# Chandan Singh v. Ist A.D.J., Mathura. and others

- **Citation:** High Court of Judicature at Allahabad #39472
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1999-10-26
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandan-singh-v-ist-a-d-j-mathura-and-others-39472
- **Pages:** 5

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2000
8
District Magistrate may be cautious enough to
deal with the persons who are sought to be
externed under the Act in accordance with law
leaving no scope for unnecessary litigation.

20. In the conspectus of the above facts,
the impugned notice dated 26th October,1999
is
without
jurisdiction
and
cannot
be
sustained. It would be proper to nip the evil in
the bud. The writ petition, therefore, succeeds
and is allowed. The impugned show cause
notice dated 26th October, 1999 issued by the
District Magistrate, Jhansi- respondent no.2,
Annxure 6 to the writ petition is hereby
quashed.

21. The Registrar of this Court is directed
to ensure that a copy of this judgement is sent
to all the District Magistrates in the State with
promptitude. A copy of the judgement should
also
be
sent
to
the
Chief
Secretary,
Government of Uttar Pradesh, Schivalaya,
Lucknow, who in his turn, shall issue
necessary instructions to all concerned so that
the observation made above are faithfully
followed.

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By the Court

1. This petition under Article 226 of the
Constitution of India, has been filed by the
petitioner, who is tenant of the premises in
dispute, i.e. premises No. 2166/2, Dampier
Nagar, Mathura, which was allotted to him on
27.4.1978. The petitioner has prayed for
quashing the order dated 16.8.1980 passed by
the respondent no. 1, which is Annexure-5 to
the writ petition and order dated 20.11.1981
so far as it relates to the dismissal of the
appeal of the petitioner passed by the
respondent no. 1.

2. The brief facts, as stated by the
petitioner in the petition are that the house in
question was assessed at Rs.30/- in the year
1970. It is stated that the presumptive rent at
the time of allotment of the aforesaid building
was fixed at Rs.175/- by the Rent Control &
Eviction Officer while making allotment in
favour of the petitioner. The allegations of the
petitioner are that since the presumptive rent
was exhorbitant, therefore, the petitioner filed
1ALL] Chandan Singh V. Ist A.D.J., Mathura. and others
9
 an application before the Rent Control &
Eviction Officer, Mathura under Sections 8/9
of U.P. Act No. XIII of 1972, hereinafter
referred to as the Act only. The application of
the petitioner was contested by the land-lordrespondent no. 3. The petitioner and the
respondents in support of their respective
claim filed written statements of the witnesses
and of their own. The land-lord filed an
affidavit of one Sri H. Chandra, Sales Tax
Officer, who was previous tenant of the
accommodation in question. An application
was filed by the petitioner with a request to
cross examine Sri Harish Chandra, the earlier
tenant. But this application of the petitioner
was rejected. The Rent Control & Eviction
Officer has fixed Rs.175/- as monthly rent by
order
dated
16.8.1980.
The
petitioner,
aggrieved by this order filed an appeal. The
land-lord also filed an appeal and stated that
the rent at least Rs.200/- be fixed. The District
Judge
dismissed
both
the
appeals
on
20.1.1981. The petitioner has only challenged
this order.

3. Heard learned counsel for the petitioner
and learned Standing Counsel.

4. Sri R.C. Srivastava, learned counsel
appearing on behalf of the petitioner has
vehemently urged that the two authorities
below
having
not
considered
while
determining the rent of the premises in dispute
the principle laid down in sub-section (2) of
Section 9 of the Act have committed manifest
error of law. He has further submitted that the
authorities
below
have
not
taken
into
consideration the provisions of Section 9(2-A)
of the Act in determining the rent. His further
submission is that the Rent Control &
Eviction Officer has not considered the
evidence of the petitioner which conclusively
proved that the standard rent of the premises
in dispute could not be more than Rs.40/- or
Rs.45/- per month. His further argument is
that the Rent Control and Eviction Officer has
not considered the provisions of the Act.

5. I have heard learned counsel for the
parties and have perused the record. From the
judgement of the Rent Control & Eviction
Officer it is apparent that he considered the
rent paid by Sri Harish Chandra, Sales Tax
Officer, who was earlier tenant and was
paying Rs.175/- per month as rent. This
payment was made by the Sales Tax Officer
on the basis of the agreement between him
and land-lord, and fixed Rs.175/- as monthly
rent. The appellate court affirmed the same
finding. The appellate court considered the
explanation given under Section 16(9) of the
Act and held that in view of this provision the
District Magistrate is required to pass order
that the tenant should pay the presumptive
rent. The explanation further says that the
presumptive rent will not be less than the rent
which was payable by the last tenant. In this
case the last tenant was Sri Harish Chandra,
Sales Tax Officer, who was paying Rs. 175/-
per month as rent and this rent was settled by
agreement, paper no. 17/2. The agreement
remained in force for one year and thereafter
the rent was increased to Rs. 200/- per month.
The appellate court found that the disputed
accommodation is an old building and the rent
fixed by the Rent Control & Eviction Officer
is perfectly correct, therefore, he dismissed
both the appeals.

6. Before discussing the argument of the
learned counsel for the parties it is necessary
to see the provisions which are relevant for
the present case. It is apparent that application
was filed by the petitioner under Sections 8
and 9 of the Act. The relevant provisions of
Sections 8 and 9 of the Act are quoted below:

"8. Disputes regarding amount of standard
rent. Etc.

(1)Where a dispute arises with regard to
the amount of the standard rent or the amount
of enhancement in rent permissible under
section 5 or Section 6 or to the date with
effect from which such enhancement shall
take effect, or the amount of taxes payable by
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
10
tenant under Section 7, or to the amount of
proportionate rent payable by the tenant after
a part of the building or any land appurtement
there to is released under Section 16 or
Section 21, or to the amount of rent payable
by the original tenant for the new building
allotted to him under sub-section (2) of
Section24, the District Magistrate shall, on an
application being made in that behalf, by
order (determine such dispute),

(2) Where the assessment of a building
occupied by a tenant is lower than the agreed
rent payable there for, the District Magistrate,
on an application of the tenant or of his own
motion, may, after giving to the land lord an
opportunity of being heard, direct the local
authority
concerned
to
enhance
the
assessment in accordance with the agreed rent
with effect from the date from which the
agreed rent, has been payable or the date of
commencement of this Act, whichever is
later,
and
there
upon,
notwithstanding
anything contained in the law relating to that
local authority, the assessment shall be
corrected accordingly,

(3) Every order under sub-section (1) or
sub-section (2) shall, subject to the result of
any appeal preferred under section 10, be
final."

"9. Determination of standard rent- (1) in
the case of a building to which the old Act
was applicable and which is let out at the time
of the commencement of this Act in respect of
which there is neither any reasonable annual
rent nor any agreed rent or in any other case
where there is neither any agreed rent nor any
assessment in force, the District Magistrate
shall, on an application being made in that
behalf, determine the standard rent.

(2) In determining the standard rent the
District Magistrate may consider -
(a) the respective market-value of the
buildings and of its site immediately before
the date of commencement of this Act or the
date of letting, whichever is later (hereinafter
in this section referred to as the said date);
(b) the cost of construction, maintenance
and repairs of the building;
(c)
the
prevailing
rents
for similar
buildings in the locality immediately before
the said date;
(d) the amenities provided in the building
;
(e) the latest assessment, if any, of the
building;
(f) any other relevant fact which appears in
the circumstances of the case to be material.
(2-A) Subject to the provisions of subsection (2), the District Magistrate shall
ordinarily consider ten percentum per annum
on the market value of the building (including
its site) on the said date to be the annual
standard rent thereof, and the monthly
standard rent thereof, and the monthly
standard rent shall be equal to one-twelfth of
the annual standard rent so calculated).

(3) Every order made under sub-section
(1) shall, subject to the result of any appeal
preferred under Section 10, be final."

Section 16(9) of the Act is also relevant which
is quoted below:

"16(9)- The District Magistrate shall, while
making an order under clause (a) of subsection (1), also require the allottee to pay to
the landlord an advance, equivalent to-
Where the building is situated in a hill
municipality,
one-half
of
the
yearly
presumptive rent, and
In any other case, one month's presumptive
rent, and on his failure to make or offer the
payment within a week thereof, rescind the
allotment order.
Explanation: In this sub-section the
expression "presumptive rent" means an
amount of rent which the District Magistrate
prima facie considers reasonable having
regard to the provisions of sub-section (2) and
(2-A) of Section 9, provided that such amount
1ALL] Chandan Singh V. Ist A.D.J., Mathura. and others
11
shall not be less than the amount o rent which
was payable by the last tenant, if any."

Section 3(k) of the Act is also relevant
which is quoted below:
"3(k)-"standard
rent"
subject
to
the
provisions of Section 6, 8 and 10, means-
(i) in the case of building governed by the
old Act and let out at the time of
commencement of this Act-
(a) where there is both an agreed rent
payable therefor at such commencement as
well as a reasonable annual rent (which in this
Act has the same meaning as in Section 2(f)
of the old Act, reproduced in the Schedule)
the agreed rent of the reasonable annual rent
plus 25 per cent thereon, whichever is greater
;
(b) where there is no agreed rent, but there
is a reasonable annual rent, the reasonable
rent plus 25 per cent thereon.
(c) Where there is neither agreed rent nor
reasonable annual rent, the rent as determined
under Section 9.
(ii) in any other case, the assessed letting
value, for the time being in force, and in the
absence of assessment, the rent determined
under Section 9."

8. The question which has arisen in the
case is as to what should be the basis for
fixing rent under Section 8 and 9 of the Act.
As is admitted to the petitioner that at the time
of allotment the District Magistrate has fixed
Rs.175/- as presumptive rent which was not
agreed by the petitioner and he has filed
application under sections 8 and 9 of the Act
to fix the rent and has prayed for fixing
Rs.40/- per month as rent. Therefore, it is
necessary to see the relevant sections of the
Act. A bare perusal of Section 16(9) of the
Act would show that the District Magistrate
shall, while making an order under clause (a)
of sub-section (1), also require the allottee to
pay to the landlord an advance, equivalent to
where the building is situated in a hill
municipality,
one-half
of
the
yearly
presumptive rent and in any other case, one
month's presumptive rent, and on his failure to
make or offer the payment within a week
thereof, rescind the allotment order. The
explanation given is in this sub-section the
expression "presumptive rent" means an
amount of rent which the District Magistrate
prima facie considers reasonable having
regard to the provisions of sub-section (2) and
(2-A) of Section 9, provided that such amount
shall not be less than the amount of rent which
was payable by the last tenant, if any.
According to Section 9 of the Act when there
is neither any reasonable annual rent nor any
agreed rent or in any other case where there is
neither any agreed rent nor any assessment in
force, the District Magistrate shall, on an
application being made in that behalf,
determine the standard rent. Section 16(9) and
Section 9 if read together will make it clear
that the presumptive rent can be fixed which
should not be less than the rent which was
payable by the last tenant. But while
determining the standard rent the court has to
see various aspects as mentioned in subsection (2) of Section 9 of the Act. Section 8
of the Act under which application was filed
deals with the dispute with regard to the
amount of standard rent or to the amount of
enhancement in rent. So section 8 of the Act
also mentions the standard rent.

9. Sri R.C. Srivastava, senior counsel
appearing on behalf of the petitioner has
submitted that when application under section
9(2) of the Act was filed it was the duty of the
Rent Control & Eviction Officer to have
considered the factors and circumstances in
accordance with Section 9(2) of the Act and
as it was not done the order passed by the
Rent Control and Eviction Officer is illegal.
In this respect he has submitted that the rent
paid by the earlier tenant cannot be the basis
for fixing standard rent. His submission is that
the case reported in 1980, A.R.C. page 192
has not been correctly considered by the
authority below. Learned counsel for the
petitioner has placed reliance in a case
reported in 1984(1) A.R.C., page 552-Smt.
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
12
Shakila Khatoon Versus I Addl. District Judge
wherein the court held that the rent should be
determined in accordance with the provisions
of Section 9(2) of the Act. He has further
placed reliance in a case reported in 1984 (2)
A.R.C., page 332- Smt. Prem Kumari Gupta
Versus District Judge Saharanpur and others.
Sri R.C. Srivastava, learned senior counsel
appearing on behalf of the petitioner has
further placed reliance in a case reported in
1982, A.R.C. page 243- Alkesh Mittal Versus
Gendan Lal Mittal.

10. Sri Manish Tiwari, learned counsel
appearing on behalf of the respondents has
submitted that as presumptive rent was fixed
in accordance with the provisions of Section
16(9) of the Act the authorities below were
justified for fixing standard rent on the basis
of the rent paid by the last tenant. Therefore,
no errors were committed by the Rent Control
authorities or by the appellate court.

11. After hearing learned counsel for the
parties I am of the view that there is much
force in the argument of Sri R.C. Srivastava.
Admittedly, there was no rent agreed between
the landlord and the tenant. The rent was fixed
by the District Magistrate under section 16(9)
of the Act and that was presumptive rent.
When application under section 9(2) of the
Act was filed a prayer was made for fixing
Rs.40/- per month as rent and court was
convinced that Rs.40/- cannot be fixed then it
should have considered the factors and
circumstances mentioned under Section 9(2)
of the Act. As it has not been considered and
the rent has been fixed on the basis of the
payment made by the last tenant the judgment
is illegal. Therefore, the orders passed by both
the authorities are hereby quashed and the
matter is being sent back to the Rent Control
& Eviction Officer to redetermine the
standard rent as provided under section 9(2)
of the Act.
12. Accordingly, the writ petition
succeeds and is allowed. The judgments and
orders passed by the I Additional District
Judge, Mathura, dated 20.11.1981 and the
Rent Control & Eviction Officer, Mathura,
dated 16.8.1980 are hereby quashed and the
matter is being sent back to the Rent Control
& Eviction Officer, Mathura to decide the
application filed by the petitioner afresh
keeping in view the provisions of Section 9(2)
of the Act. There will be no orders as to cost.

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