Poonam Srivastav, J. - (1.) HEARD Sri Sameer Sharma, learned counsel for the petitioner and Sri R. K. Pandey, counsel for the contesting respondent.
(2.) THE orders dated 20.2.1992 and 17.9.1991 passed by respondent Nos. 1 and 2 are impugned in the instant writ petition. THE U.P.S.R.T.C. is a tenant of the accommodation in question, which is half portion of 96, Gwalior Road, Agra and remaining half portion is in occupation of the landlord. An application under Section 21 (8) of U. P. Act No. 13 of 1972 was preferred for enhancement of rent. Rent at the relevant date when the application was instituted, was @ Rs. 195.31 paise per month. Constructed area in occupation of U.P.S.R.T.C. is 693.527 square metre and the total area including appurtenant land and out house is 19876 square metre. Claim of the landlord was that at the relevant time, market rate of the accommodation in occupation of the tenant was approximately Rs. 50 lakhs and, therefore, the rent if calculated in the prescribed manner, while enhancing rent, the tenant is liable to pay rent at the rate of Rs. 41,667 per month. This application was filed on 10.5.1989. An objection was also preferred by the petitioner/tenant that rate of rent is too excessive. According to map of the tenanted portion, a report of the architect valuer Yogendra Mohan Saxena, accompanied by his affidavit was filed. However, the prescribed authority fixed rate of rent after enhancement Rs. 15,000 per month vide order dated 17.9.1991. Rent Control Appeal No. 26 of 1991 was filed by the landlady and Rent Control Appeal No. 27 of 1991 was filed by the General Manager, U.P.S.R.T.C. The claim of the landlady was, that rent enhanced was very low and not in accordance with provision of Section 21 (8) of the Act on the contrary claim of U.P.S.R.T.C. is that the court below has committed an error taking into consideration valuation of the entire land, which is too excessive. Besides, the tenanted premises is in cantonment area and certificate from the Cantonment Board, Agra was also brought on record. Thus, in accordance with the rate of rent prevalent in the cantonment area cannot be said to be proper assessment and the order of prescribed authority is liable to be quashed.
(3.) THE appellate court came to a conclusion that condition of the tenanted premises is very sound but agreed that since it is in the cantonment area, therefore, market rate prevalent in other area is definitely high and therefore, on the basis of assessment by the assessor that market rate of the accommodation is between Rs. 400 to Rs. 600 per square metre. Calculation of enhanced rent was done. So far the objection regarding sale of the accommodation, conclusion arrived at by the appellate court was that it can be sold by permission of Military State Officer. Area in occupation of U.P.S.R.T.C. is 19645.152 square metre but the trial court had only taken 4200 square metre and had not calculated area of appurtenant land. It is settled principle of law that appurtenant land along with the construction let out to the tenant is also to be treated as tenanted area and, therefore, while calculating the enhanced rate of rent, it cannot be ignored. Appeal No. 27 of 1991 filed on behalf of U.P.S.R.T.C. was dismissed with cost and Appeal No. 26 of 1991 filed by the landlady was allowed to the extent that the tenanted area is 19645.152 square metre, cost of the constructed area was Rs. 33,63,675 or Rs. 33,63,000 and rent was fixed at the rate of Rs. 28,025 per month. Both the judgment and orders are challenged in the instant writ petition.;