Sarla Devi vs Shailesh Kumar and others

S.U. Khan, J.—Heard learned Counsel for the parties.

This is tenant''s writ petition directed against vacancy declaration order dated 22.4.2006 passed by the Rent Control and Eviction Officer/City Magistrate, Shahjahanpur in Case No. 20 of 2000, Shailesh Kumar and another v. Smt. Sarla Devi. Landlordsrespondent Nos. 1 and 2 filed release application under section 12/16 of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 for release of the accommodation in dispute which is a shop on the ground that it was vacant and they needed it. Petitioner is tenant in the said shop at the rent of Rs. 300/ per month since 1987 and rent note was also executed by the tenant on 14.9.1987. It was also alleged that the shop had been sublet to Atul Kumar Saxena.

Tenant pleaded that rent was accepted by the landlord till January, 1999 and thereafter as landlord refused to accept the rent hence it was deposited under section 30 of the Act. It was further stated that Atul Kumar Saxena was real brother of husband of the tenant and was looking after the business from the shop in dispute on behalf of the tenantpetitioner and for the said purpose registered power of attorney had also been executed by her in his favour. R.C. and E.O. declared the vacancy on the ground that tenancy was without allotment order and there was subletting.

I have held in Rajdhari v. Smt. Ranjana Gupta and another, 2006 (63) ALR 677 placing reliance upon Supreme Court authority of Mansa Ram v. S.P. Pathak, AIR 1983 SC 1239 that allotment/release application under section 16 of the Act on the ground of deemed vacancy for the reason that building was let out without allotment order cannot be filed after 12 years of occurrence of vacancy.

As far as subtenancy is concerned, tenant''s husband was in service since the date on which shop in dispute was taken on rent by the tenant and since then business is being run in the same manner i.e., controlled by the petitioner and run and managed by her husband''s brother. If business is actually controlled by the tenant but management is looked after by another person then it does not amount to vacancy.

Accordingly writ petition is allowed. Impugned order is set aside.

I have held in Khursheeda v. AD.J. 2004 (55) ALR 586 and H.M. Kichlu v. A.D.J, 2004 (57) ALR 485 that while granting relief against eviction to the tenant in respect of building covered by Rent Control Act or while maintaining the said relief already granted by the Courts below, Writ Court is empowered to enhance the rent to a reasonable extent.

In the aforesaid authority of Khursheeda (supra), I placed reliance upon the Supreme Court authority of M.V. Acharya v. State of Maharashtra, AIR 1998 SC 602=1998 SCFBRC 75 where it was held that it was essential to provide for periodical enhancement of rent under the Rent Control. Acts. The Supreme Court has further held that frozen rents are giving rise to lawlessness and landlords out of frustration are approaching muscle man to get the premises vacated and Courts of law are becoming redundant in this sphere. This authority has recently been followed by the Supreme Court in Satyawati Sharma (dead) by LRs. v. Union of India and another, (2008) 5 SCC 287=2008 (71) ALR 499 (SC) part of Para 29 and Para 34 of which are quoted below :

"29. It is trite to say that legislation which may be quite reasonable and rationale at the time of its enactment may with the lapse of time and/or due to change of circumstances become arbitrary, unreasonable and violative of the doctrine of equity and even if the validity of such legislation may have been upheld at a given point of time, the Court may, in subsequent litigation, strike down the same if it is found that the rationale of classification has become nonexistent.

In Malpe Vishwanath Acharya and others v. State of Maharashtra and another (supra), the Court found that the criteria for determination and fixation of rent by freezing or by pegging down of rent as on 1.9.1940 or as on first date of letting, had, with the passage of time become irrational and arbitrary but did not strike down the same on the ground that extended period of Bombay Rent Act was coming to an end on 31.3.1998."

Under U.P. Rent Control Act, there is no provision of enhancement of rent after October, 1972 [Except where landlord is public charitable or public religious institution (section 9A) or Government is tenant section 21 (8)]. In the aforesaid authority of Khursheeda, I have also placed reliance upon the authority of Supreme Court in "Shangrila Food Products Ltd. v. Life Insurance Corporation of India, " AIR 1996 SC 2410=1996 SCFBRC 472 paragraph 11 of which is quoted below :

"It is wellsettled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court, being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief."

Thereafter in Para 8 of the aforesaid authority of Khursheeda, I held as under:

"Rent Control Act confers a reasonable advantage upon the tenant of protection against arbitrary eviction. Tenant under the Rent Control Act cannot be evicted except on specific grounds like bonafide need of the landlord, arrears of rent, subletting and material alteration etc. This advantage is also coupled with the advantage of immunity from enhancement of rent. The latter advantage cannot be said to be either reasonable or equitable. The Supreme Court in the aforesaid authority of S.F.P. v. L.I.C., AIR 1996 SC 2410 has laid down that while granting relief to a party the Writ Court can very well ask the said party to shed the unfair advantage which it gained under the impugned order. By slightly extending the said doctrine it may safely be held that while granting the reasonable advantage to the tenant conferred upon him by the Rent Control Act the tenant may be asked to shed the unreasonable arbitrary advantage conferred upon him by the said Rent Control Act. The Writ Court therefore, while granting or maintaining the relief against arbitrary ejectment to the tenant can very well ask the tenant to shed the unreasonable benefit of the Rent Control Act granted to him in the form of immunity against enhancement of rent, however inadequate the rent might be. Tenant will have to shed the undue advantage of immunity from enhancement of rent under the Rent Control Act to barter his protection from arbitrary eviction provided for by the said Act."

Thereafter in H.M. Kitchlu v. AD.J., 2004 (57) ALR 485 I have held that the same principle of enhancement of rent to a reasonable extent may be made applicable while dismissing the writ petition of the landlord for the reason that by doing so Writ Court approves the protection of Rent Control Act granted to the tenant by the Courts below.

Property in dispute is a shop alleged to be situate in an important market of city of Shahjahanpur Rent of Rs. 300/ per month was fixed 20 years before. Accordingly, it is directed that with effect from September, 2008 tenant petitioner shall pay rent at the rate of Rs. 1,500/ per month. No further amount over and above Rs. 1,500/ per month shall be payable as water tax etc.

It is further directed that whatever rent has been deposited by the tenant under section 30 of the Act till date shall be withdrawn by her and rent at the old rate of Rs. 300/ per month till 31.8.2008 shall be paid by her to the landlordrespondent within three months from today (actual withdrawal of rent deposited under section 30 is not a condition precedent for paying the said amount to the landlord within three months). The unpaid rent at the old rate and the rent at the enhanced rate with effect from September, 2008 onwards shall be deposited in the bank account of the landlord provided that learned Counsel for the landlordrespondent intimates the said bank account number to the learned Counsel for the tenantpetitioner in writing.