This writ petition has been filed challenging the order dated 8.6.2018 which was passed by the Rent Control and Eviction Officer/City Magistrate, Jhansi on the application of the landlords-respondents under section 29(A)(5) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the 'Act') by which the rent had been fixed as Rs.13,24,800/- per month which would be payable by the Bharat Petroleum Corporation Limited (henceforth called the 'tenant') to the landlords.
The petitioner-tenant, while assailing the order, has made the following submissions :
(i) There was no evidence available with the Authority namely the Rent Control and Eviction Officer/City Magistrate, Jhansi and yet he had fixed the market value of the property of the year 2015, the year the application was made by the landlord as 14,35,20,000/-;
(ii) The further contention of the petitioners was that the circle rate prevailing in the area could not have been taken into account while fixing the market value of the property;
(iii) The valuer's report as was submitted by the landlords had arbitrarily fixed the market value of the property;
(iv) The Authority could not have come up with two rates of rent. One payable between 2008-2015 and another for the period thereafter;
(v) The Rent Control and Eviction Officer could not have fixed rent which was more than the rent that was asked for by the landlords.
In this connection learned counsel for the petitioners has cited a judgment of the Supreme Court reported in (2010) 9 SCC 78 (Trust Jama Masjid Waqf No.31 Vs. Lakshmi Talkies & Ors.) and specifically read out paragraph 17, which is being reproduced here as under:
"17. We are unable to subscribe to the view of the High Court. The circle rate fixed under the Stamp Rules is ordinarily the general rate for a particular area and may provide some indication but such rate cannot be decisive of the prevalent market value of the land concerned. An exemplar showing sale of nearby land may help in determining the market value of the demised land but there is no exemplar here. The valuer's report, however, shows that the demised land is situate on the main road from Holy Gate to Collectorate and Civil Lines near the Roadways Bus-stand and Mathura-Cantt., Railway Station. The High Court has not taken into consideration the valuer's report and the evidence let in by the landlord at all. We are, thus, satisfied that the High Court was not justified in fixing the rent of the said land at the rate of Rs. 2500/- p.m. solely based on the circle rate fixed under the Stamp Rules. The consideration of the matter by the High Court suffers from legal flaw and cannot be sustained."
Learned counsel for the petitioners submitted that even though the circle rate could be taken as a standard for fixing the market value but the circle rate was only an indication as to what the market-value would be and submitted that the circle rate could not be the be all and the end all for the purposes of calculating the market value. He further submitted that some exemplar should have been taken into account before fixing the rent. Learned counsel for the petitioners further submitted that no valuer report etc. was taken into account.
The respondents have chosen not to file any counter affidavit and they have argued the case on merit.
Learned counsel for the respondents-landlords submitted that as per section 29(A)(5) of the Act, on the application of the landlord, the market value had to be ascertained by the Rent Control and Eviction Officer. In doing so, the officer concerned rightly relied upon the circle rate which was prevailing and in this connection, learned counsel for the respondents took recourse to section 26 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as the '2013 Act'). Since, the learned counsel specifically read out section 26 of the 2013 Act, the same is being reproduced here as under :
"26. Determination of market value of land by Collector - (1) The Collector shall adopt the following criteria in assessing and determining the market value of the land, namely:--
(a) the market value, if any, specified in the Indian Stamp Act, 1899 (2 of 1899) for the registration of sale deeds or agreements to sell, as the case may be, in the area, where the land is situated; or
(b) the average sale price for similar type of land situated in the nearest village or nearest vicinity area; or
(c) consented amount of compensation as agreed upon under sub-section (2) of section 2 in case of acquisition of lands for private companies or for public private partnership projects, whichever is higher:
Provided that the dale for determination of market value shall be the date on which the notification has been issued under section 11.
Explanation 1.--The average sale price referred to in clause (b) shall be determined taking into account the sale deeds or the agreements to sell registered for similar type of area in the near village or near vicinity area during immediately preceding three years of the year in which such acquisition of land is proposed to be made.
Explanation 2.--For determining the average sale price referred to in Explanation I, one-half of the total number of sale deeds or the agreements to sell in which the highest sale price has been mentioned shall be taken into account.
Explanation 3.--While determining the market value under this section and the average sale price referred to in Explanation 1 or Explanation 2, any price paid as compensation for land acquired under the provisions of this Act on an earlier occasion in the district shall not be taken into consideration.
Explanation 4.--While determining the market value under this section and the average sale price referred to in Explanation 1 or Explanation 2, any price paid, which in the opinion of the Collector is not indicative of actual prevailing market value may be discounted for the purposes of calculating market value.
(2) The market value calculated as per sub-section (1) shall be multiplied by a factor to be specified in the First Schedule.
(3) Where the market value under sub-section (1) or sub-section (2) cannot be determined for the reason that--
(a) the land is situated in such area where the transactions in land are restricted by or under any other law for the time being in force in that area; or
(b) the registered sale deeds or agreements to sell as mentioned in clause (a) of sub-section (1) for similar land are not available for the immediately preceding three years; or
(c) the market value has not been specified under the Indian Stamp Act, 1899 (2 of 1899) by the appropriate authority, the State Government concerned shall specify the floor price or minimum price per unit area of the said land based on the price calculated in the manner specified in sub-section (1) in respect of similar types of land situated in the immediate adjoining areas:
Provided that in a case where the Requiring Body offers its shares to the owners of the lands (whose lands have been acquired) as a part compensation, for acquisition of land, such shares in no case shall exceed twenty-five per cent. of the value so calculated under sub-section (1) or sub-section (2) or sub-section (3) as the case may be:
Provided further that the Requiring Body shall in no case compel any owner of the land (whose land has been acquired) to take its shares, the value of which is deductible in the value of the land calculated under sub-section (1):
Provided also that the Collector shall, before initiation of any land acquisition proceedings in any area, take all necessary steps to revise and update the market value of the land on the basis of the prevalent market rate in that area:
Provided also that the appropriate Government shall ensure that the market value determined for acquisition of any land or property of an educational institution established and administered by a religious or linguistic minority shall be such as would not restrict or abrogate the right to establish and administer educational institutions of their choice."
(emphasis supplied) Learned counsel for the respondents further submitted that the market value for the registration of the sale deed etc. given out in the Indian Stamp Act could be taken as the market value of the land and in this regard submitted that the best way to get the market value of any property was the circle rate as was fixed by the Collector/District Magistrate biennially. Learned counsel for the landlord read out Rule 4 of the U.P. Stamp (Valuation of Property) Rules, 1997 and, therefore, the same is being reproduced here as under :
"4. Fixation of minimum rate for valuation of land, construction value of non-commercial building and minimum rate of rent and commercial building.--(1) The Collector of the district shall biennially, as far as possible in the month of August, fix the minimum value per acre/per square metre of land, the minimum value per square metre of construction of non-commercial building and the minimum monthly rent per square metre of commercial building, situated in different parts of the district taking into consideration the following facts :
(a) in case of agricultural land :
(i) classification of soil ;
(ii) availability of irrigation facility ;
(iii) proximity to road, market, bus-station, railway station, factories, educational institutions, hospitals and Government offices ; and
(iv) location with reference to its situation in urban area, semi-urban area or countryside.
(v) potentiality as distance from developed area.
(b) in case of non-commercial building-
(i) location of building; and
(ii) kind of construction and value of building.
(c) in case of commercial building-
(i) nature of economic activity in the locality; and
(ii) prevailing rent in the locality, and kind of commercial building.
(2) The Collector of the district may, suo motu or on an application made to him in this behalf, on being satisfied about the incorrectness of the minimum value of land or of the construction of non-commercial building or the minimum rent of a commercial building fixed by him under sub-rule (1), for reasons recorded in writing, revise the same within a period of one year from the dated of fixation of minimum value or rent as the case may be.
Explanation.- (1) The revision in rates of immoveable property does not only mean to increase the rates but to reduce the rates fixed more than the rates prevailing in such locality.
(2) The kind of commercial building means economic activities in it.
(3) The direction issued by Government/Commissioner of Stamps shall have the same effect as if it were issued under these rules.] (3) The Collector of the district shall after fixing the minimum value per acre/per square mete of land, and of the construction of non-commercial building and the minimum rent per square metre of commercial building under sub-rule (1), send a statement in three parts to the Registrar. The first part of such statement shall contain the division of each sub district of the district under his jurisdiction into urban area, semi-urban area and the countryside, the second part shall specify the minimum value of land situated in different parts of the sub-district and the third part shall contain, in the case of the non-commercial building, the minimum value of construction and in the case of commercial building the minimum rent fixed under sub-rule (1).
(4) The Registrar shall supply copies of statement mentioned in sub-rule (3) to the Sub-Registrars under his control and shall also forward a copy of the same to the Inspector General of Registration, Uttar Pradesh.
(5) Every Registering Officer shall cause a copy of the above statement to be affixed on the notice board outside the registration office."
He, however, submitted that when there was no data available, then the best course, to minimize any kind of arbitrariness, was to rely upon the value as was fixed under the 1997 Rules.
Learned counsel further submitted that the valuer's report as was submitted by the respondents was definitely there on the record. The sale deed which was produced by the petitioners was an exemplar which was irrelevant and, therefore, the Tehsildar's report alongwith the valuer's report submitted by them, of course, coupled with the circle rate, had to be considered to arrive at a proper market value.
Having heard learned counsel for the parties and after having gone through the the orders, I am of the view that the Rent Control and Eviction Officer rightly relied upon the value as was supplied by the Tehsildar. The Tehsildar had submitted that in the year 2015, the market value of the property/land in question was Rs.39000/- per square meters and, therefore, since the land was measuring 3680 square meters, he had calculated the market value at Rs.14,35,20,000/- and thereafter had concluded that 10% of the market value would be 14,35,200/-.
I have perused the judgment cited by learned counsel for the petitioners. It definitely lays down that the market value of a property, when had to be calculated, the circle rate alone should not have been the criterion. Other inputs should have been taken into account viz. the sale deeds of the land sold in the vicinity, valuer's report and of course lease deeds executed on or around the time the respondents had applied for enhancement. If there was of course no exemplar on record which could have indicated the market value then the Rent Control and Eviction Officer was right in depending upon the report of the Tehsildar which gave the market rate as Rs.39,000/- per square meter.
Various lease deeds which the petitioners had tried to bring on record by means of a Supplementary Affidavit only gave an indication as to what the lease rent had to be in the area. It definitely did not throw light on what exactly the market value of the property ought to have been. The fixation of lease/rent depends on many factors namely the goodwill of the tenant, relationship between the lessor and the lessee etc. It cannot be used to fix the market value of the property or the neighbouring properties. The Rent Control and Eviction Officer arrived at the market on the basis of the material which was there on the record.
Under such circumstances, I find that the method used by the Rent Control and Eviction Officer for fixing the market value of the property was absolutely correct. However, since the calculation given by the Rent Control and Eviction Officer as per section 29(A)(5) had made the rent applicable with effect from 2008, the year when the earlier tenancy had expired, I feel that it would be a big strain on the exchequer of the petitioners and, therefore, from 2008-2015, I fix the rate of rent at 60% of the rate which is now being fixed.
The submission made by the learned counsel for the petitioners that the rent fixed by the Rent Control and Eviction Officer was over and above the rent which was actually asked for by the landlord, has substance and, therefore, I am fixing the rate of rent at the rate of Rs.11,80,666.67 per month as against Rs.14,35,200/- per month. The rent at the rate of Rs.11,80,666.67 per month shall be payable from the date the landlord had applied for the enhancement.
With these observations, the writ petition is finally disposed of.
Date: 31.10.2018 GS (Siddhartha Varma, J.)