- (1.) SHITLA Prasad Srivastava, J. This petit ion under Article 226 of the Constitu tion of India has been filed by the State of U. P. through Member Sales Tax Tribunarr Gorakhpur against the landlord and others for quashing the order dated 12th March, 1992 filed as Annexure-1 and order dated 17th August, 1993, filed as An-nexure-2to the writ petition.
(2.) THE facts giving rise to the present petition in brief are that the landlord filed an application under Section 21 (8) of Act No. 13 of 1972 for enhancement of rent against the petitioner. THE basis of enhan cement of rent was that the annual value of the building in question was Rs. 4, 76, 600/-as such the enhanced rent would be Rs. 3972/- per month. It was specifically stated that the annual value of the building in cluded the constructed portion of the land appurtenant to the building. An objection was filed by the petitioner to the aforesaid application to the effect that in 1969 for the first time when the accomodation in question was given on rent its rent was Rs. 250/- per month and the total area in tenancy was 956 sq. feet but from 1st June, 1983 the department was paying rent amounting to Rs. 1126/- per month at the rate of one rupee per sq. feet. It was further stated that in 1983 the landlord constructed one additional room and tin shed, therefore, only 25% of the monthly rent can been hanced. 4. Both the sides submitted valuer's report. The valuer on behalf of the Sales Tax Department assessed Rs. 1, 28, 000. 00 as value of the disputed accommodation and filed alongwith the affidavit of the departmental Lekhpal. The valuer of the landlord Sri Hari Gopal Verrna submitted his affidavit along with his report. There appears to be no dispute for market value of the house in question as Rs. 4, 76, 600. 00. The Rent Control and Evic tion Officer (A. D. M. City, Supply Gorakhpur) observed that 'the market value of the construction as given by both the valuers appears to be the same but the landlord's valuer has valued the land also. It was held placing reliance on 1989 ALJ 389 that the building includes the appur tenant land also and as the valuer of the department has not given his affidavit in support of his report, therefore, the value given by the landlord is correct. The R. C. and E. O. accordingly accepted the market value as given by the landlord to be Rs. 4, 76, 600 and fixed Rs. 3972 as monthly rent, but keeping in view the condition of the house and tenancy in favour of the department he reduced the amount to Rs. 3, 000 per month. Aggrieved by this order the petitioner filed an appeal and it was urged before the appellate court that the Rent Control and Eviction Officer, hereinafter referred to as R. C. and E. O. has no jurisdiction to determine the ap plication under Section 21 (8) of the Act. His contention was that the District Magistrate has the jurisdiction only. The appellate court also placed reliance on 1989 ALJ 389, Central' Bank of India and others v. IHADJ and dismissed the appeal. The petitioner has challenged this order in this writ petition. 5. The parties have exchanged counter and rejoinder affidavit. Though the case was listed for admission but on the agreement of learned Counsel for the parties the matter was heard finally even at the admission stage. 6. The learned Standing Counsel has urged that the provisions of the Rent Con trol Act was not applicable as the rent of the accommodation in question was more than Rs. 2000/- per month, therefore, the application under Section 20 (8) of the Act was not maintainable. Therefore, the find ing of the R. C. and E. O. and the appellate authority are vitiated in law. In the same continuation he urged that though on the date of application the rent of the building was less than Rs. 2, 000 but when R. C. and E. O. fixed it at the rate of Rs. 3, 0007-per month, then the provisions of Rent Control Act were not applicable and neither the appellate court has jurisdic tion, nor the R. C. and E. O. had the juris diction to dispose of and entertain the application and as the appeal was the con tinuation of the original proceedings, therefore, the appellate court should have rejected the application. The second sub mission is that the land which has been assessed by the valuer of the landlord was not included in the tenancy of the depart ment, therefore, the market value of such land has illegally been taken into con sideration for determination of the rent. His third argument is that the appur tenant land cannot be included within the definition of building, therefore, the market value of appurtenant land also should not be taken into consideration of the market value. His fourth contention is that even if there was no affidavit of the departments' valuer but as there was af fidavit of Lekhpal in support of the report of valuer of the PWD therefore, the find ing recorded by the R. C. and E. O. is against the record. 7. Learned Standing Counsel laid much emphasis on the extent of the ac commodation in tenancy and in support of this he wanted to file a lease-deed ex ecuted between the parties. It was ad mitted by him that this lease-deed was not filed either before the R. C. and E. O. or before the appellate court but for the ends of justice this should be entertained in the writ jurisdiction. 8. Learned Counsel for the respon dent vehemently opposed the petition and the arguments advanced by the learned Standing Counsel. His contention was that a map is attached with the lease-deed showing the extent of accommodation in tenancy of the petitioner, which is part and parcel of the lease-deed and from this map also it is apparent that the land valued by the landlord's valuer was also included in the tenancy. Learned Counsel for the respondent also placed before the Court the map annexed with the lease-deed but his contention was that since the lease-deed was not filed before the R. C. and E. O. or before the appellate court, there fore, the petitioner cannot be permitted to file the document here. His further con tention was that under the Act the defini tion of the building is given in Section 2-H which means a residential and non-residential roofed structure and includes any and including any garden, garrages and out houses appurtenant to such build ing. His further contention is that the valuer's report is only an opinion there fore, unless the affidavit in support of the report is filed the report cannot be ac cepted. His further contention is that the exemption given in the Act is to those buildings of which monthly rent is above Rs. 2, 000/- and this monthly rent is to be seen on the date of filing of the application for enhancement and if the enhancement was made upto Rs. 2, 000 or above by the R. C. and E. O. then the provision of the Act will remain applicable and the appel late court cannot reject the application and exempt the building from the clutches of the provisions of the Rent Control Act during the pendency of the appeal. 9. Learned Counsel for the petitioner in support of his contention on the point of non-filing of the affidavit of his valuer has placed reliance on 1982 ARC 544, Ram Chandra Singh v. District Judge, Lucknow. He has placed reliance on page 6 of the aforesaid judgment, which is quoted below: "in my opinion the two authorities below have committed manifest error in recording their findings on the question of dilapidated nature of the building. It is true that no affidavit had been filed by the Asstt. Engineer who prepared plan of the proposed building and the estimate of the cost of demolition and reconstruction but that was not sufficient to reject the report of the Assistant Engineer. " 10. Learned Counsel for the respon dent has placed reliance on a Division Bench Judgment reported in 1983, (1) ARC 752 for the purpose that the valuer's report should have been accompanied by his affidavit. The relevant portion of the decision is quoted herein below. "report of valuer filed in rent control case without an affidavit of valuer verifyig its con tents on the basis of his personal knowledge will not be admissible in evidence, even if its contents are verified by means of an affidavit of the landlord. " 11. After hearing the learned Coun sel for the parties and going through the record it is clear that it "is admitted to the petitioner that the market value fixed by both the valuers so far as the constructed portion is concerned is near about the same, therefore, the factual dispute ap pears to be only in respect of the open piece of land and the land appurtenant to the building and extent of the land in the tenancy of the petitioner. The petitioner has not filed the application which was filed on the application to show that how much accommodation was mentioned in the application for enhancement alongwith the counter-affidavit. The report of Shri Hari Gopal Verma a valuer of the landlord, an affidavit of Hari Gopal Verma has been filed and there is a map annexed to this report. In this report the value has mentioned the accommodation in question and its boundary while giving description of the property and has stated in his affidavit that he is a registered ap proved valuer and has inspected the build ing and verified with the plan supplied by the owner. 12. In paragraph 3 of the counter-af fidavit it is stated that the valuer filed his report and his affidavit which have been filed with the counter-affidavit as an-nexure C. A. 1 and C. A. 2. The petitioner has stated in his petition in ground No. 1 that Sri Hari Gopal Verma has not filed his own affidavit to prove his report. In reply to paragraph 3 of the counter-af fidavit the petitioner has not denied that there was no affidavit of Sri Hari Gopal Verma as such the statement made by the petitioner in paragraph 8 of the writ peti tion is against the record. 13. The petitioner has also not denied the map filed alongwith the valuer's report in his rejoinder affidavit, nor has stated anywhere that the map an nexed by the valuer alongwit h the report is not a map of actual accommodation in the tenancy of the petitioner, rather in his affidavit sworn on-16th September, 1994, Sri S. N. Singh, the Member of Sales Tax Tribunal No. 1, Gorakhpur has admitted that Sri Hari Gopal Verma has filed his affidavit before the R. C. and E. O. and he has filed photostat copy of the same alongwith this affidavit. In paragraph 3 of this annexure it is mentioned by Sri Hari t Gopal Verma that the map is attached with his report. A supplementary affidavit has also been filed by one Sri Santoshi Prasad Peshkar of the Member Sales Tax Tribunal, sworn on 15th February, 1994, annexing therewith a photostat copy of the affidavit of Sri Hari Gopal Verma, the valuer, in compliance of the order of the Court dated 6th December, 1993. It is the same affidavit which has been filed by Sri S. N. Singh alongwith his affidavit. Thus it is clear from the record that the valuer of the landlord has given fuli description of the accommodation in question which has not been controverted by the petitioner in his rejoinder affidavit, supplementary af fidavit or affidavit filed by Sri S. N. Singh, thus the submission of the learned Coun sel for the petitioner that the open piece of land was not in the tenancy of petitioner cannot be accepted. The petitioner had an opportunity to rebut the valuer's report of the landlord oy filing alleged lease to prove the extent of accommodation which has not been availed of by him. As such the petitioner had no right to file the alleged lease-deed before this court. 14. The submission of the learned Counsel for the petitioner that the valuer's report of the department should have been accepted, even though there was no affidavit filed by him has no leg to stand in view of the fact admitted to the petitioner that both the valuers have given up to some extent the same market value of the construction, but as the petitioner's valuer had not mentioned the open piece of land in the tenancy, the market value assessed by the landlord's valuer was not rightly accepted by the R. C. and E. O. The submission of the learned Counsel for the petitioner that the appurtenant land docs not come within the definition of building is also not correct in view of the definition given in the Act as well as decision of the court. 15. Considering the facts and cir cumstances of the case I am of the view that the finding recorded by the R. C. and E. O. and affirmed by the appellate court on the question of market value is finding of fact which needs no interference under Article 226 of the Constitution of India. The petition is dismissed but there will be no order as to costs. .;