PRAMOD KUMAR SHAH Vs. VARANASI DEVELOPMENT AUTHORITY VARANASI

JUDGEMENT

(1.) This writ petition has been filed by as many as 40 petitioners challenging the impugned notices dated 23-3-2002 and 1-4-2002, issued by the Respondent No. 3 Annexures 5, 4 and 21 to the writ petition. In the order dated 23-3-2002 Annexure-5, which has been issued by the Officer Incharge (Property), Varanasi Development Authority, (hereinafter referred to as VDA) it is stated that by the Government order dated 30-11-1999 it was directed that the valuation of the rented premises should be done and property can be offered for sale to the tenants. The petitioners were informed about the valuation and condition of the sale by letter dated 15-2-2001 and the petitioners were directed to deposit the sale amount but they had not done so. By the Government order dated 16-2-2001 it was directed that if the tenant does not deposit the sale amount then he has to pay market rent. The petitioners had been informed about this order of the V. D. A. dated 20-8-2001 and were directed to either deposit the sale amount by 20-10-2001 or to pay market rent but the petitioners had not done so. Hence the petitioners were directed to pay rent at the market rate of Rs. 2,150 from April 2002. 4. In the order dated 1-4-2002 of the same authority (vide Annexure 4 to the petition) it was mentioned that by letter dated 28-4-1998 the Petitioner No. 3 had been directed to pay arrears of rent of Rs. 19,015 which he had not done and he was warned that if he does not pay the arrears by 8-4-2002, the allotment in his favour will be cancelled. 5. By order dated 1-4-2002 (Annexure 21 to the petition) the Petitioner No. 3 was informed that by Government order dated 30- 11-1999 the V. D. A. had been directed to get the valuation of the rented property done and thereafter offer the same for sale to the occupant. The petitioner had been informed by letter of V. D. A. dated 15-2-2001 to deposit the sale amount but he had not done so. Hence he was again directed to deposit the sale amount with interest totalling Rs. 2. 29,362 by 8-4-2002. 6. Similar letters were issued to the other petitioners and these have been challenged in this petition. 7. It appears that a shopping/office/residential building complex was constructed by the Varanasi Nagar Mahapalika in 1974 known as Shastri Nagar (earlier known as Chakla Bagh ). This proposed scheme was taken over by the V. D. A. when it was constituted under the U. P. Urban Planning and Development Act, 1973. The construction of the complex was scheduled for completion on 30-9-1975 as stated in para 3 of the petition. The plan was approved and financed by the Housing Development Corporation. To reduce its cost the entire building was made of R. B. C. (Reinforced Brick Construction) instead of R. C. C. (Reinforced Concrete Construction ). It is alleged in para 6 that the scheme was meant to settle needy persons who had no place of their own and allotment was made on no profit no loss basis. In this complex 50 shops were constructed in the ground floor, office on the first floor and residential apartments on the second floor. The area of each shop was 19. 83 sq. meters (5. 49 x 3. 05 meter ). True copy of the scheme with map and layout is Annexure 1. It is alleged in para 10 of the petition that in the year 1976-77 the V. D. A. decided to allot the shops in the foresaid Shastri Nagar Commercial Scheme on pay of Rs. 5,000 as premium and on payment of Rs. 1,000 as security. The monthly rent was fixed at Rs. 166/67 or Rs. 150 per month if paid regularly in the first week of every month. Some of the original allottees transferred the possession of the shops to other persons. It is alleged in para 11 of the petition that the VDA had regularized these transferees after increasing their monthly rent to Rs. 250 or Rs. 225 per month if paid in the first week of every month. In para 12 of the petition it is stated that the petitioners are valid allottees and occupiers of different shops and apartments in Shastri Nagar, Varanasi. The details are given in the said paragraph. The petitioners are members of a registered society as stated in para 13 of the petition. The petitioners are either original allottees or transferees of the original allottees and the VDA has regularized them. It is alleged that all the petitioners paid regular rent which is Rs. 150 per month for the original allottees if paid within the first week of the month or Rs. 225 per month for transferees. It is alleged in para 16 of the petition that on 28-4-1998 notices were issued to all the shop owners of Shastri Nagar including the petitioners. True copy of one such notice is Annexure-II to the petition. A perusal of that notice shows that it is mentioned by the VDA that the Petitioner No. 3 had been allotted the shop at Rs. 166. 67 per month by agreement dated 11-10-1976 for 10 years. In the agreement it was alleged that every five years the rent would be increased by 12. 5% on renewal of the agreement for 5 years, the maximum number of renewals being 2. However, the petitioner never got the allotment renewed. After five years the rate of rent became Rs. 187. 50 and after another five years it became Rs. 210. 94 and after another five years Rs. 266. 97 per month. Hence the arrears till March 1998 was Rs. 13,250. 46. By the same notice the petitioner was offered to get his agreement renewed on paying the arrears, otherwise it will be deemed that he has no interest in taking the shop and suitable action shall be taken against him. Similar notices were sent to the other petitioners. 8. The petitioners sent reply dated 6-5-1998 vide Annexure III to the petitioner objecting to the increase in rent. Thereafter the impugned notice dated 1-4-2002 was issued demanding arrears of rent by 8-4- 2002 otherwise the allotment will be cancelled and other consequences will follow. Thereafter the VDA issued another notice dated 23-3-2002 vide Annexure 5 enhancing the rent to Rs. 2,150 per month effective from April, 2002. It is alleged that no opportunity of hearing was given before issuing these notices. Ultimately, the impugned notice dated 1-4-2002 vide Annexure IV was sent. On 4-11-1999 the State Government issued a Government order, copy of which is Annexure 6 to the petition. In this Government order it is mentioned that valuation of the land shall be done at 50% of the circle rate as regard the construction, the valuation shall be done at its cost after deducting depreciation. Those who wish to apply for purchase of the property have to deposit 25% of the valuation. On the deposit of the entire amount in one instalment 20% concession will be given. Those who want to buy the property in instalments can pay installments every six months for a period of five years with interest. Various other conditions have been mentioned in the said Government order. 9. Thereafter another Government order dated 30-11-1999 vide Annexure 7 was issued in continuation of the Government order dated 4-11-1999. 10. In para 32 of the petition it is stated that the VDA has adopted the method of valuation an plinth area basis. It is alleged that this is in violation of the object of the scheme. It is alleged in para 43 that on 20-8-2001 vide Annexure 18, the respondents have sent notices to the petitioners for giving consent to purchase of the shops. One of the replies is Annexure 19 to the petition. 11. Two counters-affidavits have been filed and we have perused the same. In the counter-affidavit filed on behalf of Respondent Nos. 1, 2 and 3 it is stated in para 4 (c) that only few of the petitioners are original allottees and the rest of the petitioners are transferees from the original allottees whose tenancies were regularized with the condition that they will enter into a registered agreement with the VDA, but they never entered into such registered agreement with the VDA. As such their status is of illegal occupants and they have no right to file the petition. Even the original allottees did not enter into a fresh agreement after expiry of the period mentioned in the registered agreement inspite of repeated reminders. As such their status also is of illegal occupants. Out of the petitioners only petitioner No. 4 Dudh Nath Pathak entered into an agreement with the VDA on 8-9-1982 whose period of tenancy also expired on 7-9-1989 but he never got it renewed and as such he is also an illegal occupant. True copy of the agreement dated 8-9-1982 is Annexure CA-1. Hence it is alleged that in view of the Government order dated 16-2-2001 the petitioners are bound to pay the enhanced rent at market rate and the notice dated 1-4-2002 is valid. 12. In para 6 it is stated that the valuation was done as per the P. W. D. rates. The constructions were done as per the latest techniques at the time of construction. In para 9 it is stated that the State Government acquired the land and no concession was given to the VDA. In para 11 it is stated that the plinth area of the shops in dispute varies from 22. 05 sq. mtrs. to 21. 10 sq. mtrs. and apart from that common services have also been provided such as verandah, urinal and bathroom, parking place etc. In para 13 it is stated that the shops were allotted to the petitioners with the condition that they will have to enter into an agreement with the VDA, which they have deliberately failed to do despite repeated reminders, and as such they are illegal occupants. In para 16 it is stated that a number of petitioners have not paid rent regularly and they only pay the rents when notices are issued to them. They have not entered into any agreement with VDA despite several reminders. Petitioner No. 3 Ram Narain Pathak had been asked time and time again to enter into an agreement with the VDA but he deliberately avoided doing so. In para 20 it is stated that as per Government order dated 16-2-2001 the petitioners were issued notices to purchase the shops in dispute, but since the petitioners failed to purchase the shops in dispute within the specified time as such notices were issued to them to pay market rent. In para 23 it is stated that a similar notice for enhancement of rent was challenged by the other tenants by means of Writ Petition No. 23603 of 2002, Allah Bux and others v. State of U. P. and others and the same has been dismissed by the Court on the ground of alternative remedy on 11-6-2002. A true copy of the order of the High Court dated 11- 6-2002 is Annexure CA-2. In para 24 it is stated that the respondents have fixed the post of the shops in dispute strictly in accordance with the Government order. The costing of the shops in dispute cannot be decided in writ jurisdiction. In para 30 it is stated that the petitioners have not deposited the enhanced rate of rent i. e. Rs. 2,150 per month and as such the interim order dated 12-4-2002 stand automatically vacated. 13. Another counter-affidavit has been filed by the respondents. In para 10 of the said it is stated that instead of depositing the enhanced rate of rent as per notice dated 23-3-2002 the petitioners sent rent at the old rate. Hence the VDA issued notices to them to deposit the enhanced rate as per directions of the Court. 14. We have carefully considered the facts and we are of the opinion that there is no merit in this petition. The petitioners were given a concessional facility, which they have totally abused. As the facts of the case clearly demonstrate, the petitioners have acted in an absolutely mala fide manner. The allottees, as well as the transferees from the original allottees never entered into any agreement with the VDA and hence they have no right to retain possession over the property in dispute. Also they did not pay the enhanced rent as directed. A perusal of the agreement Annexure CA-1 to the counter- affidavit shows that it is clearly mentioned in Clause 2 (h ). " (h) The lessee shall not sell, transfer or assign his interest in the demised shop to any person without the previous consent in writing of the lessor which may be refused or granted on such terms as to further payment of premium or increase in rent as the lessor may decide : Provided that in the event of the consent being given every such transfer or assignment shall only before the residual of the period of this lease and the permitted transferee or assignee shall be bound by all the terms and conditions of this lease and such other conditions which may be imposed by the lessor. " Clause (2) (i) of the agreement states: "after expiry of the term or sooner termination of this lease the lessee shall be bound to vacate and deliver actual and peaceful possession over the demised shop to the lessor. " Clause 3 (b) of the agreement states: " (b) That the lessor shall at the request and cost of the lessee at the end of the term of 5 years hereby granted execute to the lessee new licence of the demised premises by way of renewal for the term of 5 years with one further option to the lessee of renewal for 5 years on the same terms and conditions except that the rent payable by the lessee for the renewed terms would be at such rate as may be fixed by the Vice-Chairman of the lessor considering the market rate of such shops, whose decision in this regard shall be final and binding on the parties, provided that the rent shall be enhanced at lease by 12- 1/2% of the rent paid by the lessee immediately before the renewal at the time of each renewal. " Clause 4 (a) of the agreement states: " (a) That whenever any part of the rent hereby reserved shall be in arrears for 3 months after the due date or there shall be breach of any of the covenants by the lessee herein contained the lessor may re- enter on the demised premises and determine this lease. " 15. It appears that the petitioners have violated many of the conditions in the agreement quoted above. Neither the original allottees nor the transferees entered into a fresh agreement with VDA. Moreover as mentioned in the proviso to Clasue 2 (h) of the agreement, the transfer can only be of the residual period of the lease. As stated in Clause 2 (i) after expiry of the term of the lease the lessee has to vacate and deliver actual and peaceful possession over the demised shop to the lessor. There is also violation of Clause 3 (b) of the agreement because no fresh agreement was executed after five years. There is also violation of Clause 4 (a) because the arrears of rent was for more than 3 months, and there was breach of other covenants. Hence the lessor was entitled re-enter into the demised premises. The petitioners have violated all these conditions under the agreement. 16. The property in dispute does not belong to the petitioners and they are in fact illegally occupying the same although they have no right to retain the said property. Their have behaved as if they were owners of the property. Writ jurisdiction is discretionary jurisdiction and we are not inclined to exercise out discretion under Article 226 in favour of such persons. Evidently the petitioners thought that they own the property and can do as they like. 17. The matter is entirely in the realm of contract, and the petitioners have violated the agreement with VDA. Similar view was taken by the Supreme Court in Bareilly Development Authority v. Ajay Pal Singh, AIR 1989 SC 1076 and by this Court in Chandrabali Rai v. VDA, Writ Petition No. 3411 of 1989 decided on 6-1-1992 (per G. P. Mathur, J.) There is no force in this petition. The writ petition is dismissed. 18. We direct that the petitioners and others in Shastri Nagar who are in illegal occupation as per this judgment shall be evicted from the property in dispute within two months from today by the VDA taking police help. They will also have to pay the rent at enhanced rent from 1-4-2002 failing which it will be recovered by the Collector as arrears of land revenue, and paid to VDA. Decided accordingly. .