Bombay High Court
Sunil Ramchandra Chaudhary And Others vs The State Of Maharashtra Through Its ... on 22 August, 2024
Author: Ravindra V. Ghuge
Bench: Ravindra V. Ghuge
2024:BHC-AUG:19014-DB
WP-8448-2024-judgment.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 8448 OF 2024
1. Sunil Ramchandra Chaudhary
Age: 64 years, Occupation: Business,
2. Anil Ramchandra Chaudhary
Age: 57 years, Occupation: Business,
Petitioner Nos. 1 and 2
R/o: 24, Budgujar Plot,
80 feet road, Dhule 424001
3. Sou. Sadhana Dattatraya Wavhal,
Age: 60 years, Occupation: Self-employed,
R/o: 14/601, Flower Valley Complex,
Eastern Express Highway,
Thane (W)-400 601 ... PETITIONER
VERSUS
1. The State of Maharashtra
Through its Principal Secretary,
Tribal Development Department,
Mantralaya, Mumbai - 32
2. The Commissioner,
Tribal Development,
Adivasi Vikas Bhavan, Nashik
3. The Project Officer,
Integrated Tribal Development Project,
Dhule ... RESPONDENTS
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....
Mr. V. D. Hon, Senior Advocate i/b Mr. A. V. Hon, Advocate for the
Petitioners
Mr. R.S. Wani, AGP for the Respondent - State
....
CORAM : RAVINDRA V. GHUGE AND
Y. G. KHOBRAGADE, JJ.
RESERVED ON : 12.08.2024
PRONOUNCED ON : 22.08.2024
JUDGMENT (Per - Y. G. Khobragade, J.) :
-
1. Rule. Rule made returnable forthwith and heard finally
by the consent of the parties.
2. By the present Petition under Article 226 of the
Constitution of India, the Petitioners have put forth prayer clauses
(B), (C), (D), (E) and (F) as under:-
"[B] Issue a writ of certiorari or writ in the like nature and
quash and set aside the impugned communication dated
2.07.2024 issued by the Project Officer, Integrated Tribal
Development Project, Dhule.
[C] Issue a writ of certiorari or writ in the like nature and
quash and set aside the impugned communication dated
31.05.2024 issued by the Principal Secretary, Tribal
Development Department, Mantralaya.
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[D] Issue a writ of certiorari or writ in the like nature and
quash and set aside the impugned order dated 4.08.2023
passed by the Commissioner, Tribal Development Department,
Nashik.
[E] Issue a writ of mandamus or writ in the like nature
directing the respondents to fix rent of Chaudhari Property, Plot
No.24, Badgujar Plot, 80 feet road, Near Dr. Subhash Bhamre,
Dhule 424004 ("The Property") as per the rent certificate
issued on 12.04.2023 issued by Executive Engineer, Public
Works Department, Dhule.
[F] Issue a writ of mandamus or writ in the like nature
directing the respondents to release the arrears of rent of
Chaudhari Property, Plot No.24, Badgujar Plot, 80 feet road,
Near Dr. Subhash Bhamre, Dhule 424004 ("The Property")
from 1.09.2018 as per the rent certificate issued on 12.04.2023
issued by Executive Engineer, Public Works Department, Dhule. "
3. Heard learned Senior Advocate Shri Hon, on behalf of
the Petitioners and Mr. Wani, learned AGP on behalf of Respondents,
at length.
4. Mr. Hon, the learned Senior Advocate canvassed that, on
2nd November,2018, the Petitioners are entered into an rent
agreement with the Respondents for letting the property bearing Plot
No.24, Badgujar Plot, 80 feet road, Near Dr. Subhash Bhamre, Dhule.
As per said agreement it was agreed about determination of rent of
premises by the Public Works Department (P.W.D.). On 12.04.2023,
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the Executive Engineer, P.W.D. has issued a rent certificate deriving
the rent @ Rs.45/- per square feet. However, the Respondents have
overlooked the rent certificate and granted rent certificate as per the
old rate on 25.05.2019. So also, the Respondents turned down the
request of the Petitioners for revision of the rent certificate issued on
12.04.2023, 04.08.2023 and 31.05.2024.
5. It is further canvassed that on 23.04.1984, the State
Government issued a circular and thereby framed guidelines for
fixation of rent certificate in respect of private properties. As per said
circular, the Respondents are required to consider the prevailing
market rate for determination of the rent. On 16.02.1987, again
Government of Maharashtra through P.W.D. issued another circular
thereby issued guidelines for issuance of rent certificate while taking
the private properties on rent by the department of the State
Government. The learned Senior Advocate appearing for Petitioner
further submits that the Respondent Authority required to consider
prevailing market rate of rent as applicable for the local area as per
the circular dated 15.02.2005 while taking the private property on
rent/lease. As per said resolution, unless and until rent is fixed, the
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Government Authorities cannot take possession of the private
property. Further, on 18.10.2017, the State Government issued a
circular and framed guidelines for granting online rent certificate
while renting private properties. Therefore, the Respondent
Authorities are required to consider the prevailing market rates for
determination of rent as per said circular, which has been issued in
continuation of previous circular dated 23.04.1984.
6. The learned Senior Advocate appearing for the Petitioners
further canvassed that on 11.07.2017, the Petitioners submitted a
proposal to the Respondent No.3 Project Officer for letting their
property as per the prevailing market rates, initially for the period of
three years and possession of the writ property handed over to
Respondent No.3 on 01.09.2018. It is canvass that, while letting the
writ property on rent, the rent of Rs.1,59,352/- per month was fixed
for the period of three years i.e. @ Rs.28/- per square feet for 529.9
square meter, vide communication dated 08.07.2019. The Petitioners
lodge their protest towards the rent fixed by the Executive Engineer,
P.W.(Tribal) Department, Dhule. However, on 01.08.2019, the Circle
Revenue Officer, Integrated Tribal Development Project, issued a
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communication to the Collector, Dhule and prayed for fixation of the
rent of writ property as per the prevailing market rates because the
rent fixed by the Executive Engineer, P.W. (Tribal) Department, not
acceptable to the Petitioners.
7. The learned Senior Advocate further canvassed that the
Divisional Officer issued a communication to the Additional Tahsildar,
Dhule and recommended for fixation of rent of the writ property @
Rs.55/- per square feet, so also, the Petitioners pointed out that
various banks are paying rent @ Rs.85 - 100/- per square feet and as
such, the Petitioners are agreed for the rent of the writ property @
Rs.55/- per square feet and the prevailing market rate of rent, not
acceptable to the Petitioners. However, on 07.06.2023, Respondent
No.3, Project Officer, issued a communication to Respondent No.2,
Commissioner, Tribal Development and made a request for revision of
rent of writ property @ Rs.45/- per square feet without considering
the guidelines framed by the State Government in Government
Resolution dated 23.04.1984 and circular dated 18.10.2017.
Therefore, prayed for quashing of the impugned communications
dated 04.08.2023, 31.05.2024 and 02.07.2024 and prayed for Writ of
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Mandamus, directing the Respondents to fix the rent of writ property
as per the rent certificate issued on 12.04.2023 by the Executive
Engineer, P.W.D. Dhule. The Petitioners further prayed for
release/recovery of arrears of rent of writ property as per the rent
certificate issued on 12.04.2023.
8. Per contra, the Respondents raised the preliminary
objections about maintainability of the Petition on the ground that the
claim of the Petitioners is based on rent/lease agreement dated 2 nd
November, 2018 executed between the Petitioners and Respondent
No.3. The Petitioners have challenged the communication dated
04.08.2023, issued by Respondent No.2, the communication dated
31.05.2024 issued by Respondent No.1 and 02.05.2024, issued by
Respondent No.3. Therefore, the relationship between the Petitioners
and the Respondents is of Landlord and Tenant or Lessor and Lessee.
As per said rent agreement and rent certificate, the monthly rent of
tenanted properties fixed to the tune of Rs.1,09,220/-. Accordingly,
the Desk Officer of the State Government communicated the same to
Respondent No.2 vide impugned communication dated 31.05.2024.
Thereafter, immediately Respondent No.3 had informed the present
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Petitioners to raise invoice and collect the rent amount. However,
instead of raising the said invoice, the Petitioners are disputing about
fixation of standard rent. Therefore, there is a dispute about quantum
of standard of rent, hence, the Petition under Article 226 of the
Constitution of India is not maintainable and prayed for dismissal of
the same.
9. After considering strenuous submissions, it prima-facie
appears that there exists a dispute between Landlord- Tenant/ Lessor-
Lessee i.e. Petitioners and the Respondents, arising out of rent
agreement executed on 02.11.2018. Needless to say that to ascertain
the quantum of standard of rent both parties are required to lead
evidence and disputed question of fact of standard rate of rent cannot
be fixed by this Court by invoking the jurisdiction under Article 226 of
the Constitution of India. The relationship between the Petitioners
and the Respondents being a Landlord and Tenant is governed by the
provisions of the Maharashtra Rent Control Act, 1999. Not only this
but the relationship between the Petitioners and the Respondents
being a Lessor and Lessee is governed under the Transfer of Property
Act.
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10. In case of City and Industrial Development Corporation
Vs. Dosu Aardeshir Bhiwandiwala and Ors, (2009 1 SCC 168, the
Hon'ble Supreme Court of India has held that High Court while
exercising its jurisdiction under Article 226, is duty bound to consider
whether;
(a) adjudication of Writ Petition involves any complex and
disputed question of facts and whether they can be
satisfactorily resolved;
(b) the petition reveals all material facts;
(c) the Petitioner has any alternative or effective remedy for
the resolution of the dispute;
(d) person invoking the jurisdiction is guilty of unexplained
delay and laches;
(e) Ex facie barred by any laws of the limitation;
(f) grant of relief is against public policy or barred by any
valid law; and host of other factors.
11. In case in hand it is not in dispute that on 02.11.2018, an
agreement of rent/lease has been executed between the Petitioners
and Respondent No.3. As per said agreement the petitioners are
agreed to let out the writ property to the Respondent no. 3 for the
period of 36 months with effect from 01.09.2018 to 31.08.2021. As
per terms and conditions of the rent agreement, the Executive
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Engineer, P.W.D., was authorised to determine the rate of rent as per
current market rate and the petitioners are agreed for the same. The
writ property is a private property, which is not exempted within the
meaning of Section 3 of the Maharashtra Rent Control Act, 1999.
Needless to say that, as per terms and conditions of the rent
agreement, the relations between the Petitioners and the Respondents
are "Landlords and Tenants" as well as "Lessors and Lessees" under
Section 105 of the Transfer of Property Act, 1882.
12. Section 7(14) and (15) of the Maharashtra Rent Control
Act, 1999, read as under:-
" 7(14) "standard rent" in relation to any premises means, -
(a) where the standard rend is fixed by the Court or, as the case
may be, the Controller under the Bombay Rent Restriction Act,
1939, or the Bombay Rents, Hotel Rates and Lodging House
Rates (Control) Act, 1944 or the Bombay Rents, Hotel and
Lodging House Rates Control Act, 1947, or the Central
Provinces and Berar Letting of Houses and Rent Control Order,
1949 issued under the Central Provinces and Berar Regulation
of Letting of Accommodation Act, 1946, or the Hyderabad
Houses (Rent, Eviction and Lease) Control Act, 1954, such rent
plus an increase of 5 per cent, in the rent so fixed; or
(b) where the standard rent or fair rent is not so fixed, then
subject to the provisions of sections 6 and 8, -
(i) the rent at which the premises were let on the 1st day of
October 1987; or
(ii) where the premises were not let on the 1st day of October
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1987 or the rent at which they were last let before that day,
plus increase of 5 per cent, in the rent of the premises let before
the 1st day of October 1987, or
(c) in any of the cases specified in section 8, the rent fixed by
the Court;
(15) "tenant" means any person by whom or on whose account
rent is payable for any premises and includes,
(a) such person, -
(i) who is a tenant, or
(ii) who is a deemed tenant, or
(iii) who is a sub-tenant as permitted under a contract or
by the permission or consent of the landlord, or
(iv) who has derived title under a tenant, or
(v) to whom interest in premises has been assigned or
transferred as permitted,by virtue of, or under the
provisions of, any of the repealed Acts;
(b) a person who is deemed to be a tenant under section 25;
(c) a person to whom interest in premises has been assigned or
transferred as permitted under section 26;
(d) in relation to any premises, when the tenant dies, whether
the death occurred before or after the commencement of this
Act, any member of the tenant's family, who -
(i) where they are let for residence, is residing, or
(ii) where they are let for education, business, trade or
storage, is using the premises for any such purpose, with the
tenant at the time of his death, or, in the absence of such
member, any heir of the deceased tenant, as may be decided, in
the absence of agreement by, the court.
Explanation - The provisions of this clause for transmission of
tenancy shall not be restricted to the death of the original
tenant, but shall apply even on the death of any subsequent
tenant, who becomes tenant under these provisions on the
death of the last preceding tenant."
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13. Since, the Petitioners have prayed for fixation of standard
rent as per current market rate in pursuance of the Government
Resolution dated 18.10.2017 issued in continuation of circular dated
23.04.1984 and as such, the Respondents/Government Authorities
are not agreed for the said rate of rent as well as the rent certificate
dated 12.04.2023 issued by the Executive Engineer, P.W.D., Dhule.
14. In the case in hand it involves disputed and complex
questions of facts in respect of fixation of standard rent which is of
purely civil nature, hence, it would not be appropriate to adjudicate
the same while exercising the jurisdiction under Article 226 of the
Constitution as per the law laid down in the case of City and
Industrial Development Corporation (supra).
15. Therefore, the present Writ Petition is dismissed.
However, the Petitioners are at liberty to avail of an appropriate
proceedings before the appropriate forum for redressal of their
grievance, if so desired. Accordingly, Rule is discharged.
[ Y. G. KHOBRAGADE, J. ] [ RAVINDRA V. GHUGE, J. ]
SMS
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