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Nabakishore Rout Vs. the Regional Director, Regional Office for Health and Family Welfare and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtOrissa High Court
Decided On
Case NumberO.J.C. No. 360 of 1983
Judge
Reported in1984(I)OLR481
AppellantNabakishore Rout
RespondentThe Regional Director, Regional Office for Health and Family Welfare and anr.
Appellant AdvocateS.C. Mohapatra and ;A.K. Sahoo, Advs.
Respondent AdvocateStanding Counsel (Central Govt.)
DispositionApplication allowed
Excerpt:
- state financial corporations act, 1951 [63/1951]. section 29; [p.k. tripathy, a.k. parichha & n.prusty, jj] discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the..........the petitioner in his communication dated 24. 12. 1982 (vide annexure-5) that the enhanced rate of rent was not payable before expiry of five years from the date of the original assessment and, therefore, the rent already paid at the enhanced rate in excess of the stipulated rate would adjust the house rent bill from june, 1982 onwards. this was evidently due to the fact that opposite party no. 2 pointed out to opposite party no. 1 under annexure-4 that the re-assessment of rent should be done only after expiry of five years from the date of the original assessment as per govt. of india, (directorate of estates o. m. no. 15013 (1) 72-vol. iv (iii) dated 1. 9.1982). the learned standing counsel for the central government appearing for the opposite parties has strenuously argued.....
Judgment:

P.C. Misra, J.

1. The petitioner is the owner of the building on plot No. 213-A of Saheednagar in Bhubaneswar town. The building is said to have been completed on 11. 9. 1978 and was let out to opposite party No. 1, the Regional Director, Health and Family Welfare, Bhubaneswar, with effect from 15. 9. 1978 on a monthly rent of Rs. 746/-. According to the petitioner, the monthly rent of the building, so assessed by opposite party No. 2, the Executive Engineer, Central Division, C. P. W.D, Bhubaneswar, was too low and, the petitioner accepted the assessment of rent in his anxiety to let out the building. By letter dated 24. 6.1981 (vide Annexure-1) the petitioner moved opposite party No. 1 to make re-assessment of rent of the building. It is alleged that on 2. 11. 1981 opposite party No. 2 on re-assessment fixed the fair rent of the building at Rs. 1584/- per month effective from 15. 9. 1981 (vide Annxure-2) and the same was communicated to the petitioner by opposite party No. 1 by letter dated 5th February 1982 (vide Annexure-3). Accordingly, opposite party No. 1 paid rent to the petitioner at the rate of Rs. 1584/-per month from 15. 9. 1981 till the end of May, 1982, i.e., for a total period of 8 months and 16 days and the petitioner accepted the same. By letter dated 9.11.1982 (vide Annexure-4) opposite party No, 2 intimated opposite party No. 1 that the re-assessment of rent could be done only after expiry of a period of 5 years from the date of the original assessment as per O. M. No. 16013 (1)/72-Vol. IV (III) dated 1. 9. 1982 of the Directorate of Estates, Government of India, and, therefore, the fair rent certificate issued on 2. 11: 1981 in respect of the building of the petitioner should be treated as cancelled and the rent should be paid at the old rate till the expiry of the period of five years from the date of the original assessment. Pursuant to the letter in Annexure-4, opposite party No. 1 by letter dated 24.12. 1982 (vide Annexure-5) intimated the petitioner that the house rent would be paid. @ Rs. 746/-instead of Rs. 1584/-per month and the excess amount already paid to the petitioner would be adjusted against the future house rent. The petitioner has, therefore, prayed for quashing of the order in Annexure-4 canceling the re-assessment of the rent of the building.

2. Opposite Party No. 1 in his counter-affidavit has denied his liability to pay rent at the enhanced rate. It has been stated therein that the payment of rent at the enhanced rate was made under a bona fide belief that opposite party No. 1 is bound to pay rent as assessed by opposite party No. 2.

3. There is no dispute that the building belonging to the petitioner was let out to opposite party No. 1 with effect from 15. 9. 1978 and that the fair rent was fixed at Rs. 746/-per month as per the assessment made by opposite party No. 2. The petitioner by letter dated 24. 6. 1931 requested opposite party No. 1 for re-assessment of fair rent and accordingly, opposite party No. 1 referred the matter to opposite party No. 2. Opposite party No. 2 reassessed the rent and fixed it at Rs. 1584/-per month effective from 15. 9. 1981 calculating at the rate of Rs. 6. 85 per square metre of plinth area. Opposite party No. 1 began paying rent at the enhanced rate for quite some time. By Annexure-4 opposite party No. 2 intimated opposite party No. 1 that the increase in the rent of the building in question after re-assessment was due to the increase in cost index. The re-assessment of rent cannot be made effective prior to the expiry of the period of five years from the date of the original assessment as per O. M. No. 15013 (1)/ 72-Vol. IV (III) dated 1. 9. 1982.

The Regional Director who has sworn the affidavit in reply to the allegations made in the writ petition has stated that the payment of rent at the enhanced rate was due to a mistaken impression that the Department is bound to pay the rent as re-assessed by opposite party No. 2. He has further stated that the rent fixed in Annexure-2 on the condition that the final decision would rest with the client. Department had escaped the notice of opposite party No. 1. It is thus stated that there has been no agreement to pay rent at the enhanced rate and opposite party No. 1 is not legally liable to pay rent at the rate fixed by the Central Public Works Department.

4. There is no dispute that the building of the petitioner was let out to opposite party No. 1 on a monthly rent of Rs. 746/-with effect from 15. 9. 1978. The said rent of Rs. 746/-was assessed by opposite party No. 2. It is also admitted that the petitioner moved opposite party No. 1 under Annexure-1 dated 24. 6. 1981 to make re-assessment of the rent as the stipulated rent, according to the petitioner, was less than the fair market rent. In Annexure-2 dated 2. 11. 1981 opposite patty No. 2 re-assessed the fair rant of the building in question at Rs.l534/-per month with effect from 15. 9. 1981. Opposite party No. 1 thereafter agreed to pay the rent at the enhanced rate as per the re-assessment by the Central Public Works Department and in fact made payment at that rate for the period from 15. 9. 1981 to the end of May 1982. But strangely enough opposite party No. 1 informed the petitioner in his communication dated 24. 12. 1982 (vide Annexure-5) that the enhanced rate of rent was not payable before expiry of five years from the date of the original assessment and, therefore, the rent already paid at the enhanced rate in excess of the stipulated rate would adjust the house rent bill from June, 1982 onwards. This was evidently due to the fact that opposite party No. 2 pointed out to opposite party No. 1 under Annexure-4 that the re-assessment of rent should be done only after expiry of five years from the date of the original assessment as per Govt. of India, (Directorate of Estates O. M. No. 15013 (1) 72-Vol. IV (III) dated 1. 9.1982). The learned Standing Counsel for the Central Government appearing for the opposite parties has strenuously argued that no fault can be found with opposite party No. 1 who paid the enhanced rent in pursuance of the re-assessment of rent made by the Central Public Works Department and he had no other alternative after receipt of Annexure-4 than to pay the rent at the original stipulated rate.

5. In our opinion, the higher rent demanded by the petitioner having been agreed to be paid and already implemented by actual payment by opposite party No. 1, the same cannot be unilaterally discontinued by opposite party No. 1 because of the office Memorandum of the Directorate of Estates, Government of India, referred to in Annexure-4. The enhancement of rent was not subject to any condition and opposite party No. 1 is not free to go back upon the commitment already made and implemented. That there should be no re-assessment by the Central Public Works Department before expiry of five years from the date of original assessment as per the directions of the Government of India in the Directorate of Estates Office Memorandum referred to above does not bind the petitioner nor can be pleaded as a justification against the enhancement of tent. The Central Public Works Department is merely an agency of the Government for assessment and re-assessment of fair rent, but not an authority whose decision in the matter of fixation of rent or the date from which the enhancement would take effect would bind the petitioner.

6. In the result, we would quash Annexure-4 canceling the re-assessment made by Annexure-2 and direct that the rent as per Annexure-2 shall be payable for the house in question. The writ application is, therefore, allowed, but in the circumstances of the case, there would be no order as to costs.

G.B. Patnaik, J.

7. I agree.


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