Mohammad Ahmad & ANR.
Vs. Atma Ram Chauhan & Ors.
J U D G M E N T
Deepak Verma, J.
1.
Leave
granted.
2.
One
half of the lis between landlord and tenant would not reach courts, if tenant
agrees to pay the present prevalent market rate of rent of the tenanted premises
to the landlord. In that case landlord would also be satisfied that he is getting
adequate, just and proper return on the property. But the trend in the litigation
between landlord and tenant shows otherwise. Tenant is happy in paying the
meagre amount of rent fixed years ago and landlord continues to find out
various grounds under the Rent Acts, to evict him some how or the other. This
case appears to be another classic example of the aforesaid scenario.
3.
Thumb
nail sketch of the facts of the case are mentioned hereinbelow:- Appellants herein
are the tenants of two shops admeasuring 10x12 feet each, equivalent to 240 sq.
ft., situated at National Highway Chakrata Saharanpur (U.P.). The map attached alongwith
counter affidavit of the Respondent Nos. 1 to 3 (which is not disputed by the Appellants)
shows that these shops are part of the building known as Jaitpur Sadan, now
coming under commercial area. As per the sketch on record, it is bounded by 110
ft. wide National Highway to the east, a 90 ft. wide Town Hall Road to the west,
a 20 ft. by lane to the south, and nothing is shown and no construction appears
to be there in the north. In all, Jaitpur Sadan has five shops of the same size
facing east and four shops of the same size and one adjoining mini-store (which
is probably another smaller shop) and staircase for reaching first floor,
facing west.
4.
Earlier
when the abovementioned Jaitpur Sadan was constructed, it appears that the same
was about 20 Kms. away from the city of Saharanpur. Now with the passage of time,
the outer limits of the city have grown and have come to include the said building.
Thus, it can be called a commercial area.
5.
Respondent
No. 1 who was working as the Medical Officer at Zila Parishad, Saharanpur retired
on 31.07.1992. For his personal bonafide need he needed these two small shops, i.e.
an east-facing room (for consultation and setting up medical equipment) and an adjoining
west-facing room (to serve as a waiting room for patients). The sketch map shows
that one of the shops facing western side is already in his occupation. He had requested
both Appellant No.1 and Respondent No.4, Shri Md. Ahmad Iqbal, respectively, for
release of any one pair of shops, but neither of the two acceded to his
request.
6.
Thus,
he filed an application under Section 21(1)(a) of the U.P. Act No. 13 of 1972 (hereinafter
shall be referred to as the 'Act') against the Appellants/Tenants as well as the
Respondent No.4 praying for release of any one pair of the said two pairs of shops
in his favour. At that time the Appellants were paying rent at Rs. 40 and Rs.
20/- (total Rs. 60/- per month) for the pair of shops in their possession.
7.
The
matter was contested by the Appellants before the Prescribed Authority/IV Additional
Civil Judge, Saharanpur, whereby and whereunder the said authority allowed the application
of Respondents Nos.1 to 3 - landlords and on a comparative assessment of facts and
circumstances, released the property (shown as Item A in the Map annexed) in
which Respondent No.4 was a tenant, in their favour.
8.
Feeling
aggrieved thereof Rent Control Appeals were preferred by both the parties, i.e.,
Respondent Nos.1 to 3 - landlords and Respondent No.4 before Additional District
Judge, Saharanpur. Vide judgment and order dated 24.08.2004, the Appellate Court
upheld the decree of the IV Additional Civil Judge, Saharanpur but modified it,
to the extent that the pair of shops in tenancy of present Appellants be
released (shown as Item B in the Map annexed), instead of the pair of shops in the
possession of Respondent No.4 as decreed by the Trial Court, and furthermore, they
were directed to deliver peaceful and vacant possession thereof to the Respondent
Nos. 1 to 3, within one month from the date of the said order. Thus, the order of
release passed by Prescribed Authority came to be partially modified by the
Appellate Authority in as much as the order of release for two shops in their favour
was maintained.
9.
Thus,
unsatisfied and feeling aggrieved thereof the Appellants preferred Civil Miscellaneous
Writ Petition No. 39727 of 2004 before learned Single Judge of the High Court of
Judicature at Allahabad. It appears while considering the application for stay,
the learned Single Judge directed that the Appellants will not be dispossessed from
the shops in dispute provided, w.e.f. September, 2005 onwards they pay the
Respondent Nos. 1 to 3, rent at the rate of Rs. 600/- per month by 7th of each succeeding
month. In case of two defaults, the stay order would stand vacated automatically.
Non-payment of rent may also be a ground for dismissal of the writ petition. The
said order was passed by learned Single Judge in the Appellants' Writ Petition on
14.09.2005.
10.
It
appears that the said writ petition continued to be pending before learned Single
Judge. The same matter again came up for hearing before another learned Single Judge
on 13.02.2007. On the said date learned counsel for Respondent Nos. 1 to 3 submitted
that the rent of the shops is too meagre looking to the present rent available for
other similarly situated shops,so a prayer was made that it be increased reasonably
according to market rate. On this offer being made, learned counsel appearing
for the Appellants submitted that the case for enhancement of rent may be
considered by the court according to the condition, location and situation etc.
of the tenanted shops. It was further submitted by the learned counsel for the Appellants
that in case Appellants are evicted from the disputed shops then they would suffer
irreparable loss and injury. Lastly, it was contended by them that even though many
accommodations are available nearby but none would be available at the rent, which
is being paid presently by Appellants to landlords.
11.
In
the light of aforesaid offer having been made by the Respondents and duly considered
by the Appellants, the learned Single Judge thought it fit to enhance the rate of
rent from Rs. 600/- per month for both the shops to Rs. 2100/- per month, payable
from February 2007.
12.
Even
though, the Appellants' writ petition was kept pending and directed to be listed
in the month of July, 2007 for reporting compliance of the aforesaid directions,
the Appellants feeling aggrieved thereof have preferred this appeal on variety
of grounds.
13.
We
have accordingly heard Mr. Dinesh Kumar Garg for the Appellants and Mrs. Rachna
Gupta and Mr. R.C. Kaushik for the Respondents and perused the record.
14.
The
first thrust of the arguments of learned counsel for Appellant was that the
rent having been enhanced to Rs. 600/- per month only on 14.09.2005, no case was
made out for further enhancement from Rs. 600/- to Rs. 2100/- per month vide the
impugned order dated 13.02.2007, within two years thereof. It was then submitted
that this Court has deprecated severely the practice of enhancement of rent in petitions
filed under Articles 226/227 of the Constitution of India, during the pendency of
those petitions on merits in the High Court, that too without any valuation report.
To advance contention in this regard, several unreported orders of this Court have
been placed before us. They are judgment and order dated 19.01.2009 passed in
Civil Appeal No. 316 of 2009 titled Md. Iqbal Vs. Atma Ram & Ors.; order dated
03.01.2008 passed in Civil Appeal No. 14 of 2008 titled Md. Safi (D) Th. his
LRs. & Ors. Vs. Sri Farhat Ali Khan and order dated 20.10.2008 passed in Civil
Appeal No. 6171 of 2008 titled Sadan Gopal Gautam Vs. Sushila Devi & Ors.
15.
Critical
scrutiny of the aforesaid judgments/ orders would show that in these cases neither
there was any offer made by the landlord nor any corresponding acceptance by the
tenant, still the High Courts, in each of these cases, had enhanced the rates of
rent unilaterally. But in the case in hand it is clearly reflected that Respondents-landlords
made an offer to the Appellants/tenants which they agreed, only thereafter the rent
was enhanced from Rs. 600/- per month to Rs. 2100/- per month, for both the
shops. Thus, the ratio of the aforesaid judgments cited by learned counsel for Appellants
has no application to the facts of the present case.
16.
On
the other hand learned counsel appearing for Respondents strenuously contended that
building known as Jaitpur house, with the passage of time has come within the
market area of Saharanpur and can therefore be called as falling within the meaning
of commercial area. It was also contended that looking to various factors such
as the nature of construction, its prime location in the city, being situated
on the main highway, and thus having easy accessibility to it and the
availability of all other amenities and facilities etc. even the rent fixed by
learned Single Judge at the rate of Rs. 2100/- per month for both the shops is on
the lower side and too meagre. According to her, the total area under occupation
of the Appellants would be 240 sq. ft. and with the rent fixed at Rs.2100/-,
the rent would come to Rs.87.50 per sq. ft. This according to her is too low, keeping
in mind the present trend and the prevalent market rate of rent. She thus submitted
that no case for interference is made out and the appeal being devoid of merit and
substance deserves to be dismissed.
17.
Thus,
looking to the matter from all angles we are of the considered opinion that the
rent as has been fixed by the learned Single Judge for the two shops having total
area 240 sq. ft. to Rs. 2100/- per month is not only reasonable but would be just
and proper. Any enhancement in rent will not ipso facto be deemed to be unreasonable
and exorbitant, unless the party aggrieved is able to give cogent reasons for
the same. In this context, we may profitably refer to the judgment pronounced by
this Court, reported in (2005)1 SCC 705 titled Atma Ram Properties (P) Ltd. Vs.
Federal Motors Pvt. Ltd. The relevant portion thereof is reproduced
hereinbelow:-
"In the case at hand,
it has to be borne in mind that the tenant has been paying Rs. 371.90/- rent of
the premises since 1944. The value of real estate and rent rates have skyrocketed
since that day. The premises are situated in the prime commercial locality in the
heart of Delhi, the capital city. It was pointed out to the High Court that adjoining
premises belonging to the same landlord admeasuring 2000 sq. ft. have been recently
let out on rent at the rate of Rs. 3,50,000/- per month. The Rent Control Tribunal
was right in putting the tenant on terms of payment of Rs. 15,000/- per month
charges for use and occupation during the pendency of appeal. The tribunal took
extra care to see that the amount was retained in deposit with it until the appeal
was decided so that the amount in deposit could be disbursed by the appellate Court
consistently with the opinion formed by it at the end of the appeal. No fault can
be found with the approach adopted by the Tribunal. The High Court has interfered
with the impugned order of the Tribunal on a erroneous assumption that any direction
for payment by the tenant to the landlord of any amount at any rate above the contractual
rate of rent could not have been made. We cannot countenance the view taken by the
High Court. We may place on record that it has not been the case of the
tenant-respondent before us, nor was it in the High Court, that the amount of Rs.
15,000/- assessed by the Rent Control Tribunal was unreasonable or grossly on
the higher side".In fact, learned Single Judge has also taken note of the aforesaid
judgment of this Court and only thereafter, the rental was worked out from Rs. 600/-
per month for two shops to Rs. 2100/- per month.
18.
No
doubt, it is true that learned Single Judge has applied his own yardstick in
working out the rent but only after both parties' contentions were taken into account
and the said yardstick appears to be absolutely correct and perfect method of working
out the present market rental of the premises.
19.
Even
though, the report of the valuation was not taken into consideration as there was
none but the assessment and judgment of the learned Single Judge cannot be
disallowed, even though detailed reasons have not been assigned by the learned Single
Judge for enhancing the rate of rent because the ultimate conclusion arrived at
by him does not suffer from any infirmity, illegality or perversity.
20.
Thus
in our considered opinion, the appeal from such an interim order of the learned
Single Judge, being devoid of merit and substance deserves to be dismissed. We accordingly
do so.
21.
According
to our considered view majority of these cases are filed because landlords do not
get reasonable rent akin to market rent, then on one ground or the other litigation
is initiated. So before saying omega, we deem it our duty and obligation to fix
some guidelines and norms for such type of litigation, so as to minimise landlord-tenant
litigation at all levels. These are as follows:-
i.
The
tenant must enhance the rent according to the terms of the agreement or at
least by ten percent, after every three years and enhanced rent should then be made
payable to the landlord. If the rent is too low (in comparison to market rent),
having been fixed almost 20 to 25 years back then the present market rate should
be worked out either on the basis of valuation report or reliable estimates of building
rentals in the surrounding areas, let out on rent recently.
ii.
Apart
from the rental, property tax, water tax, maintenance charges, electricity charges
for the actual consumption of the tenanted premises and for common area shall be
payable by the tenant only so that the landlord gets the actual rent out of which
nothing would be deductible. In case there is enhancement in property tax, water
tax or maintenance charges, electricity charges then the same shall also be
borne by the tenant only.
iii.
The
usual maintenance of the premises, except major repairs would be carried out by
the tenant only and the same would not be reimbursable by the landlord.
iv.
But
if any major repairs are required to be carried out then in that case only after
obtaining permission from the landlord in writing, the same shall be carried out
and modalities with regard to adjustment of the amount spent thereon, would have
to be worked out between the parties.
v.
If
present and prevalent market rent assessed and fixed between the parties is paid
by the tenant then landlord shall not be entitled to bring any action for his
eviction against such a tenant at least for a period of 5 years. Thus for a period
of 5 years the tenant shall enjoy immunity from being evicted from the
premises.
vi.
The
parties shall be at liberty to get the rental fixed by the official valuer or by
any other agency, having expertise in the matter.
vii.
The
rent so fixed should be just, proper and adequate, keeping in mind, location, type
of construction, accessibility with the main road, parking space facilities available
therein etc. Care ought to be taken that it does not end up being a bonanza for
the landlord.
22.
These
are some of the illustrative guidelines and norms but not exhaustive, which can
be worked out between landlord and tenant so as to avoid unnecessary litigation
in Court.
23.
As
mentioned hereinabove, the aforesaid appeal is dismissed with costs throughout.
24.
Counsels'
fee Rs. 10,000/-.
.....................J.
[DALVEER BHANDARI]
....................J.
[DEEPAK VERMA]
New
Delhi
May
13, 2011
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