Jharkhand High Court
Birendra Kumar Singh vs The Jharkhand State Through The ... on 18 January, 2017
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W. P. (C) No. 4256 of 2015
Birendra Kumar Singh .... Petitioner
Versus
1. The Jharkhand State through the
Commissioner, South Chotanagpur Division,
Ranchi
2. The Deputy Commissioner, Ranchi
3. The SubDivisional Officer, Sadarcum
House Rent Controller, Ranchi
4. The Executive Magistrate, Ranchi
5. The Gurunam Singh, Ranchi . ........... Respondents.
CORAM: HON'BLE MR. JUSTICE APARESH KUMAR SINGH
For the Petitioner : M/s. Vijoy Pratap Singh, Sr. Advocate
Rashmi Kumar, Amrita Kumari, Advs.
For the RespondentState : Mr. Satish Kumar, J.C to G.A
For the Private Respondent: Mr. Prashant Pallav, Adv.
10/18.1.2017The orders impugned are as follows:
(i) Original order dated 16th September, 2011 passed by Sub Divisional Officercum Rent Controller, Sadar, Ranchi in B.B.C Case no. 10 of 2005 (Annexure3);
(ii) Order dated 7th October, 2013 passed by Deputy Commissioner, Ranchi in B.B.C Appeal no. 61 R 15/201112 (Annexure4) upholding the order of Rent Controller and dismissing the petitioner's appeal, and
(iii) Order dated 13th July, 2015 passed by Commissioner, South Chotanagpur Division, Ranchi in H.R.C Revision no. 107 of 2013 (Annexure5) upholding the order of Land Rent Controller and the Appellate Authority rejecting revision application of the petitioner.
Apparently, the proceedings in B.B.C Case no. 10 of 2005 instituted for fixation of fair rent by respondent no. 5 herein has taken about ten years in its journey from the Original Court to Revisional Court, whereafter challenge has been made in the present matter to the orders by aggrieved tenant in September, 2015. It would also not be out of place to mention here that B.B.C Case was first decided by order dated 13th December, 2006 in favour of the landlord, which led to Appeal no. 65 of 2007 by the aggrieved tenant (petitioner herein). Apparently, on the first instance, the rent controller had computed wholesome rent for the premises in question being Holding no. 589 on Plot no. 853 under Ward no. XIII of 2. Chutia Thana, Mauza Niwaranpur instead of determining the rate of fair rent permissible in that area. On remand, again on 3rd December, 2007, the rent controller passed an order fixing fair rent at the rate of Rs.6/ per sq. ft. for covered area and Rs. 2/ per sq. ft. for open area while Rs.1/ per sq. ft for Bathroom. In between, the petitioner had gone before the Commissioner, South Chotanagpur Division being aggrieved by the order of remand passed by the Appellate Authority. That H.R.C Revision no. 107 of 2007 was dismissed as infructuous in view of the fresh determination made by the rent controller. Petitioner being aggrieved by the order of Revisional Authority approached this Court in W.P.(C) No.6358 of 2010, which was decided vide judgment dated 14th January, 2011 (Annexure1) observing that the order passed by the rent controller on 3rd December, 2007 is also appellable. This Court however found no merit in the writ petition and refused to preempt the decision of the court below. The writ petition was disposed of with liberty to the petitioner to approach the appropriate forum under the Act with an observation that he can make application for condonation of delay as evidently he was pursuing other remedy. Thereafter, petitioner preferred B.B.C Appeal no. 55/R15/201011 being aggrieved by the rent fixation order dated 3rd December, 2007. The Appellate AuthoritycumDeputy Commissioner, Ranchi remanded the matter to rent controller vide order dated 28th April, 2011 holding that the rent of the premises in question has been fixed on the basis of inquiry report of Executive Magistrate without hearing the parties. The rent controller was directed to fix the fair rent of the premises in question afresh keeping in view the area occupied by the tenants after hearing all the parties and giving them sufficient hearing on the spot inquiry. After the second remand effectively, the impugned order dated 16th September, 2011 has been passed by the respondent no. 3 fixing fair rent of the premises at the rate of Rs. 6.50 per Sq.Ft. for the area of 429 Sq. Ft. and Rs. 2.50 per Sq. Ft. for the area of 171 Sq. Ft which is in common use. That has been upheld by the appellate authority and revisional authority as well. 3.
Learned Senior Counsel for the petitioner has assailed the impugned decision inter alia on the following grounds:
(i) The area of 600 Sq. Ft. over which fair rent has been fixed by the House Rent Controller is evidently beyond the area shown in the sale deed containing conveyance of the land and premises to the petitioner from the Power of Attorney Holder of erstwhile landlord. The total built up area of the structure in question is 500 Sq.Ft. only;
(ii) The objection taken by the tenant to the inquiry report on this issue has not been met by adequate reasons;
(iii) The rent controller has failed to conform to the mandate prescribed under Section 8 of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982 and Rule 3 made thereunder, which prescribes the factors to be taken into account for such fixation.
Additionally, it is stated that the house in question is an old house constructed much before 1st December, 1980. Rent controller ought to have ascertained the prevailing rent for the last 12 months before 1st December, 1980 in the area as well as considered whether the original structures have undergone any repair etc. to warrant justifiable increase. None of these exercise were carried out by the Executive Magistrate entrusted with the inquiry nor dealt with by the House Rent Controller
(iv) It is also stated that the inquiry report also suggests existence of different kind of structures, such as, Khaparpos tiles structure, permanent structure , Asbestos structure for which uniform rent at the rate of Rs. 6.50 per Sq.Ft. has been fixed.
Reliance has been placed upon the Full Bench judgment rendered by this Court reported in 2003 (3) JLJR 527 in the case of Rajendra Behl Vs. Commissioner, South Chotanagpur Division, Ranchi & Ors. in support of his submission in relation to interpretation to the provisions of Section 8 of the Act and Rule 3 made thereunder.
Learned Senior Counsel for the petitioner also submits that status of private respondent as a landlord is itself a subject matter of dispute in 4. Eviction Suit no. 8 of 2007 pending before the learned trial court at Ranchi. It is only upon the direction of this Court in another writ petition being W. P. (C) No. 1622 of 2008 that petitioner is depositing the rent at the rate of Rs. 38/ per month before the Court below. It is submitted that on all these counts, the impugned orders suffer from serious errors of law and facts and cannot be upheld. The matter therefore needs to be remanded to Original Authority to pass order afresh in accordance with law. Learned counsel for the private respondent has strongly defended the impugned order. He has also reiterated the long history of litigations on a simple application for fair rent fixation since 2005. It is submitted that pendency of a matter on fair rent fixation for so long in itself is excruciating and onerous burden on the landlord. It is further submitted in response to the grounds of challenge laid by petitioner that (i) the sale deed of petitioner is nowhere in challenge, (ii) the inquiry conducted by the rent controller through Executive Magistrate was undertaken in presence of landlord and petitioner tenant. Both of them have signed the inquiry report. The objection of the petitioner to inquiry report are frivolous and have rightly been overruled by the rent controller. (iii) It is submitted that requirement of section 8 of the Act and Rule 3 made thereunder, cannot be interpreted to mean that the rent of such an old premises remains static at the rate of Rs. 38 since induction of the tenant in the year 1965 for so long. Any reasonable enhancement cannot be faulted and pegged down to 25% of increase only on the rent being paid since 1965. This view has been taken by learned Single Judge of this Court in the case of Ashok Kumar Chokhani Vs. State of Bihar & Ors. reported in 2006 (4) JLJR 157 relying upon the judgment of the Full Bench of this Court in the case of Rajendra Behl Vs. Commissioner, South Chotanagpur Division (Supra). He has also placed reliance upon the Division Bench Judgment in the case of Saraswati Devi & Ors. Vs. Commissioner of Bhagalpur Division reported in 1996 (1) PLJR 924 also referred to in the Full Bench 5. judgment of this Court in the case of Rajendra Behl (Supra) in support of his contention.
Counsel for the private respondent submits that none of the grounds addressed by the petitioner are tenable in law as well as on facts. Petitioner has himself failed to produce any evidence relating to rent of adjoining premises prior to 1st December, 1980, if he had any reason to object to fair rent fixation. The Executive Magistrate as well as rent controller have not found any other evidence of prevailing rent of the adjoining premises of the property in question for the period prior to 1st December, 1980 to take different opinion. The onus lies upon the petitioner to dispel the finding of the House Rent Controller. Lastly it is submitted that an increase of Rs. 6.50 per sq. ft. for covered area and Rs 2.50 per sq. ft. for common area, cannot be said to be abnormally high in relation to a premises situate in a posh colony near Ranchi Railway Station i.e., Nivaranpur.
Learned Senior Counsel for the petitioner, in reply, submitted that the order of remand by the Appellate Authority was not limited to the examination of area under occupation by the petitioner as the order of rent fixation passed by the rent controller was set aside. It is further submitted that the petitioner had duly and promptly objected to inquiry report before House Rent Controller though he may have signed on the report. The house rent controller was directed to deal with the objection in a proper manner which he has failed to do so.
I have considered the submission of the parties and have gone through the materials on record, judgments relied upon by the parties and the impugned orders. In the first place, it is required to be observed that in a proceeding for rent fixation, the House Rent Controller is not required to go into the question of landlordtenant relationship. In the instant case, it appears to be already a subject matter of trial before the learned Musif, Ranchi in Eviction Suit no. 8 of 2007. It is apparent that respondent claims ownership of the piece of land on the basis of a sale 6. deed executed by the Power of Attorney Holder of the erstwhile landlord in the year 2004 in their favour. The sale deed is not under challenge in any other proceeding as well. The House Rent Controller has been conferred with the power under the provisions of Section 22 of the Act to undertake an enquiry for the purpose of taking decision. It is also evident that the rent of such an old premises remained static at the rate of Rs. 38 since induction of tenant petitioner in the year 1965 onwards. In the proceeding before Rent Controller, no material relating to prevailing rent were produced by either of the parties. No other material relating to prevailing rent prior to 1st December, 1980 were also available with the Executive Magistrate conducting the inquiry. The rent controller however proceeded to determine the fair rent at the rate of Rs.6/ per sq. ft. for covered area and Rs. 2/ per sq. ft. for open area and Rs.1/ per sq. ft for Bathroom in its earlier order dated 3rd December, 2007. Petitioner, during the course of proceeding as observed hereinabove, failed to dispel the finding of rate of rent by rent controller by producing any evidence of prevailing rent of any adjoining premises in the area. Petitioner duly participated in the inquiry which was conducted in presence of both the parties. The structure in question is quite old and has amenities such as electricity, toilets, water facilities etc. Five rooms totaling an area of 429 per sq. ft. were found in occupation of this petitioner along with common area of about 171 per sq. ft. in addition thereto in common use with another tenant. In the face of the attendant material facts before rent controller fixation of rent at the rate prescribed in respect of premises occupied since 1965 at the rate of 38/ cannot be said to be unreasonable, arbitrary or exorbitant in any manner. The prescription of law under Section 8 of the Act read with Rule 3 made thereunder, has been interpreted earlier by the Division Bench of Patna High Court in the case of Saraswati Devi (Supra) and also referred to in the Full Bench Judgment of this Court in the case of Rajendra Behl(Supra). Learned Single Judge of this Court in the case of Ashok Kumar Chokhani (Supra) has also relying upon the aforesaid judgment found that 7. prescription of 25% increase of rent cannot be said to be upper ceiling in such matters if on consideration of all attendant factors the rent controller is satisfied that the rent of the premises in the area in question deserve considerable increase. Finding of all the three courts are consistent on facts.
On consideration of totality of facts and circumstances and the provisions of law, this Court does not find any infirmity or perversity in the impugned orders warranting interference. Accordingly, the writ petition is dismissed.
(Aparesh Kumar Singh,J) jk