Allahabad High Court
Jag Mohan Agarwal vs Smt Kanchan Kumari Jain on 3 August, 2023
Author: Neeraj Tiwari
Bench: Neeraj Tiwari
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:155017 A.F.R. Reserved on 23.05.2023 Delivered on 03.08.2023 Case :- WRIT - A No. - 7428 of 2023 Petitioner :- Jag Mohan Agarwal Respondent :- Smt Kanchan Kumari Jain Counsel for Petitioner :- Pankaj Agarwal Counsel for Respondent :- Sudeep Harkauli Hon'ble Neeraj Tiwari,J.
1. Heard Sri Pankaj Agarwal, learned counsel for petitioner and Sri Sudeep Harkauli, learned counsel for respondent.
2. Present petition has been filed seeking following reliefs:-
"i) to issue a writ, order or direction in the nature of certiorari quashing the order dated 05.04.2023 passed by Additional District Magistrate (Civil Supply)/Rent Authority, Agra as well as impugned order dated 06.07.2022 passed by Additional District Magistrate (Civil Supply)/Rent Authority, Agra.
ii) to issue a writ, order or direction in the nature of certiorari quashing the entire proceedings of Case No. 696/2022, Smt. Kanchan Kumar Jain vs. Jagmohan Agrawal under section 10(1) of U.P. Regulation of Urban Premises Tenancy Act, 2021."
3. Learned counsel for petitioner-defendant submitted that premises in question is a Nazul/Lease land given by the State Government/Nagar Nigam, therefore, under the exception of Section 3 of the Uttar Pradesh Regulation of Urban Premises Tenancy Act, 2021 (hereinafter referred to as 'Act No. 16 of 2021'), Act No. 16 of 2021 would not be applicable in this case. Though this objection was not taken against the application filed by respondent-plaintiff for fixation of interim rent, but petitioner-defendant has raised the same while filing recall application and without considering the same, recall application has been rejected under the of provisions of Section 34(8) of Act No. 16 of 2021. He firmly submitted that once Act No. 16 of 2021 is not applicable, all proceedings under the provision of Act No. 16 of 2021 are void ab-initio. In the present case, remedy before the landlord is to file SCC Suit under the Provisions of Provincial Small Causes Court Act, 1887(hereinafter, referred to as, 'Act of 1887').
4. It is next submitted that from the day one, the case of petitioner is that he is never a tenant of the shop in question and in fact his father was the tenant. After his death, he has not succeeded his father's business and as per Section 6(3) of Act No. 16 of 2021, he is not the tenant and tenancy devolves for remaining period to the person/family member, who had succeeded the business of deceased-tenant. Petitioner-defendant has taken this specific ground in his objection, but rejecting the same, rent application was decided vide impunged order dated 06.07.2022 in terms of Section 6(2) of Act No. 16 of 2021, which is for the purpose of residential tenancy, where the right of tenancy shall devolve for the remaining period to his successors, therefore, treating the petitioner-defendant as tenant, order is bad in light of Section 6(3) of Act No. 16 of 2021.
5. He further submitted that Section 4 of Act No. 16 of 2021 provides for tenancy agreement and in case of only tenancy agreement, any proceeding may be initiated under Section 4 of Act No. 16 of 2021. Tenancy is required to be registered by submitting joint application or individual application by the landlord or the tenant and after that, Rent Authority shall provide a Unique Identification Number. In the present case, tenancy agreement has never been registered either jointly or separately and no Unique Identification Number has been allotted, therefore, no proceeding can be initiated under Section 4 of Act No. 16 of 2021.
6. It is further submitted that Section 10 of Act No. 16 of 2021 provides for Rent Authority to determine the revised rent in case of any dispute between the landlord and the tenant and for that purpose, it is required on the part of Rent Authority to determine the rent after application of mind, but in present case, after deducting certain amount, rent as proposed has been approved without application of mind and any exercise to determine the rent.
7. Lastly, it is submitted that in light of facts so argued here, neither, proceeding is maintainable under the law nor on the facts. Even in case assuming that the Act No. 16 of 2021 is applicable, even though, order is bad in light of facts that it has also not been considered that petitioner is not a tenant and no rent may be revised under Section 10 of the Act No. 16 of 2021.
8. Sri Sudeep Harkauli, learned counsel for respondent-plaintiff raised preliminary objection and submitted that it is a factual issue, therefore, it is required on the part of the petitioner-defendant to file appeal before the Rent Tribunal under Section 35 of the Act No. 16 of 2021 against the order of the Rent Authority within 30 days from the passing of such order after depositing 50 per cent of the entire payable amount determined under the order of Rent Authority.
9. He also pointed out that in the writ petition, it is mentioned that lease in question has expired, which is incorrect, but in fact, the lease was last renewed on 06.04.2010 and the same is valid up to the year 2037. Therefore, this ground alone is sufficient to dismiss the writ petition.
10. It is next submitted that Section 3 of Act No. 16 of 2021 provides that nothing in this Act shall apply to any premises owned by Central Government or State Government or Union territory Administration or a Government undertaking or enterprises or a statutory body or Cantonment Board. He further submitted that definition of premises is given in Section 2(c) of Act No. 16 of 2021 which means building and the land around it for the purpose of business or residence use. In the present case, there is no dispute on this point that only land was given on lease and so far as building on land is concerned, which constitues premises, is undisputedly constructed and owned by the plaintiff-respondent. In present petition it has not been disputed that building is not owned by the petitioner, but owned by the State Government or State Authorities as defined under Section 3 of Act No. 16 of 2021. He also pointed out renewal of lease deed on 06.04.2010 and invited attention of this Court to paragraph Nos. 5 & 6 of the lease deed, which clearly shows that in case of expiry of lease deed, an evaluation has to be made on a building constructed over the leased land and be given to building owner. There is also certain provisions with regard to dispute of evaluation, which is not relevant in the present case. He further submitted that definition of premises is exhaustive, therefore, nothing beyond that may be travelled by any Court of law. In the present case, only land is given on lease and that doesn't come within the definition of 'premises' as provided under Section 2(c) of the Act No. 16 of 2021. Therefore, provisions of Act No. 16 of 2021 would be very well applicable in the present case. In support of his contention, he has placed reliance upon the judgement of this Court in the matter of Sana Ullah Vs. Ashok Kapil:1979 ARC 138.
11. Learned counsel for the respondent-plaintiff next submitted that so far as denial of tenancy is concerned, this fact is also absolutely incorrect. He further submitted that as per written statement filed by the petitioner-defendant, tenancy was not denied and even it is mentioned in the written statement that he is not in possession of the premises in question for a period of more than 10 years, meaning thereby that prior to that, he was having possession over the premises in question. He further submitted that up to 2014, rent receipt was duly signed by the petitioner-defendant, which is annexed alongwith the counter affidavit. Not only this, a court agreement had also taken place on 23.8.2012 upon which, petitioner-defendant has put his signature in the capacity of tenant. Thus, denial of tenancy is vague, not supported by any document in light of facts mentioned hereinabove. In case of any family settlement or any other reason about shifting of tenancy, the same must have been brought on record by the tenant before the Rent Authority, which is missing in the present case. Therefore, under such facts of the case, petitioner has rightly been treated as tenant.
12. He also pointed out that many documents have been brought on record while filing recall application. There is provision under Section 34(8) of the Act No. 16 of 2021 about the recall of order and according to that, recall application is not maintainable. Therefore, any new document brought on record through recall application cannot be seen at this stage and only at the most, it may be seen while deciding the rent application finally as it is only interim determination of rent and not final. Therefore, he reiterated that any document so filed with recall application cannot be read in light of fact that the recall application is not maintainable other than an ex-parte order as provided under Section 34(8) of the Act No. 16 of 2021, which is not the case of petitioner-defendant.
13. He next submitted that so far as registration of rent agreement under Section 4 of the Act No. 16 of 2021 is concerned, respondent-plaintiff has submitted the information as per First Schedule as provided under Section 4(1) of the Act No. 16 of 2021 before the Rent Authority and registration had not taken place because petitioner-defendant refused/failed to furnish any relevant information. He next submitted that petitioner-defendant has made this specific averment about First Schedule of Section 4(1) of the Act No. 16 of 2021 which is mentioned in Para 18 of the counter affidavit. First Schedule has also been annexed alongwith particulars of the building and as well name of the tenant, i.e. Jagmohan Agarwal, who is petitioner-herein. Therefore, conditions so mentioned in Section 4 of the Act No. 16 of 2021 has been very well complied by the respondent-plaintiff. Hence proceeding of arrears of rent is very well maintainable.
14. He further invited attention of this Court to Section 4(3) of the Act No. 16 of 2021. He submitted that first proviso to Section 4(3) of the Act No. 16 of 2021, i.e. 4(3)(a) is applicable in the present case, which provides for tenancy created before the commencement of this Act and further provides that in case landlord and tenant jointly fail to present a copy of the agreement or fail to reach an agreement within specified period, such landlord and tenant shall separately file particulars about such tenancy before the Rent Authority within one month from the date of expiry of the period mentioned in Clause 4(2). If the landlord has submitted its particulars within the specified period, but tenant failed to submit the same, then landlord may file an application for eviction on this ground alone. He also pointed out that next proviso provides that during such eviction proceeding, Rent Authority shall also decide the interim rent payable by the tenant during such adjudication. In the present case, it is admitted that petitioner-defendant has not complied with Section 4 of the Act No. 16 of 2021, therefore, this cannot be a ground favourable for the petitioner-defendant. There is no such exception that in case of failure on the part of landlord or the tenant, proceeding cannot be initiated rather he submitted that in case petitioner-defendant fails to comply with Section 4(2) & 4(3) of the Act No. 16 of 2021 and after submission of agreement by landlord, he may proceed for eviction. Therefore, in light of Section 4 of the Act No. 16 of 2021, the present proceeding is very well maintainable.
15. He next submitted that so far as maintainability of proceeding is concerned, a bunch of civil appeals were pending before the Apex Court for the same market in question, i.e. Labh Chand Market, Rajaki Mandi, Agra. The market is owned by joint family of respondent-plaintiff and while deciding the civil appeals, Apex Court had made an observation that provision of new Act, i.e Act No. 16 of 2021 would apply to principle of revision of rent to existing holders of tenancy also and thus, there remains no doubt about it. So far as the claim of arrears as submitted by learned counsel for the respondent-plaintiff is concerned, that also have to be dealt with under the provisions of Act No. 16 of 2021.
16. He next submitted that Apex Court has separately dealt with the civil appeals filed by the family members of the respondent-plaintiff in relation to similarly situated shop in the same market and set aside the orders passed by the Revisional Court and the trial Court rejecting the suits under Order VII Rule 11 CPC and restored suit for reconsideration on the basis of Act No. 16 of 2021.
17. He firmly submitted that Supreme Court itself has held that Act No. 16 of 2021 would be applicable to the shop in question that is situated in the same market. Therefore issue of applicability of Act No. 16 of 2021 cannot be raised, once it is upheld by the Supreme Court.
18. He further submitted that he has taken specific averment in paras 4, 5, 6 and 7 of the rent application mentioning the rent of four shops in the same area in the same market, i.e. Labh Chand Market, Rajaki Mandi, Agra alongwith assessment of area made by ADM (FR) for a period between 2004 to 2012 and according to that, annual rental value comes to Rs. 10,000/-. He also submitted that in para 6, he has given the name of tenant, namely Virendra Kumar Sharma with shop No. 29/296/24, who is paying Rs. 22,000/- per month for shop in the same market. Not only this, in para 7, there is specific averment that Rent Authority vide its order dated 22.12.2021 has revised the rent of shop No. 29/296A/29(New No. 29/296/A/5), Labh Chand Market, Rajaki Mandi, Agra as 750 per sq. feet and the same has been fixed by the Rent Authority in the present case considering the fact that this shop is also situated in the same area and same market, i.e. Labh Chand Market, Rajaki Mandi, Agra.
19. He also submitted that in the objection filed by the petitioner-defendant before the Rent Authority, there is no denial of the facts so mentioned in paras 4, 5, 6 and 7 of the rent application filed by the respondent-plaintiff. Therefore, contention of the petitioner-defendant that there is no determination of rent is absolutely incorrect as in the same market, there is determination of rent by the Rent Authority coupled with the other facts so mentioned in paras 4, 5, 6 and 7 of the rent application. Therefore this argument is also not sustainable.
20. In the rejoinder argument, learned counsel for the petitioner-defendant submitted that while using the word 'premises', intention of legislation is something different. It does not mean that only land is to be occupied or owned by the State Government, whereas, the building is to be owned by the lessee. In fact, meaning of word 'premises' includes land in question as well as building raised upon that, though it is constructed by lessee.
21. He also reiterated that while deciding the interim rent, there is no discussion made by the Rent Authority even with regard to facts so mentioned in paras 4, 5, 6 and 7 of the rent application, but Rent Athourity straight away has fixed the rent, which is bad.
22. I have considered the rival submissions made by learned counsel for the parties, perused the record, relevant provisions of Act No. 16 of 2021 as well as judgments relied upon.
23. There is provision of appeal under Section 35 of the Act No. 16 of 2021 and it is required on the part of the petitioner-defendant to first exhaust the alternative remedy so available, but in the present petition, issue of applicability of Act No. 16 of 2021 is involved, which is absolutely a legal question, therefore, present petition is entertained and Court proceeded to decide the petition.
24. The very first issue argued before this Court is about the applicability of new Act, i.e. Act No. 16 of 2021. Learned counsel for the petitioner-defendant has placed reliance upon Section 3 of the Act No. 16 of 2021, which is relevant in the present dispute. The same is being quoted hereinbelow:
"3. Act not to apply to certain premises.-(1) Nothing in this Act shall apply to any-
(i) premises owned by the Central Government or State Government or Union Territory Administration or a Government undertaking or enterprises or a statutory body or Cantonment Board;
(ii) premises owned by a company, University or organisation given on rent to its employees as part of service contract;
(iii) premises owned by religious or charitable institution as may be specified, by notification by State Government;
(iv) premises owned by Auqaf registered under the Waqf Act, 1995 (Act No. 43 of 1995) or by any public trust registered under applicable law;
(v) other building or category of building specifically exempted in public interest by notification by the State Government. (2) Notwithstanding anything contained in sub-section(1), if the owner and tenant of the premises referred to in clause (i) to clause (v) of the said sub-section agrees that the tenancy agreement entered into between such landlord and tenant be regulated under the provisions of this Act, such landlord may inform the Rent Authority of the agreement to do so at the time of information of the tenancy agreement under Section 4."
25. From the perusal of the above quoted provision, it is apparently clear that this Act would not apply in case premises is owned by Central Govt. or State Govt. or Union Territory Administration or a Government undertaking or enterprises or a statutory body or Cantonment Board.
26. Now, learned counsel for the respondent-plaintiff while opposing the submission made by learned counsel for the petitioner-defendant has placed reliance upon Section 2(c) of the Act No. 16 of 2021, which is bing quoted hereinbelow:
"2. Definition.- In this Act, unless the context otherwise requires,-
(c) "premises" means any building or part of a building which is, or is intended to be, let on rent for the purpose of residence or for commercial or for educational use, except for industrial use and includes-
(i) garden, garage or closed parking area, vacant land, grounds and out-houses, if any appertaining to such building or part of the building; and
(ii) any fitting to such building or part of the building for the more beneficial enjoyment thereof, but does not include premises such as hotel, lodging house, dharamshala or inn;"
27. Section 2(c) defines the premises. The word 'premises' means building alongwith land around it for the purpose of business or residential use. So far as present dispute is concerned, as to whether the premises or only the land was leased out by the State authorities or any other municipal authority. In the present case, there is no dispute that only the land was on lease having no building upon that and undisputedly the building was constructed by the respondent-plaintiff. Therefore, the word premises cannot be read as only land, but it includes building also, which has never been leased out in the present case. The definition of word 'premises' is very exhaustive and no interpretation can be made beyond that and certainly in the present case, only the land is owned and leased out by the State authorities as mentioned in Section 3(i) of the Act No. 16 of 2021 and not the building, therefore, the property in dispute includes land and building both and it is not covered with the exception of Section 3(i) read with Section 2(c) of the Act No. 16 of 2021. The very same ratio of law has also been followed by the Court in the matter of Sana Ullah(Supra).
28. The definition of premises under Section 2(c) of the Act No. 16 of 2021 is also parimateria to the definition of building given in Section 3(i) of the U.P. Act No. 13 of 1972 and this was the subject matter of judgment of this Court in Sana Ullah(Supra) and the Court in the said judgment is of the view that if the definition is very exaustive, it is not possible to read it as something else, which is not stated therein. Relevant paragraphs of aforesaid judgment are being quoted hereinbelow:-
"14. The expression "building" has been defined in Section 3(1) as follows:--
'Building', means residential or non-residential roofed structure and includes-- (1) any land (including any garden), garages and out-houses, appurtenant to such building;
(ii) any furniture supplied by the landlord for use in such building;
(iii) any fittings and fixtures affixed to such building for the more beneficial enjoyment thereof.
15. Since the definition above uses the word "means", it is clear that the definition is exhaustive, and that it is not possible to read in it something which is not stated therein. The definition clearly shows that in order to fall within it, there must be a roofed structure. If, therefore, there is no roofed structure, the premises cannot be a building. Apart from the meaning given in the Act, what is a 'building' must always be a block of brick or stone work, covered in by a roof. The roof need not be laid with lintel or other similar constructions. The ordinary and natural meaning of the word "building" includes the fabric and the ground on which it stands. It is a structure roofed in and capable of upholding protection and shelter. Therefore, similar roofless Ahata which merely surrounds a piece of land, though stayed and tied together, is not a building within the definition given above. The next question that arises for decision in this case is whether a construction should be a building on the date of allotment as well or that if it is found to be a building on the date when it is vacated, that alone should be sufficient for passing an allotment order.
29. From the perusal, it is apparently clear that definition of 'building' in Section 3(i) of the Act No. 16 of 2021 and definition of premises in Section 2(c) of the Act No. 16 of 2021 are similar and very exhaustive, which includes land also. Therefore only land cannot be said to be 'premises'. In the present case, only land was leased out by the State authorities and that cannot be said to be a premises. Therefore, exception of Section 3(i) of the Act No. 13 of 1973 would not be applicable in the present case.
30. Plaintiff-respondent has moved rent application for enhancement of rent under Section 10 of the Act No. 16 of 2021. Section 10 of the Act No. 16 of 2021 is being quoted hereinbelow:
"10. Rent Authority to determine the revised rent in case of dispute-(1) In case of any dispute between the landlord and the tenant regarding revision of rent, the Rent Authority may, on an application made by the landlord or tenant determine the revised rent and other charges payable by the tenant and also fix the date from which such revised rent becomes payable.
(2) In determining the rent to be revised, the rent Authority may be guided by the prevailing market rent in the surrounding areas let out on rent.
(3) Once a determination under this section has been made, no application for fresh determination shall lie for a period of one year after the said determination.
(4) The Rent Authority may determine provisional rent during the proceedings for revision of rent which shall be subject to final determination."
31. Under Section 10(4) of the Act No. 16 of 2021, there is provision for Rent Authority to fix provisional rent during the proceeding of revision of rent, therefore, order of Rent Authority is well within its authority conferred upon it under the provision of 10(4) of the Act No. 16 of 2021.
32. The next argument of learned counsel for the petitioner-defendant is that under Section 6(3) of the Act No. 16 of 2021, which says that tenancy devolves for remaining period on the person who has succeeded the business of the deceased tenant and in the present case, petitioner-defendant had not succeeded any business, therefore, he is not a tenant as provided under Section 6(3) of the Act No. 16 of 2021.
33. This argument of the learned counsel for the petitioner-defendant arises from the interpretation of Section 6 of the Act No. 16 of 2021 and relevant part of the same is being quoted hereinbelow:
"6. Rights and obligations of successor in case of death-(1) The terms of agreement executed between landlord and tenant, shall be binding upon their successors in the event of the death of the landlord or tenant, as they case may be, and in such case, the successor of the deceased landlord or tenant shall have the same rights and obligations as agreed to in the tenancy agreement for the remaining period of such tenancy.
(2) In the event of death of a tenant, of residential tenancy, the right of tenancy shall devolve for the period of tenancy on his successor, namely:
Spouce; son or daughter or where there are both son and daughter, both of them; parents; daughter-in-law, being the widow of his pre-deceased son widowed or divorced sister: Provided that the successor has ordinarily been living in the premises with the deceased tenant up to the date of his death. (3) In the event of death of a tenant of a non-residential tenancy, the right of tenancy shall devolve for the remaining period of tenancy on the person who has succeeded the business of deceased tenant."
34. Learned counsel for the respondent-plaintiff has argued that in the written statement, it is mentioned that petitioner-defendant was in possession of the premises in question for a period of more than 10 years up to 2014. Rent receipt was duly signed by the petitioner-defendant, which is part of counter affidavit and the court agreement dated 23.08.2012 is also signed by the petitioner-defendant in the capacity of tenant. These facts are undisputed.
35. Once it is admitted that petitioner-defendant was in possession of shop in question for more than 10 years, signed the rent receipt up to 2014 and also put his signature in the capacity of tenant in a court agreement, he cannot deny the tenancy.
36. Learned counsel for the petitioner-defendant could not bring any document on record to show that at any stage of time, due to family settlement or any other reason, tenancy was shifted to other family members, who succeeded in the business. Therefore denial of tenancy by the petitioner-defendant cannot be accepted. He has to be treated as tenant.
37. It is also the case of the petitioner-defendant that though he has not taken objection against the rent application filed by the respondent-plaintiff for fixation of rent, but he has raised the same objection by filing recall application, which was rejected in light of Section 34(8) of the Act No. 16 of 2021. It is his case that once the Act No. 16 of 2021 is not applicable in his case, all proceedings are bad and therefore in recall application, issue of applicability of Act No. 16 of 2021 has to be considered.
38. This argument of learned counsel for the petitioner-defendant is based upon interpretation of Section 34(8) of the Act No. 16 of 2021, which is being quoted hereinbelow:
"34. Powers of Rent Authority and Rent Tribunal.- (1) The Rent Authority and the Rent Tribunal shall, for discharging their functions under this Act, have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908(Act No. 5 of 1908) for the purpose of,:
(8) The Rent Authority may set aside or recall any order passed ex-parte if the aggrieved party files an application and satisfies it that the notice was not duly served or that he was prevented by any sufficient cause from appearing when the case was taken up for hearing."
39. From the perusal of aforesaid provision, it is apparently clear that Section 34(8) of the Act No. 16 of 2021 clearly provides that Rent Authority may set aside the recall application on the ground that notice has not been served or he was prevented from appearing when the case was taken up. It is not the case of the petitioner-defendant. He has duly received the notice, filed objection, therefore in light of Section 34(8) of the Act No. 16 of 2021, Rent Authority cannot travel beyond that and any new fact or objection or paper except the service of notice for non appearance as referred in Section 34(8) of the Act No. 16 of 2021 cannot be accepted. Rent Authority has rightly rejected recall application filed by the petitioner-defendant.
40. There was another argument of learned counsel for the petitioner-defendant about the interpretation of provision of Section 4 of the Act No. 16 of 2021. Relevant paragraph, i.e. 4(1), 4(2) & 4(3) are being quoted hereinbelow:
"4, Tenancy Agreement.- (1) Notwithstanding anything contained in this Act or any other law for the time being in force, no person shall, after the commencement of this Act, let or take on rent any premises except by an agreement in writing, which shall be informed to the Rent Authority by the landlord and tenant jointly, in the form specified in the First Schedule within a period of two months from the date of tenancy agreement.
Provided that in cases or residential tenancies for a period of less than twelve months, the landlord and tenant shall not be required to inform the Rent Authority about such tenancy.
(2) Where the landlord and the tenant fail to jointly inform the execution of the tenancy agreement referred to in sub-section(1), the landlord and tenant shall separately inform the execution of tenancy agreement to the Rent Authority within a period of one month from the date of expiry of the period specified in sub-section(1) (3) Where, in relation to a tenancy created before he commencement of this Act,-
(a) if an agreement in writing was entered into between the landlord and the tenant, they shall jointly present a copy thereof to the Rent Authority within three months of the commencement of this Act.
(b) if no agreement in writing was entered into, the landlord and the tenant shall enter into an agreement in writing with regard to that tenancy and present the same to the Rent Authority within three months of the commencement of this Act:
Provided that where the landlord or the tenant fail to present jointly a copy of the tenancy agreement or fail to reach an agreement within specified period, such landlord and tenant shall separately file the particulars about such tenancy with the rent Authority within one month from the date of expiry of period mentioned in clause (b) above, in the form specified in Ffirst Schedule. If the landlord has submitted his particulars within the specified period but tenant fails to submit such particulars, the landlord may file an application for eviction on this ground alone; Provided further that during such eviction proceedings, the Rent Authority shall, notwithstanding anything contained in this Act, decide interim rent payable by the tenant during such adjudication."
41. From the perusal of Section 4(2) and 4(3) of the Act No 16 of 2021 it is apparently clear that in case a joint tenancy agreement has not been filed by the landlord and the tenant, it is open for the landlord and the tenant to file separate particulars of such tenancy within one month before the Rent Authority in the form prescribed in the First Schedule. In the present case, the respondent-plaintiff herein has submitted particulars of tenancy in the form prescribed in the First Schedule and there is no denial of this fact either before the Rent Authority or before this Court. Therefore, in light of Section 4(2) and 4(3) of the Act No. 16 of 2021, proceeding under the Act No. 16 of 2021 is very well maintainable.
42. Not only this, arising out of same dispute of same market duly owned by the family members of the respondent-plaintiff, the matter went up to Apex Court in Civil Appeal Nos. 1082-2083 of 2017 (Neena Jain & Ors. Vs. State of U.P. & Anr.) and during the pendency the said case, new Act No. 16 of 2021 was framed and implemented. Hence, Apex court has closed the proceedings of the said case with the observation that new Act, i.e. Act No. 16 of 2021 shall govern the revision of rent to existing tenancies. Relevant paragraphs of the said judgment is quoted hereinbelow:
"The provisions of the Act aforesaid apply the principle of revision of rent to existing holder tenancies also and thus, there is no doubt about it. Insofar as the claim of any arrears as submitted by learned counsel for the appellants is concerned, that will also have to be dealt with under the provisions of the new Act and thus, even on that aspect there appears to be no apprehension.
We may notice that in these batch of appeals there are some cases where the suit filed by the landlords were dismissed under Order VII Rule 11 of the Code of Civil Procedure, 1908. The revision filed against the same were also dismissed by the High Court predicated on the rationale of the impugned order. It is thus, the submission of learned counsels in these matters that these orders rejecting the plaint would have to be recalled and the suit remitted for fresh consideration in view of the new law as discussed aforesaid.
We accordingly set aside the order(s) passed in revision and by the trial Court rejecting the suits under Order VII Rule 11, CPC and restore the suits for re-consideration on the basis of the new law and the order passed by us today."
43. Apex Court while passing the order dated 23.08.2021 dealing with many civil appeals, out of which one Civil Appeal bearing no. 1089/2017 was filed by the family members of the respondent-plaintiff in relation to similarly situated shop in the same market. In those matters, suit filed by the landlords were dismissed under Order VII Rule 11 CPC by the trial Court and revision was also dismissed by the High Court. Ultimately, the Apex Court allowed the Civil Appeals setting aside the order of trial Court as well as of the High Court and remanded the matter to trial Court to decide the same on the basis of new Act, i.e. Act No. 16 of 2021.
44. Therefore, from the perusal of Section 4(2) and 4(3) of Act No. 16 of 2021 as well as finding given by the Apex Court in the matter of Neena Jain & Ors(Supra), there is no dispute that proceedings under the new Act is maintainable.
45. This is also case of petitioner-defendant is that without any exercise and application of mind the rent proposed by the respondent-plaintiff is accepted.
46. It is argued by learned counsel for the respondent-plaintiff that in paragraphs 4, 5, 6 and 7 of the rent application, there is averment about the fixation of rent about the shops in the same market, i.e. Labhchand Market, Rajaki Mandi, Agra, which is not denied in the objection filed by the petitioner-defendant.
47. I have perused the rent application and also objection of petitioner-defendant. Certainly the facts so mentioned in paragraphs 4, 5, 6 and 7 of the rent application dated 20.01.2022 it has not been denied that it is not in the same market, i.e. Labhchand Market, Rajaki Mandi, Agra. Paragraphs 4, 5, 6 and 7 of the rent application are being quoted hereinbelow:-
"4. That the shop in question is situated in most prominent important market of City of Agra. The valuation of 4 shops in the area in question (in the same Labh Chand Market) were assessed by ADM(FR), Agra in respect of Shops No. 29/296A/31, 29/296A/37, 29/296/11 and 29/296/14 on various dates.
The copies of all orders are also being filed as Annexure B, C, D & E to Affidavit.
5. That as per above aluation done by ADM(FR), Agra for four shops between 2004 and 2012 the current value of the shops in Labh Chand Market in 2021 comes to approx. Rs. 1,00,000/- per sqr. Feet Annual rent Value( At 10% of Market Value) comes to Rs. 10,000/- per Sqr. Feet and the monthly rental at Rs. 833/- per Sqr. Feet as per table below:-
Shop No. Old Shop No. New Area in Sqr. Feet (Approx) Date of Valuation Valued at Rs. (in Lakh) Value (in Rs. Lakh) in 2021 @ 7% Annual increment Value in Rs. Per sqr. Feet in 2021 29/296A/31 29/296/A/7 134 in GF and 268 in Basement= 134+134= 268 17/05/2012 165 309.23 1,15,384/-
29/296A/37 26/296/B/5-6 340 GF+310 basement=340+155=495 05/12/2007 184 488 98,586/-
29/296/11 71.22 14/05/2004 19.50 63.87 89,958/-
29/296/14 79.50 30/04/2005 21.45 65.54 82,440/-
6. That even in the market one tenant namely Shri Virendra Kumar Sharma, with Shop No. 29/296/24 having area of 20 Sq. feet is paying rent to his Landlord Shrimati Kanchan Kumari Jain Wife of Late Shri Milap Chandra Jain at the rat of Rs. 22,000/- per month. The copy of lease agreement and his payment receipts are being filed as Annexure F, G & H to the Affidavit.
7. That recently the Rent Authority by its order dated 22/12/2021 has revised the rent of the Shop No. 29/296A/29 (New No. 29/296A/5) Labh Chand Market, Raja Ki Mandi, Agra as Rs. 750/- per Sq. Feet. The Copy of order dated 22/12/2021 is being filed as Annexure I to the Affidavit."
48. Petitioner-defendant has replied paragraph 4, 5, 6 and 7 of the rent application dated 20.01.2022 filed by respondent-plaintiff by filing objection dated 18.05.2022. Relevant paragraphs of objection filed by petitioner-defendant are being quoted hereinbelow:-
"3. That para No. 3 and 4 of the application are legal hence needs no offer. More so ever because the opposite party is not a tenant of the demised premises.
4. That para No. 5, since does not in any way relate to the opposite party, hence needs no offer. However, it is submitted that any landlord legally cannot shift the fruits to be obtained from a tenant on the shoulders of his brothers or a person who is blood related except her legal heirs/successors.
5. That para No. 6 of the application is a matter of regard and being legal in nature needs no offer.
6. That since para No. 7 of the application does not relate to the opposite party, hence needs no offer.
49. In paragraphs 3, 4, 5 and 6 of the objection, there is no denial of fact so mentioned in paragraphs 4, 5, 6 and 7 of the rent application filed by plaintiff-respondent.
50. It is mentioned in para 4 of the rent application that shop in question is also situate in the same market, i.e. Labh Chand Market, Rajaki Mandi, Agra. In para 4, there is reference of assessment order of ADM (FR) and as per that monthly rent is fixed at the rate of Rs. 833/- per sq. ft for other shops situated in the very same market.
51. Not only this, Rent Authority vide its order dated 22.12.2021 has revised the rent of Shop No. 29/296A/29(New No. 29/296/A/5), Labh Chand Market, Rajaki Mandi, Agra at the rate of Rs. 750/-. In the present case, Shop No. 29/296/20 in the same market, impugned interim rent order dated 06.07.2022 has been passed relying upon the order dated 22.12.2021 fixing the rent as Rs. 750/- per sq. ft. Therefore in want of specific denial in objection, it cannot be said that Rent Authority has fixed the interim rent without application of mind. In fact, Rent Authority while deciding the interim rent has relied upon the order dated 22.12.2021 fixing the rent as Rs. 750/- per sq. ft. for the same market. Impugned interim rent order has been passed on 06.07.2022 almost after 8 months from the earlier order dated 22.12.2021. Therefore in all eventuality interim rent cannot be fixed lessor than the amount of Rs. 750/- per sq. ft. for the reason that shops are situated in the same market, i.e. Labh Chand Market, Rajaki Mandi, Agra. Under such facts of the case, it cannot be said that the impugned order dated 06.07.2022 has been passed without any exercise or application of mind. Rent Authority has taken a lenient view while fixing the interim rent at the rate of 750/- per sq. feet even after 8 months from the earlier order dated 22.12.2021, otherwise, it may have been fixed to some higher side.
52. Therefore, in light of facts, provision of law and judgments discussed hereinabove, I find no illegality in the impugned order dated 06.07.2022. Petition lacks merit and is accordingly dismissed.
53. No order as to costs.
Order Date :- 03.08.2023 ADY