Shamsher Singh vs Union Of India & Others
2021 Latest Caselaw 1673 j&K/2

      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT SRINAGAR


                                        Reserved on: 22.12.2021
                                        Pronounced on: 24.12.2021

                          OWP No.551/2014
                           IA No.01/2015
                          CM No.6652/2021


SHAMSHER SINGH                                     ...PETITIONER(S)

          Through: Mr. M. A. Qayoom, Advocate.

Vs.

UNION OF INDIA & OTHERS                          ....RESPONDENT(S)

          Through: Mr. T. M. Shamsi, ASGI


CORAM:       HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE


                              JUDGMENT

1) According to the petitioner a building known as "Sukh Niwas"

situated at Rajbagh, Srinagar, along with land measuring 04 kanals

underneath and appurtenant thereto belonging to one late Col.

Sukhdev Singh Samyal, was taken on rent by the respondents way

back in the year 1968 on monthly rent of Rs.900/ which was later on

enhanced to Rs.1500/ per month. Upon death of Col. Sukhdev Singh,

his widow Smt. Chain Devi was declared legal heir of the deceased

with respect to the aforesaid property and was she appointed her two

sons, namely, Randeep Singh Samyal and Jagdeep Singh Samyal as

her attorneys to look after the property and to receive rent on her

behalf in equal proportions. The above named two persons received

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the rent of the building up to November 1989/March, 1991

@Rs.1500/ which was divided amongst the aforesaid persons in

equal proportion. After the death of above named two persons, the

rent was withheld by the respondents.

2) It is further averred that upon death of Randeep Singh and

Jagdeep Singh, Smt. Sita Devi daughter-in-law of late Col. Sukhdev

Singh Samyal was given the right to hold the property in question in

terms of Government Order No.Rev(NDK) 111 of 2004 dated

10.06.2004. She appointed petitioner as her attorney and authorised

him to look after the property and to deal with it.

3) It is further averred that on 30.06.2004, petitioner served a

notice through his Advocate upon respondent No.6 asking him to

pay the arrears of rent @ Rs.50,000/ from the date the same has

remained unpaid and also to vacate the premises and to hand over its

possession to the petitioner within a period of one month from the

date of receipt of the notice. It is averred that respondent No.6, in

terms of order No.GWSP/A-1/2004-05 dated 06.09.2004, appointed

a Board of Officers of Gulmarg Winter Project and authorized the

said Board to conduct negotiations with regard to the settlement of

rent. It is submitted that the Committee members held negotiations

with petitioner and came to the conclusion that an amount of

Rs.40,000/ per month should be paid to him as rent. It is also

submitted that the respondent No.6, upon receipt of report dated

14.09.2004 from the Board of Officers, addressed a communication

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dated 20.09.2004 to respondent No.5 whereby he sought necessary

instructions in the matter. In the meanwhile, respondents without

paying rent @ Rs.40,000/ per month as was recommended by the

Board of Officers of Gulmarg Winter Project, vacated the said

building in the month of December, 2004. Thereafter petitioner again

served a notice through his counsel upon respondent No.3 bringing

to his notice all the facts and a request was made to get the loss

caused to the building assessed and to pay arrears of rent w.e.f.

1989/1991 to December, 2004 along with interest @ 18% within a

period of one month from the date of receipt of the notice.

4) It is further case of the petitioner that despite receipt of notice

dated 30.03.2005, no steps were taken by the respondents to pay the

arrears of rent. In the meanwhile, in the year 2008, petitioner became

owner of the property in question in his own right. After becoming

owner of the property in question, petitioner again approached the

respondents requesting them to pay damages on account of loss

caused to the building as well as arrears of rent. Due to the persistent

requests of the petitioner, a Committee was constituted by the

respondents in the year 2011 to discuss the issue. However, the

Committee did not meet and no action in the matter was taken.

Ultimately petitioner served a notice dated 12.02.2014 through his

counsel upon the respondents asking them to settle his claim

pertaining to loss caused to the building and payment of arrears of

rent of the building at enhanced rate of Rs.50,000/40,000 per month.

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5) With the aforesaid averments, petitioner has sought a direction

upon respondents to pay the compensation on account of loss caused

to the building in question by their overt and covert acts of omission

and commission to be assessed by a team of experts. A further

direction has been sought upon the respondents to pay arrears of rent

of the building for the period commencing from 12/1989/04/1991 to

December, 2004, to the petitioner @ Rs.50,000/Rs.40,000 per month

along with interest @ 18% per annum.

6) The petition has been contested by the respondents by filing a

reply thereto. In their reply respondents have raised preliminary

objection that the petitioner has raised disputed questions of fact

which cannot be determined in these proceedings. It has been further

contended that the petition is barred by delay and laches.

Respondents have also contended that question of enhancement of

rent and other ancillary subject matters are governed by the

provisions of the Jammu and Kashmir Houses and Shops Rent

Control Act, 1966, as such, the instant petition is not maintainable.

7) On merits, respondents have, while admitting that the building

in question was taken on rent by them from the predecessor-in-

interest of the petitioner in the year 1968, claimed that the rent at the

agreed rates i.e. initially at Rs.900/ and subsequently at Rs.1500/ per

month stands paid to the owners of the building. It has been claimed

by respondents that rent was never enhanced beyond Rs.1500/ per

month but only the demand of enhancement of rent was made by the

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petitioner which was forwarded to the concerned competent

authorities for approval but the same was not approved. It has been

contended that rate of rent cannot be enhanced on the whims of the

owner of a property. It is claimed that the report of the Board of

Officers recommending enhanced rate of Rs.40,000/, was only a

recommendation which was never approved by the competent

authority. It is further averred that when the competent authority did

not give final assent to the report regarding enhancement of rent, the

respondents decided to vacate the premises and, accordingly, the

building in question was vacated.

8) Regarding loss alleged to have been caused to the building due

to its use by the respondents, it has been claimed by the respondents

that the same involves complicated questions of fact and can be

proved only by leading oral evidence and determination thereof

cannot be undertaken in these proceedings.

9) I have heard learned counsel for the parties and perused the

record of the case.

10) The preliminary objection raised by the respondents about

the maintainability of the writ petition on the ground that subject

matter of the same can be agitated by petitioner before the forum

provided under the Jammu and Kashmir Houses and Shops Rent

Control Act, 1966, is without any substance. The aforesaid

legislation does not apply to the premises taken on rent by

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Government. A Full Bench of this Court in the case of Assistant

Director Central Intelligence vs. Harnam Chand & Ors. AIR 1979

J&K 33, has, while interpreting the expression "Government"

appearing in Section 1(3)(i) of the said Act, held that the said

expression includes the Union Government as well. Thus, in view of

Section 34 of the aforesaid Act, the said Legislation does not apply

to the premises taken on rent by Government of India. The

objections raised by the respondents is, therefore, without any merit.

11) Certain admitted facts which emerge from the pleadings of the

parties and the documents placed on record are that the building in

question was leased out by predecessor-in-interest of the petitioner to

the respondents in the year 1968. It also emerges that initially rate of

rent was fixed at Rs.900/ per month which was subsequently

enhanced to Rs.1500/ per month. Although respondents in their reply

have claimed that the rate of rent was enhanced with effect from

23.07.1997 yet undisputed documents on record, particularly letter

dated 20.09.2004 of respondent No.6, clearly indicates that initially

rent was fixed at Rs.900/ per month and thereafter it was enhanced to

Rs.1500/ in terms of Order No.5-TMP (15)77/Tourism dated

23.07.1977, meaning thereby the enhanced rate of rent was made

applicable from the date of aforesaid order and not from 23.07.1997,

as has been claimed by the respondents.

12) Petitioner claims that rent was not paid to his predecessor-in-

interest from December 1989/April, 1991 whereas respondents have

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claimed that entire rent whatever was due to the predecessor-in-

interest of the petitioner stands paid. In this regard it is to be noted

that in the same letter of respondent No.6, it is clearly recorded that

the rent was paid to Randeep Singh Samyal up to November, 1989

@ Rs.750/ per month and to Shri Jagdeep Singh Samyal up to

March, 1991 @ Rs.750/ per month and when both of them died, rent

of the building remained withheld till the date of issuance of said

letter.

13) Petitioner has also placed on record an inter-departmental

letter addressed to respondent No.6 asking him to convene a meeting

on 26.12.2011 to discuss the rental issue (1991-2004) of the

premises in question which by that time had already been vacated by

the respondents. This means that even on 26.12.2011, arrears of rent

had not been paid to the petitioner. Authenticity of these

communications have not been disputed by the respondents in their

reply. That being the case, the contention of respondents that they

had paid the rent whatever was due to Sita Devi appears to be

without any basis, particularly when in the year 2008 itself,

petitioner had become the owner of the property in question. The

inter-departmental communications, which are not in dispute, show

that even in December, 2011, the arrears of rent had not been settled

by the respondents. So, there was no question of respondents paying

the same to Sita Devi thereafter as she had ceased to be the owner of

the property way back in the year 2008 itself. Even otherwise,

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respondents have not placed on record any receipt or document to

show that the arrears of rent have been paid by them to the petitioner

or his predecessor-in-interest.

14) It has been contended by the respondents that there has been

delay and laches on the part of petitioner in pursing his remedy. It is

contended that petitioner cannot lay a claim relating to arrears of rent

for the period pertaining to the years 1989/1991 to 2004 and file a

writ petition in the year 2014.

15) In the above context, it is to be noted that after the death of

Randeep Singh Samyal and Jagdeep Singh Samyal, respondents

withheld the payment of rent to the owners of property. Obviously,

without stepping into the shoes of previous owners, nobody could

claim the arrears of rent from the respondents. When Sita Devi

daughter-in-law of late Col. Sukhdev Samyal became owner of the

property in terms of Government Order dated 10.06.2004, she

immediately raised her claim with regard to payment of rent with the

respondents by serving legal notices upon them. Prior to stepping

into shoes of previous owner, Sita Devi had no cause of action to

demand arrears of rent from the respondents. Right from 2004 till the

filing of the petition. The petitioner and his predecessor-in-interest

have been pursuing the matter with regard to payment of arrears of

rent from respondents regularly and even Board of Officers and

Committees have been constituted by the respondents from time to

time for looking into the matter relating to payment of arrears of rent

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and enhancement of rate of rent. The issue with regard to payment of

arrears of rent to petitioner was alive even in the year 2012 when

respondent No.6 addressed a communication to Director, Tourism,

Kashmir, and Executive Engineer, CPWD, Srinagar, requesting them

to make their representatives available for the Board constituted for

resolving the issue of payment of arrears of rent. So, it is not a case

where petitioner has allowed his claim regarding payment of arrears

of rent to become stale but it is a case where the issue regarding

payment of arrears of rent has been vigorously pursued by the

petitioner and his predecessor-in-interest. Therefore, it cannot be

stated that there is any delay or laches on the part of petitioner in

pursuing his remedy. Thus, the contention of the respondents in this

regard is found to be without any merit.

16) That takes us to the question as to whether petitioner is

entitled to recovery of arrears of rent from the respondents and if so,

at what rate and for which period. According to the petitioner,

respondents are obliged to pay arrears of rent at the enhanced rate of

Rs.40,000/ per month. In this regard petitioner has placed heavy

reliance upon the recommendation of Board of Officers dated

14.09.2004, whereby the Board has recommended that rate of rent in

respect of the property in question should be Rs.40,000/ per month.

Respondents have taken a specific stand that this recommendation

was never approved by the competent authority, meaning thereby

that the rate of rent recommended by the Board has not been

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accepted by the respondents. It is further claimed by respondents that

because the enhanced rate of rent was not acceptable to them, they

decided to vacate the premises.

17) So far as the fixation of rent of a demised premises is

concerned, the same is a contractual matter between landlord and the

tenant. Unless there is some legally enforceable contract with regard

to rate of rent agreed between landlord and the tenant, it would not

be open to a Court to issue a direction to the tenant to pay rent at the

rate claimed by the landlord. Mere recommendation of the Board of

Officers, which has not been agreed to by the tenant in this case,

does not form a binding contract between landlord and the tenant.

That being the case, respondents cannot be asked to pay rent at the

enhanced rate. The only option available in these circumstances for a

land lord is to ask the tenant to vacate the premises, which in the

instant case respondents have done on their own. Therefore,

contention of the petitioner that he is entitled to arrears of rent at

Rs.40,000/ or Rs.50,000/ per month is not tenable.

18) As already noted, as per the material on record petitioner or

his predecessor-in-interest have not been paid arrears of rent @

Rs.1500/ per month from April, 1991 to December, 2004 i.e. up to

the date of vacation of the demised premises. Besides this, one half

share of rent i.e. Rs.750/ has not been paid to the owner of the

property from December, 1989 to March, 1991. This amount is also

outstanding against the respondents making it total of Rs.2, 59,500/

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which is due to the petitioner from the respondents. This amount is

legally payable by the respondents to the petitioner being the

undisputed arrears of rent calculated at agreed rate of rent.

19) That takes us to the claim of petitioner as regards damages that

have been allegedly caused to demised premises by use and

occupation of the same by respondents. In this regard petitioner has

not placed on record any document or material to show that the

building in question suffered any damage due to use and occupation

of the respondents. Petitioner has not even quantified the loss alleged

to have been caused to his building. The respondents have

specifically denied this assertion in their reply. So, the question

whether any damage has been caused to the demised premises by use

and occupation of respondents and if so, what is the quantum of

damage caused to the building, are the issues which cannot be

decided without leading oral evidence and without subjecting the

witnesses to cross-examination. Thus, so far as this part of claim of

the petitioner is concerned, the same involves determination of

intricate and complicated questions of fact which cannot be done in

these proceedings.

20) For the foregoing reasons, the writ petition is partly allowed

and the respondents are directed to pay an amount of Rs.2,59,500/

(rupees two lakh fifty-nine thousand and five hundred only) as

arrears of rent to the petitioner along with interest @6% per annum

from the date rent had become due till the date of its actual payment.

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So far as the claim of the petitioner regarding compensation for

alleged damage caused to the demises premises is concerned, it is

provided that the petitioner shall be at liberty to avail the appropriate

remedy available to him under law.

(Sanjay Dhar) Judge Srinagar 24.12.2021 "Bhat Altaf, PS"

                                                  Whether the order is speaking:          Yes/No
                                                  Whether the order is reportable:        Yes/No




MOHAMMAD ALTAF BHAT
2021.12.24 17:34
I attest to the accuracy and
integrity of this document