is governed by the
English calendar month and commences on 1st of each month.
6. The application was initially initiated by Manohar
Ramdas Buradkar, upon whose demise on 27/12/2012 his legal
representatives were brought on record.
7. On behalf of the landlord two witnesses have been
examined (1) Praveen s/o Manohar Buradkar (pg.116) at Exh.21,
as the power of attorney of the original applicant - Manohar
Buradkar, who has deposed that there were two shops on the
ground floor of house no.386 on the front side of the building and
one of them, the southern shop was being occupied by the tenant
from where he was doing the business of sale of books under the
agreement dated 15/9/1968. The other shop on the ground floor
(northern side) was in possession of the uncle of AW-1 - Rajendra.
He further deposed that the area in possession of the tenant
including that of the mezzanine floor was 645 sq. ft. and the rent
being very meagre, the premises being situated in the commercial
locality, being used for commercial purposes a rate of Rs.60/- per
sq. ft. as fair rent was reasonable. His cross-examination,
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indicates, that there is no cross-examination regarding the area,
except for a suggestion in para 17 to which he answers that there
is a possibility that suit shop block comparatively may be of less
area than the shop block of Rajendra Buradkar. He, however,
admits that he has not produced any document on record to show
that the tenant was in possession of 33 x 15 ft. on the ground
floor and 15 x 10 ft. on the mezzanine floor nor has produced the
sanction map of the building on record. What is material to note
that in his examination-in-chief below Exh.21 AW-1 has only
produced the certified copy of the power of attorney executed in
his favour by his father at Exh.22 and no other document. He also
admits in para 21 that he has not produced on record any
document to show that the prevailing rate of rent in that area was
Rs.60/- per sq. ft. and that this was not the rate which was
mentioned in the application, as the application was filed in the
year 2005. He also admits not to have placed on record any
document to show that municipal taxes had increased.
8. The other witness examined was Nishant s/o
Manohar Buradkar at Exh.31/C who deposed that his father
Manohar had executed an agreement of tenancy in favour of one
Manoj Dewaji Ambule in respect of a small room admeasuring
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4.5 x 6.5 ft. in the premises of the building named as Hill Top
Lodge, New House No.386 for which the rent was Rs.2300/- per
month. In his examination-in-chief he had produced a certified
copy of the plaint in RCS No.298/2011 at Exh.40 filed by the said
Manoj Ambule against Manohar in which the above position was
indicated. His evidence does not say anything else. Thus, on behalf
of the applicants the entire evidence comprises that of the two
sons of the original applicant and the plaint in RCS No.298/2011
(Manoj Dewaji Ambule Vs. Manohar) a suit for declaration and
permanent injunction for restraining the landlord from disturbing
his possession at Exh.40.
9. On behalf of the tenant he examined himself at
Exh.47, a perusal of which, would indicate, that he agrees that
what is let out to him is an area admeasuring 33 x 15 ft. on the
northern side of the building which included the mezzanine floor
admeasuring 30 x 10 ft. including one toilet and bathroom. It is
his contention that initially four additional rooms were tenanted
to him on the first floor which were vacated and the shop premises
was also shifted on the southern side because of which he lost
frontage and thereby business. He further states that the area does
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not command the rent which is being claimed of Rs.12,000/- per
month and the initial rent which was Rs.375/- per month in 1976
was from time to time increased to the present rent of Rs.900/-
per month.
10. In his further examination-in-chief the tenant has only
exhibited two documents one at Exh.48 the judgment in RCS
No.602/2004, initiated by Manohar against him for the need of his
son Praveen and the deposition therein at Exh.49. He states in the
cross-examination that the area in his occupation may be 450 sq.ft.
He however, admits, that there is a tenant Manoj Fulwala in front
of the suit shop, which is a Tin-Tapari.
11. It is based upon the above position that the learned
Small Causes Court by his judgment dated 05/04/2014, by relying
upon the guidelines by the Hon'ble Apex Court regarding the fair
rent in Mohd. Ahmad Vs. Atma Ram Chauhan reported in 2011
AIR SCW 1 rendered a finding that the area in occupation of the
tenant was 640 sq. ft. and considering the locality in which the
premises was situated held that the rent of Rs.20/- per sq. ft.,
would be the fair market rent and accordingly fixed the same from
the date of the application.
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12. Two revisions were filed against the judgment dated
5/4/2014 in MJC No.28/2005. Civil Revision No.17/2024 was
filed by the tenant and Civil Revision No.21/2014 was filed by the
landlord. The learned Revisional Court by two judgments both
dated 9/2/2021 dismissed both the revisions holding that the rent
fixed by the Small Causes Court of Rs.12,000/- per month was
correct.
13. Mr. Mandlekar, learned counsel for the tenant submits
that there is no material on record for the Courts below to have
arrived at a finding regarding the area as well as the fair rent of
the shop premises, considering the nature of evidence brought on
record by the landlord. No agreement of leave and licence,
tenancy has been placed on record in respect of any premises in
the vicinity of the suit premises to demonstrate what is the rate of
rent prevailing in the locality. No document from the office of the
Sub-Registrar of documents, also has been brought on record to
indicate what was the ready reckoner rate prevailing in the
locality, so as to make available to the Courts below, some basis for
determining what would be the fair rent, considering which he
submits that the rate of Rs.20/- per square feet awarded by the
Courts below, was fanciful and without any basis at all. The
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learned counsel contends that without the requisite material to
determine the rate of rent prevailing in the locality as indicated
above any figure arrived at would not stand the test of evidence
which is required, in law, to arrive at any figure as to the fair rent.
The plaint in RCS. No.298 of 2011 filed by Manoj Ambule, cannot
form the basis of any determination, as that does not depict the
correct position. He thus contends that both the judgments are
required to be quashed and set aside and the application u/s 8 is
required to be dismissed.
14. Mr. Bhambhurkar, learned Counsel for the landlord,
while supporting the impugned judgments, contends that the rate
awarded needs enhancement, as the shop premises in situated in
the heart of the city which is a commercial district, with all
facilities and amenities at a stones throw distance. The Metro
Station is at a walking distance of 100 meters; the Sitabuldi
Market is at a distance of 300 meters; there are hotels; hospitals;
commercial shops, within a radius of 200 meters and considering
the tenancy was of the year 1968 and the rent was Rs.900 per
month, the same needed to be enhanced, in view of the passage of
time. The last revision of rent was done in some decades ago at
Rs.900/- per month. Time, rising pricing index, cost of living and
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various other factors, according to him have contributed for the
need to claim fixing the fair market rent. The plaint in RCS No.298
of 2011 according to him, was enough to form a basis for
enhancement of the rent. The principles as enunciated in Mohd.
Ahmad (supra) also indicate the need to enhance the rent to a fair
rent which have been taken into consideration by the Courts
below in determining the fair rent, which needs enhancement, to
what has been claimed by the landlord to Rs.60/- per square feet.
He therefore submits that the fair rent fixed by the Courts below
in fact needs enhancement, to the extent as claimed by the
landlord.
15. I, have gone through the material on record in both
the petitions; the application, reply, evidence and judgments. It
cannot be disputed that the fair rent of a premises has to be fixed
on the basis of the prevailing rent in the locality for similar
premises. The prevailing rent can be demonstrated by agreements
of lease, leave and licence or any other mode of letting premises,
by producing on record certified copies of such documents or their
Index-II entries in the office of the Sub-Registrar, where they may
have been registered. The fair rent can also be demonstrated by
rent receipts, admission of tenants in legal proceedings, and any
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other document(s) which can be said to have a material bearing
on this factor. At times, in absence of such documents, even the
annual letting value taken into consideration by the Municipal
Corporation for determining the Municipal Taxes, could also form
the basis of such determination. The ready reckoner prepared by
the Collector of Stamps under the provisions of the Maharashtra
Stamp Act, could also give an indication of the market rate of sales
in the locality and thus permitting the Court to have an idea of the
value of the properties as prevailing in the locality, thereby giving
a pointer for the purposes of determining the fair rent. In the
instant case, however, what is available is only the plaint in RCS
No.298 of 2011 a perusal of which indicates that for an area
admeasuring 4.5 x 6.5 feet = 29.25 sq. feet the rent paid by the
plaintiff therein was Rs.2300. In my considered opinion, the same
being part of the judicial record of the Court, can be taken into
consideration for determining the fair rent. Since evidence has
come on record from both the sides that there were only two shop
blocks on the ground floor of the building, out of which the
Southern side shop is occupied by the tenant and what was in
occupation of Manoj Ambule, the plaintiff in RCS No.298 of 2011,
only a tin tapari, in front of the shop of the tenant, the position
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that Manoj Ambule, was occupying a portion of land in front of
the shop occupied by the tenant, becomes an undisputed one (see
cross-examination of the tenant-para 15, Exh-47). In that light of
the matter, the averments in RCS No.298 of 2011, can be taken
into consideration as one of the factors for determining the fair
rent of the premises as occupied by the tenant. It is however also
necessary to note that though material as indicated above could
have been brought on record by the landlord, to demonstrate what
was the rent prevailing in the vicinity, that however has not been
done, which would indicate a failure on part of the landlord to
procure the relevant material necessary, in the above form for the
determination of fair rent for the shop premises. However the
plaint in RCS No.298 of 2011, being the sole material available, to
indicate the rate of rent, the same will have to be considered with
all caution. It is also necessary to note that since the plaint in RCS
No.298 of 2011, was on record and was exhibited in the evidence
of AW-2, as Ex.40, the tenant was aware that this was going to be
used by the landlord, to base his claim for fair rent. In this
circumstance, the tenant could have brought material on record to
indicate, what according to him was the fair rent prevailing in the
vicinity, if he wanted the Court not to place any reliance upon
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Ex.40. The tenant also has miserably failed to bring any material
on record, to indicate that the rate of rent in the locality, was not
the one which was indicated by the averments in Ex.40, but
something else. The entire case therefore is based on Ex.40 and
will have to be considered in its background.
16. The Plaint in RCS.No.298 of 2011, as indicated above
demonstrates the payment of rent for a tin tapari admeasuring
29.25 sq. feet, which appears to be in the front marginal space of
the plot and also not a sanctioned construction to be Rs.2300 per
month. Calculating the rent per square feet on its basis i.e.
2300/29.25 gives a figure of Rs.78.63 per square feet. Even if we
take the area occupied by the tenant of shop no.2, as 450 sq. feet
as per his contention, then the fair rent at the above rate would be
450 X 78.63 = Rs.35,383.5 per month. As against this the learned
Small Causes Court has fixed the fair rent @ Rs.20/- per square
feet, which in my considered opinion is definitely on the lower
side, considering the above calculations, based upon Ex.40.
However as indicated above, the learned Small Causes Court
while fixing the fair rent has chosen to err on the side of caution ,
considering that Ex.40, was the only evidence and has therefore
fixed the fair rent @ Rs.20/- per square feet, which by all terms,
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appears to be a reasonable amount, considering that the last
increase of rent by the tenant was done some decades ago and the
fact that Sitabuldi area in Nagpur city is the heart of the
commercial district with all facilities and amenities available at
walking distance. For fixing the fair rent a balance has to be
achieved, considering also the fact that the tenant is an old one,
no repairs, improvements have been demonstrated to have been
effected to the tenanted premises by the landlord and at the same
time considering that there is definitely a need for increase of rent
considering the passage of time and the landlord being required to
be awarded a fair return for the premises being occupied by the
tenant. In my considered opinion, the judgment of the learned
Small Causes Court, can be said to have achieved such a balance,
considering the various factors as indicated above. I, therefore am
of the opinion, that considering the factual position as extant and
the fact that Ex.40, is the only material on record to indicate the
rate of rent, and the failure on part of the landlord as well as the
tenant to bring other relevant material on record, the rate of rent
as fixed by the learned Small Causes Court can be said to be fair
and proper and thus does not require any interference in writ
jurisdiction, and also for the reason, that there are concurrent
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findings of facts rendered by both the Courts below and nothing
has been brought to my notice to indicate perversity in that view.
17. Though Mohd. Ahmad (supra) has been relied upon
by the learned Counsel for the tenant, it in fact spells out the need
to enhance the rent equivalent to the market rate (see paras 21
and 22 therein).
18. In the result both the petitions are hereby dismissed.
Considering the circumstance there shall be no order as to costs.
19. Rule stands discharged.
(AVINASH G. GHAROTE, J.)
Wadkar
Signed by: Mr. G.S. Khunte
Designation: PS To Honourable Judge
Date: 10/11/2023 17:14:46 KHUNTE
