Mohammad Ahmad & Anr vs Atma Ram Chauhan & Ors

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4422 OF 2011

[Arising out of S.L.P. (C) No.6319 of 2007]

Mohammad Ahmad & Anr. ....Appellants

Versus

Atma Ram Chauhan & Ors. ....Respondents

J U D G M E N T

Deepak Verma, J.

1. Leave granted.

2. One half of the lis between landlord and

tenant would not reach courts, if tenant agrees

to pay the present prevalent market rate of

rent of the tenanted premises to the landlord.

In that case landlord would also be satisfied

that he is getting adequate, just and proper

return on the property. But the trend in the

C.A. No.__@ SLP(C)No. 6319 of 2007

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litigation between landlord and tenant shows

otherwise. Tenant is happy in paying the meagre

amount of rent fixed years ago and landlord

continues to find out various grounds under the

Rent Acts, to evict him some how or the other.

This case appears to be another classic example

of the aforesaid scenario.

3. Thumb nail sketch of the facts of the case

are mentioned hereinbelow:-

Appellants herein are the tenants of two

shops admeasuring 10x12 feet each, equivalent

to 240 sq. ft., situated at National Highway

Chakrata Saharanpur (U.P.). The map attached

alongwith counter affidavit of the Respondent

Nos. 1 to 3 (which is not disputed by the

Appellants) shows that these shops are part of

the building known as Jaitpur Sadan, now coming

under commercial area. As per the sketch on

record, it is bounded by 110 ft. wide National

C.A. No.__@ SLP(C)No. 6319 of 2007

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Highway to the east, a 90 ft. wide Town Hall

Road to the west, a 20 ft. by lane to the

south, and nothing is shown and no construction

appears to be there in the north. In all,

Jaitpur Sadan has five shops of the same size

facing east and four shops of the same size and

one adjoining mini-store (which is probably

another smaller shop) and staircase for

reaching first floor, facing west.

4. Earlier when the abovementioned Jaitpur

Sadan was constructed, it appears that the same

was about 20 Kms. away from the city of

Saharanpur. Now with the passage of time, the

outer limits of the city have grown and have

come to include the said building. Thus, it

can be called a commercial area.

5. Respondent No. 1 who was working as the

Medical Officer at Zila Parishad, Saharanpur

retired on 31.07.1992. For his personal

C.A. No.__@ SLP(C)No. 6319 of 2007

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bonafide need he needed these two small shops,

i.e. an east-facing room (for consultation and

setting up medical equipment) and an adjoining

west-facing room (to serve as a waiting room

for patients). The sketch map shows that one

of the shops facing western side is already in

his occupation. He had requested both

Appellant No.1 and Respondent No.4, Shri Md.

Ahmad Iqbal, respectively, for release of any

one pair of shops, but neither of the two

acceded to his request.

6. Thus, he filed an application under

Section 21(1)(a) of the U.P. Act No. 13 of 1972

(hereinafter shall be referred to as the 'Act')

against the Appellants/Tenants as well as the

Respondent No.4 praying for release of any one

pair of the said two pairs of shops in his

favour. At that time the Appellants were paying

rent at Rs. 40 and Rs. 20/- (total Rs. 60/- per

C.A. No.__@ SLP(C)No. 6319 of 2007

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month) for the pair of shops in their

possession.

7. The matter was contested by the Appellants

before the Prescribed Authority/IV Additional

Civil Judge, Saharanpur, whereby and whereunder

the said authority allowed the application of

Respondents Nos.1 to 3 - landlords and on a

comparative assessment of facts and

circumstances, released the property (shown as

Item A in the Map annexed) in which Respondent

No.4 was a tenant, in their favour.

8. Feeling aggrieved thereof Rent Control

Appeals were preferred by both the parties,

i.e., Respondent Nos.1 to 3 - landlords and

Respondent No.4 before Additional District

Judge, Saharanpur. Vide judgment and order

dated 24.08.2004, the Appellate Court upheld

the decree of the IV Additional Civil Judge,

Saharanpur but modified it, to the extent that

C.A. No.__@ SLP(C)No. 6319 of 2007

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the pair of shops in tenancy of present

Appellants be released (shown as Item B in the

Map annexed), instead of the pair of shops in

the possession of Respondent No.4 as decreed by

the Trial Court, and furthermore, they were

directed to deliver peaceful and vacant

possession thereof to the Respondent Nos. 1 to

3, within one month from the date of the said

order. Thus, the order of release passed by

Prescribed Authority came to be partially

modified by the Appellate Authority in as much

as the order of release for two shops in their

favour was maintained.

9. Thus, unsatisfied and feeling aggrieved

thereof the Appellants preferred Civil

Miscellaneous Writ Petition No. 39727 of 2004

before learned Single Judge of the High Court

of Judicature at Allahabad. It appears while

considering the application for stay, the

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learned Single Judge directed that the

Appellants will not be dispossessed from the

shops in dispute provided, w.e.f. September,

2005 onwards they pay the Respondent Nos. 1 to

3, rent at the rate of Rs. 600/- per month by

7th of each succeeding month. In case of two

defaults, the stay order would stand vacated

automatically. Non-payment of rent may also be

a ground for dismissal of the writ petition.

The said order was passed by learned Single

Judge in the Appellants' Writ Petition on

14.09.2005.

10. It appears that the said writ petition

continued to be pending before learned Single

Judge. The same matter again came up for

hearing before another learned Single Judge on

13.02.2007. On the said date learned counsel

for Respondent Nos. 1 to 3 submitted that the

rent of the shops is too meagre looking to the

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present rent available for other similarly

situated shops,so a prayer was made that it be

increased reasonably according to market rate.

On this offer being made, learned counsel

appearing for the Appellants submitted that the

case for enhancement of rent may be considered

by the court according to the condition,

location and situation etc. of the tenanted

shops. It was further submitted by the learned

counsel for the Appellants that in case

Appellants are evicted from the disputed shops

then they would suffer irreparable loss and

injury. Lastly, it was contended by them that

even though many accommodations are available

nearby but none would be available at the rent,

which is being paid presently by Appellants to

landlords.

11. In the light of aforesaid offer having

been made by the Respondents and duly

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considered by the Appellants, the learned

Single Judge thought it fit to enhance the rate

of rent from Rs. 600/- per month for both the

shops to Rs. 2100/- per month, payable from

February 2007.

12. Even though, the Appellants' writ petition

was kept pending and directed to be listed in

the month of July, 2007 for reporting

compliance of the aforesaid directions, the

Appellants feeling aggrieved thereof have

preferred this appeal on variety of grounds.

13. We have accordingly heard Mr. Dinesh Kumar

Garg for the Appellants and Mrs. Rachna Gupta

and Mr. R.C. Kaushik for the Respondents and

perused the record.

14. The first thrust of the arguments of

learned counsel for Appellant was that the rent

having been enhanced to Rs. 600/- per month

only on 14.09.2005, no case was made out for

C.A. No.__@ SLP(C)No. 6319 of 2007

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further enhancement from Rs. 600/- to Rs.

2100/- per month vide the impugned order dated

13.02.2007, within two years thereof. It was

then submitted that this Court has deprecated

severely the practice of enhancement of rent in

petitions filed under Articles 226/227 of the

Constitution of India, during the pendency of

those petitions on merits in the High Court,

that too without any valuation report. To

advance contention in this regard, several

unreported orders of this Court have been

placed before us. They are judgment and order

dated 19.01.2009 passed in Civil Appeal No. 316

of 2009 titled Md. Iqbal Vs. Atma Ram & Ors.;

order dated 03.01.2008 passed in Civil Appeal

No. 14 of 2008 titled Md. Safi (D) Th. his LRs.

& Ors. Vs. Sri Farhat Ali Khan and order dated

20.10.2008 passed in Civil Appeal No. 6171 of

2008 titled Sadan Gopal Gautam Vs. Sushila Devi

C.A. No.__@ SLP(C)No. 6319 of 2007

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& Ors.

15. Critical scrutiny of the aforesaid

judgments/ orders would show that in these

cases neither there was any offer made by the

landlord nor any corresponding acceptance by

the tenant, still the High Courts, in each of

these cases, had enhanced the rates of rent

unilaterally. But in the case in hand it is

clearly reflected that Respondents-landlords

made an offer to the Appellants/tenants which

they agreed, only thereafter the rent was

enhanced from Rs. 600/- per month to Rs. 2100/-

per month, for both the shops. Thus, the ratio

of the aforesaid judgments cited by learned

counsel for Appellants has no application to

the facts of the present case.

16. On the other hand learned counsel

appearing for Respondents strenuously contended

that building known as Jaitpur house, with the

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passage of time has come within the market area

of Saharanpur and can therefore be called as

falling within the meaning of commercial area.

It was also contended that looking to various

factors such as the nature of construction, its

prime location in the city, being situated on

the main highway, and thus having easy

accessibility to it and the availability of all

other amenities and facilities etc. even the

rent fixed by learned Single Judge at the rate

of Rs. 2100/- per month for both the shops is

on the lower side and too meagre. According to

her, the total area under occupation of the

Appellants would be 240 sq. ft. and with the

rent fixed at Rs.2100/-, the rent would come to

Rs.87.50 per sq. ft. This according to her is

too low, keeping in mind the present trend and

the prevalent market rate of rent. She thus

submitted that no case for interference is made

C.A. No.__@ SLP(C)No. 6319 of 2007

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out and the appeal being devoid of merit and

substance deserves to be dismissed.

17. Thus, looking to the matter from all

angles we are of the considered opinion that

the rent as has been fixed by the learned

Single Judge for the two shops having total

area 240 sq. ft. to Rs. 2100/- per month is not

only reasonable but would be just and proper.

Any enhancement in rent will not ipso facto be

deemed to be unreasonable and exorbitant,

unless the party aggrieved is able to give

cogent reasons for the same. In this context,

we may profitably refer to the judgment

pronounced by this Court, reported in (2005)1

SCC 705 titled Atma Ram Properties (P) Ltd. Vs.

Federal Motors Pvt. Ltd. The relevant portion

thereof is reproduced hereinbelow:-

"In the case at hand, it has to be

borne in mind that the tenant has been

paying Rs. 371.90/- rent of the premises

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since 1944. The value of real estate and

rent rates have skyrocketed since that

day. The premises are situated in the

prime commercial locality in the heart

of Delhi, the capital city. It was

pointed out to the High Court that

adjoining premises belonging to the same

landlord admeasuring 2000 sq. ft. have

been recently let out on rent at the

rate of Rs. 3,50,000/- per month. The

Rent Control Tribunal was right in

putting the tenant on terms of payment

of Rs. 15,000/- per month charges for

use and occupation during the pendency

of appeal. The tribunal took extra care

to see that the amount was retained in

deposit with it until the appeal was

decided so that the amount in deposit

could be disbursed by the appellate

Court consistently with the opinion

formed by it at the end of the appeal.

No fault can be found with the approach

adopted by the Tribunal. The High Court

has interfered with the impugned order

of the Tribunal on a erroneous

assumption that any direction for

payment by the tenant to the landlord of

any amount at any rate above the

contractual rate of rent could not have

been made. We cannot countenance the

view taken by the High Court. We may

place on record that it has not been the

case of the tenant-respondent before us,

nor was it in the High Court, that the

amount of Rs. 15,000/- assessed by the

Rent Control Tribunal was unreasonable

or grossly on the higher side".

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In fact, learned Single Judge has also

taken note of the aforesaid judgment of this

Court and only thereafter, the rental was

worked out from Rs. 600/- per month for two

shops to Rs. 2100/- per month.

18. No doubt, it is true that learned Single

Judge has applied his own yardstick in working

out the rent but only after both parties'

contentions were taken into account and the

said yardstick appears to be absolutely correct

and perfect method of working out the present

market rental of the premises.

19. Even though, the report of the valuation

was not taken into consideration as there was

none but the assessment and judgment of the

learned Single Judge cannot be disallowed, even

though detailed reasons have not been assigned

by the learned Single Judge for enhancing the

C.A. No.__@ SLP(C)No. 6319 of 2007

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rate of rent because the ultimate conclusion

arrived at by him does not suffer from any

infirmity, illegality or perversity.

20. Thus in our considered opinion, the appeal

from such an interim order of the learned

Single Judge, being devoid of merit and

substance deserves to be dismissed. We

accordingly do so.

21. According to our considered view majority

of these cases are filed because landlords do

not get reasonable rent akin to market rent,

then on one ground or the other litigation is

initiated. So before saying omega, we deem it

our duty and obligation to fix some guidelines

and norms for such type of litigation, so as to

minimise landlord-tenant litigation at all

levels. These are as follows:-

(i) The tenant must enhance the rent

according to the terms of the agreement or

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at least by ten percent, after every three

years and enhanced rent should then be

made payable to the landlord. If the rent

is too low (in comparison to market rent),

having been fixed almost 20 to 25 years

back then the present market rate should

be worked out either on the basis of

valuation report or reliable estimates of

building rentals in the surrounding areas,

let out on rent recently.

(ii) Apart from the rental, property

tax, water tax, maintenance charges,

electricity charges for the actual

consumption of the tenanted premises and

for common area shall be payable by the

tenant only so that the landlord gets the

actual rent out of which nothing would be

deductible. In case there is enhancement

in property tax, water tax or maintenance

C.A. No.__@ SLP(C)No. 6319 of 2007

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charges, electricity charges then the same

shall also be borne by the tenant only.

(iii) The usual maintenance of the

premises, except major repairs would be

carried out by the tenant only and the

same would not be reimbursable by the

landlord.

(iv)But if any major repairs are required

to be carried out then in that case only

after obtaining permission from the

landlord in writing, the same shall be

carried out and modalities with regard

to adjustment of the amount spent

thereon, would have to be worked out

between the parties.

(v) If present and prevalent market

rent assessed and fixed between the

parties is paid by the tenant then

landlord shall not be entitled to bring

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any action for his eviction against such a

tenant at least for a period of 5 years.

Thus for a period of 5 years the tenant

shall enjoy immunity from being evicted

from the premises.

(vi) The parties shall be at liberty to

get the rental fixed by the official

valuer or by any other agency, having

expertise in the matter.

(vii) The rent so fixed should be just,

proper and adequate, keeping in mind,

location, type of construction,

accessibility with the main road, parking

space facilities available therein etc.

Care ought to be taken that it does not

end up being a bonanza for the landlord.

22. These are some of the illustrative

guidelines and norms but not exhaustive, which

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can be worked out between landlord and tenant

so as to avoid unnecessary litigation in Court.

23. As mentioned hereinabove, the aforesaid

appeal is dismissed with costs throughout.

24. Counsels' fee Rs. 10,000/-.

...................

..J.

[DALVEER BHANDARI]

..................

..J.

[DEEPAK VERMA]

New Delhi

May 13, 2011