1. This is a simple case arising out of proceedings for determination of rent under Section 21(8) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the "Act, 1972") but the arguments advanced by learned counsel for petitioner in defence made this Court to look into certain other aspects of the matter turning the issue slightly complicated.
2. In short, the facts are that, petitioner, U.P. Bundelkhand Vikas Nigam (hereinafter referred to as the "Nigam") is a Company registered under Indian Companies Act, 1956 (hereinafter referred to as the "Act, 1956"). The shares are held by State Government and, therefore it answers the description of a "Government company" under Section 617 of Act, 1956. It was incorporated in 1970.
3. The disputed premises, namely, House No. 86/2, Civil Lines, Jhansi is an accommodation under tenancy of Nigam. The disputed building was owned by Sri Ram Chandra Dhawan and after his death the ownership succeeded by respondents no. 1 to 4 (hereinafter referred to as the "landlords").
4. The Nigam paid rent at the rate of Rs. 1000/- per month. The landlords filed an application on 12.08.1992 for determination of rent under Section 21 sub-section (8) of Act, 1972. The Nigam objected the application on the ground that it (Nigam) has already been abolished/closed and, therefore, such enhancement is neither permissible nor justified.
5. The Rent Control and Eviction Officer (hereinafter referred to as the "RCEO") rejected landlords' application on the ground that Nigam having been abolished, the application stands abated. The landlords filed appeal whereupon the Appellate Court took a strange view that enhanced rent is being claimed for more than Rs. 2000/- and, therefore, in view of Section 2(1)(g), inserted by U.P. Act No. 5 of 1995 w.e.f. 26.09.1994, the Rent Control Act is exempted and, therefore, application is not maintainable. Aggrieved thereto the landlords came to this Court in Writ Petition No. 35646 of 1996 which was allowed holding that amendment is subsequent and would not abate the pending proceedings, therefore, the landlords' application has to be decided on merits and consequently remanded the matter to Appellate Authority to decide the appeal afresh on merits.
6. The matter thereafter was decided by Appellate Court vide judgment dated 24.04.2004 and it held that Nigam is liable to pay rent at the rate of Rs. 5,275/- per month from the date of institution of application till the date of vacation of premises in question by Nigam. It consequently set aside RCEO's order dated 18.03.1996. It is this judgment dated 24.04.2004 which has been assailed in this writ petition.
7. Sri C.K. Parekh, learned counsel for the petitioner contended that the functioning of Nigam has come to an end w.e.f. 11.11.1992 and since then it is virtually dead. It has no financial capacity to make such a huge payment of rent and, therefore, the appellate order is liable to be set aside.
8. When enquired, whether Nigam is functioning in any manner in presenti, and, if not, then how and in what manner, the Nigam has persuaded this matter from 2004 and who and how has met legal expenses etc.; learned counsel for petitioner sought time to seek instructions and file appropriate reply thereto. He, however, admitted that the Commissioner, Jhansi is presently holding the office of Managing Director of Nigam. This Court permitted State Government to place on record details, as to how and in what manner, Nigam is presently looking after its affairs and meeting expanses, when it has taken a stand before this Court as well as RCEO that Nigam has already closed and has no financial capacity to pay enhanced rent.
9. Before coming to other parts of affidavits filed in support of the stand taken by Nigam, I would like to refer the stand taken in counter affidavit filed on behalf of respondent-landlords.
10. It is pleaded in para 17 of the writ petition that Nigam has inclined to handover possession of building to landlords but they are avoiding possession and, on the other hand, are insisting upon Nigam to continue to pay enhanced rent. This stand is refuted by respondents' stating that application for enhancement of rent filed on 12.08.1992 was contested by petitioner-Nigam not by taking the stand that they want to vacate premises but on the one hand they made all out efforts not to vacate it, and on the other hand went on to contest application filed under Section 21(8) on wholly misleading and illegal reasons. It is said that application was filed on 12.08.1992 when admittedly Nigam was fully functional. Subsequently a Government Order was issued on 11/17.11.1992 for winding up of Nigam. The copy of Government order is on record as Annexure-1 to the second supplementary affidavit dated 20.02.2012 filed by petitioner. The Government order shows that liability of Nigam has gone to the extent of Rs. 1,07,60,076/- and, therefore, Government decided to wind it up forthwith. In furtherance thereof, the Government directed that; (a) all the functions of Nigam shall be stopped forthwith; (b) the employees shall be retrenched in accordance with rules at the earliest; (c) the dues of employees and others be paid in accordance with law; and, (d) employees of Nigam, in so far as permissible, may be absorbed in accordance with U.P. Absorption of Retrenched Employees of the State Government or Public Corporation in Government Service Rules, 1991 (hereinafter referred to as the "1991 Rules").
11. At that time, the Commissioner, Jhansi was holding the office of Chairman of Nigam. Despite order of stopping activities, the Nigam however, continued to occupy accommodation in question and did not vacate it. On the contrary, it contested application under Section 21(8) at various levels.
12. Besides, the landlord filed an application for release of accommodation under Section 16 of Act, 1972 on 11.03.1966. The landlords' application was contested by Nigam. Another application was filed by U.P. Jal Nigam, Jhansi Branch, for allotment of accommodation under Section 16(1) of Act, 1972. The RCEO vide order dated 31.01.1997 rejected landlords' application for release, and, after declaring vacancy, allotted accommodation vide order dated 04.05.1999 to U.P. Jal Nigam. The landlords filed revision which was allowed on 26.08.2002 and allotment order dated 04.05.1999, passed in favour of U.P. Jal Nigam and the order dated 31.01.1997, rejecting landlords' application for release were set aside. The building was released in favour of landlords. The Nigam challenged revisional order as well as allotment order before this Court in Writ Petition 50272 of 2002. This Court stayed these orders by interim order dated 25.11.2002. The aforesaid writ petition, however, was dismissed on 07.05.2003 making following observations:
"In my opinion in such a case allotment order or release order cannot be enforced unless the house is actually vacated by the tenant and with regard thereto if there is any dispute a finding of factual vacation is recorded by Rent Control and Eviction Officer. However, the tenant-petitioner cannot challenge the release order passed in favour of landlord by the revisional court. He cannot be said to be aggrieved by the said order. The said order will be executed only when the petitioner tenant actually vacated the house. He cannot, therefore, have any grievance against the said order.
Accordingly the writ petition is dismissed. However, it is made clear that the release order passed by revisional court dated 26.08.2002 in Rent Control Revision No. 26 of 1997 on the file Additional District, Jhansi shall not be executed or given effect to unless the petitioner actually vacated the building of a dispute in between landlord-respondent no. 3 and tenant petitioner arise with regard to the actual vacation of the house. The matter must be decided by Rent Control and Eviction Officer after giving opportunity of hearing to both the parties and if Rent Control and Eviction Officer hold that the tenant petitioner has actually vacated the house in dispute only then Rent Control and Eviction Officer must enforce the release order.
With these observations writ petition is dismissed."
13. It is thus evident that Nigam neither intended nor atleast till 2003, did make any attempt to vacate the premises in question and and even thereafter, there is nothing on record to show that any such attempt was made genuinely by it till January 2012. It is only on 03.01.2012 that it is said to have sent a letter to landlords expressing desire to handover possession to them and pursuant thereto possession has been handed over to landlords only on 11.04.2012.
14. Disputing the contention of Nigam that it has no financial capacity, it is pleaded by landlords that funds are being made available by State Government through Rural Development Department as is borne out from the information given by Managing Director/Commissioner, Jhansi through his letter dated 10.01.2012, on a query made by landlords under Right to Information Act. Copy of the said letter has been placed on record as Annexure-1 to the counter affidavit dated 10.05.2012.
15. To clarify about the source of finance etc., initially an affidavit was filed by Sri Anand Mishra, Principal Secretary, Finance Department, pursuant to this Court's order dated 09.08.2012, stating that for financial year 2008-09 a token allocation of Rs. 5000/- towards honorarium was made for payment to Chairman of the Nigam, after obtaining legislative sanction in the first supplementary demands of said financial year with stipulation that necessary expenditure would be borne by savings in Grant No. 13, i.e., Commissioner, Gram Vikas Vibhag. He expressed his ignorance of having any information about the salary, perks, facilities etc. extended to any official of Nigam in the last 10 years and said that budgetary allocation to various departments of Government is made under specific grant numbers and head of account allotted to each of departments. In the present case, it is Grant No. 13. The head of account is 2515 "Anya Gram Vikas Karyakram Ayojnettar Nideshan Tatha Prashashan Vikas Ayukt (Mukhyalaya)". Under this head, budget is allocated by general description of institution, which in the present case is "Krishi Tatha Anya Sambaddh Vibhag (Gram Vikas)-Anya Gram Vikas Karyakram". The controlling officer of said budgetary allocation is "Commissioner, Rural Development, U.P." After budgetary allocation by legislature, it is the Controller, i.e., in the present case, Commissioner, Rural Development, who utilises the amount of budget by distributing it to different units of expenditures in the down line. The Principal Secretary, Finance thus has said that after budgetary allocation he has no role to play and entire financial distribution is in the hands of Controller who in the present case is "Commissioner, Rural Development, U.P.".
16. Having seen the aforesaid affidavit of Secretary another order was passed by this Court on 27.08.2012 requiring Commissioner, Rural Development, and, Commissioner, Jhansi to file their affidavits to show allocation and utilisation of budget, if any, in the last 10 years in respect to petitioner-Nigam.
17. Two affidavits accordingly were filed. One is sworn by Sri Anil Garg, Commissioner, Rural Development, Lucknow and another by Sri Satyajeet Thakur, Commissioner, Jhansi.
18. The affidavit of Commissioner, Rural Development shows that Nigam was incorporated in 1970 under Companies Act and it is a "Government Company" under Section 617. The Nigam closed its operations in 1992 but a decision was taken to revive its operations on 16.04.2008. U.P. Land Development and Water Resources Department vide office memorandum dated 22.04.2008 nominated a Chairman (of the level of State Minister),two non-Government Members/Directors and One Vice-Chairman. The Nigam was placed under Rural Development Department. Thereafter in the meeting held on 09.07.2008, under Chairmanship of Principal Secretary, Finance, the following decisions were taken:
^^1- cqUnsy[k.M fodkl fuxe dks mRrj izns'k lfpoky; dk;Z cWVokjk fu;ekoyh esa xzkE; fodkl foHkkx ds v/khu j[ks tkus ds laca/k esa lfpoky; iz'kklu foHkkx ls vkns'k fuxZr djk;s tk;saA 2- cqUnsy[k.M fodkl fuxe es v/;{k @ mik/;{k ukfer fd;s tkus ds vkns'kksa ds dze esa xzkE; fodkl foHkkx }kjk ogu fd;s tkus okys ekuns;] HkRrs ,oa vU; lqfo/kk,a fn;s tkus laca/kh vkSipkfjd vkns'k foRr foHkkx dh lgefr ls tkjh fd;s tk;saA 3- xzkE; fodkl foHkkx }kjk ogu fd;s tkus okys cqUnsy [k.M fodkl fuxe ds v/;{k @ mik/;{k ds laca/k esa gksus okys O;; dks vk;qDr xzkE; fodkl ¼eq[;ky;½ ds vf/k"Bku laca/kh ctV izkfo/kku ls ogu fd;k tk;sxk vkSj rn~uqlkj foRr foHkkx dks izLrko izLrqr fd;k tk;sxkA "1. Orders be got issued from Department of Secretariat Administration for bringing the Bundelkhand Development Corporation under the Department of Rural Development in Uttar Pradesh Secretariat Distribution of Business Rules.
2. In continuation of the orders nominating Chairman/ Vice-Chairman to the Bundelkhand Development Corporation, formal orders be issued with the concurrence of the Department of Finance for expenses on honorarium, allowances and other facilities to be borne by the Department of Rural Development.
3. Expenses to be incurred by the Department of Rural Development on the Chairman/Vice-Chairman of the Bundelkhand Development Corporation shall be borne from the budgetary provision related to the establishment of the Commissioner, Rural Development (Head Office) and accordingly a proposal shall be presented to the Department of Finance."
(English translation by the Court) (emphasis added)
19. It was also decided to prepare a rehabilitation package for Nigam and submit the same to Council of Ministers for their approval so that it may self sustain. Minutes of said meeting is on record as Annexure-1 to the affidavit filed by Commissioner, Rural Development. It thus clarified that before the aforesaid decision of 09.07.2008, the Nigam did not function under the control of Rural Development Department. As communicated by Government Order dated 04.02.2009, for the financial year 2008-09, a rehabilitation budgetary allocation of Rs. 20,60,000/- was made. Similarly for the year 2009-10, 2010-11, 2011-12 and 2012-13 the budgetary allocation was made as follows:
2009-10 - 20.03 lacs 2010-11 - 22.68 lacs 2011-12 - 23.13 lacs 2012-13 - 8.11 lacs (for four months only)
20. Besides above the Commissioner, Rural Development says that he only distributes and transfers budgetary allocation and thereafter entire responsibility is with the Chairman of Nigam to utilise the same. The Commissioner, Rural Development is only concerned with utilisation certificate regarding allocated funds which it has received from Chairman of Nigam/M.D. and Commissioner, Jhansi from time to time.
21. Second affidavit is by "Commissioner, Jhansi" who is presently holding the office of Managing Director of the Nigam. On 22.04.2008, one Sri Ramesh Kumar Sharma son of late Pt. Ram Narayan Sharma, resident of 71, Civil Lines, Jhansi was appointed as Chairman of Nigam and conferred with the status of State Minister with entitlement of all perks, salaries etc. Besides, one Sri Bharrow Prasad Mishra son of Sri Rajabhai Mishra, resident of Gandhiganj, Allahabad Road, Karvi, Chitrakoot was appointed as a non-Government Member/Director and Vice-Chairman of Nigam. The third order issued on 22.04.2008 appointed Sri Tilak Chnadra Ahirwar son of late Sri Jagannath Prasad, resident of, 114 Naya Railganj, Puliya No. 9, Jhansi, as non-Government Member/Director and Vice-Chairman of Nigam with further entitlement of necessary perks etc. Thereafter one more Government order was issued on 05.05.2008 making Commissioner, Jhansi as Ex-officio Managing Director of Nigam. The perks, facilities etc. admissible to Chairman/Vice-Chairman and Advisors of Nigam are provided in Government Order dated 18.07.2007 and relevant provisions thereof are as under:
^^¼1½ [email protected];ea=h Lrj izkIr egkuqHkkoksa dks :0 40]000 izfrekg rFkk miea=h Lrj izkIr egkuqHkkoksa dks :0 35]000 izfrekg ekuns; ns; gksxkA ¼2½ inh; drZO;ksa ds fuoZgu esa Lrj izkIr egkuqHkkoksa dks M~kbZoj lfgr ,d LV~kQ dkj ,oa isV~ksy dh lqfo/kk jkT; lEifRr foHkkx }kjk miyC/k djk;h tk;sxhA blds vfrfjDr Lrj izkIr egkuqHkkoksa dks dk;kZy; o vkokl ij ,d&,d VsyhQksu ¼[email protected]; ea=h rFkk miea=h dks vuqeU; dkYl dh lhek rd½] ,d futh lfpo ,d oS;fDrd lgk;d ,oa nks prqFkZ Js.kh deZpkfj;ksa dh lqfo/kk miyC/k djk;h tk;sxhA ¼3½ Lrj izkIr egkuqHkkoksa dks 'kkldh; vkokl jkT; lEifRr foHkkx }kjk miyC/k djk;k tk;sxkA ijUrq ;fn ,sls egkuqHkko vius Lo;a ds edku esa jgrs gSa rks mUgsa [email protected];ea=h ds Lrj dh fLFkfr esa :0 10]000 izfrekg rFkk miea=h Lrj dh fLFkfr esa 8]000 izfrekg vkokl HkRrk vuqeU; gksxkA ¼4½ inh; drZO;ksa ds fuoZgu esa jsy {kjk ;k=k djus ij ea=h Lrj izkIr egkuqHkkoksa dks mPpre Js.kh esa ,d dwis rFkk ok;q;ku }kjk ;k=k dh fLFkfr esa ,d lhV vuqeU; gksxhA jkT; [email protected]=h Lrj izkIr egkuqHkkoksa dks jsy ;k=k djus ij miyC/k mPpre Js.kh esa ,d oFkZ rFkk ok;q;ku }kjk ;k=k djus dh fLFkfr esa ,d lhV vuqeU; gksxh ijUrq izfrcU/k ;g gksxk fd ok;q;ku }kjk ;k=k fd;s tkus ds laca/k esa miea=h ds Lrj izkIr egkuqHkkoksa dks lEcfU/kr foHkkxh; ea=h dh iwoZ vuqefr ysuk vko';d gksxkA ¼5½ izR;sd [email protected];[email protected]=h Lrj izkIr egkuqHkko vkSj mlds ifjokj ds lnL; jkT; ljdkj }kjk vLirkyksa esa fu%'kqYd vkokl vkSj mu fl)kUrksa ds vuqlkj tks ea=h @ jkT; [email protected] miea=h ds fy, fofgr fd;s x;s gksa] f;fdRlk ifjp;kZ vkSj mipkj ds gdnkj gksaxsA ifjokj rkRi;Z lacaf/kr egkuqHkko dh iRuh @ ifr iq=] iq=h firk] ekrk] HkkbZ ;k cgu ls gS tks Lrj izkIr egkuqHkko ds lkFk jgrs gksa vkSj mu ij iw.kZ :i ls vkfJr gksaA ¼6½ ekuns;] ilZuy LVkQ] VsyhQksu] ;k=k HkRrk] tyiku] fpfdRlk izfriwfrZ bR;kfn dk C;;Hkkj ml foHkkx ;k fuxe ;k ifj"kn ;k vk;ksx ;k laLFkk ij gksxk ftlesa mUgsa v/;{[email protected]/;{[email protected] ;k vU; fdlh in ij fu;qDr fd;k x;k gSA ¼7½ inh; drZO;ksa ds ikyu esa dh x;h ;k=kvksa ds nkSjku fdlh fdjk;s ;k fo|qr izHkkj dk Hkqxrku fy;s fcuk lfdZV gkml ;k vU; ljdkjh fujh{k.k Hkou esa Bgjus dh lqfo/kk gksxhA LFkkuh; ln~Hkko muds vius foHkkx ;k fuxe ;k ifj"kn ds LFkkuh; vf/kdkfj;ksa }kjk fn;k tk;sxkA ,sls voljksa ij ftykf/kdkjh ;k iqfyl v/kh{kd nkSjs ls lacaf/kr O;oLFkk ds fy;s mRrjnk;h u gksaxs rFkk mudh mifLFkfr vfuok;Z u gksxhA ¼8½ inh; drZO;ksa ds lEcU/k eas izns'k ds vUnj dh x;h ;k=k ds fy;s [email protected];ea=h Lrj izkIr egkuqHkkoksa dks :0 600 izfrfnu ;k izns'k ds ckgj dh xbZ ;k=k ds fy;s :0 750 izfrfnu dh nj ls nSfud HkRrk ns; gksxkA mi ea=h Lrj izkIr egkuqHkkoksa dks izns'k ds vUnj rFkk ckgj dh xbZ ;k=k gsrq :0 600 izfrfnu dh nj ls nSfud HkRrk ns; gksxkA ,slh ;k=kvksa ds ;k=k fcyksa ds fy;s [email protected];ea=h Lrj izkIr egkuqHkko Lo;a fu;a=d izkf/kdkjh gksaxsA miea=h ds fu;a=d izkf/kdkjh foHkkxh; ea=h gksxsaA ¼9½ ea=h @ jkT; [email protected] miea=h Lrj izkIr egkuqHkkoksa dks dk;kZy; esa tyiku ij O;; dh vf/kdre lhek dze'k% 10]000] 7500 rFkk 6000 izfrekg gksxh rFkk ftlds lEiw.kZ Hkqxrku dk nkf;Ro lacaf/kr [email protected]"[email protected];[email protected] dk gksxkA ¼10½ ea=h @ jkT; ea=h @ miea=h Lrj izkIr egkuqHkko tks foHkku e.My ds lnL; gSa] dks Lrj izkIr jgus dh vof/k esa fo/kku e.My ds lnL; ds :i esa vuqeU; osru HkRrk vkfn ;FkkfLFkfr fo/kku [email protected] fo/kku ifj"kn }kjk ns; gksxk rFkk ekuns; ds :i esa vUrj dh /kujkf'k ¼ekuns;] fo/kku e.My ds lnL; ds :i esa vuqeU; osru½ lEcfU/kr [email protected]"[email protected];[email protected] }kjk ns; gksxhA ¼11½ ,sls dfri; [email protected]"[email protected];[email protected] vkfn ftuesa mDr egkuqHkkoksa dh fu;qfDr dh xbZ gS dh vkfFkZd fLFkfr [kjkc gksus ds dkj.k muds }kjk mDr enksa ij vkus okys O;; dks ogu djus esa l{ke u gks ikus dh fLFkfr esa iz'uxr [email protected]"[email protected];[email protected] ds iz'kkldh; foHkkxksa }kjk foRr foHkkx ls ijke'[email protected] ls vius ctV ds lalqxr enksa es ;Fkksfpr /kujkf'k dh O;oLFkk djk;h tk;sxhA** "1. There shall be paid honorarium of Rs. 40,000 per month to dignitaries given the rank of Minister/Minster of State and that of Rs. 35,000 per month to those given the rank of Deputy Minister.
2. The dignitaries of the said rank, while discharging the duties of office, shall be provided with the facility of a staff car and petrol with a driver by the State Estate Department. Besides this, the dignitaries given such rank shall each be provided with the facility of one telephone at their office and residence (up to the ceiling of calls admissible to Ministers/Minsters of State/Deputy Minister), one Private Secretary and Personal Assistant and two Class IV staffers.
3. The dignitaries given the said rank shall be provided official accommodation by the State Estate Department. But if such dignitaries reside in the houses of their own, they shall be paid residential allowance of Rs. 10,000 per month in case of enjoying the rank of Minister/Minister of State and that of Rs. 8,000 per month in case of enjoying the rank of Deputy Minister.
4. The dignitaries enjoying the rank of Minister, when travelling in discharge of their official duties, shall be entitled for one coupé in the highest class in case of journey by rail and for one seat in case of journey by air. The dignitaries enjoying the rank of Minister of State/Deputy Minister shall be entitled for one berth in the highest class in case of journey by rail and for one seat in case of journey by air; however, it shall be subject to a restriction that it will be mandatory for the dignitaries given the rank of Deputy Minister to seek prior permission of the Minister of the concerned department in case he intends to undertake journey by air.
5. Every dignitary given the rank of Minister/Minister of State/Deputy Minister and his family members shall be entitled for free accommodation in the hospitals run by the State Government and for medical attendance and treatment as per the guide-lines prescribed in case of Ministers/Minsters of State/Deputy Minister. By the term 'family' is meant wife/husband, son(s), daughter(s), father, mother, brother or sister who live with the dignitary given the said rank and are entirely dependent upon him.
6. Expenses on honorarium, personal staff, telephone, travelling allowance, refreshments, medical reimbursements etc. will be incurred by that Department or Corporation or Council or Commission or Institution in which they have been appointed as Chairman/Vice-Chairman/Counsellor or on any other post.
7. In course of travels in discharge of official duties, they shall be given the facility of lodging at Circuit House or other Government Inspection Bungalow free of rent or electric charges. The protocol shall be extended to them at the local level by the local officers of their respective Department or Corporation or Council. On such occasions, District Magistrate or Senior Superintendent of Police shall not be responsible for the arrangement in relation to such visits and their presence will not be mandatory.
8. Dignitaries given the rank of Minister/Minister of State shall be paid Rs. 600 per day as daily allowance for travelling within the state and Rs. 750 per day for travelling out of the state in relation to discharge of their official duties. The dignitaries given the rank of Deputy Minister shall be paid Rs. 600 per day as daily allowance for travelling in and out of state in relation to discharge of their official duties. Dignitaries given the rank of Minister/Minister of State shall themselves be Regulatory Authority for bills of such travels. Minister of the Department will be Regulatory Authority in relation to a Deputy Minister.
9. Maximum limit for the expenditures to be incurred on refreshments shall be Rs. 10,000, 7,500 and 6000 for the dignitaries given the rank of Minister/Minister of State/Deputy Minister respectively and the liability to make entire payment thereof shall be on the concerned Corporation/Council/Commission/Institution.
10. The dignitary given the rank of Minister/Minister of State/Deputy Minister, who is a member of the legislature, while enjoying such rank, shall be paid pay and allowances, as admissible to a member of the legislature, by Legislative Assembly/Legislative Council as the case may be, and the differential amount (of honorarium and the pay drawn as a member of legislature) shall be paid to him by the concerned Corporation/Council/Commission/Institution.
11. In case some Corporations/Councils/Commissions/I nstitutions, to which such dignitaries are appointed, are not able to bear the expenses to be incurred on the said heads due to their bad financial condition, desirable amounts under the relevant heads of their budgets shall be arranged by administrative departments of the concerned Corporations/ Councils/ Commissions/ Institutions in consultation with/in concurrence with Finance Department."
(English translation by the Court)
22. Regarding income and expenditure for the period 2002-03 till 2007-08, it is said that no allocation was made by Government but the expenses were met from the income earned by Nigam from sale of its property. What kind of properties were sold is not clear. The details showing income and expenditure in the aforesaid six years is as under:
Year Income Expenditure 2002-03 Rs. 2,64,245/-
Rs. 2,64,245/-
2003-04 Rs. 14,01,010/-
Rs. 14,01,010/-
2004-05 Rs. 1,48,711/-
Rs. 1,48,711/-
2005-06 Rs. 1,18,167/-
Rs. 1,18,167/-
2006-07 Rs. 3,09,160/-
Rs. 3,09,160/-
2007-08 Rs. 47,868/-
Rs. 47,868/-
23. It is interesting to note that accumulated expenditure shown in the various heads in the last six years, i.e., 2002-2008 are as under:
Sl. No. Head Expenditure for the year 2002-03 to 2007-08 1 Rent of office building Rs. 17,000/-
Other expenditure Rs. 50,496/-
Audit fees Rs. 38,000/-
Postal expenditure Rs. 1800/-
Legal expenditure Rs. 94,992/-
Salary Rs. 19,73,933/-
Bank of Baroda Rs. 19,136/-
Punjab National Bank Rs. 2031/-
I.O.B.
Rs. 88,003/-
S.K. Yadav Rs. 1500/-
Travelling allowance Rs. 2270/-
24. Learned Standing Counsel, however, could not tell, when the Nigam was closed and did not function, what transactions took place resulting in such income which could keep the Nigam alive for so many years and to whom, during certain period, huge amount towards salary was paid. All these questions remain unanswered and even this could not be clarified as to what kind of property, moveable or immoveable was sold resulting in the said income.
25. So far as financial year 2008-09 is concerned, only the Chairman, Managing Director and Directors were appointed and, therefore, the expenditure of 20 lacs and odd has admittedly been incurred on the salary and perks of these persons. No person is said to have been employed for undertaking any effective operation of Nigam which may benefit Rural Development in any manner. It is like appointing a group of Army Commanders without any army. What they are doing in all these years is a big question hereat.
26. Be that as it may, if such huge amount can be incurred by Nigam on account of salary, perks etc. to the non performing, non-Government persons, simply nominated by Government without disclosing any purpose, objective, actual utility etc., the Court finds no justification to hold that Nigam could not have met liability of enhanced rent which comes to less than Rs. 62,700/- per annum. The arguments advanced in this regard are clearly artificial, shallow and only to mislead the Court and get invoked discretionary power of this Court exercised in its favour without any substance in the contention.
27. It is very interesting that in respect to determination under Section 21(8), no objection or argument has been advanced as to whether there is any manifest error in the impugned judgment warranting interference. In absence thereof, I find no reason to interfere with the impugned order.
28. Though in respect of determination of rent by courts below, learned counsel for the petitioner has not been able to substantiate any argument showing any error therein warranting interference but this Court also on its own has gone through the entire order carefully to find out whether there is any discrepancy in determining rent under Section 21(8) of Act, 1972.
29. The market value of property has been determined on the basis of valuer's report which, in turn, has relied on the rate determined by District Magistrate for the purpose of stamp duty payable under the statue for execution of instrument.
30. For determining rent under Section 21(8) of Act, 1972 there is no hard and fast rule laying down any particular procedure or method in which the rent can be determined. The proviso to Section 21 sub-section (8) only talks of market value of building under tenancy and a sum equivalent to 1/12 of 10% of market value shall constitute the appropriate rent payable by tenant under aforesaid provision. The term "market value" has not been defined in aforesaid Act, nor any procedure for its determination has been prescribed under the Rules framed under Act, 1972.
31. In Mahabir Prasad Shantuka Vs. Collector, 1987 ALR 308 this Court has observed that the term "market value" means that the willing purchaser would pay to a willing seller for the property having regard to the advantages available to the land and the development activities which may be going on in the vicinity and the potentiality of the land and other relevant factors. Circle rate fixed by Collector under Rule 341 of U.P. Stamp Rules, 1942 are guidelines for the purpose of realisation of stamp duty in the event of sale of land of a particular area. It cannot determine the value of land conclusively.
32. In Kaka Singh Vs. Additional Collector, Bulandshahr, 1986 ALJ 49 a Division Bench of this Court said that Rule 341 is only for the limited purpose of providing guideline to determine the market value. It is not conclusive. The value of land has to be determined after taking into consideration various factors. No hard and fast rule can be laid down therefor but now some of the guidelines have been laid down U.P. Stamp (Valuation of Property) Rules, 1997 but this is also indicative, constitute relevant factors, but not conclusive. One of the relevant factor can be an exemplar of a similar property sold in that particular area on near relevant date when the matter came up for consideration before competent authority, i.e., the date of submission of application. It cannot be doubted that ascertainment of market value involves a little subjective satisfaction and a kind of guesswork. The authority concerned, however, would have to take into consideration the locality where the property situate, its commercial value, potential value and other circumstances. In the present case, in absence of anything else, the Appellate Court has relied on the Circle rate and I find no patent error in such approach.
33. In the present case, in absence of anything otherwise shown by petitioner in the value determined by valuer, I find no reason to interfere with such determination by the court below. Sri Parekh, learned counsel for the petitioner has also admitted that the accommodation in question is situated at the best prime location of Jhansi City, i.e., in Civil Lines and the area occupied by petitioner is 476.77 sq. meters which included the covered area 272.30 sq. meters. It is also admitted that to contradict the valuer's report filed by landlord, no materiel was placed on record by petitioner before court below. In these facts and circumstances, I do not find any justification to interfere with determination of rent by the court below in the present case.
34. However, before parting, this Court finds its legal and constitutional obligation to place on record the unmindful public wastage of funds on the part of Government of State of U.P. It appears that only to confer certain undue benefits and advantages upon some private individuals, nominations/appointments have been made in respect of already dead corporations/companies though there was no effective use thereof. It is not the case of respondents that in the last more than four years, any real business has been discharged by Nigam so as to help poor rural flock, in whose name, and for whose alleged interest, the Nigam is said to have been revived in April, 2008. No ground level worker is said to have been employed during this period. The entire funds allocated have been used for making payment of salary and perks to the few individuals, nominated as Chairman and Vice-Chairman of Nigam with the status of State Minister and the Managing Director and their staff. This case is a clear illustration of total wasteful expenditure on the part of State Government, from public exchequer for which it is the trusty and custodian. The State Government is bound to utilise even a single penny from public exchequer for the real benefit of people, whose hard earned money has contributed, through taxes and others, to form public exchequer. Their (common people's) interest has actually not been sub-served by such useless expenditure
35. It needs a thorough inquiry and thereafter the aforesaid amount deserved to be recovered from such persons. The prerogative of Government for nomination of Chairman and Directors of Corporations and Companies need be investigated. The State, unlike private individual, is not free to flounder huge public revenue just to show favours upon certain individuals, unless actual utilisation for the benefit of common people, is the foundation and there is material to demonstrate that such objective has been attempted to be acted upon and achieved. At least an earnest attempt to achieve it, must be explicit. Any other view would amount to distribution of Government largesse arbitrarily for the individuals picked up in a most discriminatory manner. Such a course would not only be constitutionally abhorring but would amount to breach of trust on the part of those who are responsible for best utilization of public funds in their capacity of trusty and custodian.
36. The Chief Secretary, U.P. Government shall look into this matter and would also find out whether there are similar other cases also. He will set up an appropriate inquiry in all these matters to find out the persons responsible for such wastage of public funds and take appropriate steps for recovery thereof from the persons responsible for such spoil of public money.
37. A copy of this order shall be transmitted to Chief Secretary, U.P. Government by Registrar General so as to reach him within two weeks from the date of pronouncement of the judgement. Thereafter the aforesaid exercise shall be undertaken and completed by him (Chief Secretary) within six months and he shall submit a compliance report by 10.05.2013. This case shall be listed only for perusal of compliance report on 10.05.2013.
38. With the aforesaid directions/observations, this writ petition is dismissed with costs, which I quantify to Rs. 25,000/- payable by petitioner to respondents no. 1 to 4.
Order Date :-06.11.2012 AK