Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Enhancing Rent Is Fundamental Right Of The Landlord
JUDGEMENT TITLE : Abdul Jalil Vs. Special Judge E.C.Act/Addl. Distt. (E.P.J.S.C.C.) & Others On 22/08/2007 By Allahabad High Court
CASE NO : WRIT - A NO. 69351 OF 2006
CORAM : Hon'ble Rakesh Tiwari,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

Judgment Reserved


1. Civil Misc. Writ Petition On No. 69351 Of 2006

Abdul Jalil
Son Of Late Habib Ullah ...Petitioner
Versus

Special Judge E.C.Act/ Additional District Judge, Allahabad
(exercising Powers Of Judge Small Causes Court, Allahabad).

...Respondents

Counsel For The Petitioner: Sri Ajit Kumar, Advocate
Counsel For The Respondents: Standing Counsel

Connected With:

2. Civil Misc. Writ Petition On No. 69006 Of 2006

Ram Das
Son Of Sri Lala Ram Agarwal Petitioner

Versus

1.Heera Lal
2. Duli Chandra
3. Bhagwati Prasad
Sons Of Late Mauzi Ram ..Respondents

Counsel For The Petitioner: Sri Ajit Kumar
Sri Swapnil Kumar And
Sri V.D.Agarwal, Advocates
Counsel For The Respondents: The Standing Counsel

3. Civil Misc. Writ Petition On No. 69300 Of 2006

1.Vinod Babu
2. Kailash Babu
Both Sons Of Laxmi Narain. ...Petitioners

Versus

Mehendra Pal Singh Son Of Late Ram Gulam. ...Respondent

Counsel For The Petitioner: Sri Ajit Kumar And Sri
S.K.Pandey, Advocate
Counsel For The Respondents: Sri S.K. Tyagi, Advocate


4. Civil Misc. Writ Petition On No. 69745 Of 2006

1.Smt. Zakiya Bibi
2. Smt. Farhat Naseem
Both Wives Of Sri Haji Iqbal Ahmad Petitioners

Versus

Additional District Judge/Special Judge (Anti Corruption),
Varanasi And Another.
Respondents

Counsel For The Petitioner: Sri Ajay Kumar Singh And
Sri Ashish Kumar Singh
Advocates
Counsel For The Respondents: Standing Counsel And
Sri Ratnesh Kumar Pandey, Advocates


Hon'ble Rakesh Tiwari, J


Heard Counsel For The Parties And Perused The Record.
BACKDROP.

The Question Raised By The Counsels For The Landlords Who Have Filed These Petitions Is Regarding Enhancement Of Rent By Interim Orders Or Final Decisions.
Considering The Fact That Rental Value Of The Land And Building (including Residential Accommodation As Well As The Commercial Buildings) Under The Tenancy Has Increased Many Folds. This Court By Interim Order In Exercise Of Its Extraordinary Power Under Article 226 Of The Constitution In Some Writ Petitions Wherein They Had Lost From The Court Below Increased The Rent/damages In Writ Petitions Filed By The Landlords To Do Equitable And Substantial Justice Between The Parties.

Interim Orders Were Passed On The Basis Of Plinth Area, Nature And Material Used In Construction Average Rent Prevalent In The Locality Etc. And The Class Of City. The Interim Orders Were Passed In The Petitions Where The Landlords Had Lost In The Court Below, Directing The Tenant To Pay Enhanced Rent At Par With The Market Rent As The Court Felt That Whatever May Have Been The Dispute In The Court Below The Owner/landlord Must Get The Real Rental Value For His Building Particularly When The Rent Freezed At The Level Of Year 1972. Under The Uttar Pradesh Urban Buildings (Regulation Of Letting, Rent And Eviction), Act, 1972 (hereinafter Referred To As U.P. Rent Act) In View Of Various Decisions Of The Courts On The Subject And There Being No Analogous Provisions To Section 21(8) For Enhancement Of The Aforesaid Rent Act In Respect Of Landlords And Owners Of Buildings Otherwise Than Public Buildings Etc. Covered By The Aforesaid Section 21(8) Of The Act.

Similarly Relying Upon The Decisions Of This Court Reported In 2004(2) ARC 268 Vishram Vs. III Additional District Judge, Aligarh As Well As In 2004(2) ARC 349; 2005(2) ARC 726 Gopal Prasad Agrawal Vs. Mahendra Singh Chaudhary And Others, Directions Were Given For Enhancement Of Rent Or For Payment Of Damages In Case The Possession Of A Person Is Found To Be Unauthorized Occupancy.

In Some Of Such Of The Cases The Tenants Approached The Apex Court By Filing SLPs. While Issuing Notices The Supreme Court Observed That The High Court May Hear And Decide The Writ Petition Finally And The Order Passed In One Of The S.L.Ps. Being Special Leave To Appeal (Civil) No. 18453 Of 2006 On 20th November, 2006 Is As Under:-
" Issue Notice.
Meanwhile, The Operation Of The Impugned Order Of The High Court Dated 7.10.2006 Whereby It Was Directed That The Petitioner-tenant Shall Pay Enhanced Rent @ Rs. 12050/- W.e.f. October, 2006 Shall Remain Stayed. It Is Made Clear That The Petitioner Shall Continue To Pay Or Deposit Rent At Which He Was Paying Earlier. It Is Further Made Clear That This Order Will Not Come In The Way Of The High Court To Hear And Decide The Writ Petition Expeditiously."

By Another Order Dated 2nd February, 2007 The Supreme Court In SLP No. 1401 Of 2007 Again Decided That Such Petitions May Be Decided Finally. The Order Dated 2.2.07 As Under:-
" Issue Notice.
The Operation Of The Interim Order Passed By The High Court By Which The Petitioner Is Directed To Pay Rent At The Rate Of Rs.4900/- Per Month Is Stayed. It Is, However, Made Clear That The Petitioner Will Continue To Pay/deposit The Rent At The Rate Of Rs.80/- Per Month. This Order Will Not Come In The Way Of High Court In Hearing And Deciding The Writ Petition."

In View Of The Repeated And Request Mandate Of The Apex Court The Question Of Enhancement Of Rent/damages Including Ancillary Questions Of Mesne Profits And Interest Thereon As Well As Related Provisions In Writ Petition Filed By The Landlord Posed Is Being Considered By This Court In These Connected Writ Petitions.

In Other Similar Writ Petition Also Where Rent Was Enhanced By This Court As Interim Relief To The Landlord (s) Who Had Come Up Before The High Court Against The Impugned Order Of The Courts Below, The Apex Court Expressed More Or Less The Some Desire And Requested The High Court To Decide Such Petitions.
QUESTIONS FOR CONSIDERATION.

The Writ Petitioners Are The Landlords Who Have Lost From The Courts Below. Although The Actual Facts In These Writ Petitions May Vary From Each But They Raise The Same Common Question Of Law Of Public Importance As To:-

(a) Whether High Court In Exercise Of Its Powers Under Articles 226/227 Of The Constitution Of India Can Enhance The Standard Rent Initially Determined Under Section 9 Of U.P. Act No. 13 Of 1972 (hereinafter Referred To As The Act) Or The Agreed Rent Between The Parties, In Cases Where The Landlord Has Lost From Courts Below In The Suit Pertaining To Arrears Of Rent And Eviction Pursuant To Termination Of Tenancy? If So What Basis/guidelines Are To Be Followed?
(b) Whether The Court Below Can Enhance Rent Reasonably At Par With Market Rent Prevalent In The Area/city/locality On Application Filed For Arrears Of Rent Or Eviction And Impose Damages Where Tenancy Has Been Terminated By The Landlord?

These Writ Petitions Are Therefore, Entwined By Common Questions Of Facts And Law On Enhancement Of Rent And Related Practical Evils Which Have Been Preposterous Dimension Due To Failure Of The U.P. Rent Act To Achieve Its Object Of Social Welfare Due To Legislature Wisdom Not Addressing Itself By Making Safely Provisions For The Landlords/owners Of The Buildings Which Landlords Have To Provide For Allotment Under Statutory Provisions Of The Act.

On The Request Of The Counsel For The Parties These Petitions Have Been Heard Together For Convenience Of Decision. As Many Of The Questions Posed Before The Court Are Incidently Covered By The Facts Of Writ Petition No. 69351 Of 2006 It Is Being Taken As The Leading Case. The Judgment In The Leading Case Writ Petition No.69351 Of 2006 Abdul Jalil Vs. Special Judge, E.C. Act/ADJ, Allahabad Shall Govern The Other Connected Writ Petitions.

The Basic Arguments Of The Petitioner Landlords Is That Inspite Of The Decision Against Them By The Court Below The High Court In Exercise Of Its Power Under Article 226 Can Increase The Rent At Par With Market Rent On The Basis Of Analogy Of The Provisions Under Act No. XIII Of 1972 For Balancing The Equities And Doing Substantial Justice In Respect Of The Buildings Of The Landlords On Rent Not Covered By Section 21(8) Of The U.P. Rent Act.

FACTS OF THE WRIT PETITIONS.

Before Dealing With The Judicial Pronouncements Made By The High Courts And The Apex Court Covering The Questions Raised In These Petitions In Reference To The Various Provisions Of The U.P. Urban Buildings (Regulation Of Letting, Rent And Eviction) Act, 1972, The Brief Facts Of Each Case Are Given Hereinafter To Provide Glimpse Of Dispute Involved In These Petitions For Appreciation Of The Problems Prevailing In The State Of Uttar Pradesh In The Relationship Of Tenant And Landlords Created Under The U.P. Rent Act, Which This Court Will Try To Address In Relation To Others Acts And Provisions Government Orders Etc., Applicable To The Facts And Circumstances Hereinafter.
1-Writ Petition No. 69351 Of 2006:-

The Petitioner Is Landlord Of House No.D-903 G.T.B. Nagar, Kareli, Allahabad. As It Was First Assessed On 1.4.1984 The Provisions Of U.P. Act No. 13 Of 1972 Are Not Applicable To It. It Appears That Initially The Father Of The Respondents, Late Jalil Beg Took On Rent @ Rs.400/- Per Month, Which Was Increased From Time To Time By Mutual Consent Of The Parties And The Tenant Was Paying Rs.600/- Per Month As Rent When The Tenancy Was Terminated In July, 2007.

The Landlord Is A Senior Citizen And A Practicing Lawyer In Civil Court, Allahabad. His Son Mohd. Arif Is Also A Practicing Lawyer In The High Court, Allahabad. The Claim Of The Petitioner Is That He Purchased The Aforesaid House Consisting Of 3 Bedrooms, Drawing, Dining Room, Kitchen, Toilet, Bathroom And Courtyard Admeasuring About 246.73 Sq. Metres I.e. Approximately 295 Sq.yards For Residence And For Establishment Of Chamber Therein For Himself And His Son. After Purchasing The Accommodation In Dispute The Petitioner Landlord Was Required To Get The Registered Sale-deed Of The Aforesaid House Executed In His Favour. For This Purpose ''No Dues Certificate' Was Required From The Avas Vikas Parishad But Since The Tenants Did Not Deposited The House Tax Of The Said House The Petitioner-landlord Was Compelled To Deposit The Same From His Own Sources For Execution Of The Sale-deed In His Favour.

It Is Averred In The Plaint That The House In Question Was Given To The Respondent-tenants For Residential Purposes But They Changed Its User And Started Their Business Therein In The Name And Style Of " Mirza Tour And Travel. The Tenants Also Sub Let The Part Of The House In Dispute To One Syed Ziauddin And Mohd. Zubair Without The Permission Of The Petitioner Landlord And As Such Are Liable To Be Evicted On This Ground Alone. Allegations Of Having Made Material Alterations By The Tenants In The House In Dispute Of Constructing A Tin Shed Room Have Also Been Levelled By Which The Value Of The Property Is Said To Have Been Diminished.

According To The Petitioner Landlord This Fact Came To His Knowledge For The First Time On 15.4.2002 When The Tenant In His Statement Himself Disclosed This Fact Before The Rent Control And Eviction Officer.

Since 1982 Late Jalil Beg The Father Of The Respondent-tenants Nos. 4 To 6 Did Not Pay The Rent Of The House To The Petitioner Regularly And After October, 1998 Have Stopped The Payment Of Rent To The Petitioner Altogether And Was In Default Of A Sum Of Rs. 54,894/- Towards Rent Till June, 2002.

The Petitioner Vide Notice Dated 1.7.2002 (appended As Annexure-1 To The Writ Petition) Terminated The Tenancy Of The Respondents Directing Them To Pay Amount Of Arrears Of Rent Aforesaid Amounting To Rs.54, 894/- And To Deliver Vacant Possession Of The House In Dispute To The Landlord Within 30 Days Of The Date Of Receipt Of Notice.

The Notice Aforesaid Was Received By Sri Jalil Beg, (since Deceased) The Original Tenant On 4.7.2002 But Neither The Rent Due And Demanded In The Notice Was Paid By Him To The Landlord Petitioner Nor Sri Jalil Beg Vacated The House/accommodation Under His Tenancy.

The Petitioner Claims That In The Circumstances He Was Compelled To File SCC Suit No. 22 Of 2002, Abdul Jalil Vs. Jalil Beg In The Court Of District Judge, Allahabad On 19.8.2002 For Eviction Of The Tenants From The House/accommodation In Dispute And For A Decree Of Rs.54, 490/- Towards Arrears Of Rent Due. Further Damages At The Rate Of Rs. 100/- Per Day Were Also Sought By Way Of Relief For Use And Occupation Of The Tenanted Property. After The Death Of Jalil Beg On 22.6.2003 His Legal Heirs And Representatives Were Brought On Record But None Of Them Appeared In The Aforesaid Suit In-spite Of Registered Notice By The Court. They Were Also Informed By Publication Of Summons In The Newspaper ''Dainik Jagran' Dated 2.3.2004 But They Did Not Put In Appearance To Contest The Case. Pursuant To The Order Of The Court Dated 4.4.2005 Notices Were Published On 9.4.2005 In The Newspaper " Amar Ujala" For The Second Time. Yet Again The Legal Heirs And Representatives Of Late Jalil Beg Did Not Appear In The Aforesaid Suit No. 22 Of 2002 Hence, The Court Below Vide Its Order Dated 14.10.2005 Ordered To Proceed Exparte And Therefore, Decreed The Suit.

The Petitioner Filed A Case For Execution Of The Decree Which Is Said To Be Still Pending.

In The Mean Time, The Legal Heirs And Representatives Of Deceased Jalil Beg Filed Application Under Order 9 Rule 13 C.P.C. For Recall Of The Exparte Order And Decree Dated 14.10.2005. The Special Judge (E.C. Act) Allahabad, Respondent No.1 Vide Order Dated 10.3.2006 Recalled The Exparte Order And Decree Fixing 6.4.2006 For Filing Of Written Statement By The Respondents.

Written Statement Was Not Filed By The Respondents On The Date Fixed By The Courts Below. Thereafter The Case Was Listed On 8.5.2006 When The Defendants-respondent Filed An Application For Adjournment Without Filing The Written Statement On That Date Too. The Court Allowed The Application For Adjournment Fixing 6.7.2006 For Filing Written Statement Yet Inspite Of The Fact That The Case Was Listed On 6.7.2006, 3.8.2006 And 28.9.2006 For Final Hearing, No Written Statement Was Filed By The Respondents. In The Mean Time, Smt. Qudsia Begum Respondent No.3 Wife Of Late Jalil Beg Died On 31.7.2006, Hence The Petitioner Filed An Application For Deleting Her Name As Her Legal Heirs And Representatives Were Already On Record. The Case Was Then Adjourned To 22.12.2006 For Hearing.

The Petitioner On 28.9.2006 Moved An Application For Expedite Hearing Of The Case, Which Was Disposed Of By The Court Below Observing That It Is Not Possible To Give Any Short Date In The Matter Though Order 8 Rule 1 Provides That Written Statement May Be Filed Within 30 Days From The Date Of Service But Not Later Than 90 Days From The Date Of Service Of Summons.

The Following Reliefs Have Been Sought By The Petitioner In The Writ Application:-
(a) Issue Writ, Order Or Direction In The Nature Of Mandamus Directing Respondent No.1 To Decide SCC Suit No. 22 Of 2002, Abdul Jalil Vs. Jalil Beg (since Deceased) And Others Expeditiously Within Some Stipulated Period.
(b) Issue Writ, Order Or Direction, Which This Court May Deem Fit And Proper In The Facts And Circumstances Of The Case.
(c) To Award Cost Of The Petition To The Petitioner.
(d) To Issue Writ, Or Mandamus Or Direction Commanding Respondent Nos. 4 To 6 To Pay A Sum Of Rs. 25,000/- Per Month With Effect From Termination Of Tenancy After Expiry Of One Month From The Date Of Notice Dated 1.7.2002, Terminating Tenancy Along With Interest Thereon @ Rs.18% Per Annum Since 1.8.2002, Till Delivery Of Possession Of Property In Question To The Petitioner And To Issue Direction Of Like Nature To Respondent No.1, To Order For Realization Of Aforementioned Amount From Respondent Nos. 3 To 6 During The Pendency Of SCC Suit No. 22 Of 2002, And Even After The Decision Of Suit No. 22 Of 2002, Till The Possession Of The Property In Question Is Handed Over To The Petitioner.

At The Time Of Admission On 22.12.2006 This Court Passed The Following Order In The Writ Petition.
"Heard Counsel For The Parties And Perused The Record.
Issue Notice To The Respondents Returnable At An Early Date.
Apart From Normal Mode Of Service By R.P.A.D., The Counsel For The Petitioner Shall Take Steps To Personally Serve The Respondents By 3.1.2007. The Office Shall Handover Dasti Notices Etc. To The Counsel For The Petitioner For Personal Service On The Respondents Immediately Thereafter. The Service Shall Be Effected Within One Week Thereafter. The Affidavit Of Service Shall Be Filed By The Next Date Of Listing. The Notice Shall Indicate That The Counter Affidavit Has To Be Filed By 21.1.2007. Rejoinder Affidavit May Be Filed Within One Week Thereafter.
List On 29.1.2007 Along With Writ Petition Nos. 69300,69745,69935 And 69006 Of 2006."


Affidavits Of Service Dated 18.1.2007 And 13.2.2007 Filed In Court On 28.2.2007 Has Been Filed By The Petitioner Pursuant To The Above Orders. It Is Averred In Paragraphs 3 And 4 Of The Affidavit Of Service Dated 18.1.2007 That Pursuant To The Directions Of This Court, The Deponent Went To Serve The Respondents On 3.1.2007 In Their Tenanted Accommodation At House No. D-903 Kareli Allahabad In Dispute With Witnesses Namely, Sri Muhib Ullah, Sri Nasrat Ullah Both Resident House No. D-905 Kareli Allahabad Along With Sri Mohd. Arif And Sri Zafar Ahmad. The Tenants After Going Through The Order Of The High Court Dated 22.12.2006 And Other Documents Respondent Nos. 4 To 6 Refused To Take The Notice In The Presence Of The Aforesaid Witnesses. Service Is Again Said To Have Been Refused By The Respondents In Affidavit Of Service Filed In Court On 28.2.2007.

It Is Further Averred That A Copy Of The Writ Petition, Amendment Application And Second Stay Application Along With Copy Of Order Dated 22.12.2006 Passed By The High Court Was Also Given To Counsel For Respondent Nos. 4 To 6 In The Court Below Namely Sri Kushwaha, Advocate For Service On Them Who Too Going Through The Order Dated 22.12.2006 Passed By This Court And The Document Aforesaid Appended Along With It Refused To Accept The Notices On The Ground That He Is Not Authorized To Accept Any Document Except Otherwise In The Court Below For Which He Was Engaged. The Original Notices Along With The Copies Of Second Stay Application No. 278839 Of 2006 Are Stated To Have Been Submitted Before The Court Below On 6.1.2007 Along With Application Dated 6.1.2007 By The Petitioner.

Similar Averments Have Also Been Made In Paragraphs 3 And 4 Of The Second Supplementary Affidavit Of Service.

In The 2nd Stay Application Filed By The Petitioners Praying For Ad-interim Mandamus Commanding Respondent Nos. 3 To 6 To Pay Rs.25, 000/- With Effect From Termination Of Tenancy After Expiry Of One Month From The Date Of Notice Dated 1.7.2002 Till The Disposal Of Suit, Thereafter During The Pendency Of Writ Petition Damages Along With Interest Thereon @ Of Rs.18% Per Annum. For Use And Occupation Of Property In Question Even After Determination Of Lease With Effect From 1.8.2002 As Their Tenancy Had Been Terminated In Pursuance To The Notice Dated 1.7.2002.

. The Petitioner Has Also Filed An Amendment Application For Amending The Relief Clause In The Writ Petition Which Is As Under:-
" A. To Issue Writ Or Mandamus Or Direction Commanding Respondent Nos. 4 To 6 To Pay Rs.25, 000/- With Effect From Termination Of Tenancy After Expiry Of One Month From The Date Of Notice Dated 1.7.2002 Terminating Tenancy Till The Disposal Of Suit And After It And During The Pendency Of Writ Petition Alongwith Interest Thereon @ Of Rs.18% Per Annum Since 1.8.2002 Till Delivery Of Possession Of Property In Question To The Petitioner) And To Issue Direction Of Like Nature To Respondent No.1 To Order For Realization Of Aforementioned Amount From Respondent Nos. 3 To 6 During Pendency Of SCC Suit No. 22 Of 2002 And Even After The Decision Of Suit No. 22 Of 2002, Till The Possession Of The Property In Question Is Handed Over To The Petitioner."
B- That Para 32 Of Writ Petition Be Permitted To Be Replaced By Following Para:
32-. That It Was A Case Of Contractual Tenancy. It Is A Case Of Building Assessed In Year 1984. The Provisions Of U.P.Act No. 13 Of 1972 Were Not Applicable To Building On Date Of Suit, Having Been Filed In 2002. The Tenancy Stood Terminated After Expiry Of Notice Dated 1.7.2002 Served By Petitioner Upon Tenants-respondents The Occupation Of Tenant And His Heirs, Respondent Nos. 4 To 6 Is Not Under Any Contract Of Tenancy Which Is Ceased. The Quantum Of Rent Initially Settled Also Stood Terminated Simultaneously When Tenancy Was Terminated. Because In Contract Of Tenancy The Quantum Was One Of The Factors. There Is No Embargo Or Bar On Termination Of Tenancy. It Is Case Of Unprotected Tenancy. Even In Cases Which Are Covered By Act No. 13 Of 1972 The Termination Of Tenancy Is Not Prohibited Only Eviction Is Prohibited If It Comes Under Terms Contained Under Section 20(2) Of The Act. Even In Cases Covered By The Act The Landlord Is Always Entitled To Monthly Amount Payable By Occupant Being Ex-tenant As Compensation As Against Use Of The Occupation And The Formula Which Was Adopted By Legislature Is Contained Under Section 21(8) Of The Act. There Is No Other Formula. The Market Value Of The Property In Question Today Is 30 Lacs. The Occupant To Pay 1/12th Of 1/10th Of The Market Value Of Property, Which Comes To Rs. 25,000/- Per Month. The Petitioner Is Entitled For Said Amount From The Occupants-respondent Nos. 4 To 6 From The Date Of Termination Of Tenancy. The Petitioner Cannot Be Made To Suffer For Procedural Delays. The Petitioner's Right Is To Be Crystallized On Date Of Suit. No Written Statement Has Been Filed Till Date. There Was No Issue Either On Facts Of Law. The Court Below Ought To Have Pronounced The Judgment At Once. The Petitioner Is Suffering By No Disposal Of Suit.
C- In Prayer Any Of The Following Respondents May Be Added As Respondent No.6."

2- Writ Petition No. 69006 Of 2006:-

The Petitioner Ram Das Is Owner And Landlord Of The Two Motor Garages Measuring 22 Feet X 36 Feet (approximately 11x36 Feet Each) Situated In Mohalla Bazar Kalan, Opposite Dharmshala Town Jalesar, District Etah.

It Is Stated That The Aforesaid Accommodation Was Let Out To The Father Of The Respondents Sri Mauzi Ram On 11.11.1976 @ Rs.60/- Per Month. He Committed Defaults In Payment Of Rent, As Such SCC Suit No. 37 Of 1986 Ram Das Vs. Mauzi Ram Was Filed In The Court Of Judge Small Causes Court, Etah For Arrears Of Rent And Eviction As Well As Damages For Use And Occupation And Mense Profit.

The Trial Court Decreed The Suit Vide Order Dated 14.9.1993.

The Respondent-tenants Filed SCC Revision No. 19 Of 1993 Challenging The Validity And Correctness Of The Decree Dated 14.9.93 Which Was Also Dismissed Vide Order Dated 12.5.2005 By The Revisional Court.

The Respondents Then Filed Civil Misc. Writ Petition No.42829 Of 2005, Heera Lal Vs. Ram Das Before This Court Which Was Allowed Vide Judgment And Order Dated 22.8.2006 Setting Aside The Judgments Of Both The Courts Below.

The Landlord Thereafter Moved Modification Application No. 205793 Of 2006 In The Aforesaid Writ Petition No.42829 Of 2005 With A Prayer That The Arrears Of Rent, Damages And Mesne Profit Deposited By The Tenants In The Court Below May Be Directed To Be Released In Favour Of The Landlord. Prayer For Enhancement Of The Monthly Rent Of The Accommodation To Rs. 11,500/- At Par With The Market Value Of The Property In The Area Was Also Sought For By Him.

According To The Petitioner, The Actual Market Value Of The Property In Dispute At Present Is In Fact More Than Of Rs. 20,000/- Per Sq.meter. On The Basis Of The Circle Issued By The Collector Effective From 1.6.2006 The Total Market Value Of The Two Garages In Possession Of The Respondents Being About 80 Sq.meters Is Rs. 10.40 Lacs In Addition To The Value Of The Total Construction Existing Amounting To Rs. 3 Lacs. Thus The Total Market Value Of The Property, According To The Petitioner Is Rs.10.40 Lacs + Rs. 3 Lacs= Rs. 13.40 Lacs. It Is Stated That If The Guideline As Provided In Section 21(8) Of U.P. Urban Building (Regulation Of Letting, Rent And Eviction) Act, 1972 (hereinafter Referred To As The Act) For Enhancement Of Rent In Respect Of Public Building Is Applied Then Rent Of Accommodation Would Come To About Rs. 11,200/-per Month.

The High Court Vide Order And Judgment Dated 26.10.2006 Disposed Of The Modification Application For Enhancement Of Rent With The Direction That The Applicant May File Either Writ Petition Invoking Extraordinary Powers Of This Court Under Article 226 Of The Constitution Or May File Application Before The Prescribed Authority For Enhancement Of The Rent On The Analogy Of Proviso To Section 21(8) Of The Act. The Writ Petition Has Been Filed By The Landlord As A Consequence Of Judgment Dated 26.10.2006 Praying That The Respondents Be Directed To Pay Rent/ Damages Of The Garages In Question At The Market Rate I.e. About Rs.11, 200/- Per Month For The Accommodation Under The Tenancy Of The Respondents.

The Notices Were Directed To Be Issued By Both Modes I.e. By RPAD And Dasti For Service On Respondents Vide Order-dated 22.12.2006 But Neither Acknowledgement Nor Undelivered Cover Has Been Received Back After Service. In The Circumstances, In View Of The Office Report Dated 27.1.2007 The Service On The Respondents Was Deemed To Be Sufficient.

3- Writ Petition No. 69300 Of 2006:-

The Petitioners Are Landlords Of The Disputed Shop Situated In Mohalla Alamgiriganj Math Ki Chauki, Bareilly. The Said Property Has Been By The Petitioner Vinod Babu From Smt. Vimla Devi In The Year 1989. Misc. Case No. Nil Of 1990 Was Filed By Respondent Mahendra Pal Singh Impleading Smt. Vimla Devi Alleging That He Was Tenant In The Accommodation In Dispute @ Rs.90/- Per Month. No Rent Was Paid To The Petitioner Landlord And The Tenant Started Fresh Construction Making Material Changes In The Building. The Petitioner Then Filed Misc. Case No. 124 Of 1993 Against Respondent In The Court Of Civil Judge (Junior Division), Bareilly For Permanent Injunction Restraining The Respondent From Changing The Nature Of The Disputed Property And From Raising Any Construction Of Permanent Nature. It Was Decreed Vide Judgment And Order Dated 6.5.98.

The Respondent Also Filed Suit No. 18 Of 2003 Mahendra Pal Singh Vs. Kailash Nath And Another Before The Court Of Judge Small Causes Court, Bareilly Against The Landlords Alleging That They Have Caused Damage To The Shop In Dispute By Which It Is No Longer Windproof And Waterproof And Require Major Repairs For Making Windproof And Waterproof Again.

The Petitioner Defendants In The Aforesaid Suit Filed Their Written Statements Denying The Averments Made In The Suit.

The Court Below However, Allowed The Suit In Favour Of The Respondents Vide Judgment And Order Dated 16.11.2006, Hence This Writ Petition By The Landlord Praying For Quashing The Impugned Order Dated 16.11.2006 Passed By The Prescribed Authority/Judge Small Causes Court, Bareilly And For Enhancement Of The Rent Of The Shop In Dispute.

In Paragraph 13 Of The Writ Petition It Has Been Alleged That The Shop In Dispute Measuring 10'x17' Is Situated At The Main Market Of Bareilly City And At Present The Rented Value Of Such Shop Is Not Less Than Rs.2500/- Per Month And The Respondent Has Not Paid Any Single Penny To The Petitioner Towards Rent Of The Shop In Dispute.

Sri S.K. Tyagi, Advocate Has Filed His Vakalatnama On Behalf Of The Respondents On 21.2.2007 And Has Filed Counter Affidavit On 26.2.2007. The Counsel For The Petitioners Does Not Propose To File Any Rejoinder Affidavit To The Counter Affidavit Filed By The Counsel For The Respondents As The Writ Petition Is Being Decided Only On Legal Points.

4- Writ Petition No. 69745 Of 2006:-

The Petitioners Filed SCC Suit No. 79 Of 2003, Smt. Zakiya Bibi And Another Vs. Sri Ram Chander Tiwari Before The Court Of Judge Small Causes Court, Varanasi For Decree Of Ejectment Against Respondent No.3 From The Tenanted Accommodation Consisting Of Three Rooms, Latrine, Bath Room Situated On The Ground Floor Of House No.J. 11/89-1, Mohalla Ishwar Gangi, Nai Basti, Varanasi. Respondent No.3-tenant Filed His Written Statement Denying The Allegations Made In The Suit.

The Judge Small Causes Court, Varanasi Vide Order And Judgment Dated 12.5.2005 Dismissed The Suit.

The Petitioners Filed SCC Revision No. 16 Of 2005 Challenging The Order Dated 12.5.2005 In The Suit. The Revision Too Was Dismissed Vide Order Dated 6.10.2006 By The Revisional Court. Aggrieved This Writ Petition Has Been Filed For Quashing The Judgment And Order Dated 6.10.2006 And 12.5.2005 Passed By Respondent Nos. 1 And 2 Respectively.

The Case Was Heard And The Judgment Was Reserved On 2.3.2007. Sri Ratnesh Kumar Pandey Has Filed His Vakalatnama On Behalf Of The Respondents On 1.2.2007 In The Office But No Counter Affidavit Was Filed. Thereafter The Case Was Listed For Hearing On 28.2.2007. It Appears That After The Judgment Was Reserved Counter Affidavit Has Been Filed In The Registry By The Counsel For The Respondents Without Leave Or Information To The Court.

The Common Questions Of Law For Consideration In Reference To Context Of Enhancement Of Rent Or Payment Of Damages Are As Under:-
(a) Whether In Suit Between Landlord And Tenant Either Of Protected Tenancy Or Unprotected Tenancy Or Other Suits After Their Institution Of Suit, The Court Has A Duty And Right To Mould The Relief For Doing Justice For Compensating The Parties To Suit Either For Procedural Delays Or Dilatory Tactics, For The Period During Pendency Of Suit Or Even Thereafter.
(b) In A Suit Filed After Determination Of Tenancy Whether The Court Has A Pious Duty Has Power To Revise Rent Even In Cases Where Eviction Decree Is Refused By The Court Below Or To Award Damages In Excess Of Quantum Of Rent Which Was Prior To The Filing Of Suit, Or Not During Continuance Of Suit Or Even Thereafter As Mesne Profits In Case Of Both Protected And Unprotected Tenancy.
(c) Whether In Cases For Release Of Building Coming Within Purview Of Rent Act, The Court Has Power And Duty To Fix The Quantum Of The Rent/damages For Period During Continuous Of Suit Or Even Thereafter As Mesne Profits/damages.
(d) Whether In Absence Of Any Provision Under The Rent Act To Deal With The Situations Arising Thereunder The Courts Are Under Powers And Moral Duty For Exercising And Providing Guidelines In Consonance Of The Rent Act To Deal With The Situation Arising After Institution Of Suit, Either For Delay Or Otherwise, Court Can Pass Requisite Orders Regarding Compensatory Reliefs To The Plaintiff Against Occupation Of Defendant.
(e) What Is Status Effect Of Compulsory Continuance Of A Tenant On A Building Against The Will Of The Owner/ Landlord Of The Building In Which The Tenant Continues In Occupation After The Tenant Whose Tenancy Is Terminated Or Against Whom A Release Petition Is Filed On Same Terms As Before Or Relief Of Enhancement Of Rent Can Also Be Granted In The Circumstances, Can The Tenant Be Ordered To Compensate The Plaintiff Landlord.

It Is Submitted By Sri Ajit Kumar That These Questions Have Cropped Up As The Legislature In Its Wisdom While Enacting The Act Had Not Envisaged The Human Nature Providing For Mechanism To Remedy The Mischief Arising Out Of Practical Problems Faced By The Landlords As Stated Above.

It Is Urged By Him That One Of The Dominant Intents Of The Legislation In Enactment For This Law Of Letting, Fixation Of Rent And Eviction Of Unauthorized Occupants Was To Provide For A Speedy Mechanism/system For Disposal Of Cases Covered By U.P. Act No. 13 Of 1972. This Was Done By Making Provisions For Eviction In Proceedings, Which Would Lie Before The Prescribed Authority. To Achieve This Purpose Jurisdiction Of Other Forums Was Ousted And A Scheme Was Provided To Deal With Matters Of Release Of Accommodation Along With Other Matters Including Reduction Multiplicity Of Judicial Proceedings As Well As Award Congestion In Civil Courts.

Similarly For Case Covered Under The Scheme Of The Act Contained In Section 20, Under Its Salient Features, The Jurisdiction Of The Regular Courts Was Ousted And The Exclusive Jurisdiction Was Provided To The Judge Small Causes To Avoid Multiplicity Of Appeal Or And Remedy Of Only One Revision Was Provided. The Summary Procedure Contemplated Under Provincial Small Causes Courts Act Read With Provisions Of Bengal, Agra Assam Civil Courts Act Read With The Cases Contemplated Under Section 20 Of The Act, Were Provided To Be Decided By Judge Small Causes Excluding Provisions Applicable For Regular Suit Contained Under Order 18 Rule 5 To 12 Civil Procedure Code (hereinafter Referred To As The Code). By Virtue Of Sub Clause (b) Of Order 50 C.P.C. The Notices/summons In Suits Cognizable By Small Cause Court, Like Contemplated Under Section 20 Of The Act Are Issued For Final Disposal Under Order V Rule 5 C.P.C.


In The Circumstances After Termination Of Tenancy The Tenant Is Bound To Handover Possession To The Landlord By Virtue Of Section 108 Of Transfer Of Property Act But He Remains In Occupation By Virtue Of Pendency Of Suit. To Support His Submission Regarding Guidelines For Awarding Of Compensation As Mesne Profits After Institution.

Following Case Laws Have Been Cited By Sri Ajit Kumar In Support Of His Submissions.
1. AIR 1963, Allahabad-249 Chiranji Lal Vs. Kunwar Prasad And Another;
2. AIR 1934 Allahabad 115, Madan Mohan Garg Vs. Bohra Ram Lal;
3. AIR 1999 SC-882 M/s Marshall Sons & Co. Ltd. Vs. M/s Sahi Oretrans (P) Ltd. And Another;
4. AIR 1967 SC-155 Gopal Krishna Pillai And Others Vs. Meenakshi Ayal And Others;
5. (1977) 4 SCC-393 Shyam Charan Sheoji Bhai And Another;
6. AIR 1980 Allahabad-69 Satya Sindhu Pandey Vs. Mohammad Shual Islam And Others;
7. 2004(2) ARC-64 Khursheeda (Smt.) And Others Vs. XVIIIth Additional District Judge, And Others; And
8. 2004(2) ARC-652, Hari Mohan Kichlu Vs. VIIIth A.D.J. Muzaffarnagar And Others.
9. 2002(2) SCC-578, Orissa Textile & Steel Ltd. Vs. State Of Orissa And Others;
10. AIR 1976 SC-49, Rameshwar And Others Vs. Jot Ram And Others;
11.1993, LCD-447, Smt. Shakuntala Kapoor And Another Vs. 7th Additional District Judge, Meerut And Others; And
12. 2006(1) SCC-368, Union Of India And Another Vs. Major Bahadur Singh.


In The Case Of Chiranji Lal Vs. Kunwar Prasad And Another, This Court Considered The Question Of Tenancy In Context Of Order 20 Rule 12. In That Case Decree For Ejectment And Arrears Of Rent Was Not Challenged But The Appellant Objected To The Rate Of Mesne Profits, Which Had Been Fixed At The Rate Of Rs. 60/- Per Mensem. Learned Counsel Pointed Out That The Controlled Rent Of The Accommodation Was Rs.22/- + 5/- Inclusive Of Taxes And The Landlord Was Not Entitled To Mesne Profits At A Rate Higher Than That Which He Would Have Obtained From Another Tenant. Negating The Contention The Court Held In Paragraph 3 That-
" I Do Not Agree. When A Tenant Refused To Vacate The Accommodation After His Tenancy Is Terminated, He Becomes Trespasser And Liable To Pay The Landlord Mesne Profits. These Are To Be Assessed According To The Reasonable Market Value Of The Premises. If The Rent Represents A Fair Value Mesne Profits May Be Assessed At The Amount Of The Rent, But If The Real Value Is Higher Than The Rent, Mesne Profits Must Be Assessed At A Higher Value. I Cannot Accept Learned Counsel's Agreement That This Value Should Be Equal To The Controlled Rent And No More. The U.P. Control Of Rent And Eviction Act Was Passed For The Benefit Of Tenants And Not Trespassers. After A Tenant Has Lost His Status And Become A Trespasser, He Becomes Liable To Pay Mesne Profits At The Fair Market Value Of The Premises, As If The Control Of Rent And Eviction Act Had Not Been Passed. The Rent Fixed Or Controlled By That Act Is For The Benefits Of The Tenants, But Does Not Represent The Real Value Of The Accommodation And Can Not Be Considered While Assessing The Rental Value Of The Property For The Purpose Of Assessing The Rate Of Mesne Profits Which A Trespasser Has To Pay."

Madan Mohan Garg (supra) Was A Case Under The Contract Act 1872. Noticing Section 34 Of The Act The Court Held That The Person, Occupying At Monthly Rent Certain Premises Owned By Anther Person And Owner Serving Notice To Vacate Premises Or To Give Rent At Enhanced Rate For General Rise Of Rent In Neighbourhood, Where Tenant Informing To Vacate By Certain Dates But Without Any Mention About Rent But Did Not Vacate And Continued For Three Months As Such It Was Held That The Owner Was Entitled To Rent At The Enhanced Rent But Not Interest, As It Was Not Covered By Section 74 Of The Transfer Of Property Act. In View Of Sections 34 And 108 Of The Code Of Civil Procedure Section 74 Of The Contract Act Was Not Applicable As The Tenant Did Not Break A Contract And Is Liability, Therefore Was Not One For Damage For Breach Of Contract. As He Refused To Vacate And Remained In Possession He Must Be Held To Have Been Agreed By Implication To Hold Over And To Accept The Proposal To Pay Rent At The Enhanced Rent Proposed By The Landlord In His Notice.

In The Case Of M/s Marshall Sons & Co. Ltd., The Question Of Mesne Profits Again Cropped Up Before The Apex Court With Regard To Market Rent. In That Case, The Decree For Eviction In Favour Of The Landlord Which Was Not Executed For Some Or The Other Reason. The Respondent Obstructed Delivery Of Possession On Ground That He Was In Possession Of Property Suit Filed By Respondents Against Him For Declaration Of His Tenancy. In The Circumstances, The Apex Court Protecting Interest Of Judgment Creditor Directed Respondents To Pay Mesne Profits/compensation At The Rate Of Rs.10/- Per Sq.ft.from 1984 Till Today And At The Rate Of Rs.20/- From Today Till Disposal Of Suit And Further Directed That The Pending Suit To Be Disposed Of Expeditiously.

In The Case Of Gopalakrishna Pillai (supra) The Apex Court Has Considered The Provisions Of Order 20 Rule 12 Of The Code Of Civil Procedure And Has Held That The High Court Has Discretionary Power To Pass A Decree Directing An Enquiry Into Future Mesne Profits.

As Regards The Case Of Shyam Charan Vs. Sheoji Bhai And Another Is Concerned, The Question Before The Apex Court Was For Fixation Of Mesne Profits After Eviction Of Lessee From Premises Of A Theatre. In That Case, The Court Held That The Madhya Pradesh Rent Control Act, 1955 Did Not Apply To Theatres, Therefore, The Premises In The Suit Were Not Governed By The 1955 Act. That Being So, The Suit Filed In Accordance With The Transfer Of Property Act Could Not Attract Any Of The Provisions Of The 1961 As There Is Nothing In It To Make It Applicable To A Pending Suit Of That Kind. The Suit Was Filed Before The Commencement Of The 1961 Act And Hence The Appellant's Occupation Of The Accommodation On And From May 22, 1960 Was Unauthorized And Wrongful And A Decree For Damages Or Mesne Profits Was Rightly Awarded For The Period Commencing On That Day And Ending On October 4, 1964 When The Appellant Gave Up Vacant Possession.

The Court Has An Occasion To Consider Order 20 Rule 12 Of The Code Of Civil Procedure Read With Section 2(f) Of The U.P. (Temporary) Control Of Rent And Eviction Act (3 Of 1947) In The Case Of Satya Sindhu Pandey ( Supra). The Question In That Case Was Regarding A Person Occupying House Under Illegal Allotment Order.

The Court Held That-
" A Person Who Occupies An Accommodation Under An Allotment Order Which Is Subsequently Cancelled Is Liable To Pay Mesne Profits In Accordance With Present Rental Value Of Property. Case Law Reviewed.
Even Where The Relationship Of Landlord And Tenant Exists. Under U.P. (Temporary) Control Of Rent And Eviction Act, 1947, It Is Permissible And Possible Under Section 2-A Or 5(4) Of The Act For The Landlord To Get Rent Even At The Rate Prevailing In The Locality For Similar Accommodation Which May Be Much More Than ''reasonable Rent' As Defined Under Section 2(f). If This Is Permissible Under The Act Where The Relationship Of Landlord And Tenant Exists, There Is No Reason To Confine Owner Of Building To " Reasonable Rent" As Defined Under Section 2(f) While Claiming Mesne Profits Against An Unauthorized Or Trespasser. Obviously There Is No Question Of Any Agreement Taking Place Between An Owner And A Trespasser Or An Allottee Whom The Owner Does Not Accept As His Tenant And Whose Allotment Order Be Successfully Challenges. The Remedies Provided Under The Act For Claiming Rent At A Higher Rate Than The Reasonable Rent Prescribed Under The Act Also Cannot Be Invoked By The Owner Because These Remedies Are Available Only When The Relationship Of Landlord And Tenant Exists Either By Virtue Of Contract Or By Virtue Of Statute. To Grant An Unauthorized Occupant An Advantage Over Authorized Occupant Would Be Most Unfair To The Owner Of The Property And Would Also Be Against Public Policy And Fair Play."

In The Case Of Khursheeda (Smt.) And Others (supra) The Court Considered The Question Of Applicability Of Section 21 Of The U.P. Urban Buildings (Regulation Of Letting, Rent And Eviction) Act, 1972 And Has Held That-
" In Case Under Section 21 Tenant Has Asserted That Rent Control Act Is Not Applicable As Such Tenant Has Won From Courts Below. Jurisdiction Cannot Be Conferred By Consent. Doctrines Of Approbate And Reprobate Cannot Be Applied To The Question Of Jurisdiction Particularly When It Is Based Upon Pure Question Of Law. In Exercise Of Writ Jurisdiction While Granting Relief To The Petitioner The Court Is Fully Authorized To Pass Such Subsequent Order, Which Is Essential For Doing Justice. No Provision Of Enhancement Of Rent In The Act. Writ Court Cannot Sit With Folded Hands. While Granting Relief To The Tenant Against Ejectment Writ Court Is Fully Empowered To Enhance The Rent To Some Reasonable Rent. Court Enhanced The Rent From Rs. 27.50 To 1000/- Per Month W.e.f. May, 2004."

Similarly In The Case Of Hari Mohan Kichlu Vs. VIIIth A.D.J. Muzaffarnagar And Others The Court Considered Sections 21(a) And 21(1-A) Of The U.P. Urban Buildings (Regulation Of Letting, Rent And Eviction) Act, 1972 And Held That-
" Two Release Applications Were Filed Against Two Tenants. Tenanted Accommodations Are Adjacent To Each Other And Parts Of The Same Kothi. Petitioner Stated That He Would Be Retiring On 31.12.1987 And After Retirement He Intended To Settle At Muzaffarnagar. By Amendment He Added That He Was Retired On 31.12.1987 And Vacated On 14.7.1988 The Government House At Lucknow. Ramesh Chandra The Tenant Had Constructed His Own House And Had Shifted Therein. It Was Also Pleaded That After Retirement He Had Started Living In A Tenanted Portion Of Lucknow.P.A. Allowed The Release Application. Appeals Filed Which Were Allowed. Writ Petition Filed. Lower Appellate Court Accepted The Version Of Tenant And Held That Landlord Was Not Entitled To The Benefit Of Section 21(1-A). That Application Was Not Under Section 21(1)(b)."

As Regards Orissa Textile's Case ( Supra) That Case Pertained To Amended Section 25(O) Of The Industrial Disputes Act, 1947. It Has No Direct Nexus With The Controversy In Hand.

In The Case Of Rameshwar And Others (supra) The Apex Court Held In Paragraphs 8 And 9 Of The Judgment That-
"8. It Is Basic To Our Procedural Jurisprudence That The Right To Relief Must Be Judged To Exist As On The Date A Suit Or Institutes The Legal Proceedings. This Is An Emphatic Statement That The Right Of A Party Is Determined By The Facts As They Exist On The Date The Action Is Instituted. Granting The Presence Of Such Facts, Then He Is Entitled To Its Enforcement. Later Developments Cannot Defeat His Right. The Court Procedural Delays Cannot Deprive Him Of Legal Justice Or Rights Crystallized In The Initial Cause Of Action.
9. Courts Can, However, Take Note Of Subsequent Events And Mould The Relief Accordingly But This Can Be Done Only In Exceptional Circumstances. Rights Vested By Statute Cannot Be Divested By This Equitable Doctrine."

In So Far As The Case Of Smt. Shakuntala Kapoor's Case (supra) Is Concerned, It Pertained To The Right Of Relief Under Order 7 Rule 7 Of The C.P.C. It Has Been Held In That Case That Subsequent Events Requiring To Be Ascertained On Evidence Cannot Be Taken Into Account And Right To Relief Must Be Judged To Exist On The Date A Suit Or Legal Proceeding Is Instituted. Court's Procedural Delays Cannot Deprive Him Of Legal Justice Or Rights Crystallized In The Initial Cause Of Action.

The Case Of Union Of India And Another Vs. Major Bahadur Singh ( Supra) Cited By The Counsel For The Petitioners Is On The Question Of Binding And The Nature Of Law Declared By The Apex Court Under Article 141 Of The Constitution And The Apex Court Has Held That The Courts Should Not Place Reliance On Decisions Without Discussing As To How The Factual Situation Fits In With The Fact Situation Of The Decision On Which Reliance Is Placed. The Court Considered The Question Of Circumstantial Flexibility I.e. Whether One Additional Or Different Fact May Make A World Of Difference Between Conclusions In Two Cases, Hence Blind Reliance On A Decision Is Not Proper For Disposal Of Cases.

It Is Submitted That The Court Has Dealt With The Exercise Of Powers Under Code Of Civil Procedure In The Following Cases Wherein It Has Been Held That Even In Cases, Which Are Not Covered Under Section 34 Of Act No. XIII Of 1972 Read With Rule 22(c) And (f) Framed Thereunder And Covered By Section 21 Or 16 Of The Aforesaid Act. Reliance Has Been Placed In This Regard On The Following Decisions.
1. 1998(2) AWC-995, Kushi Ram Dedwal Vs.Additional District Judge, Small Causes Court/Prescribed Authority, Meerut And Others;
2. 1999(1) AWC-43, Jawahar Lal Vs. Prescribed Authority/Ist Additional Civil Judge And Another;
3. 1980 ARC-599, Raja Ahmad Vs. IIIrd Additional District Judge, Bareilly And Others;
4. 1980 ARC 369 Sri Sheo Kishan Dass Vs. Prescribed Authority, Pilibhit And Others;
5. 1998(2) AWC-1082 Kripal Singh Vs. Prescribed Authority, Haldwani, Nainital And Another; And
6. 1983(1) ARC-334, Sheikh Ahsan Ali And OthersVs. District Judge, Varanasi And Others.




SUBMISSIONS OF SRI MANU SAXENA IN SUPPORT OF THE PETITIONER LANDLORDS ARE:

That In Cases Where There Is Breach Of Contract Of Tenancy By Tenant I.e. By Conditions Mentioned Under Section 20(2) Of Act No. 13 Of 1972 Or Otherwise For Committing Breach Of Any Condition, Contract Of Tenancy Is Terminated, Then Question Of Agreed Rent Is Not Genuine To The Controversy. According To Him After Termination Of Contract, Reasonable Compensation Only Has To Be Awarded, Which May Be An Enhanced Amount From That What He Was Paying As Rent. In These Circumstances, Section 9 Of U.P. Act No. 13 Of 1972 May Be Enforced Or Order May Be Passed On The Analogy Of Section 9 In Cases Where It Is Directly Applicable.

The Legislature Has Taken Care By Conferring Jurisdiction Upon District Magistrate/ Rent Control And Eviction Officer Exercising Power Of District Magistrate To Fix Standard Rent For Curative Measures For The Landlord And For Enforcement Of The Rights Of Landlord. U.P. Act No. 13 Of 1972 Has Nothing To Do With The Procedure Adopted By JSCC, Which Is Provided Under The CPC And Jurisdiction Under Bengal, Agra And Assam Civil Court Act, 1887.

Non-payment Of Monthly Rent Timely Is In Itself A Breach Of Contract Causing Cessation Of Contract Indirectly Including The Agreed Rent, However, Deposit Under Section 30 U.P. Act No. 13 Of 1972, And Under Section 20(4) Of U.P. Act No. 13 Of 1972 Before Or After Suit, May Result In Refusal Of Decree Of Eviction By The Court Against The Person Who Has Made Default, But In No Case It Will Revive The Contract Of Tenancy. Therefore, The Remedy To The Doors Leading Under Section 9 Of U.P. Act No. 13 Of1972 And Requisite Order Under Order 20 Rule 12 CPC Can Always Be Passed.

While Comparing The Bonafide And Comparative Hardships In Matters Of Release The Courts Have Moral And Legal Duty To Do Justice To The Parties But Also Have Ample Jurisdiction To Balance Them By Enhancement Of The Rent/damages/mesne Profits On Its Own In The Facts And Circumstances Reasonably And At Par With Market Rent In The Interest Of Justice Equity And Fair-play Which May Be Read In Every Application For Revision Of Rent, Eviction, Release Etc. Under The Act Even If Not Specifically Asked For In The Relief.

Non Payment Of Rent On Basis Of Market Value Virtually On One Hand Deprives The Landlord From The Yield Which His Property May Fetch And This Unlawfully, Irrationally Discriminate Such Landlord From The Other Landlords Of Public Buildings And Charitable Trusts And Is Violative Of Article 14 Of The Constitution Of India And In Certain Cases Also Is Violative Of Article 21 Of The Constitution, Hence Equities Are To Be Balanced So That The Yield Of Property May Come To Hands Of Landlord When Property Is Used And Accepted By The Tenant.

Sri Manu Saxena, Counsel For The Petitioner Has Cited Following Rulings In Support Of His Above Submissions
1. AIR (29) 1942 Oudh-332 Mt. Sarwar Sultan Begam And Others Vs. Sheikh Abdul Halim;
2. AIR 1957 SC-309 Karnani Properties Ltd. Vs. Miss Augusttine And Others;
3. AIR 1963 SC-1405 Fateh Chand Vs. Balkishan Dass;
4. AIR 1965 SC-1231 Mohan Narayana Dasjee Vasu And Others Vs. Board Of Trustees And Others;
5. 1966, A.L.J. (SC) Bhagwati Prasad Vs. Chandramaul Page-799;
6. AIR 1986 SC-1444 Rattan Arya Etc. Vs. State Of Tamil Nadu And Another;
7. AIR 1978 SC-30 Nathuni Prasad Singh And Others Vs. Bishwanath Singh Sharma And Others;
8. AIR 1972 SC-819 Bhawanji Lakhamshi And Others Vs. Himatlal Jamnadas Dani And Others;
9. AIR 1973 SC-508 Badri Lal Vs. Municipal Corporation Of Indore;
10. 2005 (3) ARC-579 Krishan Chandra Vs. VIIIth A.D.J. Kanpur And Others;
11. (2005) (1) ARC-526, Rajeshwari (Smt.) Vs. Prema Agarwal;
12. 2005(3) ARC 491 Rais Uddin Vs. IIIrd Additional District Judge, Moradabad And Others;
13. AIR 1965 SC-1812 R.S. Maddanappa (deceased) After Him By His Legal Representatives Vs. Chandramma And Another; And
14. AIR 1965 SC-1818, S.A.L. Narayan Rao And Another Vs. Ishwarlal Bhagwandas And Another.

The Case Of Mt. Sarwar Sultan Begum ( Supra) Was A Case In Respect Of Renewal Of Promissory Note By Another Creditor. The Court Held That There Was No Presumption That The Creditor Has Kept The Original Promissory In His Possession In Order To Prove The Consideration Of The Later Promissory Note, Hence Even If A Person Did Not Claim Interest On The Amount Of Rent It Does Not Debar Him From Claiming Interest Pendente Lite.

Karnani Properties Ltd. Vs. Miss Augustine And Others Was A Case Under The West Bengal Premises Rent Control (Temporary Provisions) Act (17 Of 1950). Considering The Intention Of Legislature And The Word Of Rent The Apex Court Has Held That Where The Premises Providing Electric Installations And Rent Was Paid Inclusive Of Electric Energy And Other Services. There Was Increase In Electric Charges And Hence The Government Was Duty Bound To Increase The Rent. It Was Observed That The Rent Controller In The Circumstances Has To Consider Increase When Determining Fair Rent.

The Case Of Fateh Chand (supra) Deals With Mesne Profits. The Court Held That Assessments Are Based Not On The Value Of The User But On An Estimated Return On The Value Of The Property Was Not Sustainable. The Question Before The Court For Determination Related To The Amount Of Mesne Profits Which The Plaintiff Is Entitled To Receive From The Defendant Who Kept The Plaintiff Out Of The Property After The Bargain Had Fallen Through. The Court Held That-
" The Normal Measure Of Mesne Profits Is The Value Of The User Of Land To The Person In Wrongful Possession. The Assessment Of Compensation Based, Not On The Value Of The User But On An Estimated Return On The Value Of The Property, Can Not Be Sustained.
Normally A Person In Wrongful Possession Of Immovable Property Has To Pay Compensation Computed On The Basis Of Profits He Actually Received Or With Ordinary Diligence Might Have Received.
Besides The Mesne Profits, The Plaintiff Is Also Entitled To Interest On Such Mesne Profits Vide Section 2(12). (In This Case Where Property In Dispute Was In The Occupation Of A Tenant For A Long Time, Mesne Profits Computed At The Monthly Rent Together With Interest At The Rate Of 6% On The Amount Accruing Due Month After Month Were Awarded."

In The Case Of Mohan Narayana Dasjee Varu And Others, The Apex Court Had Occasion To Consider Section 34 Of The Act. Relying Upon Paragraphs 10, 14 And 16 Of The Judgment The Counsel Submits That Mesne Profits Interest Has To Be Allowed In Computation Of Rent. In That Case, Mahant Was In Possession Of The Tirumalai Tirupalthi, Devasthanam Property. He Was Removed Under The Provisions Of The Act. Dispute Over The Title Of Property Continued For A Number Of Years, The Court Considering Section 34 Read With Section 12 (2) Of The C.P.C. Held That Mahant Was Liable To Pay Interest At Mesne Profits Interest At The Normal Rate. Paragraphs 10,14 And 16 Are As Under:-
10." Under Section 2(12) Of The Civil Procedure Code Which Contains The Definition Of '' Mesne Profits'. Interest Is An Integral Part Of Mesne Profits And Has, Therefore, To Be Allowed In The Computation Of Mesne Profits Itself. That Proceeds On The Theory That The Person In Wrongful Possession Appropriating Income From The Property Himself Gets The Benefit Of The Interest On Such Income.
14. The Rate Of Interest To Be Allowed In Regard To Mesne Profits Or Under Section 34 Is Discretionary, As There Is No Question Of Any Contractual Rate Or Any Particular Rate Fixed By Statute. The Only Limitation Which Is Prescribed By Section 34 As Its Stands Now, Is That The Rate Shall Not Exceed 6 Per Cent Per Annum A Limitation Which Did Not Figure In The Section Before Its Amendment By Act 66 Of 1956 Though Courts As A General Rule Seldom Awarded Any Rate In Excess Of 6 Per Cent.
16. The View That The Former Mahant Was A Trustee Who Had Been Removed From Office Under The Provisions Of The Tirumalai Tirupathi Devasthanam Act And Therefore Stood In A Position Different From That Of A Trespasser In Respect Of Awarding Mesne Profits, Is Not Well Founded. Where The Title Of The Devasthanam Committee In The Property Was Disputed And Suits Had To Be Filed For The Recovery Of Their Possession, And Litigation Conducted Which Took 12 Years To Finish, And If During This Period The Former Mahant Appropriated To Himself The Income From The Property, There Is No Justification For His Not Being Made Liable For Interest On The Amount Of Mesne Profits At The Normal Rate. In Any Event, If The Trial Court In Its Discretion Awarded Interest At 6 Per Cent And That Is Admittedly Not Per Se An Unreasonable Rate, There Is No Compelling Equity In The Mahant To Justify Interference With That Discretion."

In The Case Of Bhagwati Prasad (supra) The Court Considered The Formal Requirement Of Pleadings When Can Be Relaxed. In The Circumstances, The Court Held That-
" There Can Be No Doubt That If A Party Asks For A Relief On A Clear And Specific Ground, And In The Issues Or At The Trial, No Other Ground Is Covered Either Directly Or By Necessary Implication, It Would Not Be Open To The Said Party To Attempt To Sustain The Same Claim On A Ground Which Is Entirely New But In Considering The Application Of This Doctrine To The Facts Of A Case, It Is Necessary To Bear In Mind The Other Principle That Considerations Of Form Cannot Over-ride The Legitimate Considerations Of Substance. If A Plea Is Not Specifically Made And Yet It Is Covered By An Issue By Implication, And The Parties Knew That The Said Plea Was Involved In The Trial, Then The Mere Fact That The Plea Was Not Expressly Taken In The Pleadings Would Not Necessarily Disentitle A Party From Relying Upon It If It Is Satisfactorily Proved By Evidence...............
Where A Substantial Matter Relating To The Title Of Both Parties To The Suit Are Touched, Though Indirectly Or Even Obscurely, In The Issues, And Evidence Has Been Led About Them, Then The Argument That A Particular Matter Was Not Expressly Taken In The Pleadings Would Be Purely Formal And Technical And Cannot Succeed In Every Case."


The Court Further Held That-
" Once It Is Held That The Plaintiff Is Entitled To Eject The Defendant, It Follows That From The Date Of The Decree Granting The Relief Of Ejectment To The Plaintiff, The Defendant Who Remains In Possession Of The Property Despite The Decree, Must Pay Mesne Profits Or Damages For Use And Occupation Of The Said Property Until It Is Delivered To The Plaintiff. A Decree For Ejectment In Such A Case Must Be Accompanied By A Direction For Payment Of The Future Mesne Profits Or Damages."


In The Case Of Rattan Arya Etc. Vs. State Of Tamil Nadu And Another The Apex Court Has Laid Down The Law That The Court Can Take Judicial Notice Of Enormous Manifold Increase Of Rents Throughout The Country, Particularly In Urban Area. In Paragraph 4 Of The Judgment The Court While Considering The Distinction Between Residential And Non Residential Buildings In The Matter Of Affording The Protection Of The Provisions Of The Act Held That-
" Further The Distinction Suggested In The Counter Appears To Be Quite Antipathic To The Actual Provision Because As We Pointed Out Earlier There Is No Such Ceiling In The Case Of Tenants Of Non Residential Buildings And Therefore A Tenant Of A Non Residential Building Who Is In A Position To Pay A Rent Of Rs.5,000/- Per Month Is Afforded Full Protection By The Act, Whereas, Inconsistently Enough, The Tenant Of A Residential Building Who Pays A Rent Of Rs.500/- Is Left High And Dry. It Certainly Cannot Be Pretended That The Provision Is Intended To Benefit The Weaker Section Of The People Only. We Must, Also Observe Here That Whatever Justification There May Have Been In 1973 When S.30(ii) Was Amended By Imposing A Ceiling Of Rs.400/- On Rent Payable By Tenants Of Residential Buildings To Entitle Them To Seek The Protection Of The Act, The Passage Of Time Has Made The Ceiling Utterly Unreal. We Are Entitled To Take Judicial Notice Of The Enormous Multifold Increase Of Rents Throughout The Country, Particularly In Urban Areas. It Is Common Knowledge Today That The Accommodation Which One Could Have Possibly Get For Rs.400/- Per Month In 1973 Will Today Cost At Least Five Times More. In These Days Of Universal Day Today Escalation Of Rentals Any Ceiling Such As That Imposed By S.30(ii) In 1973 Can Only Be Considered To Be Totally Artificial And Irrelevant Today. As Held By This Court In Motor General Traders Vs. State Of Andhra Pradesh ( 1984) 1 SCC-222: AIR 1984 SC 121 At P.130, A Provision Which Was Perfectly Valid At The Commencement Of The Act Could Be Challenged Later On The Ground Of Unconstitutionality And Struck Down On That Basis. What Was Once A Perfectly Valid Legislation May, In Course Of Time, Become Discriminatory And Liable To Challenge On The Ground Of Its Being Violative Of Article 14. After Referring To Some Of The Earlier Cases Venkataraamiah,J. Observed:
........The Garb Of Constitutionality Which May Have Possessed Earlier Has Become Worn Out And Its Unconstitutionality Is Now Brought Out To A Successful Challenge."


Nathuni Prasad Singh (supra) Was A Case Of Bihar Tenancy Act (8 Of 1985) In Which The Landlord Filed Suit For Possession And Mesne Profits. Defendant Became Unlawful From A Certain Date And Therefore, Plaintiffs Became Entitled To Possession. The Court Held That-
" It Must Therefore, Follow That The Appellants Would Be Entitled To Recover Mesne Profits From The Defendants For A Period Of Three Years Before The Institution Of The Suit Until The Date On Which The Suit Property Vested In The State Government By Reason Of The Bihar Land Reforms Act."

The Case Of Bhawanji Lakhamshi (supra) Was A Case Under Section 116 Of The Transfer Of Property Act Where The Question Before The Court Was With Regard To Holding Over What Constitutes After Determination Of Lease Tenancy. The Court Held That-
" The Act Of Holding Over After The Expiration Of The Term Does Not Create A Tenancy Of Any Kind. If A Tenant Remains In Possession After The Determination Of The Lease, The Common Law Rule Is That He Is A Tenant On Sufferance. There Is A Distinction Between A Tenant Continuing In Possession After The Determination Of The Term With The Consent Of The Landlord And A Tenant Doing So Without His Consent. The Former Is A Tenant At Sufferance In English Law And The Latter A Tenant Holding Over Or A Tenant At Will. The Assent Of The Landlord To The Continuance Of Possession Will Create A New Tenancy. What The Section Contemplates Is That On One Side There Should Be An Offer Of Taking A New Lease Evidenced By The Lessee Or Sub-lessee Remaining In Possession Of The Property After His Term Was Over And On The Other Side There Must Be A Definite Consent To The Continuance Of Possession By The Landlord Expressed By Acceptance Of Rent Or Otherwise.
Mere Acceptance Of Amounts Equivalent To Rent By A Landlord From A Tenant In Possession After A Lease Had Been Determined, Either By Efflux Of Time Or By Notice To Quit, And Who Enjoys Statutory Immunity From Eviction Except On Will Defined Grounds As In The Act, (Bombay Rents Hotel And Lodging House Rates (Control) Act, 1947) Cannot Be Regarded As Evidence Of A New Agreement Of Tenancy. If The Tenant Asserts That The Landlord Accepted The Rent Not As Statutory Tenant But Only As Legal Rent Indicating His Assent To The Tenant's Continuing In Possession, It Is For The Tenant To Establish It. Where He Fails To So Establish It Cannot Be Said That There Was Holding Over By Him."

In The Case Of Badri Lal V. Municipal Corporation Of Indore The Court Considered Section 116 Of The Transfer Of Property Act And Held That A Person Who Is Lawfully In Occupation Of The Premises Does Not Become Trespasser And If He Does Not Become A Tenant Holding Over He Would Be A Tenant By Sufferance.

Krishan Chandra Vs. VIIIth A.D.J. Kanpur And Others Was A Case In Which The Court Held That The Prospective Allottee Has Got No Right To Be Heard And Oppose The Release Application. If Further Held That If Any Other Landlord Bonafidely Requires The Accommodation In Dispute He May Initiate Proceedings Under Section 21 Of The Act. Rent From Rs.56/- Per Month Was Enhanced To Rs. 1500/- Per Month In Exercise Of Power Under Article 226 Of The Constitution Of India Relying Upon The Case Of Khursheeda Vs. A.D.J. 2004(2) ARC-64.

To The Same Effect Is The Case Reported In (2005)(1) ARC-526, Rajeshwari ( Smt.) Vs. Prema Agarwal. Reference May Also Be Made In This Regard To The Case Of Rafiq Uddin Vs. IIIrd Additional District Judge, Moradabad And Others, 2005(3) ARC 491 Wherein It Has Been Held That The High Court Has Power To Enhance The Rent Under Article 226 Of The Constitution.

In So Far As The Case Of R.S. Maddanappa (supra) Is Concerned, It Was Held That-

" Mesne Profits Prior To The Suit Cannot Be Awarded To A Successful Party To A Suit For Possession Unless A Claim Was Made In Respect Of Them But As Regards Mesne Profits Subsequent To The Date Of The Institution Of The Suit, That Is Future Mesne Profits The Position Is Governed By Order XX Rule 12 C.P.C.

In I. S.A.L. Narayan Rao And Another Vs. Ishwarlal Bhagwandas And Another It Has Been Held That-
" By A Petition Or A Writ Under Article 226 Of The Constitution Extraordinary Jurisdiction Of The High Court To Issue High Prerogative Writs Granting Relief In Special Cases To Person Aggrieved By The Exercise Of Authority- Statutory Or Otherwise By Public Officers Or Authorities Is Invoked. This Jurisdiction Is Undoubtedly Special And Exclusive, But On That Account The Nature Of The Proceeding To Which It Is Exercised Is Not Altered."

It Is Urged By The Counsel For The Petitioners That The Respondents Have Either Not Filed Their Written Statements Before The Court Below In-spite Of Service Of Notice By Registered Post Or Even By Publication. Some Of Them Have Not Put In Appearance Even Before This Court. The Averments Made In The Affidavit Have Also Been Quoted In The Body Of The Judgment. In A Large Number Of Cases It Appears That As The Rent Is Very Low The Tenants Do Not Want To Pay The Market Rent To The Landlord And To Achieve This Purpose The Landlord Is Made To Run From Pillar To Post. The Modus Operandi Appears To Be That The Tenants Do Not Appear In The Cases On The Date Fixed And When The Case Is Decided Exparte The Application For Recall Is Moved And Thereafter The Matter Goes In Appeal Or In Revision And Thereafter High Court Is Moved. In Some Cases Where The Parties Are Affluent Even The Apex Court Is Moved Against Interlocutory Orders. All This Is Done To Pass As Much Time As The Tenant Can For He Is Enjoying The Tenament On Rent Ranging From Rs.1.20 To Rs.200/- Inclusive Of Water Tax Consisting Of Big Bungalows And Number Of Rooms Under His Tenancy.


Since The Writ Petitions Raise Questions Of Public Importance Hence Members Of Bar Were Invited To Make Submissions On The Questions Involved In The Writ Petitions.

It Is Submitted At Bar That The Standard Rent Fixed Under The Act For Payment By The Allottee To The Landlord Is Determined By The Authorities Is Far Below The Market Rent Which Is Freezed To The Level Of Rent Prior To 15.7.72. Once Rent Is So Fixed There Is No Provision For Revision Of Rent In The Act, In Future.

It Is Submitted At The Bar That One Of The Aspects Of Allotment On Low Rent, Which Lurks In The Shadow In Almost Every Case Under The Act, Requires A Fresh Look. The Tenant Who Is Allotted Or Takes The Tenament On Very Low Rent, With The Passage Of Time Tries To Dorn On The Robes Of The Landlord. He Does Not Want To Vacate It As He Will Not Get Any Other Accommodation Which Is Not At Par With Rate Of Rent Prevalent In The Market, For He Is Paying No Rent Or Also Most Negligible Rent Which Has Been Freezed At The Level Prior To 1972 At The Time Of Enforcement Of The Act I.e. For Last More Than 35 Years.

The Release Application Filed By The Landlord For His Personal Need Is Resisted For Years Together Even In Cases Where The Family Of The Landlord Has Increased Or Even In Case The Tenant Has Built His Own Residential House Or Set Up His Business In Other Shops, Which Have Been Acquired By Him. This Is Resorted To In Order To Extract Premium From The Landlord For Vacating The Premises Under Tenancy. Therefore, The Tenant Stretches The Litigation For Decades And The Authorities Without A Second Thought To The Provisions Of The Act And Rules Or Mindful To The Difficulties Faced By The Litigants Grant Adjournment After Adjournment On Superfluous Grounds. So Isalso The Case In Respect Of Termination Of Tenancy By The Landlord After Due Notice As The Rent Act Despite Termination Of Tenancy Restricts The Eviction Of Tenants Until The Case Falls With Categories Specified Under Sub-section (2) Of Section 20 Of The Act.

The Litigations, Which Have Brewed In The Recent Past Like Storm In The Cup Was Not Envisaged By The Legislature. The Situation Has Arisen, As There Is No Provision Of Revision Of Rent Under The Act. Similar To Provisions Under Section 21(8) In Respect Of Public Building. Much Less Revision Of Rent To Bring It At Par With Market Rent Regularly And Periodically Of The Buildings Covered Under The Provisions Of The Act After Standard Rent Has Been Fixed Under Section 9 Of The Act. Section 21(8) Of The Act Is The Only Provision For Enhancement Of Rent, Providing For Enhancement Of Rent ONLY In Respect Of Public Building And Charitable Trust Etc. And That Too Not At Regular Interval Automatically To The Exclusion Of Other Tenements Or Buildings Covered Under The Act From Its Ambit.

Various Amendments Were Made From Time To Time To Make The Act And The Rules Framed Therein Workable. This Happened As The Act And The Rules Framed Therein Failed To Meet The Object For Which It Was Enacted. Many Of The Provisions Of The Act Namely, Sections 3(8), 4(2), 5,6,8, And 9 Of The Act Relating To Rent Were Declared Ultra-vires In The Case Of Milap Chandra Jain Vs. State Of U.P. 2001(2) ARC-488.

It Is Further Submitted That Till Date, The State Government Has Not Come Up With Any Guidelines For Fixation Of Standard Rent, Though, More Than 5 Years Have Passed Since The Decision Of This Court In Milap Chandra Jain's Case (Supra) And As On Date The Landlords Of Buildings Acquired Under The Act For Allotment To Private Persons Are Unable To Get Reasonable Rent For Their Property Which Amounts To Unreasonable Restrictions Within The Meaning Of Article 14 Of The Constitution Of India. This Has Effected Their Guarantee Under Article 21 Of The Constitution Of Reasonable Return For Their Livelihood Also, Which May Render The Whole Of The Act Itself As Ultravires Of The Constitution , Hence, In Such Circumstances, This Court Has Ample Power To Enhance Rent To A Reasonable Limit So That The Landlords Are Adequately Compensated So That The Object Of The Act Is Achieved As Well As The Landlords Get Reasonable Return For Their Property Or May Get The Property Released In Case Of Personal Need.

It Has Been Argued That Under Freezing Of Rent As Immediately Before The Date Of Commencement Of The Act I.e. 15 July, 1972 Or To The Letting Value On The Date Building Was Let Out Has Been Provided For. However, Since Thereafter There Has Been Manifold Increase In Price Index Without Any Provisions For Revision Of Rent, Though, Common Law Right Under Transfer Of Property Act, 1882 Has Been Drastically Curtailed By The Act. The Freezing Rent At The Level Of 1975 May Be Done Away With To Make The Act Workable And Beneficial To The Parties I.e. The Tenant And The Landlord.

It Is Stated That The Present Act Is A Permanent Law In Comparison To The Earlier One I.e. U.P. Act No. 3 Of 1947 Which Was A Temporary Measure. In These Circumstances. The Standard Rent Which Under The Act Stood Freezed To The Level Of 1972 Or To The Date Of Commencement Of Tenancy, Is A Mere Pittance If Compared To The Present Day Valuation Of The Property And Rental Value Fixed On Allotment Hence, The High Court Has Ample Power To Intervene In The Matter And To Fill Up The Lacunae In The Provisions By Harmonious Consideration By Directing Payment Of Reasonable Rent Taking Into Consideration The Present Market Value Of The Demised Property.

In Support Of The Above Submissions Following Cases Have Been Cited.
1. 2001(2) ARC-488, Milap Chandra Jain And Others Vs. State
Of U.P.;
2. (1991) 3 SCC-655, K. Veeraswami V. Union Of India;
3. AIR 1996 SC-2410 Shangrila Food Products Ltd. And
Another Vs. Life Insurance Corporation Of India
And Another;
4. 2003(2) ARC-545, Bal Kishan Vs. Ivth Additional District
Judge Etawah;
5. 1985 Supp. SCC-476 L.I.C. Ltd. V. State Of Karnataka ; And
6. (2002) 4 SCC-578, P. Ramchandra Rao V. State Of Karnataka;

In K. Veeraswami Vs. Union Of India (1991) 3 SCC 655 The Apex Court Recognized Its Expanding Role As The Lawmaker And Problem Solver. It Was Held That The Court Can Supply Or Supplement The Deficiency In The Statute. In L.I.C. Ltd. Vs. State Of Karnatka, 1985 Supp. SCC 476 The Apex Court Held As Under:-
"The Court Can Mould Its Directions In Order To Give Relief In A Particular Situation. Courts Of Today Cannot And It Should Not Any Longer Remain Passive With Negative Attitude, Merely Striking Down A Law Or Preventing Something Being Done. The New Attitude Is Towards Positive Affirmative Action, Directing People Or Authorities Concerned That "thoushall Do't" In This Manner. While It Is True That If A Law Is Bad, The Court Must Strike It Down. But If The Law By And Large And Its True Perspective Of A Social Purpose If Implemented In A Particular Manner Could Be Valid, Then The Court Can And Should Ensure That Implementation Should Be Done In Such Particular Manner And Give Directions To That Effect".

In A.I.R. 1996 SC 2410 Sangrila Food Products Ltd. & Another Vs. L.I.C. Of India And Another, The Apex Court Held As Under: -
"It Is Well Settled That The High Court In Exercise Of Its Jurisdiction Under Article 226 Of The Constitution Can Take Cognizance Of The Entire Facts And Circumstances Of The Case And Pass Appropriate Orders To Give The Parties Complete And Substantial Justice. This Jurisdiction Of The High Court, Being Extraordinary, Is Normally Exercisable Keeping In Mind The Principles Of Equity. One Of The Ends Of The Equity Is To Promote Honesty And Fair Play. If There Be Any Unfair Advantage Gained By A Party Prior, Before Invoking The Jurisdiction Of The High Court, The Court Can Take Into Account The Unfair Advantage Gained And Can Require The Party To Shed The Unfair Gain Before Granting Relief."



At The Bar The Counsels Also Addressed That The Provisions For Determination Of Standard Rent As Defined Under Section 3(k) And Corresponding Provisions Under Section 4(2), 5, 6, 8 And 9 Of The Act Have Been Declared Ultravires Of The Constitution Of India By This Court In The Judgment Reported In 2001(2) ARC 488, Milap Chandra Jain Vs. State Of U.P. And Others. The State Government Did Not Challenge The Said Judgment Before The Apex Court, Which Has Become Final. It Is Submitted That In Fact Consequent To The Aforesaid Judgment The State Government Itself Issued A Notification Dated 23 August 2003 Whereby The Authorities Under The Act Were Directed To Ensure Compliance Of The Judgment By Not Entertaining Any Application Under The Provisions Of The Act Declared Ultravires.

This Vicious Circle Of Challenging Every Order At Every Stage Starting From Service Of Notice And Validity Of Notice Issued By The Landlord Terminating The Tenancy For Deposit Of Rent On The First Date Of Hearing Continues On And On. The Parties To The Litigation Keep Popping Off Their Heirs Substituted And Even Sometimes The Dispute Does Not Come To An End In Their Life Time. The Landlord Pay More Taxes For The Building Than The Rent Received By Him And Apart From The Rent Which He May Luckily Get He Is Forced To Spend More From His Pocket In The Litigation Throughout His Life Time.

It Is Further Urged That The Fact Of Delay In Justice And That Law Under The U.P. Act No. 13 Of 1972 Being Read With Lopsided In Favour Of The Tenant Without Any Equitable Remedy To Landlord One Serious Development That Has Taken Place In Recent Times Is That Due To Distress The Landlords Have Started Selling Their Properties To Land Mafia Who Purchase It A Throw Away Prices. The Tenant Who Was Litigating For Year Is Thrown Out By These Mafias And He Vacates The House Without A Whimper. Thus Not Only He Loses A Roof Over His House, But By His Act Loses His House To The Benefit Of Land Mafia, Which Has Grown In Number. Neither The Authorities Have Any Guts To Deal With This Situation Nor They Do Anything In This Regard But They Side With The Mafias And Keep Quite.

It Is Stated That In These Circumstances That Some Time The Court Has To Interfere And Direct For Action By The Police To Throw Out The Mafia Or The Unscrupulous Tenant Who Has Taken Blessings Of Such Mafias Or Politicians. Big Bungalows Have 4-8 Acres Of Land Are Being Captured By Political Parties For Their Officers And By Mafias At Rent Varying From Rs.1.20 To 200/- Per Month And Cases By The Landlords For Their Eviction Are Not Being Allowed To Be Brought To Their Logical Conclusion Within Time Provided Under Section 22 Of The Act. This Has Been Dealt With By This Court In The Case Of Smt. Manju Devi Vs. Additional District Judge, VIII Allahabad And Others By Judgment And Order Dated 17.7.2007 In Civil Misc. Writ Petition No. 31642 Of 2007 Wherein The Court Has Taken Very Strict View To Meet Such Types Of Challenges By Directing The District Judge To Give Entries In ACR To The Officer Concerned In Such Cases.

The Question As To What Relief Is Provided To The Landlord For Non-disposal Of The Case By The Prescribed Authority Or Appeal Or Revision As Stipulated To Be Decided Under The Scheme Of U.P. Act No. 37 Of 1972 And Why The Tenant Should Be Unduly Made To Be Benefited Particularly When Any Such Undue Benefit Was Not Contemplated On Him Under The Scheme Of Either Of The Acts Or Any Other Law Has Been Dealt By This Court In Smt. Manju Devi's Case ( Supra) Where The Court Has Directed For Strict Compliance Of Time Limit And Consequents To Follow As Under:-
"The Time Has Come Now For The Authorities Appointed Under U.P. Act No. XIII Of 1972 To Be Dealt With Iron Hand For They Do Not Honour Legislative Wisdom And Became An Instrument In The Hands Of The Litigants By Not Adhering To The Time Limit Provided Under The Act And Rules Framed Thereunder For Deciding The Cases. They Thus Commit Serious Violation Of Law And Abuse Of Process Of Their Own Court. This Act Of Their Has Resulted In The Failure Of Justice And An Achievement Of The Object Which The Legislature Has In Its Wisdom Provided In The Enactment Of This Welfare Legislation.
Justice Delayed Is Justice Denied Is Coveted Jewel Of Legal Principles.
It Is Noted That Though Time Frame Is Provided In The Act And The Rules Framed Thereunder, The Cases Are Not Decided For Years Together And Sometime Even For 15 To 20 Years Elapse Because The Authorities Are Not Strict But Liberal In Granting Adjournments. If The Authorities Are So Liberal So As To Reflect Their Insufficiency In Deciding The Case Before Them Within The Time Prescribed By The Legislature And Law Pronounced By The High Court As Well As By The Apex Court, They Are Not Fit To Remain In Service.
The Matters Of Tenancy Between Landlord And Tenant Has Serious Consequences And Also Reflects Upon The Judiciary. The Question Of Delay Is A Primary Responsibility Of The Court And They Must Strive To Decide The Cases In Time Prescribed Under The Statute Pertaining Under The Uttar Pradesh (Regulation Of Letting, Rent And Eviction) Act, 1972 With Rules Framed Thereunder. If The Authorities Appointed Under The Aforesaid Act And Rules Failed In Their Duties Cast Upon Them By Deciding Cases First Beyond The Time Prescribed Under The Act, Then It Is To Be Treated As Serious Misconduct Calling For Action Against The Said Officer.
It Is To Be Brought To His Annual Confidential Report. All District Judges Are Therefore, Directed To Maintain A Record Of Cases Under U.P. Act No. 13 Of 1972 Which Are Not Decided Within Time Prescribed And Give An Adverse Entry.
Let A Copy Of This Order Be Communicated By The Registrar General To All The District Judges Concerned For Compliance Henceforth.
The Writ Petition Is Disposed Of With The Direction To The Appellate Authority To Decide The R.C.A. No. 59 Of 2002 Filed By Respondent Nos. 2 To 8 Within A Period Of Two Months From The Date Of Production Of A Certified Copy Of This Order.
No Order As To Costs."

It Is Submitted That The Court Cannot Remain A By Stand Watching The Object Of The Act Being Defeated By Unscrupulous Persons For Their Personal Gain, Where The State Machinery Has Failed To Provide Safety Of Property Of Its Habitants Rather Has Joined Hands With Land Mafia For Their Safety And Plunder The Loot Along With Them. As The State Legislature Has Done Nothing To Amend The Act As Two Pillars I.e. The Executive And Legislative Have Fallen The Duty Falls Upon The Courts, The Only Pillar Remaining Under The Constitution To Make The Act Workable By Plugging The Loophole And Providing Relief To The Public By Harmonious Consideration Of The Provisions Of The Act, Providing Analogy From The Provision On The Statute, In Exercise Of Its Powers Under Article 226 Of The Constitution.

It Is Vehemently Urged That These Are Not Stray Incidents In The State Of U.P., The Law And Order Situation In This Field Has Out Grown The Beneficial Object Of The Act. No Allotment Application Is Ever Filed For Allotment Of A Building Purchased By The Mafias. The Musclemen Are Having A Flourishing Business In Land/house Deals With State A Mute Spectator. Reference May Be Made To "Some Persons" In Allahabad Who Are Said To Have Purchased A Number Of Bungalows In And Around Civil Lines And Land In The City For No House Can Be Sold Within Their Ashirwad.

There Are Instances In U.P. Where Cases Under The Rent Control Act Have Not Been Decided For Even More Than 10 To 20 Years. This Delay Has Been Caused Either Due To Alleged Paucity Of Time By The Authority Whether Of First Instance Or Appellate Or For Delaying Tactics Of The Tenant Who Is Enjoying The Tenanted Accommodation On Very Low Rent As There Is No Provision For Periodical Enhancement Of Rent At Par To The Market Rent On The Analogy To Section 21(8) Of The Act Making The Landlord Continuously Suffer For Letting Out His Building Or Part Thereof Which He Might Have Rented Out In Compelling Circumstances And May Be Generally Requiring It For His Use And Occupation In Changed Circumstances Due To Subsequent Events.

It Is Lastly Urged At The Bar That In The Circumstances That Every Person May Not Be Able To Seek Relief Before The High Court Or Before The Supreme Court For Financial Constraints Or Other Difficulties, Hence The Court Below At The First Instance Must Consider Enhancement Of Rent As Soon As Suit For Arrears Of Rent/ Damages Or Eviction/release Is Filed Before It. It Is Emphasized That The Court May Also Reflect Upon The Misuse Of Legal Procedure By The Parties Such As Filing Of Frivolous Writ Petitions Or Challenging Interlocutory Orders In Modification Applications, Application For Expedite Hearing Under Order 8 Rule 1, Application For Permanent Injunction For Restraining The Respondents From Evicting The Tenant Etc. And Revision At The Interlocutory Stage In Suit For Rent And Eviction In Cases Of Arrears Of Rent And Eviction And On The Release Application Etc. As Ancillary Questions Which Are Required To Be Taken Into Account For Deciding The Main Questions Of Enhancement Of Rent By The Courts Or For Payment Of Damages During The Pendency Of Proceedings For Eviction Of The Tenant Or His Occupation Of The Tenament During Pendency Of Release Application.

On The Other Hand, Counsels Representing The Tenants Contended That The Present Act Is A Social Beneficial Legislation, Which Was Enacted For Protecting The Tenants From Unscrupulous Landlords. The Wisdom Of The Legislature Regarding The Manner In Which Protection Has Been Granted To Particular Section Of The Society Cannot Be Questioned. The Classification May Be Done On Basis Of Rent, The Age Of Building Or The Section Of Society To Which It Has Been Let Out Or To Which It Belongs. The Court Can Only Consider Whether The Classification Has Reasonable Nexus To The Object Sought To Be Achieved. Even In Case Some Provisions Of The Act Has Been Struck Down And There Is Any Lacuna, The Court Can Not Fill The Same And Should Await Change In Law By The Legislature Instead Of Legislating Itself By Active Interpret Law And Not Make Law.


In Rebuttal To The Arguments Of The Counsel For Opposite Parties Sri Ajit Kumar Submits That The Judgments Should Be Read In The Context It Was Given In Facts Of That Case And Not In Isolation Of Facts Involved In That Case. He Has Further Relied Upon The Following Cases.

1.1995(3) SCC-367, Sukhwant Singh Vs. State Of Punjab;
2. 2004(5) SCC-222, Common Cause Vs. Union Of India And Others;
3.1987 (1) SCC-213, Ambica Quarry Works Vs. State Of Gujarat And Others; And
4.AIR 1989 SC-1194, Greater Bombay Municipal Corporation Vs. Thukral Anjali;

Sri Ajit Kumar In Rebuttal Further Submits That Bal Kishan's Case The Writ Petition Was Filed By The Tenant. The Controversy Which Was Subject Matter Of The Writ Petition Before This Court Was Tenant's Claim To Quash The Release Order. The Consideration Of Subject Matter Of Writ Petition. The Judgment Given In Bal Kishna's Case From Paras 9 To 13 Was Obiter Dicta From This Court. It Was Required To Decide Controversy Involved In The Writ Petition, Which Was Decided In Paras 1 To 8 Of The Judgment. In Support Of This Submission He Has Relied Upon The Decision Reported In 1996(6) SCC-44 Union Of India And Others Vs. Dhanwanti Devi And Others And Submits That Paras 9 To 13 Of The Judgment In That Case Being Obiter Dicta Has No Binding Force, It Can Not Be Treated To Be Law Declared By The Court. Moreover, These Observations In No Case Helps The Tenant. That Case Does Not Deal With The Provisions Of C.P.C. And Is Not In Context Regarding The Provisions Of Mense Profit. Rule 22 (c) And (f) Of Act No. 13 Of 1972 And Scope Of Cases Under Sections 21 And 16 Etc. Of The Act Were Also Not Under Consideration. It Does Not Take Notice Of Various Provisions Of The Act And C.P.C. Hence It Has No Binding Precedence In Deciding The Controversy Involved Here.

It Is Urged That Bal Kishan's Case (supra) The Judgment Is On The Question Of Dominant Factor, I.e. Legislation Should Enact Provisions In The Act Setting Guidelines For Periodical Enhancement Of Rent. Bal Krishna's Case Itself Holds That ''tenant Is Not Entitled To Be Heard If He Is Enjoying The Tenancy Rights On Highly Inadequate Rent'. "If The Landlord Comes To Collect Rent On Rickshaw He Will Be Refused To Be Paid More As Fare Than Rent Realized By Him.

As Regards The Decision Rendered In Milap Chandra Jain's Case (supra) Deals With The Legislation Of Section 4(2), 5,6 & 8 Of The U.P. Act No. 13 Of 1972 Relating To Fixation Of Model Rent. It Does Not Deal With The Power Of Courts, Irrespective Of Said Section. Fixation Of Standard Rent Has Nothing To Do With The Power Of The Court Otherwise In Case Before It And The Powers Conferred Under Section 34 Of The Act Read With Rule 22(c) And (f) Framed Under The Act, Read With Relevant Provision Of CPC. There Is No Question Of Freezing Rent. There Is No Legislative Policy In Freezing Rent And Situation Is Resulting To Undue Advantage To Tenant And Undue Disadvantage To The Landlord, It Amounts Inequality. It Deals With Fixation Of Standard Rent And Relating To Set Provisions. This Is Not On Any Other Context. If Section 9 Of The Act Does Not Exists In Statute, The Court Is Empowered To Pass The Order In Light Of Section 34 Of The Act, Read With Rule 22 Framed There Under And In Light Of Other Submissions Made Earlier.

He Further Urged That No Party Can Gain Advantage Of Litigation. The Right Of Parties Is To Be Crystallized On Date Of Initiation Of Cause Either Under Section 21 Of The Act Before Judge Small Causes Court And Procedural Delay Subsequent Developments Is To Be Considered And The Court Can Mould Relief. The Court Can Balance Equity And Can Pass Orders To Do Justice.

He Also Submits That The Case Of P. Ramchandra Rao (supra) Relates To Criminal Law, Which Has Different Parameters And Deals With Judicial Activism. This Ruling Is Not On The Context Of The Controversy Involved In The Present Case And It Is On A Different Context. The Case Of K. Veeraswami (supra) Was A Case Of Prevention Of Corruption Act, Hence It Is Not Applicable To The Facts Of The Present Case.

With Regard To The Case Of L.I.C.Ltd. ( Supra) He Submits That It Relates To Regulating Marketing Fee And Is A Matter Arising Out Of Karnataka Agriculture Produce Marketing Regulation Act.The Law Relating To Enhancement And Regulation Of Marketing Fee Has A Different Parameter And Considerations.

He Also Submits That In The Case Of Shangrila Food Products Ltd. (supra) The Court Has Found That The Courts Are Making Party Shed Its Advantage Before Granting Relief, Hence This Case Law Does Not Help The Case To The Other Side.

The Courts In Its Endeavours To Answer The Question Raised In These Petitions Scrutinized The Provisions Of The Act And The Rules As Well As The Provisions Of Provincial Small Causes Courts Act And Other Related Laws Applicable To The Questions Of Tenancy And Procedure Such As Transfer Of Property Act And Civil Procedure Code.

Though The Court Is Only Addressing Itself To The Questions Raised By The Landlords Regarding Enhancement Of Rent, It Cannot Ignore To Consider Various Related Facts Canvassed By The Counsel For The Parties In The Backdrop Of The Facts Of Each Case Regarding The Provisions Of Letting, Rent And Eviction. These Questions Broadly Speaking Are The Questions Of Rent, Whether It Is Inclusive Of Deposit Of Taxes And Non-deposit Thereof, Change Of User Of The Buildings For The Purpose It Has Been Let Out, Sub-letting By The Tenant Without Permission Of The Landlord, Material Alterations Made By The Tenant Forcibly Without Permission Of The Landlords, Non-payment Of Rent Regularly And The Effect Of Non-payment Of Rent At All, Termination Of Tenancy By Notice And Its Effect And The Effect Of Non-compliance Of Notice By The Tenant After Termination Of His Tenancy And Its Consequences. Therefore, Legal And Related Question Of Arrears Of Rent, Eviction, Mesne Profits And Damage Which Have Been Urged By The Counsels Are Also Being Noted.

From The Facts Canvassed By The Counsel In These Writ Petitions The Ancillary Questions Having Direct Nexus And Effect On The Rights Of The Parties May Only Be Referred While Deciding The Main Question Of Enhancement Of Rent Of The Building.

The Questions Canvassed Before The Court Pertain To Delay In Proceedings Of Enhancement Of Rent By The Court Covering The Various Aspects Such As Intention To Delay The Proceedings By The Tenant Who Is Enjoying The Property Allotment/letting Of Tenament On Very Low Rent, Occupation Of Buildings By Trespasser Or Unauthorized Occupant Hurdles Created By The Tenants Or Their Legal Representatives And Heirs With Malafide Intention For Ulterior Motives In Not Getting The Proceedings Concluded Within The Statutory Time Limit Fixed Under The Act, Because They Are Paying Negligible Or No Rent At All, Proceedings, Consequences And Remedy Particularly Where The Suits Are Allowed To Proceed Exparte By The Tenants By Non-acceptance Of Summons Etc., Delay In Execution Proceedings Attributable To Tenants, The Effect Of Recall Application, Non-filing Of Written Statement, And Lastly Contribution Of Courts In Delay Adjudication Of Cases.

The U.P. Act No. 13 Of 1972 Is Silent In So Far As Enhancement Of Rent Of A Private Building Is Concerned. Inspite Of Directions Of This Court In Milap Chand Jain And In The Case Of Bal Krishan Referred And Discussed In The Body Of The Judgment No Provision Has Been Made By The Legislature In This Regard. The High Court As Well As Apex Court Stepped In Directing The Tenant For Payment Of Damages On Initiation Of Proceedings For Arrears Of Rent And Eviction After Termination Of Tenancy By The Landlords Of Buildings Given For Allotment To Tenants Under Statutory Compulsion Of The Provisions Of The Act. It Is Stated That In The Circumstances That There Is No Remedy Provided Under The Enactment For Enhancement Of The Rent Hence The Only Silver Lining For Some Reliefs To The Landlords Which Can Be Provided Is Only By The High Court In Exercise Of Its Extraordinary Power Under Article 226 Of The Constitution As Section 21(8) Of The Act Provided Relief Of Enhancement Of Rent Only In Respect Of Public Building And Charitable Trust.

The Act Was Legislated In The Interest Of General Public For The Regulation Of Letting, Rent And Eviction Of Tenants From Certa