Jagdish Narain Mishra vs Special Judge,E.C.Act & Ors.

Sudhir Narain, J.—The petitioner seeks writ of certiorari quashing the order dated 2181990 passed by the Prescribed Authority releasing the accommodation in question in favour of landlordrespondent Nos. 3 and 4 under Section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) and the order dated 2651992 passed by the Appellate Authority, respondent No. 1, dismissing the appeal against the aforesaid order.

Respondent Nos. 3 and 4 are coowners and landlords of House No. 120/562, Shivaji Nagar, Kanpur. The petitioner was let out the ground floor portion of the disputed house consisting of four rooms besides the amenities attached to it. Respondent Nos. 3 and 4 are residing on the first floor of the same house consisting of four rooms on the first floor and a Dochhatti and a room on the second floor. They filed application for release of the accommodation in question u/s 21(1)(a) of the Act in the year 1986 on the allegation that their son Tribhuwan Kishore Tiwari, who was employed at B.I.C. Sugar Mills, Chhapra, Bihar, has been transferred to Kanpur. He occupied two rooms on the first floor. His family consists of his wife and a daughter. Their second son Ajai Kishore Tiwari is occupying two rooms on the first floor. His third son Uma Shankar Tiwari is living in Dochhatti and a small room. Respondent Nos. 3 and 4 are aged and also feel difficulty in residing on the first floor and second floor. Their daughter, Savita, also comes and resides in the accommodation. The accommodation with them is hardly sufficient for their need. It was further stated that the wife of the tenantpetitioner has acquired House No. 117/L/17A, Kaka Dev, Kanpur and the petitioner can shift to the said accommodation.

The petitioner contested the said application. It was stated that one V.S. Mittal had vacated the accommodation in the year 1985 and one Japan Banerji vacated the accommodation in the year 1987 and those accommodations are sufficient for the family members of the landlord. It was further stated that Sri Tribhuwan Kishore Tiwari is not residing in the disputed accommodation.

The Prescribed Authority allowed the application on the finding that Tribhuwan Kishore Tiwari has been transferred from B.I.C. Sugar Mills, Chhapra, Bihar to Kanpur and is residing with the landlords. It was further found that Sri V.S. Mittal vacated the accommodation in the year 1985 but the same accommodation, consisting of two rooms, its now in occupation of Ajai Kishore Tiwari. The accommodation occupied by Tapan Banerji was vacated in the year 1987, which consisted of Dochhatti, was in occupation of Uma Shankar Tiwari, son of the landlords. It was further found that the petitioner had acquired House No. 117/L/17A, Kaka Dev, Kanpur in the name of his wife in the year 1983 in vacant state and thereafter it was let out by the wife of the petitioner in July, 1983 for four years and the period expired on 31st July, 1987. The lease was renewed for further five years which was to expire on 3171992. It was held that the petitioner has no right to raise objection in view of Explanation (i) to S. 21(1) of the Act. The release application was allowed by the Prescribed Authority by order dated 2181990. The petitioner preferred an appeal against the said order and the Appellate Authority has dismissed the appeal by order dated 2651992. These orders have been challenged in the present writ petition.

I have heard Sri A.N. Sinha learned counsel for the petitioner and Sri K.L. Grover learned Counsel for the respondents.

Learned counsel for the petitioner submitted that one V.S. Mittal was tenant on the first floor accommodation. He was in occupation of two rooms and vacated the same but the landlord has not disclosed this fact in his application. Similarly one Tapan Banerji was tenant in Dochhatti of the disputed accommodation who has also vacated. A perusal of the order of the prescribed authority indicates that these facts, were taken into consideration and it was found that Sri V.S. Mittal was in occupation of two rooms and after his vacation in the year 1985 the same is in occupation the son of the landlord. Similarly Tapan Banerji was tenant of a small Dochhatti and after his vacation the same is in occupation of another son of the landlord.

The petitioner is a tenant of the ground floor of House No. 120/562, Shivaji Nagar, Kanpur consisting of four rooms. Similarly on the first floor there are only four rooms which are in occupation of the landlord and their sons. It is not the case of the petitioner that more than four rooms are existing on the first floor and there is some additional accommodation which is in occupation of the landlords. The Rent Control Inspector had submitted a report in the year 1988 which has been taken into account by the Prescribed Authority. The family of the landlord consists of himself (respondent No. 3), his wife (respondent No. 4), two married sons Tribhuwan Kishore Tiwari and Ajai Kishore Tiwari who have their own children and another son Uma Shankar Tiwari. Respondent Nos. 3 and 4 had hardly sufficient accommodation for their residential purpose. They are aged also. The finding recorded by the Prescribed Authority that their need is bona fide and this finding as affirmed by the Appellate Authority does not suffer from any illegality.

The next submission of the learned counsel for the petitioner is that the application filed by respondent Nos. 3 and 4 under Section 21 (1) (a) of the Act was not maintainable as the accommodation was let out to the petitioner by them in the year 1981 after the enforcement of U.P. Act No. XIII of 1972.

The petitioner has not taken this plea in this objection. On the other hand in Paras 2 and 3 of the written statement it was admitted that the petitioner is a tenant of the disputed accommodation. Even in the present writ petition there is no averment that as the letting was done in the year 1981 he was unauthorised occupant and as such the application under Section 21(1)(a) of the Act was not maintainable. The question depends upon the year, when it was let out and secondly when it was constructed. The Prescribed Authority could have considered this aspect if this question would have been raised before the Prescribed Authority. The petitioner is not entitled to raise this question for the first time in the writ petition. The petitioner had admitted that he is a tenant and an application under Section 21 (l)(a) of the Act is maintainable against a tenant.

Learned counsel for the petitioner placed reliance upon Laxman Prasad Richaria v. IV Additional District Judge, Hamirpur and others, 1990 (1) ARC 497, wherein it was held that a person in possession without any order of allotment passed in his favour under Section 16 of the Act by the Rent Control and Eviction Officer shall be treated as an unauthorised occupant. In this case an application under Section 21 was filed against the tenant. He raised an objection that as there was no allotment order in his favour, he shall be treated as unauthorised occupant and application under Section 21 of the Act was not maintainable. The application was dismissed by the Appellate Authority. The landlord thereafter filed an application for release under Section 16(1)(b) of the Act treating the tenant as unauthorised occupant. The tenant at this time raised an objection that he is a tenant. The court held that a tenant cannot take a different stand which he had already taken in another proceedings. In that case a plea was raised before the authority concerned. In the present case the petitioner had not taken any plea before the Prescribed Authority. It is not open to the petitioner to raise this question in the writ petition for the first time.

Learned Counsel for the petitioner has placed reliance upon the decision Nootan Kumar and others v. II Additional District Judge, Banda, 1993 (2) ARC 204, wherein it was held that if the agreement is void it is unenforceable. It is urged that an order passed under Section 21 of the Act against an unauthorised occupant shall be treated as void and unenforceable and he can raise this objection at any time before any authority. In Sunder Das v. Ram Prakash, 1977 A.R.C. 244, it was held that if the decree is null and void, its nullity can be set up at any time before any court and even at the stage of execution or even in collateral proceeding.

These decisions have no application to the facts of the present case. The petitioner having admitted himself to be a tenant in the proceeding under Section 21 of the Act, the application was maintainable before the Prescribed Authority. The question regarding validity of tenancy was not raised even before the Prescribed Authority or the Appellate Authority which requires investigation of the questions of fact. The application was filed in the year 1986. In case the petitioner himself stated that he was unauthorised occupant in view of the fact that there was no allotment order, it was open to the landlord to file an application for release under Section 16(1)(b) of the Act. The petitioner in these circumstances could not be permitted to raise this objection here for the first time. It also involves question of fact as to when the disputed shop was constructed. The petitioner has not taken as a ground in the writ petition that the application under Section 21(1) (a) of the Act was not maintainable as he was an unauthorised occupant.

There is another aspect of the matter. It is not denied that the wife of the petitioner acquired House No. 117/L/17A which consisted of three bedrooms besides other amenities. It was let out by the wife of the petitioner to M/s Lohia Machines in July 1983 for a period of four years. The term expired on 31st July, 1987. Respondent Nos. 4 and 5 filed an application for release against the petitioner under Section 21(1)(a) of the Act on 9th June, 1986. The wife of the petitioner renewed the lease in favour of M/s Lohia Machines in June, 1987 for a period of five years and the lease of five years also expired on 9th July, 1992. As the wife of the petitioner had acquired an accommodation in a vacant state the objection of the petitioner was not maintainable in view of the Explanation (i) of Section 21 (l)(a) of the Act which provides that where the tenant or any member of his family has built or has otherwise acquired in a vacant state or has got vacated after acquisition a residential building in the same city, municipality, notified area or town area, no objection by the tenant against an application under this subsection shall be entertained.

The Prescribed Authority further found that the petitioner has an alternative accommodation and could shift in the said accommodation. Learned Counsel for the petitioner in the end prayed that some time may be granted to vacate the accommodation in question. Considering the facts and circumstances of the present case the petitioner is granted six months time to vacate the accommodation in question provided he gives a written undertaking on affidavit before the Prescribed Authority, respondent No. 2, within two weeks from today that he would vacate the accommodation in question within the time granted by this Court and will hand over its peaceful possession to respondent Nos. 3 and 4.

The writ petition is dismissed subject to the above observations.