Rajasthan High Court - Jodhpur
Jagdish Prasad vs State And Ors (2023:Rj-Jd:32611) on 4 October, 2023
Bench: Nupur Bhati
[2023:RJ-JD:32611]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 3547/1999
Jagdish Prasad son of Shri Jeewan Mal, aged about 39 years,
resident of Khatripura, Nagaur
----Petitioner
Versus
1. State of Rajasthan through Director, Local Bodies,
Government of Rajasthan, Jaipur.
2. Municipal Board, through its Chairman.
----Respondent
For Petitioner(s) : Mr. Sunil Mehta
For Respondent(s) : Mr. R.S. Mankad for
Mr. Bheem Arora
HON'BLE DR. JUSTICE NUPUR BHATI
Order
04/10/2023
1. The present writ petition has been filed under Article 226 of
the Constitution of India with the following prayer:-
(a) by an appropriate writ, order or direction the order
Annexure-5 dated 27.08.1998 may be ordered to be
modify in accordance with the judgment of this Court
Annexure-7.
(b) by an appropriate writ, order or direction the penalty
imposed by the respondent No.2 may be quashed.
(c) Any other appropriate relief as your Lordships may
please be granted in favour of the petitioner.
(d) Costs of the petition may kindly be awarded in
favour of the petitioner.
2. Learned counsel for the petiitoner submits that the
controversy involved in the writ petition is squarely covered by the
order dated 25.02.1991 passed in S.B. Civil Writ Petition No.1551
of 1989 (Prem Kumar Vs. State of Raj. & Ors.) and the relevant
portion is reproduced as under:-
[2023:RJ-JD:32611] (2 of 3) [CW-3547/1999]
21. A perusal of the Government order dated 10.8.1983 as
quoted above would show that it is a composite order and
whereby a direction has been given for increasing the rent for
commercial and non-commercial premises of the Municipalities
and other related matters. This will not fall in clause (f)
exclusively as it talks about execution of the lease-deed and
increasing of the rent. It further contemplates that the rules of
Teh Bazari have been dispensed with and now the Rules of
1974 will govern. Therefore, to say that this Government order
provides for licence fee and that can be covered by Section 297
(2) (f) is not correct. A reading of whole of the order would
show that these are the general guidelines which purported to
have been issued under Section 297(1) of the Act and not by
Section 297(2) (f) which talks about prescribing of licence fees
only. Therefore, the contention of learned counsel for the
respondent that this order has been issued under Section
297(2) (f) cannot be sustained nor this can be made the basis
for increasing the rent of these lease-holders, as I have found
that the petitioners are lease- holders and rent of such lease-
holders cannot be unilaterally increased. Therefore, this
Government order cannot provide a valid basis for increasing
the rent of the petitioners. In this connection, reference may be
made to (4) Hari Kishan etc. etc. v. State of Raj. & anr. wherein
it was held as under-
"Notices by 'Devasthan' deptt. to tenants of Devasthan
properties for enhanced amount of rent-Devasthan deptt.
cannot enhance rent unilaterally because rent is payable
according to bilateral contract and as such, held no liability for
increased rent arises"
22. Before parting with the case, I may also like to refer to the
decision given by Hon'ble Mr. M.C. Jain, J. as he then was, in
the case of Nathmal Vs. The Municipal Council, Jodhpur. On the
facts in that case it was found that the premises were given to
the petitioners as a licensee and not by way of lease-deed. As
against this in the present case I have found in the back ground
of the whole case that the petitioners are lessees, therefore, the
ratio laid down in that case is not applicable in the present case.
[2023:RJ-JD:32611] (3 of 3) [CW-3547/1999]
23. However, these persons are occupying these premises for
quite some time and the price index has increased all around,
therefore, the petitioners shall pay the increased rent to the
extent of 10% of their basic rent and for future increase of the
rent, it will be open for the Municipal Council to decide in
accordance with law.
24. In the result, l allow the writ petition and quash the orders
Exs. 3 and 7 and direct that the petitioner shall pay 10%
increased rent and future increase of rent shall be decided by
the Municipal Council in accordance with law.
25. All the writ petitions mentioned in Schedule A are also
disposed of.
3. Learned counsel for the respondent is not in a position to
refute the same.
4. In view of the submission made above, this Court deems it
appropriate to allow the writ petition and the same is hereby
allowed. The impugned order dated 27.08.1998 passed by the
Executive Officer, Municipal Board, Nagaur is quashed and set
aside. However, since the petitioner is occupying the premise in
dispute for quite some time and the price index has increased all
around, therefore, the petitioner shall pay the increased rent to
the extent of 10% of his basic rent and for future increase of the
rent, it will be open for the Municipal Council to decide the same in
accordance with law.
5. Stay petition and all pending applications, if any, stand
disposed of.
(DR. NUPUR BHATI),J
15-amit/-
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