High Court
Legal Reasoning
WP-8448-2024-judgment.odtIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 8448 OF 20241. Sunil Ramchandra ChaudharyAge: 64 years, Occupation: Business,2. Anil Ramchandra ChaudharyAge: 57 years, Occupation: Business,Petitioner Nos. 1 and 2 R/o: 24, Budgujar Plot,80 feet road, Dhule 4240013.Sou. Sadhana Dattatraya Wavhal,Age: 60 years, Occupation: Self-employed,R/o: 14/601, Flower Valley Complex,Eastern Express Highway,Thane (W)-400 601… PETITIONER VERSUS1.The State of MaharashtraThrough its Principal Secretary,Tribal Development Department,Mantralaya, Mumbai – 322.The Commissioner,Tribal Development,Adivasi Vikas Bhavan, Nashik3.The Project Officer,Integrated Tribal Development Project,Dhule … RESPONDENTS 1 of 12
Legal Reasoning
(( 2 ))WP-8448-2024-judgment.…Mr. V. D. Hon, Senior Advocate i/b Mr. A. V. Hon, Advocate for thePetitioners Mr. R.S. Wani, AGP for the Respondent – State .…CORAM: RAVINDRA V. GHUGE ANDY. G. KHOBRAGADE, JJ.RESERVED ON PRONOUNCED ON :: 12.08.2024 22.08.2024JUDGMENT (Per – Y. G. Khobragade, J.) :- 1.Rule. Rule made returnable forthwith and heard finallyby the consent of the parties. 2.By the present Petition under Article 226 of theConstitution of India, the Petitioners have put forth prayer clauses(B), (C), (D), (E) and (F) as under:-“[B]Issue a writ of certiorari or writ in the like nature andquash and set aside the impugned communication dated2.07.2024 issued by the Project Officer, Integrated TribalDevelopment Project, Dhule.[C]Issue a writ of certiorari or writ in the like nature andquash and set aside the impugned communication dated31.05.2024 issued by the Principal Secretary, TribalDevelopment Department, Mantralaya. 2 of 12 (( 3 ))WP-8448-2024-judgment[D]Issue a writ of certiorari or writ in the like nature andquash and set aside the impugned order dated 4.08.2023passed by the Commissioner, Tribal Development Department,Nashik. [E]Issue a writ of mandamus or writ in the like naturedirecting the respondents to fix rent of Chaudhari Property, PlotNo.24, Badgujar Plot, 80 feet road, Near Dr. Subhash Bhamre,Dhule 424004 (“The Property”) as per the rent certificateissued on 12.04.2023 issued by Executive Engineer, PublicWorks Department, Dhule. [F]Issue a writ of mandamus or writ in the like naturedirecting the respondents to release the arrears of rent ofChaudhari Property, Plot No.24, Badgujar Plot, 80 feet road,Near Dr. Subhash Bhamre, Dhule 424004 (“The Property”)from 1.09.2018 as per the rent certificate issued on 12.04.2023issued by Executive Engineer, Public Works Department, Dhule.”3.Heard learned Senior Advocate Shri Hon, on behalf ofthe Petitioners and Mr. Wani, learned AGP on behalf of Respondents,at length. 4.Mr. Hon, the learned Senior Advocate canvassed that, on2nd November,2018, the Petitioners are entered into an rentagreement with the Respondents for letting the property bearing PlotNo.24, Badgujar Plot, 80 feet road, Near Dr. Subhash Bhamre, Dhule.As per said agreement it was agreed about determination of rent ofpremises by the Public Works Department (P.W.D.). On 12.04.2023, 3 of 12 (( 4 ))WP-8448-2024-judgmentthe Executive Engineer, P.W.D. has issued a rent certificate derivingthe rent @ Rs.45/- per square feet. However, the Respondents haveoverlooked the rent certificate and granted rent certificate as per theold rate on 25.05.2019. So also, the Respondents turned down therequest of the Petitioners for revision of the rent certificate issued on12.04.2023, 04.08.2023 and 31.05.2024. 5.It is further canvassed that on 23.04.1984, the StateGovernment issued a circular and thereby framed guidelines forfixation of rent certificate in respect of private properties. As per saidcircular, the Respondents are required to consider the prevailingmarket rate for determination of the rent. On 16.02.1987, againGovernment of Maharashtra through P.W.D. issued another circularthereby issued guidelines for issuance of rent certificate while takingthe private properties on rent by the department of the StateGovernment. The learned Senior Advocate appearing for Petitionerfurther submits that the Respondent Authority required to considerprevailing market rate of rent as applicable for the local area as perthe circular dated 15.02.2005 while taking the private property onrent/lease. As per said resolution, unless and until rent is fixed, the 4 of 12 (( 5 ))WP-8448-2024-judgmentGovernment Authorities cannot take possession of the privateproperty. Further, on 18.10.2017, the State Government issued acircular and framed guidelines for granting online rent certificatewhile renting private properties. Therefore, the RespondentAuthorities are required to consider the prevailing market rates fordetermination of rent as per said circular, which has been issued incontinuation of previous circular dated 23.04.1984. 6.The learned Senior Advocate appearing for the Petitionersfurther canvassed that on 11.07.2017, the Petitioners submitted aproposal to the Respondent No.3 Project Officer for letting theirproperty as per the prevailing market rates, initially for the period ofthree years and possession of the writ property handed over toRespondent No.3 on 01.09.2018. It is canvass that, while letting thewrit property on rent, the rent of Rs.1,59,352/- per month was fixedfor the period of three years i.e. @ Rs.28/- per square feet for 529.9square meter, vide communication dated 08.07.2019. The Petitionerslodge their protest towards the rent fixed by the Executive Engineer,P.W.(Tribal) Department, Dhule. However, on 01.08.2019, the CircleRevenue Officer, Integrated Tribal Development Project, issued a 5 of 12 (( 6 ))WP-8448-2024-judgmentcommunication to the Collector, Dhule and prayed for fixation of therent of writ property as per the prevailing market rates because therent fixed by the Executive Engineer, P.W. (Tribal) Department, notacceptable to the Petitioners. 7.The learned Senior Advocate further canvassed that theDivisional Officer issued a communication to the Additional Tahsildar,Dhule and recommended for fixation of rent of the writ property @Rs.55/- per square feet, so also, the Petitioners pointed out thatvarious banks are paying rent @ Rs.85 – 100/- per square feet and assuch, the Petitioners are agreed for the rent of the writ property @Rs.55/- per square feet and the prevailing market rate of rent, notacceptable to the Petitioners. However, on 07.06.2023, RespondentNo.3, Project Officer, issued a communication to Respondent No.2,Commissioner, Tribal Development and made a request for revision ofrent of writ property @ Rs.45/- per square feet without consideringthe guidelines framed by the State Government in GovernmentResolution dated 23.04.1984 and circular dated 18.10.2017.Therefore, prayed for quashing of the impugned communicationsdated 04.08.2023, 31.05.2024 and 02.07.2024 and prayed for Writ of 6 of 12 (( 7 ))WP-8448-2024-judgmentMandamus, directing the Respondents to fix the rent of writ propertyas per the rent certificate issued on 12.04.2023 by the ExecutiveEngineer, P.W.D. Dhule. The Petitioners further prayed forrelease/recovery of arrears of rent of writ property as per the rentcertificate issued on 12.04.2023. 8.Per contra, the Respondents raised the preliminaryobjections about maintainability of the Petition on the ground that theclaim of the Petitioners is based on rent/lease agreement dated 2ndNovember, 2018 executed between the Petitioners and RespondentNo.3. The Petitioners have challenged the communication dated04.08.2023, issued by Respondent No.2, the communication dated31.05.2024 issued by Respondent No.1 and 02.05.2024, issued byRespondent No.3. Therefore, the relationship between the Petitionersand the Respondents is of Landlord and Tenant or Lessor and Lessee.As per said rent agreement and rent certificate, the monthly rent oftenanted properties fixed to the tune of Rs.1,09,220/-. Accordingly,the Desk Officer of the State Government communicated the same toRespondent No.2 vide impugned communication dated 31.05.2024.Thereafter, immediately Respondent No.3 had informed the present 7 of 12 (( 8 ))WP-8448-2024-judgmentPetitioners to raise invoice and collect the rent amount. However,instead of raising the said invoice, the Petitioners are disputing aboutfixation of standard rent. Therefore, there is a dispute about quantumof standard of rent, hence, the Petition under Article 226 of theConstitution of India is not maintainable and prayed for dismissal ofthe same. 9.After considering strenuous submissions, it prima-facieappears that there exists a dispute between Landlord- Tenant/ Lessor-Lessee i.e. Petitioners and the Respondents, arising out of rentagreement executed on 02.11.2018. Needless to say that to ascertainthe quantum of standard of rent both parties are required to leadevidence and disputed question of fact of standard rate of rent cannotbe fixed by this Court by invoking the jurisdiction under Article 226 ofthe Constitution of India. The relationship between the Petitionersand the Respondents being a Landlord and Tenant is governed by theprovisions of the Maharashtra Rent Control Act, 1999. Not only thisbut the relationship between the Petitioners and the Respondentsbeing a Lessor and Lessee is governed under the Transfer of PropertyAct. 8 of 12 (( 9 ))WP-8448-2024-judgment 10.In case of City and Industrial Development CorporationVs. Dosu Aardeshir Bhiwandiwala and Ors, (2009 1 SCC 168, theHon’ble Supreme Court of India has held that High Court whileexercising its jurisdiction under Article 226, is duty bound to considerwhether;(a)adjudication of Writ Petition involves any complex anddisputed question of facts and whether they can besatisfactorily resolved;(b)the petition reveals all material facts;(c)the Petitioner has any alternative or effective remedy forthe resolution of the dispute;(d)person invoking the jurisdiction is guilty of unexplaineddelay and laches;(e)Ex facie barred by any laws of the limitation;(f)grant of relief is against public policy or barred by anyvalid law; and host of other factors. 11.In case in hand it is not in dispute that on 02.11.2018, anagreement of rent/lease has been executed between the Petitionersand Respondent No.3. As per said agreement the petitioners areagreed to let out the writ property to the Respondent no. 3 for theperiod of 36 months with effect from 01.09.2018 to 31.08.2021. Asper terms and conditions of the rent agreement, the Executive 9 of 12 (( 10 ))WP-8448-2024-judgmentEngineer, P.W.D., was authorised to determine the rate of rent as percurrent market rate and the petitioners are agreed for the same. Thewrit property is a private property, which is not exempted within themeaning of Section 3 of the Maharashtra Rent Control Act, 1999.Needless to say that, as per terms and conditions of the rentagreement, the relations between the Petitioners and the Respondentsare “Landlords and Tenants” as well as “Lessors and Lessees” underSection 105 of the Transfer of Property Act, 1882. 12.Section 7(14) and (15) of the Maharashtra Rent ControlAct, 1999, read as under:-“ 7(14) “standard rent” in relation to any premises means, - (a) where the standard rend is fixed by the Court or, as the casemay be, the Controller under the Bombay Rent Restriction Act,1939, or the Bombay Rents, Hotel Rates and Lodging HouseRates (Control) Act, 1944 or the Bombay Rents, Hotel andLodging House Rates Control Act, 1947, or the CentralProvinces and Berar Letting of Houses and Rent Control Order,1949 issued under the Central Provinces and Berar Regulationof Letting of Accommodation Act, 1946, or the HyderabadHouses (Rent, Eviction and Lease) Control Act, 1954, such rentplus an increase of 5 per cent, in the rent so fixed; or (b)where the standard rent or fair rent is not so fixed, thensubject to the provisions of sections 6 and 8, - (i) the rent at which the premises were let on the 1st day ofOctober 1987; or (ii) where the premises were not let on the 1st day of October 10 of 12 (( 11 ))WP-8448-2024-judgment1987 or the rent at which they were last let before that day,plus increase of 5 per cent, in the rent of the premises let beforethe 1st day of October 1987, or(c)in any of the cases specified in section 8, the rent fixed bythe Court;(15) “tenant” means any person by whom or on whose accountrent is payable for any premises and includes, (a) such person, - (i) who is a tenant, or(ii) who is a deemed tenant, or(iii) who is a sub-tenant as permitted under a contract or by the permission or consent of the landlord, or (iv) who has derived title under a tenant, or (v) to whom interest in premises has been assigned or transferred as permitted,by virtue of, or under the provisions of, any of the repealed Acts;(b) a person who is deemed to be a tenant under section 25;(c) a person to whom interest in premises has been assigned ortransferred as permitted under section 26;(d) in relation to any premises, when the tenant dies, whetherthe death occurred before or after the commencement of thisAct, any member of the tenant’s family, who - (i) where they are let for residence, is residing, or(ii) where they are let for education, business, trade orstorage, is using the premises for any such purpose, with thetenant at the time of his death, or, in the absence of suchmember, any heir of the deceased tenant, as may be decided, inthe absence of agreement by, the court.Explanation – The provisions of this clause for transmission oftenancy shall not be restricted to the death of the originaltenant, but shall apply even on the death of any subsequenttenant, who becomes tenant under these provisions on thedeath of the last preceding tenant.” 11 of 12 (( 12 ))WP-8448-2024-judgment13.Since, the Petitioners have prayed for fixation of standardrent as per current market rate in pursuance of the GovernmentResolution dated 18.10.2017 issued in continuation of circular dated23.04.1984 and as such, the Respondents/Government Authoritiesare not agreed for the said rate of rent as well as the rent certificatedated 12.04.2023 issued by the Executive Engineer, P.W.D., Dhule. 14.In the case in hand it involves disputed and complexquestions of facts in respect of fixation of standard rent which is ofpurely civil nature, hence, it would not be appropriate to adjudicatethe same while exercising the jurisdiction under Article 226 of theConstitution as per the law laid down in the case of City andIndustrial Development Corporation (supra). 15.Therefore, the present Writ Petition is dismissed.However, the Petitioners are at liberty to avail of an appropriateproceedings before the appropriate forum for redressal of theirgrievance, if so desired. Accordingly, Rule is discharged. [ Y. G. KHOBRAGADE, J. ] [ RAVINDRA V. GHUGE, J. ]SMS 12 of 12