Smt. Darshan V. Union Of India Through Secy. Revenue Ministry Of Finance

CLRE/54/2011

AI Insights

The case revolves around a dispute concerning the quantum of damages awarded for the unlawful retention of a rented property. Smt. Darshan, the revisionist, had rented her property to the respondents, which they continued to occupy even after the lease expired. She filed an SCC Suit No. 61 of 2009 seeking ejectment and damages. The lower court awarded damages of Rs 20,000 per month, rejecting the higher amount claimed based on a registered valuer's report. The revisionist contested this decision, leading to the current revision proceedings where the court found that the lower court had not adequately justified its departure from the valuer's assessment and had not properly considered the expert's opinion.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 820179 (HC-LUCKNOW)
• Appeal Type: Others
• Pronouncement Date: 28-09-2022
• Assessment Year: misc
• Other Referred Cases: Nelson Fernandes and others vs Spl. L.A.O. South Goa and others, Smt. Padma Tandon vs District Judge, Allahabad and others, Special Land Acquisition Officer & Anr. v. Sri Siddappa Omanna Tumari & Ors., Union Bank of India v. Official Liquidator, H.C. of Calcutta & Ors.
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: SURYA BHAN PANDEY; AMBRISH RAI; DIPAK SETH; VARUN PANDEY
• Assessee Lawyers: H N TIWARI
• Keywords: Damages; Ejectment; Lease agreement; Registered Valuer; Valuation report

Judgement Text

"Court No. - 8 Case :- CIVIL REVISION No. - 54 of 2011 Revisionist :- Smt. Darshan Opposite Party :- Union Of India Through Secy. Revenue Ministry Of Finance Nor Counsel for Revisionist :- H.N.Tiwari Counsel for Opposite Party :- Surya Bhan Pandey,Ambrish Rai,Dipak Seth,Varun Pandey Hon'ble Abdul Moin,J. 1. Heard learned counsel for the revisionist, Shri Ambrish Rai as well as Shri Dipak Seth, learned counsels for the respondents. 2. The instant revision has been filed praying for the following main relief(s): \"It is therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to set aside the judgment and decree dated 24.2.2011 in part to the extent it denies the damages of Rs 40,000/- P.M. and interest @18% thereon, passed by Judge Small Causes Court/Special Judge(Ayurved Scam Matter) Additional District Judge, Lucknow in SCC Suit No.61 of 2009; Smt. Darshan Versus Bharat Sangh and others, contained with this revision only and to direct the respondent to pay the damages as claimed by revisionist Rs 40,000/- per month with interest @18% P.A. thereon to the revisionist from the month of September 2008 till vacation of the House in question and allow this Revision to this extent only.\" 3. The case set forth by the revisionist is that the house in dispute had been given to the respondent no. 2 on rent on 08.07.1998. A lease agreement had been executed for a period of 5 years upto 07.04.2003 and the agreed rent was Rs.14,673/- per month. Despite the lease having come to an end, the respondents did not vacate the premises in question. However the revisionist continued to accept the rent, as had been agreed to in terms of the lease agreement which was accepted upto September 2008. As the respondents were not vacating the premises in question, consequently the revisionist was constrained to file an SCC Suit No. 61 of 2009 in re: Smt Darshan vs Bharat Shangh and others before the court below praying for ejectment and damages @40,000/- per month with interest. 4. So far as the instant revision is concerned the same is only confined to the quantum of damages as has been awarded by the court below vide the impugned judgement and order dated 24.02.2011 in as much as it is admitted that the premises in question have already been vacated by the respondents. 5. Learned counsel for the revisionist contends that the court below has passed the impugned judgement and order dated 24.02.2011 whereby so far as the damages were concerned it rejected the registered valuers' report on the basis of which damages of Rs 40,000/- per month had been claimed by the revisionist and the court on its own accord has fixed the damages @ Rs 20,000/- per month. Learned counsel for the revisionist contends that the order impugned would indicate the damages of Rs 40,000/- as has been claimed by the revisionist were made as point no. 2 by the court below while deciding the matter. The court has considered the valuers' report but has rejected the same on the ground that (a) the report does not appear to be a public document, (b) the report of the valuer is based upon his own opinion and cannot be considered to be final and (c) the report is not corroborated from the CPWD or collectorate department. 6. The argument of learned counsel for the revisionist is that when he had filed the registered valuers' report, a copy of which has been filed as annexure 4 to the revision, and the valuer had also been examined by the court below as such rejection of his report in such a cursory manner could not have been done, more particularly when the respondents had failed to produce any evidence to controvert the registered valuers' report. In this regard reliance has been placed on the judgement of Hon'ble the Apex Court in the case of Nelson Fernandes and others vs Spl. L.A.O. South Goa and others reported in AIR 2007 Supreme Court 1414 which has been referred to by this Court in the case of Smt. Padma Tandon vs District Judge, Allahabad and others reported in 2009(1) ALJ 54. 7. Placing reliance on the judgement of Nelson Fernandes (Supra) learned counsel for the revisionist argues that the court below could not have rejected the report of the registered valuer and once the report had been given by an expert as such credence should have been given by the court below to the report in the absence of anything contrary being brought by the respondents. He also argues that on the same analogy, though the court below has fixed the damages at Rs 20,000/- per month yet it has failed to give any findings as to the basis of fixing the said damages at Rs 20,000/- per month. 8. Another argument is that though the revisionist was claiming damages yet the court below has proceeded as if the rent was being claimed as would be apparent from the perusal of discussion of point no. 2. Thus he contends the court below has patently erred in rejecting the claim of damages of Rs 40,000/- as claimed by the revisionist and fixing the damages at Rs 20,000/- per month. 9. On the other hand, Shri Dipak Seth, learned counsel appearing for the respondents no. 2 and 3 submits that while filing the plaint no evidence was led by the revisionist to indicate as to on what basis he was claiming damages of Rs 40,000/- per month. He also contends that once a registered valuer had been engaged by the revisionist herself for the purpose of preparation of the report as such the presumption would be that the registered valuer would be giving a report in favour of the revisionist and the said report could not thus be considered to be an independent evaluation so far as the damages are concerned. 10. It is also argued that a perusal of the report would indicate that no basis had been indicated by the alleged expert as to why the fair market rent of the property in dispute is sought to be enhanced 7 % in each and every year to which the report pertains to and as to the basis of the said enhancement as the same does not come out from the perusal of the said report. 11. It is also argued that no other other evidence, with the exception of the registered valuers' report, was ever led by the revisionist in support of her claim of damages of Rs 40,000/- per month. 12. Heard learned counsel for the parties and perused the record. 13. From perusal of the record it emerges that a SCC suit was filed by the revisionist in the year 2009 praying for ejectment of respondents no. 2 and 3 from the house in dispute as well as praying for damages and other reliefs. Admittedly, the premises in question have already been vacated by the respondents. The only dispute which has been raised in the instant revision is the quantum of damages which has been awarded by the court below vis a vis the damages as had been prayed by the revisionist i.e. the court below has awarded the damages of Rs 20,000/- per month vis a vis the claim of the revisionist which is Rs 40,000/- per month. 14. Admittedly, the claim for damages was based on the report of the registered valuer but the report of the registered valuer has not found favour with the court below as per the point no. 2 of the impugned judgement dated 24.02.2011 on the ground that the CPWD or the Collectorate department were the competent offices to assess the reasonable and proper rent of the building and that the certificate / report obtained from the registered valuer does not appear to be a public document. It has further been observed by the court below that the report of the valuer is based upon his own opinion and cannot be considered to be final. At the same time, the court below was of the view that the damages of Rs 20,000/- per month should be awarded to the revisionist. 15. The rejection of the report of the registered valuer by the court below appears to have been done in a cursory manner in as much as it does not comes out from the perusal of the said judgement, more particularly from the consideration of point no. 2 as considered by the court below, as to from where the opinion of the CPWD of the Collectorate Department was required to be obtained and as to how the said two offices have been said to be the competent office to assess the reasonable and proper rent of the building. Obviously once the report had been requisitioned by the revisionist as such the registered valuer has given his report on the basis of the material which was before him including consideration of the value of land as per the rate list fixed by the District Magistrate, Lucknow and also taking into consideration the construction as has been found in the building in question. Thus, it is not that the report of the registered valuer was not having any base. 16. Even otherwise, admittedly there was no contrary evidence or document which was produced by the respondents to controvert the report of the registered valuer. Thus, in the absence of any rebuttal to the said report of the registered valuer, the report of the registered valuer could not have been rejected by the court concerned in an abstract manner. Further, the court below has itself proceed to fix the damages at Rs 20,000/- per month. It is not known nor is reflected from the material on record as to on what basis the said damages have been fixed by the court and as to what prevailed upon the court below to fix the aforesaid damages. 17. In this regard though the learned counsel has placed reliance on the judgement of Hon'ble the Supreme Court in the case of Nelson Fernandes (Supra) and the same pertains to the land acquisition act yet the judgement has found favour with this Court in the case of Smt. Padma Tandon (supra) wherein after referring to the Apex Court judgement in the case of Nelson Fernandes (Supra) the court has held as under: \"42. For determination of the market value of the structure there are two reports of the experts. Section 45 of the Indian Evidence Act deals with the opinion of experts. It postulates that when the Court has to form an opinion upon a point of foreign law, or of science or art or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art or in questions as to identify of handwriting or finger impressions are relevant facts. It further says that such persons are called ''experts'. 43. Valuation of a property is considered to be a science and, therefore, a person well versed in the science of valuation is an ''expert'. The Legislature, in various legislations, has accepted the role of valuers for evaluation of properties (e.g. the Wealth- tax Act, Income-tax Act). Similarly, the Courts have, time and again, accepted the role of valuers as experts. However, while accepting the opinion of valuers, being valuation reports, the Courts have evolved certain salutary principles of care and caution. 44. In the Special Land Acquisition Officer & Anr. v. Sri Siddappa Omanna Tumari & Ors., reported in AIR 1995 SC 840 the Supreme Court considered whether the Court is bound to act upon the report of an expert produced before the Court regarding the market value of a land and it was observed: \"..........No doubt, court can act on such expert evidence in determining the market value of the acquired lands, but the court having regard to the fact that experts will have prepared the valuation reports in the court and will depose in support of such reports, at the instance of the claimants, must with care and caution examine such reports and evidence given in support thereof. Whenever valuation report made by an expert is produced in court, the opinion on the value of the acquired land given by such expert can be of no assistance in determining the market value of such land, unless such opinion is formed on relevant factual data or material, which is also produced before the court and proved to be genuine and reliable, as any other evidence. Besides, if the method of valuation of acquired land adopted by the expert in his report is found to be not in consonance with the recognised methods of valuation of similar lands, then also, the opinion expressed in his report and his evidence can be of no real assistance to the court in determining the market value of the land. Since the exercise of which will have been done by the expert is arriving at the market value of the land in his report on the basis of factual data bearing on such valuation, will be similar to that to be undertaken by the court. In determining the market value of the acquired land, it can no doubt receive assistance from such report, if it is rightly done and the data on which the report is based is placed before the court and its authenticity is established. Therefore, when the valuation report of an acquired land is made by an expert on the basis of prices fetched or to be fetched by sale deeds or agreements to sell relating to the very acquired lands or the lands in the vicinity need arises for the court to examine and be satisfied about the authenticity of such documents and the truth of their contents and the normal circumstances in which they had come into existence and further the correct method adopted in preparation of the report, before acting on such report for determining the market value of the acquired land. The opinion expressed in the report that the author of the report has made the valuation of the acquired lands on the basis of his past experience of valuation of such lands should never weigh with the court in the matter of determination of market value of the acquired lands, for such assertions by themselves cannot be substituted for evidence on which it ought to be based and the method or valuation adaptable in such report. Therefore, when a report of an expert is got produced by a claimant before the court giving market value of the acquired lands, the court may, choose to act upon such report for determination of the amount of compensation payable for the acquired lands, if the data or the material on the basis of which such report is based in produced before the court and the authenticity of the same is made good and the method of valuation adopted therein is correct.\" (emphasis supplied) 45. In Union Bank of India v. Official Liquidator, H.C. of Calcutta & Ors., (2005) 5 SCC 274, the Supreme Court was emphasized that \"...........it is the duty of the court to apply its mind to the valuation report for verifying whether the report indicated reasonable market value of the property to be auctioned, even if objections are not raised.\" 46. In Nelson Fernandes & Ors. v. Special. Land Acquisition Officer AIR 2007 SC 1414, the Supreme Court observed that the report submitted by a Valuer should be appreciated by the Courts : \"..............No reason whatsoever was given by the Reference Court or by the High Court as to why the report of the valuer and her evidence cannot be relied on. In our opinion, the compensation awarded by the High Court had no basis whatsoever and was not supported by cogent reasons and that it did not consider the future prospect of the development of the land in question............. The High Court also erred in passing the order by holding that the opinion of the government approved valuer was not based on any opinion method of valuation but solely on the basis of facilities available to the land. In our view, the High Court ought to have appreciated that the government approved valuer is an expert in her field and the opinion of such an expert ought not to have been rejected shabbily.\" (emphasis supplied) 47. Thus, the determination of the value of the structure standing on the land has to be done in the light of the principles enunciated above. The Appellate Court committed an illegality in taking the average of the value indicated by the landlady and the tenant. It needs to be mentioned that the Appellate Court has discarded the said report of the expert for determination of the value of the structure on two basis namely that the age of the building was more than 73-74 years and it was not clear as to who had raised the new construction in the year 1954 and there was a slight discrepancy of 9 sq. metres regarding the total area of the land since the report records it as 16,640 sq. metres while it was 16,631 sq. metres even according to the landlady. The report submitted by the expert should not have been discarded on these two grounds because the report does take into consideration the age of the building and a slight discrepancy of 9 sq. metres which is proximately .05% cannot be made a ground to reject the report. Thus, the market value of the structure has also to be determined again.\" 18. Accordingly, keeping in view the aforesaid discussion the revision is partly allowed. The findings of the court below pertaining to award of damages of Rs 20,000/- per month is set side. The court below is required to consider the quantum of damages as have been prayed for by the revisionist in accordance with law keeping in view the material on record and the aforesaid discussion after hearing all the parties concerned in accordance with law. 19. Considering that the matter pertains to the year 2009 as such the order shall be passed within a period of three months from the date of receipt of certified copy of this order. Order Date :- 28.9.2022 J.K. Dinkar Digitally signed by JESHU KUMAR DINKAR Date: 2022.09.30 16:36:04 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench "