IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) NO. 2327 OF 2003
with
W.P.(C) NO. 2328 OF 2003
M/S. Narbheram Leasing Company Pvt. Limited ... ... Petitioner[In both Cases]
-versus-
State of Jharkhand and others ... ... Respondents[in both cases].
CORAM: THE HON'BLE MR. JUSTICE AMARESHWAR SAHAY.
For the Petitioner : Mr. Amar Kumar Sinha, Advocate.
For the Respondents : Mr. Ananda Sen, Advocate.
For the State : Ms. Nehala Sharmin, J.C. to Sr. S.C.-II
8/19.04.2010
. Heard the parties.
In view of the fact that the facts and points involved in both the writ
petitions are same and similar and as such, both the cases have been heard
together and are being disposed of by this common Order.
The facts in short are the petitioner of both the writ petitions, is the
landlord and the private respondents i.e. Vijay Mehta and Dhiren Mehta, are
his tenant with respect to two tenanted premises i.e. shop no. 2 and shop no.
3, situated in the commercial building namely – Narbheram Building, Sakchi
Boulevard Road (Bistupur Main Road), Bistupur, Jamshedpur, East Singhbhum.
The petitioner filed applications for fixing fair rent of the aforesaid
two shops praying under Section 5 of the B.B.C. Act before the S.D.O.
contending that the tenanted premises is located in the busy market area and
business centre of Bistupur, Jamshedpur and the same is being used by the
tenants for commercial purposes whereas, the rent paid by them was too low.
As a matter of fact, the rent for such accommodation prevalent in that area is
being paid @ about Rs.28/- per Sq. Ft.. Accordingly, prayer was made to fix the
fair rent of the two shops premises @Rs.28/- per Sq. Ft. per month.
The S.D.M. – cum – House Rent Controller registered those two
petitions filed by the petitioner under Section 5 of B.B.C. Act as H.R.C. Cases.
The tenants were noticed and thereafter, he directed the Special Officer,
Jugsalai Municipality, Jamshedpur to make a spot enquiry and report about the
statements made by the petitioner. The Special Officer submitted his enquiry
report dated 06.07.2002, contained in Annexure-2 to the writ petition. He
reported in his report that for similar accommodation, the prevailing rent in
the area was @Rs.28/- per Sq. Ft.. However, it was also mentioned in the
report that since in one case, namely H.R.C. Case No. 72 of 1998, the fare rent
has been fixed at Rs.12 per Sq. Ft. and, therefore, he recommended that the
fair rent of the premises can be fixed in between Rs.14 – 18 per Sq. Ft.. The
S.D.M., on consideration of the report, submitted by the Special Officer of
Jugsalai Municipality, Jamshedpur, by the impugned order dated 18.07.2002,
contained in Annexure-3, fixed the fair rent of the premises in question of
both the shops @Rs.15/- per Sq. Ft.
The respondents-tenants, being aggrieved by the order passed by the
Rent Controller, preferred appeal before the Deputy Commissioner, East
Singhbhum, Jamshedpur, which were registered as H.R.C. Appeals. The Deputy
Commissioner, by the impugned Order dated 22.10.2002, contained in
Annexure-4 to the writ petitions, after hearing the parties, set aside the order
passed by the S.D.M. And remanded the matter back to him by holding as
follows:-
(i) M/s. Narbheram Leasing Company Pvt. Limited was allotted the
premises by TISCO for running a motor garage and a sum of Rs.180/-
per month was being paid by way of rent to TISCO.
(ii) M/s. Narbheram Leasing Company Pvt. Limited, by violating the terms
and conditions of the lease, are realising excess rent after constructing
shop in the premises.
(iii) Fixing the fair rent of the premises in question by comparing the rent
of Yes Kamal Complex, was not justified since Yes Kamal Complex was
a newly constructed building and it was having all sorts of facilities.
On the basis of the above findings, the Deputy Commissioner,
directed the Sub Divisional Officer to consider and pass order in the case
afresh. He also directed the Deputy Collector, Tata Lease to make enquiry and
take action as to whether the petitioner was violating the terms of the lease
with the TISCO.
The petitioner, being aggrieved by the order passed by the appellate
authority i.e. Deputy Commissioner, preferred a revision before the
Commissioner, South Chhotanagpur Division. The Revisional Court, by the
impugned Order dated 25.02.2003, as contained in Annexure-5, dismissed
both the revision applications by affirming the Order passed by the Deputy
Commissioner i.e. the appellate authority.
Mr. Amar Kumar Sinha, learned counsel appearing for the petitioner
submitted that the impugned Orders passed by the appellate authority i.e. the
Deputy Commissioner, are beyond the purview, scope and jurisdiction of the
Deputy Commissioner. He had no jurisdiction or authority to direct to take
action against the petitioner for the alleged violation of the terms and
conditions of the lease with TISCO. The Deputy Commissioner had no
jurisdiction also to direct the Deputy Collector, Tata Lease to make enquiry if
the terms of the lease was being violated by the petitioner. He further
submitted that the orders of the Sub Divisional Officer, which were based on
the basis of the enquiry report submitted by the Special Officer, Jugsalai
Municipality, were perfectly legal and valid wherein, it was held that the rent
of the commercial premises similarly situated were in between Rs.5 – 28 per
Sq. Ft. but since in a similar case, the fair rent was fixed at Rs.12/- and,
therefore, he fixed the fair rent at Rs.15/- per Sq. Ft.
On the other hand, Mr. Ananda Sen, learned counsel appearing for
the respondents, submitted that so far the first portion of the order of the
Deputy Commissioner fixing rent @Rs.15/- per Sq. Ft. is concerned, the same is
not at all justified since even according to the report of the Special Officer,
the rent prevalent in the area was in between Rs.5 – 28 per Sq. Ft. and the
Special Officer has wrongly compared the shops situated in the building
namely Yash Kamal Complex which is a newly constructed complex with all
amenities and, therefore, the rent of the shops situated in the Yash Kamal
Complex were naturally higher since the building was a new one and all sorts
of facilities was there and, therefore, the Deputy Commissioner has rightly
remanded the matter back to the S.D.O. to pass a fresh order in accordance
with law.
So far the second part of the Order of the Deputy Commissioner is
concerned, whereby the Deputy Commissioner directed to make enquiry and
to take action against the petitioner for alleged violation of the terms of lease,
Mr. Ananda Sen submitted that he cannot support that part of the order since
it was beyond the scope of Section 5 of BBC Act and jurisdiction of the
Deputy Commissioner.
In view of the submissions made by the parties, the only point which
has to be considered in the present writ petitions are as to whether the fair
rents fixed by the S.D.O. – cum – House Rent controller, on the basis of the
enquiry report submitted by the Special Officer, was legal and valid and
whether the appellate authority was justified in setting aside the orders of the
House Rent Controller and remanding the matter back for fresh consideration.
From perusal of the Annexure-2, i.e. Enquiry Report submitted by the
Special Officer, it appears that he made the spot enquiry by visiting the
building where the shops in question are situated and also the Commercial
Yash Kamal Building situated in the Bistupur area and on enquiry and local
inspection made in presence of both the parties, he found that the rent of the
shops situated in that area was ranging in between Rs.6 – 28 per Sq. Ft.
On considering of the facts mentioned in the report, the Special
Officer recommended for fixation of rent in between Rs.14 – 18 per Sq. Ft..
From the order of the Deputy Commissioner, it appears that he found fixation
of rent to be not justified because that Yash Kamal Complex was a newly
constructed building whereas, the building in which the shops in question was
old one and, therefore, he come to the conclusion that the rent of the two
buildings cannot be compared in fixing fair rent of the shops situated in the
old building. He also held that Yash Kamal building is a new building and all
sorts of facilities are available in the said building.
In order to find out the correctness of the findings of the Deputy
Commissioner, I have gone through the enquiry report submitted by the
Special Officer, which has been annexed in the writ petition as well as the
other documents annexed with the writ petition and I find that there was
nothing on the record before the Deputy Commissioner to arrive at such a
conclusion. Such finding of the Deputy Commissioner is certainly not based on
the materials on record. He could not have decided the appeal on the basis of
his own personal knowledge.
I further find from the order of the Sub Divisional Officer i.e. the
Rent Controller that he, on consideration of several factors, has fixed the fair
rent at Rs.15/- per Sq. Ft. , which, in my view, cannot be said to be illegal or
invalid or unjustified for any reason.
For the reasons stated above, both the writ petitions are allowed.
The Orders passed by the Deputy Commissioner dated 22.10.2002 in H.R.C.
Appeal No. 25 of 2001 – 02 and H.R.C. Appeal No. 24/2002 – 03 as well as the
Orders dated 25.02.2003 passed by the Commissioner South Chhotanagpur
Division in H.R.C. Revision No. 167/2002 and 167A/2002 are hereby set aside
and the order of the Sub Divisional Officer dated 18.07.2002 as contained in
Annexure-3, is hereby affirmed.
(Amareshwar Sahay, J.)
RC/