JUDGMENT J.C. Gupta, J.
1. By means of this writ petition, the petitioners have prayed for quashing the order dated 7.6.1996 passed by the District Judge, Dehradun, respondent No. 1 allowing Rent Appeal No. 93 of 1995 in part which was preferred by the landlord against the order dated 27.7.1994 made by the Additional District Magistrate under the delegated powers of the District Magistrate.
2. It is not disputed that the petitioners are tenant in the accommodation in question of which respondent No. 2 is the landlord. It is also not disputed that the petitioners were paying rent at the rate of Rs. 1,654 per month. The landlord moved an application under Section 21 (8) of the U. P. Act No. XIII of 1972. (hereinafter referred to as the Act) for enhancement of rent. The reports of valuer from both the sides were filed before the Addl. District Magistrate. The said authority, however, rejected the landlord's application mainly on the ground that since rent had already been determined earlier in the year 1989, the application under Section 21 (8) which was moved on 15.3.1993 was not maintainable. The appellate authority, however, overruled the said view of the District Magistrate holding that the bar of five years relied upon by the tenant was applicable only when rent has earlier been revised under the provisions of Section 21 (8) of the Act and it was not applicable where the parties by mutual agreement have revised the rent. The appellate authority thereafter examined the matter and has determined the market value of the building under the tenancy of the petitioner at Rs. 4.48,452 and the monthly rent at Rs. 3,737.
3. Learned counsel appearing for the petitioner firstly argued that the application of the landlord for enhancement of rent moved under Section 21 (8) of the Act was not legally maintainable because of the bar contained in second proviso to Section 21 (8) which states that similar application for determination of rent is not maintainable before the expiration of a period of five years from the date of the last order of enhancement. He argued that the District Magistrate in the present case with the mutual agreement of the landlord had fixed the rent at the rate of Rs. 1,654 per month by the order made in the year 1989 and thus the present application moved on 15.3.1993 for enhancement of rent was not maintainable. This submission of the learned standing counsel is wholly misconceived. The second proviso to Section 21 18) of the Act reads as under :
"Provided further that a similar application for further enhancement may be made after the expiration of a period of live years from the date of the last order of enhancement."
4. A perusal of the above proviso would show that a similar application for further enhancement of rent can be made only after the expiration of a period of five year from the date of the last order of enhancement. The expression "from the date of the last order of enhancement" obviously refers to an order of enhancement made under Section 21 (8) earlier and not to an order fixing the rate of rent without taking recourse to the provisions of Section 21 (8) of the Act.
5. In the case of M/s. Tyre Corporation of India Ltd. v. Krishna Lal and others, 1994 (1) ARC 353, a single Judge of this Court took the view that even though there may be an agreement between the parties limiting their rights regarding the rate of rent, still the landlord has a right to move an application under Section 21 (8) of the Act for the enhancement of rent.
6. In the present case, it was not the defence of the petitioners before the Courts below that any other application excepting the present application had been moved by the landlord under Section 21 (8) of the Act or that the rate of rent had been determined earlier also under Section 21 (8) of the Act. The appellate authority has assigned valid and cogent reasons for rejecting this contention of the petitioners and this Court does not find any sufficient ground to differ from the view taken by the appellate authority.
7. It has next been argued by the petitioners' counsel that the lower appellate authority while determining the rate of rent has not taken into consideration the provisions of Section 9 of the Act. According to his submission while deciding the question of determination of rent under Section 21 (8) of the Act, the authority concerned has to keep in mind and to take into consideration the provisions of Section 9 also which relate to the determination of standard rent. This argument of the learned counsel has to be rejected as untenable. Section 9 and Section 21 (8) of the Act are altogether separate and Independent provisions. Under Section 9 of the Act, only the standard rent is determined by the Magistrate in respect of a building to which the old Act was applicable and in respect of which there was neither any reasonable annual rent nor any agreed rent. By U. P. Act No. XXVI11 of 1976, the State Legislature inserted sub-section (8) in Section 21 of the Act which makes an exception to the applicability of clause (a) of Section 21 (1) to a building let out to State Government or to a Local Authority or to a Public Sector, or to a recognized educational institution. At the same time under the first proviso to sub-section (8), the landlord has been given a right to get the rent enhanced to a sum equivalent to one twelfth of 10% of the market value of the building under tenancy. This proviso has thus taken care of the interest of the landlord by making provision for the enhancement of rent on the basis of market value and not on the basis of letting value or annual rental value or on the basis of municipal assessment. A plain reading of this proviso leaves no room of doubt that the monthly rent of the building is to be determined at its prevailing market value and not on the criteria prescribed for determining standard rent under Section 9 of the Act or on any other basis.
8. It is not disputed before this Court that for the purposes of determining the rate of rent under Section 21 (8). the building under tenancy is not confined to super structure only but it also includes the land over which the building has been erected and/or the land which is part and parcel of the tenanted accommodation.
9. Learned counsel for the respondent Shri Rajesh Tandon contended that though the report of the valuer which was submitted from landlord side was more authoritative, yet in order to shorten the litigation, the landlord has no objection if the monthly rent is determined on the basts of the valuation made by the valuer of the petitioner himself. As per the report of the valuer which was submitted from petitioner's side the market value of the building in question was Rs. 2.67.000. Learned counsel for the respondent also invited the attention of the Court to paragraph 18.11 to the affidavit of Dr. Om Prakash Srivastava which was filed on behalf of the petitioners wherein it was admitted by the petitioners that the total value of the tenanted building along with the land is Rs. 4.13,000 and accordingly monthly rent would come to Rs. 3,441.
The petitioners therefore, cannot be permitted to wriggle out of this admission and accordingly, the monthly rent of the tenanted building can safely be determined at the round figure of Rs. 3,440 which shall be payable to the landlord from the commencement of the month of tenancy following the date of application which was moved by the landlord under Section 21 (8) of the Act.
10. With the above modification, the impugned order of the appellate authority is upheld and the writ petition is decided accordingly with no order as to costs.