State of Uttar Pradesh vs Special Judge (E.G.Act), Sitapur and Or-Trs

N.K. Mehrotra, J.

This is a writ petition for issuing a writ in the nature of certiorari to quash the judgment and order dated 18.7.2003 passed by the Special Judge (E.G.Act) in Rent Control Appeal No.6 of 2003 and the order dated 3.3.2003 passed by the Rent Control and Eviction Officer/ City Magistrate, Sitapur in Case No.8/13.29/20 under Section 21(8) of U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to be as ''Act'') Keshao Nath Tandon v. State of Uttar Pradesh through Collector, Sitapur and another whereby the application of the landlord, the opposite party No.3 for enhancement of that monthly rent has been allowed and rent has been fixed as Rs.6,590.72 per month.

The petitioner has also challenged the order of the Rent Control and Eviction Officer/City Magistrate, Sitapur dated 3.3.2003 against which the appeal has been dismissed. The petitioner has been the tenant in the disputed premises at the rent of Rs.150/per month. On the commencement of the Act, the monthly rent was enhanced from Rs.150/ to Rs.187.50. Later on the landlord moved an application on 17.1.1981 for enhancement of the monthly rent. The Collector, Sitapur enhanced the rent. The landlord and the tenant both filed appeal which was allowed by the District Judge, Sitapur. The matter was remanded to the District Magistrate, Sitapur for redetermination of the rent. After remand, the monthly rent was enhanced to Rs.1002.50 with effect from April, 1981. The petitioner preferred Writ Petition No.6508 of 1986 which was dismissed vide judgment dated 15.6.1987. In the year 1985, the landlord again moved an application under Section 21 (8) of the Act for enhancement of the monthly rent from Rs. 1002.50 to Rs.7281.65. The Rent Control and Eviction Officer/City Magistrate, Sitapur rejected the application of the landlord on 7.6.1997. The landlord filed appeal No.6 of 1997. The Vth Additional District Judge, Sitapur allowed the Rent Control Appeal. No.6 of 1997 and also the application of the landlord and a monthly rent of Rs.7281.65 was fixed on the basis of the valuers report with effect from the date of the application. The petitioner filed writ Petition No.98 of 2001 (R/C) challenging the judgment and order dated 21.3.2001. This Court allowed the writ petition vide judgment dated 2.9.2002 and remanded the matter to the Rent Control and Eviction Officer/City Magistrate, Sitapur for determination of the actual value of the building and the rate of monthly rent after providing opportunity of hearing and adducing evidence to the parties concerned.

After remand, both the parties filed the valuation report. In both the valuation report, the rate of the land was determined as Rs.60/ per sq feet on the basis of the circle rate fixed by the Collector for the purpose of realization of the stamp duty. The valuer of the petitioner had permitted deduction of 25% in the circle rate, after taking into consideration the size of the particular plot. The Rent Control and Eviction Officer/City Magistrate, Sitapur vide judgment dated 3.3.2003 allowed the application of the landlord after determining the valuation of the property as Rs.7,90,889.66 and fixed the monthly rent of Rs.6,590.74 from the date of the application. The petitioner filed a Rent Control Appeal No.6 of 2003. The landlord also filed a Rent Control Appeal No.7 of 2003. Both the appeals have been dismissed on 18.7.2003. The instant writ petition has been filed against the aforesaid two judgments.

I have heard the learned counsel for the petitioner & the opposite party No.3 and have perused the record.

I find that both the courts below have determined the market value of the disputed premises in the tenancy of the petitioner after taking into consideration the valuation report filed by both the parties and the monthly rent at the rate of Rs.6,590.74 has been calculated in accordance with the provisions of Section 21 (8) of the Act. It is remarkable that valuers of both the parties have accepted the market value of the land at the rate of Rs.60/ per sq feet and it is in accordance with the circle rate, so this is the finding of fact. The learned counsel for the petitioner has argued that the market value of the land cannot be determined on the basis of the circle rate and in support of his contention, he has referred Deepak Kumar Tyagi and others v. Vth Additional District Judge, Saharanpur and others, 1994 (1) Allahabad Rent Cases 510, in which it has been held by the learned Single Judge of this Court (Hon''ble Sudhir Narian, J.) that the circle rate cannot determine the value of the land conclusively. I find that the same Hon''ble Judge in U.P. State Electricity Board and another v. Kishori Lal alias Panna and another 1999 (1) ARC 429 has accepted the circle rate for determination of the market value of the land in an application under Section 21 (8) of the Act. Therefore, I am not inclined to interfere in the finding of fact with regard to the valuation of the disputed premises under the tenancy of the petitioner. I also hold that the rent has been calculated in accordance with the provisions of Section 21 (8) of the Act.

The next contention of the learned counsel for the petitioner is that the entire open land in the tenancy of the petitioner cannot be said to be the land appurtenant to the building for the purpose of the application of the Act. This contention of the learned counsel for the petitioner has also no force because in the earlier writ petition No.6908 of 1986, the Act was found applicable between the parties and no such argument was raised by the petitioner that the provisions of the Act were not applicable to the premises in the tenancy of the petitioner. Further, I find that no such plea has been taken by the petitioner either before the Rent Control and Eviction Officer/City Magistrate, Sitapur or before the appellate court in the earlier two writ petitions between the parties with regard to the same subject matter, therefore, no such ground can be entertained because it is admitted case of the parties that the provisions of U.P. Act No.13 of 1972 are applicable to the premises in suit. In the absence of any pleading no such finding was required either by the Courts below or by this Court in earlier two writ petitions.

In Surya Dev Rai v. Ram Chander Rai and others. JT 2003 (6) 465: (2003(21) LCD 1046) it has been held by the Supreme Court that neither in the writ of certiorari nor in supervisory jurisdiction under Article 227 of the Constitution, mere errors of fact or of law cannot be corrected unless it is found that the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and a grave injustice or gross failure of justice has occasioned thereby. Since the writ petition has been filed by taking new pleas which have never been taken earlier in the litigation between the parties, I am of the view that the writ petition is to be dismissed.

In view of the above, the writ petition is dismissed.

(Petition dismissed.)