JUDGMENT S.U. Khan, J.
1. In this writ petition, interpretation of Section 29-A (5) of U.P. Act No. 13 of 1972 is involved. Sub-sections (2), (3) and (5) of Section 20-A are quoted below:
29-APROTECTION AGAINST EVICTION TO CERTAIN CLASSES OF TENANTS OF LAND ON WHICH BUILDING EXISTS:
XXX XXX XXX (2) This section applies only to land let out, either before or after the commencement of this section, where the tenant, with the landlord's consent has erected any permanent structure and incurred expenses in execution thereof.
(3) Subject to the provisions hereinafter contained in this section, the provisions of Section 20 shall apply relation to any land referred to in Sub-section (2) as they apply in relation to any building.
xxx xxx xxx (5) The District Magistrate on the application of the landlord or the tenant determine the annual rent payable in respect of such land at the rate of ten per cent per annum of the prevailing market value of the land, and such rent shall be payable, except as provided in Sub-section (6) from the date of expiration of the term for which the land was let or from the commencement of this section which ever is later.
xxx xxx xxx
2. This is tenants' writ petition. Tribhuwan Nath, original landlord, predecessor-in-interest of respondents No. 2 and 3 let out open piece of land to Vishwa Nath Tandon, predecessor-in-interest of petitioners for 10 years through Lease deed executed on 29.3.1971. In the Deed it was also provided that the rent for the first five years will be at the rate of Rs. 1207- per month and for the next 5 years at the rate of Rs. 130/- per month. Tenant was permitted to make constructions over the land in dispute. Lease deed expired in March, 1981. however, tenants continued to occupy the premises in dispute and landlord accepted rent even after expiry of Agreement of lease. It is alleged that amongst the tenants-petitioners partition took place in respect of tenanted property. However, such partition is not binding upon the landlord and all the tenants continued to be joint tenants, jointly liable to the landlord. After the death of original tenant, father of the petitioners the petitioners inherited the tenancy jointly vide Harish Tandon v. A.D.M. .
3. Landlords-respondents 2 and 3 filed application under Section 29-A (5) of U.P. Act No. 13 of 1972 for determination of rent. The application was filed on 8.7.1991 before the Rent Control and Eviction officer/City Magistrate, Fatehgarh district Farrukhabad and was registered as Case No. 42 of 1991.
4. According to the landlord area of the land in dispute is 1003.4 sq. meter. The tenants disputed the correctness of this assertion and stated that the area was only 650 sq, meter. However, Rent Control and Eviction officer in its judgment dated 11.6.1992 found the area to be 1003.4 sq. meter. The said finding being a finding of fact is confirmed.
5. Tenants had stated that after expiry of agreement of lease in March, 1981 rent was enhanced and at the time of filing the application they were paying Rs. 400/- per month as rent. This version was found incorrect by the Rent Control and Eviction officer. The said finding is also a finding of fact hence it is affirmed.
6. In respect of market value of the land, landlords stated that circle rate was Rs. 950/- per sq. meter, hence the market value of the property was Rs. 10,00,000/-in round figure. However, Rent Control and Eviction Officer through impugned order held that market value was Rs. 9.5 lacs. Rent Control and Eviction Officer took the area of the land to be 1000 sq. meter in round figure and multiplied the same by the circle rate of Rs. 950/- per sq. meter. Rent Control and Eviction Officer therefore determined the rent to be Rs. 95,000/- per year and directed payment of the same with effect from 8.7.1991, the date on which application was filed. Rent Control and Eviction Officer rejected the contention of the landlord that enhanced rent shall be payable from 1.4.1981, the date on which the original agreement expired.
7. As far as determining the market value on the basis of circle rate is concerned, the landlord in his own affidavit, copy of which is Annexure 7' to the writ petition, had stated in para 7 that circle rate of Rs. 950/- sq. meter was effective from 25.7.1991 i.e. after filing the application by landlord (8.7.1991).
8. In this case the main thing to be decided is that market value of the property will have to be determined on what date. Under the aforesaid sub-section it is clearly directed that enhanced rent shall be payable from the date of expiry of agreement or lease. It clearly means that the liability to pay enhanced rent accrues on the date on which original agreement expires. Naturally, the extent of liability will also have to be determined as per market value on the said date. There is one more aspect of the matter which strengthens this conclusion. Under Section 21(8) of the Act also provision of enhancement of rent is provided (where Government etc. is the tenant). Under said sub-section second application may be filed after five years. However under Section 29-A (5) only one application is permissible.
9. In my opinion, the Rent Control and Eviction officer therefore, did not have any jurisdiction to determine the market value on the date of filing the application. Landlord in para 7 of his affidavit (Annexure 7 to the writ petition) stated that according to the Circle rate the market value of the land in dispute was Rs. 100/- per sq. meter in between 6.5.1980 to 24.4.1983. In my opinion, therefore the market value will have to be determined on the said basis. Multiplying 1000 by 100, figure of 1 lac is arrived. Dividing the same by 120, 833.33 is obtained which in round figure comes to 850/-. Accordingly impugned judgment and order dated 11.6.1992 is set aside and rent is determined to be Rs. 850/- per month, payable from 1.4.1981. Arrears, if any shall be paid within 6 months.
10. Under U.P. Act No. 13 of 1972 there is a great lacuna that it contains no provision for periodical enhancement of rent. By the passage of time frozen rent becomes more and more inadequate. The rent payable in 1981 will have a very small ratio to the rent which may be payable for a particular property in 2006. I have held' in Khursheeda v. A.D.J. 2004 (2) A.R.C. 64 and H.M. Kitchlu v. A.D.J. 2004 (2) A.R.C. 652 that while granting relief against eviction to the tenant in respect of building covered by Rent Control Act, or while maintaining the said relief already granted by the courts below, writ court is entitled to enhance the rent to a reasonable extent. Even otherwise writ Court is empowered to pass such consequential order which may be necessary in the interest of justice and to adjust the equities (vide S.F.P v. L I.C. ). Rent of Rs. 850/- per month, which the petitioners were liable to pay in 1981, is highly inadequate from today's standard. Accordingly it is directed that with effect from April, 2006 onward tenant-petitioners shall pay rent to the landlord Respondent at the rate of Rs. 5000A per month inclusive of water tax etc. No further amount shall be payable by the tenants. However, it is further directed that in spite of the rent being more than Rs. 2,000/- per month, tenant petitioners will be entitled to the protection of Section 29-A (3) of the Act. By virtue of Section 2(1)(g) Rent Control Act (U.P. Act No. 13 of 1972) does not apply to a building whose monthly rent exceeds Rs. 2000/- per month. However, the Supreme Court in Lachchoram v. Radhey Shyam held that benefit of exemption clause under the Rent Control Act may be waived by the landlord. If landlord can waive it then the Writ Court can also direct that the Act shall not apply while enhancing the rent for more than Rs. 2000/- per month.