Jitendra Nath Dar vs Additional Distt.Magistrate and another

Hari Nath Tilhari, J.—By this writ petition, the petitioner has challenged the order dated 391993, passed by Sri Shahabuddin Mohammad, Additional District Magistrate (Civil Supplies), Lucknow, in Case No. 40 of 1991 (Udai Pratap Singh v. Jitendra Nath Dar) whereby the Additional District Magistrate (Civil Supplies Rent Control), Lucknow acting as District Magistrate passed an order declaring the accommodation in dispute to be vacant for the purpose of taking proceedings under Section 16(1) of the Act No. XIII of 1972.

The petitioner has sought the relief of issuance of a writ, order or direction in the nature of writ of certiorari for the quashing of the order dated 391993 as well as for quashing of notice dated 1411993, Annexure No. 16 to this writ petition. He has further claimed a writ of mandamus to the effect that a writ of mandamus be issued directing the opposite parties not to evict the petitioner from the premises in dispute bearing No. 62/32'', situate at Chitwapur (behind police out post) Lucknow, except in accordance with law.

The facts of the case, in brief, are that the opposite party No. 2 Sri Udai Pratap Singh purchased a house No. 62/32 and 62/32Ka, Chitwapur road, PoliceStation Husainganj, Lucknow from one Sri Mahendra Pratap Singh by and under the registered saledeed dated June 5, 1991 for his personal requirements.

The oppositeparty No. 2 after the purchase of the said building moved an application on 12th July, 1991 for release of the house No. 62/32, Chitwapur road, Lucknow including the one in occupation of the petitioner in that house. On the application for release being made under Section 16 (1) of U.P. Act No. XIII of 1972, a report was called for from Inspector, who after inspecting the house submitted his report on July 22, 1991. Sri Jitendra Nath Dar, the petitioner who was found at the time of inspection to be in use & occupation of the building in dispute made his statement in writing to the Inspector. After the submission of written report by Inspector, notice were issued to concerned persons.

After the service of the notice on 23101991 Sri Jitendra Nath Dar filed his objections and claimed that in the house in dispute, petitioner Jitendra Nath Dar continues to be in occupation as a tenant since 1961 on a monthly rental of Rs. 50/ and the accommodation was let out to him by the original owner of the house, namely, one Sri Brij Narain. He gave a detailed history of passing of the title from Brij Narain to Smt. Tej Kumari, i.e. alleged to have purchased that house from Shri Brij Narain vide the saledeed dated 471980, and it may be mentioned here that Smt. Tej Kumari was sister of the petitioner. Smt. Tej Kumari, according to petitioner''s case, on 30th April, 1985 had transferred by sale the aforesaid house to Shri Mahendra Pratap Singh and thereafter Sri M.P. Singh, transferred it to the present owner of the house i e. oppesite party No. 2 acquired the title by and under the saledeed dated 5691 executed by Sri M. P. Singh in favour of the present oppositeparty No. 2.

It had also been mentioned in the objection as has been stated by the learned Counsel for the petitioner that a Civil Suit was filed by the petitioner namely, Suit No. 441/85 Sri Jitendra Nath Dar VersusSmt. Tej Kumari, in which, Sri M. P. Singh lateron was impleaded as a defendant, for permanent injunction directing the defendants not to dispossess or evict the present petitioner Jitendra Nath Dar in any manner except in accordance with law and then Vth Additional Civil Judge by ex parte judgment and decree decreed the plaintiff''s claim for the injunction and directed the defendants of that suit not to interfere with the possession of the plaintiff of that suit i.e. present petitioner as well as not to oust him from the possession except in accordance with law from the accommodation in dispute.

In the objection, the defence was also taken on the basis of the provisions of Section 14 of U.P. Act No. XIII of 1972. Parties to the case before the Additional District Magistrate filed oral and documentary evidence the oral i.e. in the form of affidavit, and the documentary evidence. On behalf of the present petitioner i.e. objector, namely, the person in possession filed his own affidavit and the affidavits of Sri Ravi Nath, Gauri Shanker, Bechey Lal, Anand Awasthi and Kanhaiya Singh while on behalf of the landlord and other opposite parties, the affidavits of Jitendra Pandey and Rajiv Saxena and that of opposite parties were also filed.

After having considered the entire documentary and oral evidence produced by the owner and landlord as well as the person in occupation i.e. present petitioner, the District Magistrate recorded the following findings :

(a) That Sri Jitendra Nath Dar has failed to prove that he has been in occupation of the accommodation in dispute since 1961 as claimed by him. In other words, the present petitioner failed to prove his case that he has been in occupation of the house in dispute as a tenant since 1961.

(b) That Shri Jitendra Nath Dar, the present petitioner according to Addl. District Magistrate has been inoccupation of the house in dispute since 198085 and not from 1961 and that none of the owners and landlords of the building in question i.e. house No. 62/32 and 62/32Ka, Chitwapur, City Lucknow has admitted or accepted Sri Jitendra Nath Dar (the present petitioner) to be the tenant thereof. On behalf of any of them the petitioner was never accepted to be a tenant of the accommodation in dispute on record by any of the owners and so the finding has been recorded that the occupation of accommodation or building in dispute by Shri Jitendra Nath Dar was unauthorised one, and so it was a vacancy in the eye of law and, therefore, the vacancy has been declared and by Annexure No. 16 dated 1491993, the District Magistrate (Civil Supplies) has fixed on 27993 as the date for consideration of application for release. As I have mentioned earlier, by this writ petition, the petitioner has challenged both these Annexures, i.e. Annexure No. 1, namely, Order dated 391993 and notice Annexure No. 16 dated 1491993.

On behalf of the petitioner, Sri Tribhuwan Nath Saxena has appeared before me and argued the matter at length to the best of his ability. On behalf of the oppositeparties, Caveat had been filed by Pt. Durga Charan Mukharjee Advocate who has put in appearance and argued the matter.

On behalf of the petitioner, Sri T.N. Saxena submitted that the declaration of vacancy is illegal. He submitted that the petitioner is in occupation since 1961 as a tenant from the original owner Brij Narain and thereafter his possession has been accepted and even there has been a litigation between subsequent owner and the petitioner in which a decree has been passed accepting the possession of the petitioner to be valid and directing the defendants not to interfere with the petitioners'' possession and not to oust the petitioner from the premises of the house except in accordance with law and according to procedure prescribed by law. Sri Saxena submitted that in this view of the matter, the District Magistrate had no jurisdiction or authority to entertain this application and to declare the vacancy. Shri Saxena further submitted that in any case in view of the provisions of Section 14 of the U.P. Act No. XIII of 1972, his occupation and possession has been regularised as tenant of the accommodation and so the accommodation could not be declared to be vacant as on the date the question of vacancy was being considered as per report of the Inspector as well, the petitioner has been in occupation of the accommodation and under the Umbrella for shelter provided by Section 14 of the U.P. Act No. XIII of 1972.

On behalf of the opposite party No. 2 Pt. Durga Charan Mukharjee submitted that a clear cut finding of fact has been recorded by the District Magistrate to the effect that the petitioner has failed to establish his case or his allegation that he has been in occupation of the disputed house as a tenant since 1961. The District Magistrate has further recorded the finding to the effect that at the most, the petitioner continues in possession from the period commencing some time in between 198085 and not earlier and that none of the owners of the house aforesaid did accept the petitioner to be the tenant on his behalf of the accommodation or house in dispute and, as such, the Additional District Magistrate has correctly recorded the finding that possession of the petitioner is unlawful and without any authority and, therefore, there has been vacancy in the eye of law.

Shri Mukharjee submitted that these are the findings of fact and cannot be interfered with in exercise of jurisdiction under Article 226 of the Constitution of India. Shri Mukharjee further submitted that petitioner is not entitled to claim the shelter or benefit of the provisions of Section 14 of the U.P. Act No. XIII of 1972, and, as such, learned Counsel for the opposite parties Pt. D.C. Mukharjee submitted that petition is devoid of merits and is liable to be dismissed.

In rejoinder affidavit, Sri Saxena submitted that there is evidence that he had been residing in the house in dispute since 1961 and the petitioner''s marriage has been performed from the house in disputed and invited my attention to certain documents i.e. Annexure No. 9 to the writ petition.

The jurisdiction of this Court under Article 226 of the Constitution of India is confined primarily to the question of jurisdiction of the authorities, if the authority passing the order judicial or quasijudicial has acted in excess judicial or refused to exercise the jurisdiction vested or acted in breach of basic principle of law relating to exercise of jurisdiction or in violation of principles of natural justice the case can be said to be madeout for exercise of jurisdiction under Article 226 of the Constitution of India. In addition to it, if the order impugned can be shown and established to be vitiated by error of law apparent on the face of record as has been denned in a case of Syed Yaqub Versus Radha Krishnan, reported in (AIR 1964 Supreme Court 477) this Court may exercise jurisdiction under Article 226 of Constitution.

This Court may even interfere with a finding of fact, not as a matter of course, instead it and provided the finding is alleged to be vitiated by error of law apparent on record. I may make it clear that a finding of fact is not open to be challenged simply on the ground of wrong appreciation of evidence. It can only be challenged if it is based on inadmissible or irrelevant evidence or it has been arrived at after having ignored the material and admissible evidence or it has been arrived at by misapplication or wrong application of essential principles of law.

In the present case, no such thing or error has been pointed out by the learned Counsel for the petitioner as regards the findings recorded to the effect that the petitioner has been in the occupation of the building in dispute not since 1961 but from some time in between 198085 and none of the owners of the building in dispute has accepted the petitioner to be the tenant and that the petitioner''s occupation or possession has been that of an unauthorised occupant. This is a pure finding of fact and even if it be erroneous, this court cannot interfere with the same under Article 226 of the Constitution of India.

Annexure No. 9 which has been referred to by the learned Counsel for the petitioner does not improve the petitioner''s case in any manner. In this Certificate of marriage, the address of the petitioner is mentioned Mohalla Chitwapur, City Lucknow. This description by itself does not prove that petitioner has been in occupation of the house in dispute at the time of his marriage on 22111960. He might have been residing in Mohalla Chitwapur, Lucknow, no doubt, but house might be different. This document does not prove that petitioner was residing in this very house at the time of his marriage and, secondly, the petitioner''s case has been that since 1961, he is occupying this house as tenant and certificate of marriage indicates that the marriage had been performed in the year 1960 so this Certificate is all together irrelevant to prove the disputed question of fact or to show to the contrary. The query made by this Court whether the petitioner has got any allotment order in his favour on the basis of which it could be said that he is in occupation of the house in dispute under an allotment order, Sri Saxena very fairly and honestly submitted that his client has got no allotmentorder in his favour nor has it been asserted in petition itself. That possession or occupation of accommodation by petitioner without any allotment order in his favour either under U.P. Act No. III of 1947 or under the U.P. Act No. XIII of 1972 cannot be deemed to be valid one so as to debar the District Magistrate from considering the accommodation for the purpose of release or allotment under Section 16 of the U.P. Act No. XIII of 1972 in view of provisions of law contained in the U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972 namely Sections 11 and 13 of the Act.

As regard the last submission made by Shri T.N. Saxena, for the petitioner that when he has been in occupation of the house the date. the release application was made and he was residing therein under the shelter of Umbrella provided by Section 14 of U.P. Act No. XIII of 1272. It reads as under :

Section 14 of U.P. Act No. XIII of 1972

"14. Notwithstanding anything contained in any general order made under subsection(2) of section 7 of the old Act, any tenant in occupation a building with the consent of the landlord immediately before the commencement of this Act, not being a person against whom proceedings under Section 7A of the old Act are pending immediately before such commencement, shall be deemed to be in authorised occupation of such building."

Section 14 of the Act No. XIII of 1972 as amended by U.P. Act No. 28 of 1976 reads as under :

"14. Regularisation of occupation of existing tenants

Notwithstanding anything contained in this Act or any other law for the time being in force, any licence (within the meaning of Section 2A) or a tenant in occupation of a building with the consent of the landlord immediately before the commencement of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976, not being a person against whom any suit or proceeding for eviction is pending before any Court or authority on the date of such commencement shall be deemed to be an authorised licensee or tenant of such building."

In the original Act, the object of the provision in Section 14 was regularisation of those tenancies which had been created by landlords without allotment orders except in respect of the tenants against whom proceedings under Section 7A of the old Act were pending at the commencement of the new Act. For some reasons disclosed in the statement of objects and reasons appended to the amending bill of 1976 which became the U.P. Act No. 28 of 1976, the facility of regularisation was extended even to the cases of illegal leases and licences in respect of buildings granted by landlords to this extent that all such cases upto the date of commencement of the said Act 28 of 1976 (which came into force from 571976) were similarly regularised by virtue of the provisions contained in the substituted section 14, and they would be deemed to be persons in authorised occupation as tenants or licensees, as the case may be, if the requirements of the section are fulfilled.

As per reading of the section before a person can claim the benefit of the provisions of section 14 he has to establish the following necessary ingredients :

(i) That the person, concerned has been in occupation of the building in question immediately before the date of commencement of U.P. Urban Building Regulations of Letting, Rent & Eviction (Amendment) Act, 1976 i.e. U.P. Act No. 28 of 1976.

(ii) That his occupation of the building on the aforesaid date has been as a tenant or licensee and it was with the consent of the landlord.

(iii) That no proceeding against such person had been pending for eviction in any Court of law or before any authorities on such date of commencement. Until and unless these ingredients are established by the claimant, the claimant claiming benefit of Section 14 cannot get the shelter of the Umbrella of Section 14.

In the present case, the clear finding of fact has been recorded by the authorities that possession of occupation of the present petitioner in the building in dispute commenced during the period in 198085 and not earlier i.e. not in 1976 when this is finding atleast to the effect that petitioner was not in occupation of the accommodation in dispute on the date of commencement of U.P. Act No. 28 of 1976 the petitioner cannot be held to be in possession valid in law nor can he get protection of Section 14 of the Act.

In this view of the matter when this basic ingredient is absent, the petitioner is not entitled to claim the benefit of Section 14 of U.P. Act No. XIII of 1972.

Thus considered, in my opinion, order impugned does not suffer from any error of jurisdiction nor does it suffer from any error of law apparent on the face of record. The petition, as such, is devoid of any merit and, such, is dismissed. Costs of the petition are made easy.

The writ petition having been dismissed the application for interimrelief is also dismissed. It is open to the District Magistrate to proceed with the consideration for hearing etc. of the release application as fixed by him vide Annexure No. 16 dated 1491993.