Nirmal Chandra Tandon vs Additional District Judge,Court No.3,Kanpur Nagar & Ors.

S.P. Mehrotra, J.—Supplementary affidavit filed today on behalf of the petitioner, be taken on record.

The petitioner has filed this writ petition under Article 226 of the Constitution of India, inter alia, praying for quashing the order dated 2492002. (Annexure9 to the writ petition) passed by the learned Additional District Judge, Court No. 3, Kanpur Nagar (respondent No. 1).

The dispute relates to a portion in premises No. 119/353, Ram Nagar, Police Station, Fazalganj, Kanpur Nagar. The said portion has, hereinafter, been referred to as �the disputed portion�.

From the perusal of the allegations made in the writ petition and annexures thereto as well as the supplementary affidavits filed on behalf of the petitioner, it appears that Palakdhari was the tenant in the disputed portion.

On an application filed by the petitioner for allotment of the disputed portion, the Rent Control Inspector submitted his report dated 1481998, inter alia, stating that the said Palakdhari could vacate the disputed portion in near future.

It further appears that on 16101998, the said Palakdhari gave an affidavit in the proceedings before the Rent Control and Eviction Officer, Kanpur Nagar, inter alia, stating that he was voluntarily vacating the disputed portion, and was going to his village.

Thereafter, it appears the Rent Control and Eviction Officer/A.C.M. (I), Kanpur Nagar by the order dated 30101998 declared vacancy in respect of the disputed portion. A copy of the said order dated 30101998 has been filed as Annexure1 to the writ petition.

Thereafter, it appears, the respondent No. 4 herein filed an affidavit before the Rent Control and Eviction Officer/A.C.M. (1), Kanpur Nagar, inter alia, claiming himself to be the landlord of the disputed portion, and stating that he had no objection, if allotment order was passed in favour of the petitioner (Nirmal Chandra Tandon). By the order dated 7121998, the disputed portion was allotted in favour of the petitioner. A copy of the said order dated 7121998 has been filed as Annexure2 to the writ petition.

It appears that on 831999, the respondent No. 3 filed an application under Sections 16 (5) (b) and 16 (1) (b) read with Section 34 of the U.P. Act No. 13 of 1972 (in short �the Act�) and Rule 22 of the rules framed under the Act. It was inter alia, prayed in the said application that the allotment order dated 7121998 in favour of the petitioner be recalled, and the disputed portion be released in favour of the respondent No. 3. An affidavit was also filed in support of the said application. It was inter alia, alleged in the affidavit accompanying the said application that the respondent No. 3 was the owner/landlord of the disputed portion in which Palakdhari was the tenant; and that the respondent No. 3 filed an ejectment Suit No. 194 of 1998 (Uma Shanker Shukla v. Palakdhari) which was decreed in S.C.C. Revision No. 8 of 1997 by the judgment dated 1101997, and the said tenant Palakdhari was ordered to be ejected. It was inter alia, further alleged in the affidavit accompanying the said application that Civil Suit No. 1788 of 1998 (Uma Shanker Shukla v. Palakdhari) was also pending in which a relief was sought to restrain the tenant/defendant from passing on the possession of the disputed portion to any other person except the plaintiff in any mode or manner. Copies of the said application and its accompanying affidavit have been filed as Annexure3 to the writ petition.

It further appears that by the order dated 1422002, the Rent Control and Eviction Officer/A.C.M. (1), Kanpur Nagar set aside the said order dated 7121998. Thereupon, it appears, the petitioner filed a revision being Rent Revision No. 21 of 2000. By the judgment and order dated 732001, the learned Vth Additional District Judge, Kanpur Nagar allowed the said Rent Revision No. 21 of 2000,and remanded the matter to the Rent Control and Eviction Officer for deciding the same in accordance with law. A copy of the judgment and order dated 732001 has been filed as Annexure7 to the writ petition.

After the remand, the Rent Control and Eviction Officer/A.C.M. (VII), Kanpur Nagar (Respondent No. 2) by the order dated 2582001 rejected the said application under Section 16 (5) of the Act filed by the respondent No. 3. A copy of the said judgment and order dated 2582001 has been filed as Annexure8 to the writ petition.

Thereupon, the respondent No. 3 filed a revision being Rent Revision No. 55 of 2001.

By the judgment and order dated 2492002 passed by the learned Additional District Judge, Court No. 3, Kanpur Nagar (respondent No. 1), the said Rent Revision No. 55 of 2001 has been allowed and the matter has been remanded to the Rent Control and Eviction Officer for deciding the matter again after giving notice to the respondent No. 3 and after hearing the parties.

Thereafter, the petitioner has filed the present writ petition seeking the reliefs mentioned above.

I have heard Sri S.M.A. Kazmi, learned Counsel for the petitioner and Sri Ashok Kumar Srivastava, learned Counsel for the caveatorrespondent no. 3 at length.

Sri Kazmi, learned Counsel for the petitioner submits that in view of the pendency of Suit No. 198 of 1967 between the respondent No. 4 and the respondent No. 3, the question as to who was the owner of the disputed portion was still subjudice. The said question, it is submitted, cannot be decided by the Rent Control Authorities under the Act. However, it is submitted in such circumstances, it is open to the Rent Control Authorities to decide the question as to who was the landlord visavis the preceding tenant in the disputed portion.

Sri Kazmi, learned Counsel for the petitioner has placed reliance on a Division Bench decision of this Court in Kunwar Gulab Singh v. Zila Purti Adhikari and two others, 1981 Allahabad Rent Cases 43 (LB).

In reply, Sri Ashok Kumar Srivastava, learned Counsel for the caveatorrespondent No. 3 submits that while it is true that the Rent Control Authorities cannot decide the question of ownership of the disputed portion, but they can decide the question as to who was the landlord visavis the preceding tenant. In the question case, it is submitted, the revisional authority in the judgment and order dated 2492002 has recorded categorical finding that there was relationship of landlord and tenant between the respondent No. 3 and Palakdhari (the preceding tenant in the disputed portion). It is submitted by Sri Srivastava that the said finding has been recorded on a consideration of material on record, and no interference is called for with the said finding.

In rejoinder, Sri Kazmi submits that the said finding has been recorded by the revisional authority in the judgment and order dated 2492002 on the basis of judgment and order dated 1 101997 passed in S.C.C. Revision No. 8 of 1997. It is submitted that the writ petition being Writ Petition No. 35982 of 1997 filed by the said Palakdhari against the said judgment and order dated 1101997 was dismissed by a learned single Judge of this Court by the order dated 2641999 without examining the question on merit as the disputed portion had already been vacated by the said Palakdhari.

It is submitted that the judgment and order dated 1101997 was never confirmed by this Court.

It is further submitted by Sri Kazmi that the said judgment and order dated 1101997 was passed in a revision under Section 25 of the Provincial Small Cause Courts Act, and the revisional Court in passing the said judgment and order dated 1101997 appraised the evidence on record and recorded the finding of fact, as such, the said judgment and order dated 1101997 was illegal and, therefore, could not be relied upon. A copy of the said judgment and order dated 1101997 passed in S.C.C. Revision No. 8 of 1997 has been filed as Annexure SA1 to the supplementary affidavit filed today, and a copy of the said order dated 2641999 passed by this Court in Civil Misc. Writ Petition No. 35982 of 1997 has been filed as Annexure SA2 to the supplementary affidavit.

I have considered the submissions made by the learned Counsel for the parties.

In Kunwar Gulab Singh case (supra), a Division Bench of this Court laid down as follows (paragraphs 5 and 6 of the said ARC) :

�(5) Thus even though the question as to who out of the two, namely, Gaya Prasad Mehrotra and Achal Behari Mehrotra was the landlord may be in dispute, the proceedings under Section 16 cannot be put off indefinitely merely because of the existence of the dispute. The Rent Control Authorities are not concerned with the question of ownership. They are concerned only with the question as to who was the landlord. Even though there may be disputes as between coowners (who may be in actual possession or indirect possession through parents over separate portions of joint property), it is clear that so far as letting out the premises is concerned, the coowner who had been letting out the premises earlier should be deemed to have the right to continue to let out the premises in future as well until the dispute between the coowners is resolved by partition or otherwise. The Rent Control Authorities cannot disturb the possession of one co owner over any portion of the joint property. As held by one of us in D.S. Victor v. District Judge, Bareilly, and in Kedar Nath Tandon Trust v. District Judge, the person to be deemed to be landlord for the purposes of these proceeding is the person who was realizing rent immediately before the occurrence of vacancy. This matter being directly connected with the passing of an order under Section 16, the Rent Control Authorities have inherent jurisdiction to decide the question. Their decision may not operate as res judicata when the dispute relating to title ultimately come up or decision before a Civil Court, but the decision would be operative as far as proceedings under Section 16 are concerned. A reference may in this connection be made to the law laid down in Om Prakash Gupta v. Dr. Ratan Singh, by a Constitution Bench of the Supreme Court. The view expressed by two learned Single Judges, respectively, in D.S. Victor v. District Judge and Smt. Kailashwali v. Additional District Judge, that where a serious dispute arises with regard to title, it can only be decided by the Civil Court and not by the Rent Control Authorities, does not take into account the law laid down by the Supreme Court in Om Prakash Gupta (supra) and cannot, therefore, be accepted as correct.

(6) In this view of the matter it was necessary for the Rent Control and Eviction Officer to consider for the purposes of proceedings under Section 16 as to which of the contending parties was the landlord and in case Gaya Prasad Mehrotra was found to be landlord also to consider the question of release raised by him. The question of allotment as prayed for by the petitioner will also thereafter be considered by the Rent Control and Eviction Officer. The petitioner''s contention is that the release application moved by Gaya Prasad Mehrotra was belated and was not maintainable. This matter can also agitated before the Rent Control and Eviction Officer.�

(Emphasis supplied)

In view of the aforesaid decision, it is evident that in case, there is a dispute regarding ownership of an accommodation, the Rent Control Authorities have no jurisdiction to decide the said dispute regarding the ownership. However, in the circumstances, the Rent Control Authorities for the purposes of proceedings under Section 16 of the Act can decide the question as to who was the landlord visavis the erstwhile tenant before the occurrence of vacancy in the accommodation. In other words, the Rent Control Authorities can decide the question as to who had relationship of landlord and tenant with the erstwhile tenant of the accommodation.

In view of the aforesaid legal position, it is evident that even though the authorities below had no jurisdiction to decide the dispute between the respondent No. 3 and the respondent No. 4 regarding ownership of the disputed portion, but it was open to the said authorities to decide the question as to who out of the said two persons was the landlord of the disputed portion visavis the preceding tenant, namely, Palakdhari.

The learned Additional District Judge, Court No. 3, Kanpur Nagar (respondent No. 1) considered the material on record including the said judgment and order dated 1101997 passed in S.C.C. Revision No. 8 of 1997, and held that there was relationship of landlord and tenant between the respondent No. 3 and the said Palakdhari (preceding tenant in the disputed portion). The said finding having been recorded on a consideration of the material on record does not call for any interference by this Court under Article 226 of the Constitution of India. No illegality or perversity has been shown in the said finding recorded by the learned Additional District Judge, Court No. 3, Kanpur Nagar in the said judgment and order dated 249 2002.

As regards the submission of Sri Kazmi that the judgment and order dated 1101997 was illegal, I am of the opinion that the correctness of the said judgment and order dated 1101997 cannot be examined in this writ petition. It is true that the said Writ Petition No. 35982 of 1997 against the said judgment and order dated 1101997 was dismissed by this Court by the order dated 2641999 without going into the merits of the case. However, in any case, the said judgment and order dated 1101997 became final. In the said judgment and order dated 1101997, a finding was recorded that there was relationship of landlord and tenant between the respondent No. 3 and the said Palakdhari (preceding tenant in the disputed portion). The said finding was evidently become final. Therefore, the learned Additional District Judge, Court No. 3, Kanpur Nagar did not commit any illegality in relying upon the said judgment and order dated 1101997 while passing the impugned judgment and order dated 2492002.

In view of the aforesaid discussion, I am of the opinion that this writ petition lacks merit, and the same is liable to be dismissed.

It is also noteworthy that by the judgment and order dated 2492002, the learned Additional District Judge, Court No. 3, Kanpur Nagar has remanded the matter to the Rent Control and Eviction Officer for deciding the same after giving notice to the respondent No. 3 and after hearing the parties. In the circumstances, I am of the opinion that it is not a fit case for interference under Article 226 of the Constitution of India in any view of the matter.

In view of the aforesaid, this writ petition is dismissed.