@JUDGMENTTAG-ORDER
S.P. Srivastava, J.@mdashBeing aggrieved by an order passed by the Rent Control and Eviction Officer, Saharanpur, whereunder the said
authority has refused to recall the order dated 24-7-1982 fixing Rs. 50/- per month as the presumptive rent for the accomodation in dispute and to
refix the said rent, the Petitioner landlord has approached this Court for redress seeking the quashing of both the orders.
2. The facts shorn of details and necessary for the disposal of this case are that the premises in dispute was allotted In favour of the tenant
Respondent vide the allotment order. The Rent Control and Eviction Officer, however failed to fix the presumptive rent as envisaged u/s 16(9)(b)
of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as'' Act). This obviously led to the
omission of any presumptive rent being mentioned in formal allotment order issued in form-B. Later on by an order dated 24-7-1982 the Rent
Control and Eviction Officer fixed an amount of Rs. 50/- per month as presumptive rent in respect of the accommodation In dispute. Coming to
know of this order, the landlord Petitioner moved an application dated 20-8-1992 praying that the order dated 24-7-1982 fixing presumptive rent
be recalled and the same be refixed after affording an opportunity of hearing to the landlord. In the aforesaid application, it was pointed out that the
out going tenant who had been occupying the accommodation in dispute was paying Rs. 425/- as rent in respect of the said accomodation and in
the circumstances, the presumptive rent could not have been fixed at figure less than 531.25/- per month. It was also pointed out in the said
application that the accommodation in question was a flat rent for the residence of the officers and had three living rooms, one store, one verandah,
kitchen, bath room, flush latrine etc. with all modern facilities. Alongwith this application, the landlord filed affidavits and other evidence In support
of his case During the tendency of the aforesaid application a revision filed against the order dated 20-7-1982, was dismissed on 16-4-1985. The
application referred to above, filed by the landlord came up for consideration thereafter and was dismissed on 15-7-1986 on the ground that in
view of the dismissal of the revision directed against the order of allotment dated 20-7-1982, the said allotment order could not be amended and
that the presumptive rent had been fixed after taking into account the report of the Rent Control Inspector, the conclusion where of had been
published on the notice board of the office of the District Magistrate in the proceedings under Rule 8 of the Rules framed under the Act, against
which no objection had been filed.
3. I have heard Sri. R.K. Jain, learned Senior Advocate, appearing for the Petitioner and Sri. H.S. Nigam. learned Counsel representing the tenant
Respondent and have further carefully perused the record.
4. The learned Counsel for the Petitioner has urged that before fixing presumptive rent, the Rent Control and Eviction Officer ought to have
afforded an opportunity of bearing to the Petitioner which was not done. It has further been asserted that the conclusions of the inspection report,
which is pasted on the notice board in the proceedings for ascertainment of vacancy envisaged under Rule 8 of the Rules framed under the Act can
not be deemed to be a notice of a proceedings relating to fixation of presumptive rent. I this connection, it may be noticed that while issuing an
order of allotment, the District Magistrate has to fix ""presumptive rent"" which is considered prima facie reasonable having regard to the provisions
of Sub-section (2) and 2-A of Section 9, provides that such amount shall not be less than the amount of rent which was payable by the last tenant
if any. The provisions contained in Section 16(10) contemplates that in the proceeding regarding fixation of presumptive rent, the District
Magistrate may not take any evidence for holding any format enquiry and that the, amount mentioned in the allotment order as presumptive rent
shall be subject to any agreement in writing between the parties or to any subsequent determination of standard rent after formal enquiry u/s 9. The
liability to pay the presumptive rent continues to remain fast ended on the tenant until It is so revised by agreement or by an order u/s 9 of the Act.
An order revising the presumptive rent passed u/s 9, of the Act however, relates back to the date of the commencement of the tenancy.
5. Since the presumptive rent as mentioned in the allotment order is to be at a figure which the District Magistrate prima fade considers reasonable
and in the proceedings for such fixation he is not required to take any evidence or hold any formal enquiry, the question of affording an opportunity
of heating to the landlord in these proceedings is not at alt necessary. This position is further clear from the use of the word'' primaficea "" used in
the explanation to Section 16(9) of the Act and further from the fact that the District Magistrate is not required to take any evidence or hold any
formal enquiry before fixing of such presumptive rent. The right of the landlord to get the rent revised and mistake, if any, corrected in the
proceedings u/s 9 of the Act stands secured under the provisions contained in Section 16 (9) and (10) of the Act The assertion of the learned
Counsel for the Petitioner therefore, that under the scheme envisaged u/s 16 (9) and (10) of the Act, the landlord ought to have been afforded an
opportunity of hearing before fixing the presumptive rent is totally misconceived and is not liable to be accepted
6. In the present case, the view of the Rent Control and Eviction Officer to the effect that the order dated 24-7-1982 fixing presumptive rent got
merged In the order dismissing the revision directed against the order dated 20-7-1982 is totally misconceived. No presumptive rent had been
fixed in the order dated 20-7-1982. It is this omission which had resulted in initiating the fresh proceedings for fixation of presumptive rent in which
the order dated 24 7-1982 had been passed The presumptive rent having been fixed by a separate order, the dismissal of the revision directed
against the order dated 20-7- 1982, in the circumstances of the present case, could not result in the merging of the order fixing presumptive rent
dated 24-7-1982 in the order dismissing revision dated 16-4-1985 The Rent Control and Eviction Officer has further erroneously presumed that
the landlord ought to have put forward his case about the quantum of rent in the proceedings for ascertainment of the vacancy under Rule 8 of the
Rules framed under the Act The proceedings contemplated under Rule 8 of the Rules are confined to the question relating to the ascertainment of
the vacancy in respect of an accommodation The objection, if any1 Which could be filed in these proceedings are expected to be confined to the
question relating to the occurrence and non occurrence of the vacancy in respect of the accomodation.
7. In the totality of the circumstances of the present case. I am of the view that in the interest of justice, it is necessary that Rent Control and
Eviction Officer, Respondent No. 1 be directed to consider the application dated 20-8-1982 as an application for determination of standard rent
envisaged u/s 9 of the Act after affording the landlord an opportunity of amending the same, if found necessary.
8. In the result this writ petition succeeds in part. The order dared 15-7-1986, a true copy of which had been filed as Annexure-8 to the writ
petition is quashed. The Rent Control and Eviction Officer, Saharanpur, Respondent No. 1 is directed to decide the application of the landlord
dated 20-8-1982 afresh in accordance with the law, treating the same as an application envisaged u/s 9 of the Act after affording an opportunity to
the parties to amend their pleadings if necessary. The parties will be at liberty to lead evidence in support of their respective cases and the Rent
Control and Eviction Officer shall dispose of the said application as expeditiously as possible after affording the opportunity of tearing to the parties
concerned.