Punjab And Sind Bank vs Addl. District Judge Vii, … on 18 August, 2000

Allahabad High Court
Punjab And Sind Bank vs Addl. District Judge Vii, … on 18 August, 2000
Equivalent citations: 2000 (4) AWC 2772
Author: R Zaidi
Bench: R Zaidi


JUDGMENT

R.H. Zaidi, J.

1. By means of this petition filed under Article 226 of the Constitution of India, petitioner prays for issuance of a writ, order or direction in the nature of certiorari quashing the order dated 9.9.1994 passed by the respondent No. 2 enhancing the rate of rent of the building in question from Rs. 2,100 per month to Rs. 9,000 per month, order dated 24.10.1997 rejecting the application of the petitioner for filing additional evidence and order dated 24.11.1997 passed by respondent No.
1, allowing the appeal of respondent Nos. 2 to 11 and enhancing the rate of rent of the building in question from Rs. 9,000 to Rs. 12,000 per month and dismissing the Appeal No, 28 of 1994 filed by the petitioner.

2. Relevant facts of the case giving rise to the present petition, in brief, are that respondent Nos. 3 to
11, for short, “the contesting respondents” filed an application under sub-section (8) of Section 21 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short, ‘the Act’) for enhancing the rate of rent from Rs. 2,100 per month to Rs. 12,258 per month of the building in question which was in the tenancy of the petitioner bank. Application filed by the contesting respondents was opposed by the petitioner denying the facts pleaded by the contesting respondents. Both parties produced evidence in support of their cases. The documentary evidence also included the reports of the valuers. The contesting respondents filed the report of M/s- Agarwal Associates Engineers, which was supported by an affidavit. The said valuer valued the building at Rs. 14,71,000. On the basis of the said report, the contesting respondents claimed an amount of Ra. 12,258 plus amount of house and water as rent. Petitioner

also filed the report of its valuer, namely, M/s. Ajit Singh Associates who valued the building at Rs. 4,89,983. On the basis of the said report, the amount of rent comes to Rs. 4,083 per month. After going through the material on the record, the Rent Control & Eviction Officer enhanced the amount of rent from Rs. 2,100 to Rs. 9,000 per month plus amount of house and water tax by its judgment and order dated 9.9.1994. Challenging the validity of the said judgment, both parties, petitioner and the contesting respondents, filed appeals before the appellate authority. Petitioner’s appeal was registered as Appeal No. 28 of 1994 while that of contesting respondents as Appeal No. 29 of 1994. During the pendency of the abovenoted appeals, the petitioner filed an application under Section 10 (2) of the Act read with Order XLI. Rule 27, C.P.C. as the petitioner wanted to produce additional evidence, particularly, an affidavit of the Engineer in support of the report which was not filed before the Rent Control & Eviction Officer on account of bona fide mistake of its counsel. The application filed by the petitioner for filing additional evidence was objected to and opposed by the contesting respondents. The appellate court upheld the objection filed by the contesting respondents and dismissed the application for filing the additional evidence holding that by means of the said application, petitioner wanted to fill up the lacuna in its case which was legally not permissible, by judgment and order dated 24.10.1997. The appellate authority, after going through the evidence on the record, allowed the appeal filed by the contesting respondents and enhanced the amount of rent from Rs. 2,100 to Rs. 12,000 per month plus amount of house tax and water tax by its order dated 24.11.1997, hence the present petition.

3. Learned counsel for the petitioner vehemently urged that the appellate authority acted illegally in rejecting the application filed by the petitioner for admission of additional evidence and has also erred in dismissing the appeal of the

petitioner and in allowing the appeal of the contesting respondents, it was urged that it was on account of mistake of the counsel that affidavit could not be filed before the Rent Control & Eviction Officer. The application filed by the petitioner for admission of additional evidence was, therefore, liable to be allowed as the petitioner should not suffer for a bona fide mistake committed by his counsel.

4. On the other hand, learned counsel appearing for the contesting respondents vehemently urged that at the appellate stage, the parties to the appeal are not at liberty to file additional evidence. Additional evidence at appellate stage can be filed if the applicant fulfils the requirements provided under Order XLI. Rule 27. The petitioner has failed to fulfil the conditions for filing additional evidence, therefore, the application for filing the additional evidence was rightly rejected by the appellate authority. It was also urged that the valuer of the petitioner acted illegally in not including the value of the land on which the building is situated when it is well-settled in law that while determining the value of the building, the value of land is also to be included. It was also urged that the appellate authority has rightly enhanced the rent of the building in question and the writ petition was, therefore, liable to be dismissed.

5. I have considered the submissions made by the learned counsel for the parties and also carefully perused the record.

6. The questions which arise for determination in this petition are whether in the market value of the building, the value of the land on which the building is situated, is also to be included in the market value of the building, whether the application filed by the petitioner for admitting additional evidence at the appellate stage was rightly rejected by the appellate authority and as to whether the appellate authority has rightly enhanced the rate of rent of the building in question from Rs. 9,000 to Rs. 12,000 per month.

7. Application for enhancement of the rent was filed under subsection (8) of Section 21 of the Act, which reads as under :

“(8) Nothing in clause (a) of sub-section (1) shall apply to a building let out to the State Government or to a local authority or to a public sector corporation or to a recognised educational institution unless the prescribed authority is satisfied that the landlord is a person to whom clause (ii) or clause (iv) of the Explanation to sub-section (1) is applicable :

Provided that in the case of such a building the District Magistrate may, on the application of the landlord, enhance the monthly rent payable therefor to a sum equivalent to one-twelfth of ten percent of the market value of the building under tenancy, and the rent so enhanced shall be payable from the commencement of the month of tenancy following the date of the application :

Provided further that a similar application for further enhancement may be made after the expiration of a period of five years from the date of the last order of enhancement.”

From the aforesaid statutory provision. It is apparent that on the application made by the landlord, the District Magistrate may enhance monthly rent payable in respect of a building let out to the State Government or to a local authority or to a public sector corporation or to a recognised educational institution to a sum equivalent to one-twelfth of the ten percent of the market value of the building under the tenancy and the rent so enhanced shall be payable from the commencement of the month of tenancy following the date of application. Such enhancement would be permissible on expiration of five years from the date of the last order of enhancement of the rent. Petitioner bank which is a company within the meaning of Section 3 of the Companies Act. 1956 and comes

within the definition of “public sector corporation” as defined under clause !p) of Section 3 of the Act. For the purposes of enhancement of the rent, the market value of the building in question has to be determined. Parties have produced evidence in support of their cases oral (in the form of affidavits) and documentary including the valuers’ reports. As stated above, the contesting respondents filed the report of M/s. Agrawal Associates Engineers, which was supported by an affidavit in which the value of the building and land on which the building was situated, was included and the same was valued at Rs. 14,71,000. On the other hand, the petitioner filed the report of its valuer, namely, M/s. Ajit Singh Associates who assessed the market value of the property in dispute at Rs. 12,51,990 (i.e., Rs. 6,75,000 value of the land and Rs. 5,75,990 value of the building). However, petitioner’s valuer deducted the value of the land from the value of the building, which was illegal and contrary to law. It is well-settled in law that the value of the land on which the building is situated, is to be included in the market value of the building while determining the market value under the aforesaid proviso. A reference in this regard may be made to the decisions in Central Bank of India and others v. IInd Additional District Judge. Jhansi and others. 1989 (1) ARC 340 (SC) ; State of U. P. and others u. VII Additional District Judge. Saharanpur and others. 1992 (2) ARC 571 (SC) : State of V. P. and others v. VII Additional District Judge. Saharanpur and others, 1992 (1) ARC 265 and State of U. P. v. Roop Kishore Tandon and others, 1987 (2) ARC 359. The report filed by the valuer of the petitioner was not supported by an affidavit, therefore, the authorities below did not commit any error of law in not placing the reliance upon the said report, as the same was not proved in accordance with law. It may also be noted that if the value of the land is included in the value of the building as determined by the valuer of the petitioner, there would remain not much difference in the two reports filed before the authorities

below. Thus, the determination of the market value and enhancement of rent by the appellate authority does not warrant interference by this Court under Article 226 of the Constitution of India, as the same cannot be said to be bad in law.

8. So far as the second question regarding admission of additional evidence at appellate stage is concerned, it may be noted that aggrieved by the judgment and order passed by the prescribed Authority, appeal was filed by the petitioner under Section 22 of the Act. Section 22 of the Act reads as follows :

“22. Appeal.–Any person aggrieved by an order under Section 21 or Section 24 may within thirty days from the date of the order prefer an appeal against it to the District Judge, and in other respects, the provisions of Section 10 shall mutatis mutandis apply in relation to such appeal.”

9. Section 22 of the Act specifically provides that the provisions of Section 10 of the Act shall mutatis mutandis (i.e., with such changes as may be necessary) apply in relation to such appeal. Subsection (2) Section 10 of the Act reads as under:

“10. Appeal against order
under Sections 8, 9 and 9A.–

(1) …..

(2) The appellate authority may confirm, vary or rescind the order, or remand the case to the District Magistrate for rehearing, and may also take any additional evidence, and pending its decision, stay the operation of the order under appeal on such terms, if any, as it thinks fit.”

(italicised to supply emphasis)

From a plain reading of the aforesaid statutory provisions, it is apparent that the appellate authority, while dealing with and deciding an appeal under Section 22 of the Act, has got the jurisdiction to admit additional evidence. In the present case, the case was decided by the prescribed authority by its judgment and order

dated 9.9.1994 whereby the rate of rent was enhanced from Rs. 2,100 per month to Rs. 9,000. Challenging the validity of the said order, two appeals were filed before the appellate authority, one by the petitioner and the other by the contesting respondents. It was during the pendency of the said appeals that an application was filed by the petitioner for permission to produce the additional evidence, a copy of which is contained as Annexure-8 to the writ petition. The said application was not supported by any affidavit. In the said application, only it was stated that inadvertently some documents could not be produced before the prescribed authority, the same were being produced along with a list of papers, therefore, permission to file said documents be granted. Said application was objected to and opposed by the contesting respondents pleading that by means of the said application, the petitioner wanted to fill up the lacuna in its case as the petitioner, besides other papers, wanted to file an affidavit of the valuer so that the valuer’s report may become admissible in evidence, which was legally not permissible. The application, according to the contesting respondents, therefore, was liable to be rejected. The appellate authority upheld the objection and dismissed the application by its judgment and order dated 24.10.1997 holding that no case for filing additional evidence was at all made out and that the additional evidence was sought to be filed to fill up the lacuna in the case which was legally not permissible.

10. The questions as to whether the appellate authority had the jurisdiction to admit additional evidence and as to whether it could reject the same, arose in several cases and stands already decided.

11. In Haji Abdul Samad v. Jalal Uddin, 1976 AWC 73, it was held that the appellate authority has got the jurisdiction to admit additional evidence in the appeal. Appellate authority has to exercise the power with circumspection although Section 10 (2) of the Act does not place any

restriction on the power of the appellate authority but such a restriction is implied inasmuch as the appellate court could not be treated like the original Court. A distinction has got to be maintained between the powers of an original Court and the appellate court. The power given to the appellate authority is discretionary and High Court will not be justified in interfering with the refusal to admit additional evidence.

12. In M/s, Gur Narain Jagat Narain & Company v. M/s. Motor and General Sales Private Limited and others. 1977 UPRCC 58, it was ruled by this Court that though Section 10 (2) of the Act does not lay down expressly any condition as mentioned in Order XLI. Rule 27. C.P.C., the principle contained in the latter, afford proper guidelines to the appellate authority in dealing with appeals under the Act and the principles of Rule 27 of Order XLI. C.P.C., are applicable to the cases in which additional evidence is sought to be filed at appellate stage. Section 10 (2), Section 34 and Section 38 read with Rule 22 of the rules framed under the Act have to be read together to ascertain the intention of the Legislature and have to be harmoniously interpreted.

13. In Krishna Kumar Agarwal v. 1st Additional District and Sessions Judge. Saharanpur, 1978 ARC 294, while considering the provisions of Section 10 (2) of the Act, it was ruled that the appellate authority has got the discretionary power to admit the evidence and that unless conditions mentioned in Order XLI, Rule 27, C.P.C., are fulfilled, additional evidence cannot be admitted at appellate stage.

14. In Radhey Shyam v. IInd A.D.J. and others. 1980 ARC 590, this Court held that Section 10 (2) of the Act confers the power to admit additional evidence upon the appellate authority. Rule 22 also supplement the said power and although Order XLI, Rule 27, C.P.C., in terms does not apply to the proceedings under the Act, however its principles should be resorted for

admitting additional evidence for fulfilling the requirements of Rule 17.

15. In Nanak Prasad v. Sahdev Prasad Srivastava and another. 1982 ARC 76, it was held that Section 10 (2) of the Act gives ample power to the appellate authority to admit additional evidence at appellate stage. In the appeals filed under Section 22 of the Act, provisions of Section 10 apply mutatis mutandis. Similar view was taken by this Court in Narendra Kumar v. IV ADJ. Meerut, 1983 ARC 723, wherein it was held that Section 10 (2) of the Act applies mutatis mutandis to Section 22 under which the appeal is filed against the orders passed by the prescribed authority. Thus, the appellate authority has got the power to take additional evidence but the requirements of Order XLI. Rule 27, C.P.C.. are to be fulfilled before any evidence is taken at the appellate stage.

16. Same view has been taken by this Court in the following cases :

1. Wasi Ahmad alias Wasi Mohd, v. Vth A.D.J., Agra and another, 1983 ARC 789.

2. Kanhaiya Lal v. IInd A.D.J. and others, 1983 (2) ARC 264.

3. Om Prakash Jaiswal v. Prescribed Authority, Allahabad. 1984 ARC 52.

4. Bhola Nath v. A.D.J.. Gonda and others, 1985 (1) ARC 445.

5. Bhola Nath v. Mohd. Ibrahim and another, 1987 (I) ARC 103.

6. Sardar Harbhajan Singh v. Hart Babu and another, 1996 (2). ARC 498.

7. Shanta Ram v. VIIth A.D.J.. Kanpur and another, 1997 (1) ARC 31.

17. From the above noted decisions, it is apparent that the appellate authority acting under Section 22 of the Act has got jurisdiction to admit additional evidence at the appellate stage but the requirements of Order XLI, Rule 27, C.P.C., are to be followed by the

said authority while admitting the additional evidence. In the present case, the appellate authority has fully followed the aforesaid decisions and rightly refused to admit the additional evidence as the requirements of Order XLI, Rule 27 were not fulfilled. I do not find any illegality in the order passed by the appellate authority. The application filed by the petitioner for permission to file additional evidence was rightly rejected by the appellate authority.

18. From the material on the record, particularly from the report of the valuer, namely M/s. Agrawal Associates Engineers which was supported by an affidavit that market value of the building was assessed at Rs. 14,71,000, therefore, the appellate authority rightly enhanced the rate of rent to Rs. 12,000 per month which was equivalent to l/12th of 10 percent of the market value. The report which was filed by the petitioner to contradict the report filed by the contesting respondents, for the reasons stated above, was inadmissible in evidence and the same was rightly discarded by the appellate authority.

19. In view of the aforesaid discussion, no case for interference under Article 226 of the Constitution of India is made out.

The writ petition fails and is hereby dismissed with cost.

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